Whether you’re Sharon Stone, Leonardo Di Caprio, or a young actor just embarking on your low-budget, independent feature debut, if the script calls for any nudity, sexual acts, or simulated sexual acts there are several important issues and conditions that need to be negotiated and concluded before the cameras can roll.

While the Screen Actors Guild Basic Agreement (“SAG Agreement”) provides a good starting point for minimum basic protection, there are a number of other protections which may be negotiated. Since many independent films and international co-productions are not SAG pictures, the minimum SAG protections outlined below should be negotiated into the release along with the other considerations discussed below.

THE SAG PROTECTIONS

1. Before the performer ever appears for an audition or interview for the Picture, the producer is required to notify the performer or his representative of any nudity, sex acts, or simulated sex expected in the role (if known at the time of the interview by the producer). Additionally, if an interview or audition itself requires any nudity, the performer must have prior knowledge of such requirement and also has the right to prior notification and the right to have a person chosen by the performer to be present at the audition.

2. During any production requiring nudity, sex scenes, or simulated sex, the set shall be closed off to all those having no business purpose in connection with the Picture.

3. No still photography of nudity or sex acts can be authorized by the producer without the prior consent of the performer.

4. The appearance of the performer in a nude or sex scene or the doubling (the use of a body double) of a performer in such scene requires the performer’s prior written consent. This consent must be obtained prior to the performer’s commitment to the role or the contract being signed. Additionally, if the performer has agreed to appear in such scenes and then subsequently withdraws his or her consent, the producer will have the right to use a body double in future scenes but the consent cannot be withdrawn as to scenes already photographed.

ATTACH PAGES OF THE SCRIPT

It is a good idea -- so that all parties are crystal clear on the exact nature of the sex and/or nude scenes -- to attach each and every page of the script requiring nude scenes, sex scenes, or simulated sex acts to the nudity release along with a general description of the extent of the nudity and the physical contact required in the scene so that there is absolutely no misunderstanding as to what types of activity and conduct will be required during rehearsals and/or principal photography. For example, if the script simply states that the characters have intercourse...what types of intercourse and positions are expected from the actors as well as how much screen time is anticipated for each sex act, should be agreed upon in advance and detailed in the writing.

CONSULTATION WITH THE DIRECTOR

It is also a good idea for all parties concerned to insure that the performer and the director will consult with each other prior to the performance of the nude scenes,  sex scenes, or simulated sex scenes. Naturally, with photographers, gaffers, grips, make-up and other essential people on the set, it is important to develop a level of comfort and trust among the participants. Additionally, the scene may require unique and special choreography and timing to be photographed artistically and in accordance with the director’s overall vision for the picture. Finally, as will be discussed below, there may be additional restrictions on how the scene must be photographed, i.e, no “below-the-waist nudity’ or the showing of any pubic hair or genitalia.

In any event, preparation of the nude scene in consultation with the director gives all the participants involved the opportunity to spend some time together and actually rehearse the scene to achieve the most favorable result.

While this consultation is good for creating the right atmosphere to shoot the best possible nude scene, sex scene, or simulated sex scene someone on the set must have the final say on how the scene will be shot, and it is generally agreed that the director’s or the producer’s decision will be final and controlling, in the event of a disagreement, provided that the scene is shot in accordance with the description of the scene included in the script (presumably to which the actor has already consented).

BELOW-THE-WAIST NUDITY

Nudity releases many times have restrictions on the extent of the nudity which can be photographed. Many representatives, on behalf of their clients,  will attempt to negotiate provisions which restrict below-the-waist nudity both frontal and rear as well as the showing of any below-the-waist genitalia or pubic hair.  Negotiations concerning these matters became more prevalent after the infamous Sharon Stone interrogation scene in “Basic Instinct,” after which Ms. Stone reportedly claimed she was unaware her private parts would be visible to the extent that they actually were in the film.

Obviously it is very difficult during the photographing of such a scene to control the camera such that the parts of the body below the waist will not be photographed. Accordingly, actors’ representatives will sometimes also negotiate provisions which allow the actor to wear various undergarments during the shooting to protect the actor from the moving camera or the inevitable mistake or blooper, as well as outtakes of unused scenes.

For artistic and business reasons, the producer and the director obviously want to have the widest latitude possible so that they have flexibility when they are assembling their movie in the editing room. As a result, many times a provision is also negotiated which allows the producer to photograph below the waist nudity at all times, but requires the producer to furnish the edited scene in the movie which includes the below the waist nudity to the actor for his or her review and written consent with the further understanding that the actor will not unreasonably withhold consent. Since time is money in any production, it is important to have a timely deadline for the approval or denial of the use of the scene so as to keep post-production and completion of the film on time and on schedule.

USE OF DOUBLES

The use of body doubles is an important consideration in any nudity release, and often the most sensitive, as it can -- in some ways -- misrepresent the performance by the original actor. The performer simply may not want to have another person’s body representing the performer’s body in a film that will be exhibited in all media worldwide. Additionally, the performer may not want the scenes that he or she agreed to in the nudity release enhanced, expanded, or demeaned by the use of the photography of someone else’s body.

As a result, if the use of a body double is contemplated in any nude or sex scenes, it is important to lay out in detail under what specific circumstances the body double may or may not be used, particularly in circumstances in which the SAG Agreement, which provides certain protections, does not apply.

RESTRICTIONS ON JOURNALISTS AND PHOTOGRAPHERS

In many cases, an actor’s worst nightmare is to wake up in the morning and learn, as Leonardo Di Caprio recently did and Pamela Anderson Lee has learned on several occasions, that his or her nude photograph and/or video is now available on the Internet and, may end up published in a national magazine.

While the SAG agreement requires the written consent of the performer, prior to the authorization of still photography of nudity or simulated sex scenes, many actor’s representatives feel that this protection does not go far enough. For example, although there is a general restriction on persons having “no business purpose” whcih is vague at best, there is no specific restriction on “behind-the-scenes” or “making of...” video photographers, nor is there any restriction on the presence of journalists. An actor may not want a journalist to describe in writing for a publication or news show the specific events and circumstances surrounding the photography of the nude scenes, sex scenes or simulated sex scenes, and he or she will want to be absolutely certain that a third party news or video production company is not photographing these scenes for later use, which could be beyond the producer’s control.

In order to close up some of these loopholes, many nudity releases include specific restrictions against not only still photography but journalists and third party video photography.

PERMITTED USES; ADDITIONAL RESTRICTIONS

On the other side of the table, the producer and distributor, having invested a substantial amount of money in the production and distribution of the Picture, and need to have certain rights to distribute, exhibit, advertise, promote, and market the Picture with the actor’s performance in the nude scene, sex scene, or simulated sex scene included in the final edit of the Picture. After all, they certainly wouldn’t have undergone the laborious negotiation of a nudity release if they didn’t have the full right to use the scene to pay off artistically or commercially on screen. A broad grant of all of those rights, including, without limitation, the right to use the actor’s name, likeness, voice, and photograph is normally included in the nudity release. However, an astute actor’s representative will certainly limit this broad grant of rights by specifically excluding any nudity or photography or likenesses of the actor engaging in sex acts from merchandising items, commercials and/or the marketing, advertising , publicity and promotion of the Picture, unless the performer has agreed to such uses in writing. Additionally, strict conditions on the right to use (other than in the release of the Picture itself) the actor’s nude performance as seen in the negative of the Picture and all outtake footage are also customarily negotiated.

CONCLUSION

The above topics include the basic considerations in negotiating a nudity release. The release is typically either included in the contract for the performer’s services or is attached as a rider to the contract and is signed simultaneously with the execution of the actor’s agreement. For the protection of all parties, it is a good idea to have these issues ironed out, drafted, negotiated, and concluded and signed prior to the shooting of the specific nude or sex scenes.

As with all motion picture production contracts, an experienced agent or entertainment lawyer should participate in the drafting and negotiation of these special provisions.