As both a lawyer and an actor, I get asked a lot of legal questions by my fellow actors. Below are some of the most frequently asked questions that I get along with my answers. As always, be sure to consult with an entertainment lawyer.
Pen in hand, you are about to sign a contract for your latest acting gig when a flood of questions envelop you like the tide of a wave crashing on the shore. They range from simple, straightforward questions to complex, multi-faceted questions that inevitably will require more than just a few Google searches.
The ones that are bound to come up are, “Is this contract worded fairly?” “How will my image be used?” “Should I really waive the rights to ‘everything in the universe known or not known’ because that wording freaks me out!”
Signing a contract can be both nerve-racking and intimidating for anyone, let alone an actor without union, legal or agent/manager representation.
Q1: For Non-Union contracts, what key words/phrases should an actor be apprehensive of?
As a preliminary matter, most of the time contracts are one-sided in favor of the producer. However, there are a couple of things you should be wary of: 1) Any provision or clause as expansive as one that permits the work to be used in perpetuity for any purpose, should be limited, i.e., especially if it involves pornography or some other sensitive area that an actor doesn’t want to resurface later in their career. 2) A “hold harmless” clause should be inserted as a means to protect the actor from any lawsuits brought against him or her as a result of the production. Believe it or not, usually it’s the other way around with the actor agreeing to hold the producers harmless, even to the extent of paying the producer’s attorneys fees! This clause should definitely be stricken from the contract.
Q2: Are there any terms that specifically could limit an actor’s future work?
In commercial contracts, it is standard practice that you can’t work for a competitor’s product as it is considered a conflict of interest. To blunt its impact, I recommend inserting a time or geographic limitation on these clauses so a non-union actor is not forever barred from acting in a competitor’s commercial. For example, consider a hypo involving Coors and Budweiser. If you do a local Coors Commercial, I recommend inserting a clause stating that you are only barred from acting in a rival Budweiser commercial in the same area where your spot is running, and for the time period the spot is running. This is not to say that it is going to be easy or that their won’t be any push back. But whoever said that negotiation is a non-contact sport?
Q3: Are non-union actors entitled to demand additional payment if the project will end up appearing in more mediums than originally expected? (i.e., the post said industrial but the paper work says industrial, print, web, etc.)
This must be spelled out word for word in the contract, and it should be addressed by the actor up front, otherwise it might be futile. For example, if a Spec Commercial (which is considered an industrial) suddenly becomes broadcasted nationally, the actor should have the right to be paid broadcast rates when it starts airing. To the extent the contract involves a buy-out, where the actor is being paid once and bought out (i.e., “one and done), then the producers have the right to use that recording for any purpose in the future.
Q4: Some contracts contain a provision stating, “everything known and unknown in the universe.” Why do companies include this and what does this mean?
With the rapid increase of new technology such as Netflix, social media, and the iPad, this is more common these days than it was in the past. Producers want the right to play the pieces on all of the latest media outlets and devices. An actor can negotiate for limits on the media to which the piece will run, and to demand additional compensation for future media.
Is there anything an actor can do about it? If so, should he be proactive or remain silent?
Yes, if the work is a buy out. The contract must explicitly state that future uses of the work, in whole or in part must be compensated, otherwise the producers will have the right to use them into perpetuity.
Q5: What can a non-union actor do if he discovers that his project is being used for a purpose other than what the contract allows?
If the contract spells out the uses for the piece and the producers haphazardly breach that clause, an actor has the right to sue to recover damages.
Q6: Are there affordable ways for actors to get sound legal advice on contracts?
Unions, of course, provide legal services to their members. Volunteer Lawyers for the Arts (vlany.org), is an outstanding organization with a noble mission: to help starving artists. And while lawyers don’t come cheap, there are more than just a few out there that know a thing or two about what actors go through and that charge very reasonable rates to review contracts (including me, since I am one).
One Response
In commercial contracts, it is standard practice that you can’t work for a competitor’s product as it is considered a conflict of interest. To blunt its impact, I recommend inserting a time or geographic limitation on these clauses so a non-union actor is not forever barred from acting in a competitor’s commercial. For example, consider a hypo involving Coors and Budweiser. If you do a local Coors Commercial, I recommend inserting a clause stating that you are only barred from acting in a rival Budweiser commercial in the same area where your spot is running, and for the time period the spot is running. This is not to say that it is going to be easy or that their (THERE) won’t be any push back. But whoever said that negotiation is a non-contact sport?