What do you do if a paid actor doesn't show up?
First off, I'm not sure if this is the right forum for this but it was the only one that made sense. My apologies if this should be posted elsewhere.
I am a producer/director out of Orlando and our company does broadcast, corporate video and commercials. I have been doing this for 14 years and so far nothing like what I'm about to explain has ever happened to me or to anyone else that I know.
Lately, we have been doing commercials that require several actors. Not much to complain about. The actors show up, they do what they're hired to do and we produce some good looking spots. I had a commercial production this week - Tuesday was the location day and Wednesday was the studio day. Tuesday went off without a hitch. Then I get a call late in the evening on Tuesday (after my shoot) about Wednesday's studio day. The call was from my casting agent saying that she received a voice mail message at 5:30pm from my female talent for Wednesday. The female talent explained that she was in the hospital and she "might" not make it to the shoot. After several attempts to try to contact the female talent there was nothing more to find out and she wasn't returning our calls. It is an unfortunate turn of events but there was nothing to do - so I decided to postpone the shoot day and pray that my other actor and my crew would go easy on me considering it was such a quick turnaround on the cancellation. (They were great about it, by the way.)
Now, I still want to try to check on the actor and make sure she's ok. I also want to try to re-schedule things because my client needed these spots sooner than later (as they always do) so I wanted to try to have some information for him. Without getting into too much detail - we found out through some mutual friends that the talent WAS in the hospital but it was voluntary, not life-threatening and she was discharged early in the day. Presumably, she was discharged before she left the message. She wasn't returning our phone calls but was returning phone calls to mutual friends. Seems fishy to me but that's not the point of this post.
What I would like to know is what does a company do if you plan a production (a five-figure production) and one of the actors decides to not show up? Not just any actor though, one that was hand-picked by the client to represent their product or service. I realize that contingencies are set up for this purpose but it's not easy to add a 5% contingency when so many people with a camera and a laptop will underbid. I'm pretty sure an insurance policy would also be quite hefty on a medium-sized budget as well. So is there any way to plan for something like this? I'm curious because I would have never even dreamed of this situation a few weeks ago. I would imagine that the talent could be held responsible or perhaps the agency? I'm baffled as to how to protect myself against this again. Do you guys have any suggestions?
John X. DeMaio
Insurance, insurance, insurance - as a production company, depending on the size of your production, you should be covered for the re-shoot under your general production company policy - anyway, that is what we have in the UK.
Also draw in the agent and the casting director to take responsibility for not "vetting" the talent properly.
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In this particular case, I think you're stuck... UNLESS the client themselves cast, hired, and will be directly paying for the talent themselves. Then they might bear some of the responsibility and production cost for the talent that seems to have flaked out on you. BUT... sounds like in this case that although the client approved and/or picked the talent, they were still your employee and your responsibility.
Sadly, I don't know of many suggestions to keep this from happening. It just does, now and then. As a former working actor myself, I can tell you from both sides of the camera that actors are a flaky bunch. The best you can do is work with people that have a known reputation for reliability. We always try to cast people that we know, have worked with, or know people who have worked with. That's the best insurance that we have. "Real" production insurance is often difficult or expensive on something as small as a commercial shoot.
Still... things happen.
We had a shoot last week for one of our major clients, part of a fairly big mid-five-figure campaign. We hired a an actor (young teen boy) that was needed for a specific role. He was coming from about four hours away for the shoot. His mom was driving him up, but when they were about a half hour out of town his mom gets very sick, and has to pull off the interstate and call an ambulance. The whole ordeal delayed our shoot a bit, but we scrambled and got the kid in anyway and by juggling some things got it done (after making sure his mom would be ok and he was able to work, of course). It cost us a bit, but we had to eat it since even though the client approved our actor, he was our employee and getting him on location was our responsibility.
Semi-amusing side note... our client that day was the area's largest hospital. The same hospital where the actor's mom was taken. We literally had a PA pick the kid up at the ER, drive him to our studio for wardrobe/makeup, and then back to the same hospital for the location shoot. It all went well... and fortunately in the end mom was fine, too.
Fantastic Plastic Entertainment, Inc.
I see this, experienced this, as a cash flow debacle in 2005. Fortunately, my producer was a bad @$$ and got us paid anyway -- after two phone calls, a "paid" invoice of only half the amount because we only worked half the amount before the cancellation, and another phone call. By phone call I really mean heated discussion.
Here's the fine print from an Association of Independent Commercial Producers contract (AICP). More at aicp.com
Cancellation and Postponement: Digital Production
A. If notice of cancellation/postponement is given MORE THAN HALFWAYTHROUGH the production schedule of the job, that is between the award or start date and the final delivery date, the Contracting Client will be liable to the Production Company for the full cost of the job as a bid.
B. If notice of cancellation/postponement is given IN THE SECOND QUARTER of the production schedule of the job, that is between the award or start date and the final delivery date, the Contracting Client will be liable to the Production Company for:
(1) All out of pocket costs, including the expense of all staff and free-lance labor attached to the project. This expense will include full payment through the original completion date if that labor is not re-booked by the company, or, in the case of the free-lance labor, not able to re-book itself on another project.
(2) Full creative fees as bid.
(3) Full production fee on the job as bid.
All well and good, but that doesn't mean bupkus unless you've actually been able to strongarm a client in advance into signing a contract that has all those AICP stipulations in it.
I personally can't imagine a client going for such a contract... I know I sure wouldn't if I was on the other side of the desk. It is extraordinarily weighted on the side of the producer, and I can't see any reason why a client would have any inclination to agree to such stipulations. It basically says the producer can do half the job, decide to walk, and still get paid in full.
If you can get a client to agree to those terms, more power to ya.
Fantastic Plastic Entertainment, Inc.
The other reasonable option to guarantee funds is a Purchase Order.
Surely there's a middle ground then between such strong language and loaning the client money, ergo producer on the hook for the talent, the camera, the edit -- a 30 day no interest loan.
[Richard Herd] "Surely there's a middle ground then between such strong language and loaning the client money, ergo producer on the hook for the talent, the camera, the edit..."
But that's just it... like it or not, the producer is on the hook. If I had an incomplete and undeliverable production -- whether because an actor I hired flaked out on me, or had a technical problem, or a vital crew member had an emergency -- I would never expect the client to pay anyway... which is exactly what the AICP contract stipulations and the PO idea suggest. My wallet might not like it, but if a project can't be delivered because of something within my responsibility, we'd never expect or even ask a client to "just foot the bill anyway." Why should they be expected to?
Fantastic Plastic Entertainment, Inc.
I've done it both ways with good success (AICP and PO). Not only did the clients not mind it, but it literally saved my butt when the you-know-what hit the fan. I was not out any money and I got paid for the cancelled day & reimbursed for travel expenses. This was 2005 -- a much different economy mind you -- and it was a big client.
I've also turned down jobs when the risk shifted too far into my burden, even though potentially represented good money and reel.
I thought of an analogy. Maybe it fits, maybe it doesn't.
When we go to a restaurant, they'll serve us because the risk of serving 1 or 2 people isn't too bad.
But that same restaurant requires a deposit when catering a wedding, because the risk is much greater.
Don't pre pay.
[John DeMaio] "I get a call late in the evening on Tuesday (after my shoot) about Wednesday's studio day. The call was from my casting agent saying that she received a voice mail message at 5:30pm from my female talent for Wednesday. The female talent explained that she was in the hospital and she "might" not make it to the shoot."
Is your company signatory to any of the unions?
I ask because, just as there are union rules about producers pulling the plug and paying kill fees to actors and technicians, so actors and technicians must abide by rules of professionalism as well. If there is actual negligence involved, it's certainly actionable by an attorney.
So, I would definitely find out if this actor this actor is affiliated with union, and I would certainly find out if this actress has an agent. Even if the shoot is completely non-union all the way around and no agent is involved, I would still think about getting your lawyer involved, and having your lawyer chat with the actress, her agent, or her lawyer.
The circumstances do sound very suspicious, and it is entirely possible that your actress was knowingly negligent. She probably doesn't have two nickels to rub together, but it's certainly worth investigating.
David Roth Weiss
David Weiss Productions, Inc.
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We always get a second and third choice selection from our clients for all the talent, we will put the first and second choice for each role on hold up until the day before the shoot. I also make sure to have the contact info for all the talent with myself or my assistant.
This will help with last minute emergencies.
When the client does the choosing, we hand them a certain amount of responsibilty to go with it.
In the case of actors, we try to have a backup, but that is really hard to do within budget. That would mean having two sets of actors lined up for every job. However, we always work with an agent because then, it's their responsibility to provide the contracted product (actor) at the provided time, place and rate. And, the agents have insurance.
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Having a second or third choice doesn't really cost any more, just a little more time on the phone with a agent placing them on hold and releasing them the day before. Having a backup and their contact info
gives me peace of mind, there's all kinds of potential reasons why a actor can't make a one day shoot.
In the last minute you can always get another sound man or makeup artist but missing a actor could shut you down.
In the NY market I've had actors "book" a feature and call just before a shoot forcing us to use the backup. I always have the client agree that they will choose a 2nd and third choice, hopefully your casting director can bring in enough good people for each role. I realize that parts of US don't have a good talent pool but Orlando & NY do.