MOTION CAPTURE AND MOVIE CONTRACTS
James Pinchak, ESQ.
motion performance also known as motion capture, performance capture
,“mo cap,” has caused unforeseen problems in drafting contracts between
producers and performers in regard to motion picture agreements.
Apparently, there is no case law or arbitration's that have set any
precedents in this area.
The first issue is
whether motion performance even falls under SAG jurisdiction. What is
apparent is that both parties by agreement, may bring the performance
under SAG's jurisdiction. In other words, if the contract is a SAG
contract, both parties have agreed to all terms that have been
negotiated by the collective bargaining agreement.
The next issue of
concern deals with the actor receiving residuals from “supplemental
markets” as set forth in the SAG agreement. By definition, the term
“performer” covered includes, performers, stunt performers, stunt
coordinators but shall exclude extra performers and body doubles.
Obviously, motion performance is not specifically included or excluded
in the above definition. Therefore, it would be recommended that when
negotiating any contract on behalf of the performer, it should
specially indicate that the motion performance shall be deemed a
“performance” for purposes of residuals under the general provisions of
the SAG agreement, section 5.2.
By definition, the
above mentioned section excludes any performer if “no part of the
performers performance is used in the film as released in Supplemental
Markets.” Because the final product of the motion performance is
computer generated, it is advised to obtain acknowledgment from the
producer such as, “It is agreed that the definition of performers
performance shall be liberally construed to include any image that
originates, used, based upon, or in anyway aids or assists or combined
with creating any character used in the motion picture.” In other
words, make certain the contract clearly states that motion capture, Mo
cap, and or performance capture shall considered a “performance” and
therefore entitles the actor to residuals.
A typical clause
reads, “If the performer appears recognizably in the picture to the
general public…” Unfortunately computer generated characters may not
resemble the physical characteristics of the performer. Section 25 of
the general provisions of the Sag agreement in part states, “ in all
feature motion pictures with a cast of fifty or less, all performers
shall receive credit.” If two or more performances or actors are
contracted to collaborate on one single role, it is advisable to
negotiate the specifics in regard to credits of each performer in
question. Specifics to mean: Exact language in regard to the role the
performer is contracted to play. Exact language on the size and
position of the actors screen credit. There should be no confusion that
such performer is guaranteed credit as a performer.
A typical clause
allows the producer to “use Performers name, likeness, and voice in and
in connection with any merchandising.” Again, because it is possible
that a performers character may not resemble the “character” as
displayed in the movie, any clause regarding merchandising should be
rewritten to specifically include “Performance Capture, or Motion
Capture in connection with the actor.
The contract should
clearly state the name of the character and the performance the actor
is being contracted to provide. To include or exclude voice over,
performance capture, etc.