SAG-AFTRA‘s national board voted overwhelmingly today to approve a new agreement with the AMPTP that will sharply limit exclusivity terms in actors’ personal service agreements that hold series regulars off the market and unable to work for unreasonably long periods of time. The vote was 95.5% in favor, 4.5% opposed, and does not require membership ratification as this was a mid-term modification of the guild’s existing film and TV contract.
It’s a major victory for the guild, which has been trying to curtail the practice for more than a decade. SAG-AFTRA officials say the breakthrough was made possible by the guild’s lobbying efforts on behalf of a bill they sponsored in the California legislature that would curtail exclusivity provisions. That bill, AB 437 – dubbed the Let Actors Work (LAW) Act – was moving close to passage by the full legislature but is now expected to be withdrawn in light of the agreement the guild has reached with the companies.
Concurrently, SAG-AFTRA members are in the process of ratifying a separate new contract with Netflix that includes similar changes to its options and exclusivity provisions that will give the streaming giant’s series regulars the right to work on other programs when they’re not working on their Netflix shows.
SAG-AFTRA’s Lobbying Efforts Helped Seal Exclusivity Deals With Netflix & AMPTP
“The companies would not have entertained reopening this issue during the term of the contract were it not for this legislation,” Duncan Crabtree-Ireland, the guild’s national executive director, told Deadline. “We’ve been working on this for over 10 years, and we hadn’t been able to get them to budge meaningfully on exclusivity. So, I really think that the legislation had a huge impact, not only on the timing but also on the leverage that we had to get something done here. I think our members, especially our members who work as series regulars, are going to feel in a very real way the impact of these changes.”
“This negotiation reflects a healthier collaboration between SAG-AFTRA and the AMPTP in the interdependent relationship we share,” SAG-AFTRA president Fran Drescher said in a statement. “The AMPTP was motivated to come to the table and improve a contract that has hindered our members for years. I want to thank the negotiating committee and our members for their participation and activism on this issue, especially the series regulars who came and testified, wrote op-eds and stood with us in the room during the negotiation. I particularly want to applaud Duncan Crabtree-Ireland and Ray Rodriguez for leading these negotiations.
“I also want to acknowledge California Assembly Member Ash Kalra, Senator Anthony Portantino, Senator Tom Umberg, Assembly Speaker Anthony Rendon, Senator Dave Cortese, Assembly Member Tasha Boerner Horvath, Senator Toni Atkins, and California Labor Federation Executive Secretary-Treasurer Lorena Gonzalez for taking this on and pushing the needle. Their support for the LAW Act helped us move forward on issues we hadn’t been able to get movement on in many, many years. Everyone involved, members, legislators, and staff alike rallied together to achieve this fantastic result. I can’t wait to see what the future holds as we continue to move mountains together.”
The agreement with the AMPTP goes into effect on or after January 1, 2023, provided that Assembly Bill 437 has been withdrawn, and that the guild agrees that it will not pursue legislation on the subject of exclusivity prior to the expiration of the successor agreements to the current Codified Basic Agreement and Television Agreement between SAG-AFTRA and the AMPTP.
One of the most significant changes in the new agreement with the Alliance of Motion Picture & Television Producers provides for a “conflict-free window” of at least three months following principal photography of each season during which a series regular can commit their time to another program without having to confirm availability or schedule with the company for which they’re working.
Going into the negotiations with the AMPTP, SAG-AFTRA maintained that Exclusivity contracts “are outdated and harmful to creative artists and their families. Since 2009, series seasons have been cut from 24 episodes down to an average of 12. The amount of downtime between seasons has increased from five months to 14 months. That’s a long time to be out of work and it has severe financial impacts on actors and their families.
“Producers have moved their production and exhibition models into the 21st Century and it’s time they allow their employees to join them. Forced unemployment is unethical and outrageous. Exclusivity provisions or unfair, outdated contract provisions that keep actors tied to employers and unable to work for months and years at a time. Actors must often forfeit other employment opportunities, even when there is no conflict with their original employer.”
Here’s a summary of the agreement:
Exclusivity Money Breaks
Under the current Television Agreement, series regulars making at least $15,000 per episode or per week on half-hour programs or $20,000 per episode or per week for one-hour or longer programs may “bargain freely” on the subject of exclusivity. That means that the minimum terms of the collective bargaining agreement, which prevent a series regular from granting exclusivity under which they do not retain the right to do certain other work in addition to working on the series on which they are a regular, do not apply to series regulars who make at or above that amount. Such series regulars may therefore agree to greater exclusivity and have lesser ability to do other work. Under this agreement, those figures would increase to $65,000 for a half-hour program and $70,000 for an hour or longer program, which means that many more series regulars will benefit from the exclusivity limitations in the Tentative Agreement.
Permitted Appearances
Subject to conditions referenced below, a series regular employed under the current Television Agreement who is paid less than the Exclusivity Money Breaks may not grant exclusivity under which they do not retain the right to do at least 3 guest star appearances in each 13-week period but may agree that none of these appearances can be in a “continuing role.” Under the Tentative Agreement, a series regular paid less than the new, higher exclusivity money breaks may not grant exclusivity under which they do not retain the right, subject to conditions, to do:
• Non-Dramatic Appearances: Unlimited second position radio guest appearances and unlimited second position guest appearances on talk shows, game shows, news, panel and award shows, but may agree that none of these appearances can be in a continuing role.
• Unlimited guest star appearances: Unlimited second-position guest star appearances on live-action and animated television and New Media programs. This includes an unlimited number of continuing roles provided that such continuing roles may not include more than 6 episodes on the same season of a series or miniseries.
• Second Position Series Regular or Miniseries Lead: In addition, a series regular must retain the ability to take either one second-position series regular role or one second-position leading role in a miniseries each calendar year.
Conditions on Permitted Appearances
• Series Producer in First Position: Except as provided under the “Conflict Free Window” provisions summarized below, the series producer remains in “first position,” which means that the “First Position Series Producer” must approve the Permitted Appearance and the series regular must confirm availability and scheduling before accepting it. The First Position Series Producer may only exercise its first-position rights, however, for legitimate, work-related reasons.
• No “Substantially Similar” Role: The First Position Series Producer may deny a Permitted Appearance if it is a “substantially similar” role. “Common, generic attributes without further distinction” are not sufficient to establish substantial similarity. The genre, setting, theme, plot, premise, and the “distinct, identifiable and detailed characteristics and storyline(s) of the performer’s character” must be considered in making that determination.
• No Irreversible Changes to Appearance: Voluntary changes to the series regular’s appearance that are not readily reversible are prohibited, e.g., temporary hair dye is acceptable, but cutting hair is not.
• No Parody: The Permitted Appearance may not parody the First Position Series Producer, series, role or platform.
• Promotional Materials: The series regular may appear in promotional materials for their Permitted Appearance provided that their name and/or likeness does not appear either alone or more prominently than any other performer in any key art or in any photography or soundtrack reused in the promotional materials.
• Telecast Time Period: The First Position Series Producer may refuse a Permitted Appearance that is scheduled to be telecast, to the best of the performer’s knowledge, during the regularly-scheduled telecast time period of the first position series.
• Cooperation Requirement: The First Position Series Producer may not use any of the foregoing restrictions as a basis for automatically refusing a Permitted Appearance, must instead work cooperatively to give good faith consideration to the performer’s request and must maintain records of such requests and the First Position Series Producer’s responses that the Union may review.
“Conflict-Free Window”
The First Position Series Producer must provide series regulars a “Conflict-Free Window” after completion of principal photography of each season during which the series regular may accept a Permitted Appearance without first having to confirm availability or schedule. Otherwise, the conditions on Permitted Appearances will continue to apply. The “Conflict Free Window” need not be the same or the same length for each series regular.
• Three Month Minimum: The Conflict Free window must be not less than 3 consecutive months. The First Position Series Producer, however, will use reasonable good faith efforts to provide a Conflict Free Window of more than three months and to extend Conflict Free Windows beyond three months whenever possible.
• 30-Day Notice: The First Position Series Producer will provide notice at least 30 days in advance of the start of the Conflict-Free Window.
• “Best Efforts” Availability: During the Conflict Free Window, a series regular will use their best efforts to make themselves available for work on their first position series, e.g., recalls for added scenes and reshoots, ADR/looping, and promotional/publicity services.
• Short Hiatus Exception: A Conflict Free Window need not be provided where the hiatus between the completion of principal photography for one season and the commencement of principal photography for the following season is less than 4 months.
• “Permitted Appearance” Must Be Completed: The series regular must complete the services for their Permitted Appearance during the Conflict-Free Window. Services occurring after the conclusion of the Conflict-Free Window will be subject to first-position rights.
• Penalty: In the event that the First Position Series Producer does not provide a series regular with a Conflict Free Window as set forth above, it must pay the series regular a penalty equal to the series regular’s episodic fee for the prior season. The penalty is subject to the episodic cap for benefit plan contributions.
Children’s Programming
• Definition: A “children’s program” is a program created for an audience primarily consisting of viewers under the age of 16 and of the type traditionally produced for Disney Channel or Nickelodeon.
• Minor Series Regulars on Children’s Programming: The terms of the Tentative Agreement set forth above shall apply equally to adult and minor series regulars (i.e., series regulars younger than 18 years old) on children’s programming except that:
• A minor performer employed as a series regular on a children’s program that earns at least two times weekly minimum per episode, but less than $26,000 per week or per episode, may agree that the second-position series lead or second-position lead on a miniseries referred to in section III.C above may not be on another children’s program.
• A minor performer employed as a series regular on a children’s program that earns $26,000 per week or per episode or more may agree to the foregoing and further agree that the “unlimited guest star appearances” referred to in section III.B above may not be on another children’s program.
Application to Other Agreements
The Tentative Agreement modifications to exclusivity terms shall also apply to the following provisions and agreements:
• The CW Supplement (Section 83 of the Television Agreement).
• Sideletter G to the Television Agreement.
• Dramatic series made for television and all High Budget SVOD Series produced under the:
• Prodco, Inc. Agreement
• It’s a Laugh Productions, Inc. Agreement
• Uptown Productions Inc. Live Action Agreement
• Comedy Central Productions LLC Agreement
• King Street Productions Inc. Agreement