Just before filming one of the most memorable shots in Cape Fear (1991), Martin Scorsese gave actress Juliette Lewis a curious warning: “Bob is going to do something.” “Bob” referred to Robert De Niro, who played a dangerous criminal with a thirst for revenge. Originally, De Niro was to limit himself to kissing the actress, who portrayed the 15-year-old schoolgirl he was seducing. But he went further: he approached Lewis (who was only 17 years old at the time) and, after touching her cheek, he lewdly and insistently inserted his thumb in her mouth as the cameras captured the actress’s surprised face.
Nowadays, such a situation would set off alarm bells. The #MeToo movement against sexual harassment has raised awareness about the well-being of actors and especially actresses. That concern is reflected in star contracts, where partial nudity (like Ana de Armas’s scenes in Blonde) or full nudity (such as Emma Thompson’s scenes in Good Luck to You, Leo Grande) only occurs after long negotiations and carefully considered contract clauses.
Filming a sex scene is not easy. Those involved define the red lines in their contracts. If any of the actor’s private parts – the buttocks, nipples, penis or vagina – appears on screen or there is a simulated sex scene, everything is pre-planned; there’s no room for improvisation. Isabel Mariscal, a lawyer who advises directors, screenwriters and producers and a partner at Singular Law, points out that some 10-page contracts have “eight pages detailing how sex scenes are filmed.”
That was not the case during the filming of the movie Last Tango in Paris (1972). The movie’s director, Bernardo Bertolucci, was notorious for exploiting actors to get genuine reactions on screen. In one of the film’s most controversial moments, Marlon Brando sodomizes actress Maria Schneider’s character; the actress was just 19 years old at the time. In a 2007 interview with the Daily Mirror, Schneider said that she regretted that she did not contact a lawyer at the time, after she had experienced situations that “were not in the script.” In their contracts, stars now commonly demand a private and friendly atmosphere before disrobing to avoid abuse. For example, they can request special lingerie, such as nipple shields, flesh-colored underwear or barrier garments to prevent excessive contact. In addition, they can limit the number of personnel on the film set and/or demand that the staff on set leave their cell phones at the door so that no leaks of their nude scenes end up on the internet.
However, as Iñigo de Lacalle, a partner at Senn, Ferrero and Associates, explains, not all performers have the same latitude for imposing their work conditions. As with everything, their negotiating strength “depends on the caliber of the star,” the lawyer notes. An actor or actress who is just starting out in the industry has “almost zero leeway to negotiate” their conditions, while established performers enjoy “almost total” control over scripting their sex scenes. Lawyer Isabel Mariscal says that “if the contracted actor doesn’t have much sway, it’s sent out and comes back signed immediately”; if it’s a celebrity, “there may be up to 10 resubmissions” before the contract is finalized.
What happens if the actor or actress is not happy with a sex scene that has already been filmed? Can they stop the release of a movie? That’s difficult. Sometimes actresses have access to the footage beforehand to approve the captured images, although not all production companies will accept that condition. If the actress or actor feels denigrated by a scene that has already been recorded, the film industry has powerful legal weapons at its disposal to ensure that a movie’s release is not left in limbo by a lawsuit.
That’s because most actors’ contracts stipulate that they “waive the right to request a judge issue an injunction to force the suspension of the film’s production, distribution, promotion or exhibition,” explains Iñigo de Lacalle. However, signing that clause does not mean that the actor has renounced their right to go to court in the future, the lawyer points out.
Another thorny issue is what to do with discarded footage, particularly if it has nudity or intimate shots. If the company keeps the material (the most common occurrence), it must ensure that the footage does not end up in the hands of a third party, or worse, on social media, lawyer Isabel Mariscal explains. “If the raw footage is disseminated,” she says, “it’s the producer’s responsibility.” To avoid that scenario, the laboratory operators who handle the images sign strict confidentiality agreements.
One of the problems with nudity, Actors Union legal sources explain, is that it’s difficult to regulate through a legally binding collective bargaining agreement. A person’s naked image is a “very personal right,” they explain, so everyone is free to negotiate it as they please. “Standardizing this issue in a collective [bargaining] agreement would be complicated,” they point out. Indeed, the guild’s only legal provision on nudity and simulated sex appears in Article 31 of the agreement regulating the relationship between producers and actors. It specifies that nudity may not be used in advertising material, such as billboards or trailers, without the actor or actress’s prior written consent.
Intimacy coordinators function as a kind of gatekeeper on film shoots. Their mission is to ensure movie stars’ comfort in filming sex scenes and to stop production if certain lines are crossed. With the advent of the #MeToo movement, these experts have gained prominence on film shoots in the United States and Spain. These gatekeepers meet with directors, discuss the design of scenes, and check the set-ups to make sure that nothing is amiss, among other responsibilities. In 2020, the Screen Actors Guild of America (SAG) published a guide to best practices when filming sex scenes, in which it recommended that intimacy coordinators be on set for all shoots.