Broadway Reexamines the Use of Nondisclosure Language in Contracts After the Scott Rudin Fallout
On May 18, 2022, Actors’ Equity Association announced that actors and stage managers of four of mega-producer Scott Rudin’s Broadway productions—To Kill a Mockingbird, the 2018 revival of The Iceman Cometh, the 2020 West Side Story revival and The Lehman Trilogy—would be released from nondisclosure agreements signed in association with those productions. Equity, the national union for professional actors and stage managers, had launched an investigation into these NDAs after reports of Rudin’s pervasive abuse of his employees broke in 2021; the release came after Equity and The Broadway League—a trade association made up of producers, theater owners and other unionized professionals that facilitates contractual negotiations between producers, theater owners and unions—reached a settlement.
While the exact language of those NDAs has not been disclosed, David Levy, communications director at Equity, says, “Generally, those NDAs just overreached any kind of appropriate boundaries around what someone should or should not be able to discuss. An NDA should never be used to protect someone from their own bad actions.”
The decision on those four Rudin contracts has sparked a broader conversation on the overall use of NDAs with regards to Equity’s 50,000-plus members nationwide. “A lot of NDAs are written in a way that makes the signer feel like they’re not even allowed to tell people that the NDA exists, which is nonsense,” Levy says. Following the settlement, Equity reached out to its membership to notify all members that if they are suspicious of or have questions about an NDA they signed—whether for a Broadway production agreement or elsewhere—they should contact the union for assistance.
Equity and The Broadway League have signed an agreement to discuss the use of NDAs in future union contracts. Previous industry reporting misstated that the League agreed to stop using nondisclosure language in contracts or riders outside of protecting intellectual property, financial information or in other limited, approved circumstances going forward, but the two organizations have only agreed to talks to date. “What we have agreed so far is the stuff about the specific Scott Rudin NDAs that got released and a commitment to create what the new rule is going to be going forward,” Levy says. “We haven’t finalized what the new rule is going to be.”
As part of these discussions, Equity and the League have re-committed to the existing policy that: “Essentially, producers from the Broadway League may not request or require any actors or stage managers to sign a confidentiality, nondisclosure, non-disparagement agreement as a prerequisite for employment unless it’s contained in a rider that’s been approved by Equity,” says Levy. NDAs delivered to union members as separate contracts—rather than riders—may skirt this rule; the theory is that this is how the Rudin NDAs escaped Equity’s approval in the first place.
Moving forward, Equity is pushing for all NDA language to be included as a rider—which would, in turn, mean that Equity would always see and have to approve NDA language. Secondly, Equity wants to limit NDAs to cover intellectual property (“The producers of Back to the Future don’t want people talking about how the car works”), financial specifications, scheduling (“If a show is in development and hasn’t been announced to press yet”) and the like, rather than workplace conduct. Talks are ongoing; there is no set deadline to reach an agreement.
“We’re all working towards a common goal, which is to make sure that there’s a proper use for a legal mechanism to protect the important creative work that goes on,” says Levy, “and we need to make sure that people feel like they can go to work in a workplace that treats them safely and with dignity—which is what everyone deserves. Anything that we can do to make it easier for them to speak out without fear of reprisal, I think, is a positive thing.”
What Equity Members Should Know
According to David Levy, communications director for Actors’ Equity Association, any Equity member who has signed an NDA or who has questions about an NDA they have been asked to sign should:
1. Reach out to the Equity business representative listed on that contract.
2. Be prepared to provide the paperwork in question.
3. Await Equity’s legal review of the contract and advice on next steps.
4. Confirm that any NDA you are asked to sign is a rider to your contract. If you are unsure if an NDA is a rider, contact Equity through your business rep.