Congratulations! You’ve put together most of the cast and crew for your next project. Director? Check. Heads of departments? Got ‘em. But your lead actor is the highly-coveted [insert your favorite actor here], and they’re not too sure they want in. Yet. What safety net can you offer, say, Jeff Goldblum, in exchange for—you hope—his excellent work on your next masterpiece? A Pay or Play provision may just be your best bet. In exchange for guaranteed pay, Jeff gives you his word to be involved (that’s just the kinda guy he is). But is Pay or Play really that simple? Keep reading to get the scoop on Pay or Play, what it entails, and what it means for your production.
What is Pay or Play?
First, let’s define Pay or Play
Pay or Play is an informal term that can be used in multiple contexts. So let’s start with, shall we say the “essence” of its definition.
PAY OR PLAY DEFINITION
What is a Pay or Play Contract?
Pay or Play is an agreement that a production company will pay a desired actor or crew member for their involvement with a production. The production may not come to fruition, but whether the production is greenlit/produced or not, the actor or crew member is guaranteed payment. In special circumstances (as long as there is a pay or play agreement), the production can technically move forward without including the signed talent. That actor or crew member would still receive payment.
A pay or play clause (or pay or play contract) is a bargaining chip, often used to secure an above-the-line heavy-hitter; an actor, for example, may sign onto a project knowing that whether they work or not, they will get paid. A production may be more likely to obtain funding if they can get a top tier director attached. One directly assists the other.
Essential Contracts for Indie Film
On the surface, this seems like a pretty sweet deal: a production gets their highly-desired actor or director, and the actor or director gets paid no matter what. Best case scenario, the production goes swimmingly and payment given is in exchange for services rendered.
Of course, it doesn’t always work that way.
As with any other legal agreement, it’s important to know your rights, any associated conditions, and what you’re risking when signing the dotted line (especially as you’re building a budget).
So let’s dig into the implications of pay or play.
Nuances of Pay or Play
Pay or play implications
Pay or Play is not just a production-related bargaining tactic. Iterations of it span across industries, from film to professional sports leagues. For instance, if a professional football player is benched the whole season, they may get paid even if they never touched the ball… so long as that’s what’s been agreed upon. And thus we run into a key implication of pay or play clauses.
Your pay or play clause guarantees pay; it does not guarantee that you will touch a ball, or that your project will be greenlit and produced. Let’s look at a real-world Pay or Play contract example to understand the implications of Pay or Play on your production.
Johnny Depp surprised audiences when his character, Grindelwald (a pretty darn crucial character) appeared at the end of Fantastic Beasts and Where to Find Them. After he lost a very public libel case in the United Kingdom, though, Johnny Depp saw his celebrity status tarnish. After the second installment of the franchise, Warner Brothers took stock of the damage done to Depp’s image and thought it necessary to remove him.
Johnny Depp as Grindelwald, Fantastic Beasts and Where to Find Them
However, Depp had signed a pay or play contract; he was to receive the payment promised regardless of whether he appeared in the film (though allegedly they shot at least one scene with him before he was fired).
Of course, sometimes there are exceptions to the contract. If say, there is a natural disaster that in some way affects the involved parties, the situation is out of any one person’s hands and prevents the agreement from being fulfilled. Check out the link below to learn more about force majeure.
Force Majeure
There may also be a default payment clause, which can dictate the payment process of the agreement; it’ll tell you who pays what, when, and what happens if someone slips up.
Finally, the contract could require certain obligations from either party to enforce a pay or play provision (also known as a conditions precedent). It is unclear if any of these were at play in Depp’s situation, but they are important details to note moving forward, as each contract is a unique document with its own set of rules.
How to Use Pay or Play?
Implement pay or play
As we mentioned earlier, Pay or Play can help your production move things along, even if it can be a bit of a catch-22 (you can’t obtain funding without the actor, but you can’t secure the actor without the funding). And like anything else in production, time and money are on the line, so it’s critical to not drop the ball. So what’s the answer?
For one thing, remember pre-production is production too. From the start of prep, you’re in the thick of it. Crew is being hired, and contracts are being signed… it all moves very quickly. This is why you need an expert by your side. You need an entertainment lawyer.
An entertainment lawyer will understand the minutiae of any contract you need, as well as how to navigate them. Of course, familiarizing yourself with what contracts generally entail is a smart move, but you want to make sure you’re truly protected, not just from other people who may wrong you (intentionally or not), but also from making mistakes of your own that may endanger you or your production.
Pay or play agreements can get the ball rolling on your production, but it’s important to know the pros and cons associated with it before diving in. Now you’ve got a basic understanding of how Pay or Play works (and have promised to lawyer-up when you start dealing with any contracts), so you’re already off to a great start.
Up Next
What is the Taft-Hartley Act?
Pay or Play is just one of many considerations you may face when starting your next project, especially as it pertains to actors. Check out our guide to the Taft-Hartley Act and how it might affect how you cast your next film.
Up Next: Taft-Hartley Act →
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