Since the topic is being discussed somewhat, thought I might share this 2015 Master's thesis by Praesalin Chaowalitthat that I came upon recently while looking up stuff: Unfair contract terms in actor's contract
Here's the English-language abstract:
Actors have some unique characters in their professions and such characters make them differ from other kinds of occupations and employees. Therefore, there should be a set of special law to protect their rights. Nonetheless, there is yet to enforce any special law to protect this profession, law enforcers thus resort to adopt some existing laws that are deemed suitable for each case. Contracts for hiring actors can be divided into two type, which are the Work Made for Hire Contract and the employment contract. Under normal circumstances, Adhesion contracts are used between the producers as the employers and the actors as the employees for both parties’ convenience. By using the adhesion Contract, the employers hold more bargaining powers, since they can predetermine and pre-regulate each term on the contracts as they satisfy. Whereas, the actors can only choose to accept or not to accept such a whole contract. This is finally posing to the unfair adhesion Contracts which are determined only by employers or producers. This thesis has studied some existing contracts which have been adopted in the media industry and this thesis has found out four unfair issues, as followed:
1.) The first problem is the assignments of all actors’ rights and their intellectual property rights solely to the employers. The employers or the producers usually determine the terms in the contract that the employees or the actors must assign all their rights and intellectual property rights to the employers. The employers will solely hold the actors’ rights and can later exploit those rights of their own accord. The terms usually do not include any agreement on further payment to the actors despite the commercial exploitation of their works. Although, the recorded performed works are either rerun or resold in the International platforms, which can endlessly prompt a huge amount of income to the producers, the actors only receive their initial payments and consideration because of the determined terms. This poses to the issue that the actors should also receive some further emolument from the commercial exploitation of their rights and intellectual property rights by the employers.
2.) The second problem is on the limitation of rights and freedom in the career. There are agreements and terms that forbid the actors to be hired by other companies or producers without their original companies’ permission. However, the employers usually do not specify workloads and the amount of rewards that the actors would receive on the contracts, they thus cannot estimate their own incomes and workloads. Should there are contracts that irrationally limit the freedom and rights in careers, the Unfair Contract Terms should come into effect by the court’s adjustments of each case of the unfair contracts.
3.) The third problem is on the termination and renewal of contracts. Under employment contracts for some actors who are under control by their companies, there are usually terms reserving rights for employers to terminate the contracts. Moreover, under those contracts, there are also terms which automatically renew such contracts when they are expired. In the case that the actors do not wish to renew the contracts, they are required to inform the company in advance by themselves. Otherwise, the contracts will be automatically renewed. In this sense, should there are terms which unfairly terminate or renew contracts, the Unfair Contract Terms should come into effect by the court’s adjustments of each case of the unfair contracts.
4.) The forth problem is on the irrational high penalty. Employers or producers usually determine irrational high penalty on the contracts. This might be because, they wish to set exceeding penalty to cover the potential loss, as well as to prevent actors from breaching the contracts. Yet, such penalty is too high and beyond actors’ abilities to pay. Thus, should there are disputes over the issues, the Unfair Contract Terms should come into effect by the court’s adjustments of the fees in each case of the unfair contracts.
5.) The last issue is on other miscellaneous problems on actors’ contracts. On each actors’ contract, there are different terms of obligations depending on each case and contract. Thus, there might be other kinds of terms which are unfair to actors. Should there is any term which unfairly treats actors, the Unfair Contract Terms should come into effect by the Court’s adjustments of each case of the unfair contracts.
This thesis has studied the phenomenon and found out that, one of the solutions for resolving the unfair contracts used with actors is the gathering of actors to establish the Association of Actors and Actresses in some other countries. Such association can help actors protect themselves and build their own bargaining power. The members in the association would unitedly determine the standard terms for dealing with employers and negotiate with the employers to be obliged to use the terms issued and agreed by the association as the basic terms and contracts for the whole industry. The actors, on the other hand, should not accept any job offered by the employers who provide the contracts that are under the association’s standards. Moreover, the association should determine some agreements for actors to receive some further rational emolument from the commercial exploitation of their rights and intellectual property rights by the employers. Should the media industry in Thailand adopts this solution, the issue will be effectively resolved.
Furthermore, another solution which can be fruitfully and timely productive to the industry is to build a mechanism for settlement of disputes between actors and employers or producers by adopting the arbitration. This is because, filing cases to the Court might take longer time, thus it will not timely resolve and remedy the problems and disputes at play. By adopting the arbitral clause to settle the disputes, both parties can appoint their third-parties, who can be either the individuals or a group of people, to make a decision on and arbitrate for the case, as agreed on the contracts by both parties. This method can be timely done and it can be done by inviting honorable figures in the media industry to arbitrate for the cases. Inviting honorable performing artists to arbitrate for the case can be one of the best, fairest and most effective solutions, since they have been highly experienced in the field.