Independent films get made by people who show up for nothing. A classmate runs sound for a week. A cousin drives the van. Three students from the director’s program work the whole shoot for a credit and lunch.
Every one of them is glad to be there. Two bodies of law look at them, and they reach different answers.
Wage Law: A For-Profit Company Cannot Take Free Work
Volunteering, in the legal sense, belongs to nonprofits and public agencies. The United States Department of Labor says the Fair Labor Standards Act requires for-profit employers to pay their employees. Its volunteer exceptions reach government agencies and charitable, religious, civic, and humanitarian nonprofits. A production company formed to make and sell a picture is a for-profit business, however small the budget.
Under wage law, the classmate who runs sound for a week looks more like an unpaid employee than a volunteer. A signed volunteer agreement shows what the parties intended, and nothing more.
Workers Compensation: No Pay, No Coverage
New Jersey requires every employer to carry workers compensation. The statute defines an employee as a person who performs service for an employer “for financial consideration.” A person who works for nothing usually falls outside that definition. In 2012 a New Jersey judge of compensation denied benefits to a thrift store volunteer and held that a store discount was not financial consideration.
That leaves the production exposed, because workers compensation also protects the employer. An injured employee generally cannot sue the employer in court. A helper outside the Act keeps the right to sue the production for negligence, and a negligence claim can recover pain and suffering, which workers compensation does not pay.
The analysis changes once anything of value changes hands. A stipend or a per diem can supply financial consideration, and so can free housing on a distant shoot. A crew member paid that way is likely an employee under the Act and needs to be on the policy.
The Act also excludes casual employment. For work connected with the business, casual employment means employment whose occasion “arises by chance or is purely accidental,” in the words of the Act. A friend who drives the van one afternoon because the driver called in sick may fit that exclusion. A friend who drives for fourteen days does not.
What to Do Before the Shoot
List everyone who will work on set, paid or not, and send the list to the broker. Ask which of those people the workers compensation policy covers and what covers the rest. Some productions add an accident policy for unpaid helpers. Read the general liability policy for how it treats them as well.
Pay something if the budget allows. A small day rate run through payroll gives a crew member a clear status. The person becomes an employee, on the policy and inside the wage rules the production already follows. Budgeted from the start, it costs less than most producers expect.
An unpaid internship holds up only when it is built as one. The Department of Labor applies a primary beneficiary test to unpaid interns. It asks whether the internship connects to the student’s formal education, fits the academic calendar, and supplements paid staff rather than replacing them. A student doing the work a paid crew member would otherwise do is unlikely to pass.
What the Agreement Should Still Do
A credit-only agreement still does work that has nothing to do with wages. It should give the company everything the person creates on the picture, as work made for hire with a backup assignment. Camera assistants take stills, sound people keep recordings, and a set designer’s drawings carry their own copyright.
The agreement should also keep the first look at the picture under the company’s control. It should record that the person will follow safety instructions and report hazards. It should state the credit, leave placement to the company, and say that no compensation attaches to the credit.
New Jersey Now
For an independent production, the New Jersey film tax credit pays thirty-five percent on qualified New Jersey wages. A crew member paid through payroll earns the production credit on that money. An unpaid helper earns it nothing.
Most producers are not looking for free labor. They are making a film on money that does not stretch, with help from people who love them. That is the reason to settle pay and coverage before the first day of the shoot.
Alex Aldea is a Partner at Weiner Law Group LLP and Chair of the firm’s Entertainment Law Division. He serves as production counsel to independent film and media companies in New Jersey. This article is general information, not legal advice, and does not create an attorney-client relationship. His direct line is 973-503-1881, and his email is [email protected].