Are Hollywood’s Virtual Auditions Illegal?

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In Hollywood’s post-Covid new normal, more than 95 percent of auditions are virtual. Photo: Western Mail Archive/Mirrorpix/Getty Images
Jonathan Handel
October 2, 2022

“I love LA,” said my Uber driver the other day. “Except for the traffic,” he added. “It’s like pulling teeth.” An unfortunate analogy, as I was en route to dental surgery, but no one disputes the sentiment. And for that reason, you’d think that Hollywood actors would love self-tape and Zoom auditions: no need to schlep across town now that virtually all auditions are, well, virtual.

But as much as actors appreciate the convenience (and the ability to audition from anywhere), many hate what self-tapes have wrought: pressure to shoot and edit take after take to get it right; pressure to infuse auditions with production values worthy of a featurette; pressure to hire readers to play opposing characters in a scene; pressure to engage outside services that have sprouted up like mushrooms to handle all this; and pressure to spend increasing amounts of time and money on retakes, equipment, props and services, just for the privilege of seeking employment. And for most actors, none of these expenses are tax deductible, thanks to the Trump tax revisions of 2017.

Pressure, pressure, pressure—so much so that activists on all sides of SAG-AFTRA’s notoriously fractious politics agree that something has to be done in the upcoming union contract negotiations to rein in abuses. It’s a top-five issue, say sources, right up there with the more familiar struggles over wages and residuals.

Those negotiations—for renewal of the union’s all-important TV/theatrical contract with the major studios—don’t begin until spring, but the so-called “wages and working conditions” (W&W) process of gathering member input is likely to start soon. Already, though, union staff have surveyed the membership in advance of likely appointing a national committee; and, separately, a working group of the union’s Los Angeles Local has conducted an open town hall and is developing detailed contract proposals. (Sources disagree on whether the working group is an official initiative or not.)

Why the parallel efforts? The union as a whole has long been led by the Unite for Strength faction, while the large LA Local is the domain of the opposition Membership First group, eager to topple UFS. Who’s driving this train? Who gets the credit? Don’t ask. Sparks may fly, especially since next year also brings the union’s elections, just after contract negotiations. 

Talk about pressure: UFS (and the top union staff they’ve appointed) will need to bring home a strong agreement as the faction seeks to prevail in the always-bitter campaigns for SAG-AFTRA president, officers and boards. With triennial contract negotiations and biennial elections, every six years brings a convergence that just makes everything more fraught and everyone more frazzled.

But politics aside, performers of all stripes seem to be on much the same page regarding self-tapes. (In contrast, a related issue, whether decades-old contract language actually requires actors to be paid for auditions, is controversial and ambiguous.) The approximately 9,300 members who responded to the national survey cited such issues as being forced to audition over the weekend or with less than 24 hours to submit; too many script pages to learn; requirements that actors provide their own wardrobe, props or makeup; excessive scene direction and editing requests; and a lack of acknowledgement as to whether their tapes were even watched. (Many aren’t, sources assert.)

In some cases—22 percent of respondents—actors were instructed to film themselves auditioning while performing dangerous activities like stunts or driving, while 8 percent were required to perform a “sexually charged act” like kissing, and 6 percent said they were required to appear in suggestive clothing or no clothing at all. All of this on tapes over which the actors have no control after uploading to sites designated by casting directors.

The result has been an arms race—paid for by the auditioning actors. Performers are under pressure to become the director, DP and editor of mini-movies, functions that not all can handle; hence the proliferation of for-profit self-tape services. And as that implies, production values cost money: almost half of all respondents have spent more than $50 out of pocket on readers, outside services or other expenses for a single audition, while over 20 percent have spent more than $100, and about five percent have spent more than $300 on a single audition.

That implicit pay-to-play regime violates the spirit, and perhaps the letter, of California law. Labor Code Sec. 222.5 prohibits requiring job applicants to pay any cost of a “pre-employment medical or physical examination taken as a condition of employment.” While an audition is not a medical exam, it is arguably a “physical examination” of the performer: otherwise, why not omit auditions altogether and simply require actors to pen essays on how they’d approach a role? But that would be bizarre; a physical evaluation—looks, charisma, line delivery—is exactly what’s needed for casting decisions.

More generally, another Labor Code provision, Sec. 2802, bars employers from shifting to employees the ordinary costs of doing business. Yet that’s precisely what’s happening: previously, a production would pay casting directors to provide an audition space, readers and any necessary props, cameras, crew and lighting. Now that auditions are nearly always virtual, actors are providing those assets, or the electronic equivalent, at their own expense.

And it takes a toll. Almost half of all survey respondents have declined virtual auditions because of burdensome requirements. A similar number have experienced “extreme difficulties or challenges” with self-tape simply because they live alone (e.g., there’s no one to help with logistics or serve as a reader), while disabilities caused about five percent of respondents to experience such difficulties or challenges. And, of course, the tech-flummoxed are also struggling with the post-Covid new normal, in which more than 95 percent of auditions are virtual.

Meanwhile, the LA Local working group’s proposals, developed based on member experiences, include limiting the number of video submissions requested, guarantees that requested submissions will be viewed in their entirety by a casting director or associate, limitations on page count to be self-taped, reasonable turnaround time for the taping, no requirements for readers or complex editing, and more. The working group is expected to submit its proposals soon to the LA Local for endorsement and adoption, in advance of—and something of an end run around—the national W&W process. (See above re: “sparks may fly.”)

And there’s more. The recently-renewed SAG-AFTRA commercials contract provides some protections related to auditions and may thus serve as a preview of proposals for the TV/theatrical agreement. New commercials provisions that apply to both in-person and virtual auditions prohibit requesting full nudity or requiring auditioners to dye, braid or unbraid their hair or wear specific wardrobe for the audition. (The producer may, however, provide guidance such as the “social scale” of the role and what wardrobe will apply if the performer books the commercial.)

In addition, with self-tapes, commercial producers now cannot request that auditioners perform stunts or dangerous activities or travel to different locations, or require angle changes within a single take (as this would require a helper), or demand any equipment, props or paid services. There will likely be a push to bring these protections to film and TV actors as well.

Other performers unions, such as Actors Equity (stage actors), UK Equity (UK screen and stage), ACTRA (Canada) and ACTRA/UBCP (British Columbia) are also confronting these issues and have already adopted or endorsed some of the new rules that SAG-AFTRA’s LA Local is suggesting.

The new normal is complex: the union’s survey suggests that for some, the number of auditions per year has increased, perhaps due to self-tapes; but an LA Local activist questions whether performers are booking more jobs or just spending more time and money auditioning fruitlessly. Of course, that may not be the right question either: if more people are auditioning, perhaps roles are being spread more broadly through the community of actors.

Statistics can be squirrelly, but without contractual guidelines and guardrails, virtual auditions will continue to entail multiple takes, props, reshoots, edits and paid helpers. The legal vulnerability of pay-to-play self-tapes may not get resolved but the mere possibility of litigation, legislation or regulatory action could aid SAG-AFTRA negotiators as they face off against the studios next year, just as the union leveraged a recent legislative initiative to clinch a deal on a different issue

The consensus among sources? Expect hard bargaining on self-tapes come spring and, as always, that negotiations will be about as much fun as pulling teeth.

Jonathan Handel is a Los Angeles entertainment and technology attorney, labor expert, writer and adjunct professor. He’s represented SAG-AFTRA and represents producers in their dealings with SAG-AFTRA and other Hollywood unions.