Image Credit: Tax Credits @ Creative Commons

The little-known legal facts that could see thousands of filmmakers in court

Disclaimer: Briony Rawle talks big, but is not a trained lawyer. Her blog can be relied upon for occasional wafts of common sense, but not for legal advice. Consult a trade union or trained lawyer before taking any legal action.

In my last blog post I laid out all the ways in which today’s film schools are failing their students with inadequate teaching when it comes to casting and handling actors. But looking deeper into the subject of low pay/no pay film jobs (fondly leaving aside lazy stereotypes, offensively worded casting briefs and icky personal fetishes dressed up as filmmaking for now), something quite shocking becomes apparent. The currently accepted ‘system’ of low-budget filmmaking is not just a bit of a crappy deal for actors.

It is illegal.

You know the drill: actor does some pretending on camera, filmmaker gives actor ‘expenses’ (usually a smallish flat sum of money, or occasionally food or a free bikini), as well as either a DVD of the final cut, or a link to a private video online. But employment law set out by HMRC says that any payment other than “genuine ‘out-of- pocket’ expenses” classes the actor as a Worker, rather than a Volunteer, and thus eligible for National Minimum Wage.

It doesn’t matter how you word your casting brief, how you refer to the actor, or even how the actor refers to him or her self. They can answer to ‘Volunteer Veronica’ for the duration of filming, but Veronica can’t surrender her own right to NMW even if she signs a bit of paper saying she doesn’t want it. Any promise of further work made to Volunteer Veronica will also magically transform her into Worker Wendy, even if it’s made under your breath in a dark cupboard after a few gins.

Now, a lot of this hangs on what the law counts as ‘payment’, although the definition is currently comfortably loose – some might argue that a link to an online video doesn’t have any monetary value. But then how many filmmakers would be willing to put their film on YouTube? Many people would argue that footage clearly does have value, and represents the alternative of the actor paying for set and equipment to film their own showreel material. An employment tribunal might easily decide that showreel material significantly increases the actor’s ability to get paid work, and therefore counts as payment.

The only thing stopping thousands of filmmakers being sued is that all of the cases brought to trial so far have settled out of court. As soon as someone does see it through to a verdict and sets a legal precedent (oh dear, do you think this blog post might encourage it?), filmmakers not paying at least NMW could be in deep shit.

If you’re a filmmaker, and it’s one of your actors who does it, they can sue you any time up to three months after their last day working on your film. With more and more actors becoming fed up of the current system and Equity straining at the bit to help crack down on low pay/no pay, it could be literally any day now. It could be today.

There are lots of ways to raise the money to pay NMW and thereby snugly cover your ass. Get financial support from funding bodies or film sponsors, or raise the money on Kickstarter, Indiegogo, Crowdcube or Seedrs. And when you’ve got the money together, use Equity’s new student film contract – this ensures you’re legally watertight, and massively boosts your credibility as a filmmaker, meaning better, more established actors will want to work with you.

If you’re a student filmmaker, put pressure on your university to help with funding – according to Bournemouth University’s financial accounts, obtained by a Casting Call Pro user, the university made over £3m surplus in 2014. It couldn’t spare £6.50 per hour per actor to help students paying through every imaginable orifice to do its film course? Don’t universities have an obligation to stop their students committing a potential crime in order to graduate?

If your university or film school won’t pay, you could campaign for it to set up a strong link with a drama school. If the acting work in your film is carried out by student actors as part of a UK-based further or higher education course and the project lasts less than one year, it may be classed as work experience, exempt from NMW (although best to seek legal advice on this one).

Acting is overcrowded. You will always find actors who will work for you for just expenses and footage. But it only takes one actor to lose their rag with the whole shoddy, exploitative system (and trust me, the rag is by now an extremely raggedy rag), and this will become cemented in law. Every actor you don’t pay properly is a potential court case. Someone will eventually have to take all the legal flak for this – and no-one wants to be that guy.

Why is it me telling you this, and not your film school? Don’t ask me. Ask them.