During the Academy Awards show last Sunday, the “Best Actress” winner Frances McDormand unleashed on the world the phrase “inclusion rider.” That prompted a tsunami of chatter on the subject, including this by the Washington Post and this by Vanity Fair.
But I was interested in the rider itself, not explanations. So I asked around, and I asked on Twitter, but no one had a copy. I emailed one of the people responsible, Kalpana Kotagal, a civil-rights employment lawyer at Cohen Milstein, but I didn’t hear back.
I ended up having an exchange on Twitter with the Annenberg Inclusion Initiative (@inclusionists), a think tank at the University of Southern California. One of the people behind it is communications professor Stacy Smith, the other person responsible for the inclusion rider. What they told me was puzzling. They said “Lots of folks have the language,” that it’s available for industry use, and anyone who wants a copy can ask for it by emailing them, but they were unwilling to send me a copy. If they’re so keen to have the entertainment industry adopt this approach, and if they’re sending copies of the rider to “lots of folks,” why not send it to me?
The answer is to be found in this article by entertainment lawyer Jonathan Handel in The Hollywood Reporter. Here’s the relevant bit:
Smith first introduced the idea in a 2014 Hollywood Reporter guest column, but it lay mostly dormant until this year’s Oscar night. The media scholar says she’s not aware of any actors having used the rider, and entertainment attorneys say they’re unfamiliar with it. “Seen none. Have none,” says a top talent lawyer.
Yet Smith and Kotagal aren’t sharing the clauses they’ve crafted. “The language is for attorneys, actors and content creators — we don’t give it out,” says a colleague of Smith’s. “We want to avoid public negotiation,” says Kotagal, but the Washington-based attorney may also see secrecy as a ticket to Hollywood legal work. “Civil rights lawyers have a right to make money,” she notes.
So much for “lots of folks.”
I see two problems with Smith and Kotagal’s approach. First, it’s at odds with the way people create contracts in the information age. Once deal language starts being used, it starts being copied. Anyone who prepares distinctive contract language can claim copyright protection, but all that’s required to avoid a claim of copyright violation is to copy the idea without copying too much of the wording. (See my 2006 article on the subject.)
So it’s perhaps naive to think you can build a revenue stream by keeping contract language close to your chest. Instead, you get business through your expertise. Marty Lipton’s highly lucrative poison-pill legal work wasn’t based on his having access to the relevant Word templates—the documents in question quickly became public. Instead, clients sought him out for his expertise.
And second, there would seem to be a conflict between advocating that the industry adopt inclusion riders and wanting to limit distribution of inclusion-rider text. Getting the text out there might help prevent the inclusion rider from disappearing from discussion as rapidly as it arrived.
By the way, I have no reason to think that Smith and Kotagal’s inclusion rider is a model of contract drafting. In our Twitter exchange, @inclusionists said, “We had a civil rights attorney and expert on hiring and discrimination craft the language. Then, it was vetted by multiple entertainment attorneys and business affairs folks.” But what seems to be missing is any input from a contract-drafting specialist.
I’ve seen it described a clause that provides for the distribution of characteristics (gender, race, age, disability, etc) among the tertiary (i.e. relatively important) speaking characters to reflect the distribution of those characteristics of the population depicted, to the extent that is compatible with the plot.
Does it need to say much more than that?
There’s potentially a big difference between describing what a contract provision does and the words used in the provision. Given that they don’t want to make the text of the rider public, that’s likely the case here.
(Should have said “(i.e. relatively _un_important)” above. Doh!)
If you can accurately describe what the provision is meant to do then you should be able to write it down in contractual language …
As Robert suggests below, you can write some warm words into a contract, but what is the remedy if it is breached? To which you could add, how easy is it for the counterparty to wriggle out of the obligation?
There was something about this at the ABA Journal, with a link to a factsheet: http://www.abajournal.com/news/article/frances_mcdormand_has_people_asking_what_is_an_inclusion_rider/
“an inclusion rider might require the cast to be 50 percent female, 40 percent underrepresented ethnic groups, 20 percent people with disabilities and 5 percent LGBT people” … it “sets clear goals for inclusion … specifies the underrepresented groups to be included, defines a process for auditioning and interviewing, and sets objectives for casting and hiring” … and “creates financial consequences for studios that don’t engage in good‐faith efforts to interview and hire qualified individuals”
If the proponents do not want to release their drafting, it should not be too difficult for another public-spirited person to draft something to do this and make it freely available…
Yes, but again, that’s not the rider itself.
I imagine the attorneys who are drafting them consider them too confidential to share. (For example, maybe there are some terms that are so specific to a particular artist that it would be impossible or at least time-consuming to extract some generic language to share.) Maybe after they’re more widespread, you’ll be able to look them up in your Dunlap-Hanna.
No, their rider is generic: it’s not geared to the needs of anyone in particular.
Fair enough. But TBH if my client were someone at the level of Frances McDormand I don’t think I’d share the language with anyone unless she affirmatively asked me to!
It sure seems flexible/squishy. From the refinery29 article listed below:
The actual stipulations of the inclusion rider can vary on a case-by-case basis. “It’s not that rigid. It’s not like you need to have four women for these 20 roles. Rather, we strongly encourage you to build this diverse hiring pool, and then to look for opportunities to hire highly qualified folks from underrepresented groups in such a way that you’re matching the demographics of the world that you’re living [in],” says Kotagal.
I suppose phrases like “strongly encourage” and “look for opportunities…in such a way that…” could appear in a contract, but that isn’t language of obligation. Good luck enforcing it.
I’m not working in Hollywood, but I was morbidly curious about the language of this as well. Especially after some cagey responses from one of the proponents on NPR. Namely, what are your remedies? I’m an A-list Hollywood actor and I have a contract that includes, e.g., “40% of the catering staff will be people of color.” Maybe, but or what? I walk? I get a bonus? The film can’t be made?
Also, is Hollywood going to be able to stay within typical discrimination laws? You can’t ordinarily put out a “Help Wanted: Hispanics only” ad or discriminate in hiring. Which seems like something the drafters of whatever this inclusion rider thing ought to have figured out.
Thanks for your attempted research.
> “40% of the catering staff will be people of color”
> You can’t ordinarily put out a “Help Wanted: Hispanics only” ad or discriminate in hiring.
It would not run afoul of employment discrimination law to advertise something along the lines of, “Craft service companies that are certified women-, minority-, or LGBT-owned businesses are encouraged to apply.” That way, the producers are seeking to diversify the pool of applicants. Once they have their pool, then, no, they can’t reject an applicant for an illegally discriminatory reason. So an inclusion rider can require proof of some kind of effort to recruit certified companies into the pool of businesses that the producers considered for the final contract. An inclusion rider that required a specific ethnic makeup of the craft service personnel would be unenforceable.
As for on-screen performers, it’s absolutely OK for a director to specify exactly what their actors look like. Anti-discrimination law can’t force a director to diversify their cast. So an inclusion rider may require that, say, crowd scenes reflect the actual ethnic, gender, and age diversity makeup of the location they’re set in, or other scenes have an equitable number of speaking parts for male and female minor/incidental characters. (This is something that Geena Davis has been advocating for a few years now.)
> I walk? I get a bonus?
The first is definitely something an A-lister could include. Requiring a bonus would go against the spirit of what the rider is hoping to accomplish, I think.
> The film can’t be made?
If you mean this literally, I don’t understand how an actor can enjoin the production of a film just because a rider isn’t complied with.
Thanks. I appreciate that all the challenges set out are surmountable. And I agree that the idea seems generally positive. I’m just with Mr. Adams in hoping that we had actual answers on how these issues are being approached by their drafters.
Yet another “the language is readily available” quote in this article (https://www.refinery29.com/2018/03/192591/frances-mcdormand-oscars-speech-inclusion-rider-explainer) but there is helpful insight on consequences of breach (a question asked below):
>solution in case studios breach the contract. “Where there are failures,
as negotiated by the lawyers through this breach of contract process,
we’ve provided for a scholarship fund to be paid into by these studios
for filmmakers from underrepresented backgrounds.”
I don’t know everything, but I know that they would do better if they got Ken’s advice on making the language clearer.
To the extent it is still of interest, the full text of the inclusion rider template has been made available here: http://assets.uscannenberg.org.s3.amazonaws.com/docs/inclusion-rider-template.pdf