Theatrical Negotiations

Theatrical Negotiations for Parents and Their Reps

When an agent starts negotiating a deal, panic sets in for most parents. We have no idea what is being discussed or if there is anything we can do. It feels helpless and exciting at the same time. We so desperately want what is best for our children, but it is tough to totally trust the process. We don’t want to be the dreaded “greedy stage parent”.

This document is NOT designed to replace the great relationship between a client and their agent/manager/lawyer. Rather, it is presented as a list of talking points. A starting place, it’s a good idea for parents to decide in advance what is important to them, and share that with their agent. We hope this article offers a view of the world from the agent’s perspective, so the parent will understand the process. And heck, you never know…reps might learn a thing or two here as well.

Where did we get all this info? We used the contracts of the many people who approached Bizparentz over the last few years, union contracts, and other general info. Then we ran it by about 20 fabulous friends–agents, managers, casting directors, parents of star name kids, parents of regularly working kids. Most of them wanted to remain anonymous (understandably so, since they are sharing all their tricks with us!). Thank you to all who were so generous with your time and advice for this article!

A couple of big disclaimers are due here:

• All negotiations are different. Realistically, newbies can expect to get union minimums and not much more. This does NOT mean their agent is not doing their job. Obviously, kids with extensive resumes will be able to negotiate many more of the points below.
• Non-union friends, we aren’t forgetting about you! Most of this information uses SAG-AFTRA contracts as a guide. Even if you aren’t working on union project though, these are still considered industry norms and you can use them to guide your negotiations.
• This article addresses the negotiations for film and television contracts. We are NOT including information about negotiating pilots OR working outside the U.S. Those negotiations are so specific and different that we will cover them in other articles coming soon!

Starters

Know the rules of the game

This article will assume that you are working under a union contract in the US or Canada and that it is a legitimate project worthy of negotiation by an agent or lawyer (i.e. not an ultra low budget indie film or a student film). Please note that projects filmed in other countries may be filmed under THEIR union jurisdiction. Australia and the United Kingdom for instance, do not have residual payments in their union structure—session fees may be all you get. Be sure you know what rules you are playing under!

Know the players

Most contracts are negotiated by either an agent or a lawyer on behalf of the child. On the other side of the table will likely be a casting director, or for bigger deals, a lawyer from the studio’s mysterious Business Affairs Department. Please note that in California and several other states, it is ILLEGAL for a parent or manager to negotiate a contract—it must be done by a licensed agent or lawyer.

Know your place in the world

Approximately how big your part is, where you fall in the celebrity order, where you fall in the cast list.

Know what deal breakers there are for you

Decide as a family what is really important (a bigger trailer for sanity space? Choice of a studio teacher?). Do not let your agent do the deal without expressing these things, since for most families the deal breaker is NOT money. Really think about when you are willing to walk away from a deal.

Know the language, specifically the terms

“Favored Nations”. It is not a contractual term…it is a kind of slang. As a rule, it ISN’T a good thing. Favored Nations is the concept that everyone gets the same thing. For stars, it is usually an excuse to work for less than their quote but is kind of a statement to the world that says, “I’m a good guy, a team player, and we’re all in this together—I’m working for pennies, but we’re ALL working for pennies so it’s OK.”.

For kids, it usually means “all the kids are working for scale and we aren’t going to negotiate kids’ salaries”. It also is often a lie. Producers will TELL you that “it is a favored nations deal” to stop weak agents in their tracks. Creative agents can often find a away to get water out of that rock—for instance, the COMPENSATION (see below—that’s only the cash) is favored nations but they might have negotiated credits, per diem or other perks that make it NOT equal deal—and better for you. Even if it is truly a favored nation’s deal between the kids, and they are on a shared card, you can negotiate your child’s name placement on that card.

“Top of Show”—this is the top amount on an episodic series that is paid to guest stars. It is predetermined by the network, and many shows will say “won’t break top of show” in an effort to get you to stop negotiating. In reality, top of show is broken often, especially for a recognizable kid film actor doing a TV guest spot.

The Meat of the Deal

Compensation

In a contract, “compensation” only refers to the session fees and residuals…the actual money. It does not address the rest of the package (accommodations, working conditions, etc). Your compensation is made up of the following:

1. Session fees: A session fee is the initial compensation — the amount you get for your days of work, no matter if the project dies and never gets shown.  This fee covers the project’s initial release for the market for which it was created. Fun fact: feature film actors don’t get paid extra for the box office showings.  This is considered the “initial use”.
   You want the highest session fee you can get, because this number is also used later in the formula that determines your residuals. Union minimums are called “working for scale”. If you have an agent, they should always be getting “scale plus 10%” (for their 10% commission, so that you are not working for less than scale as provided by the SAG contract) but we have been AMAZED at how many agents don’t ask for this! At least get scale plus 10% on any job! Don’t assume. The fee you got on your last similar job (TV for TV, feature for feature) is called your “quote”. For kids, it is common that a producer will NOT meet your quote, but it is usually where negotiations begin.
2. Residuals: Normally, the residuals or the money paid each time the project is shown again is governed by the union contract. Be VERY sure of the specific union contract you are working under. Knowing it is SAG-AFTRA is not enough. You must be aware of the specific contract within the union. It is possible to negotiate plus 10% for residuals as well. For example, it is very common for kids’ shows, particularly Disney and Nickelodeon to be using special side contract called the Uptown Agreement. That contract allows them to effectively pay NO RESIDUALS due to “exhibition windows” (that’s contract talk for periods of time when they can show your episode for free). That’s a really big deal…you may be accepting a lower session fee with the idea in your head that there will be lots of re-runs so you’ll make money later. What if there are NO reruns??? Make sure you know. That “career making” series deal may turn out to be a nightmare. Specifically, SAG ‘s last television contract allows for NO RESIDUALS to be paid to series regulars for the first few reruns of a series within a specified time frame. The idea was that series regulars benefit from allowing the series to “find its audience”. Sure can be a rude awakening for the actors though, since it means they lose several thousand dollars!
   
   A note about SVOD (aka Subscription Video on Demand, or “streaming services”):   Residuals on streaming services can vary widely.  As of 2021, most of the projects distributed on streamers are union, but they may not be produced at the streaming service. In other words, your employer could be a production company, who just sells the finished product or licenses the product to Apple+, Netflix, Amazon, etc. Depending on how their deal is structured, you might be paid different ways. Might be 3.6% of the directors gross formula, gross receipts based formula, or in some of those cases, the production company is offering a flat buyout, albeit hefty, for your services…no residuals at all.  Confused yet?  You aren’t alone. The moral of the story is ASK QUESTIONS.
   There is no more “standard” answer.SAG-AFTRA has a great video seminar (1:15 minutes) that explains theatrical residuals.  We highly suggest you watch this video: Understanding Residuals for SAG-AFTRA Performers (2021) 
3. DVD/Video/Pay-Per-View Residuals: In union projects, actors split a portion of the profits (specifically about 4.5%, once the film/TV show surpasses 100,000 units sold or $1M in “distributor’s gross receipts”). At that point, residuals are calculated by a point system formula that takes into account the actors’ session fee and number of days worked. Then divide those points by the number of actors (and their points) in the project. In other words, actors who get paid more and worked more days will get a bigger piece of the 4% pie. Also means—better to be in a smaller cast of a small movie than work a day or two in a big budget epic with 200 credited cast members.
4. Back-end Deals: A percentage of the profits distributed long after the movie is released. These seem to be common at opposite ends of the spectrum—stars often work for scale in exchange for a back-end deal (because they know a blockbuster with their name on it will pay well later—and they can afford to wait 2 years for the paycheck). In these cases, you often see the star with “producer” credit. At the lower end, in low budget independent films, actors will also work for a back-end deal hoping the film will be sold at all. It is a gamble. Here’s a great article by Bonnie Gillespie called The Back-End Deal.
5. Automatic Bumps: It is common place for an actor to get an automatic bump in pay for the second or third season of a TV show, and for syndication. Usually 5%.
6. Box Office Bonuses and Award Bonuses: Higher level deals might include a bonus payment of say, $20,000 if the daily box office gross listed in Daily Variety (aka DBO) hits a certain amount–usually starting at about $130M (a blockbuster hit in other words). Similarly, there can be bonuses given if the film gets an Academy Award nomination.

Intended Use Clause

With streaming takeover, the “intended use” of a project has become very, very important. Back in the day, big budget feature films were always intended to go to movie theaters first, and then to television, SVOD (subscription video on demand), cable, etc. In that situation, your session fee covered the theater exhibition (and thus was higher), and residuals covered whatever came next. These days, very large budget feature films are often intended for streaming services. The pay scale is massively different between all these platforms. As an example, think about a movie like Wonder Woman 1984 or Mulan (live action). These films were intended to premiere in movie theaters, but due to the pandemic in 2020/2021, were redirected to HBO Max and Disney+ respectively. So do the actors get paid nothing for being on HBO Max for years since it was the 1st use?  Spoiler: they had to renegotiate their contracts.  You would typically expect higher pay and a different union contract for say, a Disney theatrical feature, from Disney+, from Freeform, from Disney Channel.  In a contract, you should make sure it spells out the intended use, and more importantly, what happens if the project ends up on another platform. Currently, the SAG-AFTRA standard contracts do not have a standard clause or procedure for this. Instead, they advise actors to negotiate that with their agents!

Guaranteed work

Usually in terms of weeks, these clauses specify how many weeks or episodes they are guaranteeing you will work. Often you will work more, but this is what the producer is willing to commit to. For films it may be “5 weeks” or for a series it may be 7 out of 13 (the smallest that is considered a series regular—guaranteeing you will work 7 episodes of the 13 they produce) or 13 of 20, all produced, etc.

*Credit

This is absolutely negotiable. Options include At Producers Discretion aka APD (which is to be avoided if possible—it means you didn’t negotiate, and you will take whatever you are given), Front end (opening credits at the beginning of the show), Single card or Shared card (how many names are on the screen at the same time as yours), etc. You can be very specific. If you have to settle for shared card, ask for the top position on the shared card.

It is also possible to negotiate this by comparing it to other actors. For instance, if you are a supporting character that is 3rd in importance on the cast list, you might negotiate that “no actor will be credited higher than the undersigned actor, with the exception of the actor playing “Susie” and “Bill”” (the actors who are more important than you are).

Education

Although union contracts generally provide for set education, it is important to negotiate the specifics of that. A studio teacher can make your life a living hell or a complete joy. They also have direct contact with your child for 3 hours a day, some control over work hours and conditions, and have the direct ear of the producer when you aren’t around. It is perfectly acceptable to negotiate for your choice of a studio teacher or for approval of the studio teacher. Other specifics might include the number of children allowed in school with yours (you may prefer to have a limit of not more than 3 students of like ages for instance).

Merchandising vs. Promotions

It is fairly rare, but some children have been successful in obtaining rights to merchandising (of their image action figures for example). Hilary Duff was involved in a high profile legal case with Disney over this issue. As of this writing, the actors in the Lord of the Rings trilogy are in court battling over their share of profits (they claim they are owed millions, New Line Cinema has paid nothing). Note: Be aware of the semantics: merchandising is things like action figures and books that are SOLD. Promotions are things like Happy Meal toys and the like. The area is gray and it usually makes merchandising and promotions clauses easy for producers to wiggle out of. If you think your project has this potential, best to consult an attorney.

*Set Accommodations

This means your trailer or wherever you are staying on set. Be careful of being too specific…it can get you less than you would have gotten. Be aware if your project is shooting on a sound stage on a lot (the best dressing rooms are typically inside the stage) or on location (where you are talking about the size of the trailer—a triple banger, double banger, private etc.)

*Per Diem/Travel

Anything on location requires special negotiations. “Local hire” means the production is unwilling to pay travel or per diem expenses—you are on your own. Normally, the union rules specify the per diem amount (cash you get each day for food). BUT…it is possible to negotiate per diem and hotel accommodations even when the project is in town. Since this money is usually taken out of a below-the-line type budget and not a cast budget, sometimes you can use this to increase your salary. For instance, on a 10 week studio film, if you negotiated for an apartment and per diem for mom and kid, you would have saved yourself gas money driving from home AND pocketed an addition $10,000 or so in cash.  Per diem is required by the SAG-AFTRA contract to be paid at the beginning of each day (or week, if you are a weekly player).

Also, be wary of foreign locations and specify in the contract what currency the per diem will be paid in. This can get you more or less money depending on the rate of exchange. Union rules require per diem to be paid to the parent/guardian, but it is always a good idea to have reps confirm this in advance, especially if the location is remote. Also, make sure to include per diem for the guardian if the child is over 16 (see below).

Lastly, consider asking for an extra hotel room or a suite for long shoots. Especially with older kids who need their space. This can save your sanity (sometimes you just have to get away), and it also allows for a separate place to have school.

Parent /Guardian

Note that although you are required to be present with your child by SAG rules and by law in some states, the SAG contract does NOT require producers to pay for you. It has been standard procedure for production to pay for the parent’s transportation and double per diem for decades, but we occasionally hear of film makers who are going by the letter of the SAG contract. And it doesn’t REQUIRE them to pay for you. That means you MUST negotiate.

If your child is 16 or over, you will need to negotiate that the parent will travel/be on set with the teen, since the labor laws and SAG rules do not generally require it. Remember to ask for per diem for the parent in this case as well—it won’t come automatically. Never, ever negotiate away your right to be within sight and sound of your child if they are under 16. You could be accused of child endangerment.

*Work hours

It is unusual for children to be able to determine their work hours (i.e. only working Tues-Saturday, etc). However, it is possible and it can’t hurt to ask if there is some logical reason it is necessary (for instance, if a child is working as an adult but is home schooling to finish high school, they will not be allowed time for school on set. They may request school time on set, or 5 day work week in order to catch up on studies each week).

*Publicity

Many stars refuse to do publicity for their own movies because it is exhausting, involves a lot of travel in a very short time, it doesn’t pay, and they are onto filming other projects by the time the film comes out.

Sometimes they limit the number of personal appearances in the contract. This can be a give and take in the area of back end deals though—it is to the actor’s advantage if they have a back-end deal to promote the film as much as possible.

Kids generally don’t have any control over publicity. However, one area that IS commonly negotiated is the photo approval—the right to approve any photos of your child that are released in relation to the project. This is very important in light of pedophilia concerns and photos being sold on eBay. The savvy parent will ask for this approval to make sure no suggestive photos are released and so that they can control the child’s image as much as possible.

Exclusivity

Generally in series regular deals, it is customary for a studio to have approval of all other jobs you might accept while on contract with them. Sometimes the contract will come right out and ban you from work for a competing network (i.e. Nickelodeon will likely ban you from any work for Disney). This can be tolerable but it is NOT to the actor’s advantage. It allows the studio to keep you from working anywhere else if they choose. It can keep you from working on films during hiatus. If the contract is requiring exclusivity, it is at least deserving of more money—since they are keeping you from all other work.

Ex. Some Nickelodeon kids shows have a short shooting season (13 episodes), with no residuals. But the series regulars are on an exclusive contract. So they are barely making a living wage and can’t work for the rest year to make up for it. Not to mention they become typecast, since they are not allowed to explore other roles. Not a great deal.

You can also limit the exclusivity by eliminating commercials from the exclusivity portion of the deal.  Voiceover actors almost never accept exclusivity in their contracts.

*Inclusion Riders

At the 2018 Oscar ceremony, Frances McDormand talked about inclusion riders and encouraged other stars to use them going forward to increase diversity in Hollywood. For most of us, that was the first time we had heard of this tool. An inclusion rider is a contract provision that requires the project to interview and hire an increased number of under-represented people (females and people of color, for instance). These riders may be used by star names to help other actors. Warner Media and other studios are now establishing diversity protocols that could include riders as a tool. While few child actors rise to the level to demand an inclusion riders, many will benefit from these.  To see a sample of an inclusion rider, you can look at a sample from USC Annenberg School of Business here.

*Drops and pick-ups

This refers to the policy of starting to work on a film, then having a week or two off, then getting called back to work (kind of a forced vacation). In the basic SAG-AFTRA contract, they can only do this once since it means that you really can’t accept other work during that time. After that, the normal pay you whether you are working or not. HOWEVER, in the low-budget contracts, this clause has been removed so they can work you every other week if they want to. Again, it pays to know your contract!! Being stuck on a location and NOT being paid on a low-budget film is a big bummer—and can easily eat up all your earnings in hotel costs.

*Premiere tickets

It is not a “given” that all the actors in a film are invited to the premiere. In fact, it is VERY common for children NOT to be included. Note that once a film is done, it is handed over to a distribution company who handles premieres and publicity—it is not a matter of the director “liking your child” or the production company being “nice”. The people handing the premiere usually don’t even know you—they only know what was in everyone’s contract—outside of that, they will invite movie stars that will bring red carpet publicity to the film—that’s all. It isn’t about “fair” or about a “reward for a job well done”. Kids will be likely be invited to a cast and crew screening, but that isn’t the same (no publicity) 🙂 Lots of little hearts have been broken as a result of misunderstanding the purpose to a premiere. To prevent this, you MUST negotiate for tickets (a specific number—like 4) to the premiere (not the screening). Make sure to ask for travel in case the premiere is on the other side of the country. If you are the star of a studio film, you may be able to get as many as 8 with travel and accommodations.

Awards bonuses

It is possible to negotiate a cash bonus in the case that the project or the actor is nominated for, or wins, an Emmy or Academy Award, normally a flat rate. A nice perk if you can get it—very tough to get.

*Location Expenses: Production Cell Phone, trips home, etc.

This comes up on location shoots, especially. On long film shoots taking several months, you can negotiate a certain number of airfare tickets to be used at your discretion (for you to go home for the weekend, or for family to come visit you). Cell phones can be provided by production, especially in cases out of the country where your local phone won’t work. Ask for WiFi on the set and in the hotel. Additionally, you can negotiate like the crews do and ask for a “kit fee” — that means you bring your own “stuff”, or kit, which could include a cell phone and laptop. The going rate for a crew kit fee is $25/day, so you would make more that way.  Your per diem should be paid in cash or check at the beginning of the day or week you work (not as part of your paycheck — that can have big tax consequences!).

Stunts

There are SAG-AFTRA regulations about this, but studios often ignore them. Kids can do stunts, but it is up to you to define your boundaries. Do you need a stunt double? If a stunt is performed, make sure they provide a stunt coordinator per the SAG-AFTRA regulations. On a short term job, make sure you get a bump in pay for doing stunts.

*Wardrobe

You can usually negotiate to get free outfits or first refusal at purchasing the wardrobe from the film. Studios these days sell the wardrobe on Ebay as collectibles, but it is possible to get a chance to buy it at 50% of the cost before that point. Same goes for series regulars, but they won’t sell it till the end of the season. It’s a fun souvenir, and they make great charity donations later.

* Clauses agents and managers don’t generally go to the mat for. Why? They aren’t commissionable—they don’t make them money. If they are important to you, you need to let your representative know!

That’s A Wrap!

Overwhelmed? Just understand that most kids will be lucky to get a thing or two of the above items. But the agent can ask—the worst that can happen is that production will say no. Big deal; Let your agent know what you WANT vs. what you NEED. Be realistic and let them do their job. Then remember to say thank you to your agent when the deal is done!

Helpful Links

PDF: The SAG Scale Payments (Minimum Wage)

Book:  Hollywood Dealmaking by Dina Appleton and Daniel Yankelevits

An Actors Guide to Contracts by Hayden Field (Backstage)