A pay or play clause in a Film and TV agreement simply means that an individual who is being contracted to provide various services on a Film or TV production is guaranteed payment regardless of whether or not he or she works. The genesis of a pay or play clause is due to the unpredictable and volatile nature of Film and TV productions.
There is no guarantee that when talent is hired for a production, his or her services are ultimately going be used. There can be many reasons for this. For example a production company may change its mind about talent or directorial direction; production funding may fall through; or production may be forced to shut down due to Covid-19 as Warner Bros have recently experienced, halting production of the film The Batman just days after it resumed following lockdown.
Typically, agreements with pay or play provisions are used for top-tier actors or directors. The relevant clause should make clear (if drafted correctly) that the talent will be paid his or her fee provided that:- (i) there is no event of force majeure which prevents filming (to include any event related to COVID-19) or (ii) the agreement is not terminated due to the event of the death/incapacity of the talent or a defined default. Ultimately, the production company agrees to pay the actor or director for the contracted services, irrespective of whether their services are used or not.
Pay or play agreements are usually demanded by high level talent as a condition of any agreement to provide their services. This is because, by agreeing to provide their services, they are agreeing to carve out time in their profitable schedule for an agreed period. This commitment on the part of the actor or director obliges them to turn down alternative opportunities which may clash with this agreed period, no matter how lucrative or promising. Simply put, a pay or play agreement provides payment for their commitment.
Crucially, this does not give talent carte blanche to act in whichever way they see fit once the ink on their pay or play agreement has dried. If the actor or director is in default of their agreement the production company will be allowed to terminate the agreement and no payment will be due. It is therefore extremely important to carefully consider what constitutes an ‘event of default’, and precision in drafting such clauses is essential. Typically, they include the following:
- The talent is found to be participating in criminal activity, for example committing a sexual assault. Apart from the clear illegality of such behaviour, the negative public perception caused by such news could derail a production’s roll out.
- The talent’s conduct results in production being unable to continue. Conduct that falls into this remit is likely to involve continuous acts of unreasonableness, such as an actor or director repeatedly being absent from scheduled filming times and/or missing tight deadlines, or talent refusing (unreasonably) to cooperate with other personnel who have been engaged on a production.
- The talent fails to qualify for insurance coverage and/or immigration eligibility.
The enforceability of pay or play clauses has the potential to provide grounds for highly contentious and expensive legal disputes. This can be seen with the present (at the time of writing) dispute playing out in the High Court between French actress Eva Green and White Lantern Film Britannica (‘WLFB’).
The legal dispute between Eva Green and WLFB is centred around Green allegedly breaching her agreement for her role in the production of A Patriot. Green’s stance in the proceedings is that despite the film’s production falling through and the shooting never commencing, she is owed her $1 million fee.
Why and how has this dispute arisen?
Green argues that the fee is due because the agreement for her services contained a pay or play clause. In contrast, WLFB asserts that Green breached her agreement when she “unilaterally withdrew from the production before it started filming, and without notice”. The company has also made a counter claim alleging they incurred $4 million in losses after A Patriot was abandoned. WLFB’s statement fails to acknowledge the existence of a pay or play clause, but assuming that there is any merit in Green’s contractual claim, the dispute likely rests on whether she was in default of the agreement.
Pay or play clauses have undoubtedly become a mainstay in the Film and TV industry. It is therefore of the utmost importance to understand them and to ensure that they have been drafted in a way where their validity cannot be called into question.
This article was written by Razwana Akram (Partner) and Olu Mshelia (Trainee Solicitor).
Should you have any further queries please contact Razwana Akram.