I don’t think you’ve made a complete argument here. If a woman signs a contract to display her body, barring other considerations, then she’s indicating that she’s comfortable in displaying it. So, what exactly is the public policy that’s being proposed?
AFAIK, California considers porn contracts to be valid contracts. I’d have to do some research to be sure, though.
IMHO, the public policy at issue here is amply protected. The studio is only suing for the cost of replacing her for the scene. They’re not seeking specific performance or even recission.
Both situations absolutely should fit into the same category- but it seems to me I if can be held liable for damages the contract is being enforced. And the phrase I was looking for earlier has suddenly come to mind " specific performance". Courts rarely (if ever) order specific performance for personal service contracts but it doesn’t only apply to sexual acts .* There can be penalties, however - if a profesional athlete doesn’t want to play for the team that holds his contract , a court will not force him to play. But the court can prohibit him from playing for any other team until the expiration of that contract. A court is not going to force an actress to film any scene in any film, even if it’s playing fetch with a puppy. But if the actress refuses, she can be liable for the costs resulting from that refusal. It seems to me that the contract is being enforced if a penalty can be imposed.
I believe the “contracts against public policy” non-enforcement is more than just not requiring adherence to the terms of the contract. If I remember correctly, the judicial system won’t get involved enforcing a contract against public policy in any way. If I agree to pay you $10K for a quantity of cocaine and instead I receive a white powder that is not cocaine , I will of course not be able to obtain a court order requiring you to provide authentic cocaine. But I also won’t be able to get a court order requiring you to return my $10K.
Apropos of nothing, the show’s title is driving me bugfuck.
I mean, I realize that “femme fatale” has been pretty thoroughly Anglicized, and I suppose an argument can therefore be made for its plural being “femme fatales.” But dammit, it looks completely stupid to me. And I don’t even speak much French.
Sorry, carry on.
Specific performance is basically only available as a last resort; it applies to unique things. If I hire Peyton Manning, there is no substitute player who could replace him. So specific performance is appropriate there. Similarly, if I buy a house, and the seller refuses to complete the contract, I am entitled to specific performance because the house is unique (or at least the land it sits on is.)
I don’t think that Bricker is saying that he doesn’t think that the court can enforce specific performance (something that I think I have only ever seen in sales of real property), he is saying that the provision istelf is against public policy and void ab initio so you can’t even sue for breach of that sort of thing.
Lets say I contract with you to sell you my kidney for $10,000 and you have found a matching recipient who $1,000,000 for the kidney. Then I change my mind. The contract is void ab initio so you can’t even sue me for the $990,000 you lost because i backed out.
I agree with her and I hope she wins.
Union rules were not followed. She was forced to rehearse and perform on a non-closed set and in front of non-essential production crew. The scope and nature of the nudity and sex scenes changed drastically from what she first consented to. She agreed to some basic late night cable tv side boob and profile nudity. Her pasties and patch are improperly sized and aren’t staying on and they won’t fix the situation. She didn’t agree to nudity to that extent. She complains. So they threaten her.
She also didn’t agree to doing a rough sex scene and she certainly didn’t agree to another actor bleeding real blood from his mouth onto her face. That’s dangerous. Major violation of health and safety regulations. They don’t care. She ends up having to pay for STD testing on her own dime.
Would any of you let someone you don’t know get blood into YOUR mouth for the sake of a sex scene? I wouldn’t. Would you be upset if you agreed to some side boob and profile nudity on a closed set and when you got there your pasties and patch were improperly sized so they wouldn’t stay on so no matter what you consented to, the production company was getting the full monty and a rough sex scene to boot? So she walks off the job. Good for her.
And why do assume that her side of the story is the correct one?
Dripping real blood? That’s some method acting. Sounds more like someone bumped into something too hard and decided ot to stop the cameras, not a deliberate staging.
Of course, if the dispute is over the extent and character of the nude scene, it’s even more puzzling. What, was it like “I’ll pretend to hump under the covers, but I won’t pretend to do it rough?” They have a full wardrobe and makeup department, but none of the double-sided tape used to keep clothing in place? A piece of coverup that could come loose and tumble through the scene doesn’t sound like a useful makeup piece.
Again, this is Hollywood. If the actor is between 18 and menopause, female, and not doing a prime time sitcom, they better read the contract carefully. If it’s not their first job, they probably already know the answer, especially if they are larger than B-cup.
Specific performance is also frequently awarded in disputes over personal service contracts and in cases involving heirlooms.
So, a producer can give an up and coming actress a twenty page contract and have in there a list of the things she might have to do, and one of them is give someone a blow job, I she didn’t read the entirety of the contract, then she either has to give the blow job to be sued for damages? I see the logic behind it, but that doesn’t seem right.
Now, I think that service above and beyond the normal call of duty—and within that I’d include nudity—should require a separate, short and clear consent to be added to the contract. Kinda like the form I got when I rented an apartment and there was a single page I had to sign warranting that there was a working smoke alarm in the unit. Now, if it is that explicit, and she then signs that, then, she should be bound to the terms of the contract. Without something like that, I say no.
I have a really hard time believing that any actor is going to do a scene where he drips real blood - in her face or anywhere. Forget about health and yickness - real blood is not going to photograph well, and will cause problems with retakes.
Second, any professional actor who has been working more than five minutes knows that in a case like this the first thing you do is to call your agent, and let him or her figure it out. That is why you are paying him. Agents are almost always better at negotiations than actors, have a lot more clout (my in demand client John is not doing your next project if you are going to be a dick) and can have the animosity on him, not the actress. I’ve seen this at work and it is great.
NM - duplicate post
Sure: being naked and simulating sex against the will of the actress is more horrible than other chores required of performers.
We already recognize this level of concern when we carve out sexual harassment as an area of conduct specifically prohibited, and subject to more stringent boundaries, than ordinary assault.
She wasn’t required to give someone a blow job. Simulating a blow job or appearing nude is not above and beyond in the film business. She will lose this case unless there’s something else to it aside from appearing nude. If she agreed to dorsal nudity and they asked for frontal she may have a case. But asking an actress to fulfill the nudity requirements of her contract isn’t sexual harassment, and threatening to sue someone who doesn’t fulfill the terms of their contract is not bullying (not a legal term that I’m aware of) and not harassment.
Sure – but I’m arguing, at least (again) as a devil’s advocate, that since the contract provisions should be void as a matter of public policy, an act for breach does not lie.
Well, a woman may consent to sex, but revoke that consent at any time. She has an absolute right to revoke consent for sex, notwithstanding her prior grant of consent, and regardless of any previous indicia of comfort she had in having sex.
True?
If they’re suing her for breach of contract, then the question if whether a valid contract existed must be answered. I am arguing (again, for any who missed it, simply as a devil’s advocate) that a contract that requires a display of the naked body to a roomful of technicians and actors that make the actress uncomfortable and violate her personal boundaries should be considered against public policy, and therefore void ab initio.
It’s a good point, but given the amount of money state and local governments pay to get productions in their areas, and that I’ve never heard conditions of no nude scenes, it is going to be hard to consider this a matter of public policy. Would they also ban nude models? Not to mention the First Amendment issues.
Show business works on very different rules. An actor goes through a screening that would be totally illegal for most other jobs. The profile form one fills out when one joins SAG has all sorts of questions which if I asked a candidate, I would get my ass sued off. I understand why they are allowed to do it, but things work under very different rules. In regular business you don’t send pictures to avoid issues - in show business the head shot is your calling card.
BTW I totally understand her not reading the contract. That is what she pays her agent to do. But if she yelled at the production company by herself, it is a very similar situation as if one of your clients went to talk to the other party in a suit without you being there or even knowing.
You misunderstand my proposed public policy: consensual nude scenes are fine, just like consensual sex is fine. But nonconsensual sex is against public policy – so should nonconsensual nude scenes be.