To PAY or not to PAY actors?

[Madlabent]

Lets say that you are making a low budget independent film that will only cover necessary materials, and film festival expenses. Should you pay the actors who have worked on the film even if you plan to self-distribute it or four-wall theaters yourself once it is completed?

There seems to be three different options that we can approach:

1-Pay actors upfront
2-Give Credit Only or Credit and a Copy of the Film
3-No Upfront pay, but Deferred pay on the backend per certain conditions.

Which scenario is the best for an independent film that is self-distributed?

 

[wheatgrinder]

Tangentially speaking:

Wheats "Payment Order Of Precedence"
People get paid in the following order until the moneys gone.

Sound
HMUA
Talent - Lead
Talent - Supporting
Grip
PA


(assumes wheat is doing camera \ directing \ craft)

 

[itschrisreed]

Please explain.

I'll give you an example:

I make a short film over a four day weekend. 12 crew (not including
me) and 7 actors. I expect four 12 hours days and I tell these 19 people
I will not pay them, I will not offer points and their pay is not deferred.
I tell them I will feed them a "walking" breakfast and 6 hours after the
call time a hot lunch.

If you can, please tell me what laws I am breaking.

Not a lawyer but its a fairly clear violation of Title 9 of the US Code Chapter 8, Section 206. As you stated they are working for you, so we are talking about commerce and not a hobby (like playing rec league football). Its also probably a violation of a similar state law.

"Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates:
(1) except as otherwise provided in this section, not less than—
(A) $5.85 an hour, beginning on the 60th day after May 25, 2007;
(B) $6.55 an hour, beginning 12 months after that 60th day; and
(C) $7.25 an hour, beginning 24 months after that 60th day;"

Making a film, even you never manage to sell it is 'production of good for commerce'.

You can read the whole thing for your self if you want to know how much to pay a farm worker or a seaman:

http://www.law.cornell.edu/uscode/text/29/206

 

[DIY]

I notice itschrisreed has beed silent on this question of it being
illegal.

And yet when Chris Reed reappears he cites an INAPPLICABLE statute in an attempt to look lawyerly. Having gone to law school, I am still amazed how many trolls find a statute that fits their argument without understanding its applicability.

 

[rayw]

Having gone to law school, I am still amazed how many trolls find a statute that fits their argument without understanding its applicability.

I'm just a caveman myself, but I was kinda wondering if that was what was going on.

Are volunteers not permitted to make an informed decision or provide informed consent?

EXT. FOREST CABIN - DAY

The DIRECTOR stands before a small group of assembled CAST and film CREW.

			DIRECTOR
		Now, before we get started 
		I want to make sure you guys 
		all know that this cliche, 
		done to death, psycho murderer 
		at a remote forest cabin 
		horror film has no hope of 
		making any more than fifty bucks 
		on Amazon after it costs us 
		twenty times that much to pump 
		it through the festival circuit.

			GAFFER
		Does this mean we're not 
		getting paid?

Chuckles throughout cast and crew.

			A.D.
		It means you get to look at 
		this hot chick here all day 
		when you're scarffing down 
		Mountain Dews, Doritos, 
		Pizza Rolls, and for you vegan 
		fruitcakes carrots and 
		cucumbers otherwise known  
		as rabbit food.

Whoops, cheers, and wolf whistles as a hot chick waves and smiles at 
the craft table

			BOOM BOY
		Isn't that the director's wife

All laugh.

			DIRECTOR
		Yes it is. Ya'll behave.

All laugh again.

			DIRECTOR
		No. It means there is no money 
		now and will be no money later 
		to get paid with. We're spending 
		it all on props, locations, 
		costumes, and festival entry 
		fees.

			ACTOR
		Do we get a clips and copies 
		DVD?

			DIRECTOR
		Yes! A clips and copies DVD
		will be mailed to the address 
		you provided for your waivers 
		and permits sheet if you 
		checked the box indicating you 
		wanted such.
			
			ACTOR
		Good enough for me.

			DIRECTOR
		Are we all clear on this?!

			CAST & CREW
		Yes!

			DIRECTOR
		Shall we begin?!

			CAST & CREW
		Yes!

			DIRECTOR
		Excellent. Let's set up 
		scene one right over there.

 

[DIY]

Are volunteers not permitted to make an informed decision or provide informed consent?

I don't think unpaid cast and crew are considered volunteers since you most likely need to have all of them sign contracts/waivers. However, I believe most of these contracts stipulate that in return for their work you are giving them credit and copy. That is a form of enumeration/payment that courts consider have monetary value and is deemed fair value for services if entered into willingly by cast and crew.

 

[itschrisreed]

Please explain.

I'll give you an example:

I make a short film over a four day weekend. 12 crew (not including
me) and 7 actors. I expect four 12 hours days and I tell these 19 people
I will not pay them, I will not offer points and their pay is not deferred.
I tell them I will feed them a "walking" breakfast and 6 hours after the
call time a hot lunch.

If you can, please tell me what laws I am breaking.

Sorry it took me a few days to get back to you, remember I'm not a lawyer, but lets do this thing.

Given that making a film is the 'production of goods for commerce' even if you don't make any money on it (or intend to). Not paying people is a clear violation of US Code Title 29, S206, Chapter 8:

"Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates:
(1) except as otherwise provided in this section, not less than—
(A) $5.85 an hour, beginning on the 60th day after May 25, 2007;
(B) $6.55 an hour, beginning 12 months after that 60th day; and
(C) $7.25 an hour, beginning 24 months after that 60th day;"

Its pretty cut and dry. This language is also in the state code of every state in the US with some variations.

And if you think your not an employer, in the context of the law you are. Therefore unless the people working for you are partners they are employees.

You can read the law here. http://www.law.cornell.edu/uscode/text/29/206 and the definition of terms here: http://www.law.cornell.edu/uscode/text/29/203

You can get in some real trouble S216 of same:
"(b) Damages; right of action; attorney’s fees and costs; termination of right of action
Any employer who violates the provisions of section 206 orsection 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages."
http://www.law.cornell.edu/uscode/text/29/216

 

[directorik]

Thanks for the links. So technically, every single short film made
in the US is breaking labor laws.

I wonder if anyone has ever agreed to work on a movie for no pay,
no points, no deferment, and then sued the "employer". I wonder
if anyone has won a lawsuit like that. I wonder if offering "points"
or 100% deferred pay would stop a lawsuit loss.

This brings up so may examples; technically, the world wide "48
Hour Film Project" is illegal in the U.S.

 

[DIY]

Chris, please stop.

...I'm not a lawyer

That much is quite clear. Don't pick and choose statutes to quote because they can be absolutely meaningless without case law and other relevant sections such as:

29 U.S. Code § 213 - Exemptions

The provisions of sections 206 (except subsection (d) in the case of paragraph (1) of this subsection) and 207 of this title shall not apply with respect to—
(1) any employee employed in a bona fide executive, administrative, or professional capacity

Now you're gonna ask how the hell does that apply? Well, that's case law in that professional capacity has been defined as including ACTORS (and crew) and is known as the "Creative Professional Exemption." See how the actual words of a statute can tell you nothing.

And there are multiple other legal exemptions (perfectly fine for a lawyer to use multiple approaches to make their case.) I already cited the independent contractor argument where cast and crew sign a contract in exchange for copy and credit.

Also copy and credit also has monetary value so you probably aren't violating minimum wage rules anyway. (Example: I commission you to make a painting for $10, you spend 50 hours doing it, no one will make me pay 50 hrs x min. wage for this painting.)

Not to mention using the smell test, i.e. common sense. If this were soooo illegal why hasn't there been news reports of producers getting hauled off to jail?

So folks, you are perfectly fine using unpaid actors.

 

[itschrisreed]

Thanks for the links. So technically, every single short film made
in the US is breaking labor laws.

I wonder if anyone has ever agreed to work on a movie for no pay,
no points, no deferment, and then sued the "employer". I wonder
if anyone has won a lawsuit like that. I wonder if offering "points"
or 100% deferred pay would stop a lawsuit loss.

This brings up so may examples; technically, the world wide "48
Hour Film Project" is illegal in the U.S.

Not my shorts, I gave my crew points, making them partners. Which was fine, except one actually made a small profit and I hadn't build a system for getting people their money. I had to figure everyones pay then ask them where to send the checks. Which was probably more effort then the ~$15 each of the crew got.

I'm sure it doesn't happen often, its probably happened.

I believe that contests have different legal requirements. I've never run one, I don't know.

Chris, please stop.

That much is quite clear. Don't pick and choose statutes to quote because they can be absolutely meaningless without case law and other relevant sections such as:

29 U.S. Code § 213 - Exemptions



Now you're gonna ask how the hell does that apply? Well, that's case law in that professional capacity has been defined as including ACTORS (and crew) and is known as the "Creative Professional Exemption." See how the actual words of a statute can tell you nothing.

And there are multiple other legal exemptions (perfectly fine for a lawyer to use multiple approaches to make their case.) I already cited the independent contractor argument where cast and crew sign a contract in exchange for copy and credit.

Also copy and credit also has monetary value so you probably aren't violating minimum wage rules anyway. (Example: I commission you to make a painting for $10, you spend 50 hours doing it, no one will make me pay 50 hrs x min. wage for this painting.)

Not to mention using the smell test, i.e. common sense. If this were soooo illegal why hasn't there been news reports of producers getting hauled off to jail?

So folks, you are perfectly fine using unpaid actors.

Seeing as how you where encouraging people to commit insurance fraud in the locations thread pardon me if I don't take you word as gospel.

Yes case law will show what you can be prosecuted for, but its always best to generally not brake laws.

Lets start with Professional Capacity, straight from the Department of Labor ruling on the subject:
"Sec. 541.300 General rule for professional employees.
(a) The term ``employee employed in a bona fide professional
capacity'' in section 13(a)(1) of the Act shall mean any employee:
(1) Compensated on a salary or fee basis at a rate of not less than
$455 per week (or $380 per week, if employed in American Samoa by
employers other than the Federal Government), exclusive of board,
lodging, or other facilities; and
(2) Whose primary duty is the performance of work:
(i) Requiring knowledge of an advanced type in a field of science
or learning customarily acquired by a prolonged course of specialized
intellectual instruction; or
(ii) Requiring invention, imagination, originality or talent in a
recognized field of artistic or creative endeavor.
(b) The term ``salary basis'' is defined at Sec. 541.602; ``fee
basis'' is defined at Sec. 541.605; ``board, lodging or other
facilities'' is defined at Sec. 541.606; and ``primary duty'' is
defined at Sec. 541.700."
Source: http://www.dol.gov/whd/overtime/regulations_final.htm
So as you can see per 13(a)(1)(1) you have to pay them $455 per week to qualify.

As for the value of copy and credit, you would have to get them to stipulate it in a contact or release, because if they contest it in court your are in for a world of pain. And as you can see if they are 'professional capacity' workers their pay is "exclusive of board,
lodging, or other facilities" so you would still be on the hook.

Because no part of your nopay short is news worthy.


What is the objection to giving your actors and crew the minimum points required to make them equity partners in the production? On the off chance your short makes a profit, shouldn't they see some for their hard work?

 

[directorik]

What is the objection to giving your actors and crew the minimum points required to make them equity partners in the production?

Because the paperwork and costs involved isn't worth the effort.

And because of the caliber of the people I work with. I offer to work
on projects for free all the time. I do it for the experience and out of
friendship (for my friends) and respect (for fellow filmmakers – not
for $15/20 (or $150/200) six months to a year or so in the future.
And I find people willing to do the same.

And you say that's illegal.

 

[Morris]

There are many organizations where people basically volunteer their services with no expectation of getting paid even though there are paid staff members. In that it is voluntary in nature, the above statue shouldn't apply. As long as every person signs a written release, I would not expect a problem. If people can't volunteer their services, then a lot of organizations would be in trouble.

 

[rayw]

https://www.youtube.com/watch?v=BofddwtPBPw

 

[itschrisreed]

Because the paperwork and costs involved isn't worth the effort.

And because of the caliber of the people I work with. I offer to work
on projects for free all the time. I do it for the experience and out of
friendship (for my friends) and respect (for fellow filmmakers – not
for $15/20 (or $150/200) six months to a year or so in the future.
And I find people willing to do the same.

And you say that's illegal.

So does the Fed. I don't say it wrong or that I disagree with you.

In this situation I think its most fare to say "hey we are all trying to move up in one of the most competitive industries in world, we are hommies, I'll ride with you if you ride with me. But I got the respect for you that if, on the off chance, this thing we are all a part of gets to be a big thing, we all get our bit. Even if its a small bit."

I put up with all the bs that comes with the job because at the end of the day being on set is the most fun I've ever had and I've tried chemicals, and extreme sports, and pretty girls, and loud music, and I've even tried them all at once. So if my phone rings and I'm not up to much I'm down to jump on what ever project you got.

However, if there is food on the table I want everyone to eat.

Do whatever you want. Just know what your doing. I got my reasons, you are a smart dude, I'm sure you've got yours.

There are many organizations where people basically volunteer their services with no expectation of getting paid even though there are paid staff members. In that it is voluntary in nature, the above statue shouldn't apply. As long as every person signs a written release, I would not expect a problem. If people can't volunteer their services, then a lot of organizations would be in trouble.

Charity organizations are not engaged in commerce and have different rules which apply. I volunteer with the Red Cross. I had to do a ton of paper work to do it.

 

[DIY]

Chris, again you've only demonstrated you understand how to Google and NOT understand anything about the law. I've already pointed out that enumeration need not be monetary and that cast and crew are independent contractors. Seems pointless to continue to argue with a Google troll but I'll say this for all the indie filmmakers:

Cast and crew are NOT your employees under Fair Labor Standards Act if you sign them to do a film. (Think about what happens if you hire a plumber -- they are not your employee.) Cast and crew are independent contractors and therefore they do not fall under FLSA. If you are upfront with the requirements of the shoot, sign a proper contract, offer non-monetary renumeration, i.e. credit, copy and meals, you are fine.

Hey Chris, since you are so good at passing judgment and Google, go find out how I am committing insurance fraud by having a property owner sign a release and not carrying a General Liability insurance contract. I'd love to see what you find!

 

[itschrisreed]

Chris, again you've only demonstrated you understand how to Google and NOT understand anything about the law. I've already pointed out that enumeration need not be monetary and that cast and crew are independent contractors. Seems pointless to continue to argue with a Google troll but I'll say this for all the indie filmmakers:

Cast and crew are NOT your employees under Fair Labor Standards Act if you sign them to do a film. (Think about what happens if you hire a plumber -- they are not your employee.) Cast and crew are independent contractors and therefore they do not fall under FLSA. If you are upfront with the requirements of the shoot, sign a proper contract, offer non-monetary renumeration, i.e. credit, copy and meals, you are fine.

This is simply not true, and does not address the points that brought up. But as I've said I'm just providing information to the best of my ability, based on 10 years in the game and doing this for real. Do whatever you want just make informed choices.

A wise man one told me not to argue with fools, 'cuz people at a distance can't tell who is who, so I'm out.

Hey Chris, since you are so good at passing judgment and Google, go find out how I am committing insurance fraud by having a property owner sign a release and not carrying a General Liability insurance contract. I'd love to see what you find!

I'm gonna not take this personally, I'm just never going to offer you any advice or help every again. Good look out there in the cold. I hope you make some awesome movies and never have deal with any kind of legal trouble.

 

[DIY]

... I'm just never going to offer you any advice or help every again.

I think that is the point of my response, please DON'T offer legal advice. You have some nerve coming here and accusing people of illegal labor practices and citing damages and penalties, backed up only by Google searches that fit your beliefs.

YOU'RE DEAD WRONG and you owe this forum an apology as far as I'm concerned for the misinformation and false accusations you've leveled. Having been to law school, I've seen enough cases of people who get into major MAJOR trouble with the law for relying on legal advice touted by folks like you. If some cast or crew sees this thread and decides to sue or threaten to sue the producer or director you'll bear responsibility for the headaches you've caused.

 

[nefilmgroup]

There's nothing more dangerous than a non-lawyer giving legal advice.

 

[_Rok_]

This thread is getting a little personal.

 

[NickClapper]

This thread is getting a little personal.

+1

I don't agree with what itschrisreed is saying (though I don't live in the country he's citing the laws of) and I was the first person to call him out on it, but I respect the fact that he's responded politely. In a disagreement like this, there's really no reason to be aggressive or personal - do y'all really care that much about legal fine print?

Of course, it goes without saying, no one should take advice from an internet forum as proper legal advice. Always consult a genuine, actual, certifiable lawyer.

 

[IndiePaul]

This thread is getting a little personal.

+1

Lots of interesting posts but let it all cease now. When internet debates get too heated they become an enormous waste of the posters time, and often damn stressful.