IRELAND HAS A rich heritage in all things culture and art which is the envy of the world.
For such a small nation, we punch far above on our weight whether it be in literary talent, music or film.
The entire sector of the so called “arts” can be a difficult one to define per se, given the diverse range of people who operate within it, from the writers, musician, actors, dancers, painters, poets, publishers, producers and all of the other key technical background staff who help in bringing creative endeavours to life.
For many, the beloved arts industry in Ireland can be a precarious sector from an employment rights perspective, as a large proportion would be defined as freelancers or self-employed.
The Irish film industry in particular, a section within the arts, has a tendency to attract occasional criticism for its apparent failures in observing the rights and entitlements of certain workers.
Ireland’s film industry is booming and the Section 481 tax relief, which was introduced by then Minster for Arts Michael D. Higgins in 1993, has been often heralded as the turning point in establishing Ireland as a desirable location for international feature films and TV series productions.
The latest data estimates that the film and TV production industry is worth €692 million per annum to the Irish economy.
So it’s big business and has some big players, who benefit enormously from the state funding via Screen Ireland (formally Irish Film Board), Broadcast Authority of Ireland and tax relief schemes.
For international feature films and TV productions, major foreign production companies will link in with an Irish production company to appoint them as co-producers on a project that will largely be filmed in Ireland under a corporate structure called a Special Purpose Vehicle, which it can then avail of generous tax incentives and reliefs.
The Irish actors and crew working on these projects will be usually hired directly by the Irish co-producers under standard industry terms and conditions, many of which are subject to previously negotiated collective bargaining agreements between union representative “Irish Equity” on behalf of the screen actors and Screen Producers Ireland (SPI) on behalf of film and TV production companies.
Irish Equity which is under the Umbrella of SIPTU, has a relatively small membership of actors in Ireland of around 600+ and therefore questionable if they have the majority consensus or mandate of all actors within the industry. It does hold much less sway or power in comparison to its UK namesake Equity or the Screen Actors Guild, its counterpart in the US.
Therefore, it’s arguable that despite Irish Equity’s best intentions throughout the years, there has been a power imbalance when negotiating with the SPI, a well-resourced corporate entity.
As a result of these collective bargaining arrangements, which proved contentious in the past and required directions by the labour court type of negotiations over the last decade, Irish actors continue to be dealt a bad hand, which has created a perverse reality on Irish film sets, whereby an international film or TV series produced in Ireland, will likely have Irish actors receiving far less contractual benefits than their US and UK counterparts, despite having similar roles or levels of responsibility on such projects.
Therein lies the biggest anomaly within the Irish film industry, in that these legacy agreements or accepted industry terms have tied the hands of Irish screen actors when negotiating new contractual terms for new projects. The landscape has consisted of reluctant acceptance by actors to less favourable terms.
This somewhat forced conformity and adherence throughout the years have evolved in the establishment of inequitable industry norms, largely safeguarded against dissent.
The major disparity is the right to “residuals”, an important entitlement to royalties each screen actor receives on reshowings of the film or TV project. Depending on the scale, each actor will get an annual percentage, every time it gets aired on TV, sold to a streaming service like Netflix and Prime, or is re-released to cinemas or shown during flights.
There are exceptions of course for the high profiled actors on set, who headline a feature film for instance and can negotiate very favourable terms on a project basis through their agents. The legacy issues on residuals will therefore only be directly affecting the so-called “day player” who is subject to collective bargaining terms.
To “day player” actors, these residual payments can be crucial, which can help to financially support them in times of limited work or in crisis times like the recent pandemic.
In both the US and the UK, it’s an accepted industry norm for actors to receive residuals as was negotiated between their representative bodies in their own jurisdiction decades before. In Ireland, this is not the case and for most film productions, Irish actors will be signing away any entitlement to royalties to their detriment.
Production companies will argue that Irish actors receive excess amounts upfront to cater for such wavering copyright entitlements. This can be the case, but is a weak argument, given there aren’t many options, when these contracts are been signed.
Dissent does not usually occur during such commercial transactions, as such actors would risk being blacklisted or labelled a trouble maker by those who control such productions.
The plight of actors has received little attention at Government level apart from the admirable efforts of TD Richard Boyd Barret, who has remained vocal on the topic for the last number of years.
In 2021, for instance, he garnered some notable social media headlines on the topic, when he referenced Disney’s then-upcoming production in Ireland and that it should be renamed “Disenchanted” rather than its title “Enchanted” in the Dáil. The then Taoiseach Micháel Martin essentially played it safe utilising the go-to political response of “We’ll look into it”. It has been this level of apathy since and lack of scrutiny at the cabinet level that has assisted in this residual injustice prevailing within the industry.
Big changes from Artificial Intelligence (AI) and streaming platforms such as Netflix, Prime and Apple are now bringing serious challenges to the film industry at the international level and have led to the ongoing Hollywood actors and screenwriters’ strikes in the US.
Irish Equity members held a solidarity rally on 19 August in Dublin, in support of the SAG-AFTRA and Writers Guild of America strike, and provided a timely opportunity to air their own grievances and educate the general public on their residual plight.
Pay and working conditions of both actors and all crew in the film industry, tend to operate at a standard below best practice from an employment law perspective and such deficiencies will take time and effort to remedy. A good starting point would be for focus and priority to be placed by the Government in addressing these residual disparities for actors and placing their intellectual property rights on par with the standards traditionally promoted and maintained in the US and UK film industry.
The impressive brand of the Irish film industry internationally is one based on talent and excellence, which stems from all those professionals who operate within it at every level and in particular the onscreen performances.
This carefully crafted image risks being severely tarnished, if Irish actors are denied their copyright entitlements for such performances in the future, leaving an air of disdain and injustice.
Jason O’Sullivan is a Solicitor and Public Affairs Consultant at J.O.S Solicitors.
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