Some learning from an example case to assist other performers
by
Introduction
I've developed this page with the intention that others - performers, advertising producers and agencies as well as advertisers themselves - benefit from our experience. Cape Town is a location used by the global film industry, which in turn plays an important role in the development of our local economy. As soon as I published this page I informed the CEO of Saatchi in Germany (I also contacted a few Saatchi people in New York). Although I haven't yet received a response from them, I have received a surprisingly aggressive lawyers letter initiated by the film producer. There are a few documents linked at the bottom of this page, and please email me if you want any more detail, I'll be glad to share anything on this story. Whilst I have been told that the way we have been treated is common, I have only had one experience and this is our story. My daughter was two years and two months old when she was identified by her playgroup teacher as a child that may have what was required to appear on TV. The playgroup teacher was approached by someone hired by a TV production company to assist with this casting process.After two auditions my wife was told that my daughter was selected as a potential candidate for the role. She was verbally instructed to appear the next day for the first day of filming and a per day fee was mentioned. It was also mentioned that the advertising agency was Saatchi and Saatchi, the ad campaign was for the Procter and Gamble - Pampers brand - Easy Ups product and - if successful - the work would include performing for film cameras and still cameras for what may take three or more days.
I am now aware that my daughter was identified as a potential performer through
what is called in the industry as 'street casting'. Using this method of identifying
performers the producer gets to bypass the fees traditionally added to the
costs of production by a casting agent. At the time I had no idea of what
should be done to protect my daughters rights as a performer. Due to the prominent
names of the manufacturer, product and advertising agency we expected a level
of professionalism and did not pursue the matter.
Subsequent to being informed that my daughter was the chosen performer - and within a week we were informed that she would appear on TV across Scandinavia within the following week - I realised that a contract should be in place. Since there was no contract in place we immediately began to empower ourselves with knowledge of how to protect our rights. Here are some of the lessons we've learned..
Lessons
Without going into too much detail the following are some of the issues that I have identified regarding the protection of performers rights:
- Finalise a contract up front:
The entire ad was filmed with two children of similar age and look. Two weeks after the filming of the ad we were told that our daughter was the one that was selected for final production. Less than a week after that we were told that the ad was being aired in Scandinavia four days later. At this point I identified through friends in the industry that we needed a contract. Subsequent to my questioning the production company on this, we were told that the airing of the ad was delayed. We entered into discussions with the producer who was acting as the 'facilitator'. They were now the only people we could deal with since Saatchi people were based in Germany and the Procter and Gamble people were no longer contactable. After lengthy discussions we came to an agreement based on what we identified were set as the standard by the National Association of Model Agencies (NAMA). Due to the problems we had experienced with the lack of fair communications we ensured additional clauses were added to ensure that in the future we would receive ALL communications with respect to any usage of my daughter.Lesson: View the contract with caution, it's there to protect BOTH parties and to make expectations clear. Make yourself aware of what standard contracts contain. Besides the important financial issues also be aware of your rights to obtain information regarding any usage that may or may not be made of you. Since you have no control over access to information (details of usage and hi-resolution copies of product), make sure the onus is on those that do have access to the information to provide it to you. The producer is usually disconnected from the client so make sure the practitioner is the client or the agency, the producer is usually seen as the 'facilitator'.
- Watch for misrepresentation:
Whilst we managed to sign the contract for the filming we were always told by the film producer that they were not handling anything to do with the stills. Since we had no way of contacting the other party to the contract - also referred to as the practitioner (in this case Saatchi and Saatchi) - we could only pass messages to them via the facilitator (film producer). Finally we were told by the film producer that we must contact the stills producer to complete the contract for the stills. On doing this, the stills producer had told us that they had sent the contract to the film producer, prior to any work done since the film producer had represented themselves as our agent (since they had done a street casting). Subsequent to us finding this out, it took two more weeks for the film producer to assist us with finalising the stills contract. Further they continued to make substantial time consuming efforts to exclude many of the communications items that they knew we insisted to be included in the contract, as well as ways of avoiding standard usage fees.Lesson: In our experience we did not have or use an agent. I suspect that an agent would know all these lessons so if you are using one, quiz them on this. Be careful when contracting with your agent as they may not apply this level of rigour in dealing with the 'practitioner'.
- Don't sit back:
We had contracted that the following key communications issues were on the onus of the agency (i.e. they had to deliver and we did not have to consistently make repeated requests). These are not standard items in the contract but we added them as we felt very uncomfortable about the lack of communications we received:- Provide high resolution copies of the work that was selected
- Communicate when the material was used be (all times and dates), where (all media),
None of this information - which we felt is pertinent to performers and well within their rights - was forthcoming. After the due dates had passed we communicated that the agency was in breach of contract. This was met with little reaction and some efforts were made to appease us. Only after repeated efforts, the only successful communications were achieved when the facilitators (and agency executives) were disintermediated. We still have not received the times and dates of when my daughters ad was used. We have learned that this information is available at no additional cost to most agencies (of substance) via their subscriptions to media monitoring services (e.g. Telmar). We are still following this up.
Lesson: Be proactive and insist on protecting your rights. Unless you waived these rights in the contracting stage, international law allows you the right to know (exactly) when and how you have been used in any media. I believe that many performers feel this may have a negative impact on future career opportunities, I am personally convinced that all professionals will respect you more for standing up for your rights.
- Even if you are not selected keep the information channels open:
If you have included obligations for any producer to provide you with some feedback of what images or film was taken of you then you still have the right to access some of this material. The producers will most often need to provide some of this material to the successful performer so they can certainly provide some feedback to you. As an example, after many escalations we were sent three beautiful high-quality prints of stills taken, two of the three were of the 'other' performer. When we contacted them (the guardians of the other performer), they told us that they had received no contact from the facilitator subsequent to being informed that their daughter was not selected for usage in any of the media. They were very pleased to see and receive copies of the product we gave to them.Lesson: You have the right to access information and even if you are not used, I believe that still allows you to receive some copies of any original materials made with your contribution. It is important to keep this in mind before you start (i.e. don't waive these rights in your contract) and all the lessons mentioned above still apply.
Escalations
In South Africa the National Association of Model
Agencies (NAMA) is established to assist in the development of
performers rights. They have a standard contract as well as terms and
conditions as well as a standard rate for all licensed usage of
performers work.
For more information you may want to try to contact Paula, 021 433 0300 or
namaoffice at iafrica.com (unfortunately she never replied to any of my emails, even after she confirmed telephonically that she would)
Please do not have any expectations that these people or organisations are looking after your interests. You must be prepared.
Last update and final outcome updated 20 January 2005
A couple days ago (18 Jan 2005) I heard from the facilitator; "it is my pleasure to hereby inform you that the client has purchased the buyout Option D for In-store - Scandinavia for 1 year at 75% as per contract. The commercial will be shown in Denmark in a chain of stores as from 24.01.2005 until 31.03.2005."
It so happened that a Mozambiquan colleague - who lives in Sweden - was in the room with me when I received this. I showed him a copy of the TV ad and he confirmed that most Swedish TV watchers (and he didn't consider himself as one) are very familiar with the ad. Furthermore, he viewed the ad on TV in Sweden in December (last month). This new info is directly conflicting with the statement received from the facilitators lawyer sent on Aug 27 2004 stating;"We further wish to confirm that the television commercial in question has now been discontinued and the geography of the said usage, together with the type of media utilised and the period of flighting were specifically conveyed to you by representatives of our client"As an outcome of this web site, I've received a few of emails of support from other performers (thanks Derra St. Denis, please email me if you are another), it appears that all the film producers think that performers want too much. Appears that they only think of more money. When it's NOT a case of money, they don't know what to say. I'm aware that my daughter got paid a standard rate and we never excercised any pressure on monetary issues. We just wanted what was standard and to get the information pertaining to her usage. At no point have we been given any information. We had to discover everything on our own. Now that I have discovered, I am pleased to hear that my daughters face is known across Scandinavia, and I know that it's our right to know how many times her ad has been flighted. Can anyone explain to me why Saatchi and Saatchi can't have the decency to log into their media monitoring service, get the figures and send them onto us (as per what they have contracted to do)? Why does the National Association of Model Agencies (NAMA) not respond to numerous requests? If this is how film producers (and the representative of performer agencies) operate, how can we expect to grow the industry in Cape Town?
Conclusions
During my experience I did many Internet searches for others experiences in this regard. Since I hardly found any advice on how to protect our rights, I have decided to publish this information and escalate the issues as far as possible. I do hope that this is useful for you and honestly hope that it can assist to ensure more responsible service providers and assist to further the development of the Cape Town film industry (some names have been removed to protect privacy).
Unfortunately we were not succesful in getting the information that we wanted and as an outcome we've decided not to perform commercially any more. Good luck to you all and I do hope this website helps.
Sample Contracts and NAMAs standard terms and conditions
- International Performer's Agreement - standard terms & conditions for on-camera performance
- Usage Tables: 2003/2004, showing the standard remuneration - all based as percentage of 'base price'. I am lead to believe that the base price varies vastly by level of skill and experience of the performer.
"Saatchi and Saatchi", "Procter and Gamble", "Pampers" and "Easy Ups" are
registered trademarks of their respective owners. This work is licensed under a Creative Commons License. Previous version of this page, Oct 2005, and Nov 2005. Please send any feedback or comments to