How Did COVID Disrupt Traditional Contracts?
2) Two Big Changes, One Big Fight
AFM
AFM's official journal, International Musician, details how the union was able to transition their pre-existing agreements for streamed performances into the new world of post-COVID mass streaming. As AFM's Electronic Media Services Division Assistant Director John Painting writes,
Before the pandemic, live engagement captures (usually ticketed concerts) could be streamed online by additionally paying under the terms of the relevant streaming agreement. In consideration of venues being closed, those restrictions have been loosened, allowing streaming to “replace” live concerts. For example, if musicians are engaged to perform a virtual concert under a live engagement contract or under a local Collective Bargaining Agreement (CBA) and that concert is offered to ticket buyers via password protection, then that has replaced the ticketed event. In this instance, there is no additional fee for streaming the concert behind the password protection...
In short, AFM is regarding password-protecting a stream as similar to buying a ticket. This makes sense: for live events, tickets are literally the single way to get into the event. Each ticket generally has a specific barcode on it that identifies it as the sole official ticket to let one person occupy the one seat at one performance. By password protecting a stream, the password can function as a ticket: only those that have purchased the rights to stream gain access to the password, to then watch said stream. This restrict access in the same way ticketing would. This feature could be additionally enhanced were the companies to randomly generate a unique password to each streaming "ticket-holder," that is then rendered invalid after it has been input once. This would reduce the ability of ticket-buyers to sell or share the password, and give a more accurate head-count of how many times a ticket has been purchased.
AFM has also made concessions for non-password protected streams, by utilizing the prevailing successful strategy of modifying their existing agreements. Painting writes:
- If, instead of password protection, the stream is made publicly available, but only exists online as a one-time “live” event, the payment for streaming is an additional 10% of the live engagement fee. If the stream is left online, a producer may keep the stream available publicly for a month for a fee of $85 per hour per side musician, not including premiums and fringes. Beyond that, the standard, pre-pandemic AFM On-Demand Streaming Agreement applies, with a cost of $197.20 per hour, allowing for a six-month streaming window.
As Painting continues to describe the preponderance of "promulgated" deals arising out of the pandemic, he notes that most are based on deals already existing under AFM frameworks. This leaves AFM looking like a model union: they had not just already thought of many scenarios in which their members could be employed, but also quantified the rules around these engagements quickly and thoroughly!
Looking forward, this is the exact way that unions should consider adjusting their contracts to the times. AFM had already done the work of considering what benefits they provide to their members by having a robust set of rules and agreements for many different types of live music work.
When COVID hit, there was no need to determine if any had sovereignty over these specific sets of instances: AFM had done the work already, had base agreements ready to be adjusted, and had stable relationships with producers. In this way, they are readily advocating for their members in the trenches: not just fighting for sovereignty over specific instances of work.
This should be the model moving forward.
Unfortunately for theatre workers, Equity took a different route.
Actors' Equity vs. SAG-AFTRA
Actors' Equity and SAG-AFTRA have had to negotiate over "territory" before. As noted in the "Contracts Pre-Pandemic" section, these two unions came together to ratify agreements regarding streaming of Broadway shows, intended to be released in theatres and filmed as if they were movies.
When COVID shut down theatres, and companies began releasing archival footage of their old performances, SAG-AFTRA took offense. The main sticking points?
When COVID shut down theatres, and companies began releasing archival footage of their old performances, SAG-AFTRA took offense. The main sticking points?
Is filmed theatre "film" or "theatre"?
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Relations between the unions rapidly deteriorated over the summer and into the fall, as a series of private meetings turned into public proclamations--with little movement from anyone.
- July 8, 2020: AEA & SAG-AFTRA leaders meet.
- Later July: SAG-AFTRA proposes waiver to Equity: allowing them to continue releasing streamed theatrical productions, but only if Equity acknowledges that SAG-AFTRA has final and total jurisdiction over all filmed media.
- July 21, 2020: AEA President Kate Shindle releases public statement against waiver, claiming malfeasance by SAG-AFTRA in negotiations:
I recognize that SAG-AFTRA believes that jurisdiction is simple: if a show is being done for a live audience, it is Equity work; if a camera or microphone is turned on, it is SAG-AFTRA’s. The reality is that jurisdiction is more complex than this. There are numerous instances in which performers working on an Equity contract are filmed or recorded, and many of these arrangements are embedded in mature Equity contracts as examples of the kinds of work we have traditionally covered (and need to continue to organize). To sign the proposed document as SAG-AFTRA staff has revised it would place us in an impossible position....From our vantage point, it appears that SAG-AFTRA is instead seeking to leverage the pandemic in the interest of dramatically expanding its traditional jurisdiction at Equity’s expense. |
- September 2020: A group of theatre stage managers starts a Change.org position advocating to SAG-AFTRA to allow Equity to film and maintain jurisdiction: arguing that SAG-AFTRA is untrained in the needs of theatre artists, with some supporters noting that in past cases under SAG jurisdiction, the union has failed to respond to worker needs.\
- October 7, 2020: SAG-AFTRA leadership releases a statement, decrying AEA for not accepting the waiver and accusing the union of trying to extend jurisdiction into AEA territory instead of fighting for members.
- October 8, 2020: AEA releases counter-statement, arguing that placing SAG-AFTRA rules on theatre productions will make them inherently more dangerous.
- October 17, 2020: SAG-AFTRA files formal complaint against AEA to AFL-CIO, requesting mediation.
- November 14, 2020: SAG-AFTRA and AEA agree to resolution.
- November 20, 2020: Resolution formally announced.
The Results
- Equity may present "work that is recorded and/or produced to be exhibited on a digital platform, either as a replacement for a live theater production that cannot take place because of the pandemic or for a partially virtual/digital audience that supplements a live audience during the pandemic period."
- Performances must be in the "general nature of theater, and may involve minor editing..."
- Streaming platform must be restricted to ticket-buyers.
- Productions cannot stream on major services.
- Total digital audience cannot exceed 200% of the theater's total house size for the contracted run of the production (300% for theaters with fewer than 350 seats).
- Stream can only be accessed for "the lesser of three (3) months or the duration of the run..."
- Production must "not include work that is more in the nature of a television show or movie...:" meaning, if it could not be done in a theatre and would rely on film techniques to be executed (shooting out of order, substantial editing, or special effects).
- Equity agrees that "work done for recorded or broadcast/livestreamed media, including the transmission of a live theater performance outside the theater itself, ordinarily falls within SAG-AFTRA’s exclusive jurisdiction."
- SAG-AFTRA "acknowledges that live theater performances ordinarily fall within Equity’s exclusive jurisdiction."
equity-sag-aftra-agreement.pdf |
Download full text of agreement above.
What Does This Mean?
In short: Equity can continue to stream theatrical productions through December 31, 2021, pending a continuing resolution enacted by October 1, 2021.
In longer terms: after intense public scrutiny, and accusations that both unions were ignoring the needs of their constituents in favor of asserting their right as a union, both were weakened in terms of membership and respect and thus weakened in their ability to collectively bargain with unions and stakeholders outside of each other. Finally coming together (albeit through mediation) to draft an agreement allowing AEA constituents to continue working, and theatres to make money, restored some respect to these unions and funds to their constituent members and institutions.
Why did it take so long, though? Why did AEA and SAG-AFTRA undergo a long, arduous, and vitriolic process? Unlike AFM, is no evidence that Equity had considerations of how their constituents could employ themselves outside of the realm of AEA-contracted performances. While AFM had contracts allowing musicians to perform in all kinds of different situations, Equity's contracts were all based on performing in theatres, and were constructed more around how little producers could get away with paying actors and stage managers rather than protected performers in multiple scenarios. This is reflected in the Annoying Actor Friend piece: Equity historically has cared much more about all productions being Equity than about actors being able to perform, protected, in many different settings.
In longer terms: after intense public scrutiny, and accusations that both unions were ignoring the needs of their constituents in favor of asserting their right as a union, both were weakened in terms of membership and respect and thus weakened in their ability to collectively bargain with unions and stakeholders outside of each other. Finally coming together (albeit through mediation) to draft an agreement allowing AEA constituents to continue working, and theatres to make money, restored some respect to these unions and funds to their constituent members and institutions.
Why did it take so long, though? Why did AEA and SAG-AFTRA undergo a long, arduous, and vitriolic process? Unlike AFM, is no evidence that Equity had considerations of how their constituents could employ themselves outside of the realm of AEA-contracted performances. While AFM had contracts allowing musicians to perform in all kinds of different situations, Equity's contracts were all based on performing in theatres, and were constructed more around how little producers could get away with paying actors and stage managers rather than protected performers in multiple scenarios. This is reflected in the Annoying Actor Friend piece: Equity historically has cared much more about all productions being Equity than about actors being able to perform, protected, in many different settings.