Image is all sorts of things
Studios want SAG to OK an online clip libraryFor actors, image is everything. And misuse of that image is enough to take someone to court for using it without consent.
Over the years, performers have done just that. From Arnold Schwarzenegger suing a car dealership for using his picture as the "Terminator" in an ad, to Fred Astaire's widow stopping the use of the iconic dancer's image in a series of instructional dance videos, "right of publicity" lawsuits are sometimes the only ways an image can be protected. And while a handful of states, including California and New York, have laws on the books protecting a name, voice, signature, picture or likeness for advertising or other uses, the majority do not.
So what happens when a major Hollywood studio wants to sell off film or TV clips of actors without full consent? Are those rights still protected?
The answer is no.
It should come as no surprise to those following the 18 days of talks between SAG and the AMPTP that a bone of contention between the two came when the studios put on the table a proposal allowing them to set up an online clip library. Under the proposal, the actors would still be compensated for sales of their TV or film clips, but give blanket consent to their use.
"What we're talking about is the right of publicity, the right to control the use of your name and likeness for commercial purposes," industry attorney Jonathan Handel said. "The clip proposal is sort of neither here nor there with respect to it."
The producers' proposal creates a conundrum. Studio contracts generally take precedence, but the guild's current agreement with the producers gives their members the ability to have a say in clips used outside the scope of promotion.
There's no dispute the studios own the clips. But for SAG, giving up control of their members' images is a hot-button issue that could heat even further later this month, when talks are expected to resume.
Since 1960, SAG has negotiated with the studios an agreement that limits the use of their clips for purposes of such things as promotions and trailers. The studios have to get clearance from the actor for anything that falls outside that scope.
"What we're talking about here is a huge rollback to the existing contractual obligation that our members have," said SAG's deputy national executive director and general counsel Duncan Crabtree-Ireland. "Our contract specifically says that they will not make any other use of the excerpt without negotiating with the actor."
What the majors are asking is for SAG to OK a "massive rollback of rights, even retroactively, for the last 50 years. It's a real major issue," Crabtree-Ireland said.
The AMPTP, however, believes setting up a clip library database is one way to combat illegal use of the footage.
In a message sent to its members May 7, the AMPTP said the primary issue with SAG is the use of clips for nonpromotional uses.
"Such clips are already widely available on Web sites and video-sharing services as a result of Internet piracy," the AMPTP claims. "A legitimate market would generate payments for guild members by, for example, giving consumers the ability to legally purchase clips that they might otherwise obtain from an unauthorized source."
An AMPTP spokesman declined comment further because the organization is in negotiations with AFTRA.
What scares SAG is what the consumer might use its legally purchased clip for, said one union insider.
At first, SAG negotiators thought the AMPTP was proposing a clip library for promotional use, but as discussions continued, they realized it was for use for anything, the member said. This would include video mash-ups, like the Internet favorite "Brokeback to the Future," which has had 4.9 million views on YouTube or "Titantic: The Sequel" (see video above) which has been viewed by 7.3 million YouTubers and uses at least a dozen clips from various Leonardo DiCaprio movies and other films. Other uses for the clips could be packaging for sale things like the best screen kisses in Paramount Pictures history, according to the member.
And there's always a chance the clips will be used in a way that's considered crude by many, such as the YouTube video featuring British rapper Peaches' foul-mouthed "F*** the Pain Away" paired with footage of beloved Muppet icon Miss Piggy. That video, added a month ago, already has 323,658 views as of Wednesday.
"It's frightening to us," said the insider. "And it affects us more so than the writers and directors. We're always worried about overexposure."
The issues highlight what the latest round of union and studio negotiations have encompassed: The intersection of traditional media with new media.
"In traditional media, you need the actor's consent and now SAG wants that same principle to apply to new media," Handel said. "The studio's don't. Their issue is that the use of clips in traditional media is relatively limited.
"New media is different," he added. "This is a business where there's likely to be more clip usage. For example, on cell phones, it's easy to conceive that for $10 a month you can watch all the comedy clips you want ... or watch all the best scenes, like 'Go ahead, make my day,' or 'Hasta la vista, baby.' "
What the studios are saying, Handel said, is that while a clip of a cell phone is not that big, it's the aggregation. Going clip by clip, the cost of getting consents would swamp the economic value of the business.
"I can well understand why the producers would want to obtain this right," media attorney Doug Mirrell said. "I can equally understand why the actors don't want to give it up. It is all to the studios benefit to do this, and as far as I can tell, probably not in the actor's benefit."
What is equally worrisome to SAG is that AFTRA is now negotiating its primetime TV contract with the studios and might give in to the consent issue. Talks between the two started May 7 and the AMPTP is likely presenting the same proposal to that performers union. There is a press blackout during the negotiations.
Although SAG claims AFTRA gave up that consent right in its already negotiated Network Code, an AFTRA insider said that was not the case. Exactly how the union and the AMPTP negotiated around it, however, is not known.
For SAG, the union understands the importance of controlling clips, but the consent process has to remain in place, the SAG insider said.
"We're not unwilling to do this with them, we just want to protect the actors," the member added.