Crash producer Bob Yari wanted the opportunity to thank the Academy. The movie won an Oscar, but all Yari got was the chance to sue the Academy -- a poor substitute for a golden statuette, even in litigation-happy Hollywood. And even more of a letdown, his suit isn't winning any awards either.
The backstory: Crash won the Academy Award for Best Picture in 2006. Best Picture Oscars are given to the producers of the winning movie. Yet, of the six Crash producers, only two received Oscars, and Yari wasn't one of them.
That's because the Academy -- relying on judgments rendered by the Producers Guild -- only awards Oscars to producers who perform the "major portion of the producer function" on the winning movie (and, even then, there's a limit of three producers). That rule was adopted in 2005 in response to the proliferation of producer credits.
So, the Producers Guild evidently decided that Yari didn't meet the criteria. Yari disagreed, and sued both the Academy and the Producers Guild, claiming that the alleged denigration of his role on the picture damaged his professional standing. He argued that the Academy and Producers Guild are quasi-public organizations and thus have an enforceable duty to use fair procedures. The trial court was unpersuaded, and granted judgment in favor of the defendants.
Now, in a decision reported earlier this week, the Court of Appeal has agreed with the trial court, holding that the Academy and Producers Guild are private organizations, and thus not subject to the duty of fair procedure. That seems right (and is also not clear what, if anything, was unfair about the Academy's procedures). The Court also pointed out that Yari's career does not actually seem to have suffered. All in all, not a good day for Yari.
Thursday, March 27, 2008
Sorry Yari: No Legal Relief for Crash Producer Denied an Oscar
Thursday, March 20, 2008
NY Online Privacy Push
Albany’s an interesting place, and not just because residents of the New York Governor’s mansion seem to spend as much time bed-hopping as signing budgets. On a more important – although less salacious – note, downstate Assemblyman Richard Brodsky has introduced legislation that would shore up Internet users’ rapidly deteriorating privacy, reports the New York Times today.
The bill, as the Times explains, would apply to targeted advertising companies – companies that monitor the websites you visit, typically using cookies for that purpose. It would prohibit those companies from using information about you for advertising without your consent.
Because this would be a state statute – Brodsky’s a state legislator – the bill could not directly establish national standards. However, the seamless nature of the Internet and the relative expense and difficulty of geotargeting mean that the statute might become a de facto standard nationwide, or perhaps worldwide.
I took a look at the language of the bill, and found that it’s complex and has a number of apparent gaps and gaffes. For instance, the language may not cover websites that sell their own advertising (rather than rely on third parties like Doubleclick, now a subsidiary of Google).
Another example: the consent requirements seem to apply, ironically, to non-personally identifiable information, but not to personally identifiable information (often called “PII”). In addition, although the bill is intended to require opt-in consent, it doesn’t actually use the legal term of art “opt-in.” The legislation also requires that the advertising company’s website provide “robust notice” to the user, but doesn’t define that rather novel term.
In light of all this, I spoke to the Assemblyman’s Legislative Director, Kent Sopris. He took note of these issues, and explained that the bill was a work in progress. The Assemblyman’s office is getting lots of feedback – I suggested a few organizations for them to talk to – and revisions to the draft are expected.
To get a broader perspective, I spoke directly to the Assemblyman. He told me the bill is “part of [my] long-term focus on privacy.” He’s also introduced, for instance, a constitutional amendment that would create a right to privacy in New York.
That’s significant, because there’s no explicit right to privacy in the U.S. Constitution, nor in most state constitutions. The exceptions are Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington – ten states – according to the National Conference of State Legislatures.
The thrust of the new legislation is straightforward, Brodsky says: “you can’t have my stuff” – my data – “without my permission.” In his view, that principle’s as American as “apple pie, motherhood, and the American flag.” Big Brother is not the government, in his view, it’s big companies, and “Big Brother is watching, and creating dossiers.”
It’s not so simple though. As the Assemblyman acknowledged, “the economic model of the Internet is free [i.e., free content], because of advertising.” Opt-in schemes, where the consumer has to expressly agree to allow data collection, typically produce much smaller levels of consent than opt-out approaches, where the consumer has to expressly refuse to accept ads.
Perhaps the answer is opt-out, although that’s certainly a weaker form of protection. A compromise might require opt-in for PII – which is what the European Union (EU) Data Protection Directive requires, incidentally – but allow opt-out for non-PII.
Keeping up with technological change is another difficulty. Business models evolve – already, for instance, the Times reports that a company called Phorm wants to collect targeting information directly from ISP, by monitoring traffic, rather than using cookies. Would the legislation apply to this? The Assemblyman says yes, because the bill “asserts a broad legal principle.” I’m not so sure – many courts are wary of broad legal principle, and stick closely to legislative language.
Will the bill pass? As the Assemblyman said, “you never know.” Company lobbyists are sure to get involved, and there are many ways to kill a bill. Indeed, just getting the legislature to focus on anything other than passing a budget and adjusting to the new Governor won’t be easy.
Brodsky says he’ll “proceed on the merits” of the bill – “I’ve gotten a lot done on that basis and expect the same way here,” he assured me. That sounds more like a high school civics class than an actual legislature, but we’ll have to wait and see.
Tuesday, March 18, 2008
Arthur C. Clarke dies at 90
Arthur C. Clarke has died, reports the New York Times. A science fiction writer and futurist, he's remembered for three things of particular interest to readers of this blog:
Communications Satellites. In 1945, before the first orbital rocket flight, Clarke foresaw the possibility of communications satellites. He realized that an object orbiting the equator at about 22,240 miles up would exactly match the Earth's rotational speed, making it hang motionless in the sky relative to the Earth.
Clarke also explained that such an object could relay signals beamed from a point on the ground back down to a wide swath of the planet. That's how most communications satellites - and satellite TV - work today, which is why DirecTV customers need a clear view of the southern sky to aim their dishes. Speaking of DirecTV, they should do an in memoriam documentary.
Not all satellites are in geosynchronous orbits, by the way. GPS satellites and the satellites that power Iridium satellite phones are in lower, and not necessarily equatorial, orbits. That means that transmitters and receivers on the ground - GPS devices and satellite phones - don't need to be as powerful, but also that locking on to a signal may be more complex.
“2001: A Space Odyssey.” Clarke was the author of this 1968 science fiction novel, which became a celebrated, if somewhat confusing, movie by Stanley Kubrick.
Clarke’s Three Laws. He was also the creator of three aphorisms about technology, of which the most notable was “Any sufficiently advanced technology is indistinguishable from magic.”
Net Neutrality Nice
As I previously blogged, the major Hollywood studios recently came out against net neutrality. Now the Independent Film & Television Alliance (IFTA), which represents independent producers and distributors, has taken a position - and they're for it. In a letter to the MPAA (organization of the six major studios), IFTA head Jean Prewitt says her org "strongly disagrees" with the MPAA position, and even that she was "astounded" by the MPAA stance.
Why? Net neutrality, remember, is the principle that that ISPs should not discriminate against small users when providing network bandwidth. Independents are smaller, and they need all the distribution options they can get; as Prewitt points out, "The Internet offers the only truly open opportunity for independents (whether or not commercially oriented) to reach consumers because both free and cable television have been foreclosed in the wake of massive industry consolidation."
Her letter is so well written that I reproduce the remainder of it it here (with a couple extra paragraph breaks for clarity). 'Nuff said.
The Internet offers a new system of distribution as well as new ways of communicating ideas to audiences. It is vital that this channel remain open and competitively accessible to all users.
That openness is threatened by the power of a small number of broadband providers to discriminate unilaterally against some categories of users or types of traffic or to accord preferential treatment to certain content providers over others, all under the ambiguous claim of "network management".
While these providers may have some legitimate issues related to the technical management of their networks, there have already been cases of different treatment of users and it is clear that there must be transparency, equal treatment and an avenue of redress when the providers' private decisions trespass fair rights of others and the public interest.
Thus, the issue is not whether government should regulate the Internet but whether there will be effective oversight to prevent a handful of corporate giants from imposing their own version of private regulation to the public's detriment.
Your ShoWest speech suggests that efforts to regulate or legislate "net neutrality" will interfere with the fight against online copyright infringement of films and programs. Comcast's recent throttling of peer to peer traffic illustrates how easily piracy concerns and network needs can become excuses for private vigilantism to the detriment of legitimate users and innovative service providers. Copyright enforcement is crucial to our industry but that cannot be the rationale for abandoning the principles of open and competitive access, which are critical to ensuring a vibrant film industry and a diversity of programming. It is the appropriate role of government to strike the balance between competing needs in such a circumstance.
IFTA's members have experienced the steady erosion of opportunity in the traditional distribution channels despite producing and distributing most of the awardwinning films. This has been the result of massive deregulation of the broadcast and cable industries and the resultant substitution of corporate decisions for ones previously overseen by government in the public interest. Allowing the Internet to become an exclusive province of a small number of giant companies would inevitably harm the future of independent art and commerce.
From its outset, the Internet was designed to be the ultimate open and democratic network. Maintaining that and ensuring that there are no private chokepoints over content and use is the goal of net neutrality. This is in everyone's interest, including your members. Accordingly, IFTA will support public policy efforts to ensure open and competitive access to the Internet and to foster the innovation and creativity that is so vital to our future.
F**king Expletives!
Can the Federal Communications Commission impose harsh fines on TV networks when on-air presenters make fleeting and isolated use of an expletive? In other words, if the enthusiastic recipient of a Grammy or Golden Globe says an unscripted "fuck yeah!," can the broadcaster be fined?
That's an issue the Supreme Court will take up next year, reports the New York Times. The Supremes will be reviewing a decision by the Federal Court of Appeals for the Second Circuit (which includes New York), which was skeptical of the FCC's power to levy such fines. A 2-1 decision of that court criticized the FCC for failing to "articulate a reasoned basis" for changing its policy to impose such fines. The court also suggested, but did not decide, that "the F.C.C.’s indecency test is undefined, indiscernible, inconsistent and, consequently, unconstitutionally vague.”
Always worth remembering: the FCC has certain powers to regulate language and content, but in the area of broadcast television only. Cable channels are essentially unregulated. The public airwaves - the broadcast spectrum - are viewed as a limited resource, justifying some limitations on the First Amendment in broadcast television.
That's why "f**k yeah!" may (or may not) be prohibited on broadcast TV, but actual f**king is ok on cable. On broadcast TV, Janet Jackson's "wardrobe malfunction" garnered massive fines (also being challenged in the courts), whereas, on cable, shows such as Queer as Folk, The 'L' Word, and Californication (not to mention the Playboy channel) garner ratings, not fines.
Thursday, March 13, 2008
Net Neutrality Naughty?
Hollywood studios are taking a position on net neutrality – the principle that ISPs should not discriminate against small users when providing network bandwidth – and they’re against it. In reported remarks at the annual movie exhibitors conference ShoWest, MPAA chief Dan Glickman claimed that net neutrality would inhibit industry efforts to combat piracy – presumably because it would ensure that even pirate sites receive sufficient bandwidth for efficient uploads and downloads. (Glickman’s reported comments don’t include this, or any other, explanation, however.)
The argument in favor of net neutrality, let’s remember, is that it enables new websites – potential new businesses – the opportunity to innovate, and possibly become the next Google. That’s one way of maintaining the level playing field that has enabled the Internet’s phenomenal growth. Net neutrality also maintains the net’s role as history’s most dramatic bastion of free speech and citizen access to (virtual) printing presses.
Glickman’s remarks, in my opinion, are just one recent attack on non-MSM (mainstream media) websites. The other was a judge’s decision several weeks ago, to shut down an entire website (WikiLeaks) because of one document a plaintiff objected to. That decision resulted in a barrage of criticism, leading the judge to overturn his ruling two weeks later. Meanwhile, legislation regarding net neutrality sits in Congress, but has little chance of moving during an election year.
A related threat, though, is that telco and cable co. investment in last-mile infrastructure to homes and businesses is lagging demand, leading to Internet speeds in the U.S. far slower than in other countries. As traffic increases, U.S. ability to accommodate video sites, videoconferencing and other apps may not keep pace. Congress may have to weigh in here as well.
The MPAA, by the way, is the movie industry trade association that takes positions on public policy issues, as well as issues movie ratings. It’s not to be confused with the AMPTP, which negotiates Hollywood labor contracts such as the recently concluded writers and directors deals, or with AMPAS (the movie Academy), which awards the Oscars, or, for that matter, with ATAS (the TV Academy), which awards the primetime Emmys. Hollywood’s not only a jungle, it’s an alphabet soup.
Viacom Can't Get Punitive Damages in YouTube/Google Suit
Viacom's suit against YouTube and Google slowly works its way through the legal system. In a decision rendered last week, but only generally reported yesterday, the Federal District Court in New York hearing the case denied Viacom's motion to amend its complaint to seek punitive damages against the defendants.
The Court's reasoning: the Copyright law doesn't provide for punitive damages. Thus, the decision says nothing about the strength of Viacom's case, or the thorny issue of whether the DMCA safe harbor - the notice and takedown procedures that govern one-off infringements on websites - applies in the case of the massive infringement alleged in this suit.
Punitive damages are damages intended to punish particularly conduct by defendants that's particularly egregious, as Viacom alleges is the case here. If available, they would come in addition to actual damages (the plaintiff's actual losses) or statutory damages, which are an alternative to actual damages where it's difficult to show actual damages (or where none have occurred).
Tuesday, March 11, 2008
Hollywood Labor: What’s Up with the Actors?
AFTRA, a
First, if you’re just tuning in to the
We’ll blaze through what’s happened to date. Skip the numbered paragraphs if you’re already au current.
1. Negotiations last year between the writers (the Writers Guild of America, or WGA) and the AMPTP (Alliance of Motion Picture and Television Producers, i.e., the studios), over revisions to the contract expiring October 31 last year, began in earnest at the end of October and collapsed at the beginning of November, largely due to studio intransigence.
2. The writers went on strike Nov. 5.
3. Negotiations restarted in December, but promptly collapsed again, for the same reason as the early go-round.
4. The studios began negotiations in January with the directors (the Directors Guild of America, or DGA) – whose deal was not expiring until five months later – and reached agreement that month.
5. The studios resumed negotiations with the writers, this time sending several studio heads, and reached agreement in February. The writers agreement achieved a few, relatively small improvements over the directors deal.
6. The strike ended and the deal was approved in mid and late February, respectively (two separate votes about two weeks apart).
Now it’s time for the actors, whose deal expires June 30 (the same date as the directors deal was set to expire). The Screen Actors Guild (SAG) and the American Federation of Television and Radio Artists (AFTRA) jointly negotiate the film and primetime TV deal, primarily found in a contract called the SAG Codified Basic Agreement. This joint negotiating posture is called Phase One, because it’s supposed to be the first phase in an eventual merger of the two unions – something that SAG has repeatedly rejected, however.
The two unions have 50-50 representation on the bargaining committee, even though AFTRA jurisdiction includes no films (so far as I’m aware) and only three primetime series. SAG has 120,000 members, AFTRA 70,000, and dual members (“dual cardholders”) constitute 40,000 of those two figures.
What about daytime TV shows? They’re under sole AFTRA jurisdiction, and subject to a separate contract, called the Network Television Code. (Exhibit A of the Code covers primetime, and basically cross-references the SAG agreement.) In general, SAG covers filmed productions and AFTRA covers tape, with digitally-shot productions subject to overlapping jurisdiction, but this is said to be something of an oversimplification.
More specifically, SAG covers the big ticket items – primetime shows, episodic cable shows (i.e., scripted dramas and comedies), and films. AFTRA covers syndicated dramas, daytime serials, game shows, talk shows, variety and musical programs, news, sports, reality shows, and promotional announcements.
SAG board member Justine Batemen describes the jurisdictional breakdown as follows:
“SAG has work that is recorded, no matter the medium upon which it is recorded, for later play (sitcoms, dramas, films) and AFTRA has live shows (newscasts, talk shows, etc.) and those recorded in a "live manner" (awards shows, Saturday Night Live, and then variety shows and soap operas which used to be live).”
The two unions have very different positions on the proper relationship to management (which is one reason that past merger attempts have failed). SAG’s national leadership – headed by president Allan Rosenberg and National Executive Director Doug Allen – and its
In contrast, AFTRA – led by Roberta Reardon, AFTRA President and Chair of the Negotiating Committee and National Executive Director Kim Roberts-Hedgepeth – usually takes a more conciliatory approach to management, and feel that aggressive tactics simply drive more production to go nonunion, or to flee to Canada, where U.S. union minimum wage scales don’t apply. SAG
SAG, reflecting its assertive approach, has refused to begin negotiations on the expiring agreement until April. This, they feel, will give them maximum leverage. That’s because mid-April is the deadline for what’s referred to as a de facto strike. This is the date past which few films are being greenlight for start of production. That, in turn, is because a typical film production schedule provides for 60 days of principal photography (i.e., shooting). April 15 plus 60 days equals mid-June. Any films started later than mid-April would risk having actors walk off the set come June 30, if a strike materialized.
In contrast, AFTRA, and a group of prominent actors such as George Clooney, wanted negotiations to begin immediately. In the last day or so, it appears that some fence mending has occurred, and the unions will negotiate jointly, but that talks will start in April.
SAG has identified three or four areas on which they’ll focus in negotiations on the Codified Basic Agreement. In addition, of course, there are always a host of other issues in any union negotiation, but the ones identified here are likely to be the most contentious.
First, they want improvements over the WGA deal in new media. Bateman identifies two aspects of the deal as inadequate: the WGA deal (which I summarize here) has a 17-24 day window during which no residuals are payable for ad-supported streaming of new television shows (she feels this is unfair, and wants no window); and there are budget floors below which certain shows produced for new media are not covered by the union agreement (she feels this will create a pool of non-union actors, but doesn’t specify whether she wants lower floors or none at all). I’m guessing the studios left themselves enough headroom to give a little on these issues, allowing the actors to ultimately claim a victory.
The second area in which SAG wants improvement is the conditions for middle-class actors. It’s unclear if this means SAG is seeking significant increases in minimums – i.e., even greater than the typical increases – or if they’re looking for something else (or both).
The third area is forced endorsements. This refers to product integration, which is product placement on steroids. Product placement means a product appears passively on screen in a film or, increasingly, a TV show; for example, a Coke bottle appears on the table during a scene. Product integration, which has become more prevalent lately as the film and TV business have become economically tougher, means that the product is touched by an actor – he or she drinks the Coke – or is referred to verbally, e.g., the actors asks for a Coke. It also mean the situation where a product or service appears pervasively in the film or TV show, i.e., repeatedly.
In both product placement and product integration, the production company receives either a payment from the brand (i.e., the product manufacturer) or consideration in kind. These latter, referred to as barter deals, entail the brand giving product or services to the production company. For instance, an airline featured in a film might give air tickets, allowing the production to fly to locations at no cost when the film is shot in various cities. Product placement or integration deals can also be hybrids, involving both cash and goods or services.
Currently, actors do not receive any compensation from product placement or integration deals. Their concern focuses on product integration, and is several-fold. One issue is that, having touched or called for a product by name, they no longer have a chance to do a commercial deal with the product’s competitor(s). or instance, an actor in character who calls for a Coke can scarcely do a Pepsi commercial.
Secondly, the further value of the actor to the integrated product is reduced. For instance, the actor might get a Coke deal, but it might be at a lower rate than on the open market, because the brand already has footage of the actor (in character) calling for a Coke.
Finally, the actors are unhappy that they (in character) are being used to sell a product and garner revenue for the production company, yet not sharing in the bounty. For instance, a famous actor is hired, in part, to attract an audience, and he or she shares in the (hoped-for) success of the film or show through residuals and profit participations. Likewise, goes the logic, if famous actor attracts a brand to do an integration deal, they want to share in that success as well.
A fourth area the actors indicated they want 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, as I explain here. SAG president Rosenberg mentioned this issue in January, but his more recent statement of issues that SAG will focus on omits DVD residuals, and lists only the first three issues. Thus, it’s unclear whether SAG will emphasize this issue, and it’s unlikely they’d get much traction on it, now that the other two unions abandoned attempts to reopen a quarter-century old deal. That’s unfortunate, because the DVD formula will continue to matter for decades, as I discuss here.
The AFTRA deal announced yesterday includes provisions on new media residuals and on jurisdiction over content created for new media (as well as increases in traditional media minimums, and new or revised approaches to a host of other issues). I’ve been informed by an AFTRA spokeswoman that the deal tracks the writers’, but details have not been announced yet, so it’s unclear what differences there might be.
Two other SAG issues are in the mix. One is whether the Phase One joint bargaining relationship will collapse, leading to two separate negotiations of the film and primetime agreement. This would dramatically undercut SAG’s leverage, since producers would presumably be able to do less expensive deals with AFTRA.
The other issue is qualified voting. This is the concept that membership voting for a strike or voting on the new contract, when a tentative deal is reached, should be restricted to members who have worked at least a minimum number of days (or earned a minimum amount) from acting in a given year. This is a concept being pushed by moderates, who fear that less-employed or unemployed actors (who constitute a large percentage of the union) are more likely to vote for a strike, having less to lose (since they’re not, or are scarcely, working anyway).
Reportedly, the SAG Board could institute this system, but I think it’s unlikely to do so, precisely because it would reduce the likelihood of a strike (and thus SAG’s leverage) and because any Board member who voted in favor of disenfranchising a large number of members would be voted out of office next election.
So what happens next? I think we’ll see a de facto strike starting in April – indeed, we already are, as a number of films have been postponed, and few are being greenlit already for production starts after mid-April.
We may also see a strike authorization vote, which would then allow the SAG and AFTRA Boards to call a strike without further membership vote (assuming this process is provided for in the bylaws of those unions, which I’m not sure about). I think a strike authorization vote will probably only occur if talks in April are not promptly fruitful.
The big question is whether we’ll see a strike. Everyone wants to speculate on this one … but it’s simply too early to predict. I think we do have to take the prospect seriously though, as studios already are. Stay tuned.
Monday, March 10, 2008
AFTRA reaches tentative agreement on Network TV Code
Here's a press release from AFTRA:
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