February 21, 2006

Agents riled over new language in pilot talent deals

By Cynthia Littleton and Jesse Hiestand

LOS ANGELES (Hollywood Reporter) - It's a ritual of pilot
season: Talent representatives complain about ever-tougher
provisions in the standard studio contract offers to low-level
actors, writers and producers.

But this year, talent representatives are using
particularly harsh words to characterize some new boilerplate
language that sources say has been added to actor pilot-test
option agreements offered by most of Hollywood's major TV
production players.

The legalese that multiple sources at top talent agencies
and law firms described as new to the standard deal template
this year offered by top TV studios -- including but not
limited to Touchstone TV and Warner Bros. TV -- involves what
sources described as an effort to assert broad rights to use an
actor's likeness in character in a commercial spot or other
promotional vehicle.

There also are concerns about clauses involving rights to
extra material produced for new digital media platforms, from
cell-phone clip packages to iPod downloads. The practices vary
widely from studio to studio and often are vague on whether
actors are entitled to additional compensation for such
material or whether it falls under the category of promotional

But reps have long been bracing for a drawn-out battle to
carve out rights in the digital age. It's the commercial and
sponsorship issues that are of most immediate concern, rep
sources say.


The spread of branded entertainment and product-placement
deals in primetime has reps worried that their clients could
wind up appearing in TV commercials for a sponsor's product as
part of a larger deal between an advertiser and a studio or a

Industry sources at top studios strongly denied making a
concerted effort to seek new rights in the
commercial/promotional tie-in area. Sources scoffed at the
notion that Hollywood's majors would have any interest in
putting their stars in TV spots that didn't directly benefit
the show, as in a "Watch and Win" sweepstakes-style promotion.
Reps for Warner Bros. TV and Touchstone declined comment.

Nevertheless, there has been enough buzz about the language
amid the crunch of pilot-casting season during the past few
weeks that the Association of Television Agents, the industry
trade organization that represents Hollywood's major talent
agencies, last week sent out a memo alerting its membership to
the issue.

The memo included an earlier letter from the Screen Actors
Guild on the issue, which stated the guild's position that "no
performer may agree to reuse of photography in commercials at
the time of original employment" and that any commercial deals
for an actor should be a separate negotiation under SAG's
commercial contract rules. SAG's top brass are understood to be
studying the issue and might be preparing to take a stronger
stand on the matter, sources said late last week.


One partner at a talent agency that shepherds many rookie
actors described the situation as "horrendous." Actors who are
well established or sought after by producers have the clout to
renegotiate objectionable provisions from their contracts, but
most newcomers have no choice but to sign if they want a shot
at even testing for a part. Indeed, the concern among reps is
heightened because actors often have 24 hours or less to decide
whether to agree to the deal, without the benefit of much, if
any, negotiations between the producer and the actor's reps.

Industry observers note that the commercials issue reflects
the industry trend to bring in more revenue from top
advertisers to help offset ever-increasing production costs and
a tighter syndication marketplace. Some argue that these
branded entertainment deals can be a win-win situation because
the expanded promotional efforts -- whether done through
billboards and in-store promotional material or through e-mail
and Internet promotional campaigns -- can only help a series
gain vital exposure in a fragmented media landscape.

"If advertisers can get those rights, they'll do a
marketing campaign that can be worth millions," a top industry
lawyer said. "It requires the cooperation of the talent, who
must understand that that show might not otherwise get made."

Actor reps counter that the branded-integration boom has
raised issues of implied endorsements, even when actors are
appearing in their TV personas.

But the biggest concern remains one of dollars and cents.
"If your client is suddenly doing a TV commercial, they should
be paid for it," one veteran agent said.

Reuters/Hollywood Reporter