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Monday, March 28, 2011

VFX Deal Memo

When starting a project you should see about getting a document detailing your work agreement. This is sometimes called a deal memo.  Sometimes it’s a full contract. This is so you and the visual effects company have the same understanding and neither assumes something else.  It’s better to find out before you get your first paycheck. These are the items that should be discussed in any final interviews. Even if you’re currently employed you may want to read through this.

Update 8-3-2014
The deal memo may be one of the most important documents you need. It will likely be worth tens of thousands of dollars as a minimum and months or years of your life. Do not take it lightly. And it should be as inclusive as possible to cover not only the expected actions but the unlikely or unexpected issues that might arise. Think of your insurance policies. They are very clear about things and when not specific they have a boilerplate statement that covers those areas.

Be sure to get it taken care of BEFORE incurring major expenses or starting the project.

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This helps to avoid any misunderstanding and may provide some clarification if the situation or management changes. This agreement should be updated if you’re shifted to another type of job that has different duties or pay.

If the company is large they likely have a Human Resources (HR) Department.  If the company is small you may be dealing with one of the co-owners or the manager.

If you’re a vfx supervisor or other high end vfx person you may have an agent.  They will make sure there is a contract and these issues are reviewed but it’s best to double check what’s being agreed to.

For most vfx artists the vfx company becomes your manager. How good or bad your deal is, your title and credits are in their hands and only you will be able to negotiate what you think is fair.

Below I cover a wide range of issues but not all of these will be covered in a memo or basic agreement.  In some cases there may be other documentation or the company may not provide any paperwork.  You’ll have to determine what are the key issues you want to have in writing.  Please make sure you actually read your deal memo or contract since it relates to you and has specific clauses that could be very important to you.

If there were a VFX Union then many of these would be more consistent.

(I'm still not a lawyer so take this simply as some advice.  If you need legal advice please seek a qualified lawyer. This is also US centric and even then many employment requirements vary by state. But I hope it provides some guidance no matter where you're located.)

Key items:

VFX Company
Are they the ones actually hiring you?
Is there a holding company that actually hires you?
Is the studio or a production company hiring you directly?
Is the vfx company a subcontractor to another vfx company?

Project
What is the project you were hired for? Are you working on a specific project or will you be working on anything and everything?

If you’re expecting to work on project X but they’re putting you on project Y it would be good to know ahead of time.

Title
Be careful here that the job title actually matches what you do and matches what you’re told the job is.  Since there is no VFX Union there are no standard titles and descriptions.  The Visual Effects Society has a list of titles but no specifics. There are some defacto titles that experienced vfx artists use and that better companies follow but new, smaller companies or especially those on the fringes of vfx may use titles in a much different manner.  This can hurt your future employment if it’s not accurate.  Also note that this should be used as your credit title but may not. (See credits later)

At some non-vfx companies titles are handed out like candy.  Vice President of the Front Office (receptionist), Vice Present of Environmental Cleanup (janitor), etc.  The reason this happens and can happen at vfx companies is many people are obsessed with titles. From a companies perspective if they can make you happy with a fancy title and pay you $10 less an hour, so much the better. At some vfx companies everyone is a lead artist.  So in that sense is anyone there an actual lead artist?

A small company that specializes in dirt and scratch removal may call everyone working there a vfx supervisor.  There’s nothing to prevent them from doing so.  But is that truly what you’re doing?  Could you step on a stage of live action and supervise the shoot, work with the director and DP, and then manage 100 vfx artists from a number of disciplines?

If you’re a supervisor of any type, producer or a lead artist you may be considered management.  In some cases that may mean just managing one other person. Be aware that if you’re considered ‘management’ then you may be considered a salaried employee without some of the state/federal protection afforded hourly employees. This means no over time. Now you can see why the company may be eager to consider you part of management and is willing to bestow a corresponding title.

In some cases you may be given a title below what you’re actually doing.  This may happen because you were moved up or over during the course of production and your official documents didn’t get updated. Or this may happen because the company wanted to start you at a lower pay rate than someone in that actual title.  You could be given the title Assistant Animator “just for now”.  Unfortunately if you’re actually a full animator that’s not good for you, especially if the deal memo isn’t updated.

The job title should be specific if it needs to be specific.  An Animator could be a character animator, an effects animator, a simulation animator, etc. A modeler could be a hard surface modeler. If the type of company is unique (game development, web based, etc)  it may be worth putting that aspect in front of the title to make it clear looking at your list credits what you actually did on the project.

If the title doesn’t match what you were doing then it’s tough when you go to interview for your next job.

Interviewer: “I see on your resume (or IMDB) you’re a Production Assistant.” 
“Actually I’m an animator and did extensive work with the main character on my last film. They just didn’t update my title.”
Interviewer: ??  “Well if we have any openings for a PA we will call you.

The opposite is also a problem.
Interviewer: “I see on your resume (or IMDB) you were a Senior Compositing Supervisor.”
“Yes.”
Interviewer: “So were using Nuke or another compositing package?”
“I was using Mocha”
Interviewer:  ???? “So how many people were you managing?”
“I just worked on my own.”
Interviewer: “Well we’ll call you if we need you”.

Now some people try to bluff their way through but if you’re hired for a job you don’t have the experience, knowledge or skill set to do, you’ll be out the door very quickly.  (Never to return there).

You can volunteer that the title was incorrect and that you actually did something else but that is certainly awkward and confusing to all future employers.

You can see why having an accurate title is necessary.

The key test is if you were to leave the company today, what title would the company use in the job posting to get someone to do the job you were doing?  Would people coming in with your present job title expect to be doing what you were doing there?  When you go to look for your next job will it be using the title you were given at your previous company?

Update 8-3-2014
I've now seen a few job postings with Supervisor in the title (CG Supervisor, Production Supervisor, etc) and then discover that some of these are considered Coordinator level positions, even though the posting implies supervising people. I find this very confusing and it may be strictly to get these people classified as management to avoid paying overtime.

To be clear - a supervisor position is just that, supervising others in terms of assigning tasks, overseeing the work, guiding them, etc. They need to know the creative and technical aspects of the area they're covering and should know as much more or more than those they are supervising.

A coordinator typically is one who gathers and dispenses information at the request of a producer, supervisor or others. Their role is to help coordinate or sync different people and departments to make things run smoothly. They work with others but do not typically manage others (possible production assistants) And they should not be considered supervisors.

Job description or job duties
This is where the company states in a sentence or two what you are to do.  If this doesn’t match the title or it doesn’t match your understanding then that’s a problem.  You don’t want to be hired as a compositor and find out part of the job duties are to get coffee for the executive.  Since there’s no standard it’s best to have this included so you’re clear what the title they’ve given you means to the company.

Start date
When are you to start at the company?

Expected end date
When do they expect you to complete the project? Or is this a staff position?  This should be spelled out.

Are you considered an employee or a contractor?
Be aware that as a contactor you have to pay additional taxes, have minimal state/federal protection, have no company benefits and likely will get no overtime.  A contractor may not get any crew gifts or invite to the Christmas party.  Every company is different with regard to how contractors are treated, even if you're requested to do the same exact work as a regular employee. Also be aware that by federal law there are very strict rules about what qualifies you as an independent contractor.  Most independent contractors hired in vfx  should not be classified as an independent contractor.

[Update 11/19/2012  Employee vs Independent Contractor ]

Work hours
What’s a normal workday? Do they start at 8am and go to 8pm? Are they expecting you to work a night shift?

Work day/week
What days are you expected to work? Monday-Friday? Saturday?
How many hours will you be expected to work? 40? 50? 60? 72? 90?
What’s typical? What do they expect as worse case? How long will that be?

Hourly rate
What is your hourly rate?  Is that in local currency?

Or are you on a flat?  And if so, are there any caps? (i.e. 5 day flat, 14 hrs days, 60 hrs, etc)  Note that with a flat there is no overtime within the coverage period and there may be none, ever. There may be minimum state/federal protection for those who work on a flat rate deal.  It's not unusual for a vfx supervisor and/or producer to be on a flat, especially if they're freelance.

How are the number of hours recorded? Do you have a time card and time clock? Do you logon and log off special software?  The company should certainly be tracking your hours.  If they don’t you should so you have a record of the hours you put in.  Remember, the only hours the company will use for any calculations will be the hours they record. See Credits for another area where recorded hours can become an issue.

Classification
In some areas, such as Canada, there are some classifications (such as technician) that may affect your overtime and other deal memo points.
[Update 11/19/2012  VFX Artists are not High Tech Employees  ]

Overtime
Do you get overtime?
When does it kick in? After 8 hrs?
What are the rates? 1 ½x after 8 hrs and 2x after 12 hours?
What about the 6th day? The 7th day? Does the clock reset every Monday in regard to overtime?
Note that state/federal regulations cover some of this.  Is the company offering you less than mandated by law?

Even if you won't be paid overtime you need to consider it when trying to determine your rate. A 60 hour week is equivalent to 70 hours of pay if you assume time and half for over 8 hours.
Here's a video that illustrates how this works.

If you aren't paid overtime (you're management, on a flat, etc) then the more you work the lower your average hourly rate actually becomes.  It's not unusual for those around you to be making more money during the time you're putting in the most hours.


If the company is planning to ‘exchange’ overtime or extra days for time off then that needs to be clearly spelled out and there needs to be a means to monitor it. This type of approach seldom works in vfx. Toward the end of production you may be putting in a lot of extra time.  Your only option is taking the time after the project is over.  Once the project is over, unless you truly are a staff person and they plan to retain you, then the company may simply say the projects over and they can’t pay for any additional time.  Or the vfx producer on the project has wrapped and they have no knowledge of any arrangements.

[Update 8/18/12]
In the US working overtime and being compensated with days off is called Comp Time. In the UK and other places it's called Time Off In Lieu (TOIL) (An apt acronym)  Does this apply to only weekend days or does this apply to actual overtime during the week as well? (time over 40 hrs)  As noted make sure you get this is writing as part of your legal document with someone in charge at the company signing the document. Otherwise you'll never see any comp time. 


Keep in mind comp time and similar arrangements doesn't provide any incentives for the companies to do a better job avoiding massive overtime. It's only in the companies interest. They can take a 6 month project and turn it into a 3 month project with no added cost incurred to them or their clients. But the artists putting in 16 hrs days are certainly incurring a cost to their health, well being and impact on their families. One of the reasons for increased overtime pay is to truly compensate workers and to make it less rewarding for companies to simply work fewer people very long hours.

[Update 11/19.2012  Must read for those in US - Got Overtime? ]

Update 8-3-2014
Some places that use Time Off In Lieu (TOIL) instead of actually paying overtime, simply reduce your contract by the amount of in Lieu you've accumulated. So even though you have a 6 month contract you may find that the company has trimmed your contract with or without your knowledge.
As always, get in writing how overtime works and and how contract extensions or reductions work. Do they need to get your approval to change contract lengths? What if you want to cut it short?

Report to and direction
Who will you be reporting to? Who provides you direction?  If you have multiple people telling you what to do, you want a clear understanding of who your main manager is.

Who approves overtime?
At most companies if you don’t get approval ahead of time then you likely won’t be paid it.  Who can authorize your overtime requirements? Your lead? Your manager? The VFX Producer?  The company manager? Any of these?  You don’t want to work a weekend only to find someone else determines that they won’t pay you for the time you worked after the lead requested you stay and finish a shot.


Benefits
What type of benefits does the company provide if any? Health benefits? Does it cover dental or eye?  Does it cover your family? What are the details? How much do you pay out of your paycheck? How much do you pay for medications, doctor visits or emergency room? Do you need clearance before you go to an emergency room?
When do health care benefits kick in?  If you’re hired for 2 months but it takes 3 months to qualify then you have no health benefits.
Are there any other benefits beside health?
What if you have a disability or become disabled during the project?
What if you get pregnant?


Holidays, Vacation, Pension 
Ha - I just put this in here to see if you were paying attention.  These are covered under union agreements but unless you’re considered full staff at a vfx company you may not see any of these at most places.

Termination
Is there a required termination notice?  Projects change and what was entered as your end date may be pushed back or pushed forward.  Do they have to provide any type of advanced warning or can they simply tell you you’re off the project at the end of today?
Can they terminate your agreement without penalty before you even start?   Is there a minimum number of weeks they are required to pay? Let’s suppose you moved across the city/state/country to work on the project.  You’ve rented an apartment, bought a car, etc based on being employed for 9 months as outlined in the agreement.
The day before you start you get a call the project has been canceled.
Three weeks into the project it’s canceled.  The project is delayed and they tell you it will start any day.  2 months go by without a call.
What happens in any of these cases? Is this covered or are you out of luck? 

Likewise what are the requirements for you to give notice?  Do you need to give a 2 weeks notice? What if you get an offer for a better project for more money before the project starts? Halfway through the project? What are you legal responsibilities? What are your moral responsibilities?

Time Off
If you have something planned where you will need time off, bring it up as soon as possible. If you know you'll need specific time off before the interview you should bring it up and discuss it.

Management
Are you to manage anyone?
If so, how many people?

Reimbursement
Do you expect to incur expenses for the company?  Picking up supplies, etc. What’s the process to do that?

Travel
If you need to travel for the job how is that handled?
Local car mileage reimbursement if you have to travel across town or to another town on business?
Do you get per diem or do you have to keep all receipts and turn them in? Is the per diem based on the location you’re going to?
Do they arrange for flights, rental cars and hotels?
If you’re flying is there a minimum flying class? (i.e. will you be traveling by air for 18 hrs in coach?)

[Added 11/9/2012
Moving
Are you moving to a new location/state/country to do the project?
Is any of this covered in your employment agreement? Does the company pay to relocate you? What are the terms? Do they require x amount of time or subtract it from your salary?
Be sure to consider the cost of moving and cost of living if you are moving.
See Expatisian to compare expenses. ]

[Update 8-3-2014
Is your visa or other paperwork all taken care of? What are the costs and who handles that? What if there's an unexpected problem? (You can't get it, you need to leave the country before the project ends, etc)

The VES has a Travel and Relocation links that should be checked.

Also don't forget to check with the local labor laws to make sure the deal memo is legal and that you know what is/isn't considered correct where you work.

Items to check - classification (employee, contractor), legal protections, maximum hours, Overtime pay, health and safety regulations, time off, minimum wages, etc.
(The below links are simply a starting point. Please do your own research as necessary.)

BC Labor Laws
Ontario Labor Laws
Quebec Labor Laws
UK Labor Laws (EU)
UK Labor Laws
UK Employment Laws 
NZ Labor Laws
NZ Minimum Labor Rights
California Labor Laws
US Labor Laws
US Labor Laws 2 
State Labor Laws
U.S. vs. U.K. Employment Law: What's the Difference?


Equipment
Are you expected to supply any of your own equipment?
If so, is there any extra fee for that or are you expected to provide it as part of your standard rate? If you have to bring in your own computer or other gear you have to consider your expense, upkeep, software licenses and replacement costs that the company doesn’t have to.
Will it be covered by their insurance or do you need to cover it?
Check your homeowners insurance for business use.

Credits
Not everyone who works on a movie or television project will get a credit on it. Typically the studios mandate the number of credits a company may have based on the amount of work the company is doing on the project and how important they consider the work.  If you’re company #14 of 14 you may get 5 credits or only a company credit.  All of that is worked out in the contract between the company and the studio.  If your company is a subcontractor to another vfx company then the chances of getting many credits is likely further reduced.  The studios do not like to give out credits and use them as part of their contract bartering system.

And yet official credits on a film, resume and IMDB (Internet Movie Database) are important to the artist  to get work.

I’ve seen people forgotten from the credit lists and people being assigned a credit to a project that they didn’t work on simply because the company couldn’t get them credit on the project they spent a year working on.  I’ve seen a supervisor who didn’t work on a show be co-listed on a project for marketing reasons.  I’ve also seen people who worked through Christmas vacation to make the vfx for a film possible and then be dropped off the credits because the owner didn’t want any staff listed.

If a company does a fair amount of work on a project then they will usually be provided a number of credit slots.  Typically the key personel on the project will get credit (supervisors, producers, key leads, etc). At some companies the owners or main management may be given credits regardless of how much they were involved once the project starts. Support staff (IT, R&D, etc) at many of the large vfx companies are cycled through so they  are listed on a feature a year. Now comes the tricky part of deciding who get’s credit on a film or not since it’s almost impossible to list every single person who worked on a project.  The vfx producer, vfx supervisor and company management may go through the list of names and try to make selections based on the artist’s contributions to the project. They may want to make sure some are selected from each department.  The list of names includes job title and the number of hours worked.

Whether contractor’s are treated differently than employees for credits will depend on the company.

Hopefully your agreement states your true title and not a lower one that you might have been hired under (if that’s changed).  If not, you may be over looked or be placed lower on the list.

If your title is actually above your true position then the vfx producer may reduce it for the real credits or the vfx producer at the studio may trim them back to make them more inline with the other companies.

When it comes down to filling out the last few spots they may refer to the number of hours each person put in on the project.  They’d rather give it to someone who worked 6 months than someone who filled in for a week to help out during the crunch period.  Remember those times you worked longer hours for free to try to help your department head?  Not only did you not get paid for that time but it’s likely your lack of documented hours bumps you off the credit list. Bazinga.

Demo reel
Are you allowed to use material for your demo reel?  Many studios obviously don’t allow any material out before the release of the movie. What if the movie is shelved after you worked on it? Will you ever be able to show anything? Can you use in progress material to show before and after to make it clear what you did?  Do you have to wait for the DVD to come out (possibly a year or more after you worked on it) and rip it to create your demo reel or can you get materials from the vfx company?

NDA
Many companies will require an NDA (Non Disclosure Agreement).  The studios tend to enforce mandates to prevent the release of photos or information regarding the project.  Do not cross this line by posting or sharing photos, videos, scripts, etc.  If you do so you may not only be fired but there will be a legal action against you with likely heavy fines.  Check the FBI warning at the start of a DVD. $250,000 They’re not kidding.  Is your job and future worth it to be ‘cool’ by posting something?  Here’s a story from years past: On STAR TREK: THE MOTION PICTURE, the night animation cameraman called into a radio station to make a request. Of course he was asked what he was doing at that hour.  The cameraman asked if this was off the record and when he was assured it was he proceeded to discuss the project.  When the head of the studio was going to work that morning he was listening to the radio when they proceeded to play back the entire recording.  He was not happy.  Luckily the cameraman was only given a warning and continues to work.  Today I doubt if he’d be as lucky.

The company may also have NDA’s for proprietary info related to the company and the processes there.  Check to make sure they don’t go overboard.  In some cases they may state they own all your ideas or any information learned unless you list the items that you already know.

Non-compete clauses
Some non-vfx companies have do not compete clauses to prevent key employees from starting a competing company or going to a competitor.  No vfx company should have this in their agreements unless it’s an extreme and unusual situation.  VFX artist by their very nature are freelance so this type of thing would prevent you from working elsewhere. As always, double-check any paperwork you have been provided.

Development
What if you develop something at the company?  A new methodology? A new technique? Software? (Assuming you have not been hired specifically for these tasks).  Do you own any of this? Does the company have an exclusive to it?

Trial Probation
Is there a trial or probation period for new employees?
If so, what does that mean?
(Don’t let a company tell you that you need to work for free so they can see if they want to hire you.)

Employee handbook
Larger companies will likely have some type of employee handbook, which may cover some of the items here.  They’ll likely cover the items their insurance requires for liability reasons or the government such as inappropriate behavior, etc.

Job Reviews
Is there a job review process?  For a short-term project you might not get a job review but if you’re on staff or on a long project they may have job reviews.  What’s the actual process, who will be reviewing you and what are you being judged on?

Promises
If any benefits or extras were discussed during the interview process they should be listed in this document.  A promise from a company is only as good as the signed document it is on.  If they made promises during the interview to do or give you xyz and it’s not in writing then it doesn’t exist. Sometimes people interviewing you will regale you with all of these enticing things that they have no power to actually provide. (Potential things like credits) You don’t want to take the job only to find out all of that was fictional.

The document should be signed and dated by you and an official rep for the company to give the document some validity.

[Update: 11/6/2012 Please make sure to have HR provide you all the paperwork for your Health Care Coverage before you sign your deal memo. Check for maternity, pre-existing conditions, exclusions, vision care, disability, etc. so you understand what is included and what isn't. Check on cost of options to get more coverage if you wish.
Here's a sad example of the fine details: Lucasfilm Employee Terminated After Tending To Pregnant Wife
Here's another article on it: Lucasfilm Faces New Accusation of Pregnancy Discrimination ]

Update 8-3-2014
So what does the deal memo say if there's a snag?
As mentioned what is your start date and what if that project is delayed or canceled before you start but you have already accumulated expenses or quit your other job?
What if you're to move to another country and there's some type of visa or paperwork hangup or if you don't qualify for some reason? Who covers expenses incurred?

Some of these things are happening more and more and should be included in the deal memo.
The only person looking after your interest is you. The company will be focused on their interest and as such the deal memo language will almost always be in their favor and will likely take little responsibility if you have expenses or a snag that's not spelled out.

As mentioned the deal memo is like an insurance policy in that it should cover the not only the expected issues but also the unexpected issues. Don't let the company simply wave away any questions or issues as 'no worries'. You could be the one paying dearly.

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Related:
Getting a Visual Effects Job 
Visual Effects Positions

Related elsewhere
Workplace issues - vfxlaw
Deal Memo Example form  - vfxlaw

1 comment:

  1. Credits also count for Academy membership. You must have a history of lead Creative Titles in films for Academy recognition. When the deal memo gets "clever" and give out non approved credits for work, the Academy will likely will not recognize it as membership worthy, even if the work done was.
    BTW, the Academy does not use resumes or IMDB as proof of work.

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