MOTION CAPTURE AND MOVIE CONTRACTS
James Pinchak, ESQ.

New technology, 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.

SAG JURISDICTION

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.

RESIDUALS

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.

CREDITS

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.

MERCHANDISING

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.

GENERAL LANGUAGE

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.