Legally Speaking, It Depends: Age Is Just a Number, Right?

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base.

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One thing we have in common. We all get older all the time. And as we travel through our lives, our perspective is altered by our age at the time of each observation. Our twenty-year-old selves view things a whole lot differently than our seventy-year-old selves. As writers, we should realize that our character's age will color their world view, sometimes significantly, depending on the age we pick for our screenplay subject. But since we're creating their world from scratch, what should it matter the age we pick as long as we're realistically portraying that character's moment under the microscope? Turns out, it could matter plenty.

This column examines the consequences that flow from choosing ages for our characters in our scripts. Some of these effects are legal, some are practical and all will impact your script's particular marketability and your perceived professional savvy as a writer.

Anyone who's paid attention to screenplay formatting has noticed that when a character is introduced for the first time in a script, their CAPITAL introduction (wink) is accompanied by pertinent details about the character that serve to establish a first blush impression in the reader's mind's eye. Along with the visual impression the first look at the character commands, there is an opportunity to refine the definition of the person by including an age in parentheses. It can be a specific number (26), an age range (early 30s) or a vague ballpark (teen). It isn't a strict requirement but specificity can have its uses.

If you're writing a historical period piece, using real-life persons in a specific period in time, the accuracy of their real ages will serve the authenticity. If you are creating your scene out of whole cloth, every detail you can provide yourself of who your character is makes that person more real to you as you write. So if you decide your protagonist is of a certain age, what does it matter to anyone else?

It could matter a great deal.

Let's look at the matter of characters whose age falls somewhere between infant and just under 18. This is the domain of the “child actor.” Why is there a distinction? A long time ago, you know back in the days when there were factories using children in unsafe environments working long hours for little or no pay and no consideration for their well being, there was a movement to make things better. One of the changes instituted was the Fair Labor Standards Act of 1938. It's goal, among other things was to protect children and make sure that when they are allowed to work they can do so safely, in a health environment and their well being and educational opportunities are looked after. An example overview of the work opportunities and responsibilities for children in the United States is provided at this government website. Mind you that's a pretty big rabbit hole I just showed you. It's just an overview and it's highly extensive, with lots of links and details to get lost in.

And the federal government isn't the only one concerned with child worker issues. Every state has labor laws that might be even stricter than the Federal standards (there's a State Laws link up there too. I told you it was a rabbit hole. Poor Alice.) California and New York, you might have heard of productions being filmed there, are some of the most stringent.

Governments aren't the only protectors of young workers either. Unions do a standup job of making rules aimed at the same goals. SAG/AFTRA has a helpful list of the complex parameters involved in employing young performers under their auspices.

The young aren't the only ones who have complexities involved with their working in our industry. It is argued that when you start to get closer to the end of life it's riskier to employ an actor, director or other singularly irreplaceable role in a project since it can take years to bring to completion with millions of dollars riding on all parties being alive and available until the film is released. As people age it can become increasingly difficult to find insurance companies willing to issue a policy that would have to be paid out if the person dies or becomes incapacitated during the production causing costly stoppages, reshoots or cancellations of the project altogether. Moving forward without insurance becomes significantly risky, enough so that many older professionals are forced into retirement not because they can't do the job, but, that few are willing to take the risk that they'll not survive to the end.

This financial fear can often lead to a bias against competent and vibrant workers who are far from kicking the bucket working on a project. It's called “agism” is wrong, potentially criminally wrong and is an unfortunately still prevalent attitude among many in the industry.

As a writer should you avoid writing parts for the young and the very old? Of course not. But you need to be aware what choices made for the characters you create will mean for the production and potential marketability of the piece. Little Miss Sunshine wouldn't have worked with a 39 year old divorcee playing Abigail Breslin's part. But the rules and laws that come into play as well as the production considerations of the writer's choices must always be kept in mind. There's a world of difference for the production between a character who's 17 years old and one who's 19. Do those two years really make that much difference to the story?

And if they really do, there's always a little wiggle room.

You're only as old as you feel. Unless you're an actor. Then you're only as young as you can play. Face it, we don't all look our age. If you're still carded when buying liquor into your forties, good on you. If someone your own age calls you sir or ma'am, sorry. It's a fact of life. Actors use these aspects of their own looks to their advantage when they can. Most of their head shots/resume's list “can play” ranges, meaning, they can play roles that are a range above, below or around their biological age.

That's why TV high school looks so much more mature than the high school you or I remember. Because of the laws and rules discussed above (come out of the rabbit hole yet?) if they had tried to shoot Buffy the Vampire Slayer with actual teens in the roles, they'd probably still be shooting the first season. What they try to do when possible is cast young looking adults in the teen roles so that the rules are more lax and they can concentrate on getting the production done on time and budget.

Let's look at some examples for clarity. Suppose you've written a script and your main character could make sense being anywhere in their early twenties. You write the role using (20-25) in the introduction of the character. First off the producer breathes a sigh of relief that you haven't written an extra cost into the production by requiring too young a lead. She passes the script off to the casting director to get some ideas of who is available to play the role. Casting is a particular alchemy all its own, taking the specific requirements of the script (ethnicity, necessary quirks, particular skill sets needed, etc.) and trying to fit them to the available pool of talent. Just considering the age range given, the call might go out as stated and the actors whose agent's line up auditions might range in actual age from 18 to 40 but all who can “play” 20-25.

Now let's say you really need the angst that only a true teen can bring to the party so that's the age you set your pivotal role. The production will need to accommodate an on set tutor, allow for the adult guardian and accommodation to accompany the actor and create a schedule that doesn't go past the restrictions of the shorter hours an actor of such age is allowed to work on set per day.

In a word, it's all a matter of practicalities. And the most obvious responses aren't always the ones taken.

For example, the movie The Reader was an intimate, powerful story of an older woman and a young man's coming of age during World War II. It's a great film, if you haven't seen it so I won't spoil it for you, but, there are pivotal, intimate scenes that were probably key to Kate Winslet's winning her Oscar. Trouble was her co-star in those scenes, David Kross was young. Too young when shooting began, as judged by the laws governing the production, for him to be on set during those scenes. But the director Stephen Daldry and the production team chose a unique solution. They shot other parts of the film then paused production for an extended period until Mr. Kross' 18th birthday and then resumed shooting with a perfectly legal cast.

I've experienced age on the page affecting my own work. The London Screenwriter's Festival recently concluded it's latest incarnation. Back in 2011 they held a scripting competition for one-page screenplays based on “4 Nights in August” a series of riots that raged through the area. My entry didn't win, but, it got an unofficial but very literal honorable mention in the blog post listing the scripts that had made the initial longlist cut posted October 3, 2011. (To be noted, the blog post was written by my now fellow columnist, Lucy V. Hay. Small world, this is.)

According to the post, my script was knocked out because of problems in feasibility though the reader really enjoyed it. When you only have a one page script in a locked room with only one person on screen, it's pretty clear what makes it infeasible. How many no budget filmmakers would be able to find a seven year old child actor who could pull off a staring role? And do it legally?

So, with regard to the old adage, “age is just a number” that we started with, well, it depends...

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