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Disputes arising out of 'pay-or-play' deals between film producers and talent are among the most fertile and reliable breeding grounds for litigation in the entertainment industry. In the last year alone:
And for every dispute that results in the filing of a lawsuit, one can safely assume that there are several more being fought out behind the scenes, and either arbitrated or settled.
From a practitioner's standpoint, it might be asked why the same basic deal point gives rise with such frequency to high stakes lawsuits, particularly given the widespread agreement in the industry on its meaning. Simply put, and as various courts that have been called upon to construe pay-or-play language have found, a pay-or-play commitment generally entails a promise to compensate a person whether the person's services are used or not.
Yet as straightforward as this concept may seem at first blush, pay-or-play agreements between talent and producers or studios frequently involve nuances and applications that, in combination with the monetary amounts at issue, can create flammable situations. While each pay-or-play dispute is factually unique, many conflicts in this area tend to share certain common traits that allow for some general observations about why misunderstandings concerning the meaning and effects of pay-or-play deals recur, as well as some ways that such disputes may be prepared for or avoided.
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