Why you need an entertainment attorney to help negotiate your television acting deals
Not long ago, I was contacted by the manager for an actor who appears on a major network television program that’s just been picked up for its second season. This actor feels he’s undervalued on the show, and wants to renegotiate his deal. but, after taking a look at the “Test Option” contract the client signed when first auditioning for the role, there’s not much to be done right now. He (and the rest of the cast), will probably need to wait a few years before it’s possible to improve things.
If he’d had an experienced Los Angeles entertainment lawyer work on the deal before signing, this could have been avoided, or at least the risk of a bad deal could have been reduced. (of course it doesn’t HAVE to be Los Angeles, but it IS the TV business)
What is a “Test Option?”
Series deals for TV actors are frequently set up as option contracts with a series of successive options the producer can exercise to have the actor appear in the series, if the series is ordered by the Network.
Producers use this approach to lock up the exclusive services of the talent for the pilot and (typically) the first few seasons of the series, at the earliest stage possible. By negotiating the actors’ fees before the show is actor even auditions (“tests”) for the role, the Producer avoids being “held up” for greater compensation once it’s clear the actor is wanted for the show .
Typical Points of negotiation in a Test Option
What follows is a description of the terms you can expect to see in a typical test option contract. Even if you’re brand new to the business, and have little bargaining power, your agent, manager and attorney should be able to negotiate reasonable terms.
Initially, the agreement will need to specify the time period after the test in which the Producer must commit to the actor by exercising the Pilot option. Test options are exclusive, so until the option expires, the actor isn’t able to audition for other shows. So, although the Producer will want this to be a lengthy period, talent should reasonably expect this commitment to be forthcoming within only a few days following the audition.
Once the pilot is shot, the talent will want the Producer to exercise its option to employ the Actor on the series quickly. Typically, the producer will be required to exercise the option within 7-10 business days after it accepts the network order for the series.
The Series Option will usually be structured as a sequence of options to employ the actor for successive seasons. (often as many as 6 or 7) Each season after the first, the producer will need to exercise its option by mid-June (after the Networks announce their series renewals for the coming TV Season.
Typically, the employment of actors for a television series is done on an exclusive basis (meaning that the actor can’t appear on other programs during the life of the contract). However, for cable programs , and when dealing with major star level talent, it’s often possible for the attorney to negotiate non-exclusivity, or to carve out guest appearances on other programs, in commercials (subject to many restrictions), and other opportunities like voice-over work, and feature film roles.
In addition to the time-frame(s) and exclusivity of the Actor’s services, the test option contract will need to provide for the artist’s pay.
Often, for a pilot, the actors will be paid some multiple of the SAG/AFTRA minimum compensation.
Likewise, the test option will specify the amount the actor will be paid if the show is picked up and the option(s) exercised. Typically, the actor’s fee will increase incrementally for each subsequent season renewal. Not surprisingly, actors represented by a team of agent, manager and entertainment lawyer, usually fare better in this arena.
Another point to be negotiated is the so-called “guaraantee”. Depending on the actor’s bargaining power, the Producer may be required to guarantee a specified minimum number of episodes per season in which the actor will appear. This is sometimes specified as a ratio, as in 10/13 (ten out of every 13 episodes produced).
Compensation is often expressed as “pay-or-play”, meaning that the fee is owed to the actor whether the services are actually used in a given episode. But, not all “pay or play” clauses are created equal. If you’ve got the bargaining power, An experienced entertainment attorney will ensure you’ve got the most favorable one possible.
In show business, it’s not unusual to learn that a player’s credit is more important to him or her than the amount of compensation. Points to be negotiated are things such as whether the credit appears in first, second or third position, whether it is on a shared or single card, and where within the program the credit appears (Main/Opening titles vs. end credits). Credit negotiations can often occupy the bulk of the negotiating time. Lawyers are skilled negotiators, and can often come up with creative approaches.
Other negotiable provisions
In addition to the foregoing contract provisions, TV deals frequently involve some horse-trading over issues such as dressing room size and location, catering requirements, and other perquisites to be paid to the actors.
For ensemble casts, it’s quite common for actors’ representatives to press for a so-called “favored nations” clause, to ensure that no other performer receives more favorable deal terms. This allows one actor’s team of representatives to set the bar for all of the other performers. Producers, however, are increasingly resistant to such provisions.
As mentioned before, the typical test option agreement can cover the actor’s services for as many as 7 years. When a series is successful, however, and with the help of an entertainment attorney, it is sometimes possible for the talent to renegotiate important provisions. After all, unhappy actors are unlikely to turn in their best performances. Producers may also be willing to renegotiate in order to secure the talent for additional seasons.
If you’re testing around Hollywood this pilot season, it pays to have an entertainment attorney join your agent and manager to help negotiate your test option contracts. Your lawyer can be instrumental in securing a fair, reasonable, and worthwhile deal.
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