Australia: Engaging talent: potential pitfalls and practical protections

Last Updated: 29 January 2016
Article by Sonia Borella and Dan Pearce

Most Read Contributor in Australia, September 2017

In a world where the talent attached to a project may be the key to its being financed in the first place, or long lived after an initial success, it has never been more important to contract carefully with key performers.

And the rules can differ greatly if the individual involved is a marquee star for a feature film, or an unpaid participant in a reality show that becomes the next watercooler conversation starter. Add to this a changing industrial relations landscape, and constantly evolving technologies, and there is much for the busy producer to juggle.

Let's start with the relevant industrial instruments. For local actors, the talent agent's expectation will frequently commence with the SPA/MEAA agreements and standard contracts. These include templates for TV dramas and feature films. The models contemplate, essentially, rates of payment tied to sets of rights acquired. For SPAA and MEAA members, these templates are expected, and the various buyouts provided for in the documents are well recognised. However, the agreements are being renegotiated, to bring them into the digital age. Hopefully this will allow for more effective exploitation of programs on which they are used, to the benefit of both producers and performers, but this process is ongoing.

Even with these standard agreements, it is worth giving consideration to additional provisions, and always ensuring that there is consistency with the network's licence agreements (for television programs) or the exhibition and distribution agreements (for films). Issues which can merit additional details include provisions regarding options for further projects – does the broadcaster's time to commission a new series match up with the performer's notice requirements? The expanding channels for meeting an audience can also be relevant – for instance, where the performer becomes synonymous with a particular character, what rules apply regarding the playing of that character in other environments (for example, to endorse an unrelated product)?

There are also developments in the terms of trade with broadcasters. Given that networks increasingly wish to exploit a television program other than via traditional broadcast runs, and sometimes before or even to the exclusion of a first run on free to air channels, deals with performers need to be checked for rights assignments, payment triggers, and ancillary usages. Simultaneous live streaming, catch up, and online only are here to stay, and whilst the individual templates are in the process of meeting these changes, care needs to be taken until this process is complete.

Outside of drama, there tends to be less common industry practice in the contracts used. Usually, the participants in reality programs are not professional performers or necessarily members of the MEAA. Naturally, the contract must always address the recording of their activities for the purpose of the programs being produced. And certainly it may be necessary to contemplate returning series or spin-offs. However, it will often be important to consider other matters too.

Does the producer (or broadcaster) have a detailed policy for the use of social media? Ideally, there should be procedures and protocols to prevent injudicious tweets or posts by a participant or performer, including in response to perhaps hostile messages from viewers. Exclusivity needs to be carefully thought through. It will generally be accepted that there can be a restraint on going to a rival network to participate in their competing format, but how far will the commissioning network want to go to control other profile-raising activities (particularly where the individual may already be well known for a skill not within the ambit of their role on the show). Again, external endorsements should be considered. A network may seek to prevent a high profile participant on one of its key programs endorsing a brand which is known to sponsor a rival show on another network. It may be the case that not all of these issues can be resolved in advance, but it is worth at least undertaking a risk analysis.

If you are bringing talent in from overseas, there will be migration issues to manage, and depending on the nature of the project a process of negotiation with the MEAA (a process which is itself the subject of ongoing debate and review). There may also be a triggering of higher pay rates when the performers come from the US industry. Marquee talent from overseas may also impact the budget in a way that means there is less QAPE for producer offset purposes than you might have originally had in mind.

Publicity and promotion arrangements should also be analysed. For feature films in particular, the expectations of distributors can be significant, and it is important to ensure that the relevant budget will accommodate required travel, accommodation, per diems, and the number of days expected – for cast not resident in a major city and with requirements for first class airfares and 5 star hotels, costs can quickly escalate. Similarly, for TV shows, how wide does the network's ask on publicity go? What if the talent has pre-existing sponsorships which might not sit easily with the program? How does the producer get transparency to ensure it can deliver where the network itself has engaged the key talent?

Merchandising and other extensions also need to be thought about. Template contracts typically contemplate materials connected with the promotion of the project. However, it may be worth looking to pre-agree arrangements with key talent as to the use of their image on products derived or otherwise connected with the program.

Finally, what happens if the performer or participant is incapacitated? Who is responsible for relevant insurances? What rights of termination does each party have? Where a TV network has taken over engagement of the talent, what rights does the producer have when the show is delayed or halted?

There are ways through each of these potential problems, and some excellent agents and wise producers are nutting out solutions that work for both parties. However, it is always better to be thinking about how to address these issues early on in the process.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Dan Pearce
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