"Contractual Credits In The Film And Television Industries"
Written By New York Media And Entertainment Lawyer John J. Tormey III, Esq.
This article is not intended to constitute, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.
This article explores the concept of "credits", and their importance in the entertainment industry.
1. What Are "Credits"? Those in the entertainment industry obsess on credits. Additionally, any film-goer, television-viewer, theatre-goer, or even music-purchaser usually knows what “credits” are, too. “Credits” are the typically-textual acknowledgments made to the talent and other contributors who brought the artistic project to life and to distribution. Credits are usually superimposed upon the work itself, in some manner. A motion picture typically runs a few important principal credits at the commencement of the picture (“opening credits”, or “opening titles”), and then a more exhaustive set of “end credits” or “closing credits” at the end of the picture. Much, but not all, of the discussion that follows relates to movie credits.
2. You Can Usually Tell Who The Industry People Are In A Movie Theatre. You have inevitably noticed over the years that sometimes, the full audience does not stick around for the full running of the end credits of a motion picture. Yet you can usually tell who the entertainment industry people are in the film theatre, at least in New York and Los Angeles, by seeing who sticks around to view the entirety of the end credits. For one thing, we view it as rude for an audience-member to bail out prior to completion of the running of the end credits. The end credits are themselves an aesthetic component of the picture, and are often the sole solace for a number of people otherwise-underpaid and often under-appreciated for their hard work.
3. Credits Provide Important Information. Additionally, the end credits, particularly, provide valuable occupational information, and fodder for contact-work for those of us in the entertainment industry who might need to follow-up on certain aspects of the picture. In my law practice, for example, I have used end credits of a film in order to assure myself that I have spelled names on subpoenas correctly. Credits have less adversarial uses as well. For example, a film producer may use credits of a prior picture to contact an actor’s agent with an offer for a new picture, or to inquire about remake or sequel rights in and to the credited picture. Credits are usually a treasure-trove of industry information, as websites like https://www.imdb.com have established.
4. "Credits Are Contractual". When you work in film, you often hear the mantra of "Credits Are Contractual". "Credits Are Contractual". The phrase is repeated, parrot-like, including by many who have little idea what the significance of the phrase actually is. I like to think of it this way. If I am a copyright-holder of a screenplay in America, I have a federal statute enacted by Congress in the form of 17 United States Code to rely upon:
to provide me with certain rights and remedies with respect to my script, including in connection with its transformation into an audio-visual work on the big screen. If I am an actor, however, I have no obvious federal statute or Congressional directive to ensure that I receive proper credit for my performance in a film.
5. "If You Don’t Ask, You Don’t Get". Therefore, in this respect, at minimum, “Credits Are [Indeed] Contractual”. If I am that actor, I really need a signed and countersigned written contract with the studio, producer, distributor, and/or other responsible party, to ensure that I will be accorded proper, publicly-disseminated (textual) credit for my work. See, e.g.:
Of course, it is not enough simply to write in a contract that “[A]ctor will receive credit”, because among other problems, most judges and jurors would have no idea how to interpret and apply that four-word clause if ever litigated. “Credit” is not really self-defining, as opposed to a fuzzy concept or fuzzy set. Rather, the specific text of the required credit needs to be spelled out in the contract, verbatim, exactly, along with all its other required characteristics such as size and typeface. Additionally, the credit provision must very specifically explain the circumstances in which I, the talent, must receive credit. For example, is the studio required to accord me that same textual credit in every single Internet-posting and social-media status the studio causes or generates, relating to the film? If you don’t ask, you don’t get. See, e.g.:
http://www.sagaftra.org/files/sag/Digest_Theatrical_Television_8_1_0.pdf. Unless a studio, producer, or distributor is specifically required to accord a verbatim textual credit in very specific certain circumstances, they seldom if ever will accord it to talent gratuitously. It costs the studio money, hardship, hassle, and/or time to accord each credit - although given recent advancements in digital technology, it is getting easier and cheaper to accord credit than it used to be. Most people could generate a credit-roll on their home computer now, using the correct software. That didn’t used to be the case. Moreover, just as it is technologically easier to accord credit than it used to be, so too is it now easier to correct pre-existing credits than it used to be, at least on a go-forward basis.
6. Credits Relate To The "Quote System". To fully understand credits, the non-industry reader needs to be familiar with the "Quote System". The "Quote System" has traditionally been one of the film industry’s dirty little secrets. Some may say the “Quote System” does not exist anymore. I say it has just gone underground. Under the "Quote System", in theory if not always in practice, an executive from one studio can phone a designated department within another studio, to ask what an actor, director, writer, or other talent got paid on a prior film project. Legal scholars will immediately recognize this as a possible, if not extremely-likely, federal anti-trust violation. After all, the net effect of the “Quote System” could be to cap and suppress talent pay-days, keeping “prices” down. The studios will counter argue that this conclusion is belied by the statistics, however in an industry wherein it is well-known that actors may earn over US$20,000,000 per picture. The point here is that one’s credit relates to one's quote. Once you as talent have a credit with a house, you then ostensibly have a "quote" with that same house, which other houses can then phone up and verify. That could translate to your future employment - and players only love you when they are playing, after all.
7. Credits Translate To Money. Accordingly, credits are actually not purely an ego issue, even if the negotiations over credit feel that way sometimes. Rather, credits are a money issue, too. Credits translate to money. Once an actor, director, writer, producer, seamstress, set designer, key grip, PA, or anyone else can truthfully cite to their own credit on a picture - particularly if the credit gets "picked-up" on https://www.imdb.com or other databases - the credit then becomes the ostensible springboard for the next gig or gigs. In this respect, an actor’s credit is just like your last job listed on your résumé. It can make you money, although you may never know for sure in retrospect whether it was your credit, your interview, some combination, or something else that actually earned you that next-occurring payout.
8. The Value Of A Credit Is Usually Unliquidated. All that said, it is very difficult to quantify exactly how much a talent credit is “worth”. Accountants and appraisers seldom formally estimate their value, unless compelled by court process. Accordingly, this points out one of the classic and characteristic problems in talent agreements and specifically, in their textual provisions relating to credit. The “What if?” scenario is seldom addressed in the credit provision in a talent contract. In other words, a contract can often say “Studio will accord actor the following textual credit in all prints of the picture and in all paid ads”, or words to that effect. But if the actor’s representative is reading the contract carefully and really thinking it through, he or she should then and thereupon be asking, “What if?”. In other words, “What if the studio, or a downstream distributor, fails to accord the contractually-required credit?”. Because the economic value of a credit is seldom liquidated, in either a negotiation or otherwise, the contract usually imposes no monetary penalty or other economic sanction on the studio, if the studio “forgets” to accord the credit. Additionally, courts are often loath to enforce “liquidated damages” or comparable “penalty” provisions in a contract anyway, unless the dollar amount of the penalty can somehow be established to bear some reasonable relationship to the offense. In an industry wherein everyone assumes economic value to credits but few if any ever liquidate the dollar-value number, that “reasonable relationship” may be very difficult if not impossible to establish on-paper. But see, e.g.:
http://www.sagaftra.org/files/sag/Digest_Theatrical_Television_8_1_0.pdf. The main reason why talent are so often disappointed post facto by the credit they receive, is because their contracts, particularly their credit provision passages, are drafted so poorly. Many studios, producers, and distributors use hackneyed boilerplate text, to this day. In part, at least, that is a strategy. The studio’s procedures and demeanor are often orchestrated so as to dissuade negotiations. Many talent representatives therefore assume, often mistakenly, that they have no power or leverage to negotiate better credit, and so leave it in the boilerplate as written in the hopes that the talent disappointment will never occur. Yet talent disappointment with credit happens all the time. I get those phone calls on a regular basis.
10. "Most Favored Nations” Treatment Is Often Sought." Another one of the reasons why many talent agreements have lousy credit-provision text, is because the draftspersons are simply too lazy or too rushed to take the time to specify the credit requirements in writing. In this regard, one practice that has evolved, (or, "devolved", perhaps) is the use (or, "overuse") of a "Most Favored Nations" clause regarding credit. For example, if I am one of several co-writers, my representative might seek to secure a film producer contractual commitment that I will be accorded textual credit on the picture no less favorable than that accorded to any other co-writer. That sounds good, but actually poses several practical problems. For example, what if the other writers get lousy credit too – or lousy textual promises of credit in their contracts? What if the other writers turn out to have less negotiating leverage than I do? What if I thereafter ask the producer to show me the other writer’s contract, and the producer refuses to show it to me? What if I end up doing far more work on the project than all the other co-writers? Why should I be limited to what they get? As you can tell, the "Most Favored Nations" clause approach is particularly problematic, when you don’t yet know who the other "nations" are, much less what they have.
11. Most Contracts Contain A Gaping Loophole For The Distributor.One thing most talent new to the industry will usually realize, upon their first review of a studio’s boilerplate credit provision, is that there is a gaping hole in the studio’s credit "obligation". It is an exception that will almost always swallow the rule, in any tough case. Most boilerplate credit provisions in talent contracts close with "No inadvertent failure" text - essentially indicating that if the distributor or any downstream party fails to accord credit to the talent, the event will actually not be deemed a breach of contract (!), and that the distributor’s only obligation is to thereupon try to cure the failure on a go-forward basis. In this respect, keep in mind, though, that many writers and actors won’t see the film until its premiere on the big screen. By then it will likely be too late as a practical matter to cure and correct the credit, unless you’re referring to the later-issued DVD - assuming that the studio "remembers" to fix things at that later point in time.
12. Credit Disputes Are Usually Not Litigated, But May Be Arbitrated. One of the reasons that “pure” credit disputes are seldom litigated in the courts, is that it simply costs too much money to litigate disputes generally. Most litigations cited as relating to credit also involve concomitant claims of co-ownership - see, e.g.:
Additionally, most credit disputes would be fact-intensive and likely center around the negotiation of the underlying talent services agreement, which in turn would likely mean that the dispute would not be a great candidate for a pre-trial summary judgment or other dismissal motion, likely involving multiple disputed issues of fact. Moreover, many litigators and clients alike would perceive it as too risky to litigate a credit dispute, not knowing until (if ever) adjudicated at the end of the case, if at all, what the credit was actually economically worth in retrospect. Sure, under most circumstances a contingent-fee personal-injury litigator could take on an auto-accident case for one-third of the ultimate recovery. Yet a contingent-fee litigator cannot take 33 & 1/3% of an ego credit and thereupon make a living doing it. I wouldn’t expect to see a credit issue litigated unless it was between two parties that each had money to burn, such as an A-List actor or director versus a major studio. Finally, keep in mind that A-List talent often never end up "getting around to" actually signing their contracts with studios (a tactic usually prompted by their A-List agents) – and therefore, the talent may have a difficult time litigating a credit promise in a contract which the talent never actually signed.
13. Guilds Often Provide Minimum Credit Requirements In Their Collective Bargaining Agreements. However, it is not uncommon for credit disputes to be arbitrated. Why? Because the guilds - meaning the unions such as SAG/AFTRA, Directors Guild Of America, and Writers Guild Of America, typically cover credit issues for their members in collective bargaining agreements (CBA's) - and typically have "in-house" arbitration mechanisms available to its members (talent) and signatories (studios). See, e.g.:
Not all talent are union members, but many are. At least a guild's CBA will provide minimum requirements vis-à-vis credit, to which the studio-signatory, producer-signatory, or distributor-signatory must by definition subscribe and adhere. If the hiring party fails to adhere to a guild CBA minimum credit requirement, then the talent/union member can in theory arbitrate against the signatory before the guild, to seek redress, cure, and possibly recompense. The same valuation issues crop up in an arbitration, as above-discussed, as they would in any other forensic context.
14. Credit Rights Have Been Eroded By “Flip-Out” Credits, Text Minimization, And Rushed Credits. Given the apparent power of the unions to compel fair treatment of its members in the context of credit, it is therefore puzzling to witness the recent abuses of credit practices by television networks and cable channels, particularly, in recent years. Many by now are familiar with "flip-out" credits, whereby the screen upon which end-credits roll is "flipped-out" and split in two so that another “screen”, typically promoting the TV channel’s next or coming attraction, can then poke through and capture the viewer’s attention to the exclusion of the credit-roll. This practice makes the running end-credit almost if not totally unreadable, and thereby “discredits” the hard work invested in the project by every cast and crew member. Similar harsh practices by television entities include the shrinking of credits, and the rushing of credits so as to be near-unreadable if not totally unreadable. Thusfar, the guilds have not been able to eliminate these harsh practices in the context of their CBA negotiations, although many believe that they should.
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My film, television, and entertainment law practice includes the drafting, editing, negotiation, and closure of all contractual matters relating to film, television, music, publishing, Internet, and all other media and art forms. If you have questions about legal issues which affect your career, and require representation, please contact me: