Intentional, Relational, Consensual: A New Framework for Performing Arts Contracts

Contracts are a crucial part of the day-to-day business of live performing arts. Many artists and arts workers who work as independent contractors find themselves engaged multiple times per year by larger institutions and sign off on pages and pages of contracts as a part of that process. In June of 2021, more than a year into the COVID-19 pandemic, many aspects of live performance had changed. Previously ephemeral events were being recorded and livestreamed, artists were adapting their work to new digital formats, and working at a distance became the norm. Despite all of this change, the process of contracting remained relatively stagnant. The pandemic provided an opportunity to reconsider our ways of working, but many administrative aspects of our work, including contracting, were not keeping up with the rapid changes and evolving conversations. Independent artists and arts workers were often left feeling confused and under-resourced when engaging with institutions.

As a part of Undercurrent Creations’ Parallel Tracks programming, Nikki Shaffeeullah and Rachel Penny curated a panel presented in partnership with the Festival of Live Digital Art (FOLDA) to dig into this new landscape and its impacts on contracting. The panel featured a range of voices that take contracting and relationship building very seriously as part of their work, including artists, producers, and a lawyer. This panel opened up the contracting process in order to examine its function within our creative relationships and have a frank discussion about how artists and arts workers can retain power and agency within a process that can often disadvantage them.

The event began with opening remarks from Undercurrent’s artistic director Nikki Shaffeeullah, speaking from her home in Tkaronto:

This city that I'm based in, as well as all of the colonial organizations of this land, cities, towns, provinces, and Canada itself, have been built through contracts, agreements that were never made, should have been made, [were] made and broken, [were] made in bad faith, or [were] made through coercion and deceit. The state and its systems were built for practices of theft: theft of land, theft of bodies, theft of life, theft of culture. The recent news from Kamloops, of course, is one devastatingly sorrowful but not isolated example of this kind of theft. So it makes sense that in our sector, the arts sector, as well as all the aspects of the state, we've inherited cultures of bad agreement-making that prioritize the entities that have power, and marginalize and harm those without it. It is our hope that this panel, which looks at the specifics of contracting in our industry, can be a meaningful step towards making the colonial status quo of the industry obsolete by building healthy and anti-oppressive relational practices in their place.

The first question posed to the panel was deceptively simple: What is a contract? A lack of shared understanding of the function of a contract within an agreement can lead to confusion and conflict. Nico Elliott, an entertainment lawyer who is a board member at Artists’ Legal Advice Service (ALAS), gave a helpful and spacious definition, dispelling the idea that a contract needs, by nature, to be a very complex legal document: “A contract can be any agreement between two or more people, where they exchange something with each other… Something has to go between both of those people; that makes a contract. On paper, a contract can be an email, it can be a twenty-page document, it can look a lot of different ways.”

The conversation then turned to the function of contracts in relationship building. Sylix and Tsilhqot’in playwright, director, and cultural theorist Kim Senklip Harvey shared:

I've always had an aversion to [the colonial aspect of contracts]... it's why I work on relational documents. I think about what is being exchanged in terms of knowledge, in terms of goods, in terms of my presence. I think about how my Interior Salish people would come down the Stó;lō River bringing goods, trading obsidian, trading fish, trading goods and mercantile… The colonizers’ language around this is terrifying. And the hostility of these agreements is something that I really just don't appreciate because they're so anti-relational... I humbly try to understand how I can engage with my own paradigm and sense of being an Interior Salish Plateau person in respect and in continuance of the thousand-year-old trade agreements that Indigenous peoples had on these territories.

Owais Lightwala, theatre producer and assistant professor in the School of Performance at Toronto Metropolitan University, joined in with further discussion about the role contracts play in setting up healthy working relationships:

For me, the purpose of ‘contracting’ the activity, the verb, is to come to an understanding... especially in a world that is a collision of so many different cultural perspectives, of so many different backgrounds, of so many different experiences, of so many different kinds of realities that everyone is coming to the table with, I think a challenge that we have is: Do we actually understand each other? Even if we understand the literal words I'm speaking, because we have this common language, do we actually understand the meaning of those words in the same way?

One of the simplest ways to build trust is to say what you are going to do and then do it. But if we don't have the same understanding of what I'm going to do or what you're going to do, then it's very easy for that trust to be broken and especially in a new relationship. The process of contracting for me is much more interesting than the document.

Emcee, playwright, and activist Donna-Michelle St. Bernard jumped in next, digging into what contracting means in the age of digital work:

Something that connects through what’s been said so far to the challenge of contracting the digital space is relation, territory, and authority. I remember working out a co-production between Native Earth and the National Arts Centre for something that would happen in the National Arts Centre—well, they have a house and we don't have a house. So the assumption is that we're going to work with house rules. [But that] territorial authority assumption is not in play in the digital space because we're not in anybody's house, or we're actually literally in everybody's house... The digital space, I think, kind of flattens who is the lawmaker... In most hierarchical structures, there's consequence, and ‘the law of the land,’ and so with no land, there is no law.

Reflected in these answers was a sense that power is often distributed unequally in the contracting process, especially during the pandemic, as work became scarce, and artists were often struggling to make ends meet. Our panelists reflected on how to disrupt that power dynamic and how artists and other arts workers can be more empowered to assert authority and boundaries within the contracting process. Kim spoke about the place of contracts within wider relationships:

For me, if we're just starting at the contract, it's too late. Because if a contract is offered and there's no relationship and there's no actual building and sharing of values and ethics and intentionality and ways of doing business, it’s too late. When I did work that way, I was oppressed, deeply oppressed, and it hurt my spirit too much—my denitsin—to feel like I was under the grips of colonialism. I have the privilege now of having usurped power from institutions to make decisions around projects that I will and will not participate in. And they are deeply relational. They are about the ways of being, the ways of living, rooting them in my Dechen Ts’edihtan, which are my Tsilhqot’in laws and protocols, which are around having dialogic, accountable spaces, values-based spaces.

[Building these relationships can take] years... Until we really get to know each other and we have consent along the way to say if this is no longer nourishing or if we’re finding that some things have shifted, we can be held accountable to that. It takes years to build these relationships because these are people's lives we're talking about—I take that seriously.

Owais continued the discussion of power dynamics, with an offer to reframe the conversation, moving away from empowering artists and toward helping artists understand the power they already have, individually and collectively:

I'm more interested in how we actually get artists to be more powerful and not just feel it... To actually change the power dynamic, we have to understand what the different kinds of power are. Institutions have the power of money and the power of legitimacy or authority. The state has coercive power where the police can coerce you to do things. But the artists have expertise power. They have potentially informational power; they have potentially moral power.

With collective action, you have an impact that is greater than the individual. It’s even just as simple as creating a network where you share information, to have transparency around [payment]... And suddenly you have the power of information and then with that information, you can assert moral power and say, ‘actually, I think it's really unfair of you to give different billeting to different people,’ etc., etc. Contracting is the end of the conversation. If you want to change your power situation, then first understand what kind of power you need in the negotiation you're going into. And then [think about] how you systematically build that.

With the introduction of collective power, we discussed how isolated artists and arts workers can feel through this process, and how poorly resourced they can be compared to the institutions. Often, individuals sign and return contracts without asking questions or requesting clarification on any points. Nico added some advice for workers who don’t have access to a lawyer:

The power dynamic is absolutely not an illusion, but there are ways in which you can feed into that illusion to your own detriment. And the thing that I can't figure out how to really teach is how to make someone feel big enough and brave enough to respond to that piece of paper that came to them... People want to be grateful! That they don't want to lift the hood of this opportunity and that they're assuming that what the person sent to them is both fair and the best they can offer.

I would like to reframe that: it's the responsibility of the person who put together this agreement to put forward something that benefits them or their client the most. That's not to say what's coming across isn't fair, it might be, but it is not their responsibility to write something that is good for the other side. They are absolutely expecting you to come back and engage. [Often] the artist on the receiving end doesn't feel powerful enough to do that.

Donna-Michelle added further encouragement for artists and arts workers:

One of the empowering things that we can [remember] when we receive a contract is that a PDF is not a stone tablet. You can write on that. You can cross stuff out. It's not the law just because it's a PDF. I think sometimes the idea of doing that seems like an act of distrust, like you’re saying the contract’s not good enough. But maybe it isn't! Or maybe it's just not a right fit. It's not a value judgment of good or bad.

It's [often] not reasonable to expect people to read every contract every time. Not every piece of work is worth doing all that administrative labour. The contract knows that, the contract relies on that. So for me as an engager, the onus is on me to say for example: ‘Hey, based on the conversation that we had... I just want to draw your attention to 52B, because that's where I'm not 100 percent sure that we have the same picture.’ We can't entirely deconstruct the power imbalance necessarily, [but] I think the engager taking more of the onus is one way to shift it.

Owais added:

Nowhere does it say in the ‘legal code’ that [the contract] has to be written in legalese. We have this idea of ‘real’ contracts and then ‘not-real’ contracts. [But] any language that you actually understand is in your favor. 90 percent of the time for what we're talking about, it's actually better to just be simpler.

Nico explained why that technical legal language is often there:

A lawyer will tell you all that language is in there because it's our job to contemplate every foreseeable risk... so this has been built up over time to be all about risk aversion and not about clarity or about collaboration. And it has a huge gatekeeper effect… [For the engager], often there are clauses in that agreement that you just have because it's your boilerplate that you use at your office, and you don't understand why it's there. It's unreasonable for an artist to go deep on these agreements. It’s less unreasonable for the engager to spend that time to make sure they really understand what's in there and why it's in there.

[If] someone is not giving you enough time to figure out what you're looking at and feel confident with what you're agreeing to, tell them to wait. It's between you and that other person whether you genuinely think, in your gut, they might walk away if you can't respond at the end of the day. That to me is terrible relationship building. But I see it often, people saying, ‘We’ve got to get this done, can you please just look at it really quickly and get back to me?’ Don’t let someone do that to you!

Some of the panelists shared tools that individuals can turn to when considering contracts. Nico shared a bit about ALAS’s C.R.E.A.T.I.N.G checklist:

Time is money... What you can prepare to do is always know what you're looking for. When you're reading a document, you read what's there, but it's hard to know what's missing. On the ALAS website, there's a subtopic called C.R.E.A.T.I.N.G... It’s a helpful checklist for you [prompting questions like]: Am I seeing the length of time that I'm expected to do this work for and that [the engager] will have access to this work for? Am I seeing the money? Am I getting a proper understanding of what you actually expect me to create?

Kim joined in with some suggestions for engaging in contracting:

One of the things that I find useful if I'm forced to engage with a contract or an LOA, is that I make sure that those LOAs are for shorter time periods... I'll say, ‘We can revisit this, but at this iteration, this is the stage and what I'm committing to.’ The problem with that, though, is then institutions start leveraging that; they commit, then leave artists in a position to feel anxiety that they're going to undermine the commitment to the longer term of the project. How can we actually hold institutions accountable to long-term commitments without shackling an artist to that institution and that project? That's something that I really haven't been able to solve because when you get large institutions, there is such a lack of accountability in this country… Most large institutions don't have to actually hold themselves accountable to their mission statements anymore.

We don't need to live under the tyranny of one model for all processes. It does strike me as strange given the supposed diversity of artists we have that everyone would work in exactly the same way for exactly the same hours in basically the same structure across the country.

Donna-Michelle spoke about the Voluntary Addendum, a tool created by AD HOC (Artists Driving Holistic Organizational Change) Assembly to work alongside more standard contracts:

The Voluntary Addendum is a project from AD HOC Assembly, where I'm one of the coordinators, and it’s an options document. Essentially, it's a series of clauses that can protect artists, beyond the bounds of what the normal labor agreements protect in theatre, beyond the bounds of the fairly gendered protection of Not in Our Space policy and extending into culturally safe spaces or more laterally powered spaces. The idea of the Addendum is for a theatre to choose some of these clauses and say, ‘We voluntarily commit to these things in addition to the things that the industry requires us to commit to.’... [The way the addendum is structured] requires conversation before the building of the contract. It requires you to express what you're willing to do, and it creates language and space for the artists to express what they require to do good work.

Kim has treaty-making as an alternative to traditional contracts in the past, and spoke about that process:

I needed to assert and usurp power to be able to protect myself because I'm in direct relationship to the needs of my people. So I didn't want to sign a commission agreement, I didn't want to sign the five-pager, I didn't want to sign the seven-pager. And to me, the process is the art, and so I wanted to really honor that. And this is what I struck, with some treaty negotiations, and we signed it. I really offer to people to rethink how you have relationships with institutions... No matter the outcome of what happens with that treaty, unto itself, I'm really proud of what the treaty partners signed on to, and what we did in terms of the precedent it set. That you can actually start to enter engagements in a new framework.

Another practical element of how we make contracts is how we teach people to make contracts. Owais spoke to his experience teaching at Toronto Metropolitan University’s School of Performance, where they are rethinking the traditional curriculum:

[TMU is] trying to bring in what has been called producing but is really just information that will hopefully increase the power of all the artists in the entire School of Performance. The old model has been that the Conservatory is where we make artists and technicians and designers, etc. And then they emerge and they go into this industry, and then the industry is really professional and awesome, and ‘the industry’ will hire everyone. Where we are headed now with our curriculum is that the people that are in our school are the industry, and they need to lead it and they need to build it in ways that make more sense to them. Because what they're going to inherit, unfortunately, is a bit of a mess. I think we overestimate how much [the problems] of the industry can be attributed to malice and underestimate incompetence. Because we're in a chronically underfunded part of the world economy.

I teach negotiation in my producing class now, and we do little case studies. I thought the negotiation case study would be all about style. But my students were really pissed off at me because they [didn’t] even know how much people make! So I had to take two steps back here and start at the very, very basics, and then get into negotiations. And then let's get into negotiations across cultural difference, negotiations with gender politics involved, etc. I'm trying to build the people who are going to fix the system because I'm not going to be able to do it on my own.

As the conversation came to an end, panelists were asked to share learnings from the pandemic about ways of working that could be brought forward into future, in-person work. An audience member offered in the Zoom chat the example of shifting the industry standard six-day work week to a five-day week.

Kim encouraged us to consider work structures on a more case-by-case basis:

Sometimes if you're a single mom, working a six-day week on a smaller contract is actually better for your schedule. Weekends off doesn't work for everybody. So permitting us to have five-day work weeks is good, but I think a more detailed conversation would actually be asking the artist and asking the artistic team, ‘What do you need to complete this project in a way that nourishes you?’ and trying to get there.

To actually change the power dynamic, we have to understand what the different kinds of power are. Institutions have the power of money and the power of legitimacy or authority.

Nico cited “what it takes to get work done” as an important pandemic conversation topic that we should continue:

I would suggest persistently bringing to the person you're negotiating with, what it takes to get that work done. How you evaluate how much time you need, how much money you need, what kind of schedule it could be on, how valuable it is to you. Thinking about what it’s going to take technically speaking, emotionally, in terms of energy, in terms of how many hours are in the day—now that we’re able to quantify that, keep bringing it up.

From the engager side, I think the compassionate and responsible thing to do is to never assume you know what it takes to get work done and to not propose based on your budget but to start by asking, ‘What does it take to get what I'm asking for done?’

Owais affirmed the need for more flexibility and responsiveness in work processes:

We don't need to live under the tyranny of one model for all processes. It does strike me as strange given the supposed diversity of artists we have that everyone would work in exactly the same way for exactly the same hours in basically the same structure across the country… I think it's important that we have some structures that are collectively agreed upon that are professionalized standards but hopefully more than one option.

Donna-Michelle reminded us of the power and responsibility on the side of the engager:

Dipping back to the Voluntary Addendum, one of the principles of that is that any of us can and should do more than we're minimally required to do—and that it's for those in power to make the offer.

For me, it's [about] shifting our relationship with folks that we contract. I’m thinking, as an engager, that my relationship with [people I’m engaging] is that they are my guests, not my staff. And so, the nature of agreements that are written in this house are, ‘This is what we would like you to do, these are the things we are going to do,’ So that there is duality in that document. And that expresses the expectation of duality in that relationship. Whatever that is, that softening of the dynamic, I think that's also something we can move towards in a strong way.

The performing arts is uniquely collaborative and requires strong working relationships. None of us have the resources, financial or otherwise, to make good work on our own. Many administrative aspects of this work, including contracting, can become dehumanizing and isolating. However, independent artists/arts workers and institutional engagers can work together to interrupt the current status quo. These panelists put forward a hopeful vision of relationship building, one that may involve contracting, but doesn’t begin or end with it. Reframing contracting as a smaller part of a bigger relationship-making process can contribute to a cultural and sectoral shift away from scarcity, opacity, and unquestioned routine towards something more dialogic, creative, and generous. By slowing down, asking deep questions, and approaching every aspect of our work with curiosity and creativity, a healthier and more just arts sector is within reach.