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:
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.