Red flags to watch out for in freelance voiceover contracts Aug 12, 2020 1:08:07 GMT -8 Kevin Liberty likes this
Post by LadyStardust on Aug 12, 2020 1:08:07 GMT -8
Important Disclaimer: This post is considered informal advice for actors only, and has not been reviewed or endorsed by a legal professional. You are recommended to consult with an attorney if you have serious issues with or questions about a contract.
When can I (realistically) negotiate a contract?
Contracts for in-studio jobs are fairly ironclad and usually look quite similar for all or most of the projects recorded via that particular studio. These contracts typically have been reviewed by lawyers and are given to all talent to sign as a condition of working on that project or even at the studio in general. Chances are you will not have much luck amending or negotiating this type of contract, unless perhaps you are going through an agent who is able to do this for you.
However, for talent booking and recording jobs independently from home, you’ll see all types of contracts—-some which are reasonable, and some which are not. If you are doing your own negotiation for these jobs, it is imperative that you read and understand what you are agreeing to before signing rights away. While the majority of contracts are for clients to “cover” themselves and they probably wouldn’t try to take advantage of you, you want to protect yourself as much as possible from getting burned by an unscrupulous one.
Don’t automatically assume that because a contract contains a red flag, the client is automatically bad or untrustworthy—newer or small independent clients might not even fully understand the contract themselves! “A surprising number of clients will use boilerplate contracts and have actually no idea what some of the terms mean or what the contract is actually supposed to have in it between a client and a voice actor,” says Brittany Ann Phillips. “So by all means, ask them questions if you're confused.”
*These are things that you may wish to consider walking away from a project if the client refuses to budge on.
Often times, clients use boilerplate contract templates that include a clause barring you from working for any competitors to the company. This is extremely problematic for voice talent, however, who are not actual employees with any sort of job security. Let’s use the example of a game company. It could be argued that virtually any other game company is their “competition”, so theoretically a lawsuit-happy company could argue that you are in breach of contract if you provide voice work for literally any other game! Obviously, this isn’t viable. Challenge this if you ever see it, and explain that being able to work for a variety of clients is integral to your work as a freelancer. If they still insist you sign a non-compete, walk away.*
*You will hear about things like commercial conflicts and brand exclusivity—-however, these things are something that should be negotiated via an agent and compensated appropriately, ideally via a union contract and preferably with a term limit on the use. Unless you are very experienced, you should not attempt to negotiate any job that requires exclusivity by yourself.
Overly restrictive NDAs
Many non-disclosure agreements have some pretty scary implications for what will happen if you are found to be in violation. While it’s understandable that large companies have to be strict (as major leaks can cause them irreparable damages), there is no reason that a tiny indie company paying their actors very modest rates should have an NDA that says, for example, any breach of confidentiality will require that the actor pay $100,000 in damages! While the chances it would actually go to court are probably unlikely, no actor wants to risk putting themselves in crushing debt because they made an offhanded comment to someone on a Discord server.
- Another potential warning sign is an NDA that prohibits discussing working conditions among actors on the project. Clauses like this are often meant as an attempt to silence or intimidate anyone from whistleblowing illegal conduct.
- Finally, NDAs typically have some type of term limit (say, 2 years or 5 years, possibly longer for highly classified projects such as those in the science, technology or government sphere.) If the project is very long-term, you may be asked to sign a new NDA once the old one expires. However, if the NDA is supposed to be in place forever with no expiration date, tread with caution. Here is an article that explains a bit more on this.
Occasionally, some very strange clauses pop up in contracts that insist the actor will be held personally liable for any issue with the project or even the Company, or that they must agree to defend the Client in court if it comes down to it! If you see something that makes you feel uneasy, you’re within your right to ask for clarification.
Voice actress Hannah Hellwig warns against broad indemnification clauses after being asked to sign a contract that would have “held me legally and financially responsible for ANY legal issues that could arise from any indiscretion of any party involved in the project, and the project/dev would not be liable for anything.”
Prohibition of using a similar voice for other projects.
The simple nature of working as a freelance voice talent is that occasionally you will play characters that may sound similar to each other or have similar personalities. While it’s reasonable and fairly common for companies to want to protect their own IP and brand image by forbidding talent from performing that specific character for other media (for example, if you are the voice of a well known children’s cartoon character, you’d probably be barred from portraying that same exact character in someone else’s raunchy parody, nor could you use that character’s exact voice and likeness to make political statements), your voice itself is your voice. They can own specific assets, but they can’t own your voice itself. Any clause restricting your performances outside the project should be clarified as only that which relates to that client’s specific intellectual property.
No payment unless work is used, project is finished, etc.
When you are hired to work on a project, you should get paid for whatever work you completed. Period. If you finish and submit the assignment you were given, and the client decides they want to recast the role or they no longer wish to continue the project, they’re still on the hook to pay you for the portion of the work that you actually did. You are contracted to perform a service and as long as you complete that service reasonably to the client’s specifications, you have fulfilled your obligation and you are entitled to compensation for it, regardless of what happens afterward.
*Things in a contract that aren’t immediate dealbreakers, but that you should try to get reworded if at all possible.
Right to sell or reuse the voice work in other unrelated media.
Realistically speaking, most nonunion contracts need to have this type of “buyout clause” so that they can own the rights to the work and an actor can’t come back demanding their voice be removed from the project, or threaten to sue because their lines were used in a trailer, etc. You’ll see very broad “buyout in perpetuity” clauses on a lot of studio contracts, and while you’ll probably have little to no luck challenging those, the reality is that any re-use is normally limited to things like a direct remaster/re-release of the same game, or for promotional materials. However, you may have a little more luck getting these clauses to be reworded on smaller projects.
- While it is necessary for the client to have ownership in perpetuity of the voice assets provided, what you ideally want is the right to negotiate some type of additional compensation if, say, they take the battle effort sounds you recorded for them and use them for a completely different character in an unrelated game. The chance that this will be agreed to explicitly in a contract is relatively slim, but it is worth bringing up if you have significant concerns that they will use your voice files for other totally different projects without permission or payment. “The hope is to fight it when possible; the reality is to just know it when you see it—-and, at best, negotiate a better rate around it,” says Alex Weitzman.
Actor agrees to post on social media about the project.
This clause is usually well-meaning—-especially in the case of crowdfunded projects, the clients want to ensure the word gets out, and having the cast share their involvement can be a helpful part of this (although sometimes, it goes too far.) Ideally, any posting or sharing on social media should be at the actor’s discretion, but sometimes it is considered a requirement in order to be part of a project. If an informal agreement cannot be reached that allows for this clause to be left out, suggest a rewording that limits it to only requiring one single post and/or retweet of the casting announcement. Otherwise, a client could take advantage of the vague nature of this clause by constantly demanding you post or share promotional material about the project because “you agreed to it in your contract.”
Penalty for revisions
Revisions and pickups are a normal part of most voice work. If a contract threatens that a client will cut your pay for “mistakes” in the work or revisions that are needed, you should not agree to work with them until this is amended. A suggested compromise for this is a clause that says if the error is your fault (missed line, mispronounced word, line unusable due to technical issues) you will rerecord the affected line(s) at no extra charge.
Reprisal & rate renewal
Occasionally, you may see an overly broad clause saying that Actor agrees to reprise their role in future installments at the same rate. There are a couple of issues with this.
- While it’s understandable that actors are expected to stick with the rate they initially agreed to for that particular project, there are countless reasons why cast members may wish to negotiate a raise for future installments, sequels, etc. For example, let’s say the project initially had very limited budget and paid nominal “indie rates”, but it ends up becoming incredibly popular and financially successful, to the point where the client wants to make a sequel. At that point, it would be understandable that the cast members would want to negotiate a higher rate accordingly. Or, if a project pays typical industry standard rate but that rate goes up five years from now to account for the cost of living increase, is it fair to lock cast members in to reprising their roles at the outdated rate?
- Any nonunion projects especially should have a term limit on required/expected reprisals (the typical clause says 5 years). While it makes sense all-around to have consistency in your cast, the fact of the matter is that even on very large and established properties, cast members change over the years. Perhaps an actor moves away, retires, goes strictly union-only, or simply gets so busy that their schedule no longer allows for it. Reprisal clauses should have a reasonable time limit and should also take the listed factors into account such as schedule availability. A typical wording in many contracts is that, for the interest of project continuity, the talent shall make “reasonable effort” to reprise their role if circumstances permit.
Flat rates without compensation for increased workload
While typically work is booked in some type of unit of measurement to calculate the workload (for example, per hour, per line or per word), occasionally for simplicity, a flat rate per project may be quoted by either the client or the talent. However, any time you agree to a flat rate, you MUST clarify what the workload is and note that if the workload changes, so must the pay. “I don't mind flat rates if I know the workload in advance,” says Kamran Nikhad, “[but] if additional work is required, I notify them so that too is additional pay.”
Anything else you think freelance voice talent should be aware of when it comes to contracts? Let us know in the comments below!
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