In the frame of TV series production, the question of the option to engage performers on subsequent seasons is of paramount importance to producers, given that they want to ensure the availability of performers playing the main characters of the Series, but without, at the same time, being bound by same and obliged to hire them (for example, if the role is deleted).

In this case, a French production company had hired an actress for the first two seasons of a TV series. The agreement signed for the second season included a “recurrence clause” according to which the producer and broadcaster may decide at their discretion the production of the series beyond season 2 and the recurrence of the role played by the actress, in which case the artist already accepted to perform the role.

It was further expressly mentioned that the producer makes no commitment as to the fact that the role played by the actress would be present in each of the episodes produced.

Finally, the agreement stated that, in the case where subsequent episodes were being produced, the remuneration of the actress would be negotiated in good faith, with an increase of not more than 10%.

Despite the argumentation of the actress, the Court of appeal of Paris ruled that these provisions may not be analysed as a job offer nor as a promise of employment.

According to the Court, the agreement did not include any commitment by the producer/employer that would have specified the position, the remuneration and the start date of the performer for the third season, nor does it show the intention of same to be bound in the event of acceptance by the performer. Therefore, since the position of the performer, the start date and the remuneration are not already determined, the formalization of the agreement is not subject to the sole the consent of the performer, and therefore does not constitute a promise of employment.

The Court also recalled that the recurrence of the role was conditioned upon not only the decision to shoot subsequent episodes, but also the presence of the character played by the actress within the script of said episodes (which is not at the sole discretion of the producer, but subject to the freedom of creation of the scriptwriter).

It is rare that French courts rule on these issues, which makes this decision even more important to keep in mind. Even though the validity of the “recurrence clause” was not challenged and the Court did not rule on the conditions of validity of this type of provision, it is important to note they are not to be considered as a promise of employment.