‘Black Swan’ Lawsuit Stirs Intern Debate: Education or Exploitation?

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In a down economy are movie companies relying too heavily on free labor?

An unorthodox lawsuit filed by two unpaid interns on Fox Searchlight’s indie hit, "Black Swan," shines a spotlight on a common, but little-discussed reality in Hollywood: the use of free labor on movie productions.

From directors to gaffers, many in the movie business see unpaid internships as a necessary step to gaining experience and contacts in a cliquish entertainment industry.

But the lawsuit has ignited a virulent debate – including on TheWrap in dozens of comments on a story about the lawsuit – about whether unpaid internships have been taken too far and instead constitute rank exploitation.

“Just because everybody is doing it doesn’t mean that it’s right and it’s lawful,” Elizabeth Wagoner, an attorney for the “Black Swan” interns, told TheWrap. “Our goal is to expose the practice of employers profiting from unpaid labor.”

Also read: 'Black Swan' Sued for Using Unpaid Interns

Fox Searchlight maintains that the interns worked for the production company that made the film before the studio acquired the project.

“These individuals were never employed as interns or retained in any capacity by Fox Searchlight, which has a proud history of supporting and fostering productive internships,” the studio said in a statement. “We look forward to aggressively fighting these groundless, opportunistic accusations.”

Read the full complaint here

Fox did not respond to Wrap requests to delineate their internship policy.

Many of the other Hollywood studios, such as Sony and Disney, do pay their interns, according to Wrap inquiries. Others, like Warner Bros., require that school credit be given in exchange for the work experience.

Howard Fabrick, a labor attorney at Akin Gump Strauss Hauer & Field, said that for their own sake, he counsels studios and his other clients against offering internships unless they recruit workers from colleges.

“Cheap labor is not an unknown motivating factor and there certainly are employers who take advantage of it,” Fabrick said. “Basically, though, these places should not get involved in not paying interns unless they're sponsored by an educational institution. Employers need a defense to protect themselves.”

The parameters at smaller production houses and media companies are looser, and many internships do not come with a paycheck or course credit.

In a down economy, the temptation to pad a smaller company’s workforce with unpaid labor may be leading some to exploit the internship process, Fabrick and others say.

“In today’s labor market, it’s tough to get jobs,” Fabrick said. “There’s not a lot of opportunities and people are just looking for some form of experience to put on their resumes.”

That doesn’t mean that unpaid internships aren’t valuable, industry observers and educational professionals argue.

“Most of the internships that are offered are non-paying, but most of them are very valuable to a person trying to break into the business,” Larry Auerbach, associate dean of USC’s School of Cinematic Arts, told TheWrap. “It’s vital to do internships, to do as many as you can, because it allows you to meet people. Everybody needs to build network.”

Auerbach says that USC works hard to make sure that companies are offering students who intern the opportunity to learn the ropes, and that they are not just asking them to fetch coffee or take out the trash.

Indeed, that’s not just dirty pool, it’s also illegal.

Federal labor law outlines six criteria that an internship must reach to be considered kosher.

Interns must receive training or instruction similar to what they would in a vocational school or educational environment. The training they receive must be for their benefit. The employer does not receive any benefits from the intern and may even find their work impeded. Both parties understand that the intern won’t be paid and that the intern won’t necessarily receive a job at the end of their tenure. 

Perhaps most important, interns are not supposed to displace regular employees.

For those with the avidity to work hard despite the lack of pay, the rewards can come quickly.

“I read an article saying internships are the new first jobs,” Jacob Welshans, a 27-year-old  employee at a film production company who got his start as an unpaid intern, told TheWrap. “That’s all the more true out here where it’s so competitive."

After first finding a spot at a small production company where his friend’s older brother worked, he found a spot with a Santa Monica non-scripted TV outfit, where the head man, given to hiring flocks of interns, “was tough but fair — he really wanted us trained well enough to go out into the industry,” Welshans said.

“The hungry people rise to the top together,” he added.

Welshans (pictured right) worked hard enough to win the boss’ recommendation and moved on to an assistant's job at the Paradigm agency within seven weeks, and not long thereafter, found a perfect fit at a production company.

Likewise, 23-year old Sasha Trosman, who is currently interning at a TV network, has no problem with going unpaid,

“Honestly, I’m learning more on the job, with all the hands-on experience, than I am in school,” Trosman told TheWrap.

Also, by contrast to some of her friends — one of whom scanned papers for eight hours each day of her unpaid internship — Trosman is getting a real feel for the job during her internship. She sits in on production meetings and casting calls, distributes story ideas, and researches the on-air talent being considered by her bosses.

There’s no guarantee she’ll have a job waiting come graduation this September, but each of her past employers — if that’s the word — has promised to talk her up to peers even if there are no immediate openings.

That’s how the internship process is supposed to work out. If the “Black Swan” suit is successful, it may prevent exploitation, but it also may make movie and television companies shy away from the Sashas and Jacobs of the world.

That could make the door to Hollywood even harder to crack open.