Irish Equity note on the 2021 Feature Film Agreement

Context

Irish Equity has been the subject of criticism for many years due to the “buyout” nature of Irish contracts in the independent film and TV sector. This meant that actors got paid additional monies up front to buy out all rights, so they never got a share in the sale of a production or in the success of a production. This share of a sale/success is usually referred to as royalties, use fees or back end payments. This criticism came from Equity members, agents and other international actor unions such as SAG AFTRA in the USA, ACTRA in Canada and Equity UK as well as many other English-speaking territories, whereby Ireland was increasingly viewed as a dumping ground for productions that wanted to walk away with all of the future rights that actors rightly hold.

Overview

This issue has been the subject of debate within Irish Equity for many years while we demanded fairer treatment from the producers for actors and endeavoured to break this “buyout” cycle. This was first achieved in 2015 with the TV drama agreement where a 2-tier licencing system (5 years or 10 years) was agreed with ongoing payments to actors for the re licencing of productions thereafter and a share in any sales.

At the Irish Equity AGM 2015, the members passed a motion to ensure that Equity policy would be to have back end payments included in any agreement signed in the future.

Subsequently in 2019, the Docudrama agreement was agreed and that contains a 2-tier structure also (10 years or 15 years) was agreed with ongoing payments to actors for the re licencing of productions thereafter and a share in any sales.

The 2021 feature film agreement was discussed with Irish Equity members at our AGM in November 2020. The agreement was voted on and accepted by the members at the meeting as it follows the member led policy of creating a backend structure. This back end Agreement reflects the back end Film Agreement currently in use by Equity UK and is about shifting emphasis from up front single payments to building back end structures to create future income streams for members, in keeping with international best practice.

Feature Film Detail

This member led policy from 2015 was followed with the 2021 Feature Film Agreement. The Royalty Payment structure is aligned with the PACT/Equity UK agreements and contain 3 tiers.

Tier 1 is for Films with a global budget of €2.5 million and over – it should be noted that the eligible spend for the 120 feature films made in Ireland between 2015 and 2019 was between €1,428,213 and €3,191,501. The eligible spend is the figure mostly used in calculations on film and TV productions in Ireland, but this is usually only a fraction of the cost as it refers only to monies actually spent in production in Ireland. The €2.5 million referred to in Tier one is a global budget which means that even if a production only spends €1 million (€1 million eligible spend) in Ireland but €2.5 million or more in total (even if it is spent outside Ireland in post-production or special effects etc), then that production falls into the Tier 1 category.

Tier 2 – is for feature films with a global budget of between €1.25 million and 2.5 million. The minimum daily performance fee of €158 and minimum weekly rate of €632 remains unchanged. The ‘buyout’ element here however is adjusted to 75% in return for a higher profit share of 5% of 100% net profit. This means that the 5% is not from the producer’s share of profit but from the full amount of profit. This transfers money from the upfront buyout to the backend for the long term. Once the production reaches net profit (covers its cost of production) then the payment will be due to actors over the full lifetime of copyright which is currently 50 years. Every time the production is relicensed, sold or streamed, then 5% of this will revert to the actor’s pool.

Tier 3 – is for feature films with a global budget of under €1.25 The minimum daily performance fee of €158 and minimum weekly rate of €632 remains unchanged. The ‘buyout’ element here however is adjusted to 50% in return for a profit share of 5% of 100% net profit. This means that the 5% is not from the producer’s share of profit but from the full amount of profit. This transfers money from the upfront buyout to the backend for the long term. Once the production reaches net profit (covers its cost of production) the payment will be due to actors over the full lifetime of copyright which is currently 50 years. Every time the production is relicensed, sold or streamed, 5% of this will revert to the actor’s pool.

Please note that this backend structure is broadly reflective of the PACT/Equity UK agreement that many Irish actors have been working to with the exception that the Irish budget levels are much lower as the Irish high budget is in excess of €2.5 million and the UK low budget is £3 million and under.

All terms outlined in the film agreement are minimum terms. Any actor and/or agent is free to negotiate above these minimums based on the experience and standing of the actor concerned. We at Irish Equity accept that these sorts of backend agreement can be challenging for agents, especially those agents that do not have experience of contracts that don’t buy out all the rights up front. It can be difficult to manage commission on payments that go directly to actors when they normally come straight to the agent. Actors therefore should expect that agent will want to make some agreement with them on how this matter will be handled.

Clause 28 – Nudity

This clause reflects the wording from the 2015 TV Agreement (clause 27) and 2019 Docudrama Agreement (clause 27). These clauses are an important part of any agreement as nudity of often part of the script so there needs to be rules and structure around how it is dealt with. These clauses however are specifically designed to give protection to actors both during the audition and shooting process.

Collection and Distribution of monies

Actors should ensure that they are members of a registered collecting society so that money arising from the Irish feature films agreement can be collected for them and distributed to them. In this regard, Recorded Artists Actors Performers (RAAP) is the recommended collection society for this agreement. Information on WRAP can be found here https://www.raap.ie/

Further Queries

If any Equity member has any other questions on this film agreement, please contact us directly on equity@siptu.ie or on 01 8586403.