Contracts With Minors
Dan Grant, Publisher
JUNE 2016, IMPORTANT
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A couple years ago I posted an article about contracts and got a lot of feedback from agencies that didn't share my feelings. No problem. I don't need everyone to agree with everything I write. To be clear, I'm not anti-contract. There's value in having a document that clearly spells out the obligations, limitations and expectations of all parties involved.
What I am strongly against however, is the tendency of some agencies to use contracts to prevent a model from working. Many agents believe it's better to bury a model they've had no success with, rather than letting someone go to a competitor that could potentially do better.
Modelling, of course, isn't the only field where adults guide much younger people into potentially lucrative careers. Actors, musicians and athletes also have contracts, but unlike models they tend to have clear regulations and governing bodies in place to protect them. In our little corner of the fashion industry it's a lot easier for agents to bark, rant and threaten, because there is no formal system in place to hear grievances... other than the justice system.
So I decided to explore that route, and contacted Jean-Claude Killey, a lawyer at Paliare Roland Rosenberg Rothstein LLP, in Toronto.
Specifically, this article deals with Ontario, but most of what is written here extends to other jurisdictions as well. To be very clear, this article should not be taken as legal advice. If you have an issue with your contract, you should discuss it with a lawyer.
For a contract with a minor to be valid,
it has to be to the benefit of the minor
"So, the basic starting point on this is a very old common law rule that minors do not have the capacity to enter into contracts," Killey explains. "As a result, a contract with a minor is void. Various exceptions evolved over the years, such that by about the beginning of the twentieth century, the rule was basically a two-parter: a contract with a minor is void, unless the contract is to the minor's benefit. If it is to the minor's benefit, the contract is voidable at the instance of the minor."
What he's saying is if the contract is not something that is more beneficial than it is onerous to the minor – a model under the age of 18, in our case – courts won't recognize its legitimacy. The second part of his statement says that even if the contract is to the benefit of the minor, the model still may choose to leave that contract at any time.
In the 1970s, 17-year-old John Tonelli signed a four-year contract with the Toronto Marlboros Hockey Club. Among the provisions was a clause that if Tonelli ever played professionally, the "Marlies" would be entitled to 20% of his first three years' income.
Ultimately, at the advice of his agent, Tonelli informed the club that in spite of the contract, he would not play for the Marlies after the age of 18. Instead, upon becoming the age of majority, he repudiated (formally rejected the validity of) the contract and signed with the Houston Aeros, a professional club that played in the World Hockey Association.
The Marlies challenged his right to remove himself from the original contract, based on the assertion that their guidance and grooming led directly to Tonelli's later success (he would go on to win four Stanley Cups with the New York Islanders, and was the Most Valuable Player at the 1984 Canada Cup). The courts however, ruled against the Marlies, stating the contract was not to the benefit of the minor, and therefore was never valid.
If Tonelli had, upon turning 18, put his signature to the original contract, it would then have been in force until its expiration. In some other provinces, if he had continued to play under the terms of the original contract, in time it would have been acknowledged that he accepted it. In Ontario, the contract has to be signed when the talent turns 18, or it isn't legally sound.
A contract with a minor is more likely valid if it provides necessary goods or services, like food or education. A modelling agency would have a very difficult time proving they have substantively contributed to the needs of any human being.
Walking away from a contract may not mean a model has no obligations
"The rule is further complicated by the question of performance," says Killey. "Minors who resile (return to a previous state – in this case, before the formalized agreement) from contracts may be required to put the other party back into the position they were in before the contract was entered into, if that party acted to their detriment in good faith."
This is akin to the contracts many of us have entered into with companies like Columbia House. They ship you some steeply discounted DVDs, on the condition that you agree to buy several more over a specified time frame. Suppose they send five DVDs to a 15 year old, then the kid decides not to continue to buy the rest. Technically Columbia House can't hold the minor to the contract, but the teen does have to return the DVDs they received to start the now-negated contract.
A parent's signature doesn't mean a parent is under contract
Most agencies realize that minors do not have the capacity to enter into contracts, which is why nearly every contract has a space for a parent or legal guardian to co-sign. Really though, if the contract is not to the benefit of the minor, it's still void. "The parents' signature doesn't make the contract any more binding on the minor," Killey says, adding that "unless the contract imposes some obligations on the parents themselves, the agency just doesn't have anything to enforce against them.
"It seems to me the parents would have to agree to something specific in the contract in order to be held liable for anything. Just having them sign under the signature of the minor would not accomplish much in the case of a contract for personal service. The parents are not going to be modelling for anybody - so what is it the agency is trying to hold them liable for?
Courts don't like undoing things
Where courts typically don't like to get involved, Killey points out, is in the reversing of actions that happened in the past. This is important, because if the minor does a shoot that gets published in a magazine, then invalidates their agency contract, the courts are unlikely to require all copies of the magazine to be recalled or destroyed.
No model should leave a contract hoping bury something embarrassing from the past.
Although I think every agency in Canada should get a legal opinion on contracts with minors, I know that's not going to happen. As I mentioned in my previous article, a lot of agencies don't appreciate me shining a light on this topic at all.
What I really hope comes from this article is that agencies will stop taking for granted that they have any form of ownership over models. Models are people, not property. I've been burned just as every agent has, by models who overestimate their own contribution. But no agent deserves respect based on experience alone. Respect comes from what an agency delivers on an ongoing basis, and no contract can inspire loyalty more than that. A confident agency will earn your respect. An insecure one will hide behind their contract.
I want to stress again, this article is not legal advice. It's a researched article based on past precedents, common law and statue law. If you have questions regarding your own situation, please seek independent legal advice.