How Did COVID Disrupt Traditional Contracts?
1) Initial Adjustments to Existing Agreements
Many unions' standard operating contracts already had stipulations regarding recorded performances, and dissemination of said recordings. Equity explicitly allowed "taping, filming, audio and visual digital recording, streaming, or any other electronic or mechanic reproduction or transmission of an Actor's image for use on television, radio, or the internet, whether for promotional or commercial use." Additionally, there was a clause regarding "new media," saying that producers could use the captured images for "subsequent use" for marketing in "new and evolving" mediums that were not already covered--essentially, putting the ball in the producer's court.
In March 2020, as the COVID-19 pandemic began to shut down theatres nationwide, Equity began to adapt these agreements into new, individual contracts with "select regional producers" and theatre to allow streaming , or "to capture and make performances available online for one-time viewing to ticket-buyers in areas where there are limits on public gatherings." At this time there was no discussion of Broadway recordings, as "the union’s contract with Broadway producers 'already has media capture provisions in it,' said a spokesman for Actors’ Equity."
In March 2020, as the COVID-19 pandemic began to shut down theatres nationwide, Equity began to adapt these agreements into new, individual contracts with "select regional producers" and theatre to allow streaming , or "to capture and make performances available online for one-time viewing to ticket-buyers in areas where there are limits on public gatherings." At this time there was no discussion of Broadway recordings, as "the union’s contract with Broadway producers 'already has media capture provisions in it,' said a spokesman for Actors’ Equity."
This agreement with Broadway producers included specific language regarding the streaming of Broadway plays. Generally, the only time Broadway shows are recorded is as a professional, filmed "movie-style" capture for release in cinemas: meaning, the agreement regarding distribution and labor during these filmings is under the jurisdiction of SAG-AFTRA. SAG-AFTRA explains this distinction well:
- When Broadway plays that are signed to Actors Equity Association contracts are recorded for exhibition in theaters, those performances are covered under SAG-AFTRA contracts. In the reverse case, when Disney, one of SAG-AFTRA’s oldest signatories, produces Broadway plays for live audiences, it does so under Actors Equity Association contracts, not SAG-AFTRA contracts.
This allowed for one of the major streaming theatrical events of all time: the early release of the "movie" (filmed stage) version of Hamilton, released exclusively for streaming on Disney+. This streaming event made major money for Disney, and sparked SAG-AFTRA's idea that streaming live theatre could be immensely profitable. According to reporter Daniel Frankel, from July 3-13 2020 roughly 2.7 million households streamed Hamilton, a count that could theoretically exceed the total number of people who have seen the show live on stage. Additionally, and as noted on the graph below, the weekend of Hamilton's launch produced the highest-ever sign-up numbers for Disney+, as well as the highest-ever single weekend for sign-ups across any streaming service ever: proving to SAG-AFTRA that there was an appetite for streaming theatre.
AGMA had an unofficial "Media Loophole" in their collective bargaining agreement with the Metropolitan Opera. While the Met's "Live in HD" program allows the company's productions to stream and be accessed around the world, there has never been an explicit agreement between AGMA and the Met regarding musicians' compensation for their work's appearance in the broadcasts. This has become a point of contention in negotiations between AGMA and the Met during the current work stoppage, as noted in this post from the Met Opera Chorus's Facebook page.
SDC and AFM are the two unions who perhaps had the least trouble negotiating new deals regarding streaming work for their members, partly due to how strong their pre-COVID agreements were. SDC Executive Director Laura Penn noted to Playbill that "'our agreements have embedded in them streaming and archive captures granting concession for theatres to share past productions.'" Penn also made note that
...in addition to broadcasting previous work, SDC has been able to support their members with current work. “There is quite a bit of development work beginning to happen as we move into this next phase of whatever this is we’re living through,” said Penn. Employers are honoring previous collective bargaining agreements to continue work on projects that were in media res when the shutdown occurred; and SDC has created a new remote development contract that they expect will grow in demand.
AFM has long had agreements, as well as other resources for musicians, regarding recordings of their members' work for "Streaming and New Media." These were later able to be adjusted for the longer-term implications of COVID-required streaming.