It surprised me to learn that Actors' Equity Association, the stage actors' union, has a business representative for filming and taping. Dwane Upp's job is to manage requests for the recording of any stage production in Equity's jurisdiction. All Equity contracts have sections that deal with filming and taping, though not all contain the same provisions. "The theatres operating under LORT [League of Resident Theatres] and Stock contracts have archival clauses," Upp explains. "Almost all other contracts require a request in writing."
Most of the many people who call about recording a production want to do it for archival purposes, Upp says. The largest theatre archival program is the New York Public Library's Theatre on Film and Tape Archive, part of the Billy Rose Theatre Collection at Lincoln Center, whose contract with Equity has specific rules. "They must post at least 24 hours' notice to the actors, as well as Equity," Upp notes. "They are limited to one camera for close-ups and two cameras in the back for long shots and different angles. The tapes, once recorded, are kept at TOFT exclusively, not to be loaned out, distributed, or copied for any purpose." There are similar library archival programs in San Francisco, Chicago, and Washington, D.C.
While TOFT doesn't lend out its recordings, they are available for viewing at the Lincoln Center library by appointment. "Anyone in or studying the theatre, actors, directors, teachers, or students all can view them at TOFT," says Upp. "They have a wide range of videos and films dating way back from the conception." The archive began taping New York theatrical productions in the mid-1970s. One of the first shows preserved was A Chorus Line, with its complete original cast.
Actors receive no additional compensation for an archival taping of a show for TOFT, but commercial tapings are another matter. "For example, Legally Blonde just did an MTV broadcast," Upp says. "It's the first time something of that magnitude was done, where the show was taped and broadcast during its run. Most shows usually tape during their final week and broadcast it after its closing…. The producer was approached by MTV and...we negotiated a special contract. It was handled by AFTRA, and [the performers] received their AFTRA payment in addition to a recognition fee from Equity." That fee is the standard one Equity charges when a show is taped for commercial purposes: two weeks' contractual salary. "Generally," says Upp, "why you see more Broadway stuff being taped is because they have the money for these types of projects."
Of the requests he receives, Upp says, "most we handle on a case-by-case basis. There isn't a rule that allows a show to be taped for broadcast.... That's not to say that Equity won't grant consent. It means that requests have to come into Equity…. Ofttimes the producer is willing to pay the rates involved with either SAG or AFTRA and the additional Equity rates, and we're all for it, and we just draw up the subsequent agreement."
Equity will also consider requests to tape or film excerpts from shows for promotional or demonstrational purposes and for inclusion in a documentary. And in some cases Equity has allowed a director to make an archival recording of a show at the rate of one week's contractual salary per actor. But if you want to record your Off-Off-Broadway showcase to show to prospective commercial producers, you're out of luck. Equity won't allow such a recording because its members aren't paid a salary for a showcase.
What happens if a producer tapes a show without consent? "It actually happens more often than we'd like to admit," Upp says. "We rely heavily on our membership to report it to us…. We let [the producer] know that it has come to our attention that cameras were seen, and we require that the tape be surrendered. Oftentimes there'll be breach penalties, although if the producer wants it for a commercial product, and as long as they're willing to pay the applicable rates, we will do a contract retroactively." Breach penalties will also be assessed if an archival recording suddenly surfaces commercially; they amount to two weeks' Broadway scale per actor, even if the show was not on a Broadway contract.