Imagine you’re the producer of a big-budget supernatural thriller that’s opening in one week. The film, which is about a man tracking his wife’s killer with the help of his dead son’s ghost, is getting great buzz and looking like a sure hit. Then your phone rings.
It’s the agent of the nine-year-old who plays the ghost. She informs you that her client is hereby disaffirming his contract and revoking all rights to use his image and likeness in the film. If you still want those rights, they will now cost you 4x what you paid in the original contract plus a significant back end.
You laugh incredulously and hang up. This must be a prank. Your company always obtains court approval of its contracts with minors who are cast in significant roles. And this kid is one of the stars of the film! There’s no way production could have let this fall through the cracks… is there?
Just for peace of mind, you call your production coordinator to verify that the kid’s contract was indeed approved. To your utter horror, he informs you that it was not. Why? Because company policy has always been to only seek court approval for minors who have lines. And the child ghost in this film doesn’t talk. He just looks creepy and leads the hero to the next clue.
You reach for the bottle in your desk drawer. Your entire film is now being held hostage by a nine-year-old.
While the above story is fiction, it’s far from fantasy. I’ve had more than one client who used this same “lines or no lines” test as their official policy in determining whether or not to seek court approval of a minor actor’s contract. Producers like the simplicity of this kind of hard and fast rule. All you have to do is look in the script and see if that character has any lines and you know whether or not to seek approval. No judgment calls required. But as the above hypothetical demonstrates, situations arise in which these hard and fast rules simply don’t work. Here’s what does work:
ASSUME THE WORST
The easiest way to determine whether or not you should seek approval of a given minor’s contract is to simply imagine the nightmare scenario I describe above for every minor with whom you contract. If you didn’t get them approved and they were to void the contract just before the premiere, how much trouble would you be in? Could you quickly and easily re-edit the film to cut them out completely? Or do they give a key reaction shot upon which an entire scene depends? Unless you are sure that the film/show would be fine without them, you should play it safe and get the contract confirmed.
Your rule of thumb should be: If you can’t remove, you must approve. Only minors who you are positive could be removed from the film without significant inconvenience should have the enforceability of their contracts left to chance.
The challenge with this more nuanced approach is that it does require a judgment call. It also requires coordination and communication between above-the-line creatives who know what elements they want in the finished film and below the line production folks who actually handle the process of seeking court approval. But these challenges are relatively minor compared to the grave risk of contract unenforceability that is being avoided by using the correct totality of circumstances approach.
If you have questions regarding a minor’s contract or need to obtain approval of such a contract, contact us today.
For more on how court approval affects contract enforceability, see Is a Contract With a Minor Binding?
