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Theatrical Contracts

A theatrical contract does not differ in essence from any other form of contract, be it a contract of employment, a contract to provide a service, or a contract to buy and sell goods. At it's heart, a contract is simply an agreement entered into voluntarily by two or more parties with the intention of creating a legal obligation for the exchange between them of some form of benefit - usually, but not necessarily, the provision of some form of goods or service in return for financial remuneration. In the case of a theatrical contract, the latter is certainly the case - the actor or actress agrees to provide his or her services to the theatrical manager who agrees to make regular payments in return for those services.

Women and Contract Law

For the Edwardian actress, the situation was complicated by the fact that women were yet to acheive full legal equality with men - in fact it would not be until the 'Law Reform (Married Women and Tortfeasors) Act', of 1935, that women would gain essentially the same contractual and property rights as men. Historically, British Common Law had, for example, classified women into either of two groups which greatly affected their ability to contract and/or own property. An unmarried woman, or femme sole, enjoyed an independent legal identity, and the right to own property, although her rights of inheritance were far inferior to those of her male siblings (who, under the law, would be entitled to claim the lions share of any bequest). A married woman was femme covert, wherein much of her legal rights had been subsumed into the purview of her husband. All of her property became his, including her earnings and inheritances, and whereas she could not form a valid contract, her husband could form a valid contract in her stead to which she would be legally bound.

For much of history, women had been considered the mere chattels of their fathers and, later, husbands, and this concept had been reinforced in the law. In the latter half of the nineteenth century, however, the first first moves were made to address this situation and a number of advances were made in improving the legal status of married women in particular. Some milestones among the changes made in that period were:

Despite these advances, however at the commencement of the twentieth century, a married woman's liability under a contract was still very different from that of her husband. For example:

A Typical Contract Explained

There was no one standard form of contract for theatrical performers in the Edwardian era. Each individual theatrical manager developed his own, and they differed enormously in complexity, from a few simple lines scribbled on a scrap of paper to a formal document containing many paragraphs of legalese. The example below is not an actual contract, but an example compiled from actual clauses representing some of the more common elements of theatrical contracts of the time. Each clause is followed by a brief explanation of it's intent and, in some cases, details of an illustrative a legal action.

  1. This agreement made and entered into the [date] day of [month], 19[year], by and between [name of artist], party of the first part, and [name of manager], party of the second part.

    The contracting artist should be clearly identified by their legal, given name as well as any stage name or pseudonym which he or she may have adopted, eg. "Jane Jones, commonly known as Josephine Jameson". Signing a contract under an assumed name only did not, in itself, invalidate the contract, but may lead to problems proving the identity of the contractee in the course of any action to enforce it. Similarly, the engaging manager or theatrical company must, for the same reasons, be clearly identified, including the names of any co-partners and the name of any covering trading company, eg. John Smith and Paul Smith, operating as 'The London and Southern Theatre Company'. The date must be the date on which the contract was signed, not the date of it's commencement.

    June 1895: Fred Storey v. Messrs. C.W. Perryman and W.H. Hand - plaintiff was a well known actor seeking to recover £90 13s 4d allegedly owed to him over an engagement to play a principal role in the defendants production of the comic opera "Ivanhoe" at the Trafalgar Theatre. Plaintiff complained that he had been engaged to play the part for a period of eight weeks at £17 a week, and half pay for matinees, and during that time had in fact been paid, by the defendants, a total of £145 6s 8d - the sum claimed then being the balance owed under the agreement. The defendants denied the claim on the grounds that they had not contracted with the plaintiff, who had in fact been engaged by an agent, Mr. Shine, acting on behalf of a syndicate called 'The Burlesque and Comedy Syndicate (Limited)'. The case, therefore, was a question as to the identity of the parties to the contract. The learned judge, Mr. Justice Charles, ruled that since the defendants had in fact themselves acted as the syndicate's agents in paying the plaintiff the amount he had received they were likewise responsible for the balance, consequently judgement was given for the plaintiff in the full amount claimed.

  2. The party of the first part hereby engages the exclusive services of the party of the second part as an [actor/performer/musician etc.] at a weekly salary of [amount] for the theatrical season of the play of [name of play] which season is to commence at the option of the party of the first part on or about the [date] day of [month], 19[year], said engagement being subject to the two weeks notice of cancellation herein.

    The salary or wages to be paid, the capacity in which the artist was being employed, the date of commencement, and the duration of employment should be distinctly stated. On the latter point, as it was often not possible to be chronologically precise, it was common for artists to be contracted "for the run of the play" (defined above as 'the theatrical season') - but how long that may be depended upon the public's reaction to it. Generally, a play would continue to run so long as it remained profitable. As soon as its receipts fell, or appeared about to fall, below it's costs the manager would plan it's end and give notice to his performers accordingly.

    February 1898: Kirschen v. Searelle - Mrs. Elizabeth Kirschen, known professionally as Miss Lillie Burnand, an actress, was contracted by Mr. Searelle, a theatrical manager, to go to South Africa to perform for eight weeks at a salary of £35 per week at a music-hall operated by defendant in Johannesburg. Prior to Miss Kirschen's departure, however, defandant had sold the establishment concerned without providing for the taking over of Miss Kirschen's contract by the new owners - who declined to take it up. Miss Kirschen, who had turned down other employment on the strength of that contract. Plaintiff sued for damages in the amount of the value of the contract. Jury found for plaintiff on the grounds that the terms of the contract were clear and defendant was not entitled to break it over circumstances which were of his own making. Damages were awarded in the sum of £240.

  3. The party of the second part will not, during the term of this agreement, exercise his/her professional skill and talents as an [actor/performer/musician etc.] in public within [City or Borough or other defined geographic area] either for compensation or gratuitously, and either upon his own account or for another employer or establishment, without the consent in writing of the party of the first part first obtained, under pain of injunction, action for damages or any other available, judicial remedy: provided, however, that the party of the second part may, at any time and as often as he thinks fit, perform gratuitously at any entertainment charitably given for the burial expenses and relief of the family of a deceased actor.

    A theatrical contract often included a 'restrictive covenant' which prevented the performer from offering his/her services elsewhere in any fashion that might compete with the current employment (ie. by sating the public's desire to see them perform elsewhere). This was especially true of music hall artistes, whose 'turn' may be of relatively short duration. Such restrictions, however, must be limited and reasonable in scope else they would be unenforceable if deemed to contravene the public policy prohibiting restraint of trade. Special dispensation might be allowed for charitable performances.

    August 1897: Rose Kelly v. various - Miss Kelly (whose stage name was Sybil Arundale) was a singer and dancer who, in December 1895, aged only fifteen, had entered into contracts with three music halls to appear for them nightly at combined salaries amounting to £24 a week. A condition of the contracts was that she should not appear anywhere else during the continuance of their term, but on January 10th, 1897, she had sung before the members of the New Lyric Club, as a consequence of which her contracts were torn up. Mr. Justice Hawkins, hearing the case in the Queen's Bench, ruled that singing by invitation at a private members club, and for which she was not paid, did not constitute a performance within the meaning of the contracts and defendant was, therefore, entitled to judgement in her favour. Damages were awarded in the sum of £32 against each of the three halls involved in the action.

  4. The number of performances to be given each week shall be according to the custom of the places of amusement in cities and towns in which the party of the second part may be required to appear, also on holidays, and should the management be unable to give a performance or performances through accident, sickness, delay occasioned by reason of common carrier by rail or water, riot, fire, public calamity or other unforeseen cause, not attributable to the party of the first part, and time of performance is lost, then the party of the second part shall not receive any salary for said time in which performances are not given. The management reserves the right to temporarily close the season the week preceding Christmas, and also Holy Week, for which time no salary will be paid. Should the party of the first part play the week before Christmas or Holy Week, then the party of the second part agrees to accept half salary for such time played.

    When and where and under what circumstances the performer would be required to perform, and under what circumstances the performer would or would not be paid should be clearly laid out. In the case of a travelling company, contingency should be made for any loss of performances caused by travel delays or any other unforeseen hindrances that might be encountered.

    January, 1913: George Edwardes v. The Waldrons - Defendants were a married couple of variety artistes who had beenengaged by Mr. Edwardes to play in a musical sketch, "The Burglar", at the Gaiety Theatre in Birmingham and at the Hippodrome in Nottingham for two weeks in the previous April - at a joint salary of £25 a week. The Waldrons failed to appear to fulfill their obligations under the contract, however, having preferred instead to undertake a tour of Australia and South Africa. The defendants were not present to dispute the case and Mr. Edwardes was awarded £50 in damages against them - that being the sum of the agreed salary.

  5. The party of the second part agrees to render [his/her] services as required at such theatres, opera houses, places of amusement, and halls as may be selected by the party of the first part, playing the part (or doubles or part of understudy) for which [he/she] may be cast, in a correct and painstaking manner, which at all times must be satisfactory to the party of the first part or his representative, paying strict attention to "make-up" and the proper dressing and costuming of the character or part assigned, shall furnish costumes for the same and conform to and abide by all rules and regulations adopted by the party of the first part in respect of such matters.

    The definition of what what the artiste was required to do must be explicit as to the nature and standard of the services required, and the conditions under which these services were to be provided. This part of the contract is of a personal nature and requires the artiste to perform to the best of his/her ability, attention and skill. Although rarely enshrined in contract, there was an equal assumption that where an artiste had established a level of reputation and professional standing, that must be repected. An artiste could not be required to play parts of a significantly lower grade than those to which he was accustomed other than by common consent.

    August, 1900: Miss Louie Freear v. Sire Brothers and Lederer - Miss Freear had been engaged by Lederer, as London agent for the Sire Brothers, lessees of The New York Theatre, to travel to New York to play the principal part in "The Man in the Moon" for a period of 12 weeks at a salary of £150 a week plus costs. The piece was produced and was a great success, but when, after seven weeks, Miss Freear refused to give a performance in the open air the contract was summarily terminated. On her return to England, Miss Freear brought action to recover lost earnings. The action was not contested and Miss Freear was awarded £ 800 in damages plus costs.

  6. The party of the first part may cancel this agreement at any time before the opening of the engagement if he shall be dissatisfied with the party of the second part at rehearsals and need assign no reason therefor. No compensation is to be paid said party of the second part for rehearsals whether the same are before the opening of the season or during the season, the management reserving the right to call a rehearsal at any time. The party of the second part further agrees that if the party of the first part shall feel dissatisfied that the said party of the second part is competent to perform the duties for which said party of the first part has contracted in good faith, or is inattentive to business, careless in rendering of characters, or guilty of any violation of the rules, then the said party of the first part may annul this contract by giving one week's notice to said party of the second part to that effect, and said party of the second part shall have no further claim upon said party of the first part.

    Artistes were required to attend all rehearsals as required by the manager as a necessary precursor to their employment even though they were entitled to no remuneration for such attendance. Furthermore, the competency of any person to discharge his/her obligations in a competent manner is implied in any contract of employment, theatrical or otherwise, and, if lacking, affords legal grounds for discharge. In the theatrical case there is no necessity to establish that the artiste in any way misrepresented his/her abilities at the time of the contract, the fact that they did not satisfy the intent of the contract was enough. Of course, since acting skill is a subjective matter, the manager must be fair and honest in his appraisal, and could not use incompetency as a reason for dismissal without justifiable cause (eg. corroborated by other persons of reliable judgement). If an artiste showed his/her incompetency during rehearsals he/she could not insist on a right to appear before the public as a final test as such would require the manager to run an unfair risk.

    October 1889: Kenny v. Van Biene - Plaintiff was an actor who had been engaged by defendant, a theatrical manager, to play the part of Mephistopheles in "Faust Up To Date" at the Gaiety theatre in London at a salary of £6 a week. He rehearsed the part several times, but on the evening before the first performance, when he complained about the dirty state of the costume he had been provided, he was informed the matter was irrelevant as his services would not be required. The object of the suit was a claim for wages due and damages for breach of contract. Auguste Van Biene, defendant, claimed that Kenny's performances during rehearsals had not been to the standard he expected as he was imperfect in the 'business' and dialogue of the part and challenged on the matter invariably replied that it would be "all right on the night". Defendant had seen from the start that Kenny was not up to the part and engaged an understudy, but gave Kenny every opportunity until the last moment to acheive the required standard. Kenny's dismissal was found to be justified and his action for breach of contract therefore failed. He was, however, awarded a judgement in the amount of £6, that being one week's salary in lieu of notice.

  7. Party of the second part to furnish at his own expense, according to the directions and to the satisfaction of the party of the first part, all costumes which may be required in the part or parts assigned, and agrees to loan to the party of the first part such costumes or any portion thereof for the use of such substitute as the party of the first part may select to play said part or parts, at any time during the continuance of this agreement, when for any reason the party of the second part does not play or perform.

    It was common, in the case of 'plain clothes' roles, for the artiste him/her self to be expected to provide a range costumes suitable to the role - only in the case of historical plays, fairy plays or others requiring costumes of an unusual and/or specialist nature would these be provided by the management. The part determined the costume, and the manager had the right to insist that the costume be correct and suitable. An actress engaged to play the part of a titled lady, for example, would require costumes of a higher standard, and higher cost, than if she were engaged to play the role of a simple housewife. In, fact this requirement was a particularly onerous one for female artistes in general, who would be expected to keep pace with the rapidly changing trends in female fashion and whose costs, therefore, were likely to be much greater than their male colleagues.

  8. The party of the second part agrees to obey the rules, orders and directions of the manager and his representative, to be promptly on hand at all rehearsals and performances, to be at such railroad stations on the departure of the company as shall be designated, and to travel with the company by such routes and conveyances and at such times as the party of the first part may direct, and the party of the first part is not to be liable for the loss, damage or miscarriage of any baggage belonging to the party of the second part, although he assumes control over the same for the purposes of transportation.

    The artiste would be responsible for his/her own local transportation between places of lodging and the venues at which he/she was engaged to appear, and must present him/her self in good time to fulfil the duties required under the contract. Every theatrical performance depended upon the ensemble work of the entire cast. Every member of the company must present him or her self at the theatre at the appointed time or the performance could not proceed. Rehearsals were equally important, and even though an artiste may be satisfied that he/she satisfactorily knows his/her part he/she must still take part in rehearsals for the sake of those who ave not yet reached that stage. In the case of a travelling company, the artiste must comply with any travelling arrangements made by the manager and could not complain with regards to the time or mode of travel.

  9. The party of the first part may make such rules and regulations as are necessary for the conduct and management of the party of the second part, and if such are violated or if the party of the second part fails to obey the party of the first part or his representative, or if by speech, act or conduct does that which does or tends to injure the manager, his business or company on or off the stage, the party of the first part shall have immediate right to discharge the party of the second part without notice, in which event the salary shall be paid only pro rata according to the performances played, up to the time of the discharge.

    Discipline is essential in any business undertaking and if a theatrical enterprise was to succeed the manager would need to extract from his artistes not only the best of their performance abilities but also their best level of conduct. Furthermore, an artiste was a public character, whose position compelled a certain degree of publicity, whether he desired it or not. Any immoral conduct on his/her part might reflect on the whole company and as such would significantly diminish his/her value to the manager. To maintain order, rules and levels of conduct were an absolute necessity, and, whilst a single minor transgression might not justify dismissal, a major transgression or persistent minor breaches would afford proper grounds. Of course the rules themselves must be reasonable, and even in the event of dismissal the artiste remains entitled to payment for services rendered - unless the manager could show some financial loss occasioned from the breach which could then be deducted from the amount due.

    April 1900: Loraine v. Waller - Actor Robert Loraine sought damages against Mrs. Florence Waller, professionally known as Miss Florence West, for breach of contract. Loraine was engaged by Mrs. Waller, a theatrical manageress, to play the part of Harvey Blake in her touring production of "The Rebels". It was subsequently decided, however, to replace "The Rebels" with "The Three Musketeers" and cast Mr. Loraine as D'Argtagnan. During the tour, disputes arose between the parties over the matter of Mr. Loraine's attendance at rehearsals. Lorraine had felt that his attendance at some of these rehearsals was unecessary, and on October 9th, 1899, had refused to attend a rehearsal of Buckingham's scene in which he had only a few lines. On the same day he was dismissed. In his suit, Loraine claimed that he had been summoned to rehearsals which did not concern him with, in his opinion, an intent to annoy him, and that this constituted constructive dismissal in order to save money by replacing him in the role with a lower paid alternative. Mrs. Waller, of course, disagreed, and claimed that Loraine's dismissal had been justified on account of his conduct; assaulting another member of the company, disrupting discipline, and wifully rendering his part so indistinctly that the audience complained. Hearing the case, Mr. Justice Bigham ruled that the plaintiff had improperly objected to attending rehearsals which were, in his Lordship's opinion, necessary to the due performance of his contract. The defendant was, in his opinion, the proper person to decide when such rehearsals were necessary and it was plaintiff's duty to attend them. By failing to do so, and improperly conducting himself when he did, he had given ample cause for the defendant to dismiss him. Consequently his suit was denied.

  10. The party of the first part to pay the second party's transportation while the company is en route and to carry his baggage up to two hundred pounds weight. Transportation as herein specified does not include fare to the place of opening performances, fare after the final performance under the contract, sleeping car fare, nor expense of carriage hire to and from hotel, station or theatre.

    In the case of a travelling company, travelling expenses could be a significant burden for which the artistes must in some way be compensated, either by additional payment or the provision of free travel. By arranging travel for the entire company, the manager could negotiate preferential rates and further benefitted from the certainty that the entire company would arrive at the next location together. There was no implied duty for the manager to provide transportation, other than by explicit agreement, the terms and limitations of which must be clearly set down.

    April 1900: Lenhardt v. De Wolff Hopper - Plaintiff was an American actress who had been engaged by Mr. Cripps, agent for defendants, to come to London to play a part in a comic opera at the Lyric Theatre. Plaintiff contended that Cripps had promised her first class passage from New York to London, but on board ship she had discovered that only second class had been paid. Action was to recover £9, that being the difference between first and second class passage which the lady had had to make up herself. Called to testify, Cripps denied having promised plaintiff first class passage and asserted that he had distinctly told her that passage would be second class. In the absence of any written guarantee as to class of passage in plaintiff's contract with defendants, her case was held to be not proven and judgement rendered for defendants with costs.

  11. This contract may be terminated at any time by either party's giving to the other two weeks' notice in writing of the intention so to do, without assigning any reason or cause therefor. In case of notice to the party of the first part it shall be in writing and delivered to him or his representative in hand, but in the absence of both from the company for a period of over two days, then notice may be mailed properly addressed to the principal office of the party of the first part. In case of notice to the party of the second part, it shall be in writing and delivered in hand to the party notified, or left in the place in the theatre where the party is playing, provided for the deposit of letters addressed to members of the company, or upon the call-board of said theatre, or by mail to the theatre where the company is playing, properly addressed to the party of the second part. The commencement of the two weeks shall be from the time the notice is actually received by either party hereto.

    The general theatrical custom was to discharge an actor upon two weeks notice, but this could not prevail over a contract of employment for a fixed or defined period unless expressly provided for in that contract. The right to terminate a contract must be equal to all parties and the method of termination clearly defined so that there could be no confusion or failure through lack of communication.

    February 1904: Maxim, Mansell and Marlow v. MacNaghten - plaintiffs, Marie Maxim, Nellie Mansell and Mabel Marlow, were ballet girls engaged for a ten week run of a pantomime at the Leeds Theatre Royal with an option for the management to extend the contract for an extra two weeks at Bradford. The production did not acheive the level of success desired, however, and midway through the run defendant, being the theatrical manager responsible, decided to terminate it and not take up the option of transferring to Bradford. Consequently the plaintiffs and other cast members were all given two weeks notice of termination, ending the run after a total of eight weeks. The action by the plaintiffs, therefore, was to recover two weeks wages, that being the residue of the run for which they felt they had been contracted. Defendant cited theatrical custom in the early termination of the contract by the giving of two weeks notice. The learned judge ruled, however, that as there was no clause in the contract providing for early termination the defendant could not rely on theatrical custom to vary a fixed term and the plaintiffs action must therefore succeed. Accordingly, all three ladies were awarded the sum of £4, that being the amount of two weeks wages due to them.

  12. In the event this agreement is cancelled by a two weeks' notice from the party of the first part, he agrees to pay the transportation of the party of the second part from whatever place he may be to London. If said notice is given by the party of the second part, he agrees to pay the party of the first part all the necessary expenses the party of the first part is put to in filling his place.

    If an artiste was discharged from a contract some distance from home then it was just that the manager should meet his/her travelling expenses in order to return home. Likewise, if the artiste resigned from the contract whilst on tour this might subject the manager to some expense in sending for a replacement. There was no implied duty upon either side to meet the others costs in such a situation, unless specifically provided for in the contract.

  13. In witness whereof the said parties hereunto set their hands the day and date first above mentioned.

    A signature signified the consent of the parties to be bound by the terms of the contract. There was no set form of signature and any mark made by the signatory's hand (or by third party in the presence and under the instruction of the signatory) and intended as such constituted a signature.


Primary Sources: As indicated plus various other online and literary sources.

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