What happens if a Designer quits

[Erwin]

Before I get into it, I know there are grey areas, things I would need professional advice about, and regional laws to consider....

I have seen a number of cases, personally and through friends, where disagreements with designers have caused them to nearly walk off the job. I have been fortunate enough to have been able to work out all of the cases I have been involved with, but a couple of times it was Close! Too close. So, now I feel it is necessary to educate myself a bit more.

Do any of you have any knowledge or experience to share when it comes to intellectual property and the break down of an agreement?

If a designer quits half way through a production, who owns the design?
Can the theatre use what was left behind and finish the job without the designer?
At what point does a designer who quits still deserve credit for the work done?
Have any theatre companies been successful in taking legal action and claiming damages from a designer that bails on a contract?

any and all experiences that you are willing to share would be appreciated!

Regards;

[icewolf08]

I believe that in the professional world the theatre that hires the designer owns the design. This does not mean that copyright for the design is not held by the designer, just that the theatre, in contracting the designer to do the work has purchased the rights to use the design. I believe that if the designer were contracted to do the shame show for a different theatre that they could not use the same design without the permission of the original theatre. I have not looked at many contracts, but I would imagine that most theatres work something in that covers them in the event that a designer leaves or is fired from a job.

I would imagine that should a situation like this arise, the theatre would bring in a new designer to finish the show. Consider lighting, a light plot only constitutes a very small portion of a design, the real design comes from writing cues and designing looks. If a theatre brought in a replacement LD after the show is hung and is either in tech or going into tech, the new LD would essentially be creating their own design just using the plot that was existing. I doubt that the LD who left could make a claim against that.

Consider scenery. If a scenic designer quits before the design is finished and submitted, then bringing on a new designer, while it might cost more for a rush job is not going to cause any design infringement. If the designer left after the design had been submitted and was being built or the show was in tech, who cares? The set is there the show will go on!

[Esoteric]

I am not sure what the default is, but that is why I always work under contract that lays these things out very specifically. In my case, I own the design period. The theater is getting the rights to use the design for the run of the show. If they want to remount the show later they have to pay again for the design. If I quit all my work goes with me.

I have left several shows (two actually, both for lack of payment), and I wiped the lighting console when I left and took all my paperwork with me. They still had the lot that was hung and focused, but like has been said, that is a very small part of the overall design. The show ended up looking nothing like my design. I was essentially paid for the hang and focus, so no skin off my back (I always get 1/2 or 1/3 upfront). They ended up having their light board op write the cues. They got what they paid for.

Mike

[Erwin]

Originally Posted by Esoteric

I am not sure what the default is, but that is why I always work under contract that lays these things out very specifically. In my case, I own the design period. The theater is getting the rights to use the design for the run of the show. If they want to remount the show later they have to pay again for the design. If I quit all my work goes with me.

I have left several shows (two actually, both for lack of payment), and I wiped the lighting console when I left and took all my paperwork with me. They still had the lot that was hung and focused, but like has been said, that is a very small part of the overall design. The show ended up looking nothing like my design. I was essentially paid for the hang and focus, so no skin off my back (I always get 1/2 or 1/3 upfront). They ended up having their light board op write the cues. They got what they paid for.

Mike

I, and I think the law in most cases, would agree that the designer owns the design. I guess, the grey areas crop up when you need to define what the design is, and how many elements of it need to be present for it to be the same design. 1 track out of 50 is not a sound design, but is 10? 20? 30?
Lighting design looks to be the easiest to figure out in the worst case scenario. Set, props, costumes... these elements will have a lot of materials that are property of the Theatre that the designer can not take with.

So, in the hypothetical situation, a costume designer bails (lets say no one is at fault, there is simply a breakdown in the relationship) halfway through the construction process. 50% of the costumes still need to be constructed, there are concept drawings for 90% of the costumes, what do you think is the correct solution?

[skienblack]

Originally Posted by Erwin

So, in the hypothetical situation, a costume designer bails (lets say no one is at fault, there is simply a breakdown in the relationship) halfway through the construction process. 50% of the costumes still need to be constructed, there are concept drawings for 90% of the costumes, what do you think is the correct solution?

I would think the completed costumes could be used by the theatre though the concept drawings are the IP of the designer so the unfinished, conceived, costumes could not be created.

What would the case be for a scenic designer though?

[Esoteric]

Originally Posted by Erwin

I, and I think the law in most cases, would agree that the designer owns the design. I guess, the grey areas crop up when you need to define what the design is, and how many elements of it need to be present for it to be the same design. 1 track out of 50 is not a sound design, but is 10? 20? 30?
Lighting design looks to be the easiest to figure out in the worst case scenario. Set, props, costumes... these elements will have a lot of materials that are property of the Theatre that the designer can not take with.

So, in the hypothetical situation, a costume designer bails (lets say no one is at fault, there is simply a breakdown in the relationship) halfway through the construction process. 50% of the costumes still need to be constructed, there are concept drawings for 90% of the costumes, what do you think is the correct solution?

The drawings go with the designer the half built costumes stay with the theater.

For me the light plot (on paper), all accompanying paperwork, cue sheets, tracking sheets, everything in the console, and all backup copies belong to me. The console itself, hardware, etc belongs to the theater.

My 50% down payment pays for the plot, instrument schedules, and focus as well as the design background work for the run of the show. If the relationship breaks down I am not going to go in and unfocus the show or unhang it or anything like that. It is paid for. But the cues and tech rehearsals are not paid for. So any work I have done during tech does not belong to the theater until after the final (or second third) payment.

But you are totally right, it gets more complicated for the other designers. On the other hand, a scenic design is much more solid intellectually than a lighting design. I would say if the scenic designer walks, then any ability to use any scenery, period would be compromised. Unless he has been paid some amount, then things get really messy. They would either have to hash out some amount that would compensate the designer for what has been done, and proceed to fill in the blanks on their own. Or they would have an agreement where the designer is paid in full when the design drawings are turned in, and leave everything else up to the TD. I suppose a scenic designer could do half upfront to cover meetings and the initial design work and then pay the other half when the design drawings are turned in. Then it is up to the tech guys to build it. Or a 1/3 payment schedule with the final payment on opening night?

Mike

[Footer]

As a TD, if I get a scenic design in and the designer walks out because of their own accord, not due to anything on the theatres part (as in not paying them), I am building the show. There is nothing that designer is going to do to stop me. The scenic charge has their drawings... I have mine... were going forward. Same thing goes for the costume designer. We have the drawings... the 1st hand and cutter/draper have patterns made... fabric is on the floor... were putting that design onstage. If the DESIGNER quits, its our design. If we don't pay the designer and the designer quits, its not our design. However, it is in the designers contract that they have to be there for the pre-tech and tech period of the show, if they back out on that they just don't get paid their full amount, just like if the design comes in late, they don't get paid their full amount.

I have never seen a professional designer walk on their own accord. I have seen them leave early due to family issues such as a death, but thats another story all together. If a designer walked on their own, to me that person should never be hired again. Most places you don't get paid until the show opens. Its usually 1/3rd before you start, 1/3 when drawings are delivered, and the rest at opening.

There is usually no way to walk with the show after it opens, even in the lighting world. I know when I am playing P.E., when we go into opening I have 3 copies of the show disk sitting around, usually one in my desk, one in my car, and one next to the console. There is no way a designer is going to get that from me. I work for the theatre, if you are having issues with the theatre, take it up with the management, not me. Added to that, I have all the paperwork I need and its backed up as well.

If you think you are going to have a designer walk in the early design stages, let them. You don't want that around anyway. There are plenty more designers out there to hire.

Here is the USA 829 standard design agreement. It has no mention if the designer walks what happens. It does state what happens if the producer closes the show before it opens. The thing to do instead of being a child and taking the show an run is to go into arbitration with the theatre to settle it.

http://www.usa829.org/index.php?opti...wnload&gid=510

[eternalfire1244]

In September I was working on a show (Seussical Jr.) that had a scenic/ costume designer that walked out the day before the preview and put us in a very bad spot as he was doing the painting himself.
In this case it was not related to pay. All we did is pick up where he left off and finish the work that had to be done. We were lucky enough to have a couple of highschool volunteers that were able to finish up quickly.

[Esoteric]

You are certainly right Footer. And if a theater used my design without my permission (either by remounting the show or by using the design without paying for it) I would offer arbiration. If they turn that down I would take them to court.

However I think most people here are talking about community and small regional theater level shows where the pay is not that much to begin with, so it makes court appearances unlikely.

I have had a couple of issues along the way. I had one theater that wanted to do a remount without paying. I negotiated with them, and they decided not to pay and to allow a volunteer to remount the show. So I polietly cleared the console and asked for all backups of the show to erased. A good friend reviewed the show and I asked him to keep an eye out if they were using my design. They made a good faith move and did not (they replicated several scenes, but changed things like the angle of the light, color, pattern, etc) so I was happy. In another case I did a high end design (for a large regional company, but not at a LORT theater so it was not covered under 829) and never got the opening night payment (an accouting error was their excuse) turns out the company was seriously in the red (they closed down two years later) and planned to not pay the designers the final part of their fees. The scenic designer, costume designer, and myself threatened to take them to cout for the remaining fee (I was a student and had access to free legal representation) and they finally paid up.

It is also in my contract that I keep all backup copies until the show opens when I release them to the theater. Around here a theater that cheated and used work without paying for it would quickly be blackballed by all area designers.

Now a designer that has been paid for a certain part of the project to be done and walks, should be blackballed as well.

But until the full fee has been paid (or offered in good faith) the design CAN NOT be used. I don't care who walked first or why, using a design that has not been paid for, in full, is piracy, stealing, whatever you want to call it. Now under my contract, if I quit after the design meetings but before hang and focus the theater can have my design ideas. If I quit after hang and focus but before tech, they can keep the plot up and use the patch (although I keep all paperwork after each work call), but they don't get access to any cues (which I build before tech after the second 1/3 payment is made). If payment is not made at final tech I will erase the console and stand by it to delete any illegal backups anyone has made. You get what you pay for and no more.

On that note I had to quit a show once for health reasons. The plot and patch were mine, as were the initial cues. But I could not go through tech and so I only accepted a 2/3 payment and the show proceeded with the associate producer (who happened to be an amateur LD) writing and updating the cues.

Intellectual Property Copyright Infringement is a series subject. As artists all we have is our IP. To use a designers design without their permission is piracy, plain and simple.

However if your contract does not spell it out, then you leave yourself open to the possibility. Spell out everything in plain language in your contract and CYA.

Mike

[Footer]

It is a completely different circumstance if you don't get paid, but I don't think the OP was asking what happens if I don't pay a designer and they quit... the question was what happens when the designer quits to no fault of the theatre.

In a professional house to a community theatre house, my feeling is I have been paying you up till now, you backed out of the contract, what I have is mine. What I don't have is yours. This is especially true for scenic design and costume design. 90% of the work of either of these designers are done before a single piece of real work is done. If the drawings are in the technical managers hands in whatever field they are in, they are going onstage if the designer quits. You were paid 2/3 or at least a 1/3rd of your fee, you did not complete the contract, I am keeping what I paid you for and you can deal with not getting the rest. The designer is the one that backed out, therefore the contract is void. The contract is now on the side of management because the designer quit.

In the lighting world you can attempt to take all the copies of the show... but good luck with that. If you are working alone, its not that hard to do... if you are working with other people... good luck. In the age of email and online backup, there is no way to get everything. I have probably 15 shows worth of paperwork just sitting in my gmail along with probably 10-15 show I have programmed sitting in dropbox.
However, if I have a scenic designer taking a hammer to my stage because they did not get paid or a costume designer starting a fire in the basement... thats destroying property of the theatre.