Streaming Forward

While the industry remained dark during the COVID-19 lockdown, union leaders were hard at work finalizing the terms of the 2020 Television/Theatrical Contracts with the Alliance of Motion Picture and Television Producers.

On June 29, the SAG-AFTRA National Board approved the contracts by a supermajority of 67.61% to 32.39%. From there, it was submitted to members for review and ratification.

“Essentially, we were negotiating for our future, and we did it,” said SAG-AFTRA President Gabrielle Carteris, who also served as the national chair of the Television/Theatrical Negotiating Committee. “This contract was shaped by member feedback. We prioritized the issues you told us were most important, both in protecting existing provisions and in seeking new gains. These agreements include transformative gains for a new era and have resulted in the most lucrative motion picture, television and new media deal that we have ever achieved,” she added. “At a total value of $318 million, this is about $50 million more than the next-highest agreement.”

Negotiating Committee member Mike Pniewski applauded the hard work of negotiators and staff, who had to do business in unusual circumstances.

“It was an extraordinary process of negotiating during a pandemic by Zoom calls, but because of the great commitment of our committee and staff, it worked pretty well. And the contract we got includes important gains in high-budget SVOD and P&H, plus codified protections regarding nudity and sexual harassment. It’s a big win for all members across the country,” he said.

After the National Board reviewed and approved the agreement, the union reached out to members with a series of virtual meetings to answer questions, informational videos, a podcast and an online hub that provided details of the contract as well as voting instructions. In late July, members voted 74.22% to 25.78% to ratify the new contract. Twenty-seven percent of voting members returned a ballot, representing the highest return for a union contract referenda in a decade.

The agreement becomes effective retroactive to July 1, 2020, and expires June 30, 2023.

“I am grateful for the many members who got involved and used their voices to help set the priorities for these contracts,” said Carteris. “These forward-thinking contracts address the changing realities of our business, and positions everyone in our union to benefit from higher wages and increased protections, all while preserving and enhancing opportunities for actors to have a professional career.”

The new contracts position us for growth and align our formulas for the future, while protecting members whose work is in exhibition under our current agreements.

“I’m thankful the members voted up the contract,” said SAG-AFTRA Vice President, Actors/Performers and Negotiating Committee member William Charlton. “It’s humbling to serve on the Negotiating Committee and know the responsibility we hold to our membership. I’m honored to be of service to our union, along with a team of powerful, dedicated performers led by strategic and smart negotiators. I’m a journeyman actor, I rely on our contracts to make a living.”

SAG-AFTRA National Executive Director and Chief Negotiator David White praised the work of the Negotiating Committee and members who provided input during the wages and working conditions process. “Your voices were critical to achieving the important gains we made in this agreement.”

The new agreements guarantee substantial raises, while providing unprecedented increases to the contribution rate to SAG-AFTRA health and pension/retirement funds: a total projected funding increase of $97 million to the benefit plans for the next three years, including a $54 million increase for the health plan. The union achieved transformative gains in residuals paid for high-budget subscription streaming, which specifically address the realities of a changing business model. And, among other gains, we achieved enhanced improvements to provisions governing nudity, simulated sex and sexual harassment for all performers, including background; additional protection of the overtime provisions for weekly stunt performers on episodic productions; and an increase to the background count in episodic television in the West Coast zones in the second year of the contract.

“I’m particularly excited about the changes in high-budget SVOD residuals,” said National Board member and TV/Theatrical Negotiating Committee member Linda Powell. “The percentage increases are, of course, great. But I also celebrate the structural changes to foreign residuals, to the grandfathering rules, to the budget thresholds; these are major improvements to the bones of the contract.”

Highlights of the New Contracts

Better Residuals That Secure the Future

Significant improvements were secured in the residuals rate paid to performers for exhibition of their performances in high-budget programs made for subscription streaming on platforms such as Amazon, Disney+, Hulu and others. The improvements include:

> Budget Thresholds Reduced for High-Budget Streaming Programs
• The budget thresholds are reduced for half-hour and one-hour high-budget subscription streaming programs. This has the effect of shrinking the subset of streaming programs that do not benefit from the application of scale and other traditional television terms.

> Better Residuals Formulas
• Increased fixed residuals by 26%–45% for the first three years of availability of a high-budget program on a subscription-based streaming platform.

• Increased the ceilings that cap the amount of performer compensation included in the residual calculation.

• Increased the percentage used to calculate the fixed residual for availability of a high-budget subscription streaming program on an affiliated foreign streaming service.

Eliminating “Grandfathering”
Additionally, “grandfathering” will be nearly eliminated by year two of the agreement so that new seasons of existing series can enjoy the benefit of these increases.

Enhanced Protections for Performances Involving Nudity or Simulated Sex
The agreement clarifies the interpretation of nudity and sex acts, eliminating vulnerabilities and strengthening protections for performers.
Highlights include implementation of strict safeguards at auditions and interviews as well as a new provision that explicitly addresses harassment prevention; a complete overhaul of nudity riders, including a 48-hour review period; improved stringent rules during production, including closed set definitions and prohibition on recording on personal devices; required “cover-up” provisions; secure storage of still photography is required; and prior written consent for the use of footage or still photographs of nudity in any promotional material, publicity or trailers.

Many of the production-related improvements applicable to principal actors have also been incorporated into the provisions regarding background actors.

Streaming Forward: Recognizing Changing Business Models in Syndication

As our industry changes, so has SAG-AFTRA. Recognizing the continued decline of broadcast syndication and the inherent challenges to producers in syndicating under a fixed residual in the current market, the union agreed to the industry pattern replacing the fixed residual with a 6% revenue-based residual in order to secure improvements such as better fixed residuals in high-budget subscription streaming — the fastest-growing part of our business. Importantly, those programs that are currently syndicated under an existing license will continue to pay residuals under the current, fixed residual formula through the duration of the license, including any extensions.

The union secured an additional protection that, for performer contracts entered into on or after July 1, 2020, the new syndication residual may not be advance paid, ensuring that performers actually receive checks for future syndication exhibition of their work. This protects members, while positioning performers for enormous gains in the streaming-dominated television landscape of the future.

Background Gains
Background actors benefit from an additional covered position for episodic productions in the West Coast zones, effective in the second year of the deal, resulting in an additional 2,100 background jobs per year under historical employment patterns. The general wage increase will also translate into millions of dollars for background actors and the improved funding of the benefit plans helps anyone who qualifies.

Travel
Under the new agreement, the union also conformed to the extension of the existing domestic travel protocol by allowing international short flights (less than 1,000 air miles) to be booked as coach internationally. Importantly, long-distance flights over 1,000 miles will still require producers to fly performers in business class. In addition, the union secured an additional protection requiring access to private lounges and priority boarding privileges, when available, for short trips in coach outside of North America. This provides security for performers who may be recognized in these airports due to exhibition of their work in international markets.

Platform Exchange
We accepted a provision designed to help producers find the best platform for programs made for television or subscription-based streaming platforms by giving them certainty that they can pay residuals as though the program was always going to be made for the platform on which it initially exhibits. In order to protect performers against some of the potential for lost compensation caused by a platform switch, there are several additional protections that apply, including a sunset to this provision at the end of the term.

Visit sagaftra.org/contracts2020 for additional details and FAQs.

Understanding Broadcast Syndication

Even without any change to the contracts, reliable research shows a projected drop in future broadcast syndication of 50% over the next three years, which means potential residuals from broadcast syndication will fall from $95.8 million to $43 million over the next five years.

The continuing decline of a business model based on local stations broadcasting linear, appointment television is inevitable. Streaming is the future. That’s what the new contracts secure.
Each year, there are approximately 1,500 covered live-action series running on streaming platforms; but only 17 of these are running in off-network broadcast syndication (about 1%). There are over 100 new high-budget series being produced each year for streaming platforms.

The new broadcast syndication formula provides an opportunity for members to receive new residuals for shows that would never have syndicated previously because the license fee is less than the total residuals due. (The 17 shows currently in broadcast syndication continue in syndication under their current formulas. For as long as existing licenses remain active, nothing changes.)

The new streaming residuals formula will benefit nearly every principal performer who appears on a high-budget program made under the new agreement for a subscription-based streaming platform — the fastest-growing segment of our business.

The high-budget SVOD gains (26%–45% increase) will exceed changes to the broadcast syndication formula within two to three years and dramatically surpass them ever after. That’s called a good deal.
Visit sagaftra.org/contracts2020 for additional information and FAQs.

Enhanced Intimacy Protections Gained

For performers, both principal and background alike, SAG-AFTRA recognizes the unique vulnerability that arises when engaging in scenes involving nudity and simulated sex and other intimate and hyper-exposed scenes.
A key element of the new contracts is the successful renegotiation of the CBA’s current provisions for nudity, simulated sex and auditions in hotel rooms or private residences. Our work on this topic did not start with this negotiation and will not end with this negotiation. With these strengthened protections, we continue our efforts to:

> Stop and respond to potential predatory behavior;
> Ensure you are only required to perform what you agree to;
> Ensure you are not put under pressure to do anything
that you are not comfortable with; and
> Create a safer work environment to protect your body and health.

CLARIFICATIONS REGARDING “SEX ACTS”

1. The parties clarified that the agreements do not permit and have never permitted a producer to request that performers engage in real sex acts. While this has always been broadly understood, from time to time productions have expressed a contrary interpretation because that clarification has not previously been stated explicitly in the contract.

2. Section 43 of the Codified Basic Agreement has been retitled from “Nudity” to “Nudity and Sex Acts” and references to “sex acts” have been added in various places throughout Section 43 where performer rights were tied to “nudity.” This clarification ensures that performers who are not nude while performing simulated sex acts will nevertheless retain the protections of Section 43.

IMPROVED PROTECTIONS AT AUDITIONS AND INTERVIEWS

1. Earlier Notice: The requirement to provide notice prior to the first interview or audition of nudity or sex acts expected of a role or in the audtion/interview has now been attached to the casting notice itself if known by producer at the time of issuance; otherwise, such notice must be provided “as soon as practicable.”

2. No Simulated Sex at Auditions/Interviews: Simulated sex at auditions/interviews is now prohibited.

3. Nude Auditions Limited to One Final Callback: Nudity is prohibited at any audition except for a single, final callback audition. This prohibition addresses the practice of “nude cattle calls” where producers bring in large numbers of performers, sometimes multiple times, to audition in the nude. (Note that “nudity” for this purpose is not total nudity; the performer must wear a “modesty garment,” e.g., “a G-string and pasties.”)

4. No Recording or Still Photography Without Written Consent: There may be no still photography or recording of the single, final callback audition requiring nudity without the written consent of the performer.

5. Only the Fewest Number of Essential Personnel May Be Present: Only “those essential to the casting process” may be present for the single, final callback audition requiring nudity and shall be limited in number to “the fewest necessary for the casting of the role.” Any person present for the audition or viewing the audition remotely must identify themselves by name and title and be visible to the performer.

6. Recording with Personal Devices Prohibited: This includes personal cell phones and cameras.

IMPROVEMENTS REGARDING “NUDITY RIDERS”

1. 48-Hour Notice Period: The producer must submit the proposed written consent (i.e., “nudity rider”) for nudity and/or sex acts at least 48 hours in advance of the performer’s call time. If the role is cast less than 48 hours in advance, or if the producer is replacing a performer who withdrew previously granted consent, then the proposed written consent must be provided at the earliest practicable time. This is a particularly important achievement because many of the problems and abuses related to performances involving nudity and/or simulated sex are “last-minute rider” problems where the production attempts to renegotiate the performer’s rider right at the time of performance to include more nudity and/or more graphic sex acts. This has resulted in conflict and regret when performers disadvantaged by an unequal power dynamic on set agree to these last-minute demands.

2. More Information: The “general description of the extent of nudity and the type of physical contact” required by Section 43 now also requires that the relevant script pages be attached, if available, and that the performer be provided with the name and phone number of a designated producer representative who can address questions about the interpretation or application of the proposed written consent.

3. Doubling Limited to Original Consent: In the event that a performer exercises their right to revoke their consent at any time and a producer exercises their corresponding right to double that performer, the nudity and/or simulated sex portrayed through doubling shall be limited to the nudity and/or simulated sex to which the performer originally agreed. This applies whether the doubling is achieved digitally or through use of a body double.

IMPROVEMENTS DURING PRODUCTION

1. Better “Closed Set” Definition: The requirement that the set be closed to “all persons having no business purposes in connection with the production” during performances involving nudity and/or simulated sex has been tightened to exclude “all persons who are not essential to the filming or rehearsal of the scene” and expanded to apply explicitly to anyone observing by means of monitors.

2. Recording with Personal Devices Prohibited: As with auditions/interviews involving nudity and/or simulated sex, this includes personal cell phones and cameras.

3. “Cover-Up” Requirement: The producer is now obligated to provide a cover-up, such as a bathrobe, to a performer who is nude or wearing only modesty garments when the performer is not actually engaged in rehearsing or shooting the scene and, if practicable, whenever there is a pause in rehearsing or shooting.

4. Written Consent for Still Photography: Prior written consent is required for still photography during performances involving nudity and/or simulated sex and unused still photographs must be securely stored.

5. Written Consent for Promotional Use: Prior written consent is required for use of footage or still photographs of nudity in any promotional material, publicity or trailers. 

6. Director Must Be Advised of Consent: Producer must advise the director and line producer or UPM of the parameters of the performer’s consent to appear nude or engaging in simulated sex acts.

IMPROVEMENTS FOR BACKGROUND ACTORS

1. Incorporation of Principal Actor Improvements: Many of the foregoing production-related improvements applicable to principal actors have also been incorporated into the provisions regarding background actors, including:
   a) The clarifications that producer may not request background actors to engage in real sex acts and that the protections applicable to nudity also apply when the background actor is not nude but is performing simulated sex. Additionally, the right of a background actor to refuse to engage in a performance requiring nudity if they are not notified in advance and still be paid for the day now includes “sex acts.” This ensures that a background actor who is not notified in advance that the performance requires a simulated sex act may refuse and still be paid for the day even if the simulated sex act is to be performed while clothed.
   b) The limitation of nudity and/or sex acts to the original consent when a background actor revokes consent and the producer doubles them.
   c) The improved definition of closed set.
   d) The prohibition on recording with personal devices.
   e) The requirement of a cover-up.
   f) The requirement of written consent for still photography.
   g) The requirement of written consent for use of nude photography in promotional materials.

2. “As Much Information as Possible” Prior to Booking: The principal performer requirements related to auditions/interviews and the 48-hour notice requirement were not incorporated into the background actor schedules. The AMPTP, however, will send a bulletin to background casting agencies, which often function as the employer of record for background actors, directing them to obtain as much information as possible from the producer regarding any required nudity and/or simulated sex acts and provide that information to the background actor prior to booking.

HARASSMENT PREVENTION POLICY

The agreements have always prohibited unlawful harassment, including sexual harassment, indirectly as a form of discrimination. The agreements now contain a new provision that addresses harassment prevention explicitly, as set forth below. It is similar to language that has been bargained into the Commercials Contracts and Network Code.

A. Producer Responsibility: The new provision articulates the producer’s responsibility to maintain a workplace free from unlawful harassment in compliance with applicable laws.

B. Duty to Investigate and Take Action: Performers who believe that there has been unlawful harassment are encouraged to bring information forward, at which point the producer shall investigate promptly and take appropriate action.

C. Confidentiality: Producer will make a reasonable effort to maintain the confidentiality of the complaint and the investigation.

D. Retaliation Prohibited: Producer shall refrain from unlawfully retaliating against any performer who, in good faith, raises a bona fide complaint or participates in an investigation.

INTERVIEWS/AUDITIONS IN HOTEL ROOMS

The union achieved the addition of language prohibiting interviews or auditions in hotel rooms and private residences unless there is no other alternative, in which case the performer shall be entitled to bring a support peer into the audition with them. This is similar to language that the union has negotiated into the Commercials Contracts and the Network Code.