Monday, March 28, 2016

Quickies: Research Help Needed

     Just in case you were in any doubt, I’m not a lawyer. Just now, I could use the help of someone more knowledgeable about entertainment law than I.

     My questions involve the following scenario. An actress has signed a contract to appear in a movie whose production has not yet begun. The contract to appear includes, at her request, a no-nudity clause: that is, any requirement that she bare her body for the camera will void the contract and cause the producers to forfeit a large payment to her.

     At some later point, the producers, director, and scriptwriter decide that they want a nude scene for that actress’s character. The no-nudity clause stands in their way, and it appears to be airtight. So they hire a “body double” to play that scene, trusting to CGI to make the necessary adjustments to the double’s face. Production begins.

     Question 1: If the actress is notified beforehand of the insertion of the nude scene and the body double, does she have legal recourse against the producers? That is: can she claim that the movie imputes public nudity to her, violating the implications of her contract, and force a halt to the production unless the nude scene is removed?

     Question 2: If the actress is not notified, and the production is completed before she learns about the nude scene, does she have legal recourse then?

  • 2a: Can she get an injunction against the showing of the movie?
  • 2b: If the movie has already been shown to a public audience, can she win a penalty against the producers for the damage to her reputation?

     Question 3: Alter the original scenario: Imagine that the production has already begun, and the nude scene has already been shot with a suitable body double, before our hypothetical actress with her no-nudity restriction is contracted to appear in it. Would that change the answers to the questions above?

     Any help from knowledgeable Gentle Readers would be greatly appreciated, especially if it includes references to relevant cases that have actually been litigated rather than settled.


pdwalker said...

IANAL, but a lot will depend on what the no-nudity clause actually is. It will be hard to get an answer without knowing what the actual clause is.

Cordolf said...

Not to give a terribly lawyerly answer, but "it depends".

(Full disclosure - I AM a lawyer, but I've only touched on entertainment issues rarely. I mostly do intellectual property and software issues. These comments are provided 'for entertainment purposes only'.)

Mostly, it depends on what the specific wording in the contract is.

While there are some standard clauses that are common in 'union' actor's contracts (SAG has had one for a while, and it's starting to show up in TV acting contracts as well in these modern times), the actors are always free to request modifications, and if the studio agrees, then the final wording is what matters most.

Regarding question 1 - most likely the actress will have good grounds that the studio breached the agreement. Hiring a body-double to change a non-nude performance into a nude performance generally goes against the standard wording in the "nudity rider" which requires affirmative consent to specific nude or semi-nude aspects of the performance. On the other hand, if the actress agreed to a nude scene, it wasn't filmed as a nude scene, and then the studio makes it into a nude scene with a body-double or post-wrap effects, then it is likely that the actress has no recourse, since consent was given.

The specific question of whether or not they can 'force a halt to the production' is a separate question, and is more complicated. She stands a decent chance of getting an injunction against distribution with the faked-nude performance included. She has probably no ability to stop actual release of the film or continued production, especially since whether or not the 'nude' scene is part of the final cut is uncertain until very late in the process.

She is probably entitled to damages (if such were specified in her contract), and can possibly be entitled to stop performing any further obligations of her contract (publicity, etc.), depending on whether or not appropriate severability clauses were included.

And if the studio violated the injunction order, there would still be not much the actress could do until after the actual release of inappropriate material was made.

Cordolf said...

2, generally: Same as 1, really. There's no actual breach until production is complete or the film is released, generally. If the actress had additional clauses like script or final cut approval, either generally, or for this particular scene, then there would be an additional breach that was created, which could cause an additional cause of action, but otherwise, it's the same as situation #1.

2a: Injunction against showing is a tough question. I don't know of any such cases, and would expect that usually just money damages would be awarded. It would have to be a very strongly worded clause that included some very specific rights of the actress to the final product that would allow for such an injunction. Most actresses don't command such power, and most studios would not agree to such a clause, certainly not in a broad grant.

2b: Damage to reputation is a possible cause of action, but it's going to be an uphill fight in most jurisdictions. It is entirely separate from any cause of action under a breach of contract theory, although the fact that the damaging activity was not consented to can be better established by the fact that the contract as signed attempted to prohibit the activity.

Unfortunately, the standards for damaging publicity or defamation type lawsuits are pretty tough to meet for public figures. Factors that would go into consideration would be whether the actress has EVER done any similar nude work in any medium; whether such material is already available (from other sources or work) even without the actress' permission (for instance, similarly revealing paparazzi shots would actually count against her, since any damage to reputation might already exist); whether she clearly expressed her desire to not merely not film a nude scene, but not to be portrayed as nude (the standard nudity-riders are actually pretty good about this); and whether or not prevailing community standards would consider this to be damaging or not.

That last factor can be a killer. If the prevailing standard is that the perceived nudity was not reputationally damaging, the actresses personal feelings are unlikely to be considered, since reputation comes from the community, not from the individual's personal sense of propriety.

You could also try a lawsuit for "intentional infliction of emotional distress", which has a different standard, but here the fact that an intentional breach of the actress' contract by the studio led to her distress is going to be easier to prove. You're still unlikely to get an injunction, but you've got a better shot than on the pure damage to reputation premise for defamation.

(Historical note - in the 'old days', one of the few per se causes for defamation was for imputing a lack of chastity to a woman. I do not think that this would get you far in Hollywood today.)

Cordolf said...

Question 3 is an interesting twist. Wording is going to get VERY important in this one, but generally, this means that a further bad act can be attributed to the studio if they sign a contract that they are in breach of (knowingly) at the time of signing. The argument that the contract was signed in bad faith can now be made, which is likely to give more leverage to the actress, since she was effectively induced by false promises to undertake something that she specifically was requiring the studio not to do.

Fewer cases on this than you'd think - I couldn't find a single recent one that was really on these points.

Some general guidelines can be found at:

See section 43 of the standard SAG agreement:

Googling for "nudity-rider" cases is a good approach.

And here's an entertainment's lawyer answer to a related hypothetical:

Francis W. Porretto said...

Cordolf, that was most helpful. The part about "community standards" is particularly important, considering the wide availability of nudity and explicit sex acts in all the visual media today. Many thanks!

Col. B. Bunny said...

If the studio used CGI magic to change a different actor's actions to look like the actor with the "no nudity required of me" clause, the studio would not be liable for breach of contract.

If the clause were "no nudity in my role" the actress would have a stronger case. Technology expands capability so as a practical matter aware lawyers will know how to draft future contracts.

With the first clause, the actress might have a separate "false light" claim where the studio portrayed her in a false or misleading light.

The remedy in contract actions is monetary damages not equitable relief (injunction, specific performance) unless the subject matter of the contract is unique, such as real estate or the family Bible.

Defamation has the higher standard for public figures. However, the studio's not saying that the actress is the one in the nude scene but a fictional character. Is the movie a false statement about the actress herself? That's a bit slippery and I'd have to know more about defamation to say anything useful.

Injunctions are not normally a remedy in defamation actions. BUT . . . that internet thing might be changing that rule.

Having a pre-existing scene "in the can" before inking the contract with the actress (without disclosure) goes to "bad faith." Helpful to a public figure if there is defamation.