In early November, Jessica Jefferies gathered in a room with representatives from Equity UK, the actors union, Spotlight, a 90-year-old casting agency, and games development studios, as well as some agents and actors. They were there to begin hammering out an idea that Jefferies, a London-based casting director, had been chasing for years: a standardized contract for performance capture artists, those actors who don Lycra suits dotted with white markers whose movements help bring to life the warriors, witches, animals and ogres in modern video games.

The work of Jefferies and her peers has given rise to some of the world’s most memorable video game characters. What it has failed to produce, however, is clarity around certain rights and standards for these actors regarding their work. As the video games industry explodes, it’s becoming an increasingly attractive avenue for working actors. But the relative novelty of this field means there are few established standards. From a legal perspective, the medium does not fit neatly into either the art or tech worlds, existing in a gray area when it comes to intellectual property, labor practices and compensation.

“It’s kind of the Wild West,” said Marta Svetek, a London-based motion capture performer.

For nearly 10 years, Jefferies built her career as such an actor. Now, she seeks to act as a liaison between animators and performers to strengthen a fledgling industry from within.

The meeting Jefferies held in November was a year in the making, she said, and an opportunity for people from across the acting and animation worlds to learn one another’s basic vocabularies, interests and concerns. Her hope is that the solutions they come to, and the standard they set, will finally set a public precedent — across an industry where so much of the work is hidden.

The illusion of danger

It’s only within the last decade that young actors have chosen video games as a first resort, said Oliver Hollis-Leick, who teaches performance capture around the world, following an 18-year career in games playing Iron Man, the Hulk, James Bond, Spider-Man and more.

“In terms of glamour, nobody wanted anything to do with it,” he said of the early days, when games companies sometimes didn’t even bother to hire actors — animators just suited up themselves. “But in the last few years, video games are the culture of a lot of young actors coming into the industry. The stories they are most attached to, they experienced in video games.”

Svetek, a former student of Hollis-Leick’s, is such a performer. A gamer who also works in visual effects, she can speak the language of both performance and animation. But miscommunication between developers and actors can be common, she said. It’s a result of ignorance, she said, not maliciousness. Games developers simply don’t know what actors need.

When it comes to staged fights, for example, a stunt coordinator must be present on any union set, to make sure an actor doesn’t get hurt. But Svetek has been on smaller or indie projects, where she says she ends up on her own.

“You try very hard to create the illusion of danger. There’s techniques around that. You're keeping each other safe,” she said. “You shouldn't have to choreograph your own moves.”

A spokesperson for SAG-AFTRA, the American union for people who work in film, television and radio, said that its members can come forward with concerns that they encounter, and that the vault — the setting in which performance capture takes place — is expected to be treated like any other union-protected set on measures of safety and compensation.

“We are aware that performance capture raises its own set of issues and that there is a mental shift that remains to be accomplished with some producers, who see performance capture work as somehow separate from other services that are covered by our agreement,” the spokesperson wrote in an email. “In fact, performance capture services are covered by our collective bargaining agreements and benefit from the same producer obligation to maintain a safe set, the same working conditions and the same compensation obligations as other covered services.”

It then often falls to people working within the industry to know what those standards are and what is expected. And performers without a union card or other representation are also left to decide what they will and will not accept.

A legal gray area

On any day, one actor might play up to 10 characters. Most of the time, due to the secretive nature of games, they’re given no information about those roles in advance. That’s part of the joy, many performers say. It’s an opportunity to improvise, developing complex characters using only their bodies.

“It’s pure play and imagination,” said Jefferies. “You could be on the moon, you could be in a forest, you could be a monkey or a 90-year-old woman.”

It can also lead to uncomfortable, or potentially offensive, requests for actors.

“One time, I showed up and found out I was playing Hitler,” Hollis-Leick recalled.

In 2017, following the longest strike in the history of SAG-AFTRA, video game actors won an agreement that now requires development companies to tell actors in advance whether their performance will involve racial slurs or sexual or violent content. That’s only true in the U.S., however; Equity UK, the union with which Jefferies recently met, doesn’t yet have standardized protections for nonspeaking actors.

Elias Toufexis, an actor known for his work in the Assassin’s Creed series and Tom Clancy’s Splinter Cell, said that in such a new industry, it’s hard to foresee an issue until one arises.

“I think we’re gaining ground as we move on,” Toufexis said. “I have been doing this for 10 years, but 10 years is not a long time for a brand-new industry. The actors are learning what we can and can’t do.”

For example, he said, performance actors will often have to memorize entire scripts, only to have their voices re-dubbed by a separate voice actor. It used to be that the performance actor wouldn’t get extra compensation for the script work, but that norm has shifted after more well-known actors, tied to major projects, raised concerns.

Still unresolved is the question of what happens to the performance after an actor sheds his or her suit — which is to say: Who owns a performance created by three actors — a face, a body, and a voice, say — and 100 animators? Does an actor own the way he or she runs, falls, throws a punch, fakes death?

“What I do in the suit is only a fraction of the final performance,” said T.K. Gorgonia, an actor in Los Angeles who worked on Bard’s Tale IV and the upcoming Wasteland 3. “It takes an army of animators, producers, directors to make the final product. … There’s got to be multiple inputs to make art.”

Legally speaking, “that’s the tough line to work out here, what is protectable and what’s not,” said Art Neill, executive director of New Media Rights and an attorney specializing in intellectual property.

This legal gray area sits at the intersection of the First Amendment, copyright law and rights of publicity, which gives us control over how our likeness is utilized, Neill said. And video games are at the forefront of courts’ attempts to give clarity to these issues — see, for example, disputes over whether Fortnite owns the Carlton dance.

Meanwhile, it’s up to performers and their advocates to figure out how to retain some semblance of control over the manipulable data they create. Or, at least, how to get paid for reuses. A movie actor receives a residual payment every time their film re-airs. But a video game actor can’t get a check every time you boot up your game. Instead, they can try to protect the movements they create, in case a fight scene they develop for a game gets used somewhere else.

Katherine Grant-Suttie, an actor in Los Angeles who works mainly on indie titles and developed movements for Halo 5: Guardians, said she tries to be careful to negotiate in her contracts a clause about reuse. Grant-Suttie is represented by SAG-AFTRA, and said the union has been strong on issues of reuse for voice-over actors, “but it gets really weird when people talk about this ethereal thing called non-scripted human movement.”

The disparate work being done by veterans like Jefferies, the casting director, and Hollis-Leick, the teacher, are steps toward a more uniform, consistent and easily navigable experience for actors. By working with the infrastructure that currently exists to support actors — managers, agents, unions and professional organizations — they seek to smooth this brave new medium’s challenges, and harness its opportunities in a way that will ripple across this burgeoning field.

“What I’m trying to do is talk to these different organizations … so we can gain a greater understanding of the industry and all of the different aspects of it,” said Jefferies. “That’s when we can then push forward.”

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