Actor agreements: how power is shifting back to movies studios and streaming platforms

actor agreements

The movie industry’s balance of power is strongly impacting actor agreements and how actors and actresses are treated by movie studios, film production companies and streaming platforms. While the current pendulum is shifting back to movie studios, streamers and film producers, actors still have many cards to play, in the new streaming era, to get the best deals.

1. The star system: how stars were ‟owned” by film studios, from the creation of the movie business at the beginning of the 20th century, up to the mid 1940s

The film industry was invented at the end of the 19th century, when the Lumière brothers organised the first ever commercial and public screening, of their short films in Paris, on 28 December 1895.

Then, the movie business blossomed in a more mature industry in the 1900s, with the 1920s being the golden years of German cinema and seeing Hollywood overtake, and triumph over, European film industries (French and Italian, in particular), which had been devastatingly interrupted by the first world war.

The American industry, or ‟Hollywood” as it was becoming known after its new geographical center in California, then gained the position it has held, ever since: that of the film factory for the world and major exporter of its movie products to most countries on earth.

Therefore, the Hollywood microcosm, based on its two pillars – the studio system and star system respectively – became the world’s epicenter of the movie industry, from the 1920s onwards.

The studio system, a method of filmmaking wherein the production and distribution of films is dominated by a small number of large movie studios (i.e. the ‟majors”, divided between the ‟Big 5” RKO Radio Pictures, 20th Century Fox, Paramount Pictures, Warner Bros. and Metro-Goldwyn-Mayer; and the ‟Little 3” Universal Pictures, Columbia Pictures and United Artists), was based on the premise that most creative personnel, and in particular actors and actresses, were under long-term contract to their respective studios.

While in the early years of cinema (1890s to 1900s), performers were not identified in films, the star system (a method of creating, promoting and exploiting movie stars in Hollywood films) was majorly used from the 1920s until the early 1960s, by the above-mentioned studios. However, from the mid-1940s onwards, the star system starting showing some serious cracks, which aggressive and forward-thinking talent quickly infiltrated to regain control over their careers and, ultimately, their lives. More on that later.

In the star system, movie studios would select promising young actors and actresses, glamorise and create personas for them, often inventing new names and even new backgrounds. Under orders from a studio, stars sometimes even altered their facial appearance and hair color. Examples of stars who went through the star system include Cary Grant (born Archibald Leach), Joan Crawford (born Lucille Fay LeSueur) and Rock Hudson (born Roy Harold Scherer).

Under the star system, actors were literally ‟owned” by the majors, as properties locked into employment contracts with a standard term of seven years, through which they owned a weekly wage, like any other employee of the movie studios. They were asked to work six days a week, for long hours. Their contracts required the actors to participate in every movie, and all publicity, the studio desired.

Morality clauses were integral to actors’ studio contracts. They curtailed, restrained or prohibited certain behaviours of, and from, the talent. This was justified not only by the fact that the star system put an emphasis on the image rather than the acting skills of its talent, but also by the studios’ reaction to the Roscoe ‟Fatty” Arbuckle criminal case in 1921. One of Hollywood’s most popular silent stars and highest-paid actors of the 1910s, Arbuckle suffered a serious setback when his reputation was irrevocably tarnished by becoming the defendant in three widely publicised trials, between November 1921 and April 1922, for the alleged rape and manslaughter of actress Virginia Rappe. Subsequent to media outcry, Universal Studios decided to add a morals clause to its contracts, which 1921 version read as follows: ‟The actor (actress) agrees to conduct himself (herself) with due regard to public conventions and morals and agrees that he (she) will not do or commit anything tending to degrade him (her) in society or bring him (her) into public hatred, contempt, scorn or ridicule, or tending to shock, insult or offend the community or outrage public morals or decency, or tending to the prejudice of the Universal Film Manufacturing Company or the motion picture industry. In the event that the actor (actress) violates any term or provision of this paragraph, then the Universal Film Manufacturing Company has the right to cancel and annul this contract by giving five (5) days’ notice to the actor (actress) of its intention to do so”.

Constantly under pressure to ‟behave”, actors and actresses worked together with studio executives, public relations staffs and their agents, to create their star persona … and keep it at all costs, covering up incidents or lifestyles (in particular, homosexuality) that would damage their public image.

From the 1930s to the 1960s, it was common practice for film studios to arrange the contractual exchange of talent (i.e. actors and directors) for prestige pictures. For example, film director Alfred Hitchcock, who had a difficult working relationship with the head of the film studio to which he was contractually bound via a seven year contract, David O. Selznick, was often lent to larger film studios.

Things started to unravel when James Cagney, the top billing actor at Warner Bros., sued Jack Warner and his corporation for breach of contract. There had already been some early warning signs that things were heating up, between Cagney and Warner, with the former repeatedly asking for a higher salary for his successful films, at USD4,000 a week, on a par with Edward G. Robinson, Douglas Fairbanks Jr. and Kay Francis. Warner Bros ultimately refused to cave in and suspended Cagney. He then announced that he would do his next three pictures for free if Warner Bros. canceled the five years remaining on his contract. After six months of suspension, film director Frank Capra, acting as a mediator, negotiated a deal that increased Cagney’s salary to around USD3,000 a week, and guaranteed him top billing as well as no more than four films to shoot per year. Things eased off for a while and Cagney went on to make many more hits for Warner Bros. However, when Jack Warner forced Cagney into making five movies in 1934, and denied him top billing on the fifth title, ‟Ceiling zero”, Cagney’s third film with co-star Pat O’Brien, Cagney brought legal proceedings against Warner Bros. for breach of contract. Represented by his brother William Cagney in court, Cagney won. He had done what many thought unthinkable: taking on the studios and winning. Not only did he win, but Warner Bros., knowing that he was still their foremost box office draw, invited him back for a five-year, USD150,000-a-film deal, with no more than two pictures a year. Cagney also had full say over what films he did and did not make with Warner Bros.

Cagney’s acts of rebellion did not fall on deaf ears, with Bette Davis slamming the door behind her, when Jack Warner asked her to act as a lumberjack in her next feature film. While Davis accepted a film studio competitor’s offer in 1936 to appear in two films in Britain, she was served with court papers in England, for breach of contract, by Warner’s lawyers. The Warner Brothers Pictures Inc v Nelson lawsuit that ensued took place in the English courts, with Davis (who was sued under her married name) invoking slavery, as a result of her 52 weeks’ contract allegedly only being fulfilled when she had – effectively – worked for exactly 52 weeks for Warner Bros. (as opposed to after 52 weeks’ from the starting date of such contract). Warner Bros.’s barrister astutely counterattacked by retorting that, if he received USD1,350 per week, like Davis allegedly did, during the term of her contract with Warner Bros., he, too, would like to be tied up in slavery. The English court found in favour of Warner Bros., deciding that this was a breach of contract on Davis’ part. After the case, Davis returned to Hollywood, in debt and without income, resumed working for Warner Bros. in what became one of the most successful periods of her career.

A very different legal fate happened to Olivia de Havilland, when she, too, sued Jack Warner and Warner Bros. after walking out, refusing to have the time during which she was absent added onto the end of an already long contract. Indeed, in 1943, de Havilland’s seven-year contract ended, but Warner Bros. announced that she was not yet free to move on. The studio claimed that she owed them an additional six months for the time she was under suspension for refusing to perform in certain films. De Havilland argued, in her lawsuit, that the contract was for seven years, suspension or not, and that Warner Bros. was violating labour law. While de Havilland acknowledged that the suspension had taken place, she argued that under California state law, employment contracts were only enforceable for up to seven calendar years. She won the first trial, but Warner Bros. appealed. Yet, the studio lost its case in a decision considered to be such a landmark that it has been dubbed the ‟de Havilland law”, the California court saying that the actress’ contract was a form of ‟peonage”, or illegal servitude. In a big, splashy headline, Variety, noting the ruling, declared on 15 March 1944, ‟De Havilland Free Agent”.

After that, the floodgates started to open, and the movie business had to change, letting actors and filmmakers strike out on their own and control their own destiny.

2. The contemporary system: how actors regained power and took control of their professional destiny

In the long term, the ‟de Havilland law” killed the star system, the publicity accompanying the Davis and de Havilland incidents fostering a growing suspicion among actors that a system more like being a free agent would be most personally beneficial to them, rather than the suffocating and hyper-controlling star system.

Soon, power began shifting from the studios to the stars. In the 1950s, film studios began to employ actors on a project-by-project basis, often via the actors’ loan-out companies. Agents, such as Creative Artists Agency (‟CAA”) and William Morris Endeavor Entertainment (‟Endeavor”), as well as managers, supported stars to exploit their newfound power. Over the decades that followed, salaries and perks for the industry’s biggest stars skyrocketed.

In 1959, Shirley MacLaine sued famed producer Hal Wallis over a contractual dispute, contributing further to the star system’s demise. By the 1960s, the star system was in decline.

In 1966, MacLaine sued Twentieth Century Fox for breach of contract when the studio reneged on its agreement to star MacLaine in a film version of the Broadway musical ‟Bloomer Girl”, based on the life of Amelia Bloomer, a mid-nineteenth century feminist, suffragette and abolitionist, that was to be filmed in Hollywood. Instead, Fox gave MacLaine one week to accept their offer of the female dramatic lead in the Western ‟Big Country, Big Man‟, to be filmed in Australia. The Shirley MacLaine Parker v Twentieth Century-Fox Film Corp. case was decided in MacLaine’s favor, ans affirmed on appeal by the California supreme court in 1970. This case is often cited in law-school textbooks as a major example of employment-contract law.

These female leads’ highly publicised and mostly successful litigation cases were instrumental in the push for more and more actors forming their own film production companies, or finding movie projects to champion, that suited their tastes and ambitions. Multi-hyphenates, such as Brad Pitt, Robert Redford, Reese Witherspoon, Clint Eastwood and Bradley Cooper, might not have enjoyed the same kinds of careers had Davis, de Havilland and MacLaine not weakened the control of the major studios.

Indeed, studio heads signed ‟first-look” contracts with production companies founded by stars – Reese Witherspoon’s Pacific Standard, Brad Pitt’s Plan B Entertainment, and Will Smith’s Overbrook Entertainment, for example – giving them additional fees and access to office space on the studio lot, in exchange for the first option to produce or distribute the movies the stars pursued.

By the mid-2000s, it had become increasingly clear that the tug-of-war between stars and studios was not supporting the profitability of movie studios. In her insightful book ‟Blockbusters: why big hits – and big risks – are the future of the entertainment business”, Anita Elberse cites her research, which suggests that whereas films that starred A-list actors typically had higher box-office revenues, the fees for those actors were so high that they wiped out the extra revenues the stars brought in – leaving studios with the same profits they would have made if they had relied on lesser-known creative talent. In other words, the stars themselves captured most of the surplus that resulted from their involvement. This is the ‟curse of the superstar”.

The most flamboyant example of an actor successfully branching out into film producing, and taking back control over his career, is Tom Cruise. After his breakthrough role in 1986 with ‟Top Gun”, he went on to star in many more commercially and critically successful films such as 1988’s ‟Rain Man” and 1989’s ‟Born on the Fourth of July”. However, Cruise really upped the ante when he partnered with his then CAA talent agent Paula Wagner (who had signed him, and represented him for eleven years), and co-founded the independent film production company Cruise/Wagner Productions in July 1992. For the next thirteen years, Cruise was able to make the most of his newly-found creative freedom over his film projects, and to produce and direct motion pictures. The first three ‟Mission: Impossible” movies were released by C/W Productions (as it was abbreviated), as well as 2001’s ‟Vanilla Sky” and 2002’s ‟Minority Report”. In October 1992, C/W Productions signed an exclusive three-year multi-picture financing and distribution deal with Paramount Pictures. The deal was renewed and expanded several times over the next thirteen years. However, in August 2006, Sumner Redstone, chairman of Viacom (the parent company of Paramount Pictures) terminated that contractual relationship citing Cruise’s ill advised comments in the media about psychiatry, antidepressants, etc. and his fascination with Scientology. While this is a typical example of ‟what to do when celebrities get it all wrong”, Cruise got a lucky break, when Metro-Goldwyn-Mayer (‟MGM”) came knocking at his, and Wagner’s, door, in November 2006. Harry Sloan, chairman and CEO of MGM, signed an agreement with Cruise/Wagner, for them to run United Artists, a dormant studio that was part of MGM’s portfolio and had been founded in 1919 by Charlie Chaplin, Douglas Fairbanks, Mary Pickford and D. W. Griffith, four of the biggest stars in Hollywood at the time. Sloan’s proposed partnership was notable because Cruise/Wagner were given a relatively free hand in determining a direction for ‟the company built by the stars”, United Artists. For instance they could greenlight movie projects costing less than USD60 million without MGM’s approval, and for a term of at least five years they could develop up to six films a year. All films would be distributed and, at least initially, financed by MGM, for which the studio would receive a distribution fee of between seven and fifteen percent of revenues. In exchange, MGM granted the pair a one-third equity stake in United Artists without asking them to invest a penny of their own money. Most remarkably, Cruise was not obligated to appear in any United Artists’ movies himself, and he remained free to star in, and produce, movies at other studios. This experiment, which ultimately did not work out, was viewed by industry experts as an attempt to solve the fundamental problem of the above-mentioned ‟curse of the superstar” – the growing ability of powerful stars to undermine the profits of the studios and other businesses that employ them. Instead of up-front money, Sloan offered Cruise the freedom to pursue the kinds of projects that he and Wagner were most excited about, and the promise of a bigger payday in the future, through an ownership stake in the studio United Artists.

3. How are actor agreements structured, in the contemporary film business?

In some ways, actor agreements are the most difficult to negotiate as almost everything is negotiable.

Assuming the film production is signatory to the Screen Actors Guild (‟SAG”), which is almost always the case, then the first question will be whether the actor is guaranteed USD65,000 or more in total compensation for acting services. If so, then the actor will fall under ‟Schedule F” of the SAG Basic Agreement and the film production company will be free to negotiate many employment provisions that would otherwise be set in stone by the guild (including overtime and meal breaks, scheduling, minimum daily or weekly compensation, etc.). For the rest of this section, we will refer to those above the USD65,000 threshold as ‟Schedule F actors”, and those below the threshold as ‟daily/weekly actors”.

The two most important deal points when hiring Schedule F actors are the compensations and scheduling.

  • With respect to the scheduling, it is often overlooked. However, an actor is someone selling his or her time. Actors will not make a binding commitment to block out time for a film production (and therefore pass on other opportunities) unless they are guaranteed payment even if you end up not using them. They also cannot make an indefinite commitment to a film production. Unless the studio is paying a sizable sum in guaranteed compensation, the actor will expect some kind of guaranteed date after which he or she can accept new work without having to get the studio’s approval first. So, an important negotiation point in an actor’s deal, revolves around the total number of days or weeks that the film production will need the actor to actually render services (rehearsal and shooting days, etc.) and the window of time in which the film company needs the actor to be available to them (e.g. three consecutive weeks of services, commencing within two weeks before or after a specific date, within which the services will be rendered). As production schedules change frequently, especially on independent productions and/or if the director is relatively inexperienced, the film production or movie studio needs to negotiate for some additional ‟free” days that can be used consecutively with principal photography, as well as some ‟free” days non-consecutive to principal photography where the film production company can bring the actor back for post-production work (e.g. dialogue replacement, dubbing). The actor’s representatives will probably require that, after the scheduled days and free days are exhausted, the actor be entitled to ‟overage” compensation at the same rate as the fixed compensation represents in relation to the originally scheduled period of services. In other words, if an actor was paid USD100,000 for ten days of scheduled work, and they agreed to two free days, but the production required five days beyond the originally scheduled ten, then the actor would be entitled to USD30,000 in overages. With respect to the window of time in which the film company needs the actor to be available, to render services to the production (which is sometimes referred to as the actor being in ‟first position” to the production), some negotiations also take place. Because an actor is selling time slots, he or she is not going to want to give the film production a large cushion in which to get its work done. Instead, he or she will try to collapse the window to what the schedule currently allows, so that he or she remains available for other projects outside of this narrowed window. Even if the film production is not able to negotiate for many ‟free” days, the production should still be able to require the actor to continue rendering services through the completion of principal photography of the picture – the overages may be expensive, but at least the film production will not lose the actor entirely. Agreeing to any kind of stop date for the actor (i.e. the production guarantees the actor will be released by a certain date, or agrees the production will be in ‟second position” to another production starting on a certain date) is problematic and should not be agreed unless approved by the line producer, the film production company, the cast insurance provider and the completion guarantor (if any).
  • Fixed compensation is usually the first deal point discussed. For Schedule F actors, it is usually a fixed amount payable in equal weekly installments over the scheduled period of the actor’s services, with overages payable at the same rate for any services required beyond the originally scheduled days and any agreed free days. The actor’s agent will often negotiate for the fixed compensation to be put in escrow with the agency’s or a law firm’s trust account before the actor even travels, to ensure the production actually has the ability to pay the agreed amount. If escrow is agreed by the film production company, then it will need to enter into an escrow agreement with the agency or law firm. Such escrow agreement must provide that the agency/law firm will suspend payments in the event the actor is suspended or terminated, pursuant to the terms of the actor agreement. It is best practice for the film production company to only deposit the actor’s fixed compensation in escrow once the acting and escrow agreements are fully executed.
  • Contingent compensation on a project is typically largely paid to actors, who get the lion’s share. As discussed above in paragraph 2., since actors are usually the driving factor in terms of distribution revenues on a picture, they have the bargaining power to negotiate for the most in up-front and contingent compensation. They are four different categories of contingent compensation, as follows. Box office bonuses, which are straightforward contingent bonuses based on the theatrical performance of the picture – if the picture reaches certain theatrical revenue thresholds, then certain bonuses become payable. Box office bonuses are appealing to talent, because box office numbers are widely reported and there are no complicated accounting calculations involved. Gross Participations are the second category of contingent compensation. As with box office bonuses, a participation in the gross revenues of the picture is appealing to talent, because it does not require the cost of production to be calculated or recouped. Instead, the actor is entitled to a percentage of every dollar that the producer receives (after the distributor and/or sales agents deduct their fees, costs and expenses ‟off the top”). However, the investors on an independent production may be unwilling to share the picture’s revenues until they have recouped their entire investment. Therefore, they are more likely to only going to approve a gross participation for a top-level star who is going to drive sales of the picture. Deferments are the third type of contingent compensation. They tend to be a fixed dollar amount payable out of a pool at a defined point in the revenue waterfall (with each stage in the waterfall representing a different level of fee or cost/expense recoupment or profitability of the picture). The most generic deferment pool would be paid at the time immediately prior to net profits – after the distributors, sales agents and collection account managers have taken their fees and expenses off the top, the production has recouped the negative cost of the picture (which may include interest on loans and/or a premium return on equity investments), and any gross participations and/or box office bonuses have been paid. Then, the fourth and final category of contingent compensation are net participations. It is simply the amount that remains after all of the production’s other costs, expenses and contingent participations (e.g. box office bonuses, gross participations and deferments) have been deducted, recouped and paid. This is the least likely form of contingent compensation to be paid to the talent. Typically, an independent producer will hire a collection account management company to collect and administer all of the revenues on the project, and so the collection account manager will be responsible for allocating and paying the applicable participations and deferments. The actor’s representatives will often try to require that the film production company make the actor a party to the collection account management agreement.

For daily/weekly actors, the film production can continue to employ them as long as it continues paying them at the negotiated daily/weekly rate, provided that the actor has not negotiated a specific stop date or something similar. The costs add up, but at least the film production will be able to keep the actor in first position to the production, if need be. Also, as far as fixed compensation of daily/weekly actors is concerned, it is set at a daily/weekly rate, and the actor is paid at that rate (plus overtime and other SAG-mandated amounts/penalties) for the duration of employment. In the case of a daily/weekly actor, his or her agent may negotiate for a guaranteed minimum number of weeks of employment, in which case the actor must be paid the full amount for the guaranteed period, unless they are terminated for cause.

The next issue when negotiating actor agreements is credit. The relative position of actor’s credits is determined by negotiation, but usually depends on the size of the role and the stature of the actors. So, if a film project has two main characters, the bigger ‟star” will often get first position credit and the other actor will be in second position. The distributor of the picture will have very specific opinions about who needs to be used for marketing purposes to help sell the picture, and the film production company needs to liaise efficiently with the distributor’s marketing department, in order to clarify what kind of credit can be given to the actors, while retaining top marketability and revenues maximizing.

It is customary to agree that an actor will have the right to approve the still photographs that will be used in the marketing of the picture (with the actor required to approve at least fifty percent of stills in which they appear alone, or seventy five percent of stills in which they appear with others who have approval rights).

It is also normal to agree that the actor has a right of approval over any blooper footage (SAG requires this anyway) or behind the scenes footage in which the actor appears that the production company is going to use in the marketing of the film or in the added value materials for the home video release of the picture (e.g. DVD extras).

Under SAG rules, actors have a right of prior written approval over any scenes that require them (or their double) to appear nude or as engaging in sexual conduct. The actors’ representatives will often ask that the contract sets this out explicitly (including specific descriptions of the scenes being filmed, and limitations on what can and cannot be shot).

‟Pay or play” is a concept created to protect above-the-line talent, and in particular actors, from being terminated without receiving their full fixed fee. The parties will agree that, at a certain point in the production process (often well before principal photography commences), the talent becomes ‟pay or play”. If they are subsequently terminated without cause, they will be entitled to their entire fixed fee, regardless of whether it has accrued at the moment of termination. Since the actors have blocked out their schedules for this production, they want to ensure that they will be compensated for that time even if the producer decides to go a different direction or the production does not move forward. The contract will set out that the talent can be terminated at any time, for any reason, with or without cause, but if the talent has become ‟pay or play” and is then terminated for any reason other than force majeure and/or the talent’s default or disability, the actor will be entitled to their full fee. Typically, a contract will say that talent becomes ‟pay or play” on the earlier of commencement of principal photography, or the hiring company electing to proceed to production of the picture with the actor in the specified role. While the ‟pay or play” provision does help protect the actors, it also provides a clear way for the producer to terminate the talent’s services, even without cause – the producer can merely pay the balance of compensation owed and send the talent packing (subject to any applicable guild rules). Contrast this with ‟pay and play”, where the talent – usually, the director – is not only guaranteed his or her compensation, but also the right to render services without being suspended or terminated (unless for cause) for a specified period of time.

4. How film streaming and streamers are disrupting the industry, shifting the balance of power away from the stars, and back to film production companies and studios

As film distribution evolved away from movie theatres and towards streaming platforms, the tectonic shift of power between various stakeholders has changed. Such change accelerated with the COVID 19 pandemic, when various lockdowns prevented movie goers to attend their local cinemas, for almost two years.

Netflix is the undisputed market leader in the video streaming sphere, having achieved world domination in 2018 (i.e. its streaming-only plan can be watched by Netflix members in over 190 countries, except in China, Crimea, North Korea and Syria).

From a mere mail-based rental business 20 years’ ago, Netflix successfully transitioned to streaming services from 2007 to 2012, then to its development of original programming, from 2013 to 2017, then to its expansion into international productions, from 2017 to 2020, and now to its emergence into the gaming space (since 2021).

Basically, Netflix rules, when it comes to streaming distribution (although Amazon Prime is a close second). And Netflix does not take any prisoners, when it comes to its distribution deals. Its distribution agreements, more properly characterised as ‟digital licenses”, are differentiated primarily by the fact that there is no division of revenues involved. Netflix does not share the subscription fees it receives. Thus, even when Netflix acquires all worldwide rights in perpetuity to a motion picture prior to production, and bills it as a ‟Netflix Original”, they agree to make a fixed ‟buyout” payment, with no additional net profits, royalties or other accountings.

Bye-bye, contingent compensation for actors, when their film projects are produced by, or distributed by, the likes of Netflix and Amazon! Only fixed compensation is up for grabs.

In fact, Netflix does not even disclose box offices results, even when their films have a theatrical run before, or simultaneously to, making the film available for streaming on Netflix’s online platform. Amazon followed suit on this policy. Both companies refuse to report their box office grosses to either internal industry compilers (including Comscore, which is built into ticket sites for the vast majority of North American theatres) or to the press. Since their distribution deals are free of any contingent compensation, why would they?

As this practice of releasing films in both theatres and streaming platforms has become the norm, in the United States, some talent have filed lawsuits against movie studios for breach of contract. For example, Scarlett Johansson sued Disney over what she claimed was a breach of contract, after Disney chose to release the Marvel superhero movie ‟Black Widow”, in which Johansson starred, simultaneously in cinemas and on its Disney+ streaming platform. In her July 2021 summons, Johansson claimed that her fees were based on the box-office performance of the film and that Disney’s change of release strategy, whilst refusing to renegotiate her actor agreement, deprived her of her fair share of income on this title. Disney retaliated by publicly disclosing Johansson’s upfront fee of USD20 million. The parties eventually settled, for a reported fixed sum of around USD40 million paid by Disney to Johansson.

Not only can actors seat on their box office bonuses, deferments and gross or net participations, when they get involved in a film project with Netflix or Amazon, or other competing streaming services, they are now held by film studios and streamers for anywhere from nine months to more than a year in some cases, per standard series agreement deals. Indeed, prestige film series are at the core of the film streaming universe and business model, with original shows like Euphoria (produced by HBO and distributed on its streaming platform HBO Max), Squid Game and The Queen’s Gambit (both produced by Netflix and distributed on its streaming platform) being massive draws for existing and new streaming subscribers. Actors who are involved in these streaming series are prevented from booking other jobs in that time, without a complicated process of approvals, hindering this talent’s ability to chase other job opportunities. Actors’ agents are complaining that their clients are losing work due to this exclusivity requirement under their actor agreements, exacerbated by multiple factors such as the year-round development cycle and short-order seasons of 13 episodes or less. Actors get paid less because they work on fewer episodes, but they still face long contract holds.

Another cause of concern, for agents and their actor clients, is the use of non-disclosure agreements (‟NDAs”) in casting, with many major producers, allegedly, overly sensitive about the secrecy of their projects. In an era of online file-sharing and sensitivity around plot spoilers, the increased use of NDAs in this context is unavoidable. However, actors and agents are concerned that NDAs are being overused when it comes to casting auditions, with sweeping and unreasonable terms. US streamers are blamed for starting the trend. Actors and agents say the use of NDAs si breaking the traditional relationship between them, with actors unable to discuss the upcoming audition, script and prospective role with their representatives, which is increasingly cutting out agents from the audition process altogether.

Finally, while the advent of streaming platforms means more opportunity for actors, in particular actors from minority backgrounds, the likes of Netflix, Amazon and HBO rely on mostly young, new or not yet discovered talent, to minimise actors’ labour costs incurred in the production of their prestige streaming series. There is no place for prima donna stars, dictating their terms and conditions, in the film streaming era. And with Netflix now pushing its limits beyond film and into gaming, actors could easily become replaced by animes, artificial intelligence and virtual actors, in the near future, further decreasing the costs of talent for streaming platforms.

Crefovi’s live webinar: How to negotiate actor agreements, in the film streaming industry? – 18 March 2022

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