Understanding the ‘Pay or Play’ Clause + What it Means for You

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Photo Source: Cytonn Photography on Unsplash

So you slayed your self-tape, nailed your in-person audition, and were offered the part. Now, it’s time to finagle the intricacies of the acting contract. One of the most common—though often misunderstood—terms you might come across is “pay or play,” a legal commitment that secures payment even if you haven’t filmed a single take. Here’s what you need to know about the clause and when to play it out. 

What does pay or play mean?

Pay or play is a commitment by a producer—a studio, network, production company, or individual—to pay an actor even if the producer later decides that the actor’s services won’t be required. In other words, whether or not the production goes forward, and whether or not the actor is ultimately required to render services, they will be paid the negotiated fee. 

Pay or play agreements often have limited exceptions, such as instances of the performer's inability to fulfill contractual obligations due to disability, force majeure (unforeseeable circumstances beyond anyone's control, also known as an “act of God”), and/or the actor’s breach of the agreement. The expression is a bit confusing since it implies that the actor is either “paid” or “played.” Obviously, if the actor is played, they must also be paid.

Because pay-or-play contracts can have a significant financial impact on a producer, most won’t deem an actor pay or play until the picture has been green-lighted, a firm start date has been set, and the other principal cast members have been made pay or play. Independently financed pictures often try to avoid pay-or-play provisions altogether or delay them until the start of principal photography so they can be assured the movie is fully funded and will proceed. Most working actors in film and TV won’t consider an offer unless it is on a pay-or-play basis because they don’t wish to tie up their schedule if they aren’t certain they’ll be compensated for it. In any event, it is important—on both sides of the bargaining table—to be clear as to what preconditions must be satisfied before the pay-or-play obligations kick in.

The 2005 film “Memoirs of a Geisha” is an example of a film in which the provision came into play. Several years before it was finally produced and released, with Rob Marshall directing, the movie was slated to be shot with Steven Spielberg at the helm. At that time, several actors were hired by the studio under pay-or-play deals. When the contracted start date came and went, those actors began receiving their full salary as if they were rendering services.

Pay or play vs. pay and play 

A related but rarely employed concept is pay and play. This is a commitment by a producer both to pay the artist and to use the artist’s services in the production, barring any of the typical contingencies mentioned above. In other words, the producer agrees not to produce the project without the artist’s participation. A producer is usually reluctant to make such a commitment except under exceptional circumstances.

Why use a pay-or-play clause?

To protect producers: A typical pay-or-play provision allows the producer to terminate an artist’s services for any reason whatsoever—with or without cause—without the threat of a lawsuit for loss of opportunity or a similar claim, as long as the agreed-upon compensation is paid. The producer doesn’t even have to proceed with the production. 

To ensure actor compensation: For the artist, pay or play offers security from loss of compensation if they are replaced at the director’s whim after the artist took him- or herself off the market in anticipation of the production. It also acts as an incentive for the producer to utilize the artist since the producer must pay them anyway. Pay or play is akin to a “run of the play” contract in theater, which says that if an actor is replaced, they will still get paid for as long as the show runs.

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