The Kimbrough Collection
This series of e-mails was written by Matt Kimbrough, the co-chair of the jointly hosted W&WC committee that developed the proposals used by both SAG and AFTRA in the TV-Theatrical and Exhibit A negotiations. Kimbrough, a dual card holder, went on to chair the AFTRA Exhibit A negotiating committee.
Our only comment on the letters is that we don’t think the lies are “SAG” lies, even if the false statements are issued in the name of SAG.
SAG lie #6
“AFTRA HAS SURRENDERED JURISDICTION IN NEW MEDIA, OPENING THE DOOR FOR NON-UNION WORK”
The lie here is that, coming into negotiations, THERE WAS NO JURISDICTION TO SURRENDER. WE HAD TO CODIFY IT. How is that, one may ask? Doesn’t the Screen Actors Guild claim they already have jurisdiction on the internet? The answer is, yes, they do claim that. The problem is, the AMPTP claims they do not have jurisdiction except when the employers choose to. Going into 2008, all of the unions have sideletters in their contracts that assert jurisdiction. The AMPTP has a sideletter that asserts the opposite. Both sides reserve their rights of opinion, so, what was true was that there was a standoff. Union production took place on the internet, but no rule triggered it. It occurred only when the employers chose to apply it.
Now, as a result of the AFTRA Prime Time agreement going out for ratification this week, jurisdiction is codified and the rules are in place.
There are three kinds of production for New Media.
DERIVATIVE PRODUCTION
This term applies to all scripted dramatic New Media product that is inspired by or directly connected with television programming for traditional media, whether broadcast or cable. All work in this area is covered, with
rates freely negotiated, and residuals paid. There are provisions for background performers provided as well with a cap of ten union jobs per day, though the employers have agreed that, on those occasions when a derivative product is shot the same day as the traditional product and all hired background are needed, no one will be dropped from the count.
ORIGINAL PRODUCTION, TYPE A
This is production that has no connection to any other programming in traditional media and falls above budget breaks that are in pattern with previous deals negotiated by the DGA, WGA and the AFTRA Network Code.
Those budget breaks are when a show costs more than the following amounts to produce:
More than $15,000/minute for short subjects
More than $300,000/episoce (30 minutes plus)
More than $500,000/series (that is the entire cost of the series)
All of this work is completely covered and has residuals formulae
ORIGINAL PRODUCTION, TYPE B
This is all production that is less costly than any of the above criteria. The AMPTP wishes to get into experimental production, sponsoring talented students and amateurs to make product if they deem it worthy. They have, however, agreed that there are conditions they are willing to apply to this work where the director, writer, or performer will be covered. Each union has had to define the triggers for coverage.
The DGA simply states that if a DGA member is hired to direct, DGA union security is applied.
The WGA took a different stance and applied a term, PROFESSIONAL WRITER, a term that exists in their constitution and/or bylaws, and said that anyone defined as such would be covered. A Professional Writer is not necessarily a WGA member and all WGA members are not necessarily Professional Writers. Professional Writers are those people who have had a screenplay they authored produced, or play they wrote produced, or a novel they wrote commercially published.
AFTRA came into these negotiations anticipating this was going to be a major issue for itself, as the issue of defining covered work arose forcefully during its Network Code negotiations. Recognizing the importance in regard to scripted work and at the time assuming that SAG and AFTRA would be jointly negotiating the Prime Time/ Television/ Theatrical contract with the Guild got the employers to agree to wait until these negotiations to define the term, but it was made clear that a definition of a covered performer had to be arrived at it. In joint Wages and Working Conditions meetings in Hollywood SAG leadership dismissed the need to deal with this by simply saying that actors were already covered by the aforementioned sideletters. AFTRA staff and lawyers made it clear to us that, just because you have a sideletter stipulating your members rights of coverage, that letter was meaningless if employers had their own sideletter stating that coverage was completely at their discretion. AFTRA therefore negotiated a definition of a covered performer. Here it is:
A Covered Performer for the purposes of low-budget work in Original Programming for New Media is someone who has worked under the terms of a collectively bargained agreement (CBA) and has at any time in their professional career done any ONE of the following:
1) Has at least 2 television (whether broadcast, basic cable, premium cable, or direct-to-video) or theatrical motion picture credits
2) Has at least 2 credits in a Professional Stage Play (e.g., Broadway, Off-Broadway, National Tour, LORT, COST, CORST)
3) Has had a total 13 weeks employment on a radio station (including satellite) in a major market. The thirteen weeks do not need to be consecutive nor do they need to be with the same employer.
4)Has been employed as a performer on an audio book or as a royalty artist on an sound recording commercially released by a major or bona fide independent label
5) Appeared as a principal perforrmer, announcer, singer or dancer in national television or radio commercial, interactive game, or non-broadcast industrial production
The employers may rely on a performers representation for verification
The phrase “terms of a CBA” is critical because this assures that even non-union members in right-to-work states who worked under CBA terms in any of the above mentioned ways would trigger union security.
What is union security? This means that, not only will there be contributions made to Health and Retirement on that worker’s behalf, but ALL OTHER WORKERS WILL BE COVERED WHETHER THEY MEET THE ABOVE CRITERIA OR NOT.
AFTRA is confident that for most of this product, the AMPTP will be seeking to use competent professional performers, almost all of whom will have met one of these conditions. Whatever happens over the next three years AFTRA will be able to see all transactions that use covered performers and a picture will emerge as to how the AMPTP is producing on New Media. This is important because, like all matters in New Media,
THESE AGREED TO TERMS SUNSET AT THE END OF THE AGREEMENT. This means that, like the DGA, AFTRA will have the opportunity of renegotiating the entire New Media package in the next contract.
This is an example of how, with NO ROLLBACKS, the AFTRA Prime Time Exhibit A contract will protect the rights of work for its members. This is in addition to the fact that Major Role performers, day players. background players, singers. warm-up performers, and dancers will see higher pay, more jobs and higher network residuals and the highest contribution rate into the Health and Retirement plan known to exist nationwide. All of this WITH NO ROLLBACKS
THIS DETAILED AGREEMENT IS ANOTHER REASON WHY I URGE YOU TO VOTE YES ON THE AFTRA AGREEMENT
For more information on the contract and a schedule of informational meetings so you can have your questions answered, click on the following link:
http://www.aftra.com/primetimeYES/index.html
Thanks for your time,
Matt Kimbrough
Chair, AFTRA Exhibit A Prime Time Negotiating Committee
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SAG LIE #5:
“AFTRA IS NOT PROTECTING ACTORS OVER THE USE OF THEIR CLIPS IN NEW MEDIA” This statement was part of the text in a flyer handed out to SAG members attending last night’s (6/11) Town Hall meeting at the Harmony Gold in Hollywood. The lie in the statement is that it smacks of hypocrisy. Here is the explanation. As anyone who has been paying attention knows, the issue of re-use of Actors clips, or excerpts in New Media was, at the time AFTRA went to the table, the SINGULAR ISSUE OF CONTROVERSY for the Screen Actors Guild in the first round of their negotiations with the AMPTP. On our first day of the AFTRA sessions, our committee met with the SAG committee for a progress report on their talks. They said publicly and privately that while they were only “hours away” from a settlement, the issue of Clip Re-Use in New Media was bogging talks down. The Studios wanted the acting community to surrender their individual rights of consent for the re-use of excerpts in New Media because the employers wanted to try to compete with pirates who were already rampantly exploiting the library on the Internet and therefore de-valuing the massive treasure of movies and television programs that are the core asset of the industry. An oft heard epithet in the business is “content is king”, and that content is now available everywhere you look, free-of-charge, and distributed by everyone from pirate ”etailers” to teenagers in Omaha basements. If you doubt this, pick a TV show or movie, any title, and search for a clip from it on You Tube. You will have to work really hard to find a show that has not already been made available. I couldn’t find one.
Neither union saw this proposal coming. Because of the already existing rampant and unauthorized distribution, management never foresaw it as a problem. The employers thought actors would simply be happy to get money from them when they used the excerpts as opposed to the “bupkis” we get from the pirates and file sharers. When the AMPTP made their deals with the DGA and WGA, the issue of clip re-use never arose because neither of those Guilds ever posessed that right of consent. The AFTRA Network Code has long had more liberal re-use rules in traditional media because most of the programming under that contract is reality based, covering the genres of games, sports, documentary and news. So, both sides found themselves facing a huge obstacle to a deal. During that progress report, Guild leadership reported to AFTRA that while they had told management the Guild was willing to RECONSIDER THE FUTURE AND LIBERALIZE RULES FOR PRODUCT MADE HEREAFTER, the LIBRARY WAS SACROSANCT. The Guild told us that they offered to management to make the bargaining of clips for future product a term that could be negotiated at the time of employment. Management insisted that the library had to be theirs to exploit as well and talks broke down. Throughout much of the AFTRA negotiations, tremendous amounts of time was spent by the Negotiating Committee debating the principal of clip-use. We recognized that individual members would have different levels of both leverage and interest in witholding consent, but the union could not give away the individual’s right of consent on product, particularly on pre-existing work. The rights that were assumed at the original times of engagement had to be preserved. AFTRA worked overtime to make the members’ case. After meeting after-hours with the community, it was decided that we would bring in performers whom the employers would recognize who would make their case in their own words. It was a very effective day. It led to a series of meetings with high level executives and lawyers from the studios who were key dealmakers and copyright litigators. They tried to reassure us by suggesting a series of use limitations (more on that later). Nevertheless, the committee, convinced that this was an issue of principal, held firm and talks on the Friday before Memorial Day all but completely broke down.
Finally, in the eleventh hour, management blinked. Seeing our resolve, they agreed that membes would retain all rights of consent for all product made prior to July 1, 2008. The two parties did agree to attempt to create a more technologically efficient and streamlined process by which management could reach members, but the fundamental rights would remain in place, unchanged. After July 1, 2008 they asked us to agree to the model that THE SCREEN ACTORS GUILD HAD PROPOSED FOR FUTURE CONTENT. That is, that going forward, an actor could negotiate for consent at the time of employment.The fact that this idea CAME FROM THE SCREEN ACTORS GUILD is why I call this Lie #5. Additionally it was agreed that all the discussed limitations of use would be applied to all use, even those by second party exhibitors (Social Networks like YouTube or MySpace or Hulu) and that actors would even retain the right to sue Third Party users (the aforementioned Omaha teenager in his basement) if the limitations were violated. These limitations were: No nude photography No use or alteration of the excerpt which would defame the perforomer.
No “move over” from New Media to Traditional Media No use of excerpts to form an “episode length” program. No use in commercials No use of “bloopers” or “outtakes” unless those excerpts were used in the original broadcast of the program
No license with an Exhibitor could be executed that would allow use past 7/1/2012 Performers would receive payment for all monetized use whether it be ad-supported free-to-the-consumer or pay-per-use. This would even apply to any monetized promotional use. Finally, AFTRA would be given access and receive unredacted reports of ALL transactions involving excerpt re-use throughout the term of the deal which expires 7/1/2011. At that time all terms will “sunset” or cease to exist and have to be renegotiated in their entirety. No one knows, not us , not the studios, how well these business ventures wlll do. No one knows how much of the pirated market will be recovered or what the size of the revenue will be. Today it is miniscule, representing a fraction of a percentage of overall revenue to the employers. What is true, is, that unless the wholesale de-valuation of our product by consumers is well defended, all of us, producers, writers, directors and performers, will find it hard to continue to make money doing what we love.
This is an example of how, with NO ROLLBACKS, the AFTRA Prime Time Exhibit A contract will put more money in members pockets, this is in addition to the fact that Major Role performers, day players. background players, singers. warm-up performers, and dancers will see higher pay, more jobs and higher network residuals and the highest contribution rate into the Health and Retirement plan known to exist nationwide. THAT IS WHY I URGE YOU TO VOTE “YES” WHEN YOU GET YOUR BALLOT NEXT WEEK. AFTRA will be having house parties, informational meetings and will freely be distributing the details of the agreement to all members in the coming weeks. We won’t be announcing ratification on our contract till AFTER THE JUNE 30 EXPIRATION DATE so we hope this gives SAG plenty of time to make the good deal they are quite capable of making. It is hard work as any member of my exhausted committee will tell you, but it is gratifying when you have a package that puts more money in members pockets, secures jurisdiction for New Media for our members and further enriches our Health and Retirement Fund without agreeing to a single rollback. Thanks for your time, Matt KimbroughChair AFTRA Prime Time Negotiating Committee SAG LIE #4 “AFTRA SEEKS TO TAKE OVER ALL OF TELEVISION”
This is an allegation that many Hollywood leaders of the Guild have directed at AFTRA. A recent post by Boardmember Anthony DeSantis states ”Once AFTRA has all of television (If we stand up now and stop them.), do you think they’ll be happy with that? I don’t. “ He craftily cites an essay of mine called THE SAD HISTORY which I wrote after the suspension of Phase One where I laid out what former SAG and AFTRA NED Greg Hessinger had observed to the AFTRA Strategy Cabinet in the fall of 2003 that [Now that the 2003 referendum on Consolodation and Affiliation (ie, merger) had failed ] Without increasing jobs, without organizing new work, without streamlining its operations, AFTRA could be out of business in a decade. The decision was made to make AFTRA’s mission to organize work for itself for all categories to be sure, but freelance actors represented the largest population and the area where the most erosion of AFTRA’s work had occurred. This had happened again in part because merger, if achieved, would bring all actor’s work under one banner. Now that it had failed, twice in five years, AFTRA had to change its culture. It had to look to save itself and no longer expect support from SAG. It began its march for independence, therefore implicit competitiveness in television, with SAG. I have received calls from friends asking me if “taking over all of television” is AFTRA’s intent. It is a lie. From this Chair’s point of view, one of the great achievements of the new Tentative Agreement in Prime Time Television Exhibit A is language on jurisdiction for New Media which clearly states that New Media and Television jurisdiction shall be SHARED WITH THE SCREEN ACTORS GUILD, just as we have shared jurisdiction in traditional media for THE LAST 55 YEARS. AFTRA has represented actors in scripted programmng going back to its very beginnings in radio in the thirties. In the fifties, once SAG negotiated its first television contracts, AFTRA shared the video spectrum. Depending on which decade you point to, broadcast prime time has always had scripted dramatic programming covered by BOTH UNIONS, in varying proportions to be sure, but always shared. The same is true and has always been true in cable, whether Basic or Premium. AFTRA proudly acknowledges that shared existence and is proud to carry it forward into New Media. Let me pause and ask: Does SAG assert the same state of shared jurisdiction in its set of proposals? Is SAG willing to codify it in their agreement? It would be nice to get an answer. Because we had to negotiate seperately this year, AFTRA wanted to make it clear to the AMPTP that we had NO INTENTION OF CHANGING THE EXISTING PARADIGM. THIS ANOTHER REASON TO VOTE YES ON THE AFTRA CONTRACT. IT HONORS THE RIGHTS OF BOTH UNIONS. AFTRA will be having house parties, informational meetings and will freely be distributing the details of the agreement to all members in the coming weeks. We won’t be announcing ratification on our contract till AFTER THE JUNE 30 EXPIRATION DATE so we hope this gives SAG the time to make the good deal they are quite capable of making. It is hard work as any member of my exhausted committee will tell you, but it is gratifying when you have a package that puts more money in members pockets, secures jurisdiction for New Media for our members and further enriches our Health and Retirement Fund without agreeing to a single rollback. Thanks for your time, Matt KimbroughChair, AFTRA Prime Time Negotiating Committee–SAG Lie #3 (posted 6/10/2008)
THE AMPTP IS TOO DISTRACTED BY ITS AGREEMENT WITH AFTRA TO NEGOTIATE WITH US”When he was first hired, one of Doug Allens’s priorities was declared by him as a need to “fix the AFTRA situation”. That was soon defined when, spending your dues money, SAG launched a year long AFTRA disparagement campaign that involved push-polling, publishing a lengthy anti-AFTRA aritcle in its magazine, demands that AFTRA reduce its share of influence in joint negotiations to a 15% share of the vote, and vowing to never again let SAG card-holding AFTRA representatives ally themselves with non-Hollywood SAG leaders to thwart the will of the Hollywood leadership. Remember “bloc” voting? Remember “proportional” representation? Remember accusations of “undercutting”?Since returning to the table two weeks ago, word is that the SAG negotiating committee in caucus spends far more time talking about AFTRA than about the issues embedded in theirs and management’s respective proposals. Instead of using every day it has this month to aggressively and constructively negotiate for its members, the SAG committee spends days in internal meetings, planning the “Vote NO!” campaign, staging rallies, putting staff on the marching line AND SPENDING OUR DUES MONEY TRYING TO DEFEAT IT.When the AFTRA Committee fought for its contract with the AMPTP it sacrificed every hour of every day it had talking directly to the people who had to agree to the deal, including spending the entire Memorial Day weekend and beyond, working late into the night, applying itself to the difficult task of pushing its issues to maximize the gains it could achieve. It reached out to working members outside of its leadership to testify in their own words to management on the importance of an actor’s fundamental right of consent over clips. More than once, the task seemed insurmountable. The AFTRA Committee more than once was committed to walking away from the table if management refused to compromise, and yet the brave Committee members determined that the only way to not fail was by trying to make a deal. In the end, a great deal was made. Better than recent years. Better than anyone expected.
The Tentative Agreement in Exhibit A Prime Time Television programming contains raises that are larger than the last contract, increased payments in health and retirement, higher network residuals, higher pay for Major Role performers, more union jobs for background, benefit coverage for warm-up performers, codified safety rules for stunt coordinators, greater recognition for workers with disabilities, higher hazard pay and stricter terms for dancers, higher rates for singers, improved terms for series regulars on the CW and gives jurisdicition to union performers in New Media with terms that IMPROVES on the pattern achieved by the WGA and DGA by preserving performers rights of consent on the use of excerpts and imposing strict limitations of use provisions on such use as well as securing payments for any monetized exploitation that might occur whether for promotional or supplemental uses.
All of this was achieved with no rollbacks and no limitations on a performer’s fundamental rights of publicity and rights to negotiate at the time of employment.
That is why I urge you to VOTE YES ON THE AFTRA CONTRACT.
AFTRA will be reaching out to the community all month, holding informational meetings, house parties and sending out detailed literature where you can have all your questions answered. Don’t let politics keep you from working for more pay at a time of genuine economic uncertainty. The WGA strike is now credited with having launched a recession in California. There is no reason for another work stoppage to keep you from working. Demand that SAG get off the politics and do the hard work of negotiating. As a vested SAG member I urge them to make the good deal that they can achieve
Thanks for your time.
Matt Kimbrough
Chair, AFTRA Prime Time Negotiating Committee
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SAG Lie #2 (posted 6/9/2008)
Yesterday Alan Rosenberg presented SAG membership with a comparision of the negotiated ACHIEVEMENTS of the AFTRA contract with the remaining SAG proposals, most of which had been formulated during joint Wages and Working Conditions Meetings this winter.
He is postulating what we have acquired against what his union has proposed (NOTE: SAG’S initial proposals were the same as AFTRA’s). This is horribly misleading. A union has achieved NOTHING by virtue of what it proposes. It only matters what is AGREED TO BY MANAGEMENT AND APPROVED BY THE MEMBERSHIP. One cannot compare what is proposed against what is acquired. New terms must be compared against what was previously in the contract going into bargaining.
The terms agreed to in the Exhibit A contract in Prime Time Television with the AMPTP, which was overwhelmingly ratified by the AFTRA National Board of Directors, is a very rich contract in money, representing over 4% growth in cost to the studios to performers other than stars.
Major Role performers will receive a 15% raise in Major Role Minimum (Top of Show in agent parlance). Minimums will rise by over 10%. Background players will now have daily cap of 20 union jobs in Prime Time on every show. Singers and dancers receive new rates and protections in key areas. Warm-up performers retrieve their benefits. Network residuals will have a maximum increase of over $250.The Health Plan will have a 15% contribution rate, the highest contribution rate into the Health and Retirement plan known to exist nationwide. Actors rights of consent over all the work they have done till now is completely preserved. Jurisdiction for members is codified in New Media in pattern with the DGA/WGA. Persons with Disabilities receive new access to casting. Other gains were achieved as well with NO CUTS GIVEN TO EMPLOYERS. This is offered to the members as ACHIEVEMENTS, NOT WISHES
VOTE YES WHEN YOU GET YOUR AFTRA BALLOT!
AFTRA will be announcing informational meetings all over LA in the coming week. Learn the facts. Ask your questions. I think your choice will be easy. Your dues money is being spent at SAG for a tacitly political fight and has no chance of improving your work life. Thanks for your time.
Matt Kimbrough
Chair, AFTRA Prime Time Negotiating Committee
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Lie #1 “THIS DOES NOT MEAN A STRIKE” (posted 6/8/2008)
That is a quote from Steve Barr as to what the consequences of a “NO” decision on ratification of the AFTRA deal will mean. As the Chair of the AFTRA negotiating team, and a veteran of 3 previous joint negotiations of this contract since 1998, let me personally assure you that this is a disingenuous statement at best, at worst it is a lie.
Hollywood movies are already in de facto strike waitng for a SAG deal. Television production will not resume without a contract. The AFTRA contract is a very rich contract in money, representing over 4% growth in cost to the studios to performers other than stars. It is my honest opinion that not only will there be no work in town without a deal, the deal that comes after will be WORSE NOT BETTER. We are on the verge of dire economic times. Television is an ailing industry. We all need to work to survive. The fact that Major Role performers, day players. background players, singers. warm-up performers, and dancers will see higher pay, more jobs and higher network residuals and the highest contribution rate into the Health and Retirement plan known to exist nationwide, must not be defeated.
Don’t fall for the lie that a strike will not happen. This is classic reverse logic.
VOTE YES WHEN YOU GET YOUR AFTRA BALLOT!
AFTRA will be announcing informational meetings all over LA in the coming week. Learn the facts. Ask your questions. I think your choice will be easy. Your dues money is being spent at SAG for a tacitly political fight and has no chance of improving your work life. Thanks for your time.
Matt Kimbrough
Chair, AFTRA Prime Time Negotiating Committee