What’s going on here?
Following the Harvey Weinstein and Kevin Spacey scandals, studios are attempting to make morality clauses more common.
What does this mean?
A morality clause in an acting contract states that a performer must keep certain standards to maintain the reputation of the studio or film. If this clause is broken, studios are often able to terminate the contract. These clauses are common and have been around since the 1920s. They usually dealt with committing crimes. After the #MeToo campaign, studios want the ability to cancel contracts more easily. A clause used by Fox states they can terminate the contract if the talent (actor) “engages in conduct that results in adverse publicity or notoriety, or risks bringing the talent into public disrepute, contempt, scandal or ridicule”.
Why are studios doing this? Reputation… but mostly money. Studios want the ability to quickly and publicly distance themselves from badly behaved actors. More importantly, the termination allows the studio to save money on the actor and save a ‘doomed’ film.
Why should law firms care?
Although this may initially seem removed from the concerns of law firms, the shift away from clear, easily definable legal terms in contracts towards vaguer concepts will result in much greater uncertainty. This is the case both in discerning obligations under contracts and more generally tips the balance of power between employers and employees in favour of the former.
These new morality clauses highlight this change as they seem to lower the threshold required to fire a person for misconduct. Anything that could embarrass the studio would be enough, leaving studios with wide discretion. While a crime is legally definable, a moral wrong is less so. The wider community decides whether something is immoral. This means that the actor might not know that they acted immorally until the public reacts.
In the internet age, these clauses are even more difficult to obey. Misconduct can be discovered from years ago. Actors may have to avoid causing unnecessary offence or expressing certain unpopular views. This highlights the tension between freedom of speech and these new, vague contractual obligations.
This could particularly affect smaller actors. Larger actors may be able to avoid such clauses. Robert Downey Jr. and Tom Cruise have already been able to carry on roles despite criminal charges and rants about Scientology, respectively. While this change may help studios save films, it might punish young actors’ right to speech.
Report written by Luke H.
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