This article is written by Ayush Sahay, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.
When people talk about the entertainment industry, they all think that it is all a show and no worries, but many times we forget to add multiple other aspects that come together in order for us to enjoy a particular, say movie or series. Many times production houses trick actors into entering into a contract, either by subjecting them to an extraordinary time constraint or other methods up their sleeve. One such instance is in the case of Sylvester Stallone v. DEM Productions and FM Entertainment. In this case, Sylvester had made a small cameo in the 1997 movie “The Good Life” which actually starred his brother Frank Stallone. Sylvester accused that the promotion of the film was done in such a way that it showed that Sylvester had a starring role, suing them for $20 million for breaching the contract. There was a countersuit filed by the producers where they stated that the brothers had breached their contract and had tried taking over the working of the film and they sought $50 million in damages. The final result of this case though after being dragged in the court for not quite long, resulted in both these parties settling.
Now that we understand the importance of a contract in the work-life of an actor, we will proceed to understand the various provisions and other details of such contracts.
What is an independent film actor contract?
An independent film contract is an agreement signed by an actor and a production house that is casting/hiring the actor for a particular role in a film.
But what is the difference between an independent film and a mainstream film? As any movie buff would tell you that the term “mainstream film” refers to films that are widely distributed in theatres having the backing of huge production houses whereas, “independent films” or indie films are films made outside of a big studio that is defined by the director’s choice of style and creative presentation. A major example in Bollywood of both these segments of movies would be ‘The Extraordinary Journey of the Fakir’ in the segment of indie films and ‘Dhoom’ Franchise in the segment of mainstream films.
Since these films are not backed by huge production houses, a lot is at stake here for the actor, including their pay. Hence actors sign these contracts that bind both the parties, the production house involved and themselves with the hours of the shoot, amenities to be provided, sorting travel expenses, mode and procedure of payment, etc. along with every other clause outlined in the agreement.
What are a few clauses to look out for in this contract?
This clause will specify the details about the method in which the actor will be paid, i.e. if they will be paid on an hourly basis or a flat rate or a percentage of the income out of the film made and released.
Term of employment
This clause will identify the time frames under which the actor will be obligated to work for the production house. These time frames may include, start and end dates, pre-set dates, etc.
Is the contract exclusive
This clause should mention whether the actor’s right to take part or engage with any other employer has been limited or not. This depends on the various aspects including trying to make the actor seem exclusive for time being, hence trying to increase their public appearances worth, etc.
In today’s easy to buy economy, if the public likes something they want something that is associated with it, to be with them. This makes merchandising a huge market for any production house. This clause will detail whether the production house will be involved in the merchandising business in relation to the film being made, and in case it is what percentage of the proceeds will be received by the actor.
Promotion and publicity
An actor’s job is not limited to just acting in the film, but extends to promotion and publicity which requires them to appear on shows and interviews for the same. This clause clarifies whose responsibility it is to manage all the programs related to promotion and publicity and whether a 3rd party company will be hired for the same purpose.
Public liability insurance
Since not every shoot is done inside a room with proper fire hazard safety set-ups, it is necessary for the production house to the state under this clause whether they have obtained public liability insurance to cover the actors under this insurance in case of any accidents arising at the set where the shoot is taking place.
Food and refreshments
Shoots go on for the entire day and sometimes for more than 24 hours. Hence this clause clears the ambiguity of whether the sets where the shoot will take place will have the necessary arrangements for food and refreshments for the actors present there.
This clause clarifies whether the actor will be given a travel allowance or if there will be some other arrangement made for the travel of the actor to sets and locations as required for the film.
This clause clarifies if the actor is supposed to bring in their own clothing or spend their own money to buy clothes as required for the shoot or will the production house make necessary arrangements for the clothing.
This clause mentions any and all incentives or benefits that will be given to the actor on signing this contract. This benefit could include a number of free tickets for the premiere of the film, merchandise, or copy of the film, etc.
This clause contains information regarding what constitutes a breach of the contract and in case it does what are the remedies available to the parties involved.
What if there is a breach in this contract?
Usually, in case of a breach in the contract, damages are paid to the party that has incurred losses. In case of an independent film actor’s contract, fines or deduction in payment could be levied on the actors for repeated breach in the case they are not on time as per the time duration agreed to in the contract and in case there is a major breach the entire contract could be terminated making the actor liable to pay a specific amount to the production house for such breach.
In cases such breach is done by the production house, the actor should be made responsible to bring it to the attention of the production house and solve the same amicably, but in case the production house breaches the entire contract then they shall be liable to pay the actor for what the contract is worth along with any reasonable damages claimed by the actor.
Implications of not getting into the agreement
The entertainment industry has a long history of exploiting its resources, be it the acting industry, the music industry or another industry under the entertainment industry. The actors, artists and creators are often undervalued and are not given the opportunity to consult a legal professional regarding the contracts that are presented to them thus, allowing for the production houses to have an upper hand.
But because we are discussing indie films in this article, we must consider the fact that no party involved in the filmmaking here is big and loaded with money but this doesn’t deny the fact that there still could be an opportunity where an actor’s value is being undervalued and they are not at a place of advantage. In totality, not getting into a written agreement but an oral one has its own set of problems along with the already existing set of problems oral agreements bring in.
It allows for loopholes to be present in the employment between the actor and the production house, where one day either might just pull the plug from their side leading for the entire project to hit pause and for it to come back on track might take more time than expected, which would essentially lead to loss of other members involved in the process of filmmaking too.
In the very recent case where Scarlett Johansson has decided to take on Disney for a breach of contract. Scarlett’s salary is based on the box-office performance and she was assured by Dave Galluzzi, Marvel’s Chief Counsel that the movie is set to be released in theatres and not on OTT platforms. He has also confirmed that in case there were to be any changes regarding the release of the movie, that same would be consulted with her and her team. But Disney decided to release the movie ‘Black Widow’ over their OTT platform, which caused Scarlett’s salary to be shortened by almost 50 million USD.
Though Disney’s spokesperson states that these are baseless allegations and not the right way to move forward in the unprecedented times of a pandemic, Scarlett’s attorney, John Berlinski says that Disney wants to hide under the pretext of “a pandemic” while trying to increase the stock price of the company by increasing the number of subscribers.
The pressure that actors go through when being made to sign a deal is extremely overwhelming for them and many times they often fall into the traps and are under-compensated and overworked. Therefore it is important to make sure that in this show business, everything that you agree upon with the other party is taken in writing. The clauses as mentioned above must be ensured by an actor to be free from any ambiguity since they are important for them while signing a contract. We have also seen in the cases mentioned above how contracts and a few specific clauses come in handy when either of the parties is aggrieved and sues the other to being compensated for the damages that have been incurred by them due to the mismanagement of the other party.
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