Filmmakers, television producers and documentarians rely on many types of production contracts and agreements in order to protect themselves and their work. Whether it’s a Location Release for the use of a specific building, a Nondisclosure Agreement to ensure confidentiality, or an Independent Contractor Agreement to secure the services of various crew members, production contracts serve a variety of different purposes. Producers often wonder what contracts are necessary for those in front of the camera, and commonly confuse the importance of a Depiction Release and Talent Agreement. Because unexpected legal claims frequently arise even after the cameras have stopped rolling, it’s important for producers to understand the difference.
In order to depict someone in a feature film, documentary or television show, certain rights should be secured before using the person’s image, likeness and voice. A Depiction Release is generally used for any individual that can be clearly seen or heard in a production, regardless of how fleeting their appearance may be. For example, if a production is filming on a busy street or in a highly populated area, it’s crucial to exercise caution and execute an agreement between every identifiable individual that directly crosses paths with the cameras and microphones. Typical elements of a depiction release include the grant of the individual’s rights, intellectual property rights and ownership for use in the production and to distribute in any medium that the producers choose.
Under New York law, it is prohibited to use a person’s name, image and likeness without prior written consent. To assert a successful claim in New York, a person must demonstrate each of the following elements:
(1) the use of the individuals name, portrait, voice or likeness;
(2) within the state of New York;
(3) for purposes of advertising or trade;
(4) without written permission.
A violation of New York’s Civil Rights Law is a misdemeanor that carries the possibility for both injunctive relief and monetary damages. It is smart practice to secure consents from those depicted in commercial productions, especially if in doubt whether the use would be permitted under law.
On the other hand, Talent Services Agreements are necessary whenever talent is hired to provide acting (or other on-camera) services in entertainment productions. These contracts are more specific and typically carry long-term effects. Actors provide professional services in exchange for a fee, so their contributions, services, rights and obligations should be clearly defined in a contract.
Talent Services Agreements contain many important provisions, including compensation, services, and intellectual property ownership:
Compensation. The compensation structure in services agreements can vary based on the experience and reputation of the artists involved and the production budget. Some agreements provide for (i) flat fees, (ii) extra costs for services outside the scope of those agreed in the contract and (iii) contingent compensation (or residuals) for profits in connection with the future exploitation of the work.
Services. The contract should clearly lay out all the services the artist is to provide. Not only those in connection with actual shooting of the content, but any services relating to pre-production (e.g. rehearsals, pre-production meetings, costume fittings), post-production (e.g. voice overs, added scenes, retakes) and subsequent publicity and marketing obligations.
Intellectual Property. Typically, the agreements make clear that the producer is the sole and exclusive owner to all rights, intellectual property and otherwise, in the project. This way, the artist would not likely have a successful claim to any rights to the project later on.
For any type of commercial production, it’s important to understand the different legal contracts and documents that can assist in the protection of the project. Specifically, to dissuade frivolous claims in connection with depiction and talent services.