Amid the added pressures of shooting in the nude, lawyers for actors are demanding more specific, ironclad protections in "nudity riders,” including the ability to sue for leaked footage: "The idea of anything being erased from existence in the digital age is naive."
One would think that in the 10 months since Harvey Weinstein was outed for allegedly assaulting dozens of women, igniting a #MeToo revolution that has swept over Hollywood, one of the first effects would be a dramatic change in the way sex scenes are filmed. Yes and no.
Yes, there's been a lot of talk about making sure actresses feel more empowered on set. And yes, "the amount of nudity being requested is less," says attorney Jamie Feldman, whose clients include Juno Temple and Gillian Jacobs. "People certainly are being a lot more sensitive about how they're asking for that stuff and how it's going to be perceived, about the possible accusation of being gratuitous."
What has not changed, however, are the inherent power imbalances, vulnerabilities and uncomfortable pressures that occur when filming these scenes. In fact, the prevailing wisdom among multiple representatives and filmmakers interviewed is that actresses (and yes, more often these days, actors) need more safeguards than ever — and in the #MeToo era they are more willing to demand them.
Feldman inserts up to 40 extremely specific provisions in a fully negotiated "nudity rider" — the addendum to a performer's contract that spells out the exact requirements and restrictions of any such scenes — everything from fluorescent-colored pasties ("It prevents a shot from accidentally capturing something it shouldn't") to the guarantee of a closed set ("If you have 100 people potentially shooting something with a phone, iPad, whatever, these things become opportunities for something to slip out or be hacked, either maliciously or just through inattention").
Authentic Talent & Literary Management founder and CEO Jon Rubinstein, whose company reps Brie Larson and Vera Farmiga, says abuses continue to be rampant. "Mostly, where you get into trouble is where a producer or director approaches an actress directly on a set and asks for something that wasn't negotiated," says Rubinstein. "It's, 'Look, the whole crew wants to go home. It's midnight. We're all exhausted. We just have to get this one last shot. The way that we've been doing it isn't working. Can you drop the towel?' Or, 'That shirt doesn't look right, why don't you just lose it?' Then suddenly you're standing there and you've got 20 people waiting for you, and you go, 'Ugh, fine.' That happens all the time."
Such a scenario appears to have played out on Lost for star Evangeline Lilly, who recently said she "had a bad experience on set with being basically cornered into doing a scene partially naked, and I felt I had no choice in the matter. And I was mortified and I was trembling when it finished."
Rubinstein says he spends a great deal of time educating clients on how to stand up to this type of pressure. But nudity still offers that rare opportunity for abuse given the power dynamic of a fully clothed cast and crew (typically mostly male) and one or two (or in the case of Game of Thrones or Westworld, more than a few) undressed actors and actresses. As an example of this type of power imbalance, several of those interviewed referenced the alleged behavior of James Franco, who was accused in a January Los Angeles Times piece of removing actresses' protective vaginal guards while filming an orgy scene on the set of the 2015 indie film The Long Home. Franco's attorney disputed the allegation.
Sometimes an actress says nothing after being pressured to go beyond what has been negotiated. But other times she logs an immediate call to her team. And thus, a second battle begins. It's up to the agent, manager or lawyer to try to fight for the scene's removal.
ICM Partners' Joanne Wiles, who reps such actors as Paula Patton, Alex Pettyfer and Hannah Gross, says even before #MeToo, she was something of a mother bear regarding nudity. Given the new climate, she is now seeing other reps follow suit. "You have to be very diligent — I wouldn't say guarded, but look at it in a very protective way for your client," says Wiles. "Other [reps] in the business who had previously been a little more laissez-faire are definitely not as much anymore because it's such a hot-button issue now."
Of course, there are many showrunners and directors who are genuinely sensitive to the fraught nature of shooting these scenes, and increasingly so, Courtney Kemp, who runs Starz's Power, tells THR that she often throws people off her set on sex scene days, asking crew, "Why are you here? What is your function? There are like 10 jobs that are necessary for a sex scene. Other than that, you can go. And I will go around and boot people," she says.
Paul Feig, director of A Simple Favor, an upcoming Lionsgate thriller that stars Anna Kendrick and Blake Lively and features a fair amount of nudity, says, "Here's the thing with any kind of sex scene — everybody has to be completely up for it and in sync." Kendrick and Lively had each signed a nudity rider but Feig says he would never enforce a contractual obligation if anyone was uncomfortable. "Occasionally, over the years, the people in charge are like, 'Wait! We thought we were going to get this,' and they're not happy. But I want nothing to do with that."
Not so fast, says another director who used female nudity in his most recent movie. He argues that, in reality, it's the actress who has all the leverage. "Sometimes someone will have a nudity rider signed, in place, and on the day of, they decide not to do it," the director says. "They ate too much the night before. Whatever. And there's nothing you can do."
Some actresses have more leverage than others. Sarah Jessica Parker, for one, has a no-nudity clause for her HBO series Divorce, as she did with Sex and the City. "I've always had one," she recently told THR. "Some people have a perks list and they are legendary. They have to have white candles in their room. I don't have a crazy list like that. I've just always had [a no-nudity clause]." Game of Thrones actress Emilia Clarke is said to have scored the right to veto any nude scenes in her most recent renegotiation. And The Handmaid's Tale star Elisabeth Moss, also an executive producer on the show, recently told THR, "I have 100 percent approval over all the footage and I can literally say, 'You cannot use that scene.' I can say, 'I'm comfortable with this, but I'm not comfortable with that.' They can't send out a cut without me approving it."
Though a typical clause in a nudity rider for a name actress states, "Artist shall have the absolute right to change Artist's mind and not perform in the Simulated Sex Scene," one lawyer who is well known for her ironclad riders says that once an actress is on set, there really is zero protection. "Anything can happen and does happen," she says. But if a nudity rider has been properly negotiated, an artist still has a remedy. "If it's a SAG production, whether they shoot it or not doesn't matter, they can't use it unless they have an allowance signed in writing by the performer," says attorney Karl Austen.
If a shot scene isn't used, most nudity riders call for the producer to use "good faith efforts" to delete the scene at the artist's behest. Yet the very vague and nebulous idea of "good faith efforts" elicits a scoff from a number of representatives. Perhaps that's why an increasing number of them are also calling for unused nude footage to be destroyed, though there's little accountability on that front, either. Sources involved with the 2015 Todd Haynes forbidden-love drama Carol, which included nude sex scenes between Cate Blanchett and Rooney Mara, say there are worries that Harvey Weinstein, who distributed the movie, kept unused footage for his own personal collection. "I don't even think it's possible to destroy anything in the digital age," says one Carol insider. "The idea of anything being erased from existence is naive." (A rep for Weinstein says he never kept any footage from the film. Carol producer Christine Vachon adds: "The Weinstein Co. and Harvey never had access to dailies or even rough cuts. We showed TWC the final cut and then delivered that cut and that cut only. There was never any access to 'unused sex scenes.'")
Still, lawyers are being extra cautious. Adds Feldman: "We used to say, 'You've got to destroy it,' And they said, 'We'll keep it in a secure location.' But things get hacked, things get stolen, so we definitely push for outtakes, trims, deleted scenes, alternative takes — all that stuff — to be destroyed and for the destruction to be confirmed to us in writing. And then we have remedies paragraphs — like if despite their best efforts, something leaks. Some intern puts it out. That's up [online] forever. So we need to be able to force the studio to go take that down, or even threaten injunctive relief or liquidated damages."
Perhaps that's why actresses like Rachel Weisz and Rachel McAdams opted to keep their bras on in sex scenes in the recent lesbian drama Disobedience. But that move comes at a price, too. "It was so obvious it was in their contract that they didn't have to show their breasts," says one established female producer not involved with the film but who has made other provocative material. "It was awkward and felt completely unbelievable. If you're doing the really sexy sex scene, don't have the no-nudity clause."
Even with all that's come to light about the industry's worst impulses, a few actresses choose to forgo legal protections altogether. One entertainment attorney was surprised recently when a young actress with no prior nudity experience came in to negotiate a contract for an upcoming indie film with a substantial amount of nudity. The attorney urged the actress repeatedly to impose strong restrictions on what the movie's director could use. "Usually we negotiate these nudity riders to within an inch of their lives," the lawyer says. "But this time, she pushed back on us and said she really trusted the director and said the nudity was integral to the role and that she didn't need any of those protections in her contract." (He would not comment on how the shoot turned out.)
In any case, these days, that attitude is by far more the exception than the rule. Until actresses feel less vulnerable on set, reps will continue to fight for their clients' nudity rights. That means two lawyers will have to duke it out about how many inches of what the industry calls "gluteal cleft" (aka butt crack) can be used in a shot. Ditto for the amount of attention paid to the side boob.
Rubinstein hopes that #MeToo catches up with the on-set realities. "In the same way that behavior that was ignored a few years ago is no longer being ignored, this is no longer going to be tenable, that a director or producer would put on that kind of pressure," he says. "It can't continue the way it's been going."
Lawyer Tara Kole, who reps Gwyneth Paltrow and Michelle Dockery, is "cautiously optimistic" that it will: "Ultimately, I'm hopeful that the shifts in our culture have helped create safer environments, irrespective of what is negotiated on a piece of paper."
Seth Abramovitch contributed to this report.
UNDRESSING A NUDITY RIDER
THR examines a post-#MeToo legal document negotiated to protect an actress shooting a provocative feature film.
1. Though this rider declares the actress will not actually appear naked on camera, the doc is still deemed a "nudity rider" because it dictates the terms of a sex scene in which nudity is implied.
2. A common protection for an on-set change of heart, though one director tells THR it gives actors "all the leverage."
3. The closed set has become increasingly curated now that every smartphone in the vicinity offers an opportunity for sensitive material to be captured and leaked.
4-5. The only cameras on set are the ones filming the actual scene. This is why you won't often see the sexiest scenes in promotional stills or material, even if they are the most buzzed-about moments of the film.
6. Even the use of body doubles in a nude scene is delineated, as viewers may not realize it's actually not the star's privates they're seeing.
This story first appeared in the Aug. 22 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.