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“Self Employed Professional”

A director’s appeal was recently accepted to a case where a group of actors asked for a minimum wage payment for a profit-share production. The controversy arose when two other actors were fired from the production. The director Gavin McAlinden and his company Charm Offensive Limited produced Pentecost by David Edgar in London in March 2012. A year later a “Landmark ruling” confirmed that the actors involved in the production should be paid the national minimum wage despite their initial agreement to participate in the collaboration with no guarantee of payment– only in sharing the profits that arose from it once produced.

Four out of 26 of the actors who took this case to court argued that the production was “not a collaborative artistic piece of work” and that they were contracted to work for McAlinden. There were certain times and days in which they were required to attend rehearsals and there was a sense of control over them by the director. One of the actors said, “We were told what to do, where to work – it was just like a normal job. There was no collaboration as such because we didn’t have any input into the finances. We didn’t know what was going on, there was no open book [revealing the finances to the company]. What made us take action was that he started firing people – in other words he [McAlinden] was the employer, he was the person with the power.” They were also even more upset when they discovered that some of the crew members were being paid.

The judge ultimately ruled that even though the actors knew they were signing up for a profit share production and that they probably wouldn’t make a lot of profit to share, the actors still should have been paid the national minimum wage because they were treated like and qualified as “workers” under the National Minimum Wage Act of 1998.

Flash forward another year and a half, the director’s appeal to this case verdict is passed. The main way into this appeal was that the actors were defined as self-employed professionals as opposed to simply “workers”. Director Gavin McAlinden’s statement included, “Acting is a very tough industry and I believe actors should have the right to say ‘yes’ or ‘no’ to profit share productions. Most profit share producers are completely devoted to the artistic process, work very hard and invest – and often lose – their own money. I was completely open with the cast – everyone knew and accepted that they were unlikely to make money. Nevertheless, we produced a critically acclaimed play, and it is a piece of work that I am proud of.”

From reading these two articles of the first verdict and then the appeal I can fully understand the Arts Journal heading of, “Apparently, Actors Aren’t ‘Workers’ And Thus Don’t Deserve Minimum Wage”. This particular case is a but more complicated than this strong statement. The controversy that arose from the original situation is where the real conflict is. The actor’s did sign up for this unpaid art project and a lot of arts collaborators often make projects without getting paid because it’s a personal passion. However, it did seem like the artistic atmosphere was not what the actors had signed up for and wanted to be reimbursed for their negative experience. Additionally, only four out of 26 of the actors were actually involved in lawsuit (some of the other actors were on the director’s side). In the end, the judge made his verdict and it complies with the laws of the government. This terms and arguments of the appeal are what really strike me and apparently also strike the writers of the titles of the Arts Journal article links.

With with having artists, specifically actors, labeled as simply “self-employed professionals” can be dangerous because of the large amount of actors who by the nature of their work would find it impossible to be counted as “workers”. Setting the precedent with this case is what organizations like Equity are established to work against. The case is said to be reheard in a month so hopefully there will be a clearer resolution.

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