Performance Capture, aka Motion Capture, has been used in film for more than 20 years. The first movie to include a main character using motion capture was Star Wars: Episode I — The Phantom Menace (1999) where the character of Jar Jar Binks was played by Ahmed Best.
While technology has been refined, the idea is that a live actor wears a tight suit (imagine a wet suit for surfing) with sensors. The mocap suit allows computers to record the movements and expressions of the actor and translate them to computer animation. This process has the ability to change performers into animals or other creatures, or to age the person differently while retaining the display of human emotion. The work is grueling and often requires long days in a green screen studio. The final result can be magical, but it can leave performers open to exploitation. What is the actual performer? Was it a mix of two or three actors, who all contributed to that character? Can background actors be used for any of the movements, or are they actually principal performers? And how do you get paid for something that isn’t really “you”?
Examples of motion capture films with children include Polar Express (2004) where the child actors were the subject of years of pay disputes, Ready Player One (2018) and Avatar: The Way of Water (2022). Be sure to scroll down for a description of some contract terms you will need to know if your child is cast in a motion capture role. Here is a clip of Sigourney Weaver, playing the 14 year old character of Kiri, that describes the process of acting in a motion capture role (Youtube 2:44):
MOTION CAPTURE AND MOVIE CONTRACTS
James Pinchak, ESQ.
The technology of 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-AFTRA JURISDICTION
The first issue is whether motion performance even falls under SAG-AFTRA 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-AFTRA 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-AFTRA 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.