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The Four Most Potentially Dangerous Clauses in Actors' Agreements

The Four  Most Potentially  Dangerous Clauses  in Actors' Agreements
When you spot an action figure of yourself being sold at Kmart and wonder why you didn't receive a check in return, it's likely because you didn't read the fine print of your actor agreement. If you're not diligent, you may give away more than you intended. The following are some common clauses to watch out for in the future.

1) "Company shall have the perpetual right to use, and to authorize others to use, in any and all media now or hereafter known or devised, Artist's name, image, voice, likeness, and biography in connection with the production, distribution, exhibition, marketing, advertising, promotion, and/or other exploitation of the Picture. The compensation payable to Artist pursuant to Section XX above includes full and complete consideration for the rights granted to Company under this Section, and Artist shall not be entitled to receive any additional compensation therefor."

This is where your beautiful Kmart merchandise comes in. This clause gives the studio broad rights to use your image, without any compensation. As drafted, there is no restriction as to what type of merchandise can be made (including potentially objectionable products, such as lingerie, alcohol, or tobacco), nor does it give you any approval over how you look. It also allows your image to be used in commercial tie-ins, such as a McDonald's Happy Meal.

To protect yourself, you should always request approval over the type and look of merchandise using your image. While you may not get this, you can get certain customary products excluded and limit merchandising to "in-character" (for example, they can make T-shirts with you in your role as the queen but not with you in a bikini). Also, ask for a merchandising royalty (typically 5 percent).

2) "Artist shall render all services ('Promotional Services') required by Company, as, where, and when required by Company (both during production of the Picture and in connection with the initial theatrical and DVD release of the Picture). No additional compensation or other remuneration shall be payable to Artist with respect to Artist's Promotional Services."

This clause allows the studio to potentially require you to render unlimited and unpaid publicity services. Such demands could cause you to miss out on other paid jobs, unless you make these services subject to your professional availability. Though these services do not customarily pay extra in connection with acting services, try to limit the number of services and get first-class travel and expenses.

3) "Except as expressly set forth, all matters with respect to Artist's credit shall be determined by Company in its sole discretion. No inadvertence or failure to provide credit shall be deemed a breach hereof."

Unless you specify the size, placement, and form of credit, you could end up in the back crawl, in tiny print, scrunched in amongst production assistants. Always try to negotiate the placement, size, and form of your credit. Ask for a credit in the main titles and on a separate card, ideally in first or second position (depending on the size of your role). Also, ask for them to "cure" any failure to give credit going forward.

4) "Producer shall have no obligation to make any use of Artist's services or the results and proceeds of Artist's services, and Artist shall not be entitled to any damages or other relief by reason thereof if Artist has not been made pay-or-play."

If you have not been made "pay or play" (which means that even if your services are not used, you will still be compensated unless you breach the contract, you had a disability, or in the case of force majeure), you can be terminated and/or replaced with someone they like better at the studio's or director's whim and without compensation. Consequently, you may have lost other opportunities because you took yourself off the market to work on this picture. Always try to get both up-front and any back-end compensation guaranteed. Always try to limit the studio's right to terminate for customary reasons.   

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