“This one-sided-ness is such a stalwart of the status quo, you would be remiss to skim through a contract with such provisions without giving a second thought to the possibility of a mischief.”
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Contracts in any industry are commonplace. Within the film industry more specifically, contracts detail how relationships function in extensive detail. Where a film or production might want to hire the services of an actor or actress, for example, a contract in this scenario would provide specifics as far as the working relationship will be concerned.
Today’s focus will be specifically on actor/actress agreements.
A contract of this nature should contain many important provisions such as the required hours of work, health and safety procedures, salary amounts, behavioral guidelines, and many others.
Here are five (5) key areas in an actor’s agreement that you need to consider before signing one:
- Perpetuity Provisions – Image Rights
Perpetuity simply means forever. Perpetuity clauses appear in a contract in various ways. One way is in relation to your image and likeness. It is an established industry practice for film companies and studios in the film industry to desire to use your image, not only within the film but also for marketing and promotional purposes.
Image rights are to a larger extent considered personality rights. Personality rights consist of the right of an individual to control the commercial use of his or her name, image, likeness, or other unambiguous (or not very clear) aspects of one’s identity.
Personality rights are generally considered to consist of two types:
- The right to publicity, or to keep one’s image from being commercially exploited without permission or contractual compensation; and
- The right to be left alone and not have one’s personality represented publicly without permission.
A common justification for this principle is the idea that every individual should have a right to control how, if at all, his or her persona is commercialized by third parties.
Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service which usually amounts to some form of commercial speech.
Therefore, film production companies cannot legally use that image without first getting consent from the actor. A legal fact recognized and best captured in the case of Wangechi Waweru Mwende v Tecno Limited; Rogers Ouma t/a Ojwok Photography (Third Party) [2020] e KLR. Where the offending use of her image without her (Wangechi) consent, was also considered to be a breach of her right to privacy.
A clause may state that you are giving the film production permission to use your image for projects connected to the film, and for an indefinite period of time. It may go on to state that from the day you sign that contract, and forever after, beyond the life of the contract, the film production will continually own the right to use your image.
It is something akin to a marriage vow “until death do us part”, just without the romanticism … or honeymoon for that matter.
Obviously, it is not advisable to sign a contract with such provisions. This is true for the following reasons:
- You lose the ability to control being left alone and not have your personality represented publicly without your permission; and
- You lose your right to publicity – The right to keep your image from being commercially exploited without your permission.
However, if such an arrangement must exist, then negotiate for a buy-out clause. A buy-out style arrangement is an arrangement where you let the film studio and/or production know that if they intend to use your image beyond the life of the contract, or for an indefinite period of time, they should license the right to use that image in a one-off sale.
In doing so, you as the actor will be exercising your personality rights.
- Liability-related provisions.
A clause that comes to mind is the indemnity clause. This part of a contract is like a promise to make good on losses suffered by another.
If you as an actor fail to show up to a photoshoot or filming session, it may inconvenience the film studio to such an extent that they may choose to impose a fine on you as the actor in an effort to make good on their losses.
This will – in theory- return the film studio to the financial position that there were in prior to the loss hence the term, indemnify.
Sometimes even a fine is not good enough to make good the time and money lost and for rescheduling, if a replacement is not quickly found.
Granted, that in itself is not a bad thing. It keeps the actor accountable for their actions. It does become an issue, however, where there are no provisions that grant the actor indemnity for instance, if he/her expenses and/or salary are not paid.
This would amount to a breach of obligations on the part of the film studio. Additionally, if you get injured on set as a result of negligence on the part of the film studio, who would be responsible for that?
Maybe it is the case, that the film production company is bankrupt or facing a bankruptcy petition, who is going to return you to your original financial position, in that instance?
The key lesson here is that the balance of burden sharing – from an indemnity standpoint – should be clear and apparent from both the actor’s and the film studio’s perspectives.
- Further engagements – beyond the life of the contract
A lot of contracts have a definite point in time in which they begin, usually coined as “the effective date” and a point in time in which they come to an end. The length of time in which the contract is normally in force is commonly referred to as the ‘Term’ or ‘Duration’.
You will discover, however, that from the manner in which contracts are worded, figuring this bit out is not as clear as night and day. There are contracts that certainly have a “commencement date” and an expiry date but such clauses may make what should be an easy thing to understand – obscure.
For example, where there are ‘further engagements’ clauses in the contracts, such clauses usually require the actor to reunite with the film studio and reshoot scenes or photographs.
Do you still consider this extra activity under the same terms as the previous contract? Is there added pay in the event this was to happen?
Or do you consider this extra activity to be a new separate contract?
My take on that is – Only engage with the film studio, in this instance, within the defined contract period.
Where there is more on the project that needs to be done, both parties can agree to extend the contract for a specific period of time on revised or renegotiated terms.
- Dispute Resolution Mechanism
Some things in life are almost certain. Disputes occur with enough regularity both in life and during the life of an agreement, that it should be considered a crime not to have them provided for in your contract.
A dispute resolution clause should lay out what order of events will take place if or once a dispute arises.
Usually, these clauses guide the parties in the contract to talk it out or negotiate. If negotiation fails, then both parties agree to appoint another individual (third party) to act as a referee in the dispute.
This referee sometimes referred to as a ‘mediator’, will listen to both parties and suggest a course of action that will be agreeable to both. Where meditation fails, then both the actor and film studio may be advised to either escalate the matter to arbitration or as a last resort go to court.
The purpose of alternative dispute resolution ‘ADR’ is to consider a form of dispute resolution that is intended to be cost-effective, timely, and efficient. It is also because litigation is costly and time-consuming.
ADR can be an effective hedge against the risk of costly and time-consuming litigation.
- Conflict of Interest
A conflict of interest is also commonly known as a ‘non-compete clause’.
During the term of your contract, there may be restrictions on working for others film studios or similar businesses. A clause like this would therefore set out the specifics of how long you would be bound to such a restriction during and after the termination of the contract.
If you are an actor who survives solely on income from acting, then this is a potentially harmful clause. Most especially when an actor has to move from one project to another for financial reasons or for the growth of the actor’s career.
It is important to make sure that you as an actor express reservation about how long the non-compete restriction should last; make an effort to point it out to the film studio and with good reasons why.
Conclusion
Contracts may be boring but if you consider their utility, they are actually important in the day-to-day activities of actors and film studios.
And with this new-found appreciation for contracts, always remember to contact a good intellectual property lawyer when the situation both in your contract – as an actor and with the film studio starts getting murky.
See you at the next one!
