Let’s get this straight…I am not a lawyer, and this is not legal advice. No, this is more of a logical suggestion. And you are not a lawyer either. But if you are, then I guess you can just stop reading this and bring me some tacos and beer. Please. Please…
But for those of you who are not lawyers, you need to consult with one who practices commercial law to discuss the proper setup of your contract / services agreement. The issue at the center of many discussions between makeup artists is exactly how to charge a retainer or deposit, and how one can legally claim the rights to those funds once a client breaches the contract. The fact is, it is not always a black and white issue and if challenged in court, more often than not you will be on the losing end if your contracts are not rock solid.
Case law exists in Cluck v. Commission for Lawyer for Discipline that argues ‘[i]f the lawyer can substantiate that other employment will probably be lost by obligating himself to represent the client, then the retainer fee should be deemed earned at the moment it is received.’ If a fee is not paid to secure the lawyer’s availability and to compensate him for lost opportunities, then it is a prepayment for services and not a true retainer. ‘A fee is not earned simply because it is designated as non-refundable. If the (true) retainer is not excessive, it will be deemed earned at the time it is received, and may be deposited in the attorney’s account.’” This is a positive precedent for you, even if what you read has you scratching your head. However, you need to be very careful with how you go about discussing these situations with your clients when they arise. In Serchen v. Diana Ornes Photography, LLC the court ruled against the photographer when they determined, through reading email correspondence, that it was in fact the photographer who was in breach of contract even though it was the client who initiated the discussion of getting out of the contract and getting a refund of all money. If you would like to read more into these two cases, visit TheLawTog, from where these are cited.
I have found many generic contracts floating around the internet for makeup artists to use, but I would suggest having your own created by your own personal attorney. Furthermore, if and when a client asks you to get out of a contract either verbally or in writing, consult your attorney immediately. Anything that you say or do may be subject to review should it turn into a court case. And you do not want to end up like Diana Ornes Photography LLC where you lose out on everything simply because you said the wrong thing to the client.
Until next time!