{"id":3389,"date":"2023-10-23T10:52:47","date_gmt":"2023-10-23T14:52:47","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jsel\/?p=3389"},"modified":"2024-09-25T18:10:26","modified_gmt":"2024-09-25T22:10:26","slug":"a-new-kind-of-contract-for-a-new-kind-of-entertainment-industry","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jsel\/2023\/10\/a-new-kind-of-contract-for-a-new-kind-of-entertainment-industry\/","title":{"rendered":"A New Kind of Contract for a New Kind of Entertainment Industry"},"content":{"rendered":"<figure id=\"attachment_3390\" aria-describedby=\"caption-attachment-3390\" style=\"width: 1024px\" class=\"wp-caption aligncenter\"><a href=\"https:\/\/journals.law.harvard.edu\/jsel\/wp-content\/uploads\/sites\/78\/2023\/10\/pexels-genie-music-17134745-scaled.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"size-large wp-image-3390\" src=\"https:\/\/journals.law.harvard.edu\/jsel\/wp-content\/uploads\/sites\/78\/2023\/10\/pexels-genie-music-17134745-1024x683.jpg\" alt=\"Writers Strike.\" width=\"1024\" height=\"683\" srcset=\"https:\/\/journals.law.harvard.edu\/jsel\/wp-content\/uploads\/sites\/78\/2023\/10\/pexels-genie-music-17134745-1024x683.jpg 1024w, https:\/\/journals.law.harvard.edu\/jsel\/wp-content\/uploads\/sites\/78\/2023\/10\/pexels-genie-music-17134745-300x200.jpg 300w, https:\/\/journals.law.harvard.edu\/jsel\/wp-content\/uploads\/sites\/78\/2023\/10\/pexels-genie-music-17134745-768x512.jpg 768w, https:\/\/journals.law.harvard.edu\/jsel\/wp-content\/uploads\/sites\/78\/2023\/10\/pexels-genie-music-17134745-1536x1024.jpg 1536w, https:\/\/journals.law.harvard.edu\/jsel\/wp-content\/uploads\/sites\/78\/2023\/10\/pexels-genie-music-17134745-2048x1365.jpg 2048w, https:\/\/journals.law.harvard.edu\/jsel\/wp-content\/uploads\/sites\/78\/2023\/10\/pexels-genie-music-17134745-1080x720.jpg 1080w\" sizes=\"auto, (max-width: 1024px) 100vw, 1024px\" \/><\/a><figcaption id=\"caption-attachment-3390\" class=\"wp-caption-text\">Image Courtesy of GenieMusic\/Pexels.<\/figcaption><\/figure>\n<p><em>By Shayna Toh<\/em><\/p>\n<p>The recent return of familiar hosts to late night TV after a five-month hiatus marked the beginning of the end to one of the entertainment industry\u2019s biggest battles in recent years. On October 2<sup>nd<\/sup>, the Writers Guild of America (WGA) voted to end their 148-day long strike, allowing over 11,000 writers to return to work under a new deal that the leadership has called <a href=\"https:\/\/qz.com\/wga-strike-deal-amptp-ai-residuals-pay-raise-1850877137\">\u201cexceptional\u201d<\/a>\u00a0with <a href=\"https:\/\/www.vox.com\/culture\/2023\/9\/24\/23888673\/wga-strike-end-sag-aftra-contract\">\u201cmeaningful gains and protections for writers in every sector of the membership.\u201d<\/a><\/p>\n<p>In its<a href=\"https:\/\/www.wgacontract2023.org\/the-campaign\/summary-of-the-2023-wga-mba?utm_source=substack&amp;utm_medium=email\"> summary of the deal\u2019s terms,<\/a> the WGA describes sixteen points of consideration in its agreement with the Alliance of Motion Picture and Television Producers (AMPTP). The provisions reflect four major issues:<\/p>\n<ul>\n<li><strong>Minimums and Protections<\/strong>: the two entities compromised on increases for writers\u2019 minimum compensation and their health and pension contribution rates.<\/li>\n<li><strong>Terms of Employment<\/strong>: the WGA secured more stable payment structures where writers will be paid a higher percentage of their fee upon commencement, and guarantees on a fixed number of weeks of employment depending on which stage the show is in.<\/li>\n<li><strong>Residuals from Streaming<\/strong>: the WGA worked out an agreement that changes how foreign streaming and advertising-supported streaming figures are calculated, which provides writers with new pathways to receive &#8216;residuals\u2019 for viewership of programs that enjoy second lives on streaming services.<\/li>\n<li><strong>Regulations on AI: <\/strong>new regulations were developed surrounding artificial intelligence, including terms stating that AI cannot be used to write or rewrite literary material, and that use of AI must be disclosed by the producers.<\/li>\n<\/ul>\n<p>With the WGA strike settled and the writers\u2019 rooms returning to work, all eyes remain on the ongoing SAG-AFTRA strike, which has just passed its three-month mark. <span style=\"font-weight: 400\">Although SAG-AFTRA and the AMPTP announced this weekend that they are <\/span><a href=\"https:\/\/www.cbsnews.com\/losangeles\/news\/hollywood-unions-call-for-immediate-resumption-of-sag-aftra-talks\/\"><span style=\"font-weight: 400\">resuming negotiations this Tuesday<\/span><\/a><span style=\"font-weight: 400\"> after the <\/span><a href=\"https:\/\/www.cbsnews.com\/losangeles\/news\/hollywood-unions-call-for-immediate-resumption-of-sag-aftra-talks\/\"><span style=\"font-weight: 400\">AMPTP walked away from the bargaining table<\/span><\/a><span style=\"font-weight: 400\"> earlier this month<\/span><span style=\"font-weight: 400\">, the road ahead promises to be a long one.<\/span> Though the two strikes bear similarities, such as both sets of union members needing better protection in their industries specifically with <a href=\"https:\/\/www.forbes.com\/sites\/tonifitzgerald\/2023\/07\/12\/sag-2023-strike-may-hinge-on-same-issue-as-writers-strike-ai\/?sh=4fe05bff6a0b\">the rise of artificial intelligence in entertainment<\/a> as well as better and more stable terms of employment, the WGA\u2019s compromise on certain issues did not and will not guarantee a similar acceptance by SAG-AFTRA. As Fran Drescher warned, \u201c<a href=\"https:\/\/www.fastcompany.com\/90960167\/fran-drescher-sag-aftra-actors-strike#:~:text=After%20details%20of%20the%20new,resuming%20talks%20with%20the%20AMPTP.%E2%80%9D\">one size doesn\u2019t fit all<\/a>.\u201d<\/p>\n<p>SAG-AFTRA members are seeking wage increases and their own set of minimums, but there are differences between writers\u2019 and performers\u2019 needs. For example, particular SAG-AFTRA provisions include <a href=\"https:\/\/www.latimes.com\/entertainment-arts\/business\/newsletter\/2023-10-03\/wide-shot-newsletter-writers-guild-sag-aftra-strike-the-wide-shot\">protections for self-taped auditions and relocation allowances<\/a>. Furthermore, the exact manner that compensation will be determined is different from the writers because they operate under different employment models: writers are guaranteed work for 10-20 weeks per season, something that actors do not necessarily have, depending on whether they are cast in a main, recurring or guest role.<\/p>\n<p>Conversations about compensation and fair pay have been compounded by the ever-evolving modes of entertainment consumption. With the rise of streaming platforms both domestically and internationally, SAG-AFTRA put forth two new proposals focusing on using analytical content valuation tools to measure how much each show is worth to platforms, then compensating actors with 2% of the revenue, and increasing foreign streaming residuals by 230%. The AMPTP proposed much lower rates.<\/p>\n<p>Lastly, artificial intelligence (AI) represents a threat to the two groups in very different ways. While the WGA\u2019s negotiations focused on how generative AI tools would affect scriptwriting, thereby putting writers\u2019 jobs at risk, SAG-AFTRA expressed concern with the AMPTP wanting to give studios the right to train AI systems to recreate performers\u2019 likenesses. The union came down sharply on the matter and wanted to require that no likeness be created without a performer\u2019s consent. AMPTP preferred different terms, which led some SAG-AFTRA members to characterize studios as wanting to <a href=\"https:\/\/twitter.com\/klawls\/status\/1679573332889329665\">\u201cown the images for background actors in perpetuity after one day&#8217;s pay.\u201d<\/a><\/p>\n<p>A letter penned by over 300 SAG-AFTRA members in June admitted that, while the plights of working actors and their needs have been \u201cundermined in the last decade,\u201d they have hit an <a href=\"https:\/\/www.rollingstone.com\/tv-movies\/tv-movie-news\/jennifer-lawrence-meryl-streep-actors-threaten-strike-sag-aftra-letter-exclusive-1234779586\/\">\u201cunprecedented inflection point.\u201d <\/a>Hollywood has neared the picket line more often in recent years, as seen through <a href=\"https:\/\/money.cnn.com\/2017\/05\/01\/media\/writers-strike-2007-history\/index.html\">the infamous 2007 writers\u2019 strike<\/a> and the <a href=\"https:\/\/www.theguardian.com\/us-news\/2021\/oct\/23\/striketober-unions-strikes-workers-lasting-change\">2021 near-strike that involved 60,000 Hollywood employees<\/a>, but SAG-AFTRA and WGA had only been on strike together once before: in the 1960s, following disagreements the unions had with the Alliance of Television Film Producers over compensations and residuals. Given the similarity in demands from the two unions, it warrants examination of several factors within both the entertainment industry and the labor landscape that have led to this moment.<\/p>\n<p>First, the impact of new technologies cannot be understated. In addition to the industry\u2019s shift towards streaming, the rise of generative AI poses a new threat to the livelihood of actors and writers, with its ability to create both scripts and moving images. The increased prominence of AI, engineered by programs like ChatGPT and Midjourney, has <a href=\"https:\/\/www.reuters.com\/technology\/more-writers-sue-openai-copyright-infringement-over-ai-training-2023-09-11\/#:~:text=Companies%2C%20including%20Microsoft%20(MSFT.,material%20scraped%20from%20the%20internet.\">spurred numerous litigation lawsuits surrounding claims of copyright protection and fair use<\/a>. This is an issue that extends far beyond the entertainment industry and has no end in sight: with <a href=\"https:\/\/www.reuters.com\/technology\/governments-race-regulate-ai-tools-2023-09-11\/\">a lack of legislation on how to regulate AI tools<\/a>, bargaining and negotiations will have to become a stop-gap measure on how to contain their daily use.<\/p>\n<p>Second, the concurrent strikes exposed a limitation on the AMPTP\u2019s strategy of pattern bargaining across unions. In <a href=\"https:\/\/economics.sas.upenn.edu\/pier\/working-paper\/2001\/pattern-bargaining\">the traditional process of pattern bargaining<\/a>, one union would determine a negotiated settlement and terms for its union, and such terms would be imposed on subsequent parties and unions within the industry. Though this has been industry practice in the entertainment industry since time immemorial, the WGA departed from precedent when they refused to accept the same terms that the AMPTP had agreed upon with the Directors Guild of America (DGA) during <a href=\"https:\/\/variety.com\/2023\/biz\/news\/wga-dga-pattern-bargaining-history-1235644014\/\">their re-negotiation of their contract earlier in the summer<\/a>. This is a new practice they plan to uphold. During the latest round of SAG-AFTRA talks, WGA leadership threw its support behind specifically negotiating for performers\u2019 rights, as the demands and concerns of the two unions are different. \u201cRather than engage in the traditional AMPTP tactic of pushing a deal on SAG-AFTRA that is patterned on our own tentative agreement or any other industry deal,\u201d <a href=\"https:\/\/www.indiewire.com\/news\/breaking-news\/wga-solidarity-forever-sag-aftra-negotiations-begin-again-1234911616\/\">the WGA&#8217;s statement reads<\/a>, \u201cthe companies must make a deal that addresses the needs of performers.\u201d<\/p>\n<p>Third, the strikes in the entertainment industry reflect a broader national labor movement, long dormant, but once again on the rise. Writers and performers have joined nearly 400,000 workers this year, from hotel workers to teachers to baristas to automobile workers, who have sought to use strikes as a last resort bargaining tool to achieve an economic compromise that other pathways, such as legislation, have failed to provide. In July, a third strike in the entertainment industry was brewing when the International Alliance of Theatrical Stage Employees (IATSE) <a href=\"https:\/\/playbill.com\/article\/update-iatse-strike-averted-with-tentative-agreement-broadway-and-national-tours-to-continue-as-scheduled\">failed to negotiate with the Broadway League and Disney Theatrical<\/a> over contractual terms for salary increases, rest periods, and tour-related expenses. While this momentarily threatened to shut down most Broadway and national tour productions, the theatrical industry was saved by a last-minute tentative agreement.<\/p>\n<p>The \u201csummer of strikes\u201d continues. This year, strike activity has already <a href=\"https:\/\/www.cnbc.com\/2023\/09\/22\/uaw-strikes-could-make-2023-biggest-year-for-labor-activity-in-decades.html\">more-than-tripled<\/a> last year\u2019s numbers. With recent unprecedented acts, <a href=\"https:\/\/www.newyorker.com\/news\/our-columnists\/joe-bidens-visit-to-a-uaw-picket-line-was-a-powerful-political-gesture\">such as Joe Biden becoming the first President on the picket line<\/a>, it is worth considering what such an inflection point will mean not only for the actors and entertainers, but how this activity might lead to sustained change in bargaining practices.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>By Shayna Toh The recent return of familiar hosts to late night TV after a five-month hiatus marked the beginning of the end to one of the entertainment industry\u2019s biggest battles in recent years. On October 2nd, the Writers Guild of America (WGA) voted to end their 148-day long strike, allowing over 11,000 writers to 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