Inclusion riders: Cause of the day or here to stay?

April 5, 2018 Media 0 Comments

Los Angeles Daily Journal, April 5, 2018

 

Like many things, the issue will come down to negotiation power, leverage, fear of negative publicity and loss of potential revenue at the box office by the studios for failure to act equitably. 

 

Glen A. Rothstein
CEO and Founder, Rothstein Law APC

Two little words sent big reverberations throughout the Hollywood community and beyond at the conclusion of this year’s Best Actress Frances McDormand’s Oscar Award-winning acceptance speech: “inclusion rider.”

Simply stated, an inclusion rider, or “equity clause,” is a contractual provision that actors and actresses with requisite bargaining leverage can demand to have placed in their contracts that mandate a certain level of diversity among a motion picture’s cast and crew. Particularly, A-list actors and actresses, who enjoy especially strong negotiation power, can use the inclusion rider to insist that certain speaking characters match the gender setting for the film as long as it is reasonable for the plot.

For example, females represent a little more than half of the U.S. population. However, recent studies reveal some startling statistics, including: (a) only a little over 30 percent of speaking roles were female; (b) women represented less than 5 percent of directors and less than 2 percent of composers; (c) less than 30 percent of speaking characters were from non-white racial/ethnic groups, compared to nearly 40 percent in the U.S.; and (d) less than 3 percent of speaking roles were characters depicted with a physical or mental challenge, despite the fact that nearly 20 percent of people in the U.S. have one.

Inclusion riders can and have been crafted to include requirements that hiring and casting is tracked and analyzed. If they do not meet clearly defined terms set forth in the contractual rider, studios are subject to financial penalties or other forms of sanctions, such as mandatory charitable donations that do not create actual interference with the commencement and production of the project itself.

Catalysts for Change

The #MeToo and Time’s Up movements certainly have become catalysts for immediate change.  Many celebrities and athletes, with their increased ability to impact societal and political change via social media and other new ways of reaching the masses, will no longer stand on the sidelines and shut up and dribble or keep silent and merely recite dialogue. Youth-led movements are stronger, more-organized and comprise younger individuals that are more politically active and informed than ever (and compromise the largest number of the traditional studio box office consuming viewership), so grassroots pressure, if it continues, is also a catalyst for meaningful positive social change at the studio level.

In many ways, the potential demand for inclusion riders is a natural outgrowth of the NFL’s “Rooney Rule,” named after Dan Rooney, who once owned the Pittsburgh Steelers and was chair of the NFL’s diversity committee. Instituted by the NFL in 1993, the rule mandates that NFL teams must interview at least one minority candidate for head coach openings or be subject to league enforced sanctions. Kalpana Kotogal, a pioneer for diversity in the entertainment industry as well as the creation and concept of contractual “inclusion riders,” has acknowledged that the idea behind inclusion riders was at least partly inspired by the Rooney Rule.

An effective and enforceable inclusion rider system in the traditional studio/talent entertainment context may actually have more teeth than the Rooney Rule, however well-intended that rule may be. The difference between the Rooney Rule and inclusion riders is that the proof will actually be in the pudding: It is nearly impossible to prove a sham interview occurred for minority candidates in the sports context while one can simply look at the big screen and surrounding behind-the-camera participants to see if the cast and crew reflect the diversity that the actor or actress contractually bargained for.

The Future of Inclusion Riders

Like many things, the issue will come down to negotiation power, leverage, fear of negative publicity and loss of potential revenue at the box office by the studios for failure to act equitably.

But the tide is turning and the social environment we live in today provides a greater opportunity than ever given the national political divide as well as the recent scandals that have ravaged Hollywood for celebrities to stand up and use their influence to promote meaningful, impactful and positive change, both collectively and individually. The time for change now, but it must be strategic, well-thought for both the short and long haul and, most importantly, create a system of enforceability that will gain widespread acceptance by the studios throughout the industry without fear of reprisal by imposing stringent quotas or other standards as well as allow them to maintain their ability to ultimately control their product and take all reasonable measures to ensure profitability.

Ben Armistead
Legal Editor
ben_armistead@dailyjournal.com

 



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