Cutting Kevin Spacey out of a film could lead to ‘scandal clauses’ in Hollywood

Could Kevin Spacey legally challenge his role being erased from a new film? Mathilde Pavis looks at questions raised by a curious scenario that could set precedents for the film industry

Spacey gives a speech at the Old Vic theatre in London in 2015 (Getty)

The film All the Money in the World has been released just in time for this season’s film awards. But there were some significant last minute changes. Kevin Spacey, who was signed up to play the role of oil tycoon J Paul Getty, no longer features in the film.

Following the allegations of sexual abuse made against Spacey, director Ridley Scott announced that the Oscar winner’s performance would be removed from the final cut – and his role taken on by Christopher Plummer instead.

There is little mystery regarding the motivation behind this casting decision. It must have been thought that leaving Spacey in the film would have risked a negative impact on box office takings, and even prejudiced the future work of everyone involved in the film. But was the decision legal?

So far little has been said about Spacey’s rights as a performing artist, or any objections he may have to being edited out of a film production without his consent.

However politically incorrect this may be, it is a question worth exploring. Creative industries across the globe are still working out how to operate in the aftermath of the Harvey Weinstein scandal.

Spacey’s rights involve intellectual property law. In most countries actors enjoy what are known as “performers’ rights”. Performers’ rights are the equivalent of what copyright is to authors.

They are enforced to ensure that the consent of performers is sought before their performance is recorded and commercialised. They may also help performers secure payment.

Spacey as J Paul Getty, a transformation that required facial prosthetics and heavy make-up (Sony)

Performers’ rights can be relevant to cases where the recording of the performance was authorised – but not its subsequent modification. In such cases it is the performers’ moral rights that may apply, which provide that the integrity of a performer’s interpretation (in its recorded version) must be respected. However, it is still uncertain what this protection clearly entails in practice.

This is because these rights remain a relatively recent feature of intellectual property law and have received little judicial scrutiny since their introduction. (Performers cannot object to editing that forms part of the normal process of production, such as dubbing for actors or sound-mixing for musicians.)

In Spacey’s case, it is not so much the fact that his performance has been removed from the film that may question the legality of the editorial decision, but how this has been done.

Before the release of the film, many expected that the director would simply remove Spacey’s face from shots digitally, and replace it with Plummer’s. This solution would likely have been the quickest and cheapest, as Spacey appeared in scenes involving a cast of thousands, which would have been difficult to reshoot in their entirety.

Digital editing of this kind, although fairly routine in stunt scenes, would have been the most problematic in light of Spacey’s rights as a performer. One can easily imagine how a court would find it harmful to Spacey’s reputation to see his body be given another man’s face.

Playing John Paul Getty III’s grandfather, 88-year-old Plummer was able to forgo the kind of facial disguise donned by Spacey (Sony)

Falling to the cutting-room floor

But could Spacey have legally objected to it? Probably not under US law, as actors’ moral rights are yet to be implemented. But he may have had a positive response in a French court, as French judges have tended to give the moral rights a broad application.

In the end, however, Scott went for an alternative solution. The director has said no “digital trickery” was involved, and he resorted to more traditional editing techniques. He cut the character’s screen time and refilmed scenes with Plummer. In scenes involving a large number of extras, Spacey’s performance was removed digitally (in its entirety) and replaced by Plummer acting in front of a green screen.

Because traditional editing methods were involved, it is unlikely that Spacey could object to his replacement on the basis of performers’ rights. Surprisingly, perhaps, being entirely removed from a film is less likely to be found harmful to a performer’s reputation by the courts than having a performance edited on screen.

Unless Spacey stipulated in his contract that no replacement for his role was possible during or after the production of the film, the actor would have no legal recourse to seek compensation for being cut out of All the Money in the World. In fact, the opposite may be true.

It may be that the production companies have a claim against Spacey if his contract included a morals clause. The producers could then possibly sue Spacey for breach of contract and try to recuperate the $10m (£7.4m) cost of the reshoot.

In the future it is likely that there will be big changes in the way film industry contracts are written and negotiated. Production companies may ensure that performers waive their rights to object to being replaced or their performances edited if their names are linked to scandals. Producers may decide to make sure that no intellectual property right of an actor gets in the way of cutting them out of the picture.

Mathilde Pavis is a lecturer in law at the University of Exeter. This article first appeared on The Conversation (theconversation.com)