Whenever I write one of these blog posts, there’s a tension between what information I leave in and what I leave out. I want to provide enough detail to make legal concepts easy to understand, but I also don't want to provide so much information that the reader feels overwhelmed and paralyzed. Oftentimes, I'll purposely leave out important information because I know it'll be a bridge too far, and usually that's okay. But sometimes I miss the forest from the trees and omit something I probably shouldn't have. That happened last week, when I discussed whether working for free is ever worth it.
Immediately following the publication of that post, a fellow entertainment attorney pointed out that I hadn't touched upon "working for exposure" which is often tied directly to an offer of unpaid work. Shortly after, a reader [coincidentally] emailed me this question:
“I just got a contract from an employer who asked me to work for free but promised that I would get great exposure from the gig. Is that a legitimate replacement for pay?”
So let's tackle that now: exposure isn't a suitable replacement for actual compensation because the employer is offering you something that may never materialize... something that in fact he may not be willing or able to deliver at all.
See, in order for an employment contract to be legally binding, the agreement must contain "consideration," an exchange of promises, goods, services, or money between the parties. Both parties have to give something to get something. In a typical employment contract, you'll provide work services in exchange for financial compensation.
But exposure doesn't qualify as consideration because it's largely formless and indefinite, and without greater detail, meaningless. What does that exposure entail? How will the employer provide it? How will you know when you received it? Does the offer extend merely to the employer telling other people about you, or is the offer only good if you receive more work? In many cases, this ambiguity means that the employer may not have to do anything for you at all, creating, in essence, a one-sided deal. This is called an “illusory promise” and it makes the contract unenforceable.
And exposure is illusory not just because it's a potentially empty promise (there's no guarantee that anyone will see the fruit of your labor), it may also persuade you into accepting a job you might not have otherwise. These kinds of promises are pervasive in the film industry where it's increasingly difficult for small and indie films to get distribution deals. Unless you're working on the next Spielberg, Bay, or Nolan film (in which case they can afford to pay you, end of story), you never actually know if the film will get finished, let alone distributed and seen by the public.*
The only way I can see an offer of exposure being legally valid is if the employer makes an effort to send new clients your way, hire you for other jobs himself, or take other proactive measures to get you more work. In that instance, you should ensure these actions are detailed in writing. The more you can clarify an employer’s responsibility towards you, the less likely that promise will be illusory.
To me, an offer of exposure is worse than being offered nothing because it creates the impression you'll get something out of the deal when you probably won't. It lacks the honesty of a regular unpaid offer. If you're already squeamish about doing unpaid work, you should be downright irritated if someone offers you "great exposure"** as fair and just compensation. It's neither.
* Another common illusory contract provision I’ve seen repeatedly is where the employer will offer financial compensation only if the film makes a profit… which very few ever do. Watch out for this one, it’s especially pernicious.
** For the record, there's a substantial difference between the employer merely stating that you'll get great exposure from the project vs. making exposure part of the offer of employment. The former is typically the result of their excitement about the project. The latter is a central part of the offer, an excuse to get you to say "yes" to a job you might turn down. Knowing which is which can be very hard, so use your best judgment. And if you still can't tell the difference, call a lawyer.