This is the fourth of five posts looking at Hollywood’s practice of giving film cameos to politicians and how this practice would play in an FCPA context.
Even if a filmmaker gives value to a foreign official by offering the official a film role in exchange for an unfair business advantage, the FCPA will not apply without corrupt intent.
The paradoxical nature of using a film role as a bribe creates significant enforcement challenges. Unlike backroom dealings involving cash or other tangible items of value, movie appearances are intrinsically transparent. The cameo creates a “video-trail” of a public official receiving something of value. Such apparent transparency works in favor of the filmmaker, countering the likelihood of corrupt intent and discouraging prosecution. But if a corrupt filmmaker can disguise her evil motive by seeming transparent and honest, then she can most likely get away with corruption. Therefore, this quality may incentivize filmmakers actually wishing to bribe foreign officials to use this as a form of currency.
The true opportunity for abusing film roles as a form of improper payment, however, comes from the inherent license that will accompany a political cameo. For a politician to derive value from an appearance, the film has to be created and distributed. Consequently, the public official has an incentive to ensure that the motion picture does not stall, and almost certainly would ensure that red tape doesn’t block the film’s creation. This framework makes political cameos easy to exploit and hard to prosecute.
On the other hand, a lack of guidance on this issue can create problems for filmmakers who do not have any evil motive. The DOJ guidance unambiguously states that a corrupt act doesn’t need to succeed in its purpose for the FCPA to apply and that liability can arise out of a simple offer. That means that a simple invitation to a foreign official (or someone associated with the official) to participate in a film may expose the filmmaker to liability.
No filmmaker wants to be the guinea pig for a DOJ investigation of this practice. In the final post of this series, we’ll look at an example of a potential FCPA violation, and how filmmakers should prevent it.
Ilya Zlatkin is a recent graduate of the University of Richmond School of Law and holds degrees in economics and foreign affairs from the University of Virginia. He is currently awaiting the results of the Illinois bar exam and is in the process of becoming a Certified Fraud Examiner. He can be contacted here.