WGA Strike Photos Wanted

I'm publishing my blog as a book and need photos for the cover. In particular, I'm looking for colorful, emotional crowd shots of WGA rallies and marches, especially the march on Hollywood Blvd. in Nov. 2007. I'm also interested in photos of SAG rallies and Back to Work rallies.

Do you have photos that fill the bill? If so, please email me at jhandel@att.net. Thanks, and happy New Year!

Closing Windows?

Interesting email from my satellite company today. DirecTV urges me to order Julie & Julia on PPV. Not my cup of tea, thanks, though I suppose Julia Child probably had a clever way to brew a cup of tea while cooking up some unusual dish at the same time. But more interesting to me were two little notes that accompanied the ad: "Now Playing" and "Same Day as DVD." The movie's official Sony website confirms that this is non DirecTV-specific.

That's intriguing. There's usually an exclusive DVD window before the pay-per-view release, with the window averaging 37 days this year, up from 32 days last year, says research firm SNL Kagan. Even the shortest average was 20 days, over at Lions Gate.

Is this a trend or an experiment? Probably the latter, but who knows where it might go. And for those wondering what effect this might have on the guilds, consider that the DVD residual formula is much less favorable to talent than the pay TV formula. Time for guild members to cross their fingers and send Sony some holiday best wishes - and maybe a gift basket worthy of Julia.

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Little-Noticed Music Deal

Everyone listens to music, but musicians unions may not attract the same attention. Several people, including myself, reported on the composers and lyricists recently, but this time I’m talking about the musicians themselves, i.e., the performers. Turns out their union, the American Federation of Musicians, made a deal three weeks ago with the studios — but it appears (correct me if I’m mistaken) that no one reported it (though the LA Times did mention that the deal was in negotiation).

Let’s correct the omission. According to the AFM website, the two agreements (one theatrical, the other television) run through February 2013 and establish jurisdiction over productions made for new media, increase residuals for traditional product exhibited in new media (move-over product), and “provide a new income stream when music is used in New Media other than in New Media productions.” The agreements also include wage increases and “protect musicians’ health benefits.”

That’s all the detail I have at this point. A ratification package is going out to members shortly, or already has. More info to come when I have it.

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No More Sounds of Silence on the Music Composition Front?

Everyone knows that composers and lyricists make scales ... now they want to make scale as well. Union scale, that is (or, even better, above scale). One of the few non-unionized sectors of Hollywood, composers and lyricists - the people who write music (as opposed to musicians, the people who perform it) - are now in talks with the Teamsters for representation.

It's not as strange as it seems: the macho union of dock workers and Hollywood truck drivers (Teamsters Local 399 on the West coast and Local 817 in New York) also represents casting directors, location managers, and various other tenderfoots. An earlier bid to join the Writers Guild (WGA) apparently gained little traction.

All this according to recent pieces in Variety (here, here, and here) and a long piece today in the LA Times. An early-stage meeting Monday, which had been announced by the Society of Composers & Lyricists (a trade group, not a union) attracted over 300 people, about a third of the 900 who would be covered by a union agreement. About 200 of them signed union authorization cards, but the Teamsters are hoping for two-thirds (i.e., 600 or so) in order to move forward.

In other audible union news, AFTRA recently approved its interactive (i.e., video game) voiceover contract, while SAG voted down its similar pact, representing a rare defeat for SAG's new administration. Despite concerns with some aspects of the contract, that's unfortunate for SAG, because I'm told this sector is only about 25% unionized (AFTRA numbers + SAG's). That means that video game companies can easily move over to AFTRA - or go nonunion. The hard reality is that neither SAG nor AFTRA control the labor supply in this area, leaving them little leverage in negotiations. Sort of like bringing a PS2 to a PS3 meetup.

In still other news on the union front - sorry, I've been busy prepping for my UCLA gig, not to mention working for a living - the California Court of Appeals dismissed as moot an appeal by former SAG president Alan Rosenberg and his fellow Membership First plaintiffs newly-reelected 1st VP Anne-Marie-Johnson and board members Diane Ladd and Kent McCord of their suit against their own union. This cacophony lives on in the lower court, however, still costing the union money, but there's some hope that that court will adopt the appeals court's underlying reasoning and dismiss the entire proceeding on the same basis. Let's hope.

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Book review: "Moral Panics and the Copyright Wars" by William Patry

The content and technology businesses are at war, as is well-known and as I discuss in a recent article. It’s a struggle that focuses on unauthorized file sharing and new business models—in other words, a copyright war. Undeniably, the entertainment industry often battles demand rather than trying to satisfy it, and copyright laws have taken a corporate turn. Who better to write about this conflict, one would think—and point the way to solutions, one would hope—than an author with 27 years experience in copyright law as a professor, practitioner and government attorney?

That author is William Patry, who is now Google’s senior copyright counsel (though he emphasizes that he’s writing to express his own views, not Google’s). He says he’s in favor of “effective” copyright statutes, and I opened his book hoping to learn what those might look like, since the divergence of public behavior and existing copyright laws makes it clear that something has to change. It’s an area of great interest to me, not just personally, but also professionally, as my law practice at TroyGould focuses in large part on new media and, more generally, the intersection of entertainment and technology. I was writing a review for the Los Angeles Times, and I hoped I’d be able to write a positive one.

Alas, not. What I found was a book riddled with invective, unoriginal observations, and numerous typographical errors—about 200 typos at my count, including twice referring to Martin Luther King’s most famous oratory as the “I Had a Dream” speech (as though King had simply given up) and inadvertently transmuting federal judge Richard Posner into “Judge Richard,” perhaps positioning him for a gig on syndicated television.

The text is heavily footnoted, yet still marred by unsupported claims. Thus, Patry says that imposing public-access easements on beachfront houses doesn’t reduce their value. That’s doubtful, and he offers no evidence. We’re told “orphan works” is a metaphor used to unjustifiably protect certain kinds of works, but actually those using the term want to loosen protection (a position I agree with, as does Patry). Patry claims that declining CD sales are not related to unauthorized file sharing, but offers neither discussion nor footnotes. Moreover, the book is larded with unnecessary block quotes, among them a half-page endnote analyzing the phrase “Tastes Like Chicken.” Whatever the entrée, a sharper carving knife would have helped.

In short, I was hoping for a significant contribution that would build on previous work in this oft-discussed field. Instead, I found a deeply flawed narrative that didn’t even acknowledge the existence of landmark books in the area by such authors as Lawrence Lessig, Neil Netanel, William W. Fisher III, Jessica Litman, Siva Vaidhyanathan, Tarleton Gillespie, and James Boyle. As I discuss in the LA Times piece, the book is not without some virtues, but I was largely disappointed and surprised. You can read the full review here, then come back and leave comments if you wish.

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my book How to Write LOIs and Term Sheets.

SAG Interim Nat'l Exec Director Hired as Permanent

SAG's Interim National Executive Director David White just got the permanent gig and can drop "Interim" from his title. The vote on today SAG's national board, which began meeting yesterday and is still meeting today for a little while longer, was 70.91% in favor, I'm told, which suggests that a few of the Membership First directors joined the moderate coalition in appointing White to the job.

The appointment is well-deserved: Not only is White a calming and smart presence, but also he, John McGuire, Ray Rodriguez and others on the SAG team have built a record of accomplishment over the last 8 mos. or so, closing one deal after another, including, or course, the biggies (TV/theatrical and commercials). Now the work begins for next round of negotiations, which start in just under a year, believe it or not.

Rosenberg v. SAG: Court of Appeal Implies Appeal May be Moot

Alan Rosenberg is no longer president of SAG, nor even a national board member, but his lawsuit against his own union drags on pointlessly. Believe it or not, he’s still trying to undo Doug Allen’s firing, the appointment of David White, the ratification of the TV/theatrical contract and, no doubt, the discovery of a new ring around Saturn. That last is probably a particularly bitter blow for the ex-president.

Rosenberg and his fellow Membership First plaintiffs 1st VP Anne-Marie-Johnson and board members Diane Ladd and Kent McCord might see some reason to continue the charade, but the Court of Appeal is apparently more skeptical: in a one-paragraph letter to counsel last week, the court asked both sides’ lawyers to be prepared to discuss at oral argument whether the appeal is moot, given that the SAG board reaffirmed Allen’s dismissal and White’s appointment, and the membership at large ratified the TV/theatrical agreement.

The oral argument in this farce is set for a week from tomorrow, October 20, but regardless of what happens, the case continues in the trial court — unless, perhaps, that judge, as well as the appellate judges, can be persuaded that courts have better things to do than try to madly shove toothpaste back into an already discarded tube.

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my book How to Write LOIs and Term Sheets.

Handel appointed Adjunct Professor at UCLA School of Law to teach entertainment unions & guilds course

On a personal note, I've been appointed as an Adjunct Professor at UCLA School of Law. I'll be teaching a course on entertainment unions and guilds starting in January. I also continue as of counsel at TroyGould.

Below and attached is the press release from TroyGould.

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my book How to Write LOIs and Term Sheets.

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TroyGould’s Jonathan Handel Becomes Adjunct Professor at UCLA School of Law

Entertainment and Media Law and Policy Class to Focus on Unions and Guilds

LOS ANGELES – October 1, 2009 – Jonathan Handel, of counsel and member of TroyGould’s Entertainment, Sports and Media Department, has become an adjunct professor at the UCLA School of Law. He begins teaching a semester-long class on entertainment unions and guilds in January 2010 and will continue to represent clients at TroyGould.

Handel’s course focuses on legal analysis along with discussions of union history, policy and politics in order to illuminate the abstract language of guild contracts. Students will review topics ranging from on-screen and advertising credits to creative control, residual compensation, arbitration, strikes and stalemates, and new media.

“Understanding the role of Hollywood guilds and unions is critical to comprehending the state and direction of the entertainment industry as a whole,” says Handel, former associate counsel with the Writers Guild of America. “This is particularly true as a result of new media platforms such as the Internet and mobile devices, which promise to complicate Hollywood labor relations for years to come.”

Recent news events have made the course more timely and necessary than ever. Handel will specifically spotlight the 2007-2009 Hollywood labor turmoil that consumed the Writers Guild of America (WGA), Directors Guild of America (DGA), Screen Actors Guild (SAG), American Federation of Television and Radio Artists (AFTRA), and IATSE and the Teamsters, the unions that represents most ”below-the-line” workers.

Well known in the industry, Handel has been interviewed hundreds of times by local, national and international television, radio, print and online media outlets about entertainment, new media and Hollywood union issues. He has written articles on the conflict between content and technology companies and on trademarking movie titles. Handel has been a participant and panelist at various conferences and presentations, including those hosted by the Beverly Hills Bar Association and by Vanderbilt Law School. He was named one of the top 100 lawyers in California in 2008 and a Southern California Super Lawyer in 2006 and 2007.

In 2009, Handel published a short book titled “How to Write LOI's and Term Sheets,” and will be publishing his new book ”Hollywood on Strike!” later this year. His op-ed pieces have appeared in the Los Angeles Times, the Daily Journal, and the Los Angeles Business Journal. Handel is also a prolific writer for blogs such as the Huffington Post, for which he has written more than 100 articles, and for his own labor and new media law blog, “Digital Media Law” (http://www.jhandel.com), where he has posted about 250 articles on the latest news in the law and business of digital media, traditional entertainment, intellectual property and technology.

Handel earned his Juris Doctor cum laude from Harvard Law School in 1990 where he was an editor for the Harvard Civil Rights-Civil Liberties Law Review, and his AB magna cum laude from Harvard College in Applied Math and Computer Science. After graduating law school, he clerked on the U.S. Court of Appeals for the Fifth Circuit, and has practiced law in Los Angeles since then.

About TroyGould

TroyGould is a Los Angeles law firm founded in 1970. Beginning with an early focus on corporate and securities law, the firm's practice now covers a broad range of business transactions, litigation, and legal counseling, with an emphasis in the areas of corporate finance, mergers and acquisitions, real estate, financial services, entertainment, sports, employment, tax, and competitive business practices.

SAG: Four Hardline Horsemen in the National Board Room

Thursday’s SAG election was a victory for the moderate coalition. Yet, strangely enough, the leaders of the losing hardline faction will all find seats on the national board, and will continue to be a shadow government within the union’s Hollywood board—a board on which none of the key moderate leaders will be voting members.

Yes, the moderates (Unite for Strength (UFS) / USAN / RBD / independents) won the national offices – President and Secretary-Treasurer – and picked up additional national board seats and many on the Hollywood board as well. But with SAG, the story is never simple.

In fact, paradoxically, 1^st VP and failed Membership First presidential candidate Anne-Marie Johnson will probably continue as 1^st VP, ex-president Alan Rosenberg will almost certainly be back on the national board in a matter of days despite winning only an alternate seat, MF leader David Joliffe will probably be on the Hollywood board and effectively on the national board, and MF leader Kent McCord continues on the national and Hollywood boards.

Meanwhile, none of the key moderate leaders will be on the Hollywood board— Unite for Strength leaders Ned Vaughn, Assaf Cohen, Ken Howard and Amy Aquino are all off of that board, at least as voting members (the latter two will serve ex-officio, as non-voting members). Tough independent and former presidential candidate Morgan Fairchild remains, but she’s not a member of the UFS slate and thus doesn’t occupy a leadership position in that group. UFS-ers Adam Arkin and Amy Brenneman also remain, and perhaps will emerge to fill the gap.

How could the election yield so much change in the national offices and so little in the Hollywood Division? Here’s the scenario [UPDATED: Para. 3 is new.]:

1. The moderates seemingly have 27 seats on the Hollywood board out of 55 (because 27 = 6 seats pre-election plus 21 additional seats won in the election). That’s a tad less than half (49%). It would seemingly take peeling off one more vote from MF for the moderates to control the Hollywood board.

2. However, look closer. One of those 6 pre-election seats was held by Ken Howard. Under the SAG Constitution and By-Laws, a national officer can’t also be an elected member of the national board or a Divisional board. So, the day he became president, Howard lost his elected seat on the national and Hollywood boards, and, indeed, his name has been replaced on SAG website listings with “(1 TBD).” That leaves the moderates with 26 seats on the Hollywood board out of 54. That’s less than half by an even greater margin (48%). Now it would take 2 more votes, rather than just one, for the moderates to control the Hollywood board.

3. But, when it comes to electing officers (such as 1^st VP) or selecting replacements for the Hollywood and national boards, the news is even bleaker for moderates. That’s because the Hollywood Division Rules of Procedure specify that for such purposes, the only Hollywood Division board members who can vote are national board members (or alternates sitting in for them) from the Hollywood Division. There are 32 such people (33 minus the vacant Ken Howard seat). The moderates control only 9 of those seats, whereas MF has 23.

4. So, Membership First controls who the Hollywood board elects, unless 8 MF-ers break ranks. If that doesn’t happen (and it’s not likely), then MF will fill the TBD vacancy. Whom will they select? Almost certainly Alan Rosenberg, whom they would elevate from national board alternate (which is the office he won on Thursday) to full national board member from the Hollywood division.

5. Thus, although Rosenberg’s presidency was so discredited in many members’ eyes that he couldn’t even win a board seat, he’s likely to end up with one anyway. This would take place at the next Hollywood board meeting, which is scheduled for October 5.

6. Elevating Rosenberg leaves his alternate seat vacant. So, MF would then vote to appoint its longtime leader David Joliffe as a national alternate (and Hollywood board member). That effectively appoints him to the national board, because one or more of MF celebrity board members (which include Martin Sheen, Ed Harris, Elliott Gould and Ed Asner) will usually be absent from national board meetings.

7. MF will also presumably vote to appoint newly reelected board member Anne-Marie Johnson as 1^st VP (the VP office from Hollywood) and thus as Divisional chair, to the extent that she doesn’t automatically continue in these offices (note that the updated SAG website still lists her as 1^st VP and divisional rules say that the 1^st VP is also the chair). This is possible because Johnson ran for two seats in this election—president, but also, as a backup, national board member. She won the latter.

8. As a result, MF will have skilled leadership as voting members in the Hollywood board room, namely, all four of its core leaders: Johnson, Rosenberg, Jolliffe and, continuing on the national and Hollywood boards, Kent McCord.

9. In contrast, Unite for Strength will have none of its leaders as voting members in the Hollywood boardroom: Ned Vaughn and Assaf Cohen didn’t win seats on the Hollywood or national boards, and Ken Howard and Amy Aquino, as national officers, are non-voting, ex officio members of the Hollywood board, as well as the NY and RBD (Regional Branch Division) boards. One wonders whether Howard and/or Aquino will be able to find time to attend every Hollywood board meeting. In any case, their formal roles would be very circumscribed; under the Constitution and By-Laws, they’re not even allowed to make motions or “initiate any other parliamentary procedures.”

10. Note also that the Hollywood board gets to appoint the Hollywood members of the TV/theatrical contract negotiating committee, if there is one, and that Hollywood has a majority on that committee. That suggests that negotiation will once again have to be handled by a task force appointed by the whole board, not by a committee appointed on a Division by Division basis. (It’s unclear to me whether the task force appointed earlier this year is still in existence.) Unless, that is, SAG and AFTRA are able to reestablish joint bargaining under the Phase 1 agreement.

11. Remember too that it was the Hollywood board that passed a resolution expressing the goal that SAG “acquire actors of AFTRA,” i.e. in some mystical fashion divesting AFTRA of its actors and absorbing all of them in SAG. Anne-Marie Johnson ran for and won a seat on the AFTRA board—despite saying it was distasteful to run—giving her an internal platform for this goal as well. We can expect MF to seek to terminate the anti-disparagement agreement so that the Hollywood board will be free to express its anti-AFTRA views without financial repercussion to SAG.

Bottom line: SAG’s byzantine governance structure and geographical divisiveness will once again facilitate disunity. Among other things, the question becomes, will SAG and AFTRA be able to reestablish Phase 1 joint bargaining? The divided governance certainly makes it harder.

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my book How to Write LOIs and Term Sheets.

SAG Moderates Win Presidency, Secr. + Additional 4 Natl Seats

In a victory for the SAG moderate coalition (Unite for Strength / USAN / independents), the UFS candidates for president, Ken Howard, and secretary, Amy Aquino, won the union's national offices.

However, the election was close: Howard's total was slightly less than the two hardline candidates added together (Anne-Marie Johnson and Seymour Cassel) and Aquino's was slightly more than that of incumbent Connie Stevens. So the union is still very divided, and Howard acknowledged that the results were not a landslide and that the union is very divided, while saying that he planned to reach out to MF supporters.

On the national board, the moderates showed strength as well: They picked up 4 of 11 seats in Hollywood and held all of the NY and regional (RBD) seats. I estimate that this brings the moderate's board majority to around 60%, vs. 40% for MF, but that's a very rough calculation and I'm not sure at this point.

On the Hollywood board, the results were more dramatic: 21 of 33 Hollywood board seats went to the moderates. Added to the 6 they (and independents) already control, that's 27 out of 55 - just shy of 50%.

UFS spokesman Ned Vaughn said he expected to see SAG and AFTRA jointly negotiating wih the studios next year. Howard said he'd reach out to AFTRA and the other guids. On the subject of merger with AFTRA, Howard disputed claims from 6 years ago that merger would hurt SAG members' pensions.

The challenge for the moderates is to build a record of accomplishment, hire David White on a permanent basis, build relations with AFTRA and other guilds/unions, pick up more seats in next years' July-Sept elections, then go into negotiations with the studios Oct. 1 (2010, i.e., next year). After that - work on merger. A tough road ahead.
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SAG Press Release:

KEN HOWARD ELECTED AS SCREEN ACTORS GUILD PRESIDENT;
AMY AQUINO ELECTED AS SECRETARY-TREASURER

Guild Also Announces Results of National Board Elections

Los Angeles (September 24, 2009)—Screen Actors Guild today announced results of elections for its top two elected positions. Ken Howard will serve as Screen Actors Guild president and Amy Aquino will serve as secretary-treasurer. Both will serve two-year terms beginning September 25.

Ballots were mailed to 99,485 paid-up SAG members on August 25, and 27,295 were tabulated today, for a return of 27.44 percent. Presidential candidates Ken Howard received 12,895 votes, with Anne-Marie Johnson coming in second with 8,906 votes, Seymour Cassel got 4,838 votes, and Asmar Muhammad received 402 votes.

“I’d like to be among the first to extend my heartfelt congratulations to our newly elected Screen Actors Guild national leadership. I look forward to working closely with our new president, Ken Howard, and new secretary-treasurer, Amy Aquino, as we focus on the wide range of critical issues facing our members in the coming year,” said SAG Interim National Executive Director David White. “I also extend my thanks, and the gratitude of SAG members and staff to Alan Rosenberg and Connie Stevens for their service and sacrifice on behalf of our union.”

“I am deeply honored to be chosen by the membership to lead the Screen Actors Guild,” said Ken Howard. “I campaigned on the promise that I’d do everything in my power to strengthen our position at the bargaining table by building a greater unity with AFTRA and the other entertainment unions, and that’s exactly what I intend to do. Despite the sharp differences that those of us active in Guild affairs sometimes have over strategy and tactics, we need to continually remind ourselves that we’re all on the same team, fighting for the same thing — and by pulling together, we’ll only grow stronger.”

“I am truly honored that the members have entrusted me with this responsibility,” said Amy Aquino. “Progress has already been made toward strengthening SAG’s finances and I want to make sure it continues. Only by fortifying SAG in this way can we hope to ensure the protections that performers need in these challenging times.”

Screen Actors Guild also announced election results for the National Board of Directors. Twenty-two of the 69 national board seats were open for election this year, representing Screen Actors Guild’s Hollywood, New York and Regional Branch divisions.

“It is my privilege to welcome and congratulate our newly elected Screen Actors Guild National Board of Directors for 2009-2010,” said White. “Along with our staff nationwide, I look forward to working with them to pursue a robust agenda as we navigate the Guild through these changing times.”

The National Board members elected today will assume office on September 25 for terms of three years.

SAG’s Hollywood Division elected eleven National Board members; the New York Division elected four National Board members; and seven National Board members were elected from the union’s branches in Chicago, Colorado, Florida, Hawaii, Philadelphia, Portland and San Diego.

National Board members elected from the Hollywood Division: Martin Sheen, Ed Harris, Elliott Gould, Ed Asner, Anne-Marie Johnson, Connie Stevens, Diane Ladd, Dulé Hill, Hill Harper, Nancy Travis, and Marcia Wallace (all three-year terms).

The following were elected to serve as National Board alternates and to the Hollywood Division Board of Directors (all one-year terms). Gabrielle Carteris, Jenny O’Hara, Michael O’Keefe, Clyde Kusatsu, Dawnn Lewis, Doug Savant, Michelle Allsopp, Alan Rosenberg, D. W. Moffett, Joe Bologna, Robert Hays, Jason George, L. Scott Caldwell, Clark Gregg, Patrick Fabian, Bill Smitrovich, Ellen Crawford, Stacey Travis, Mandy Steckelberg, Renee Taylor, Bernie Casey and John Carroll Lynch.

National Board members elected from the New York Division: Sharon Washington, Monica Trombetta, Sam Freed and Liz Zazzi (all three-year terms). Additionally, New York Division members elected Mike Hodge as NY Division President.

The following were elected to serve as national board alternates and to the New York Division board of directors (all one-year terms.) Manny Alfaro, Sheila Head, Marc Baron, Joe Narciso, Jay Potter, Dave Bachman, John Rothman, Kevin Scullin and Justin Barrett.

National Board members elected from the Regional Branch Division: John Carter Brown (Chicago – three-year term), David Hartley-Margolin (Colorado – three-year term), Dave Corey (Florida – three-year term), Scott Rogers (Hawaii – three-year term), Helen McNutt (Philadelphia – three-year term), Mary McDonald-Lewis (Portland – three-year term), Don Ahles (San Diego – three-year term).

Ballots for all eligible SAG members in Hollywood and New York were mailed on August 25 with a September 24 return deadline and were tabulated today by the independent election company Integrity Voting Systems. A total of 13,718 ballots were tabulated in the Hollywood Division (representing 25.25 percent of ballots mailed in the Hollywood Division) and 5,997 ballots were tabulated in the New York Division (representing 26.11 percent of ballots mailed in the New York Division). The number of ballots returned in the Regional Branch elections varied by region.

For complete results, please visit SAG.org.

SAG Presidential Election Close

A well-placed source says the SAG presidential election is very close. It's a reliable source, but only a single source. Caveat emptor. Not surprising, given how long it's taking to get results - over 3-1/2 hrs past first predicted time (6:38 pm vs 3:00 pm, LA time).

SAG Moderates Win NY & Everywhere Else

According to unofficial sources, and as SAGWatch is reporting, SAG moderates have won every open NY Board seat that was up, and all the regional seats that were up as well.

Hollywood results are not in yet (expected in 1.5 hrs or so), but all the seats up in Hollywood are hardline Membership First - thus, they can only lose more seats, or hold Hollywood numbers at best.

Presidential and Secretary results are expected in 1.5 hrs also, but the NY and RBD (regional) results don't bode well for MF, especially since two hardline presidential candidates (Anne-Marie Johnson and Seymour Cassel) are splitting the hardline vote. The interesting question will be whether moderate Unite for Strength candidate Ken Howard achieves a vote total greater than the sum of Johnson and Cassel.

If not, the hardliners can be expected to declare a moral victory, and the signal to AFTRA may be that SAG has still not turned a corner sufficient to realistically talk about merger. Indeed, unless Howard gets well over 60% of the vote, AFTRA may still be gun shy, since 60% is the threshold needing to approve merger. SAG has failed twice in the last decade to achieve that threshold, and AFTRA leaders have indicated that they won't discuss merger unless the signals from SAG are more favorable than they have been.

Either way, management should remember that moderates as well as hardliners have indicated that they will be ready to seek a strike authorization during the next negotiations if necessary, as I reported recently. It's going to take flexible negotiations by management to avoid a meltdown in 2010 (early negotiations start Oct. 1, 2010,just a year away) and 2011.

More later.

SAG Presidential Candidate: I'll Seek Strike Authorization Next Year if Elected

In an open conference call today, SAG VP and presidential candidate Anne-Marie Johnson said she will seek a strike authorization next year, before the mandated early negotiations next fall, if she’s elected. She argued that that’s what’s needed to gain bargaining leverage and added that she’s “confident” the SAG membership would vote Yes, especially after the guild conducts an educational outreach campaign during its wages and working conditions (W&W) meetings with members.

Johnson added that some people say her Membership First faction is strike happy. She denied that, but said that union members would feel the impact of new media defects in the existing contract before the negotiations next fall, and added that she thought at least 75% of the board will support a strike authorization. She also argued that the sunset clause in the contract, which calls for blank-slate renegotiation of the new media provisions, is “not worth the paper its written on.” That’s seems to be a signal that she thinks a strike will be necessary to force renegotiation.

In an email interview with me, Ned Vaughn, spokesman and board candidate on the moderate Unite for Strength slate, responded as follows:

How we address a strike authorization depends on what we see headed into the negotiations. It’s my firm belief that we must negotiate the next TV/Theatrical contract jointly with AFTRA, so it’s not a decision that would be made unilaterally. That said, the sole focus of Unite for Strength is increasing performers’ bargaining power, so if a strike authorization is needed, we would certainly support it.

I also spoke with an AMPTP spokesman, but he declined comment, explaining that the AMPTP (studio/producers alliance) never comments on guild internal affairs or elections. For the same reason, he declined to comment on last week's election of moderate candidate John Wells at the WGA.

It’s my sense that Johnson may be at least partially right – i.e., that the union’s board would support a strike authorization, albeit not unanimously. Whether the membership would also is a harder question, since next fall is only a year and half after the end of the devastating Membership First-led SAG stalemate which cost members an estimated $85 million in lost wages, and followed a devastating WGA strike.

In any case, there’s no doubt that the union has a lot of unfinished business in the upcoming round of negotiations. Compromises that were reasonable or necessary in this past round may become less so as new media advances.

For example, move-over residuals (for reruns on the Internet) are very low, and it seems unreasonably so. If the studios become able to make more money on the Internet, those residuals need to increase, although the Internet’s economics are unlikely to ever support the lucrative level of prime-time network residuals, which can range from approximately $800 to $3,200 (or $3,500? I don't have my SAG agreement close at hand). All content companies – management, in other words - are being squeezed by technology, and labor is not exempt.

When will the studios become able to make significant money on the Internet? That depends in part on how far new media advances and becomes able to replace network and cable TV not just for young people viewing content on their PC’s, but also the general population who prefer to watch content on the big screen TVs they’ve purchased.

My own experience is instructive. I just bought a new flat-screen TV, a 42” LG 42LH50. It’s an Internet-capable model that just came out 6 months ago, and CNET says it has the most advanced Internet capabilities of any TV they’ve reviewed.

Yet, I got a ridiculously great deal. (Trust me, you don’t want to know.) That, of course, is a reflection on how poorly consumer electronics are selling in this economy, which means that we’re a long ways away from lots of people buying Internet-capable TVs. The technology now makes it possible, but the economics don’t yet make it a practical reality.

Now, the TV can play anything available on YouTube or Yahoo. It can even Twitter (how weird) and do other cool stuff, such as play AP news videos, no doubt to the detriment of network news programs, which survive, if at all, on advertising revenues based on viewership. Every content creator is in trouble in the new media world.

So does my new TV’s Internet capabilities mean I can stop watching conventional TV? No. Not only does it not get Hulu or other network websites such as CBS.com, even the YouTube and Yahoo it does get are unusable. That’s because there’s no keyboard, just a remote, so to search for a video, you have to painstakingly press keys multiple times, just like texting on a non-smart phone. It’s even worse, because the keypad on the remote isn’t as usable as a cellphone keypad: it’s not as firm and doesn’t click. And then you get 17,000 hits and how are you going to sort through that?

So, the technology isn’t here yet in a practical sense, even for those who can afford the newest or are lucky enough to score a great deal. But the day is certainly coming. Business models are still shifting, and we might see the shift to new media retarded by pay walls around content or by add-on charges from ISPs (cable companies and telco’s) levied on people who watch large quantities of bandwidth hogging streaming or downloaded media.

In any case, the unions will be under enormous pressure to get improvements in the new media deal, even with the election this week of the moderate Wells at the WGA and the likely election of Ken Howard, the moderate Unite for Strength candidate for SAG president. Let’s hope that the studios and AMPTP recognize that next year is the time to deal with deferred business and negotiate in a more moderate fashion, or we may see a joint SAG-WGA (and possibly AFTRA) strike.

Now let’s return to that conference call. The first question is, what if you gave a conference call open to all SAG members and nobody came? That’s essentially what happened to Membership First – twice. Last week’s call had about 16 callers at most during the call. Today’s maxed out at about the same. (The call-in system announced the number of callers, and I checked repeatedly.)

And let’s look at that 16 number. Deduct 4 candidates (see next paragraph), me, at least one anti-MFer that I know of (lets say there were 2 or so), assume a couple of planted MF partisans (it'd be silly not to plant a few people) and that leaves at best 7 undecideds. What a fizzle.

Most of the prepared questions, and most of the ones asked on the calls, were softballs, many of which included pro-MF statements as the premise of the question. Most of the answers, from Johnson and MF board candidates Charles Shaughnessy, Erik-Anders Nilsson and Jordana Capra, were unsurprising and generally reiterated statements MF has made publicly before.

The newsworthy stuff in addition to the above? In last week’s call, Johnson said she was paying her own legal fees in the long-running, counter-productive suit she, outgoing SAG president Allen Rosenberg and SAG board members Diane Ladd and Kent McCord brought against their own union. (How bizarre that she’s sued the union she now seeks to lead.)

That appears to contradict Rosenberg’s statement three months ago that he was receiving legal services pro-bono. Johnson also said she wouldn’t bring a motion to have her legal fees reimbursed. However, she didn’t address the likely possibility that another Membership First board member will, nor did she say she would refuse a check if offered. She acknowledged that the lawsuit has cost SAG $170,000 so far, but made no mention of the legal fees she and the other plaintiffs have incurred.

In a separate matter, Johnson claimed that she never said she would fire interim National Executive Director David White if elected, contrary to my report last week. However, she then essentially contradicted herself and confirmed my understanding, by saying there would be a search committee appointed and White could be a candidate if he wished. It sure doesn’t sound like Johnson wants White in the job permanently, and I suspect Doug Allen might be brought back, notwithstanding Johnson’s quasi-denial that I reported last week.

In an out of left field question, someone asked whether pro wrestlers should be allowed to join SAG. Johnson answered that they would have to if they were in a film, but that pro wrestling matches, because they are shot in sequence (i.e., in the manner of live shows), would potentially be under AFTRA jurisdiction, and so the question should be directed at that union. But why not allow wrestlers to join anyway? The current SAG election is a slam-down, so they'd fit right in.

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AMJ: If I’m Elected, David White is Out

In a campaign video, Membership First’s candidate for SAG president, Anne-Marie Johnson says that one her first proposals as new president would be to recommend to the national board that “a search committee be seated . . . immediately” to replace SAG interim National Executive Director David White. Ousted NED Doug Allen would "probably" not come back.

That’s the same David White under whose administration (and chief negotiator John McGuire) multiple SAG collective bargaining agreements were finally signed, including the two largest: the TV/theatrical contract, which Membership First stalemated for a year, and the commercials contract, which was delayed by that stalemate. In contrast, Membership First, under the Doug Allen administration, closed no deals at all.

Johnson justifies her position by asserting White has made clear he was solely the interim NED, but that seems misleading: so far as I’m aware, White never said he didn’t want the job on a permanent basis. So far as I’m aware, White has never taken a public position on this one way or the other.

So if AMJ wants White out, would Doug Allen be coming back? Johnson says she has “no idea.” After praising Allen, she goes on the speculate that he’s doing other things and would “probably not be available for the job.”

The video is about 9 minutes long; the discussion of the NED begins about 3 minutes into it and continues for several minutes.

I'm still here

Many thanks to those who have asked after me, since I haven't blogged for some time now. I'm just taking a break to do some client work and other stuff, but will be back.

Fixing the Residuals System

The residuals system is broken. It’s expensive to administer and is an invitation to conflict as platforms such as new media evolve. Yet we need residuals, because talent survives on these payments between gigs. Can the system be fixed?

Yes, I believe so. For a proposal, see my piece in today’s Hollywood Reporter.

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Rosenberg v. SAG Lawsuit Reply Brief Filed

The appeal grinds on. SAG president Alan Rosenberg and three other Membership First hardliners (1st VP Anne-Marie Johnson and board members Diane Ladd and Kent McCord) filed their reply brief earlier this week.

I'm told there will be oral argument (unscheduled as yet). That'll drive up the price to SAG of this nonsense by probably about $5,000 more: I'd imagine several attorneys for a mock practice session for several hours, then two attorneys for oral argument for a half day or so. Members' dues money at work, thanks to MembershipFirst.

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“Octomom the Musical” Opens in LA to Sellout Crowds

A play loosely inspired by the LA-area mother who had octotuplets opened last Saturday to standing-room only crowds in Los Angeles. The so-called Octomom is not the only character skewered in the zany musical: other include Bernie Madoff, Fed Chairman Ben Bernanke, Vince Shamwow (of magic towel fame) and even Octomom’s fertility doctor, who has a mad and somewhat creepy crush on her.

The show has garnered enormous publicity, even including a segment on the CBS Early Show, and generally strong reviews. The two opening night performances were sold out, as is half of the five-weekend run of the show.

I saw the show and loved it. In fact, the entire audience was laughing and applauding throughout the show. Full disclosure: I’m not an objective observer, since I’m legal counsel for the play. So, go to the show’s website to read the independent reviews, and watch the CBS Early Show segment:

(click here if you don't see the video window above)

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Credits: Book and Lyrics: Chris Voltaire; Music: Rachael Lawrence; Cast: Stu Barron, John Combs, Blake Hogue, Alexandra Holtzman, Lynnette Li, Molly McCook, Chris Voltaire, Dinora Walcott; Direction: Chris Voltaire; Musical Direction: Rachael Lawrence; Choreography: Dean McFlicker; Props: Sarah Robinson; Assoc. Producer: Max Smerling; Publicity: Tany Soussana; Legal Counsel: Jonathan Handel; Producers: Beverly Leech, Chris Voltaire; Presented by Cabaret Voltaire. Running time: 65 mins. Runs: July 18 – August 15, Sats. 8 p.m. & 10 p.m. Venue: THE FAKE, 4319 Melrose Ave. at Heliotrope, Los Angeles, CA 90029. Tix: http://www.octomomthemusical.com/.

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Culture Clash on the Internet

The Internet has devalued content to the point where it is often offered at no charge—newspapers, for instance—or widely misappropriated, as with music and movies. Either way, many people expect much of their content to be free. Why is this, how did it happen, and, focusing on music and movies, what can be done about it?

I’ve previously written about the why, in Huffington Post and Vanderbilt Journal of Entertainment and Technology Law articles, and identified six factors. Let’s focus on two: the culture of piracy, and the rise of ad-supported business models. Underlying both is the belief that content on the Internet should be free (a notion reinforced by the other four factors).

How did this attitude arise? The answer lies in the origin of the Internet. At first glance, this is paradoxical: the Internet began in the late 1960’s as the ARPANET, a project of the Department of Defense Advanced Research Projects Agency, or ARPA. The DoD, of course, seldom fosters self-gratification, a trait that underlies the “free content” culture of the Internet.

However, take a second look. The ARPANET was developed not in-house by ARPA, but primarily by defense contractors orbiting Harvard, MIT and Stanford, and by universities. Their faculty and staff used the ARPANET for social purposes as well as research, for instance by setting up news groups encompassing a variety of recreational interests. No one charged for participation in those groups, or anything else on the ARPANET, and there was little regulation of content—or of file transfers via the network. Those files were primarily documents, data and software, since digitized music and video were effectively non-existent. Still, the precedent was set: file sharing was virtually unfettered.

The predominance of researchers on the ARPANET fostered an academic ethos that includes the concept that information, i.e., content, should be free, since only by openly sharing research can science and other disciplines advance. As the ARPANET grew, the DoD installations on the network were split off in 1983 into a separate MILNET, leaving the ARPANET as primarily an academic facility. The transformation to a free-oriented environment was complete. Significantly, though, the network was primarily used by students and faculty in the computer science field. Its evolution towards the Internet occurred with little public notice until the early 1990’s. By then, its norms were set.

At the same time, an “information should be free” movement was growing, initially focused mainly on the software arena rather than networking. This coincided with the rise of personal computers, and was a reaction to the concurrent rise of consumer software, which of course was generally offered for sale, not for free. As the movement grew to encompass other forms of content, it reinforced and made latent the norms that had developed on the ARPANET.

In contrast to these trends, pre-Internet commercial timesharing systems were being deployed in the late 1970’s and early 1980’s, offering consumers email, information and entertainment, but on a paid basis, as befits a commercial offering. Thus, these systems had different cultural norms than the ARPANET—different histories, expectations, rules and practices. Ultimately, though, these systems were overshadowed by—and their commercially grounded norms had little effect on—the Internet.

During the same period, copyright law began to have meaning for the public in a digital context, but at first only for the limited population who traded in pirated software and games. Prior to this time, the only infringement committed by significant segments of the public involved physical media: mix tapes, concert bootlegs, and album copies on cassette made for friends. Although relatively common among young people, these forms of music (let alone any form of video) weren’t distributed digitally, because personal computers and networks at the time couldn’t process the large files involved. Thus, creation and distribution of these analog tapes was a time-consuming, manual process that didn’t imperil the music industry.

That began to change with the availability of the compressed MP3 audio format in 1995. The format exploded in popularity in 1997 with the release of the free, computer-based Winamp player software and even more so in 1998, with the introduction of the Rio portable MP3 player, a forerunner of today’s iPod. Accelerating these trends, modems were becoming faster, personal computers more powerful, and the Internet more pervasive. People began to rip CDs—that is, copy them to personal computers in MP3 format—and share the MP3 files over the Internet. (Ripping was possible because the audio CD standard, developed in 1980, omits copy protection, perhaps due to a failure to anticipate the capabilities that developed 25 years later.)

The above history, cultural trends, and technical factors appear to be what led to widespread copying and distribution of music and, later, motion pictures. Although educational campaigns have informed and reminded the public that such conduct is infringement, the underlying norms have proved difficult to dislodge, an effect that scholars refer to generally as the “sticky norms” problem. Thus, many people continue to violate the law.

But why? Or, to turn the question on its head, why do people ever obey laws (criminal or civil), even when it may be in their self-interest not to do so? This question has been studied by scholars such as Prof. Tom Tyler of NYU, who lays out several reasons that researchers have examined: (a) people consider the “tangible, immediate incentives and penalties . . . [i.e.,] personal gains and losses” resulting from obeying or disobeying a law (alternatively, the certainty, swiftness and severity of punishment); (b) people decide whether a particular law is moral (i.e., just); and (c) they decide whether a law is legitimate (i.e., promulgated by an authority that has the right to do so).

Evaluated against these metrics, copyright law as applied to content on the Internet falls woefully short. The immediate incentives to infringe copyright are clear: free music and movies. The penalties, in contrast, though severe, are neither swift nor certain, since only a small percentage of infringers are sued (and usually only uploaders of content, not downloaders). In addition, the prevalence of legitimately free content on the Internet—whether user generated content or ad-supported commercial works such as newspapers—probably undermines the perception of copyright law as just; after all, if some content is free, why not all of it? Finally, the perception that content companies are driving the copyright laws (and, of course the fact that they are filing the lawsuits), and a widespread disdain for music labels in particular, delegitimizes those laws.

Two other factors that drain perceived morality and legitimacy from copyright law are the fact that the targets of demand letters and lawsuits were often young people or their sometimes unknowing parents; and that the damages sought or obtained were sometimes grossly disproportionate to the offense. As scholars have discussed, these factors may have precipitated a backlash that actually decreased rather than increased compliance. In any case, ineffectiveness and negative public perception appear to have put a halt to copyright lawsuits against consumers.

What next? When noncompliance is widespread, sometimes the laws change (as in the elimination of prohibition and of sodomy laws) and sometimes behavior changes, as in the case of drunk driving, which was reduced significantly by a combination of stricter laws and broader education. In the case of copyright, though, the laws are strict already, but neither that nor education have been effective.

Perhaps what’s needed is penalties that are less strict—in the scholarly terminology, “gentle nudges” rather than “hard shoves”—but more widely enforced. If demand letters and infringement lawsuits targeting “first offenders” sought significantly lower damages (assuming litigation costs permit this approach), but such letters and lawsuits were issued much more often, public perception might change. Setting the damages at a level that young people or their parents would find affordable but quite unpleasant could reduce the perception of unfairness, but still have sufficient bite. Coupled with widespread enforcement, such damages might change people’s cost-benefit analysis while avoiding backlash. Something has to be done to reduce misappropriation of music and movies, at least until ad-supported business models (or other alternatives) become sustainable, if they ever do. Maybe this is the way.

This article benefitted from discussion with Prof. John Tehranian of Chapman University.

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SAG President’s Anti-SAG Suit Continues

For those who like keeping up with legal dockets, SAG a few days ago filed its Respondent’s Brief in the appeals court case that stems from the lawsuit filed by SAG president Alan Rosenberg and three other Membership First hardliners (1st VP Anne-Marie Johnson and board members Diane Ladd and Kent McCord) against their own union.

Rosenberg et al will shortly file another brief, then (as I’ve previously outlined) there may be oral argument and then there will ultimately be a decision. But that’s just on the appeal. The case also proceeds in the lower court as well, and will probably continue to do so regardless of the outcome in the appellate court. Not that there’s any good reason for this case to continue in either court . . .

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Film on the Downswing

Factoid: Kodak gets 70% of its revenue today from digital products, and an outgoing Kodak exec says that the company plans to stay in the film business “as far into the future as possible,” which isn’t exactly a ringing endorsement of analog formats. This all is courtesy of an AP story in the NY Times on the discontinuation of Kodachrome (yes, the story mentions the Paul Simon song), which also points out that Kodak has introduced new still and motion picture stocks in the last few years.

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WGA Candidates for President and Board Announced

SAG’s upcoming elections have been getting some attention, but the WGA West is having an election this summer as well. The ballots go out sometime in late July or August, and are apparently due back September 17. Current WGA West president Patric Verrone is running for one of the open board seats, but not for president (I believe there are term limits). Instead, the candidates for president are John Wells and Elias Davis. For more details, see the press release below.

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WGA press release:

WRITERS GUILD OF AMERICA, WEST ANNOUNCES CANDIDATES FOR 2009 OFFICERS AND BOARD OF DIRECTORS ELECTION

LOS ANGELES – The Writers Guild of America, West’s Nominating Committee has announced its initial list of candidates for the 2009 WGAW Officers and Board of Directors election. The officer candidates are as follows: President – John Wells, Elias Davis; Vice President – Tom Schulman, Howard Michael Gould; Secretary-Treasurer – Christopher Keyser, David N. Weiss.

There are 16 candidates nominated to run for eight open seats on the WGAW’s Board of

Directors, as follows: Luvh Rakhe, Linda Burstyn, Mick Betancourt, Jan Oxenberg, Howard A. Rodman (inc.), Patric M. Verrone, Dan Wilcox (inc.), Eric Wallace, Jed Weintrob, Chip Johannessen, Andrea King, Steven Schwartz, Jeff Lowell, Billy Ray, Carleton Eastlake, David Wyatt. [The list is in random order. “inc.” means incumbent.]

In addition to the candidates selected by the WGAW Nominating Committee, eligible members may also be nominated by petition. Members seeking nomination for the office of President, Vice President, or Secretary-Treasurer must obtain 50 member signatures in support of their petitions. Members seeking nomination for the Board of Directors must obtain 25 member signatures in support of their petitions. The deadline for submitting signed petitions to the WGAW is Thursday, July 23, by 5:30 p.m. Members may submit online nomination petitions by visiting the members-only section of the WGAW’s website at: www.wga.org.

The WGAW will host its annual “Candidates Night” town-hall election forum for Guild members to meet and pose questions to their prospective Officer and BOD candidates on Wednesday, September 2, at WGAW headquarters in Los Angeles.

Guild members will receive candidate and non-candidate statements and rebuttal statements, if any, with their ballots prior to the election. Members may mail additional campaign materials at their own expense. Members may vote by mail or in person at the WGAW’s annual membership meeting on Thursday, September 17. Ballots will be counted on Friday, September 18.

LA Goatherd Wanted

Sometimes going off-topic can't be resisted. I live in Laurel Canyon, which as LA residents know is in the middle of the city yet is a still-rustic hilly area from the 1920's that even has a few dirt roads remaining. The ethos still has echoes of the 60's and 70's (can an ethos have echoes?).

Usually the echoes are faint, but not always. Here's an email I received today:

We live in laurel canyon and have two mini-mancha dairy goats. Currently I am milking one doe and will start milking the other in a few months when her kids are big enough to wean. We have more milk and cheese than we can consume. I'm hoping that there is someone in the neighborhood who would be interested in some fresh goat milk or cheese in exchange for doing some goat chores. Can you send this request out for me please?

Who'd have thought? And, by the way, if anyone does want to do some goat chores (whatever that may entail) in return for milk or cheese, let me know and I'll pass your info on.

WGA Institutes Qualified Voting

The WGA membership has approved new rules limiting members’ eligibility to vote on strike authorization and ratification of the feature-primetime contract: members now have to have earnings of $30,000 under a WGA agreement during the six years preceding the vote or 15 or more qualified years as a pension plan participant, Variety reports.

The change passed by a margin of 96% to 4%, with turnout a low 15%. This level of support, and lack of angst as signaled by the low turnout, contrast with the reaction within SAG when a “qualified voting” or “affected voting” system having income requirements was proposed in that union. Of course, a higher percentage of SAG actors would have been disqualified since more than 2/3’s of SAG members earn little or money from the TV/theatrical contracts in any given year, even when residuals are included in the calculation.

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Independent New Media Productions

There are casting notices out there for SAG new media productions under the “SAG New Media Contract.” A few notes may help clarify what these are, and help performers enforce a few of their rights.

First, this is not the new media sideletter recently negotiated with the AMPTP (major studios) as part of the theatrical contract. Rather, it’s a new media contract (the SAG New Media Agreement) that’s been available to independent producers for a number of years—that is, producers who are not signatories to the theatrical and/or TV agreements. So, disagreements that a performer may have with this agreement simply don’t relate to the compromises in the new TV/theatrical deal.

Second, under sec. 3 of the SAG New Media Agreement, wages are freely bargained by the employer and the performer.

Third, performers should recognize that independent producers are unlikely to make much, if any, money on these productions. Even the studios are shutting down their new media production entities (Stage 9, 60 Frames). And CPMs (advertising rates) for new media are at about $10 rather than $40-$50 (TV) or more, and with viewership on new media much less as well. These two factors, as well as the difficulty of finding any new media distribution at all, mean that independent producers will generally receive very little income from their new media efforts.

Fourth, it’s reasonable for performers to negotiate for back end (a piece of the producer’s gross or net revenues), so that if the producer does make money, so will the performer.

Fifth, when the producer offers to compensate you only in the form of “credit and meals,” or “credit, meals and tape,” that’s illegal. They have to pay you the greater of California minimum wage (if the production is in California) and federal minimum wage. California’s is higher—$8/hr.

Overtime requirements are more complicated. See complex discussion of exemptions and exceptions (also here) regarding overtime for actors. Also, for workers with less than 160 hours of “employment in occupations in which they have no previous similar or related experience,” the producer can pay 85% of minimum wage. (I don’t know if acting classes count toward the 160 hours, since they’re not employment.)

In any case, if the producer doesn’t pay you the required minimum, you can file a wage claim with the state. You can also call SAG. Although they don’t enforce the minimum wage laws, they may call the producer and suggest that he follow the law.

Sixth, SAG does enforce terms of an agreement between the performer and the producer. So, rather than relying simply on the minimum wage law, it would be a good idea for the performer to include an explicit wage in the SAG new media deal memo with the producer (or a rider), even if the wage is just $8 per hour. SAG would then enforce the agreed wages, meaning that the performer wouldn’t have to rely on the vagaries of the state.

Original made for new media productions are still experimental, and the difficult reality for performers and other talent and workers, above and below the line, as well as their representatives, is that compensation is dramatically lower than in TV and theatrical, just as the revenue for producers is. However, that doesn’t mean that performers shouldn’t insist on some minimums, and hopefully the above suggestions are helpful.

Note: This blog post is intended as general information, not specific legal advice. Check with a lawyer about your particular situation if you want definitive advice.

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SAG Lawsuit Still Grinds On; Court Denies SAG’s Motion to Dismiss Appeal

As I previously reported, SAG’s counsel in late May filed a motion to dismiss the appeal by SAG president Alan Rosenberg and three other Membership First hardliners (1st VP Anne-Marie Johnson and board members Diane Ladd and Kent McCord) of a Superior Court order that denied their application for a temporary restraining order. On June 5—just days before the new TV/theatrical contracts were ratified—Rosenberg et al. filed a brief opposing the motion to dismiss.

Unfortunately, the Court of Appeals on June 9 issued a one-sentence order denying the motion to dismiss, presumably meaning that the appeal is too complex to be decided without oral argument (or, at least, full briefing). So, the appeal grinds on. Rosenberg et al. previously filed their brief in the appeal. SAG’s responsive brief is due July 1. Thereafter, Rosenberg et al. get to file a reply brief, and then there will probably be oral argument at some point. Within 90 days after the oral argument, the court will issue its ruling.

In other words, the appeal will probably drag on until sometime in November unless Rosenberg et al. are persuaded to drop it. Meanwhile, the suit itself proceeds in the trial court as well. Confused as to how a case can proceed in two courts at once? Well, it happens, and the legal fees aren’t cheap. All of this sounds like a campaign issue that Unite for Strength will probably raise—why reelect a president who persists in suing his own union? UPDATE: Indeed, as SAGWatch points out, by continuing to pursue their lawsuit, Rosenberg et al. are reneging on a promise Anne-Marie Johnson publicly made to withdraw the suit if the TV/theatrical contracts were approved.

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Union-Focused Journalist Departs to Academia

Andrew Salomon, the National News Editor of Back Stage and author of the magazine’s Espresso blog, is leaving his job effective July 31. He’s joining the faculty of SUNY Purchase (Purchase College at the State University of New York) as a tenure-track assistant professor of journalism.

Andrew is one of a small corps of journalists whose beats include entertainment labor. He reports with intelligence and humor, and his coverage and camaraderie will be missed. He's a friend, and I wish him all the best.

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my new book How to Write LOIs and Term Sheets.

SAG Resolution Resolves Little for Film Business

With the SAG contract ratified, will the film business finally get back to normal?

Unfortunately, no. Although we'll see a brief spike in production, the business we once knew may never reappear, for a host of reasons. . . . to read more, see my piece in Variety

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my new book How to Write LOIs and Term Sheets.

Trademark Protection and Facebook User Names

Trademark protection just got a slightly more complicated, but in a good way. Starting now, there’s a new step that trademark holders or their attorneys should take to protect their trademarks or service marks.

You probably already know that registering domain names corresponding to your marks gives you important practical protection. Now Facebook has entered the equation. Starting this Friday, June 12, users will be able to register a Facebook user name on a first-come, first-served basis at http://www.facebook.com/username/. It’s about time—the old format for accessing someone’s profile included a string of random digits. My old Facebook URL looks like this: http://www.facebook.com/profile.php?id=551052414. My new one will be nicer.

Competing social networking sites, such as LinkedIn and MySpace, have had plain-language user names for a while now. But the new Facebook scheme has something built in that the other sites apparently don’t: a mechanism for trademark protection. That’s welcome news for rights-holders. Here’s how it works.

At http://www.facebook.com/help/contact.php?show_form=username_rights, there’s a “Preventing the Registration of a Username” form for entering your company name, title, email, trademark, and registration number. (Oddly, there’s no place to enter your own name.) As that last data item suggests, only registered marks are eligible, although I’d recommend that holders of trademark applications in process simply enter the application number instead. Filling in the form will prevent someone else from using your trademark as a user name.

What happens if an infringer registers your trademark before you fill out the form? In that case, fill out Facebook’s “Notice of Intellectual Property Infringement (Non-Copyright Claim)” at http://www.facebook.com/copyright.php?noncopyright_notice=1 and hopefully the matter will be taken care of. Facebook doesn’t describe the procedure it follows for these forms.

Finally, what if someone maliciously fills out the “Preventing the Registration of a Username” form and blocks you from using your own mark as a user name? Facebook’s FAQ (at http://www.facebook.com/help.php?page=899) doesn’t address that, but I’d suggest filling out the Notice of Intellectual Property Infringement (Non-Copyright Claim) form and providing as many details as known.

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Subscribe to my blog (jhandel.com) for more about entertainment law and digital media law. Go to the blog itself to subscribe via RSS or email. Or, follow me on Twitter, friend me on Facebook, or subscribe to my Huffington Post articles. If you work in tech, check out my new book How to Write LOIs and Term Sheets.