This article is written by Aparimita Pandey pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute resolution from Lawsikho.
This article has been published by Sneha Mahawar.
Casting adult actors involves a relatively straightforward process where both parties are consenting individuals and come together to work on a project. It is essential to note that the same is not applicable when it comes to casting child actors. A child actor being a minor is not competent to enter into a contract, and thus various laws and guidelines are to be adhered to while engaging child actors in the industry. In this article, we will understand the various intricacies of the laws with regard to children and the methods to draft an agreement with a child actor.
Agreement with a child actor
With the advent of media industries and social media, children are emerging as key role players in several areas of the industry. As technology has advanced all around the globe children are now growing at a very fast pace and grabbing work opportunities. They have the right skills, ideas, and vision to be a part of big projects and thus it becomes essential to monitor their work and ensure their safety. The National Commission for the Protection of Child Rights (NCPCR) aims to protect the rights of child artists and works towards forming guidelines for their health and a safe working environment and releasing detailed guidelines with regard to child actors. The Child Labour (Prohibition and Regulation) Act, 1986 (“Act”), was amended in 2016 and Child Labour (Prohibition and Regulation) Amendment Rules, 2017 (“Rules”), were introduced in 2017. These amended Acts and Rules specifically seek to provide guidelines for child actors working in films, television, OTT platforms, and reality shows. The NCPCR issued the latest draft ‘Regulatory Guidelines for Child Participation in the Entertainment Industry,’ to expand the scope of its applicability across all forms of entertainment in the media industry on 25 June 2022.
Employing a person under the age of 14 years is prohibited. Section 3 of the amended Act provides that a child can work after school hours or during vacation periods as a helping hand for the family business or enterprise if it is not hazardous and injurious to their health. It also provides that children are allowed to work as artists in audio-visual entertainment industries, films, sports activities, or any other forms of entertainment except for circus.
A child actor can enter into an agreement with the producer through the means of their parents/guardians by obtaining their consent. The producer has a responsibility to comply with the guidelines and follow the procedures established by law. Rule 2C of the Child Labour (Prohibition and Regulation) Amendment Rules, 2017 provides that a producer shall:
- Obtain permission from the District Magistrate by filling out Form C of the Rules which shall remain valid for six months.
- Provide the consent of parents/guardians and the list of children participating in the project.
- Ensure proper compliance with the legislation and Rules.
- Ensure proper facilities of education for the child actors.
- No child shall be made to work for more than twenty-seven days consecutively.
- A minimum of 20% of their income should be deposited in a fixed deposit.
Drafting an agreement with a child actor
In order to draft an agreement with a child, one must keep the child’s rights and safety as a priority. It is important to safeguard children in the entertainment industry. The agreement should be child-friendly and shall always promise to provide a safe environment for them to work in.
The following are some essential points to be noted while drafting an agreement with a child actor:
Scope of work
It becomes essential to define the scope of work in the agreement. This would clearly define the boundaries of work that are expected from the child actor and would thus eliminate any possibility of exploitation.
Terms and conditions
Children are the most vulnerable members of the entertainment industry wherein they are exposed to hectic and stress-inducing situations. Defining the terms and conditions under which a child actor will be performing becomes an essential part of their employment.
Every contract with a child actor is signed by a parent or guardian. It is mandatory to get the guardian’s consent, who is expected to go through the clauses of the contract properly for the child’s safe working environment.
Safeguarding child’s rights
A child’s rights should be of utmost importance to both the producer and the guardian. It must be ensured that the producer adheres to the prescribed rules and legislation. According to a report on child artists in India – an explanatory study in Mumbai, India by the CRY Foundation, the contracts are often times framed as per the convenience of the producers. Thus, this forms a prominent issue in the entertainment industry as many child actors come from financially distressed backgrounds and the parent/guardian who consent to such contracts do not really pay attention to the needs of the child.
Working conditions and hours
The working hours for a child actor are clearly defined in the rules, but it is often not adhered to by the producer/director. In most cases, there are verbal agreements that do not clearly define the working conditions of a particular project. It is essential for guardians to keep a check on the types of working conditions the child actor is exposed to during the shootings. A well-defined clause of special facilities required by the child actor in an agreement helps ensure a healthy working environment.
Consideration and reimbursement
In 2019, a case of child labour was registered before the Kerala State Council for Child Welfare (KSCCW). In this case, the child actors were made to work for long hours and were provided with no remuneration creating a severe issue of child labour and violation of child rights. Parents often get lured by the fame and money that is verbally promised to them by the producer. It is essential to mention the consideration that a child actor would receive clearly. Further, the clause should also mention the time and date of receiving the said remuneration to avoid any postponement of payment.
Healthcare and support facilities
While the rules and legislations clearly define some vital factors that are to be considered while engaging a child actor in the entertainment industry there are some aspects that are yet not clearly determined. The producer needs to ensure that proper support facilities are provided, and a healthcare team should always be available for the needs of the child actors. All such facilities that are to be provided by the producer should be clearly enlisted.
List of essential clauses in an agreement with a child actor
The following are some of the essential clauses that need to be there in an agreement with the child actor:
Project and parties
This clause includes the details of the project which define the nature of the project and the additional aspects that are to be considered a part of the project which may include promotions and other such events. Further, details of both parties to the agreement are to be mentioned. It comprises the name, address, age proof, phone number, etc. of the parties.
This clause defines the duration of the agreement between the actor and producer. It gives a clear understanding to both parties of the duration they would be involved with the project and thus helps them in taking on other projects of similar nature.
Terms and conditions
This clause defines the terms and conditions of the service to be provided by the child actor. In order to maintain a professional boundary, this clause helps in completing the project on time. It includes the time of arrival, working hours, duties, the quality expected to be delivered by the child actor and other such components that form a vital part of the project.
Actor’s rights and obligations
This clause includes the rights and obligations of the child actor. A child actor has several rights that are defined under the Child Labour (Prohibition and Regulation) Amendment Rules, 2017 (“Rules”). There are several obligations on the part of the child actor that are to be fulfilled. The child actor must be available for shooting, rehearsals, discussions and any other such event where the producer requires the child actor’s presence. Such availability shall be limited to the working hours prescribed by the Rules.
Producer’s rights and obligations
This clause includes the rights and obligations of the producer. A producer is expected to provide for each of the rights that are provided for a child actor and adhere to the rules and legislations while engaging with them. The producer will own all the intellectual property rights to the project and all the other components of the project, which include revenue, income, and the right to re-record and make any changes to the project.
The payment to a child actor is subject to the timely and proper discharge of service by the child actor. Such payment can be made in installments or as a whole at the end of the project. The date and time of the payment shall be clearly mentioned in the agreement, and any delay in payment shall amount to the applicability of a simple interest rate of 2%.
Representations and warranties
In this clause, both parties provide representation and warranties and state that they will fulfill their rights and obligations. It further deals with the consequences of breach of representation and warranty.
This clause states that there shall be no amendments to the terms of the agreement unless both parties duly sign and agree to such an amendment in writing.
This clause gives both parties a right to terminate the agreement by sending 15 days prior notice. Such termination can also be initiated in case of a breach of rights and obligations.
Other general clauses that can be included in the agreement are force majeure, notices, dispute resolution, governing laws and jurisdiction. Some negotiable clauses that can be included in the agreement are exclusivity, indemnity, cancellation, damages, and confidentiality.
While dealing with a child actor, it becomes extremely important to safeguard the right of the child. Although there are rules and legislation providing for their safety the reality is very different. The casting agencies and producers should be mindful while working with child actors and adhere to the clauses of the agreement.
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