Frances McDormand famously left the 2018 Oscar audience wondering what an “inclusion rider” was, after ending her Best Actress acceptance speech with the two words. In the days after, commentators did provide some description that the phrase refers to a entertainment contract clause relating to diversity, but the understanding ended there for most people.
Whether inclusion riders will set the entertainment industry on its head and increase the power and presence of minorities in the TV and film world, remains to be seen, but, for those with the bargaining power and will to incorporate an inclusion rider into their own contracts, what matters is the language actually included in those individualized contracts. Below is a brief overview of what you should be thinking about when considering incorporating an inclusion rider into a contract.
Defining What an “Inclusion Rider” Specifically Entails Is Up to the Parties
Like many phrases you might see in the world of transactional law, “inclusion rider” does not refer to any law, regulation, or statute that you can look up, but instead is a general descriptive term to refer to a certain type of clause that a party wants included in a contract.
What an inclusion rider (also called an “equity rider,” the term given by USC’s Stacy L. Smith, who helped popularize the concept in 2014) covers and how it is enforced is going to be up to the parties involved in drafting the contract. Simply saying “I want an inclusion rider in my contract” may give your lawyer some sense of what you are trying to accomplish, but he or she will need to develop specifics of what exactly you are trying to accomplish, and, just as important, how it should be accomplished.
Who Are You Seeking to Benefit? And In What Positions?
In general, an inclusion rider requires one of the signers to the contract (e.g. a studio or network) to make efforts to increase the number of an underrepresented minority (or minorities) involved in a production. While we have seen these discussed most prominently in the production of feature films and television, inclusion riders could conceivable apply to just about anything, including theatre productions, music productions, or any other media or non-media venture.
Thus, you will want to decide specifically: 1) what minorities you want to be benefitted; and 2) in what roles on the production.
To the first question, you may want more women included in the production, but an inclusion rider could be used to benefit members of racial minorities and/or LGBQT individuals.
To the second question, you may seek to include more of these minority members in acting roles, whether in speaking or non-speaking roles. Or you may want more of these individuals represented in production roles, whether in above-the-line positions such as directors and cinematographers or below-the-line positions such as location managers or art directors.
Making Sure Your Inclusion Efforts Are Actually Enforced
Of course, simply saying that you want the other party to make efforts to promote inclusion of underrepresented minorities is vague and difficult to enforce.
First of all, the inclusion rider should define, to the extent possible, what those efforts should be. Certainly, you want to leave room for the parties involved in your production to make discretionary choices which increase the overall artistic value of the work, but there should be enough specificity in the rider to make it relatively clear whether inclusion efforts have been made. Perhaps this means requiring a casting director to audition a certain percentage of actors belonging to an underrepresented minority (or interviewing candidates for production roles). Perhaps it means requiring that the percentage of background actors and secondary actors of an underrepresented minority match the demographics for a given location (e.g. a film shot in a location which has a 50/50 male-female population should include 50% of its roles for women).
Finally, to make the inclusion rider actually mean something, there should be provisions for reporting on inclusion efforts and enforcing the requirements of the inclusion rider. This could include requiring a studio to keep detailed records of what efforts it took to comply with the rider, such as the demographics of the people auditioned or interviewed for the project and their relative qualifications. With regard to enforcement, the rider might name an outside consultant who can certify whether the efforts were actually done in good faith and in accord with the requirements of the rider.
Inclusion is an incredibly important and worthwhile goal for all types of media productions. But making sure your inclusion rider is not just for show and will actually achieve the goals of inclusion will generally require precise language, a well thought-out strategy, and keen negotiating skills. If you have questions about inclusion riders, contact The Fried Firm to schedule a consultation.