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Leuthold v CBC: “Industry Practice” in Interpreting Contracts

When, if ever, can “industry practice” be used in interpreting contracts? That question is of particular relevance in the entertainment industries, as each facet of those industries (such as film, TV, music, book publishing, videogames, etc.) has their own jargon, standards and conventions, some of which are, if not contradictory, at least not obviously compatible (as an example, the term “publishing” has very different connotations as between the “worlds” of music, book publishing and film). If the parties to a contract come to the contract from different “worlds”, and they have different understandings of what a term in a contract means, whose understanding should prevail?

A couple of years ago, in a post entitled Leuthold v CBC: Damages for Copyright Infringement, I noted the Federal Court decision in Leuthold v CBC (2012 FC 748). As the title of that post indicated, the post focused on how the court in that case calculated the damages payable for copyright infringement when the CBC made unauthorized use of photographs in a documentary. I wrote at the time that the “decision goes into great detail about the various negotiations and conflicting understandings of the parties – potentially interesting in their own right but of limited application beyond the bounds of these particular disputants.” I think I got that wrong, and I’d like to re-visit the case now with particular reference to the issue of industry standards. A couple of weeks ago the Federal Court of Appeal released its decision in the appeal of the matter (2014 FCA 173) (spoiler alert: the CBC won again), and in reading the decision of the appeals court, I was struck by the fact that a portion of the decision seems to turn in large part on how to handle “industry practice” when interpreting contracts.

To refresh our memories, here are the relevant facts in the case (taken from the 2012 post):

The CBC commissioned a documentary entitled As the Towers Fell, about the September 11, 2001 terrorist attacks on New York City’s World Trade Center. Four different versions of the documentary were aired multiple times on the CBC main network and on the CBC Newsworld channel (since re-branded as CBC News Network). In most of the versions which were aired, still photographs which had been taken by and which were owned by the plaintiff appeared on-screen for a total of 18 seconds. Efforts had been made by CBC employees to “clear” (i.e., obtain permission to use) the photographs in the documentary – which is where the dispute arose.  The plaintiff originally faxed a short letter indicating authorization to use the photos – but the parties disagreed on the scope of the authorization and whether any conditions attached to it.  Eventually, following further discussions between the plaintiff and various CBC representatives, a license agreement was signed by the plaintiff.  Critically, the documentary had been broadcast on a number of occasions throughout the discussion/negotiation process (including at least one broadcast which occurred before the first faxed authorization had been received from the plaintiff).  Of relevance to the plaintiff’s position, the broadcasts took place on both the CBC main network and the Newsworld channel and was broadcast in all Canadian time zones, at the applicable local time, directly by the CBC or through affiliated stations.

Thus far, here is the nub of the case: a photographer gave authorization to the CBC to make use of her photographs in a documentary – but when the CBC broadcast the documentary on its “main” network and also on the CBC”s “Newsworld” channel, they did so in a way which did not accord with the photographer’s understanding of the scope of authorization she had given. Here is the relevant language of the license agreement:

[Plaintiff] hereby grants to CBC the non-exclusive and limited right to incorporate the Stills in the Production. CBC shall have the right (but not the obligation) to broadcast the Stills on Canadian television for one broadcast on CBC’s Network & Regional TV stations. [emphasis added]

The evidence at trial indicated that the plaintiff/photographer did not know about CBC’s Newsworld channel, and did not think that her license entitled the CBC to broadcast the documentary (containing her photographs) on the Newsworld channel. The CBC, by contrast, did think that the words “CBC’s Network & Regional TV stations” included both the CBC’s “main” channel and the Newsworld channel. How to resolve this disconnect?

The trial court decided in favour of the CBC, and provided the following reasons:

  1. “when clearing rights, the CBC always included Newsworld”
  2. the plaintiff’s expert evidence (to the effect that for purposes of the CRTC’s regulatory regime, Newsworld was indeed a separate “network” from the CBC’s main channel) was irrelevant because it spoke to regulatory matters, not copyright matters
  3. “industry usage clearly favors the defendants” and ”in considering what is commercially sensible, the Court cannot accept Miss Leuthold’s interpretation whereby the CBC would have agreed to terms that ran against their normal usage, that is to exclude Newsworld and affiliated stations”
  4. the contra proferentum rule of contractual interpretation (roughly, that ambiguous wording in a contract should be construed against the party that drafted it) did not apply because there was no need to apply it

Taken together, those four points really distill down to two points – we can discard 2 and 4 because they are negative arguments for not accepting the plaintiff’s position, not positive arguments for why we should accept the defendant’s position. Points 1 and 3 really boil down to something which is quite a bit different than “industry practice”: instead, 1 and 3 are effectively “the CBC normally conducts itself in a certain way, and how the CBC ‘normally’ conducts its business should be determinative when there is a dispute between CBC and another party over how to interpret the CBC’s contracts”. Really, “industry practice” in this decision meant “CBC practice” (although the court used the phrase “industry usage” in point 3, the court did not identify any producer or broadcaster other than the CBC who made use of language in a similar fashion).

The Court of Appeal affirmed the decision of the trial judge, but not because the trial judge was correct on this point: rather, the Court of Appeal declined to overturn the lower court’s conclusion because it was not a “palpable and overriding error” – rather, the trial judge’s decision, even if wrong, was “reasonably open to him” based on the evidence before him.

If we are to take the Leuthold decision at face value, then, it’s not necessarily the practice of the “industry” which can be determinative in a contract dispute, but rather the past practices of one of the contracting parties which can be determinative. In Leuthold, because the CBC was of the view that the phrase “CBC’s Network & Regional TV stations” included the CBC main network plus Newsworld, and because, in other situations, the CBC had always taken pains to “clear” materials for use on both the CBC main network and Newsworld (though it had not done so here) that was sufficient – irrespective of what the other party to the contract thought she was agreeing to and irrespective of the fact that the point was clearly an open one given the ambiguity of the contract’s wording.

So what is the importance of all of this? It means that it is much riskier to enter into short-form contracts in the entertainment industries which contain “terms of art” or terms which carry some kind of “industry accepted” meaning. It is critical that terms in contracts either be defined with specificity or, failing that, be illustrated with examples; failure to do so could mean that one party to the contract will be subject to the greater contractual interpretational “weight” accorded to the practices of the “institutional” party. Here’s an example: a film producer and a distributor enter into a distribution agreement under which the producer grants the distributor the exclusive right to distribute the producer’s file “by means of home video and the internet”. The producer thinks that means  that the producer has retained the rights to exploit the film by means of, for example, digital downloads on iTunes and by means of streaming via Netflix. The distributor thinks otherwise. Who wins in a dispute? On the basis of Leuthold, it seems that the controlling factor may be what the distributor has done in the past – has the distributor historically conducted its business such that in contracts with that wording (or similar wording!) it has exploited the films on iTunes and Netflix? That might be all that is required – it doesn’t appear that anything more than that decided the point in Leuthold.

In short: resist short-hand in contract drafting; insist on specificity when describing the scope of rights which have been granted; avoid ambiguity or assurances that “everyone knows what this means”; otherwise, contracting parties may find themselves giving up much more than they (thought they) bargained for.

Leuthold v CBC: “Industry Practice” in Interpreting Contracts

Take Notice! Notice-and-Notice Coming Into Force in January 2015

On June 17, 2014, the Canadian government announced that the “notice-and-notice” provisions contained in the Copyright Act (Canada) will be coming into force in January 2015. (The precise date they will come into effect is still a bit uncertain: the government’s “Backgrounder” on the topic says “The Notice and Notice regime will come into force six months following publication of the Order in Council. The Copyright Modernization Act will be fully in force by January 2015″. As of the writing of this post, the Order in Council does not appear to have been published yet – so long as it is published before July 1, 2014, the government will be able to meet the deadline of the provisions coming into force by the end of January 2015.

The “notice-and-notice” mechanism is contained in  Sections 41.25 – 41.27 of the Copyright Act (Canada) and creates a process by which copyright owners can send a notice of claimed copyright infringement to online service providers (such as ISPs, site hosting services and search engine providers). When a recipient receives a notice of infringement, the recipient must “as soon as feasible forward the notice electronically to the person to whom the electronic location identified by the location data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it” and must also retain records for specified periods of time to enable the sender of the notice to identify the ultimate recipient of the notice (i.e., to enable the copyright owner to identify the service user who uploaded the purportedly infringing content). Online service providers will still retain the discretion to remove purportedly infringing content, but the Copyright Act will not require them to do so.

The “notice-and-notice” regime is the last of the major elements of the Copyright Modernization Act (once known as Bill C-11) to come into force – most of the other provisions of the CMA came into force in November 2012. The coming into force of the “notice-and-notice” provisions had been delayed pending consultations with stakeholders which most people thought would lead to the implementation of regulations which would accompany the statutory provisions. However, according to the government Backgrounder, the government has “determin[ed] that the Act provides sufficient flexibility for the regime to function without regulations”.

The lack of regulations has two consequences:

  • online service providers are not allowed to charge a fee to copyright owners for “passing along” the notice
  • there is no prescribed form for delivering a notice of claimed infringement – however, any such notice must still contain the elements set out in Section 41.25(2)

Failure to abide by the obligations imposed in the “notice-and-notice” regime (i.e., failing to pass along a notice or explaining why they were unable to do so or failure to maintain the requisite records) can result in liability for statutory damages between $5,000 – $10,000 (as set out in new Section 41.26(3)).

One other element of the “notice-and-notice” regime merits attention: how it treats providers of “information location tools” (what most of us would call “search engines”). Section 41.27 says that an injunction is the only remedy which a copyright owner has against a search engine (subject to certain conditions set out in Sections 41.27(2) and (4)); however, the search engine provider must remove any cached copies of the infringing work within 30 days of receiving the notice of claimed infringement – any copies which remain after 30 days can give rise to a claim for monetary damages.

Take Notice! Notice-and-Notice Coming Into Force in January 2015

Towards Certainty on Webcasting – Re:Sound Tariff 8 Certified

We inch closer to certainty regarding what royalty rates are payable in Canada by online webcasting services such as Pandora, Songza and Last.fm.

On May 16, 2014, the Copyright Board of Canada released Re:Sound Tariff 8, applicable to non-interactive and semi-interactive webcasts for the years 2009-2012. Re:Sound is a collective which collects “equitable remuneration” payable to performers and the owners of sound recordings for the public performance or telecommunication to the public of sound recordings on which performances of musical works are embodied.

The Board released the tariff itself, a 227-paragraph decision, and a plain English “fact sheet”.

Before setting out the rates themselves, a few notes:

  • as the Board describes in para. 7 of its decision, streaming music over the internet can involve “as many as six rights or sets of rights”; which is to say: this is complicated stuff, and should not be navigated without the assistance of someone with a solid understanding of the various rights at play, who owns/administers those rights and what the current state-of-play is with respect to the various proposed and certified Copyright Board tariffs which might apply
  • Re:Sound Tariff 8 covers only “equitable remuneration to which performers and makers are entitled when a published sound recording of a musical work is communicated to the public by telecommunication”; which means that…
  • Re:Sound Tariff 8 does not cover “the right to communicate a musical work to the public by telecommunication; the right to reproduce a musical work; the right to reproduce a sound recording; the right to reproduce any reproduction of an authorized fixation of a performer’s performance for a purpose other than that for which the authorization was given; the rights granted, on November 7, 2012, to Canadian performers and makers over the communication resulting from making available a sound recording to the public”; all of those rights might (or might not!) be the subject of a different tariff which might (or might not!) be in some stage of proposal, discussion, certification, appeal, etc.; tread carefully!
  • as much grief as I sometimes give the Copyright Board, the reasons for the decision actually make for some interesting reading (well, relatively speaking, of course – I’m sure you’ve got better things to do with your time, but I don’t)

Without further ado, the rates payable to Re:Sound by non-interactive and semi-interactive webcasters, set for 2009-2012 by Re:Sound Tariff 8:

Licensee Rate Minimum Fee
CBC 13.1¢ per 1,000 plays $100 per year
Commercial webcaster 10.2¢ per 1,000 plays $100 per year
Community/non-commercial webcaster N/A $25 per year

 

Two additional points to consider, both taken from the Board’s “fact sheet”:

  • “In the United States, for 2012, the rate that webcasters must pay for the same rights when their sole business is webcasting is $1.10 per thousand plays” – so, basically, the Canadian rate, “for the same rights” is roughly 10% of the US rate; make of that what you will. The Board spends a fair amount of time in its decision (see paras. 119ff) explaining why the Board arrived at a such a strikingly different rate as compared to the US rate.
  • the Board’s “fact sheet” contains a very interesting table (see question 7 in the “fact sheet”) which sets out how much the Board anticipates certain users will pay under the certified tariff; most noteworthy: the Board’s estimate is that Pandora, classified as a “very large webcaster”, with 3 billion plays per year, would pay around $306,000 per year to Re:Sound under Tariff 8 as certified, and the Board estimates that a “very large webcaster” would reap annual revenues of $5.8 million – so a little over 5% of annual revenues would be payable to Re:Sound; again, note that Tariff 8 covers only a subset of all the rights which Pandora would need to clear

 

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Towards Certainty on Webcasting – Re:Sound Tariff 8 Certified

The Challenge of the Unlocatable Copyright Owner – The Return

A few years back this blog published a couple of brief posts (The Challenge of the Unlocatable Copyright Owner; and The Challenge of the Unlocatable Copyright Owner – Now Empirically Verified) about the Copyright Board of Canada’s “unlocatable owner” licensing mechanism (sometimes referred to as the “orphan works” mechanism). In brief, the Copyright Board administers a licensing mechanism for use in those situations where someone desperately wants to make use of a copyrighted work but, despite their diligent efforts, has been unable to identify, locate or make contact with the relevant copyright owner; Section 77 of the Copyright Act (Canada) empowers the Board to issue non-exclusive licenses when an application is made to the Board. The Board itself has published a helpful guide to the process, and also makes available its written decisions where licenses have been granted and where the request for a license has been denied. In 2009, the Board released a study it had commissioned, written by Jeremy de Beer and Mario Bouchard, which provided some detailed empirical information about who submits applications and in what circumstances and the outcomes of those applications (Canada’s “Orphan Works” Regime: Unlocatable Copyright Owners and the Copyright Board).

I write about the unlocatable owner mechanism now because the issue has recently been revivified among Canadian copyright law as a result of the following posts, presented in chronological order, which those interested in the topic should read:

Finished reading them? Good. The posts do a fine job of setting out the various arguments in favour of and opposed to the unlocatable owners mechanism, and I’m not going to re-hash them here, since those arguments have been ably advanced by folks quite a bit smarter than me. Instead, I’d like to provide some additional colour to the discussion by describing in practical terms how, based on my experience with them as clients, some of the most likely users of the mechanism, producers of documentary films, view and have interacted with the mechanism.

Spoiler: producers are generally not aware of the mechanism and when asked if they would make use of it they express the view that it seems cumbersome and that they are unlikely to want to make use of it in a situation where they cannot locate the owner of a copyrighted work they want to make use of in their production. This observation seems borne out by the number of licenses issued by the Copyright Board: in the more than twenty years since the unlocatable owner mechanism was first implemented in 1990, less than three hundred licenses have been issued (with the Board only declining to issue a license in the case of eight applications).

In more than a decade of practicing entertainment law and advising film and TV documentary producers, I have never been involved with a project where the producer has made use of the unlocatable owners mechanism. A brief query of some of my colleagues in the offices next to me indicates that their story is similar – they also can’t recall being involved in any such license applications. In itself, that’s simply anecdotal evidence, and I can’t claim that I’ve worked on an inordinate number of documentaries  - but I’ve done my share, and I think it’s indicative of something that a significant subset of one of the largest groupings of entertainment lawyers in the country can’t recall ever dealing with the unlocatable owner mechanism. Why is that? Here are some thoughts:

  • Lack of Awareness. I would venture (again, based solely on anecdotal evidence), that a preponderance of producers are not aware that the Copyright Board’s unlocatable owner mechanism even exists. Certainly no producer I’ve ever spoken with has, unprompted, raised the mechanism to me. Production counsel I’ve spoken to are generally aware of the mechanism, but presumably through a lack of familiarity with it, concede that they rarely raise it with their clients as something which should be considered when they are having difficulty finding the owner or administrator of rights in a work.
  • Lack of Time. Given the realities of the schedules on which many audio-visual projects are created (schedules which are generally measured in weeks or months, with delivery deadlines looming in the face of an incredibly complicated set of tasks to be accomplished in a compressed period of time), the Copyright Board mechanism is viewed as taking too long to obtain a license. The production process does not involve a single activity which can be mapped linearly – rather, it involves a number of different activities occurring contemporaneously, just one strand of which is the “clearance” process for identifying the source of a work and trying to obtain permission for its inclusion in the project. By the time a producer is confident that an owner is unlocatable, the project is often so far advanced that the “orphaned” work has already been incorporated into the work (and it would cost time and money to remove the work from the project). As indicated by the de Beer/Bouchard report, in cases where a final decision was made by the Board in response to an application, about half of the applications took more than eight weeks for a decision to be made, and nearly a quarter of applications awaited a final decision more than sixteen weeks after application (see Figures 4-8 in the de Beer/Bouchard report). The prospect of waiting an average of two months for a decision is unpalatable for many producers, since it functionally means that there could be a significant delay in completion of the project, which would result in the producer breaching its delivery obligations under its distribution agreements.
  • License Deficiencies – Lack of Territorial Scope. The Copyright Board issues licenses which are territorially limited to Canada – it is a rare project which is intended solely for exploitation in Canada, and so producers might be reluctant to go through the licensing process only to be told that the license provides “protection” to them only for Canada, leaving them at least theoretically open to an infringement claim in other territories around the world. A worldwide license would be much more attractive to producers (though of course that would like be beyond the power of the Copyright Board to issue).
  • License Deficiencies – “Fiddlyness”. In general, the issuance of a license by the Board is not the end of the matter for a producer: where the license calls for the payment of a license fee to a collective, the license is often expressly conditional on the collective who is supposed to receive the fee filing a separate acknowledgement with the Board confirming that the collective will comply with the conditions of the license. So, possibly even more delays and uncertainty.
  • Risk Analysis – Practical. Some producers will take the view that if they’ve had trouble finding the owner, odds are that the owner (a) is no longer alive and the heirs are unlikely to care, (b) is alive but doesn’t particularly care about the work and/or (c) is alive but is unlikely to find out that their work was used without permission – so why bother getting a license from the Board?
  • Risk Analysis – Legal. In my experience it’s relatively rare for a proposed unlicensed use by a producer to be obviously and clearly an infringing use. In a large number of instances where an “orphaned” work is being contemplated for use, a cogent argument can be made that the proposed use either does not constitute a “substantial part” of a work or otherwise qualifies as fair dealing; and many producers, coupled with the “practical” risk analysis above, a “cogent argument” is enough for them to move forward with.
  • Most Copyright-Protected Works are Licensed or Otherwise “Cleared”. Bottom line: most producers never make use of the unlocatable owner mechanism because they never need to – they are able to find the owner of the work they want to use and obtain a license. Truly “orphan” works are, in my experience, relatively rare, and most often consist of photographs, a type of work whose use, to circle back to the prior bullet-point, can often be incorporated into a documentary in a way which satisfies the requirements of fair dealing (see, for example, the case of Fraser-Woodward Ltd v British Broadcasting Corporation Brighter Pictures Ltd [2005] EWHC 472 (Ch)).

In the end, the unlocatable owner mechanism is likely destined to be a rarely-used device  in the world of commercial documentary filmmaking for the reasons outlined above. The dynamics and pressures to which a producer is subject as a result of legal advice, errors and omissions (E&O) insurance clearance policies, production schedules, creative imperatives, reputational risk and legal liability mean that making use of truly “orphaned” works is often either going to be avoided or will be “swept under the rug” in the hopes of avoiding cost and delays.

On the same topic, I should highlight the Copyright Board’s decision in the Breakthrough Films application for an “unlocatable owner” license (Copyright Board file 2004-UO/TI-33), which illustrates some of the tensions outlined above. In the matter, Breakthrough sought a license for the use of eight excerpts from an autobiography, the excerpts to be used as off-screen narration in a documentary television series about the Second World War. The excerpts consisted of a total of 325 words from a 342-page book. Breakthrough applied for a license on October 26, 2004. The episode was first broadcast at some point in November or December 2004. The Board issued a license on May 10, 2005 (i.e., more than six months after the application was received, and more than four months after the episode had been broadcast). It took nearly another year (until March 2006) for the Board to issue its reasons for its decision. The Board was split, 3 members to 2, in favour of issuing a license to Breakthrough. To give an idea of how finely-calibrated these sorts of analyses can be, the Board split along two axes: the majority and minority not only disagreed on whether a “retroactive” license should be issued (the majority thought it should, the dissent thought it shouldn’t), they didn’t even agree on whether a license was required at all because they couldn’t agree on whether the amount copied (325 words from a 354-page book) constituted a “substantial part” of the original work. (Oddly enough, it was the dissenting decision, which otherwise adopted the harder line on copyright infringement and opposed granting a “retroactive” license, which thought that the amount copied was too small to amount to copyright infringement.)

The Challenge of the Unlocatable Copyright Owner – The Return

You Want Me to do WHAT?! The Nudity Rider in Film and TV Projects

When we have our monthly strategy meetings with our marketing consultants about how we can generate traffic for this blog, they usually furrow their brows and ask if we can’t make our topics a little “sexier” in order to attract eyeballs – well, this time, rather than writing about option agreements or copyright infringement, I’m going to follow the advice of the consultants and write about something guaranteed to raise our profile: so-called “nudity riders” to actor agreements. (I’m totally kidding by the way: our marketing consultants don’t think we should have “sexier” content; instead they usually say things like “can’t you write about things like securities law or mining deals, something that, y’know, might actually generate some revenue for the firm?”.)

The topic is not apropos of nothing, by the way: as Eriq Gardner at THR, Esq. has reported, a case in Los Angeles involving some Hollywood heavyweights (including Time Warner and HBO) turns on the “nudity rider” signed by an actress who subsequently refused to perform in the scene:

Two years ago, as “Anne G.,” she filed a complaint in Los Angeles Superior Court … claiming that she was bullied into performing nude scenes, sexually harassed and placed in a dangerous work environment. Now, two months before a scheduled trial, True Crime has filed an almost unbelievable cross-complaint alleging Greene breached the “Nudity Rider” she signed.

 
So… what’s a “nudity rider”?

Under the collective bargaining agreements pursuant to which most unionized actors work (in the case of English-speaking Canada, the ACTRA Independent Production Agreement, or “IPA”), scenes in a film or TV project which require nudity or simulated sex are subject to special treatment. The ACTRA IPA imposes certain heightened contracting and conduct requirements and restrictions on the producer of the project when they are dealing with scenes which involve nude or semi-nude performances. So, for example, Article A24 of the ACTRA IPA stipulates how auditions must be carried out (e.g., the audition must be closed, with a maximum of five persons present, each of whom is required to have a “direct professional or artistic relationship to” the audition, and a performer cannot be required to perform a nude or semi-nude audition more than one time for any production).

A “nudity rider” is a separate schedule or exhibit which is attached to a performer’s contract. Article A2402 of the ACTRA IPA sets out various elements relating to (semi-)nude scenes which are required to be contained in an actor’s contract; A2402(b) says that the actor’s contract must contain “as a rider” all of the provisions of Article A24. Although technically the “nudity rider” is only required to contain the provisions of Article A24, for ease of drafting and reference often all of the elements set out in A2042, and all of the matters relating generally to the scene in question, will be incorporated into the rider (rather than simply being built into the “body” of the actor’s contract). Article A24 requires that the actor’s contract contain the following:

  • the specific requirements, including but not limited to the exact nature of nude, semi-nude or love scenes of any kind, the maximum degree of nudity required, the nature of attire (e.g., see-through clothes) and any other relevant information pertaining to the scene that may reasonably be expected to give a full, true and complete disclose of the nature of the nudity required

A nudity rider will thus often contain narrative descriptions of the foregoing elements, and will attach an excerpt from the screenplay of the scene in question, so that there is no disagreement or dispute about what was contemplated for the performance.

In addition, Article A2403 of the IPA places certain restrictions on the latitude a producer has in dealing with a (semi-)nude scene:

  • the producer cannot permit still photography of the performance (except for “continuity” purposes) without the consent of the actor
  • clips or stills of the scene cannot be used in promotions or recaps without the consent of the actor
  • a “body double” cannot be used without the performer’s consent

Thus, nudity riders will often also include language which speaks to each of the foregoing items, whereby the performer either expressly refuses or provides the necessary consent (or imposes limitations or approval rights) with respect to the contemplated usage. (With respect to the last bullet, there is a bit of a wrinkle: a body double cannot be used to turn a clothed scene into a (semi-)nude scene without consent, but where a scene was originally performed in the (semi-)nude, a producer can use a body double where the performer gave “general consent” – since it’s not entirely clear what that means, it’s best to just get express consent in the rider.)

So, in addition to following the various requirements of Article A24 (such as providing the details of the scene to the performer at least 48 hours prior to the signing of the contract), a comprehensive “nudity rider” should contain the following:

  • the full text of Article A24, or a reference to A24 whereby it is “incorporated by reference” to the rider
  • a description of the “specific requirements” of the scene (such as the nature of the scene, the degree of nudity required, any attire to be worn, etc.)
  • confirmation that the performer has been provided with the screenplay and has read the scene requiring (semi-)nudity
  • a copy of an excerpt (which includes the scene) from the screenplay
  • explicit treatment of the various items requiring consent as set forth in Article A2403, such as the ability of the producer to use body doubles, restrictions on using footage in any context other than the final cut of the movie (e.g., no use in “outtakes”, no use in promotional materials, etc.)
  • any other items pertinent to how the scene will be shot (e.g., having a female member of the production crew available to provide a robe or other covering to a female performer between takes)

The ultimate goal of the nudity rider should be to address all possible issues which might arise out of what is, in the end, an incredibly sensitive matter for the performer. The ACTRA IPA provides the parameters or (pardon the pun) bare minimum requirements of the rider, but it should always be the subject of careful consideration and modification for the particular circumstances.

You Want Me to do WHAT?! The Nudity Rider in Film and TV Projects