the podosphere

The facts concerning SAG’s contract negotiations with the AMPTP (AKA the moguls), as I understand them (so, um, if you’re splitting hairs, this is an opinion piece, not a journalism piece), at this point:

1. SAG and the AMPTP were close when talks broke off. Some of the folks on the AMPTP side decided they wanted to play the AFTRA card and see if that got them any additional leverage with SAG. And why not? June 30 is still more than six weeks away.

2. The two sides should be able to reach a reasonable agreement on the clips usage and “French Hours” issues.

3. Apparently, AFTRA is negotiating seriously, and they’re using the package jointly developed with SAG during months of W&W meetings.

4. Both SAG and the AMPTP do want a deal. Neither side wants a strike.

5. Both sides are comporting themselves as one would expect from professional negotiators.

It is not uncommon in a negotiation like this for one side or the other to put something on the table they don’t really want or care about, but can later take off the table in exchange for something they seriously don’t want to have to give on. Is the AMPTP’s demand for “French Hours” a classic bargaining chip???

Not long ago I expressed my concern that AFTRA would make a lousy deal, and I dared AFTRA President Roberta Reardon to prove me wrong. So far, I hear that’s exactly what she’s doing.

As I’ve said before, the impression I get is that SAG will not feel itself bound by the deal AFTRA negotiates.

The one possible sticking point actually rests with the AMPTP. Unlike SAG, which can ratify a contract with 50%+1, in order for the AMPTP to sign on the dotted line, each and every major studio has to agree. The question I posed is, is SAG negotiating with a hydra???

Still, actors at this point – along with everyone else who has an interest in the stability of the movie/TV industry – have every reason to be cautiously optimistic. My one note of caution? All of this is as of this moment, and is therefore subject to change. I am confident in the characterizations of the behavior on the SAG side, and am hopeful that AMPTP negotiators will continue to be equally professional (missives by folks like Ray Richmond notwithstanding).

What should actors do? AFTRA members – especially dual-cardholders - should contact their union and encourage them to continue to negotiate from a position of strength. SAG members need to continue to express our support for our leadership and our solidarity. SAG’s negotiators, after all, are only as strong as the rank & file membership they represent.

The other day I posted a fairly strong critique of the AMPTP’s demand that they have free re-use of clips over at DHD. Current rules are delineated in the SAG contract, section 22, and in state law, SB 771, which covers the use of “deceased personalities”.

Nothing SAG and the AMPTP negotiate may countermand state law, so unless his heirs and Ms. Bullock agree, my Groucho/Sandra romantic comedy is not likely to happen. I stand corrected on the legal aspects of this.

As I understand it, the AMPTP’s argument is essentially, any 14-year-old with basic video editing software can use a clip for free and post it – alone or mashed-up – on YouTube or MySpace, so the studios should be able to do that too. SAG’s position is, if you’re using the clip to make money, which of course is the difference between the average kid with iMovie and, say, Warner Brothers, the actors deserve a cut. My example from the HBO show “Dream On” is instructive in this regard, as is a great example cited by another blogger of MGM’s recycling of their best classic movie musical numbers in the “That’s Entertainment” series of theatrical features, which were essentially clip movies.

Actors have a huge stake in this. Relevant issues include but certainly are not limited to image control, exposure, and commercial use and linkage of the actor’s persona to a product or even a type of product.

Text versions of the state law and relevant provisions of the current SAG contract are available here.

Dear Mr. Richmond -

My response to your letter to Mr. Rosenberg and Mr. Allen is an open one, as was your letter.

With respect, sir, you are only one of 120,000 members of the Screen Actors’ Guild. You wisely did not pretend to speak for anyone but yourself – and neither do I – but because your ire is directed at your own union’s leadership instead of at the moguls, you received ink through one of the moguls’ unofficial mouthpieces, The Hollywood Reporter.

Consider for a moment THR’s motivations for publishing your letter. Their ad revenues are in the tank, and while they have received an initial curiosity bump in circulation as a result of their makeover, it hasn’t yet redounded to their bottom line. They need industry advertising dollars badly, and those dollars ultimately come from the moguls.

As to the specifics of what you said, you referred to Mr. Rosenberg’s and Mr. Allen’s “alpha-male aggression”. That phrase sounds like it came straight from the AMPTP’s high-ticket PR machine, and closely echoes the politics of personal destruction employed by the moguls against the WGA leadership just a few months ago.

Further, you place responsibility for a potential work stoppage squarely on the shoulders of SAG’s leadership. What we know from the WGA’s recent experience is the AMPTP put the WGA negotiators’ backs to the wall with demands that would have rolled back millions of dollars in residual compensation and effectively destroyed the guild. The AMPTP’s recent demands of SAG - “French Hours” and unlimited clip use, while on their face not quite as extreme, cut to the core of the wages and working conditions SAG was founded to protect.

You said, “getting a deal done by June 30 is far more imperative than crushing the enemy…” That assumes Mr. Rosenberg and Mr. Allen view the AMPTP as the enemy. I see no evidence of such a rancorous view from either man. Rather, the relationship between the guilds and the AMPTP is one of partnership, as both sides have said. These contract negotiations determine the nature and fairness of the relationship between labor and management.

The AMPTP’s use of time and timing as negotiating tactics should be noted as well. Near the end of the WGA strike, the AMPTP suddenly wanted to rush everything, ostensibly to save the Academy Awards, but also for the same reason a basketball team will suddenly speed up their game – to try and force a mistake. SAG must be wary of such tactics.

Like you, I cannot claim a close personal relationship with either Mr. Rosenberg or Mr. Allen. I can, however, tell you that from my limited experience attending meetings as a volunteer or as a guest, I have never witnessed either man conduct themselves in anything other than a professional, level-headed and courteous manner.

From everything I have seen for myself and read, if SAG leadership calls for a strike vote, it will only be after all other avenues for negotiation and agreement have been explored fully, and found wanting. Mr. Rosenberg has said publicly and written to his membership repeatedly that nobody wants a strike. If it is ultimately the last tool we must use to protect and enhance our wages and working conditions, now and into the future, then we must be prepared to use it.

Our role as actors during this negotiation process is to provide our full and unwavering support to our leadership. The stronger our solidarity, the stronger Mr. Rosenberg’s and Mr. Allen’s negotiating position vis a vis the AMPTP. I would encourage you, along with all of my fellow SAG members, to keep this in mind. Our continued ability to do this uniquely satisfying and emotionally rewarding work depends on it.

Recently an item popped up in the news about MeVio’s (the new name of the recently rebranded Podshow) Ron Bloom saying that “We have never believed in user-generated content as a business, or even as a sustainable entertainment offering”.

I was not a truly early adapter in the world of podcasting, but I had my first (and only, so far) podcast up and running by late ‘05, “The Mike and Michelle Show”. Podshow lured away my podcasting partner Michelle B. - unlike Dawn & Drew, Keith & Chemda, the Love Long and Prosper pair or many other podcasting couples, Michelle and I are most definitely not in a relationship - with promises of this and that. Without going to into detail, IMHO, they’ve basically failed to deliver for her.

I was not offered a contract with Michelle because I was perceived to be “anti-Podshow”. I was never anti-Podshow. In fact I thought the special treatment Podshow offered its talent at the ‘06 Portable and New Media Expo was pretty cool and said so publicly (apparently, I later learned, some of the talent - no names - let it go to their heads). Back when I listened to the Daily Source Code, Adam Curry typically came off as knowledgeable and very much in the game.

Just as a side note, in our podcast Michelle and I debated ad nauseum about “soundvertising”, product integration in podcasts, so on. I personally found Adam Curry’s Senseo experiment interesting maybe the first two times I heard it. After that, ehhh.

My specific concerns with Podshow were primarily about contracts that smelled like Old-Media contracts modeled on what the major music labels did. I was vocal about it in our podcast “The Mike and Michelle Show” while Michelle publicly said, “I believe Adam, I love Adam….”

I talked at length about the contract Keith and Chemda had gotten hold of, qualifying my points by saying “IF this is a legitimate contract….” I found the contract stuff ironic as Adam Curry was very specific in the DSC about “owning your own shit”, i.e., your content and related rights to exploit, so on, while the Podshow contract prevented a podcaster from jumping ship at the close of the contract and taking with them the name of their podcast for a full year, if I remember correctly.

In fairness to Adam Curry, his advice about retaining ownership and control of your content, like much of his advice on a range of other technical matters, is quite sound. He also advised that nobody sign a contract – and I am paraphrasing here, so I’ll be happy to be subject to correction - without reading it and understanding it, and running it past a lawyer.

The Free PDN contract referenced below does not limit the non-exclusive right to “publish”, which means, since the limiting language is not in the contract, that if, say, someone decides to read their novel as a podiobook and push it through the Free PDN, technically MeVio could transcribe it, publish it on paper, and sell it on a “non-exclusive” basis. I am not saying they would, I am only saying according to the contract they could. Or let’s say you trust the current MeVio leadership implicitly. This doesn’t prevent the new owners, in the event of a sale, from fully exploiting the content for which they have legally been granted a non-exclusive license.

To this day, the Free PDN contract on the MeVio site* allows MeVio to continue to stream whatever content the content creator uploaded indefinitely, even long after the talent has closed shop at MeVio and moved on.

As for getting your stuff onto MeVio, that can apparently happen whether you sign with them, upload to them, ignore them, or even actively oppose them. I did a quick search and found the decidedly non-MeVio Keith and the Girl there, and even added it to “my channel”. I did not have to search for “Goodnight Burbank”, which was non-MeVio (note: Hayden Black just got back to me. He did upload about three episodes of Goodnight Burbank to MeVio, in hopes of expanding his subscriber base). I looked for Podshow and MeVio links or references on the official Goodnight Burbank website, and found none. Goodnight Burbank – not one of MeVio’s “star” vidcasts - was featured right on MeVio’s homepage when I opened it just a few minutes ago.

Adam Curry joked about breaking up Keith and the Girl - “Adam and the Girl?” - but in the podcasting world, Mike and Michelle went into pod-fade largely because Michelle put all her eggs in Podshow’s basket.

To this day Michelle’s still slaving away on “Whispered Pearls”, “Michebel’s Hollywood”, and most recently an erotic podiobook, “The Golden Path of Love” for MeVio/Podshow, and in fairness she has built a sizable audience by independent podcasting standards. Still, MeVio hasn’t exactly enabled her to kiss off her day job.

While I don’t have anything official from Michelle on on Bloom’s comment, I can’t imagine she’d find it flattering.

* From the MeVio Free PDN contract, item 2.4, which, according to item 5, “survives” termination of the contract:

“You hereby grant to MeVio the non-exclusive, royalty-free, worldwide right and license to digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, translate, distribute, publish, publicly display, publicly perform and hyperlink your Programming; and make archival or back-up copies of your Programming in any venues, media and channels of distribution now existing or yet to be invented. (hereinafter collectively referred to herein as “Use”).”

As for MeVio’s possible future plans, you can’t blame them for being prepared. The following is Item 10 from the same Free PDN contract:

“Assignment. You agree not to cause or permit any assignment, sublicense or transfer of this Agreement or its rights or obligations under this Agreement to any third party without the prior written consent of MeVio. MeVio may assign this Agreement to another party in connection with the change of control of the MeVio Website.”

In exchange for them streaming your content (a service you can obtain from specialists like Libsyn for as little as $5/mo), you as the independent content creator are bound in perpetuity, albeit in a limited, non-exclusive way. They aren’t.

It seems to me that MeVio’s own contract belies Bloom’s statement. If their business isn’t about exploiting user-generated content, why would the above-referenced paragraphs be part MeVio’s Free PDN contract???

The AMPTP wants to use old clips any way it pleases.

Unconditional and unrestricted clip use may include shows structured like the old Brian Benben HBO show, Dream On. It may include commercials. It may also include, in commercial or theatrical form, actors being digitally manipulated to do things they never actually did. A relatively benign example of this is Spielberg swapping guns for walkie-talkies in the hands of the bad guys in a DVD re-release of E.T. The Extraterrestrial. We’ve already seen clips of actors from classic movies used in television commercials, including Fred Astaire, John Wayne and Steve McQueen.

As I understand the AMPTP’s proposal, the moguls could take clips of an actor, do digital motion capture of their performance (including voice), and generate a “performance” of the actor in an entirely new project.

For example, want to see Groucho Marx circa Duck Soup paired up with Sandra Bullock circa Demolition Man? Done. You wouldn’t even need the current Sandra Bullock. Wait. Groucho isn’t tall enough? Not a problem. We can make him taller. We have the technology.

This is just one aspect of the brave new world actors are facing.

Again, I am not privy to the details of the AMPTP’s proposal. IMHO, AFTRA about gave away the store by giving away clips in the Network Code. I would be wary even of SAG’s “consent and negotiate” counterproposal. Firm rules need to be in place to protect actors’ visage, voice, livelihood, and reputation going into the future.

The clip issue is huge. Far larger than many might think at first glance. Vigilance is required.

Contract negotiations between SAG and the AMPTP have been put on hold while the AMPTP negotiates with AFTRA.

I would like to encourage my union, SAG, to stick to its guns and continue to take the high road through this process.

I would like to encourage my fellow union members to not be dissuaded by anything the AMPTP throws at us - lies, trolls, or even AFTRA’s carcass. Let us not be distracted by “French Hours”; it’s a canard, just like residuals against the WGA. Let us not be disheartened or distracted by their using time and/or timing as a negotiating tactic.

The game-changer is New Media. Nothing SAG negotiates rooted in the world of Old Media will remain relevant if it doesn’t carry over to online distribution, web-based content, cellular, IPTV, satellite or broadband distribution of theatrical features and other content to theaters, so on. SAG has jurisdiction over New Media. That is established, and over the next few months should be strongly reinforced.

New Media makes this a once-in-a-generation negotiation for SAG. Given the fundamental changes represented by New Media, it is no exaggeration to say that the relevance of SAG as a union is on the line this year. The solidarity of the membership - from the biggest A-lister to the middle-class actor to the specialists and the background - is vital to the success of these negotiations. If we want to have a union we can turn to when we’re screwed on the set, or screwed on the Internet, or screwed on the check, then we have to show our solidarity through one of the most fundamental of union responsibilities - contract negotiations.

Nobody wants a strike. However, if, in the judgement of Mr. Rosenberg and Mr. Allen, a strike is required, we must stand ready to answer their call.

SAG and the AMPTP have issued press releases stating points of view on the contract negotiation process almost three weeks in. We’re far, far apart – no surprise. It is quite easy to speculate about this or that, or let our emotional attachments overrun cold-eyed reasoning.

It is still early. SAG’s contract isn’t up for another two months.

It is instructive to bear in mind who owns the Los Angeles Times, who runs Variety, who the Hollywood Reporter relies upon for most of its (remaining) advertising dollars, and who directs the people who direct the editorial decision-making at the other mainstream media companies. Unions in general don’t get a fair shake from MSM. The WGA certainly did not, and it’s clear SAG will be treated no better than its sister union.

It is fair and reasonable to assume the moguls would like to see SAG weakened through this negotiation process. There are, over the next couple of decades, hundreds of billions of reasons for them to do everything they can to minimize SAG’s cut of New Media revenues. They know, and our negotiators know, that that’s where the distribution will happen, and where money will be. Fresh signs of this appear every day. The most recent news is a number of companies announcing the day/date alignment of their DVD movie releases with VOD online and iTunes rentals. If I had to venture a guess (and I could be wrong), their new plan is to make the 1080p version of the content available on Blu-Ray, and the 720p (which is what Apple’s set-top box currently supports) & SD versions available through iTunes, Amazon, VOD online, so on.

We actors need to respond to the AMPTP during this critical time by speaking the plain truth. We have the talent to do this humorously, poignantly, and informatively all at once. We can and should go directly to the general public through the Internet, as the WGA did.

It is also certainly in the best interests of every SAG member (okay, maybe excepting Les Moonves) to fully support our elected leadership and paid negotiators through this process. The clearer our solidarity is to the AMPTP, the stronger the hand our leadership holds in negotiations. We need to keep our endgame in mind - the best deal possible (wages & working conditions, health & pension), the long-term health and viability of the guild, and continued professional opportunities to do this thing we love and which brings joy to so many.

While the AMPTP’s statement today is news, it should be no surprise to anyone who’s been paying attention over the past few weeks. After AFTRA chose to go it alone, on April 3rd I wrote, concerning SAG’s bargaining position:

“There is no hurry. The primetime television and theatrical contracts don’t expire until June 30. Hurrying a deal works only to the benefit of the AMPTP. In a negotiation, it must be taken into consideration that if it will gain one side or the other a strategic advantage, they’ll be perfectly happy to drag their feet. The AMPTP did just this in their negotiations with the WGA. They dragged their feet for MONTHS, then when someone woke up and noticed the Academy Awards were in jeopardy, suddenly it was hurry up and make a deal. Nobody should be fooled by efforts to use time or timing as a manipulative tool.”

Or now, it seems, to try to use the weaker actors’ union against the stronger one. My hope is AFTRA will hang tough and wait for SAG to make its deal. My fear is that AFTRA will make a rotten lousy deal as early as May 9. While it would not benefit actors, the latter is the more likely outcome.

Please Ms. Reardon, prove me wrong.

A guy with nom de plume of Johnny Drama wrote an eloquent comment to a recent DHD post, which prompts me to respond.

Mr. Drama (Management person) -

While I agree with your assessment of the plight of the independent producer - I’ve read Christine Vachon - unlike America’s beleaguered rust belt industries, Hollywood is alive and well and quite profitable. American movies and television shows are still the gold standard worldwide.

The entertainment industry is currently embarking on a generational shift, marked by radical changes in how content (did we even use that word ten years ago???) is generated, delivered, and consumed. What we creative types must guard against is the moguls masking their efforts to destroy Hollywood’s unions by exploiting this period of uncertainty. The strategy is laid out in “The Shock Doctrine”, Naomi Klein’s book which may rightfully be considered a post-industrial sequel to “The Art of War”.

I personally favor a balance between labor and management. Respect and appreciation from both sides should rule the day. Here and abroad, however, unions have been under full-scale attack since the late 1970s. We have seen unionized labor numbers decline precipitously as corporations play nation against nation, aided and abetted by politicians they’ve bought and paid for, here and abroad. They use the tax codes, the IMF, the World Bank, even mercenaries when they feel it necessary.

The entertainment industry is fully immersed in this. The moguls play the Canadians and their subsidies against American states, which then offer tax breaks to lure or just to keep business. Australia has lured away a lot of work too. Dozens of films, as well as television shows like HBO’s John Adams - have been shot in labor-cheap central Europe. While this has hurt American actors, it’s hurt Hollywood’s BTL types much more.

These corporations - American and other - have been largely successful in their efforts to de-unionize the American workforce, and keep it de-unionized. Japanese and other foreign-owned auto plants in the US are placed in “right-to-work” states. Wal-Mart - whose secret weapon is Hillary Clinton - maintains a rapid-response force that swoops into any store whenever an employee even breathes the word “union” under their breath.

Unions have finally at least started to fight back. Recent victories - not large numerically, but significant nonetheless - in the hotel industry in particular attest to this.

Now if you’re asking yourself, what in the name of Clooney does this have to do with actors, or writers, what we’ve noticed is the corporations running our industry play jacks on the corner of the same Wall Street as these other union-busting companies. They’re under pressure to improve profit margins, and the fattest-looking target is unionized labor - actors, writers, drivers, so on. Busting unions has improved the bottom line in other industries, so why not entertainment?

This is what actors in negotiations now are guarding against. We essentially want the same thing from New Media as we’ve been getting from Old Media, because we know Old Media is getting replaced (see Justine Bateman’s excellent piece at United Hollywood for an amazing analysis of the technological aspects of this). Unlike troubled rust-belt industries, our industry is healthy, and the money to keep middle-class actors and writers in the middle class is there.

We know the future of the Screen Actors’ Guild is at stake.

In response to a recent comment at DHD:

Wannabe Industry Analyst -

A quick perusal of Krista Allen’s credits shows no actual porn. She has done one Emmanuelle film and some Emmanuelle television shows, but that’s not hard-core. Typically, when you refer to “porn” without the modifying adjectives “soft” or “soft-core”, people assume you’re referring to “hard-core” pornography, which is not the case with Ms. Allen.

If you had watched Unscripted on HBO about three years back now, you would have seen a storyline involving her character - she plays a version of herself - having trouble with being taken seriously as an actress after an Emmanuelle past. Oh, and she was damn good in the show.

A lot of actresses - and with the increasing use of full-frontal male nudity for humor/shock value in comedies, an increasing number of actors - have stripped for the camera, some in higher-pedigree projects than others. Helen Mirren appeared naked in “The Cook, The Thief, His Wife, Her Lover”. Would you characterize Helen Mirren as having done porn???