A National Development Code

proposed by Equity member Michael James Bell

This document is meant to be a starting point for a discussion. What do you think? Share comments, questions, objections, and suggestions with me at actor@michaeljamesbell.com. 

The needs of our members

In any given year, the majority of Actors' Equity members don't work a single Equity contract. As a union, we need to acknowledge this uncomfortable fact. If we want to support our membership, we must first recognize that the baseline existence for most Equity members is not just frequent unemployment, but constant unemployment. Members who work at least one contract a year are a minority.

It is also important to acknowledge something else: No actor or stage manager can maintain their standing as a theater professional without frequently doing theater. If we don't regularly perform our craft, our skills atrophy, and our legitimacy as professionals is weakened. So how can the union make sure its members have the tools they need to maintain their professional standing?

Our members need a mechanism that allows them to do theater when contract jobs aren't available. Which means a code, endorsed and administered by the union, that protects members from being exploited for profit, and that is available to all members, not just those in New York City and Los Angeles.

This code must not be allowed to substitute for a contract. In fact, not only must it protect contract theater, it should ideally strengthen contract theater. I believe it is possible to create a code that increases theatrical opportunities for members, protects them from being exploited, and—far from cannibalizing contract theater—actually leads to more successful contract shows, more contract work weeks for Equity members, and a more vibrant theater industry in America.

The majority of our members are not working, but they are ambitious, creative professionals nonetheless. They are the union's greatest under-utilized resource. In New York City, thousands of Equity members invest weeks of their lives in alternative theater (Off-Off-Broadway productions, which use the NYC Showcase code), but almost none of these productions ever move to a contract. These members' efforts don't, for the most part, pay off in terms of advancing their careers or generating contract jobs. In other parts of the country, the paucity of contract theater—and no union-sanctioned alternative theater—force longstanding members to choose between staying in their union and practicing their craft locally.

These are opportunities for improvement. We need to spend more time—and imagination—addressing the needs of these members. The union could benefit from looking with fresh eyes at code theater.

Call it what you will—code theater, alternative theater, indie theater, 99-seat theater, Off-Off-Broadway—it should not be an afterthought, a shameful secret, a grudging concession. It should not be the place where great ideas go to die. It should be a "minor leagues" for contract theater. It should be the foundation of the theatrical food chain, feeding the entire ecosystem.

How can we harness the creativity and ambition of our out-of-work members to increase contract work-weeks? How can we support our members' legitimate need for more theatrical opportunities? How can we germinate professional theater in places where it doesn't exist yet? I propose this code as an answer to those questions.

A national development code

The purpose of a National Development Code is to be a simple code that can be easily used to engage Equity members anywhere in the country, without the benefit of a contract, allowing Equity members to participate in theater under the protection of their union. The code's goals are:

1. To encourage the development of successful, long-running contract shows

A long-running contract show—a hit—is worth far more to the union in work weeks than one that only runs for a month or two. But what's the recipe for creating a hit show? There's isn't one. The way you create a hit show is to create a thousand shows—and then see which one becomes a hit.

Our existing codes do not encourage the development of commercially successful productions. It takes time for a show to prove its commercial viability, and our codes don't allow enough time. A show becomes a hit by becoming popular. Reviewers come, word of mouth spreads, and it becomes clear that this is something audiences will pay to see. I suggest that this is a good situation to be in! These are the conditions under which a theater investor could recognize a show that could run for years, with the potential to make a lot of money—once it's moved to a contract.

2. To protect Equity members from being exploited for profit

To that end, we must prevent producers from using this code to make money. Our ultimate goal is to create and protect contract theater, not to provide producers with a way to circumvent contracts. Any code, including this one, must contain restrictions that ensure it can't be used by a producer to make a large profit.

A small profit is okay though! We don't want to make it too onerous for producers to break even, since that would discourage them from taking risks and creating new productions that use Equity members. But we do want to make sure that the only way to make real money is to move the show to a contract.

This code proposes three mechanisms for this, which together are sufficient to achieve this goal: a cap on house size, a cap on ticket price, and a weekly performance limit. These caps should be set low enough to prevent a producer from being able to make a large profit, and high enough to give a producer a reasonable chance of recouping modest production costs. We want to encourage (rather than discourage) the creation of new theatrical productions that use Equity members.

3. To increase Equity members' opportunities to practice their craft

To maintain the skills of a theater professional, one must practice one's craft constantly. And the best way to do that is not in a class, but on the stage. In a world where the majority of Equity members don't work a single contract in a given year, it should be a high priority to provide all our members with a union-sanctioned mechanism for doing theater in between contract jobs. Many of our members live in cities where contract theater effectively doesn't exist. Even in our largest markets, many members don't truly have access to contract job opportunities.

Working "on spec" is an essential element of building a career as an artist or entrepreneur. No one ever rose to the heights of their craft by waiting for someone to pay them first. We should be protecting members when they work on spec, not prohibiting them.

There are many benefits to doing theater beyond an immediate paycheck. Maintaining our skills, nourishing our creativity, advancing our careers, working on spec—these all facilitate future paychecks that wouldn't otherwise materialize. These are legitimate needs of the membership that aren't being adequately prioritized.

4. To allow all Equity members to do theater under the protection of their union

All members, everywhere in the country, should have the ability to practice their craft, advance their careers, and make theater. And it's crucial that this be done under the union's oversight, with all of the health and safety guidelines the union specifies for its members' protection. Members everywhere want to know that their union is looking out for them. If we abandon this responsibility, we allow non-union theater to thrive.

Things this code doesn't require

This proposed National Development Code is focused on the goals above. In order to make the code as easy to use as possible—and thus advance the goals of this code as effectively as possible—additional complexity in service to other less-important goals is avoided. Here are some aspects of other codes that are deliberately not required by this code as not contributing to the goals above.

The most noticable difference between this code and existing codes is that there is deliberately no cap on the total number of performances or length of run. The caps that are included—on size of house, ticket price, and weekly performances—are powerful tools to prevent Equity members from being exploited for profit, and these caps should be sufficient to discourage profit-seeking producers from using this code when they ought to use a contract instead. Limiting the total number of performances is not only unnecessary, it is counterproductive. It severely hampers a production's ability to prove its commercial viability, crippling its chances of moving to a contract. (For evidence of this, we have only to observe the huge number of NYC Showcase code productions—which are limited to a four week run—and the miniscule percentage that move to a contract.)

Allowing shows to run longer supports another of this code's goals as well: increasing the amount of time Equity members can spend doing theater. A cap on the number of performances reduces this, forcing members to spend more of their time looking for new projects, submitting, auditioning, and rehearsing, when they could be performing instead.

This proposed code does not require a budget cap. Higher production values directly support the goal of developing successful contract shows. We want to limit the amount of money the producer can make under this code, not the amount they can spend.

This code is meant to be a mechanism for Equity members to work "on spec". As such, significant immediate compensation is not one of its goals. Ideally, this code would require a stipend, but since this is a complicated legal issue that varies from state to state, this code simply recommends that, if legally possible, the production provide participating members with a stipend, and that this stipend should follow the philosophy of "judge it by the budget". In other words, the stipend should not be a constant, but should instead be tied directly to the size of the show's overall expenses. In order to encourage the engagement of as many Equity members as possible, and to encourage rather than discourage the creation of shows with large casts, the total stipend cost should not depend on the size of the cast. The larger the cast, the less each individual member would be paid. The purpose of the stipend is to recognize and value the contributions of the Equity members with a percentage of the budget, not to provide each member with a particular level of compensation. Given that many contracts themselves fall short of a comfortable wage, a useful level of compensation is not a realistic goal for a code, nor would it support the goal of encouraging the development of new shows under this code.

For similar reasons, this code has no favored nations requirement. There is no cap on what a single member can be paid, and there is no requirement that all members be paid the same. Other members of the production team (such as designers) may be paid more than the Equity members as well. Equality in pay is not relevant to the goals of developing successful contract productions and creating professional theatrical opportunities for our members. Since the casting of a celebrity or the hiring of a designer supports those goals, a producer may pay such a person more than the other cast members in order to get their participation.

Finally, there is no limit on total rehearsal time. It is important that we empower members with the ability to invest their time in projects that they feel are worthwhile to them—and that we encourage them to abandon any project that is not worth their time. If members choose to invest a large amount of rehearsal time in a project that they are passionate about, we should allow that. However we should absolutely provide basic union guidelines for working conditions, working hours per day and per week, and breaks. And the fundamental principal of codes always applies: A member is entitled to leave any code production at any time for any reason. (In order to secure the commitment of a member, she must be put on a contract.)

The details

The National Development Code is an internal union membership rule that permits members of Actors' Equity Association (hereinafter referred to as "AEA" or "Equity") to work without the benefit of a contract in theatrical productions, under the following conditions. If any of the provisions contained herein are violated, abridged, or modified, this Code may, without notice, be withdrawn by AEA.

Definitions and references:

  • The term "Actor" shall include all members of Actors' Equity Association signed to this Code, including Stage Managers.
  • A "performance" is any presentation before an audience, invited or paid, including previews and/or rehearsals.
  • The term "budget" means the total expenses of a production, not including income.

Committment: As with all codes, Rule Number One is that the engagement of Equity members does not require any commitment on their part. Participating members may leave the production at any time for any reason. This is a vital element of code productions. In order to secure the commitment of a member, she must be put on a contract.

Availability: In order to encourage the creation of theatrical productions, this code should be made as broadly available as possible. In principle, this code may be used by just about anyone to produce a theatrical production: members, theater companies, independent producers. The only entities not allowed to use this code are entities who have broken the rules in the past, or entities that the union has prohibited from using it for other reasons.

TYA exception: Material which is suitable for Theater for Young Audiences and school productions may not be performed under this Code. ("Young Audiences" consist of young people of high school age and under, and their families, faculty, official sponsors and/or institutional staff).

Location: Anywhere in the USA.

Waiving: An Actor may not waive any of the minimum conditions set forth in this Code without the express consent of Equity.

Oversight: Much as the Off-Off-Broadway committee oversees the use of NYC's Showcase Code, local committees should be created to oversee the use of this code locally. These committees should have the ability to deny the use of this code to producing entities for whom it isn't appropriate, or who have failed in their obligations in the past. These local committees may also be allowed to set the local ticket price cap, in accordance with the code's goals.

Seats: The maximum number of seats should be set at a number significantly lower than that of most contract houses, so as to encourage the use of a contract in cases where the producer believes the production can make money. Traditionally, AEA codes have usually set this limit at 99 or 50 seats. Standing room is prohibited.

Performances: No limit on total number of performances. No limit on how many weeks a production can run. Limited to 4 performances per week.

Ticket price cap: This should be set by the committee in charge of this code. It should be re-evaluated frequently, with input from all the regions. In order to not unfairly disadvantage larger or smaller cities, ticket price caps should ideally be tied—in as simple a way as possible—to some measure of how expensive it is to produce theater in a location. They could be based on an official index, such as cost of living, or a city's population, or some similar measurement. The guiding principle should be setting the value high enough to make it relatively easy for a producer in that location to break even, but low enough that it would be hard for a producer to make a large profit. We should value simplicity and ease of use over fine-grained accuracy. Example: $35 in NYC, $30 in other cities with populations greater than 2 million, $20 everywhere else. Alternately, the local ticket price cap could be determined individually by local committees in charge of overseeing the code.

Budget: No maximum.

Stipend: If legally possible, the production is encouraged to share 10% of the production's budget equally among the participating Actors. Stipends to non-Equity cast members should not be counted towards this amount, nor should extra amounts paid to individual (e.g. celebrity) cast members over and above the individual stipend amount.

Favored nations: None. The production is encouraged to provide each participating member with the individual Actor stipend at a minimum, but individuals may be paid more without requiring that all members be paid the same amount. Non-Actors such as directors, designers, and staff may also be paid more than the individual Actor stipend.

Cost to members: The Producer may not request or require financial contributions, loans, tuition fees, or payments of any kind from AEA members and may not require loan of costumes or properties from AEA members.

Reimbursement: The Producer must reimburse each member for expenses incurred in connection with the production. Reimbursable expenses may include, but are not limited to, transportation, and use, cleaning, or upkeep of personal items used in the production. Since an Equity bond is not required for the use of this Code, Actors should notify Equity immediately in the event expenses are not paid pursuant to the Code.

Health and safety: The work place/venue must be a safe and sanitary work place, under the guidance of Actors' Equity Association. Actors may not rehearse nor perform on any premises which lack adequate sanitary facilities or which do not comply with local safety laws. The use of chemical smoke and fog, including mineral oil, is prohibited. Equity will allow the use of carbon dioxide and liquid nitrogen, as they are generally regarded as safe. However, they may only be used in small amounts and the stage and backstage areas must be properly ventilated. Special precautions must be in place to ensure that the stage does not become slippery from the condensation these fogs produce. No raked stage, or other inclined playing surface is permitted. All safe and sanitary conditions shall also apply to interview and audition locations.

Actor responsibilities:

No AEA member may rehearse without signing the Signature Page.

AEA members shall:

  • Report immediately to the Deputy any alleged infringement of the Code
  • Be prompt in attendance at rehearsals and attend rehearsals in accordance with the member's availability
  • Report immediately to the Stage Manager any changes in the member's availability which affects scheduled rehearsals or performances
  • Be allowed to leave a production at any time during rehearsal or performance. Immediately upon deciding to leave the production, the Actor shall notify the Producer in writing. A copy of said notification shall also be forwarded to AEA by the Actor
  • Appear at the theater no later than one-half hour prior to performance time
  • Perform services as reasonably directed and abide by the language of the script to the best of the member's ability
  • Pay strict attention to make-up and dress
  • Care properly for all costumes and properties
  • Arrange for any costume and/or prop reimbursement with Producer before such items are used in the production
  • Respect the physical property of the production and the theater and abide by all reasonable rules and regulations of the Producer not in conflict with Equity rules

Deputy: Each Code production must have an Equity Deputy elected by a secret ballot at the first rehearsal with all and only AEA company members present. The Deputy will note the election on the Election Sheet and forward it to AEA. The Deputy shall advise AEA members to become familiar with the Code. The Deputy shall report immediately to AEA any alleged infringements of the Code.

Stage manager:

The Stage Manager shall not perform any duties not normally regarded as a function of a Stage Manager. The Stage Manager shall be the individual expected to perform at least the following duties:

  • Be responsible for the calling of all rehearsals scheduled by the director in accordance with the rules and regulations of AEA.
  • Assemble and maintain the promptbook, which is defined as the accurate playing text of stage business, together with such cue sheets, plots, and daily records, as are necessary for the actual technical and artistic operation of the production.
  • Be the executive instrument in the technical running of each performance, maintaining discipline during rehearsal and performance, as provided in the Rules of AEA.
  • It is agreed and understood that the function of the Stage Manager is a full time one. Stage Managers must not be required to function in areas which impinge upon their primary duties as Stage Managers. As such, the Stage Manager shall not perform the following duties commencing with the first rehearsal unless agreed upon by both the Stage Manager and Producer prior to the Stage Manager signing the Signature Page.
  • Participating in the ordering and/or preparation of food for the company
  • Performing the duties which are properly those of stagehands, house management staff or box office personnel
  • Designing, building, hanging, operating, or shopping for lights, sound, scenery, props or wardrobe, etc.
  • Being responsible for any aspect of laundry or dry cleaning
  • The making or distribution of any payments
  • Doing janitorial, custodial, or building maintenance work including, but not limited to, securing and locking any part of the theater or backstage areas

Casting notices: All casting notices for productions in which AEA members may be used will indicate "Pending Equity Approval" or "AEA Approved," whichever is applicable.

Discrimination: There shall be no discrimination against any Actors by reason of race, color, creed, gender, age, national origin, sexual orientation, disability, union membership or activity.

Nudity:

Nudity shall not be permitted at Equity interviews or auditions. If nudity is contemplated in the staging, Producer shall include a notice of nudity in all audition notices, and prominently post such notice at all auditions. In any production containing nudity, a full list of the Code rules governing the rights of each Member during every interview and audition shall be conspicuously posted at every interview and audition.

Where nudity and/or acts of a sexual nature are required of a performer in the course of the stage presentation, the performer and AEA must be so advised, in writing, in advance of a performer's signing the Signature Page. The script shall be submitted to the performer for prior review if the performer so requests.

Actual sex acts shall not be requested nor required of a performer at any time.

The Equity Member is reminded that the National Development Code is a Union Membership Code, and does not carry the usual protections of Equity Contracts. If at any time during the production the Equity Member feels unsafe or uncertain as to the nature of a request regarding nudity or acts of a sexual nature, the Member is advised to exercise caution, contact the Equity Office, and take all precautions up to and including leaving the production.

Scheduling: All rehearsals shall be scheduled subject to the Actor's availability. No rehearsal for AEA members may be scheduled during an AEA Membership Meeting unless the day of a meeting coincides with the opening night.

Weeks of rehearsal: No limit on total number of weeks. Limited to 20 hours per week for any individual Actor, except during the final week of rehearsal when this limit is raised to 30 hours.

Hours of rehearsal: Actors and Stage Managers shall rehearse no more than 6 hours on any given day except during the final week of rehearsal when the director may schedule three 8-hour days. On the day of the first public performance, rehearsal shall terminate at least one hour before the half-hour of the scheduled performance, and the combined rehearsal and performance time shall not exceed 8 hours. On a performance day the rehearsal shall terminate at least one hour before the half-hour of the scheduled performance. The combined rehearsal and performance time shall not exceed 6 hours in a single day.

Rehearsal breaks: There shall be a 5-minute break after 55 minutes of rehearsal or a 10-minute break at the conclusion of 80 minutes of rehearsal. Actors shall not rehearse more than 5 consecutive hours without a meal break of at least one hour.

Rest period: There shall be a 12-hour rest period between the end of rehearsal or performance on one day and the beginning of rehearsal or performance on the next day.

Days off: There shall be one full day off after every 6 days of rehearsal and/or performance.

Stage fights: Any staged fights (including but not limited to slaps, kicks, punches, faints, falls, or any use of weaponry) require the participation of a qualified fight captain. Extended fight scenes or scenes requiring the use of weaponry may require a fight coordinator when staged. If the fight captain or fight coordinator's qualifications are an issue, the matter shall be resolved by Equity, whose determination shall be final and binding. There must be a fight rehearsal with all Actors involved, including the Stage Manager and fight captain, immediately prior to the half-hour of each performance.

Intimacy: Staging involving intimate physical touch (including but not limited to physical intimacy, kissing, simulated sex, and nudity) require the participation of a qualified intimacy director. If the intimacy director's qualifications are an issue, the matter shall be resolved by Equity, whose determination shall be final and binding.

Photos: Individual and rehearsal or production photographs may be used for the sole purpose of publicizing and advertising this production of the play. Photographs shall not be used in conjunction with any commercial product offered for sale without the prior written authorization of the Actor and of AEA.

Advertisements: Advertisements, other than paid newspaper ads or broadcast ads, including but not limited to flyers, internet, posters, postcards, brochures, and invitations, must include the phrase "Equity Approved Production" and the names of all AEA members involved in the production, said names to be designated by an asterisk (*) whenever they appear with the indication that Actors and Stage Managers so designated are members of Equity. Paid newspaper and broadcast advertisements must use the phrase "Equity Approved Production". In addition, should any names be used in such ads, other than the names of the theater, play and author, then the names of all AEA members of the company must be included.

Program: A free program shall be provided to each audience member and, by the first public performance, sent to AEA. An asterisk (*) must be placed next to the name of each AEA member involved in the production with the following program note: "*These Actors and Stage Manager(s) are appearing courtesy of Actors' Equity Association." Each program must also include a biography of each AEA member, including replacements, who shall have final approval of all biographical material contained therein. The program must contain the AEA program biography and logo, both to be supplied by AEA.

Front of house publicity: An "8x10" photo of each Actor in the production, including temporary replacements, with the Actor's name and role(s) played in the production, must be prominently displayed.

Admission: AEA members shall, upon presentation of a paid-up AEA membership card, be admitted to the theater, at no cost, on a stand-by basis. Industry complimentary tickets ("comps") shall be made available to bona fide agents, managers, casting directors, producers, playwrights, choreographers, and directors. A list of all holders of industry "comps" including date of performance attended must be provided to the AEA members within 24 hours of each performance. Each AEA cast member shall receive 2 complimentary tickets per production.

Recording: There shall be no televising, broadcasting, visual and/or sound recording, cast album recording, motion picture filming, video taping or other mechanical or electronic reproduction, in whole or in part, of any Code production. This prohibition shall be in effect from the first day of rehearsal under the Code until 26 weeks after the production has closed.

Understudies: An AEA member may not be required to relinquish a performance without AEA's express permission. In no event shall the Producer compel any Equity Actor to relinquish any performance to an understudy or standby, unless such a request is previously agreed to in writing by the Actor.

Membership: Neither membership, nor Equity Membership Candidate points for joining Equity, may be established by a performer's participation in a Code production.

AEA access: Duly authorized representatives of Equity shall have free access to all areas to which Actors are called and to all members of Equity at all times, inclusive of rehearsals and performances.

Transparency: In exchange for the freedom and flexibility to use Equity actors and stage managers under this code, the producer agrees to be transparent and public with the production's income and expenses. While it may not be entirely possible to prevent fraud, the following requirements will allow the union and the members the opportunity to check the reported numbers against their own information. Any producer or theater who does not fulfill these requirements may be denied the right to use the code for future productions.

Deliverables: Producers using this code must provide the following deliverables to AEA:

No later than 14 days before beginning rehearsals, the producer must register the production with AEA and provide the following information:

  • The Producer's name, address, email address, and phone number
  • The title of the production, author's name, and type of production (e.g. dramatic play, musical, revue, improvisational revue)
  • A statement as to whether the play has been produced previously under any Equity Contract, AEA Code, or any production for which a Subsidiary Rights clause has been executed. In the case of a work not previously produced, a copy of the Author's Agreement shall be submitted to AEA with the notification
  • Name, address, phone number, and seating capacity of the theater
  • Name, address, and phone number of rehearsal spaces
  • The performance schedule and proposed rehearsal period
  • A statement of financial backing and proposed production budget, including actor stipends, together with detailed supporting documentation
  • Confirmation that the Producer will provide volunteer accident insurance to cover all Actors at all interviews, auditions, rehearsals to cover all medical expenses incurred by Actors resulting from injury to Actor during interviews, auditions, rehearsals, and performances

No later than 14 days before beginning rehearsals, the producer must execute an Agreement on Right and Obligations with Respect to Future Production.

Once casting is complete, producer will provide AEA with a list of all Equity members who will participate in the production. Upon approval and completion of casting, AEA will provide the "Signature Page" which shall be signed by all AEA members prior to the commencement of the first rehearsal.

No later than 10 days after starting rehearsals, the producer must provide Equity with a Signature Page that includes the names of the AEA actors and stage managers who will participate in the Production, signed by all members prior to the commencement of the first rehearsal.

When a new AEA member joins the production, the producer must notify Equity and return a Signature Page signed by the new member.

No later than 10 days after the completion of the production, the Producer must submit to AEA a complete itemized budget, including all sources of income, all expenses, and attendance. A copy of this report must also be sent to all the Equity members involved in the production.

Rights reserved: Equity reserves the rights to re-evaluate, amend, and modify this Code, and to take such action as it may deem appropriate.