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Legal Eagle

Equity

Q: Cross border contracts

I worked for an Australian television company, working under an Australian (not a British Equity) agreement. The programme has been repeated many times. An Equity contract would have meant royalties but my agent advised otherwise. I was an Equity member at that time. Do I have any redress?

A: You do not say whether the fixed remuneration which your agent would have negotiated for your work on the programme was designed to reflect the likelihood or possibility of programme repeats, as may well have been the case, since the possibility of repeats must or should have been within the contemplation of your agent, if not you yourself. You also do not say whether the work was done in Australia or the UK, and whether the programme was broadcast and repeated in Australia or in the UK.

Certainly if your contract of engagement were to have been made pursuant to a collective bargaining agreement between an association representing television producers and an association representing performing artists in Australia, such as that prevailing in the UK between PACT and Equity, the strong probability is that it would have provided for royalties in the form of repeat fees to be payable for repeat broadcasts. But not all television production companies are members of such associations or, if they are, will necessarily be liable to you in law for contracting out of any relevant collective bargaining agreement between their trade association and yours, although it may put them at risk of expulsion from their association, which, however, would be of no help to you. There is nothing unlawful under English law in a television company having engaged you to work for a single fixed fee without additional remuneration for any repeats.

Whether or not you have any redress against your agent will depend upon whether you can establish that the agent was negligent in carrying out his duties towards you. This means that you must be able to show he failed, when negotiating the terms of your contract, to exercise the degree of care and skill expected of a competent member of his profession, which is a matter of expert evidence in each case. Your agent would not be liable to you for mere errors of judgement, and even less so if he were to have drawn your attention to the absence of remuneration for repeats before you signed the contract. You may care to show your contract to a few other agents and see what they think about the competence issue, before you take it further.

If you think you have been treated unfairly, you can raise the matter with Equity and see whether it is prepared to try to persuade any association of which the Australian television company may be a member to bring some pressure to bear on its member to make you some ex gratia payment, but that is a very long shot indeed. Equity is more likely to be interested in taking up your case if you did the work in the UK or if the programme repeats were broadcast in the UK.

First published March 1996