This is the first in a series of three blog posts. Our second post covers basics of a film production agreement and the third post covers basics of a film distribution agreement.
This is a quick guide to contract terms unique to an actor contract.
Actors may star in a commercial, or as a supporting cast in a television serial, in a short film, or a YouTube or Netflix series. In all these formats, the role of the actor remains fairly consistent – to turn up to the set at the agreed time, and to act out the role presented to them. This is not very different from the regular office goer’s mandate. But the contractual terms that an actor is subject to is not the same as that of any other employee. Here is a quick guide.
Compensation. Depending on the scale and the budget of an audio-visual production, the producers (or the production house) will enter into several contracts, and the actor contract is one of them. It is the rare actor who gets a multi-million dollar deal for a film project. Instead, many actors get paid by the hour. The contract will provide for the hourly rate that will be paid to the actor for their services. The hourly rates will include those hours during which the actor is recording, and it may or may not include the time spent by the actor for rehearsals or make-up. Actors having minor roles may also be paid a daily consideration. These rates are payable on a lump-sum basis as determined by the producers and are typically meant for actors who are considered ‘extras’ in a large production.
Typically the costs for travel and food for the actor will be provided over and above the standard fees. In the event the actor is part of a union/ association of artists, the the actor will need to be paid rates prescribed by the union/ association.
Scheduling. While the pre-production for a film may take up a significant time, the production process – that is the shoot of the film – is typically time-bound. This is because during this process several different professionals have to be brought together – e.g. director, cinematographer, other actors, make-up artists, lighting handlers, extra cast, and crew. The actor contract will therefore provide for the start date when the actor is expected to begin the shoot, a minimum number of hours that the actor is supposed to be available on the set in the contract, as well as provide a time-period during which the shooting will take place The contract will require the actor to be bound to the production during the time period. This is essential to prevent scheduling clashes between the actor’s other acting commitments.
Intellectual property. Typically, the producer will have exclusive rights to use the actor’s name, photograph, likeness, and voice as part of the film, and to promote and publicise the production. This is very much the norm whether in a funded, or non-funded production. Even where an actor has not been paid (typical in very low budget/ non-funded productions) actors will be required to give a license to the producer to allow them to screen the film to the public. Mostly, when actors do work for free, the consideration is the exposure that the film will provide to the actor. However certain actors may be hesitant to sign away the right to their work to the producer without a promise of a contingent consideration payable to them. In such cases, producers often agree to pay the actors a percentage of the gross earnings from the film if and when the film becomes a commercial success.
At the same time, the producers will be the sole owners of the copyright of the content that has been created. This will include the sole and exclusive copyright in all the film footage that has been used, not used, or discarded. This is irrespective of whether the actor is paid for playing the part or not. Actors will therefore be required to explicitly waive off any right or claim they may have in respect to such copyright.
Producers will also retain the right to use the film footage, all still photography, and even screenshots, and edited version of any or all of them either for the promotion of the film, or for special screening purposes.
Re-shooting and dubbing. While film production typically follows a hard schedule, certain scenes may need to be re-shot, or dubbed at a later date. The actor contract will therefore require that the actor should make themselves available for such re-shooting of scenes or audio dubbing beyond the term mentioned in the contract. In such cases, actors will likely be paid over and above the fees already payable to them under the contract. It may be noted that dubbing may require the overlaying of special sound-effects that may mask the actor’s original voice. This is particularly pertinent in case of overlaying of soundtracks where the songs used in the soundtrack have been sung by a third-party artist and the same is dubbed over the actor’s voice. Dubbing may also require sound modulation undertaken on the actor’s voice where required. The contract may provide that the actor will waive off any right or claim in regards to the producer not using their real voice in the film.
Injury and insurance. Most film productions may not pose a risk to the safety and wellbeing of the actor. However, certain scenes may require high levels of physical exertion that may pose a risk of injury to the actor. Producers may therefore opt to obtain a general liability and errors and omission insurance to cover the actor in case of any injuries suffered during the shoot. The insurance may also cover other members of the cast and the crew involved in the production.
Wardrobe. Contracts will also specify if the actor’s wardrobe is to be provided by the actor or the producers. In the event the wardrobe is provided by the producers, the contract will state if the same may be retained by the actor, or are they the property of the producers. Prosthetics which form part of the make-up for actors are almost always the property of the producers, as are costumes that have been custom-created for a film. These are to be returned to the producers after the shoot, and the actors are not allowed to retain them. Actors are also not allowed to retain items from the film set, unless they have been explicitly permitted to do so by the producers on a case to case basis.
Movie promotion. Upon the end of the post-production process (editing, dubbing, etc.) and when the film is ready for commercial release, the contract will require the actor to make themselves available for promoting the film. This could be in the nature of interviews, or attending to film premiers, or film festivals. There is typically no separate fees payable for such appearances, and the contract will make a specific mention of that.
Acting portfolio and end-credits. Actors are entitled to a finished copy of the film for their record, and to use the copy as part of their acting portfolio. They may use the same to approach other producers keen on hiring them. It may be noted that producers typically have the right not to use the footage recorded of an actor in the final cut of the film. This is particularly so for cameo roles that may have been edited out during post-production, or where minor characters may be dispensed with to streamline the storytelling – and actors who have played the roles may find no footage of the same in the final cut of the film. It may also be noted that not all actors may be credited in the end-credits of the film. This is common for minor characters without a character name. The right to take such a decision should remain with the director/ editor of the film, and an actor should not be in a position to enforce a claim in this respect.
Confidentiality and other requirements. Actors will be bound by non-disclosure covenants to ensure that they do not disclose the story of the film as the release of spoilers will adversely affect the reception of the film when it is eventually released. In addition, the actor contract may impose certain conditions on the actor during the filming stages. These may include requirements that the actor maintain a certain physical form, or particular facial features viz. hairstyle or beard-style, etc. This is to ensure the continuity of the character the actor is portraying during the filming process. Certain contracts may provide that the contract will be terminated if the actor fails to maintain the required physical characteristics in order to portray the character in the film.
Decency: Actors may be expected to maintain a minimum level of decorum and decency in their actions not just on the film set, but also in their day to day life, and particularly when they are in the public eye. This is to ensure that the brand value of those associated with the actor is not adversely affected due to the actor’s actions. Contracts may specifically require the actor to maintain good behaviour at all times during which they are associated with the production house/ brands. Any behaviour that is deemed to be detrimental to the image of the production house, or that affects any ongoing project, may lead to the termination of the actor, and liquidated damages to cover the loss suffered by the production house/ brand.
At the same time, actors may also want to negotiate for images/ actions that the actor does not want to portray on the screen – e.g. usage of drugs, nudity, etc. Such conditions will also be provided in the contract.
This post has been authored by S. Roy with inputs from Sandhya Surendran, Consultant and Anirudh Rastogi, Managing Partner at Ikigai Law. For more on the topic, please feel free to reach out to us at contact@ikigailaw.com.
Image Credits: Pixabay
Disclaimer: This article is meant for general informational purpose only and is not a substitute for professional legal advice. This article is based on the laws applicable in India as on the date of publication.
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