Actor Agreements

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Question:

One of my actors for my film did not sign the talent release because I did not give it to him the day we shot. Now, he is dead; therefore, he won't sign it. Can I still sell, rent or make any profit from my film with his scene in it? Do you think the family will go after me because I don't have a written contract?

Answer by Brandon Blake, Entertainment Attorney:

In 14 years of providing production legal services to feature filmmakers, I have found that getting actors and actresses to sign agreements is one of the biggest challenges.

Unlike, for example, working with a director or co-producer, who will probably negotiate very aggressively to get the deal points that he or she feels are fair, often there will be little or no negotiation with a performer’s agent before the start of production. Once the aggregate compensation and some kind of backend has been suggested there is typically little or no discussion except about schedules.

Many first time film producers think this works in their favor. With so many issues to deal with in pre-production, why worry about the talent agreements, so long as the performers agree to show up on the correct day, right? That is a huge mistake, because once the performers show up it is extremely difficult to ask them to leave if they do not sign their contracts, and besides, whom else could you find to star in the film on such short notice?

Getting back to the question, the principal error film producers make is the belief that performers have no rights to the film, and therefore if the performer shoots the film the filmmakers are in the clear, regardless of ongoing negotiations. This could not be further from the truth, and the following is a summary of various rights that an actor or actress has to the film after appearing in the project.

Copyrights: Yes, believe it or not performers do have copyrights in their performances. A copyright can affix to any creative work that is fixed in a tangible medium, such as a film or digital recording. The fact is that most performers will change their dialog, but even if they make no contribution to the script, their performance on screen is copyrightable, and that is why every talent agreement has an assignment of copyright.

Screen Actors Guild: Most professional actors are members of the Screen Actors Guild, and producers generally must sign a contract with SAG before the start of production. The consequence of signing that agreement, is that the producer has agreed to be bound by the Basic Agreement which is negotiated periodically between SAG and the Alliance of Motion Picture and Television Producers (AMPTP). Producers should realize that only a tiny fraction of the rules and rights of performers are found in the document they sign, with the majority of the legal language only referenced in the Basic Agreement.

Rights of Publicity: One of the things that a producer wants from an actor or actress is the “name value” that a well known performer can bring to a film. Legally that is referred to as the right of publicity, and the right of publicity is considered to be owned by the celebrity, and such rights survive the death of the celebrity and are owned by the heirs thereafter.

Contract Rights: Provided that something had been sent in writing to the agent or the performer before the start of production, the performer will have the right to enforce those deal letters and other correspondence, such as email.

Distribution: Finally, distributors will not distribute a film unless all of the talent agreements have been signed. Distributors really do check on this and review the documents before the release of the film.

So in answer to the question, yes, the producer will need to work on contacting the heirs of the performer to complete a contract and to deal with any payment obligations. As with any legal matter, please do not make a decision about complex matters without consulting an experienced entertainment attorney first. I have been representing feature film and television producers and directors for more than 14 years. Please feel free to contact my office about a quote.

As with any legal matter, please do not make a decision about complex matters without consulting an experienced entertainment attorney first. I have been representing feature film projects and television series for more than 14 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

About the Editor:

Brandon A. Blake is an entertainment lawyer and producer who works with Academy Award winning actors, directors and filmmakers. A complete biography is available online.

About the Entertainment Lawyer Q&A: The Entertainment Lawyer Q&A does not create an attorney-client relationship, nor is the information treated as confidential. Responses to selected questions will be made public and shared with our subscribers. All entertainment law information is informational in nature and is not intended to be acted on without entertainment lawyer counsel.