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"PERPETUITY"    
Reading Your Release  
by John Weyrick


This article appeared in Mar '99 of Focus In, reprinted with permission.
This issue directly involves actors doing television commercials

For this essay, last month I talked to hundreds of people via the internet, telephone, fax, and face to face. I will continue to address issues and encourage input for topics of interest to actors in Florida. Due to time constraints of my acting, auditions, and a day job, contact me by e-mail, jweyrick@cfl.rr.com

Making television commercials involves 4 groups of people. When a company decides to advertise, it hires a production company and technical people to make the commercial, we'll call this group the "advertiser". Advertisers hire a casting director to find talent. The casting director is paid by the advertiser, and calls a talent agency to send the appropriate actors as described by the advertiser. The agencies work for the actor and receive a commission from the monies paid for doing a commercial. The actors we'll call "talent".

Florida is a good place to start your acting career, but also a place to damage what could be a budding career. With a few basic acting classes to learn the slang, you can be out booking commercials that are seen all over the country, and seen here by many tourists. The exposure is wonderful! For many years we have been able to earn $300 for a days' work, and see ourselves on TV, call the folks back home and laugh all the way to the bank when the check finally comes. After a commercial or two, many of us join the Screen Actors Guild, the union that represents talent. Suddenly reality sets in, how many bridges did you burn? It has become painfully apparent for many of us, that we have been used, taken advantage of, while we thought we were on the road to success. 

Annie Kidwell, member of Screen Actor's Guild, consultant, and publisher of the Florida Actor's and Models Book, reviewed my original draft, and offered some insight, ..."advertisers look to Florida for..our sunny skies, theme parks and vacations, a variety of locations, good crews, and a cheap labor pool. That last one is not a nice thing to accept, but a reality nonetheless." Compared to many other places in the country, our talent makes less, works longer hours, and gives up more rights and chance for future income when they sign the agreement papers to participate in a commercial.

For some of those commercials, talent signed an agreement, called a release form that gave the advertiser the right to use all materials in any way they wanted for perpetuity. Webster's says: perpetuity, (n,) endless time: eternity. The release could be forever, and for every avenue of communication: radio, TV, print, billboard, video, industrial, internet, and even forms that haven't been invented yet. These types of releases are written by lawyers and cover all the bases. Consider the word perpetuity. In a wedding vow, it's only till death do you part; in perpetuity, after the original advertiser dies, the right to your image can be passed on to heirs.

Then when the big union deal appears, (that is, a national commercial that pays very desirable residuals each time it plays,) and asks if you have any conflicts with their product, you legally must tell them of what you have done in the past. For example, if you did a commercial for a theme park and signed a release allowing them to "buy out" your image without an ending date, then you cannot ethically do any other theme parks. If you are caught appearing in conflicting commercials you could be possibly be liable for large fines, and responsible for the cost of producing the commercial, which could be millions of dollars. Also, it would jeopardize your relationship for future auditions with the casting director, imagine what their client would say to them if they allowed talent to audition and perform when they had an outstanding conflict. Don't be suckered by a production company claiming that it does not matter to them how many or if you have prior conflicts or if you do future conflicts. Of course they won't care ...they already have the right to use your image forever. But, what about 3 years down the road and your career is going great, what will future clients say?

If it was a fast food company, then you can't do any other fast food companies, and it's the advertiser who decides how broad the category is to be considered a conflict. You might not think pizza conflicts with hamburger, but if the pizza company is owned by a competing conglomerate of companies to the hamburger, than you must decline the job. If you were so overwhelmed by being chosen to be in a commercial that you signed the release form for perpetuity, then you reduce the number of future job prospects. Do enough nonunion commercials, you have no ability to work in many categories in union commercials, and you have just worked yourself out of a career. Yes dear actor friend, there are many people among us here in Florida, that are in this dilemma.

In California and New York, unions are strong, and do not generally permit perpetuity. They limit advertisers to 13 week cycles, making actors eligible to get paid for all the time a commercial is used, with a maximum of two years. In our adjacent states, a non union commercial for a year might pay $800, while commercials shoot here for the same $300 that was paid 10 years ago, then demand perpetuity. While bringing production to the state is a worthy goal, are we selling ourselves out too cheaply to make Florida an inexpensive location? The talent can negotiate for a one year buyout, meaning that there is a finite cutoff point to which the advertiser must stop using the commercial, or pay you again. Some agents have asked the advertisers to allow them to review the contract before the talent auditions. This would prevent misunderstandings on the set, which no one wants.

The casting directors who audition the talent do not set the policy of the advertisers who hire them to compile tapes of talent, in some cases they might influence the advertiser. Just in the month of working on this story, we've seen many nonunion commercials offering more money, some up around that $800 mark, and the topic of perpetuity no longer draws a blank stare. When I first started writing, many actors couldn't even pronounce perpetuity. (If you want to practice, its PURR-PEH-TWO'-ITTY).

 As this question is asked more frequently, talent may have to sit at home if the audition is for a commercial for which they are not willing to give perpetuity. Many actors are afraid that if they turn down a job, it will end their career. We should hope not, but will the casting director find less experienced talent to do the commercial? Yes, they will. There are agents that will send talent, or totally inexperienced people, they are not hard to find. However, then the casting director is submitting tapes of talent that are not as good as what he or she knows is available. Some tension is sure to build, but the larger question is how to effect a change that will be best for the business in Florida, but not send advertisers to New York or L.A. to find good talent? Casting directors told me that they want the best talent on their audition reel, but it is the talent agent's duty to represent the talent's best interest. One agent pointed out to me how little difference 10 % in commission is between $300 and $800. Agents are not as concerned with this $50 as they are with "using up" a talent that would then not be able to do other commercials. As part of the larger question, will this increased cost to hire talent drive away production?

Probably we will lose some low budget productions that will go to another area, but talent cost is a very small percentage of the total cost of most productions that do not use a "name" star. If we offer the best talent at fair market value that is similar to other areas, can we keep production here? We offer "location", that factor that we are Florida, we are a location state, and the reason most productions come here. We should hope that the ability to also offer good talent should offset the increase in cost. Seven local SAG signatory agents are members of the Central Florida Association of Talent Agents, CFATA. I talked to some of them, and they encourage positive growth in the business, improved working conditions for talent, and are working to educate, promote, and market talent for work inside and outside Florida. They are: Alexa, ArthurArthur, Azuree, Brevard , Diamond, The Hurt Agency and Benz Model and Talent.

Gersh Morningstar, publisher of The Florida Blue Sheet for 10 years, is another knowledgeable authority that reviewed my notes and asked this question: "Can an actor be forced to give up the right to the use of his image in perpetuity? As this represents a covenant not to compete, (is) the longest such a covenant be enforced about two years (?) -- and then it depends on the area to be served; i.e., a local commercial covenant simply would not be enforceable anywhere but locally, and rarely more than a couple of months. The courts have been quite explicit about such covenants. They should simply hire a lawyer and sue somebody."

At first, I thought Gersh had gone 60's radical, but let's examine this, applied to the children under 18 that were signed into perpetuity by their parent or guardian. Can they be held to this contract after reaching majority? I may someday regret opening this discussion, as I confess to being an actor too, but legal recourse should be considered as a possibility.

In summary, I hope this is not the conclusion, but rather a beginning. I would further hope that in the near future, when an agent calls talent, all the facts are presented, including duration or perpetuity, and contracts are discussed before the audition, that the talent can make an informed choice. If your agent does not give you all of the casting & booking conditions it is your responsibility to ask. You are the only one who is in charge of your career. Lastly, I wish to see my state, Florida, grow and mature for this wonderful, craziness we call "show business".
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