Tuesday, April 15, 2008

SAG Talks Start Today

Just a reminder: formal talks between the Screen Actors Guild (SAG) and the studios (represented by the AMPTP) start today (Tuesday, April 15). And, in less than two weeks - on April 28 - talks begin between another actors union, the American Federation of Television & Radio Artists (AFTRA), and the AMPTP.

AFTRA's likely to drive an easier bargain with management, which means that if SAG doesn't reach agreement first, their harder-line approach will be undercut the more moderate template that AFTRA's likely to set. That, in turn, reduces SAG's leverage dramatically.

And will there be a strike? Who knows, but AFTRA's scheduling move reduces the likelihood, since a SAG strike would allow AFTRA to start negotiating deals (at least for new shows) and keep production running while SAG is sidelined.

Still, no one's taking any chances. Most movie and television) production is currently scheduled to cease by mid- to late June, to avoid the risk of actors walking off set and shutting down on an active production.

We may know more later in the week, if we learn (through public announcements or leaks) how the SAG-AMPTP talks are proceeding. However, informal talks ended last week, apparently on a cordial but unproductive note. Stay tuned.

Monday, April 14, 2008

A Fine Mess at the FCC

The FCC's enforcement of the indecency rules is stalled, reports the LA Times. The reason: a perfect storm of three factors: a Court of Appeals ruling against the rules (as I previously blogged), a pending Supreme Court case that will rule on the rules, and (finally) a growing broadcaster willingness to fight FCC fines, probably in part because the FCC has increased minimum fines ten-fold.

Now, even conservative-owned Fox is fighting back -- and that's just fine with me. The rules are more indecent than the content, and many if not most of the complaints are ginned up by the bluenoses at the Parents Television Council. They seem to think that night-time broadcast television needs to be cleansed of curse words to protect children -- the same children who hear these same words on cable TV, see, hear and write the same words on the Internet, hear the same words in school, and text the same words to their friends.

In short, a faux Victorianism benefits no one -- except perhaps the (often hypocritical) right-wing candidates for public office who fan the flames of the culture wars -- and reduces adult programming to silly doses of saccharine.

Sunday, April 13, 2008

Working With the Media

If you're ever interviewed by print, television, radio or online reporters, do you know what to say and how to say it ... what to wear and how to speak? If not, check out my media guide - two articles I wrote that appeared in the Daily Journal.

Friday, April 11, 2008

Is Content Worthless?

“Content is king,” many people believe, meaning that films, television shows, music, news and information are more profitable assets than the technology used to deliver them. But there's an older, cautionary aphorism that applies as well: “Uneasy lies the head that wears the crown.” Content may be king, but, ironically, its perceived value today is being driven towards zero. In the eyes of consumers, content is becoming a commodity – more a commoner than a king.

Everyone focuses on piracy, but there are actually six related reasons for the devaluation of content. The first is supply and demand. Demand – the number of consumers and their available leisure time – is relatively constant, but supply – online content – has grown enormously in the last decade. Some of this is professional content set free from boundaries of time and space, now available worldwide, anytime, and usually at no cost (whether legally or not). Even more is user generated content (UGC) – websites, blogs, YouTube videos – created by non-professionals who don’t care whether they get paid, and who themselves pay little or nothing to create and distribute it.

The second is the loss of physical form. It just seems natural to value a physical thing more highly than something intangible. Physical objects have been with us since the beginning of time; distributable intangible content has not. Perhaps for that reason, we tend to focus on per-unit costs (zero for an intangible such as a movie download), while forgetting about fixed costs (such as the cost of making the movie in the first place). Also, and critically, if you steal something tangible, you deny it to the owner; a purloined DVD is no longer available to the merchant, for instance. But if you misappropriate an intangible, it’s still there for others to use. That’s why, even before the Internet, sneaking into movie theaters – stealing the right to view a movie – seemed a mere rite of passage, whereas shoplifting a video did not.

The third reason is that acquiring content is increasingly frictionless. It’s often easier, particularly for young people, to access content on the Internet than through traditional means. When it’s easier to get something – when transaction costs decline – the thing costs less and loses value.

Fourth is that most new media business models are ad-supported rather than pay per view or subscription. If there’s no cost to the user, why should consumers see the content as valuable, and if some content is free, why not all of it? True, ads impose a cost in the form of user attention, but many online ads are easily ignored, and, today, even television advertisements can be skipped using TiVo.

Fifth is market forces in the technology industry. Computers, web services, and consumer electronic devices are more valuable when more content is available. In turn, these products make content more usable by providing new distribution channels. Traditional media companies are slow to adopt these new technologies, for fear of cannibalizing revenue from existing channels and offending powerful distribution partners. In contrast, non-professionals, long denied access to distribution, rush to use the new technologies, as do pirates of professional content. As a result, technological innovation reduces the market share of paid professional content.

Finally, there’s culture. A generation of users has grown up indifferent or hostile to copyright, particularly in music, movies and software. The reasons for this vary, but in music, for instance, some blame lies at the feet of the music labels, which maintained unrealistically high CD prices and attempted to sue piracy out of existence. Only now, almost ten years after Napster, are the labels offering the non-copy protected MP3’s that consumers demand.

All these developments have led to a migration away from paid media. Why buy music when there's so much free music available, albeit much of it pirated? Buy a movie or watch TV on a conventional set? No need, when YouTube and BitTorrent make videos, and pirated movies and TV, free for the asking. Subscribe to a newspaper or magazine? Don't bother; most are free online, and there are literally millions of other sources for news, ranging from blogs like the Huffington Post to user generated content. (Full disclosure: I’m a blogger, which makes me part of the problem.) The TV news? Also becoming irrelevant. And books, magazines and journals? So much information is available online that whole categories of publications seem less important.

It's true that people still consume media the old-fashioned way – but fewer and fewer do so every day. Most of the content industries are seeing flat or declining revenues and audiences. And these trends are particularly notable among younger people. As a result, the music industry is a shambles; the film and television businesses are running scared; and newspapers are disappearing or instituting cutbacks and layoffs. The handwriting is on the wall, or the laptop screen.

User generated content is often a poor substitute for professional content or traditional media. But that’s little comfort. Alternate goods don’t have to be perfect substitutes in order to acquire market share at the expense of the competition. And, yes, in some cases, new media make money for creators and companies – but the money’s much less than it used to be. As NBC Universal’s Jeff Zucker lamented, the content industries are being forced to “trade today's analog dollars for digital pennies.”

Another effect is that the market for professional content is becoming more concentrated and less diverse. Thus, at least in some media, audiences are shifting more of their spending to hit properties – the most popular movies and books, for instance – to the detriment of specialized content such as art house films and mid-list titles. Similarly, in a trend that predates the Internet but continues today, media businesses are consolidating and becoming conglomerates, as individual companies find it harder and harder to compete.

Some commentators welcome these changes. “Information wants to be free,” they say, and more content is good for users. Persuasively, they point to the variety of viewpoints that new technologies bring. That development is indeed valuable – very much so, in a democracy premised on freedom of speech. But when everyone’s a creator, there’s less room for high-quality professional content. It’s a dilemma with no easy answers. The future of traditional media is murky, but one thing is clear: disruptive change will be with us for many years to come.

Wednesday, April 2, 2008

SAG Thinks, Blinks

The Screen Actors Guild bowed to the inevitable yesterday and set a concrete date -- April 15 -- for commencement of talks with the studios. Had SAG not done so, it faced the prospect of a rival actors' union, AFTRA, setting a date for talks first, and thereby setting a template for SAG's negotiations.

That prospect -- which seems unlikely now -- would have undermined SAG's leverage, a situation unacceptable to SAG. That's because SAG represent movies and almost all primetime television shows, whereas AFTRA represents no movies and only three primetime shows. The contract being negotiated concerns movies and primetime shows (as well as some other areas).

The problem for SAG is that AFTRA may not be looking for the same deal points SAG is. The situation's unclear, because the committees of both unions reportedly agreed on the same package of demands. Yet, the recently-agreed AFTRA daytime pact (an agreement that is soley negotiated by AFTRA) doesn't track with SAG's publicly-stated demands, suggesting that AFTRA may be more willing to compromise than SAG. That's been SAG's concern with AFTRA in general; each union has a rationale for the approach -- hard line or conciliatory -- that it takes.

In any case, the key publicly-discernible differences are as follows (for detailed explanation of these issues, see my previous blog article):

First, SAG wants improvements over the WGA deal in new media, apparently in at least two areas: elimination of the 17-24 day window during which no residuals are payable for ad-supported streaming of new television shows; and elimination or reduction of the budget floors below which certain shows produced for new media are not covered by the union agreement.

Second, SAG wants compensation for forced endorsements (product placement on steroids). AFTRA's daytime agreement gained some improvement in a related matter, which is announcer endorsements of products, so perhaps the unions are close on this issue.

Third, SAG wants improvement over the writers deal is DVD residuals. These rates (percentages) have been low since 1984, when the directors accepted what the writers and actors view as a bad deal, one which has persisted to this day. AFTRA, in contrast, did not obtain (nor, presumably, seek) such improvements when it negotiated its daytime deal.

Another point worth considering: if SAG does strike -- which seems less likely now -- will the strike rules prohibit SAG actors from working not only on SAG projects but also on AFTRA contracts? (Although this by definition exceeds the jurisdiction of the SAG agreement, recall that the WGA strike rules prohibited writing for animation, even though this is beyond the WGA's jurisdiction.) If so, the 44,000 dual cardholders -- i.e., members of both unions -- would be put in an untenable position if working on AFTRA-covered shows: violate the rules and be subject to SAG discipline, or obey the rules and face discharge by their employers for breaching their employment agreements. Quite a dilemma.

Tuesday, April 1, 2008

Trademarking Movie Titles

Literary titles - such as book or movie titles - fall in a gray area in U.S. law. For instance, although a book or movie is protected by copyright, its title isn't. Copyright simply doesn't cover titles.

And even if the title is distinctive, such as The 40-Year-Old Virgin, courts and the Trademark Office say it can't be registered as a trademark, even though distinctive words and slogans can be registered as trademarks in other contexts. There's an exception for series titles, such as Harry Potter, but that's of no help to single-work titles.

The rule against trademark registration purports to be absolute, and has been in place for at least 50 years. Nonetheless, I've developed ways to protect single-work movie titles using trademark registration -- effectively circumventing the long-established rule.

I've written a short article on the subject, in relatively plain English. It's the cover story in this month's Los Angeles Lawyer magazine. Click the link and check it out, or at least look at the picture on the cover and the amusing illustrations the magazine added.