IT DEPENDS: What to Include in an Inclusion Rider?

Christopher Schiller sheds light on the history of the inclusion rider and how to avoid potential pitfalls that may arise when implementing one.

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Since Frances McDermond’s speech on Oscar® night everyone in the industry seems to be asking or attempting to answer the same question, "What is an “inclusion rider?" Since it is reported that Ms. McDermond had only heard of the subject a few weeks earlier herself, it’s understandable to want to know what an inclusion rider is and how it would impact Hollywood if we start seeing them in contracts. But as this series of columns often points out, just knowing how to define something is only the start of the battle of understanding what it is, what it could be and where it can take us. It is early days yet, but, this article will attempt to answer the broad questions, give caution on what to look out for and point out some pitfalls which might loom to trip up implementation. Then you’ll be prepared with what questions to ask when you find an inclusion rider on your own bargaining table.

Accounts trace the modern idea and conceptual model of the inclusion rider to a Hollywood Reporter guest column back in 2014 written by Stacy L. Smith, founder and director of USC Annenberg’s Inclusion Initiative. The legal language of the rider currently being discussed in Hollywood studio halls is being co-crafted by Kalpana Kotagal of the law firm Cohen Milstein. With the ever-changing nature of an evolving contractual clause, I will leave it to those curious to get in touch with these two groundbreaking women to see what is the current text of the moment. A good summary was articulated in the Washington Post article on the subject, written by Kalpana Kotagal.

From what I have discerned, Kotagal and Smith’s rider is focused on contracts of actors with power, but there is no reason not to consider anyone from a place of negotiation strength asking to include a contractual addition that requires the project employing them to ensure a work environment more reflective of minority and underrepresented sectors of society as a whole. That’s a laudable goal, but there are often hard realities between an ideal concept and realistic implementation.

Diversity in The Writer’s Room and Beyond

From the idealized to real is often a lot of treacherous steps that must be taken with care. Steps like, how do you make the imposed obligation enforceable? Without sufficient teeth the clause becomes empty words. How do you measure compliance? And in doing so how do you avoid the slippery and illegal potential of imposing a de facto quota system?

Kotagal’s dialog in the article above suggests imposing penalties that would place a financial stake in the effort’s success. She wholeheartedly refrains from anything that would be interpreted as a quota system. Which leaves most falling on language like “good faith efforts,” a legal vagary itself but with a history of interpretation by the courts as to what qualifies as sufficient or what just pays lip service to the idea. And what can be asked of the production is limited as well. Using language like giving due “consideration and encouragement” to the ideals allows flexibility in results achieved but leaves a lot of room for interpretation as to how much is enough effort towards the goal.

This morass of imprecise language used to impose a rigid obligation is not new territory in this industry. It’s similar to a writer who sells a script but wishes to still give input in the movie’s development asking for the right of “meaningful consultation” in production decisions affecting the story. Lots of room for interpretation and grey area, but it’s often the best that can be agreed to by both sides in an even sided negotiation.

Even when everyone is willing to strive for inclusion, there are barriers to a straightforward implementation that exist that have to be acknowledged when evaluating effectiveness of the efforts.

The opportunities for choice vary depending on the area being filled. For some categories of production, like atmosphere actors or day players, it is easier to find a diverse, representative sample of the general populace from the talent available.

But when you get to casting the lead actors there are many factors that limit those selections. Once we discount unfair bias (a BIG ask, I know, in our current environment,) there are a limited number of actors who will be able to fill the part properly to give the movie the best chance of success. They need to more than look the part. There is something unique in those choices. So much so that invariably the contractual language used to sign those actors contains the special language requiring the actor to provide “special, unique and extraordinary services” indispensable to the production. This basically acknowledges that a movie starring that actor will have a certain, assessable impact on the box office and therefore no other actor in the role will do. This binds the actor to the production, but, also guarantees that the actor cannot be replaced in that capacity on a whim.

These selections of specific actors have a cautionary tale. As parenthetically dismissed earlier, there is a strong bias of status quo or blind supposition within a swath of the industry toward what parts can be played by what actors. But even when these unfair biases can be overcome there could be issues of complexity. It was generally lauded when Angelina Jolie was cast in the originally male lead role of Salt (2010). But six years later when an equivalent gender swap was done with Tilda Swinton cast in the originally Asian male role of The Ancient One in Doctor Strange (2016) it was considered a great misstep in inclusion by a large, vocal part of the Asian community.

Developing Diverse Stories Featuring Disabled Characters

And even the most well-intentioned producers may be hampered by the industry structures they have to move through to staff their armies for production. Unions and Guilds are a big part of the industry and their protection of workers is paramount to their mission. Nearly all productions that hit the cinemas or television screens are what are termed “union shoots.” When a producer is intending to be as inclusive in hiring as possible they have to be attuned to the likelihood that the unions and guilds they are obligated to use to fill those ranks may not have memberships that reflect the broad spectrum of the general populous. You may want to consider employing a female cinematographer for inclusion purposes but when you look to the ranks of guild cinematographers you realize that there is a disproportionate lack of women among the qualifying members. Even as these professional groups recognize and address these inadequacies, the producers attempting to find equity in their own productions have to work with the realities in place with those third party groups they are obligated to deal with.

Visiting one more time that spectre of bias lingering in some Hollywood offices, the perception of “that’s just how things" are” needs to be re-examined and truthfully challenged. Just because you’ve “heard it said” doesn’t make it so. Especially when there are constant “exceptions” to the supposed rules. For example, the rule that you can’t have a success with a movie that stars old people. By that rule, RED (2010) should not have made money, but it made over $90 Million and inspired a sequel. Still there are those in Hollywood that practice agism because of the supposed “rule,” ignoring the evidence.

Or take another example of a comic book movie going against a “rule” and making a killing. The rule: films with majority black casts only appeal to a niche, black-only audience. The “exception,” Black Panther (2018) which by all accounts will set all kinds of records for any kind of movie before it’s done.

And for each of these perceived exceptions, there are quite a few additional counter examples that have to be explained away for the rules to have any merit other than being a cover for bigotry and prejudice. In implementing inclusion riders we will have to be diligent against flippant obstacles put up by adherence to similar “rules.”

Interview with Trey Ellis, Executive Producer of HBO's 'King in the Wilderness'

Another consideration that will impact the acceptance and viability of inclusion riders is how to weight the tallying of the evaluation of representation. Since the issue is industry wide, how do we evaluate success? Does every single movie have to have a reflection of the population as a whole? Or can the production slate of a studio in the aggregate over time balance out to reflect the world we live in, allowing for individual stories to be told with a skewed, but, appropriate perspective for that instance’s needs? As long as the overall representations are balanced and proper, leeway would allow for many more stories to be properly told while also alleviating the misrepresentation issues overall.

As with all new concepts (and old concepts) in contract drafting, we have to be cognizant of the pulls between ambiguity and intention in language used. If we leave a concept broad and illdefined on the page there is an opportunity for ambiguity to creep within the interpretation by the parties. Many a clause has had to be litigated because one side didn’t see the terms they were agreeing to similarly to how the other side did. Both sides could be willing to make strives towards inclusion but may have broadly different ideas as to what that means. Being explicit in the intention of the implementation within the language will assure that both sides are looking and evaluating results and responsibilities on the same criteria.

Also, language used outside of the contracts can assist in reaching the goals of inclusion. Here we can look to successful implementation of similar corrective issues for guidance. One issue of inclusion is getting those underrepresented to recognize that the chances of them getting the job are going to be higher because of the inclusion rider’s presence. We can look to the effectiveness of Federal Equal Employment Opportunities (EEO) language as an example to follow. In the job postings or casting notices that go out, a single additional phrase such as “Inclusion Rider In Effect” might cue more underrepresented candidates to try out.

Eventually the language used will take on meanings of their own, (e.g. the oft used term in copyright contracts is “in perpetuity” which, contrary to colloquial meaning of the word for those who understand copyright law is actually read as, “at least 35 years.”) It’s the well articulated intention that matters and how best to achieve and evaluate its effectiveness in achieving that goal.

The answers to how we need to best get things done will be discovered and soon. Nearly every day we hear of producers and directors that are pledging to use inclusion riders in their contracts. Joining the headliners Michael B. Jordan, Paul Feig, Ben Affleck and Matt Damon, are a host of producers who may not garner breaking story headlines for their actions, but, they see the advantage in adding inclusion riders to their offerings as well. It seems nearly everyone in Hollywood wants to be included in that club. Will it all work out as we hope? It depends...

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