Last month a New York judge ruled against Fox Searchlight in a lawsuit brought against them by two interns who had worked on the feature film, “Black Swan.” The judge in the case ruled that the interns were entitled to compensation under the Fair Labor Standards Act and New York labor law.
For the record, I call this ruling – for lack of a better word – bullshit. This ruling is wrong on so many levels and will have a ripple effect not just through the entertainment industry but also on business as a whole. If this ruling is upheld after appeal, there will be adverse effects for all students trying to get a foot in the door, and the death of the internship as we know it…
… especially for African-American, Latino, and other minority groups.
The lawsuit in question states that the two students deserved to be compensated for their internship because the nature of work they did was the work of others who would be employed by the production, which they described as “ took lunch orders, answered phones, arranged other employees’ travel plans, tracked purchase orders, took out the trash and assembled office furniture.”
They complained that they received no real benefit from their internship experience and should have been paid like regular employees.
But I say … they were there to learn the ropes and earn school credit. What else did they expect they would be doing? Making deals? Giving their opinion on the script? Negotiating Natalie Portman’s contract?
I recently heard an interview with Eric Glatt on the radio program "The Business." Mr. Glatt, who is now studying for a law degree, talks about how he was an older intern with nothing to lose by filing this lawsuit. He calls these internships “wage theft.” The thing he fails to realize is that his lawsuit is going to cause thousands of students to miss out on opportunities. Instead of hiring people as he predicts, production companies are simply going to let internships go away. No producer wants to add another line item to the budget unnecessarily, nor court the chance of a possible lawsuit.
Studios and producers are not going to go out of their way to bring in new blood, especially if they have to pay for it.
As a graduate student at Chapman University’s Dodge College of Film and Media Arts, I completed an internship at age 41 for Eleven Arts, a Japanese distribution and production company.
While there, I answered phones, took out trash, watched films and gave feedback, assisted with translations, wrote press releases, booked airline tickets, posted fliers for upcoming films, and even delivered film prints to theatres. I received course credit, which was all documented with my school’s internship office. So after being on the writing staff of a major network television show (one of the most highly-acclaimed shows ever) AND making my own feature film, I still took an internship to earn my MFA. I came to the table with almost two decades of experience and I had no expectation of compensation. I learned a lot, put a lot into it, and developed new skills in the process. For me, it was a positive experience.
Internships for decades have been a rite of passage for many in the entertainment industry looking for an opportunity to learn about the business firsthand. I agree with the statement on the Chapman University website (my graduate school) that reads: “an internship can increase your understanding of a chosen field, enhance your academic experience, expand your network and provide you with a new perspective beyond the classroom.”
There is a six-factor test by The Labor Department to determine whether an internship should be unpaid - employers are supposed to make sure that an internship is similar to what is given in an educational environment, be for the benefit of the intern, not displace regular employees, do work that is not of immediate advantage to the employer, not give any expectation of job, nor any understanding of entitlement to wages.
This would be all well and good in an ideal world, but the reality is, if you are interning on a film production you are fortunate to be there, period. They don’t need you as an extra body observing the inner working of the production. They need folks who are going to get into the trenches and get their hands dirty otherwise you are wasting space. So if asked to take a lunch order, take out trash, or even take a purchase order, do the job and make yourself indispensable. Prima donnas need not apply, young padawan.
At first blush, it seems as though the ruling in the Fox Searchlight case may have now opened the floodgates – just recently a group of interns with "Saturday Night Live," "Charlie Rose," Hearst Magazines, and MSNBC have all filed suits or class actions against those various entities. If these rulings are upheld, many more companies will stop their internship programs and simply no longer participate, and more and more students seeking an opportunity to break in will no longer be afforded a shot.
I shudder to think how this will impact government internships or the Congressional Page Program - more closed doors, especially for minority students who do not have access or contacts.
As a friend and recent film school graduate, Gregory Goyins, said succinctly, “What they've done is shut one of the last remaining doorways that levels that playing field for everyone – by demanding to be paid in exchange for a body of unqualified work, they have destroyed a time-honored tradition, a rite of passage in our industry.“
As a college professor at Morgan State University, I wrote a few letters of recommendation for students seeking internships. They were pursuing an opportunity to learn more about their chosen crafts. It is often said students of color usually have to work twice as hard as their white counterparts to break into non-traditional professions. Many of these students are not afraid to put in the work and look forward to internships as a pathway towards experience. If this ruling is upheld, I don’t know how many students will follow this and other career paths if they know breaking in just got that much harder - or damn near impossible.
Darryl Wharton-Rigby is an advisor, screenwriter, playwright, director, and professor. He taught at Morgan State University and has written for NBC, BET, and MTV. He wrote and directed the award-winning feature film "Detention". With more than 20 years in film, television, and theatre he embodies a wealth of knowledge in story development, pre-production, production, and post-production. He is working on two books, “Suspicious,” an anthology of stories about racial profiling and “The Lazy Filmmakers Guide: Creating Cinematic Capital,” which discusses independent filmmaking strategies with personal anecdotes. He currently lives in Japan and now working on a documentary, Don Doko Don: The Yamakiya Taiko Club Story, about a group of young drummers displaced due to high levels of radiation in their community from the failed nuclear plant. You can follow him on Twitter @whartonrigby.