Thursday, November 27, 2008

Movie Review: Milk

Philosopher George Santayana famously wrote that “those who cannot remember the past are condemned to repeat it.” Unfortunately, even those who do remember the past may also be condemned to repeat it. So I was reminded while watching Milk, the new Gus Van Sant biopic about pioneering gay politician Harvey Milk, who became a San Francisco Supervisor (essentially, a City Council member) in January 1978, only to be assassinated less than 11 months later.

What triggered my musing was this: Just as Milk fought the anti-gay Prop 6 thirty years ago, so too did California gay activists fight the anti gay-marriage Prop 8 this year, albeit less successfully. Milk and the 1978 gay community won; the 2008 gay community didn’t. The film couldn’t be more timely.

Milk’s story proper begins when Milk (Sean Penn, in a transformative portrayal) was a New York City insurance executive, closeted and clean-cut. He picks up a hottie on the steps down to the subway, Scott Smith (played with flirtatious charm by another hottie, James Franco). Smith moves in with Milk and, in short order, they pick up stakes and move to San Francisco, where Milk promptly goes native, growing his hair long and adding a scruffy beard and moustache. He opens a camera shop in the gay district soon to be known as the Castro, and before long becomes a gay activist.

One failing of the otherwise interesting film is that it never gives any insight into the reason behind Milk’s rapid career change from insurance to gay insurgency. It’s not too much of a stretch to say that Milk was born again—an analogy that will probably annoy the right-wingers, and let them howl as far as I’m concerned. To say that Milk’s transformation accompanied his coming out is to explain little: which was cause, and which was effect? And why do some people who come out turn into activists when most do not? The film sheds no light on these questions, whose answers are the engine that powered Milk as he became the first openly gay man (and only the second gay person) in the entire country to be elected to a meaningful public office.

Alas, his victory was short lived. For those who don’t already know the outcome, the film begins with archival footage of a stricken Diane Feinstein, then president of the Board of Supervisors, later mayor and now senator, announcing the assassination of Milk and liberal Mayor George Moscone. Excised from the clip is Feinstein’s next sentence, in which she announces the suspected assassin. Framing the film is voiceover from Milk as he records a tape to be played in the event of his own violent death. To be an openly gay politician in 1977 was to be a target, and Milk received many death threats.

As the film shows, Milk was charismatic, but even had he not been, he was nothing if not tenacious. He ran for office four times, always without the support of the city’s gay establishment, which thought his street-activist populism too disruptive and untamed. The election he won was his last—he twice ran unsuccessfully for supervisor in citywide elections, then unsuccessfully for state assembly, then finally prevailed as supervisor when the city established a system of district elections in order to more equitably represent various ethnic and other groups. Geography is destiny: the same change in Boston led to the election of an openly gay city councilor in that city just a few years later, and the concentration of gay people in West Hollywood led to its incorporation in the mid-1980’s as the first city with a gay majority on the city council.

The movie, like many biopics, recounts its subject’s life (or, here, the last eight years of it) as a sequence of occurrences, one after another, without a strong sense of story arc. People and events don’t feel as though they’re moving towards any sort of climax. This is a common problem with biopics; after all, real life is generally just one damn thing after another, as the saying goes, without narrative cohesion. Van Sant tells his story in a conventional style, without the experimentalism that marks some of his films. The film is marked by vivid acting and fine technical credits.

Any story needs conflict, and any hero—Milk, notwithstanding a certain fey nebbishness, is a hero—needs an antagonist. SPOILER ALERT. Milk’s nemesis doesn’t appear until the final third of the film, in the form of fellow candidate and, then, supervisor, Dan White (a chilling Josh Brolin). White is by turns cold, then needy, then infuriated, but always seems emotionally empty. He commits his crime with cold calculation, which makes all the more bitter the revelation (in a “where are they now” sequence during the credits) that he received but a slap on the wrist for a double homicide. His ultimate fate, though, served justice in a perhaps unintended way. END OF SPOILER

Milk’s violent death, after seeing his joie de vivre, is heartbreaking, and the candlelight march in his honor that followed left much of the press screening audience in tears. The march once again reminded me of the post-election marches against Prop 8, both of them constituting protests against public cruelty targeted at a still disfavored minority. As Faulkner once said, “The past is never dead. It's not even past."

Running time: 128 mins. Rated R for language, some sexual content and brief violence. Opened Nov. 26 (NY, LA, San Francisco). In general release December 5.

Wednesday, November 26, 2008

SAG Strike Authorization Vote Shifts Into Gear

SAG sent a long email to its members yesterday urging its members to vote yes on strike authorization ballots to be sent out in December. The email was largely in the form of a Q&A explaining the union leadership’s argument that a strike authorization is a necessary negotiating tool. An exact date for mailing out the ballots wasn’t specified, but as I’ve previously blogged, I expect them to go out soon, so that the approximately 4 week process will conclude, and results will be in hand, before the Golden Globes (January 11).

Monday, November 24, 2008

SAG Stalks Towards Strike

Mediation between the studio alliance (the AMPTP) and the Screen Actors Guild failed late Friday night, and SAG announced plans to seek a strike authorization vote from its members. Unfortunately, that puts us one giant step closer to a strike.

What’s next? SAG will send out “educational materials,” which will say that a strike authorization vote is not the same as an actual strike vote, and that authorization is needed as a negotiating tool, since negotiation and mediation have failed. At the same time, or later (it’s unknown), SAG will send out strike authorization ballots. That latter process takes 30 days or so, we’re told (i.e., ballots are due back approx. 30 days after they’re sent out).

The union needs to achieve a 75% yes vote from those voting, in order to authorize a strike. Achieving the 75% may be hard in this economy, but might still be doable, since what’s required is 75% of however many or however few members vote, not 75% of the entire membership. Over half the union doesn’t work in any given year, so a strike has little direct negative effect on them. On the other hand, many are probably waiters (and some, like those at my gym, are personal trainers), and those jobs, in NY and LA, at least, will be hard hit by a strike.

No one other than the union itself has access to member email addresses and physical addresses, to my knowledge, so no one will be sending “educational materials” directly to the members arguing for a no vote. There’ll be pro and con ads in the trades (Variety and Hollywood Reporter), but the trades are less targeted: each of them has a circulation of only about 30,000, including execs and many people other than actors (indeed, at $200/year, most actors can’t afford the trades), whereas there are 106,000 paid SAG members. Back Stage will probably have ads too – it reaches more actors – but ads are still less persuasive than a detailed brochure from one’s own union. Will the A-listers finally take a public, prominent, organized stand against this movement towards a strike? Who knows.

For an actual strike to be called, the National Board has to authorize one by a simple majority vote. The slightly more moderate faction (Unite for Strength plus NY and Regional Branch Division members) has a slim majority on the Board – probably only 1 or 2 votes (votes are weighted, so it’s a little hard to tell the exact margin).

However, they’ll be under pressure: the hardliners (the Membership First faction) will say that the vote represents the will of the members. They’ll also remind the moderates that there’s another SAG Board election coming up in September. The moderates will be split on whether to stand in the way of a strike and be labeled Benedict Arnolds in the fall, because lack of a strike means that SAG will have to accept a deal that the hardliners consider odious.

The leader of the moderate faction, Ned Vaughn, was quoted in the LA Times over the weekend criticizing the negotiating committee for giving up on mediation after only two (marathon) joint sessions (both sides plus the mediator). However, this was totally predictable. Moreover, the moderates out of NY are the ones who proposed the overall procedure (attempt mediation (which was bound to fail), then seek an authorization). The Board resolution setting this procedure passed 97% to 3% (2 dissenters out of 71 Board members) in October. So, the anti-strike constituency on the Board is somewhat lacking in cohesion or strategic vision.

I’m guessing the ballots will go out soon, so that SAG will have an authorization in hand (if they get the requisite 75% yes vote), or will actually be on strike, before the Golden Globes, which are January 11 ... or, at any rate, before the Oscars. The SAG strategy would be to reenact the tactics that ended the WGA strike earlier this year: destroy the Globes by getting stars to boycott them, and threaten to do the same to the Oscars the following month. Whether that strategy will work is open to doubt: getting the stars to boycott the Globes might not be as easy this time; and, in any case, the studios might decide to hang tough regardless of whether the Globes and even Oscars have to proceed without stars.

SAG’s main issues are a couple of gaps in the new media deal offered by studios, a deal which has been accepted by all the other applicable Hollywood unions this year (4 separate unions, in five separate deals), including the smaller AFTRA actors union. The gaps are real, but the dollar amounts are minimal, and are likely to be so for at least the next three years if not longer. However, SAG is convinced that these deficiencies in the deal will be the death of the union. They’re also convinced that it will be impossible to fix these issues once the language is in the contract. That position is understandable – the home video (VHS / DVD / Blu-ray) formula, which is extremely unfavorable to actors, writers and directors, has been embedded in the union agreements for 24 years without change.

A Membership First source tells me that the negotiating committee offered during mediation to nonetheless accept the proposed new media language, if the studios gave assurances that they’d revisit the language in 3 years (when the contract would next be up for renewal) and if the studios increased the home video formula. I haven’t verified whether this claim is true, but if so, the studios should have offered some movement on this. On the other hand, the economy has dramatically worsened in the last 6-9 months. SAG should have made this offer when something might have come of it. Now, everyone may suffer.

Still, it’s almost beyond belief that SAG might strike — over issues that amount to mere pennies for the next several years at least — and would do so in the middle of the worst economy since the invention of talking pictures, literally. Unfortunately, Hollywood’s a place where dreams aren’t the only thing that comes true; sometimes nightmares do as well. Here’s hoping that there’s still time for a sensible approach to prevail.


Belatedly (I’ve been in transit to NY), here’s a recap of the last few days, in case you’d like to know how we got to this sorry state:

On October 20, SAG called for mediation, and indicated they would seek a strike authorization if mediation failed. Over the next four weeks, the federal mediator met one on one, first with SAG, then with the AMPTP, then SAG again, and so forth, at the glacial rate of one meeting per week.

Next, the parties used allies to harden their positions. The AMPTP did this by conducting lightning-fast negotiations with IATSE, the union representing technical and craft workers. The existing IATSE deal doesn’t expire until August, but the IA likes to negotiate early, and so do the studios. They reached agreement this Wednesday on a package that includes new media provisions similar to those that were incorporated in four earlier deals this year: Directors Guild, Writers Guild, AFTRA daytime deal, and AFTRA primetime deal. (AFTRA is a smaller actors union whose jurisdiction overlaps with SAG in television.) A key reason the AMPTP wanted this deal done now is that it allowed them to point to yet another endorsement of the new media template, reinforcing their refusal to give SAG concessions in that area that none of the other unions in Hollywood won. The studios point also to the drastically worsened economic climate since the template language was established.

SAG, for its part, drew strength from a claim advanced by the Writers Guild a couple days ago that the studios are already in breach of the WGA new media deal even though the ink is scarcely dry. The studios disagree, and the argument turns on some rather sloppy and ambiguous language in the contract regarding the effective date of one provision. It’s not clear that the WGA is correct, but it’s even less clear why the language was so loosely written, especially since the date clause in a related section is quite explicit.

In any case, having teed up their arguments, the parties and the mediator finally met jointly for marathon sessions Thursday and Friday. Mediation failed, and SAG issued a press release announcing that it would seek a strike authorization. The press release sets out no timetable, but it’s understood that the authorization process takes about 30 days or so.

Monday, November 17, 2008

SAG, AMPTP to Meet

SAG and the AMPTP will meet Thursday, their first official meeting in over four months, reports Back Stage magazine's BlogStage. This comes after three weeks of one-on-one meetings with the mediator, and four weeks after SAG first called for mediation.

Wednesday, November 12, 2008

Hollywood Under Siege

California’s economy is at war with itself. Like the Civil War almost 150 years ago, the factions are split geographically, but this time, the two sides are Northern California and Southern California—more particularly, Silicon Valley and Los Angeles. This battle turns on whether it’s true that “content is king,” as many people believe, or whether content is becoming a mere commoner while the technologies that distribute it become ever more valuable. The outcome of this struggle may determine the future of the entertainment industry.

There’s no doubt that traditional content is in trouble. Theatrical box office and admissions (number of tickets sold), despite some fluctuation, have generally been flat for a number of years. The DVD business is declining, and Blu-ray may prove too little, too late. The network television business is harder than ever, and also in trouble are other traditional content industries, such as those centered on music, newspapers (as Los Angeles Times readers well know), books, and magazines. People still consume media the old-fashioned way, but fewer and fewer do so every day, especially younger people.

Why is traditional content losing its vigor? Everyone focuses on the culture of piracy, but there are other reasons as well. One is supply and demand. Demand for entertainment is relatively static, because leisure time is constant, whereas supply (online content) has grown enormously. Some of this is professional content, but even more is user-generated content (UGC). Other factors are the loss of physical form (intangibles generally seem less valuable than tangible things), the low-friction nature of the Internet (things that are easy to get cost less and lose value), and ad-supported new media business models (free things seem less valuable than those that are paid for).

Market forces are also key: Computers, Web services, and consumer electronic devices are more valuable when more content is available and, in turn, these products make content more usable by providing new distribution channels. That encourages the growth of UGC and pirated content, reducing the market share of paid professional content, and, not incidentally, increasing the sales of new technological devices and services.

All these developments have led to a migration away from paid media to UGC or pirated content. UGC is often a flawed substitute for professional content or traditional media. But that’s little comfort, because competitive goods don’t have to be perfect substitutes in order to acquire market share at the expense of established product. 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 “trad[e] today’s analog dollars for digital pennies.”

Technology Rising

In contrast to the stagnation and decline of the Los Angeles content industries, the technology business is marked by innovation. New startups are formed almost every day, it seems, and existing companies develop new products and services on a continuing basis. Although Silicon Valley’s bubble burst in 2001, innovation continues apace: YouTube, Facebook (a transplant to the Valley), and much of Google’s enormous success are all post-bubble. This dynamic culture seems likely to continue for the foreseeable future.

Hollywood has always depended on technology, of course. Motion pictures themselves, as well as sound, color, television, cable, home video, and satellite, are all technological developments that Hollywood was able to absorb in a gradual fashion over a period of years. Today is different though: The pace of change in Silicon Valley is breakneck; in Los Angeles, not so much. Hollywood now finds itself yoked to an industry that evolves at a much faster rate, and the result has been a struggle over revenue, distribution channels, and control.

The entertainment industry has responded in several ways. One has been through brute-force lawsuits, such as Viacom’s pending suit against YouTube and Google (YouTube’s corporate parent) for copyright infringement related to users’ unauthorized posting of Viacom content on YouTube. See Viacom Int’l, Inc. v. YouTube, Inc., No. 1:07-CV-02103 (S.D.N.Y. filed Mar. 13, 2007). The case may settle with a blanket license to YouTube, but then again, it may go to the Supreme Court. Other such legal action includes the many demand letters and lawsuits filed by the music industry against individual users alleged to have illegally shared music via such systems as BitTorrent. These responses have been only marginally effective.

Another route has been legislative. Even before the high-profile litigation campaigns, Hollywood tried to build defenses against technology with Washington’s help, including two 1998 statutes strengthening copyright. One, the Digital Millennium Copyright Act, codified at 17 U.S.C. §§ 1201 et seq., introduced into copyright law the concept of technological measures that control access to works subject to copyright, such as digital rights management (DRM) systems. For the first time, it became a violation of the copyright statute to circumvent such measures, even if for the purpose of making what the copyright law would otherwise recognize as a permissible fair use. See 17 U.S.C. § 107 (defining fair use).

Another 1998 statute lengthened the term of copyright by an additional 20 years. See 17 U.S.C. §§ 301(c), 302-304. This change, though controversial, was upheld by the Supreme Court. Eldred v. Ashcroft, 537 U.S. 186 (2003). More recently – several days ago – the President signed the PRO-IP Act (S. 3325), which establishes a cabinet-level intellectual property czar and establishes other changes that strengthen copyright and trademark laws. These measures make Hollywood happy, but some digerati, such as Silicon Valley copyright lawyer William Patry, contend that copyright has been bent to the will of the studios, and now serves more to suppress new business models and preserve existing ones than to foster creation of new works.

Hollywood has mustered business as well as legal responses to technology, by playing one technology company (such as Apple) against another (e.g., Amazon), or building or buying its way into the digital distribution business ( and MySpace are examples), with some success. The industry is also attempting to change some business practices, such as altering the scheduling of a movie’s DVD, download, streaming and international releases in relation to the initial theatrical release, or changing the mix of scripted versus unscripted (reality and documentary) programming on network television and basic cable.

What next? Hollywood seems sure to survive the challenge posed by Northern California’s technology industry. Film libraries have always had value, and will continue to, particularly now that technology makes it easier for even niche product to find its audience (the “long tail” phenomenon). Population growth in the United States over the next few decades means more customers. Internationally, rising standards of living, as well as continued population growth, may mean more business as well. However, the challenges are great: access to markets is not assured, political stability can be elusive, and reduction of piracy is at best a difficult task, and at worst effectively impossible.

Whether Hollywood will thrive, rather than just survive, is a harder question. The industry’s inefficiencies are legendary, and generally not shared by Silicon Valley: they include bloated star salaries, inflated executive compensation, complex talent contracts, scarcely-comprehensible union rules, and labor discord driven in part by disputes over new media compensation. While experiments with new media may yet bring profit to old media companies, the question remains: Will Internet-based distribution (much of it ad-supported) and mobile ever generate as much gross and net revenue as traditional distribution? If so, how much of that revenue will be captured by Hollywood, and how much by the technology companies that own the new distribution platforms? No one knows, but there’s been little good news in these areas for Hollywood.

If the studios continue to lose their grip on distribution—to become vertically de-integrated and disintermediated from their own distribution channels—they’ll be left with content as their core business. That’s a problem because, fundamentally, the economics of content creation are inferior to those of distribution. The former is an industrial process, painstaking and manual. The latter, in the digital age, is post-industrial and automated. Nothing in Hollywood’s production mechanism has become faster or cheaper at anywhere near the rate seen in Silicon Valley, if at all. Indeed, much of that process, especially for studio films, has become more expensive, not less, in the past few decades. That’s troubling for the entertainment industry. Like the British, whose monarchy is now a mere appendage to a parliamentary government, content may find its kingdom ever more circumscribed by technology.

Monday, November 10, 2008

SAG: The Mediation Express

SAG met with the federal mediator last Wednesday, and now the AMPTP is meeting with him this Thursday, reports Variety. Meetings between the mediator and either one side or the other have been coming at a rate of one meeting per week over the last month. There haven't been any joint meetings.

Meanwhile, as I blogged yesterday, the AMPTP restarted negotiations with the IA today (Monday), and will meet with them tomorrow and Weds., and then again, reports Variety, next Mon.-Weds. as well. Looks like the SAG mediation has jump-started the IA talks. Not exactly what people were expecting, I imagine.

Sunday, November 9, 2008

AMPTP, IA to Talk Monday

Negotiations between SAG and the AMPTP (studios) are stalled, and the mediation process seems glacial, so the AMPTP is taking advantage of its free time to negotiate with IATSE, it seems. The two parties are sitting down for talks tomorrow (Monday) and have scheduled three days' worth of sessions, reports Variety.

The IA and AMPTP last met about seven months ago, also for three days. Seemingly, there's no rush -- the IA deal doesn't expire until next August. But on the other hand, the AMPTP would love to be able to announce yet another deal incorporating the new media template that SAG objects to. That template -- a set of provisions regarding minimums, residuals, jurisdiction and other matters -- has been part of four other deals this year (DGA, WGA, and two AFTRA deals).

Friday, November 7, 2008

New Book on Music Litigation

In-house announcement: My law firm colleague Ron Rosen has a new book out from Oxford University Press: Music and Copyright. It’s perhaps the only book to deal specifically with music litigation. The book provides a roadmap to the entire music litigation process, including an analysis of the structure and grammar of music – essential to analyzing infringement issues.

Rons a veteran entertainment litigator, and the book is packed with examples, advice, case studies, forms and commentary. For more info, check out Amazon. At $170 (Amazon price) and over 600 pages, this one’s definitely intended for lawyers practicing in the field. For those readers, it’s an essential.