This doesn’t make any sense. It’s inherent in a contract that everything is consensual (bargain-for-exchange, meeting-of-the-minds and all of that). If you’ve signed a contract for nudity, then you’ve consented to the nudity. If there’s some other doctrine (like duress or mistake-of-fact) that voids the contract, then it’s void because of that doctrine, not because of the nudity.
How does a written contract develop into a non-consensual demand for nudity? You have to override it with another contract or we’re probably in criminal territory. Now, we could propose that a contract for nudity must be in writing, so you couldn’t verbally make or override a contract to include nudity. But that’s not the same as contracts for nudity being void as against public policy.
Turning it around, what’s the public policy basis for enforcing porno contracts? Porno isn’t protected by the first amendment and it’s legality isn’t even wholly clear cut.
Similarly, what’s the public policy basis for enforcing contracts made with Playboy enterprises? Has this ever come up?
I’m coming around to Miller’s POV actually. There’s a line between porno and skinemax to the extent that the legal status of the former isn’t entirely settled. But if there’s a business where the legal status is settled, and there’s no explicit law saying that contractual enforcement will be withdrawn for specified activities not in the public interest, then courts should assume that the contract is enforceable. *
With some exceptions that our legal eagles can describe. No, I have nothing specific in mind.
Ookay then Devil’s advocate 2: if a legislature said that softcore porn contracts were unenforceable, would that create due process issues?
Devil’s advocate 3: Presumably some civil rights statutes could be mentioned, but I didn’t find anything immediately obvious when I skimmed the complaint.
Finally: in practice I think it should be permissible for a person to sign an enforceable contract that requires them to do something that would make some uncomfortable. I also wonder why the actress’s agent wasn’t called.
ETA: I forgot that we’re talking about simulated sex in cinemax. Maybe it could be argued to be something like porn.
So, an actress signs a contract wherein she agrees to take off her top for a scene. The production company sinks significant resources into putting together the shoot. At the last moment, the actress says, “You know, I think I want twice as much money to do this shoot. Pay up or I walk.”
Does the production company have any recourse there?
“That’s a matter between the actress and the production company. The state has no interest in enforcing their agreements. Of course the actress would suffer a loss of reputation which would cap her bargaining power.”
The actor’s risk is that she’ll never work in Hollywood again.
I’m no ideologue. I don’t think we should analyze from first principles. Rather, I think the production company has an interest in not losing money, AND the actor has an interest in protecting his control over his body. I think public policy ought to balance these interests in a manner similar to how medical studies balance the interests of researcher and research subject, leading to a situation in which the researcher isn’t fucked, but the subject also isn’t coerced into something icky.
If we set up the policy I propose in advance, her contract will have been written such that if she walks, that’ll become public knowledge, and she gets paid nothing for any scene she’s done so far. The production company will lose money. She’ll lose money and reputation. It’s a very risky move for her to make.
I’m not convinced that the subject is coerced into something icky under what I understand to be the status quo, where nudity and simulated sex contracts are enforceable and actors are represented by agents.
If actors can ever end up in a situation in which they must simulate sex or face crushing financial ruin, I think that’s got an uncomfortably coercive vibe going on. Is that currently the case?
Sure - but if she freely signed a contract it could be consensual, right? I thought you were saying that a contract freely agreed to should be invalid if it contained terms against public policy, in this case nudity. My understanding is that contracts not freely agreed to are invalid no matter what.
I don’t know frankly. That’s a well framed question. In a world where people never get cold feet, that shouldn’t be a problem IMO. Simulated sex is still acting, and I’m assuming the actor was represented at least semi-competently. (It would be another matter, if this wasn’t a late night skinemax production. In other words I’m ruling out bait and switch.)
The actress in question isn’t claiming cold feet, but that’s the sort of human thing that the law might make allowance for. (I think it might in some contexts, but I can’t remember the example - I vaguely recall a reference to unanticipated cold feet in the Economist years back. I think they were debating a proposed law though.*)
But say there’s no cold feet. Crushing financial ruin is the consequence of all sorts of behaviors. That in isolation shouldn’t be a problem, not that you said it was.
ETA: Oh yeah: they were discussing paid surrogate motherhood.
Oh - I thought you were saying this was planned.
And she couldn’t ruin the take by any one of a number of actions? hell, takes get ruined for plenty of reasons without horrible things happening.
I can believe anything of a sleazy non-union job - but this wasn’t one of those.
Non-consensual sex is obviously a crime in and of itself. So let’s make a less controversial analogy.
Let’s say you’re planning on visiting the Western NY area for a week and you mention this here on the board. And I post, “Hey, Bricker, I’m going to be out of town that week. Why don’t you save the expense of a hotel and stay at my place?” You like the idea and take me up on my offer.
And then a few days before your trip, I contact you again and say, “Bad news. My travel plans have been cancelled. You can still come and stay at my place but I’m going to be there while you’re visiting.”
Now being as our agreement was just a social agreement, I think you’ll agree the original terms are unenforceable. You can’t compel me to vacate my house based on my original promise to be out of town while you were there.
But suppose we had made a more formal arrangement. Suppose I had told you I’d rent you my house for a week for $300 and you had paid me that amount. And we had a written contract specifying I would not be present. At that point, the terms of our arrangement have become enforceable. We signed a contract, you paid me, and you can legally kick me out of my home for the week in question. Or sue me for the $300 and the cost of the hotel room you ended up staying in.
That’s the difference between a woman agreeing to take her clothes off in a social setting (“I’ll give you a strip-tease for your birthday”) and a woman signing a contract to take her clothes off for a job. The first woman can change her mind without consequence; the second woman is legally obligated. She can’t be forced to fulfill the contract (and Greene was not forced to do the nude scene) but she should face the financial repercussions for breaching her contract.
But it’s not a balanced situation. Under your suggestion, the only thing the actress is putting at risk is her salary. And she’s probably only being paid around a thousand dollars a day. The studio, on the other hand, may have a hundred thousand dollars in production costs sunk into that same day’s shooting. Your plan would allow any performer to take the production hostage once shooting has started.
So I think the studio’s position is reasonable. If an actor intentionally refuses to complete their job, they not only forfeit their salary but are also at least nominally responsible for the lost cost of the production their refusal caused.
Bricker’s DA argument is nonsense. As has already been noted, the contract is for something that is perfectly legal, and therefore can’t be considered harassment, which is illegal. A contract would be void if a woman signed on to be a secretary, and that she would have to accept slaps in the ass from partners and must listen to sexist jokes at least 5 times a day.
Baring your breast in a film is not illegal. If you sign up to do it, and then back out, you are in breach of contract. If we were to declare that nude scenes were harassment, plain and simple, then they should be illegal across the board. It’s not so much whether this particular person would be “uncomfortable”, but whether a reasonable person in her position would be. And a reasonable actress who signed on in advance to do a nude scene would not find herself “uncomfortable” upon doing the scene. If that were the case, then it should be illegal to ask any actress to do this.
“Tough luck for the studio. The government has no interest in enforcing a contract involving simulated sex. That’s a matter between the actress and the studio.”
Policy wise, the question is whether you want to put the hammer on high cost softcore porn, to the relative benefit of low cost porn (hard or soft). (Also to the benefit of actresses who can credibly demonstrate an interest in continued softcore employment.) If the production crew is just a guy and a camera, the actress would have less bargaining power. As I see it the question turns on whether we acknowledge a bright line between filmed simulated and actual sex. I think we do.
No. As MfM suggests, I think she can reasonably be put out of a paycheck, but not charged for an entire production. It’s a compromise position.
For one production. After which she’d never get another job. And I suspect that most production companies would rather eat the cost of one production rather than show that they’re vulnerable to such blackmail. An actress who attempted to use blackmail would be far from secure in her success, and be almost certain to limit her viability in any future such productions.
What she would be would be at risk for losing her life savings.
And yes, there are plenty of other contractual situations where people can be at risk of losing everything if they back out. I posit that sexual behavior is different for a lot of folks than other things you’d contract for, and that it’s appropriate for the law to recognize that difference.
But it doesn’t have to be nudity. An actor could stop production for any reason, including “I’m just not feeling the role” if they could do so at minimal risk.
