SAG wants a piece of DVD sales!
It all started when DVDs became big money for the studios. Usually when a corporation (like the monopolies that run Hollywood) makes a substantial profit, the people who actually helped make that product start wanting a taste. Since actors are a major reason why films have a shot at gross receipts, you can't blame them.
See, when an actor appears in a film or television show, they are entitled to residuals any time that work is shown. The Screen Actors Guild (SAG) has a formula for this kind of thing and the amount differs from deal to deal. Basically the idea of residuals makes sure that Alan Alda is fairly compensated for all the sales of M*A*S*H Fox was able to wrangle. If you're making money off someone's talent and likeness, they're entitled to something (even if Alda had to sue for what Fox owed him).
The problem is that SAG never saw the success of DVDs coming. No specifics for residuals were laid out until recently and then only in a vague notion. That's where the quagmire began. Studios are making a mint off these discs and the actors that starred in the films don't see a dime.
While negotiations over digital media continue between SAG and the studios, the actors have begun to ask for talent fees anytime they are interviewed for one of those "making of" pieces you get as a bonus feature on the DVD. This is fair. They are giving their time to a new production that will increase the worth of the DVD release.
But what about film clips?
Recently, while doing retrospective documentaries on the directors that comprise the MASTERS OF HORROR, we've run into a legal snafu over film clips and whether or not we owe money to the actors featured in those clips. These are clips of films that have already been released and, in most cases, were filmed before the new rules on DVD residuals were in place. When the actors appeared in these films, they signed away their likenesses for the purposes of that film (including publicity). The problem is that SAG insists that, if we use a clip from that old film, we're using the actor's likeness to make a new product.
Well, that's not exactly true. If I were to take a clip of Kurt Russell from THE THING and splice it in to my film about the Iditarod, then I would be using the clip to make a new product. In a documentary that discusses the making of THE THING (among other films) by John Carpenter, a clip featuring Kurt Russell is using the clip as it was originally intended... the way Kurt signed on to have his image used. As an extension of the film titled THE THING.
A clip from THE THING is just a sample of the full length movie. It doesn't become a whole new creation if you take a one minute piece out to show. The same goes for a still from that film or clips used in a trailer. Taking things a step further, if I were to include a clip from THE THING in a new DVD documentary featurette, I'm promoting that film just as any other promotion would. And the cast of THE THING allowed their likeness from that film to be used in this manner when they signed on the production. True, back in 1981 they didn't know DVDs were a possible venue for this sort of thing, but that's why all standard Hollywood contracts have a phrase that refers to "all future technologies"
Now, considering how the negotiations for a clear standard addressing DVD residuals for new productions is seeming more and more elusive, SAG (supposedly on behalf of its members) has been attempting a work around. It has to do with likeness rights.
This phenomena began when some genius on Madison Avenue came up with that whole Fred Astaire dancing with the vacuum cleaner ad. Astaire's family weren't contacted about this and, in the settlement that followed, likeness rights (as we know it) were born.
These rights have been given added dimension ever since the courts allowed actors to sue paparazzi for stealing a shot of them at the beach for "The Weekly World News". This has given the actors a new found control over their image. Again, this is fair. A still of an actor taken by a studio publicist is different than shooting through the bushes into the private backyard of an actor's home. One involves consent, one doesn't (I'll let you guess which one is which).
This right to control the use of your image shouldn't apply to using images of the actor from a film where they signed away their FILM LIKENESS (a film likeness is what an actor looks like when they appear in the movie).
In some cases, such as the families of Boris Karloff and Bela Lugosi, the children of these horror icons have formed estates to control the license of their dad's images (see the above Astaire example for the reason why). This was because everyone and their uncle were making Frankenstein tee shirts and Dracula lunch boxes without giving the family their due. Again, this is right. The fine line comes when one uses a clip from FRANKENSTEIN in a documentary. One use is a blatant attempt to capitalize on Karloff's image (even if he is nearly unrecognizable under all of that make up). The other is for the purposes of discussing the film that Karloff allowed to use his likeness in return for compensation (the fact that the old studio regimes were ruthless and didn't pat Karloff what he deserved is unfortunately in the past).
Now, why do I say that SAG's pursuits of DVD money is going to kill DVD? Quite simply because the bureaucracy that is being hatched will choke off the ability to make DVDs to the quality consumers demand. People love those 'making of' featurettes. The bonus material is what makes a DVD in some cases. Some of you are probably saying, "So what? Studios have gluts of money. They can afford to give a piece." True, but once the cost and headache outweighs the return, studio interest in putting out DVDs will decline.
As of right now, this won't happen. DVD sales outrank box office and these discs are the only place some films make it into the black. But sales have begun to plateau. And, unlike Reaganomics, the trickle down effect is very much a reality in Hollywood. If the studios start losing money, the crafts that support them will start losing money. Runaway production is a prime example of this. It's not that studios are inherently evil (well, maybe Fox is). It's just that, in a town where unions have grown beyond protecting their members and are now bloated bureaucracies in their own right, too many end runs for the dollar can drive the money and the work away (to, say, Canada).
Allow me to give you an example of how things have already gone too far with this DVD business.
Consider the MASTERS OF HORROR docs I am producing for Anchor Bay. To discuss working with director Stuart Gordon, we licensed the use of trailers to his past films. This would enable me to illustrate what the interview subjects are talking about.
But apparently simply licensing the trailer isn't enough. I have to approach every actor that appears in the clip I take from the trailer. They have to grant permission for me to use their likeness. In return I am to pay them a SAG dictated fee on top of the licensing fee I paid the studio who owns the film (and all its contents). If the actor in the clip is dead, I either have to negotiate with their estate or pay an amount into an ESCROW that SAG controls for the purposes of paying off any relative that decides to come out of the woodwork.
Even if the clip I'm using is from a non-union film, one with no affiliation to SAG, I still have to pay. Some of those non-union actors have gone on to join SAG and, in some kind of time travel magic, that entitles them to SAG guaranteed rates for something they did back when SAG couldn't care less about them. It's amazing how much love quarterly dues gets ya'.
To avoid going through these exercises, I either have to use shots that don't feature any recognizable face (such as shots of feet or buildings) or just make a featurette out of a group of talking heads. This is very dull and one of the first reasons DVD critics will say to save your money and rent instead of buy.
For an actor who appeared in, for example, JARHEAD to be compensated when the JARHEAD DVD sells millions is part of doing business. That actor is a major reason why JARHEAD succeeded (as are all the other crew members, but you won't ever see them get a penny out of DVD sales - another conundrum for another time). The sale of another DVD that refers to JARHEAD in a historical context should not be considered the same thing unless that actor in the clip performed a re-enactment for the featurette.
That's my rant. I'm sure there are some fine points of the struggle that I may not be aware of. Please feel free to comment.
For more reading check out this article
HERE. This shows how documentarians beyond DVD are being hurt by this nonsense as well.
