At this very moment, you and the rest of the world may already know the results of the SAG-AFTRA 2023 contract negotiations.
Did the members ratify? If it’s a “Yes,” how significant is the winning percentage? How significant is the total membership percentage? Who bothered to vote?
Or has yet another long-held pattern been broken by an unprecedented “No” vote? If it is a “No,” does that send Hollywood and the sister unions into unparalleled chaos? While I’m a gambling man, I did not offer any predictions in my column last week.
I will, however, provide a very truncated version of the options and terms achieved in the Memorandum of Agreement (aka M.O.A.). Please know that this is merely a truncated overview of the negotiated contract points most members view as priorities during this 3-year negotiation cycle.
Even well-educated and highly successful actors are not necessarily expected to know their work contracts inside and out. For starters, the entire C.B.A. (Collective Bargaining Agreement) is in the ball park of 1,200+ pages when you include the Television Agreement. Since approximately 2014, post negotiations, SAG-AFTRA has focused on the M.O.A. as it contains the new language of the contract. For the first time in history, due to immense effort from the “No Vote” campaign, SAG-AFTRA released the full M.O.A. during the ratification process. While a small percentage of the membership likely read all 128-pages, I doubt they’d want to be quizzed on how much they recalled, retained, comprehended or can actively apply to their daily lives. This is why we have representatives, as well as for many successful actors, personal entertainment lawyers.
Let me also toss out a couple of disclaimers in that the valuation of our M.O.A. is on or about one billion dollars and can change over the course of what is now 2.5 years, or until this contract sunsets on 6/30/2026. There are multiple categories of the full C.B.A. represented, as well as dozens of covenants and clauses for each, culminating in a high degree of complexity. Therefore, I’m only going to hit some of the main categories that I know the active members have stated as a priority. Also, I have purposefully avoided specific fiscal valuations over the life of the contract, as many are usage dependent and can be subject to adjustments over time.
The short list of key collective bargaining elements, found in the SAG-AFTRA M.O.A., I’m choosing to review are as follows: Minimums, Pension Caps, Background Performers, Self-Tapes, Streaming Residual Bonus Fund, Relocation fees, Per Diem, Performance Capture, High-Budget SVOD & AVOD streaming residuals, and of course, A.I. – Artificial Intelligence provisions. Again, to reiterate, there are dozens of other contract gains achieved in this negotiation but these are most often viewed as either the financial or mechanical priorities upon which most voting members may have based their vote.
Minimums are quite easily defined as simply the percentage increase of an actor’s minimum wage and all other areas in our contract applicable to our minimums. Remember, the SAG-AFTRA contract in its entirety is a “Minimums” document. Any employed actor always has the right to attempt to negotiate higher terms for all sorts of areas within our contract. The minimums negotiated are 7 – 4 – 3.5 % increases respectively per each year of our contract. The key to the first year is that a 7% increase, while NOT large enough for many “no” voters, breaks the historic pattern with what the WGA & DGA achieved, and is a huge win for our negotiations.
Pension Caps limit the employer’s financial contribution responsibility to an actor’s pension, either in television or theatrical, programs. The pension caps prior to this negotiation had not been increased in 41 years and a 42% increase was achieved. Caps are based on cumulative earnings, both initial compensation and residuals, up to a single cap. Once a performer’s total earnings hit the cap, no additional earnings – aka, initial compensation and/or residuals – are counted towards Health coverage and Pension credits. A very over-simplified way to view an initial compensation cap would be if you were making $50,000 per week on a ½-hour television show, previously the employer would only have to contribute up to $17,500 of that picture/episode amount but that cap has now been increased to $25,000. The employer’s now being responsible to add contributions on the additional $7500, weekly in both ½-hour and hour programming is millions upon millions of dollars annually. Pension caps for hour-long programming increased from $24,500 to $35,000 which means contributions on potentially an additional $10,500 on every episode of an actor’s employment. Pension cap increases have been ignored for 42 years, so, yes indeed, another big union win.
Background Performers, aka BGs, are often the most marginalized in the SAG-AFTRA workforce. In this negotiation, the background community achieved a number of incredibly long-overdue increases:
1.) 11% wage increase
2.) In the face of A.I., all human hiring minimums were retained.
3.) Nationally, the background coverage was not increased, but schedules X1 & X2 equalized their minimums West and East. Television requires 25 and Theatrical pictures 85.
4.) Any background performer hired to perform simulated sex or that requires nudity shall be given 48-hour notification prior to their work date.
5.) Background is also included in the Employment-based A.I. provisions in that they received 48-hour notification with “Consent & Compensation” plus P&H.
6.) If a BG player is given a speaking line via the use of A.I., they’re upgraded to principal performers, which includes residuals. While there are other gains for BG performers, these six are the covenants most commonly discussed.
The “Self-Tape” issue was of paramount priority in this negotiation cycle, as it affects more than 98% of the membership on a weekly basis. Due to the perceived ease of technology, expecting actors to “do-it-themselves” became a form of employer abuse during COVID. One of the key covenants that we did not achieve relates to actor notification of an “offer out or the role is already cast” without our knowledge, thereby potentially wasting our time still making the effort to provide a self-tape. However, we did achieve an initial self-tape page limit of 8, and a second self-tape at 12 pages. Additionally, a minimum of 48-hours is required from time of notification to the due date/time which excludes weekends and holidays as well. Memorization cannot be required, an actor may request a zoom or in-person audition and receive whichever is offered, as well as some privacy and storage restrictions for our employers. Lastly, the basis of the job opportunity and the self-tape upload process cannot require the actor to pay additional monies.
Our brand new Streaming Bonus for High-budget SVOD programs & Streaming Payment Distribution Fund includes: Seasons of series, mini-series and long-form pictures that have initial exhibition aka airing on-or-after January 1, 2024. A success payment shall be due if the viewing time in the first 90-days of each exhibition year is equivalent to the production being watched by 20% or more of the domestic subscribers. Now, further explanation of this can get wonky, so let me be sure I note this is for every year, not just year one. Also, the success metric is a calculation of domestic views and subscribers. The bonus shall be equal to 100% of the applicable fixed HB SVOD residual payable for the applicable Exhibition Year for the Picture. Then, 75% of the bonus money will be paid to the performers whose pictures are triggered by the formula. Additionally, a Streaming Payment Distribution fund yet to be fully defined, exists for the remaining 25% of the monies triggered. The exact methodology of how that 25% will be distributed shall be determined by mutual Trustees. To this, note that this fund money is in ADDITION to the streaming residuals improvements – see below – not in place of, to be extra clear.
Prior to this negotiation, and this is only applicable to Series Regulars, if you were hired and had to relocate to shoot an on-going show you only received a one-time Relocation fee. The old flat $10k rate was for 2 or 4 seasons depending on the series order of more or less than 13 episodes. Now, we achieved $5K per month for a maximum of six-months per season. However, the new rate, is uncapped on number of seasons. Essentially, the per season max tripled and it is uncapped so now you get it, no matter how many seasons your show goes.
Per Diem, which is our daily meal allowance, has not been increased for decades and we achieved two increases during the term. The second increase, which occurs two years from now, will bring per diem up to 25% more than at present.
Performance Capture has existed for decades. When you think of movies such as Avatar and many others, they’re based heavily on this type of work. Until now, coverage was not stated affirmatively in our contracts. But with these negotiations, Performance Capture is affirmatively covered. The producers confirmed that Performance Capture Services are covered work in live action theatrical and television motion pictures, as well as animated theatrical motion pictures, subject to some conditions. Now, again, this can get really long and complicated, and while finally after 20 years to achieve this is a huge win in many ways there are a number of dissenting PCAP/MoCap – motion capture – performers who feel the provisions are insufficient. There are some MoCap items that are not covered and those affected should read the M.O.A. carefully.
High-Budget SVOD & AVOD streaming residuals is one of the most confusing aspects of our entire industry. Trust me, I took calculus twice, and it makes my head spin. So, to assist, I have to keep this fairly basic for us all. We made several advancements in our streaming residuals which are terrific but some of what was gained seems to be easily missed due to the nature of the specificity:
1.) The applicable ceiling figure upon which an SVOD residual can be based gained an increase of 2.5%.
2.) Formerly with our subscriber tier residual structure there were Tier 1 at 20% of subscribers and Tier 2 at 40%, then the monies even increased more when you reached Tier 3 at 65%. We negotiated away Tiers 1 & 2 making 65% the lowest domestic subscriber factor.
3.) Residuals for foreign affiliated SVOD services will NOW be calculated based on foreign subscribers v. 35% of each year’s domestic residual. Again, the multiple-tier calculation can get crazy but, overall, it’s approximately a 71%+ increase in foreign SVOD residuals.
4.) Grandfathering is eliminated for new seasons of any ongoing series which no longer allows them to pay residuals based on old formulas and lower ceilings as the show continues.
5.) Please know that any platform with both subscriptions without ads and lower-priced subscriptions with some ads options has always still been under the SVOD terms. However, previously we had not achieved union minimums for HB AVOD initial compensation or residuals for original programs on AVOD only. With the potential advancement of F.A.S.T. – Free Ad Supported Television – growing more and more streaming platforms, which might mean more high budget programs made for free streaming, with this contract we have established AVOD terms for compensation, working conditions and residuals formulas that tap into revenue (Distributor’s gross receipts) from free streaming.
A.I. – Artificial Intelligence provisions can involve well-trained legal minds, so I’m going to have to TRY and keep this clear, concise and simple as I possibly can. Please review my two previous contributions on 11/22 and 11/29 to have a more general and psychological viewpoint on the A.I. invasion into the moving picture industry as it pertains to the performer/actor. Essentially, there are four main actor-related A.I. categories:
1.) Employment-Based Digital Replicas (EBDR)
2.) Independently Created Digital Replicas (ICDR)
3.) Digital Alterations
4.) Generative Artificial Intelligence (G.A.I.) aka Creating Synthetic “Fake” Performers, which requires A.I. training. For simplicity it’s necessary to break these up and keep it generic so as to not confuse anyone.
Employment-Based requires 48-hour notification, clear and conspicuous consent, and compensation be it within work-time or outside of it. Also, all work days for which a DR may be used, include P&H contributions as well as residuals. Essentially, you’re be paid just as before, but without your physical presence. The key is that your DR is strictly limited for only the one picture/show/episode unless additional bargaining is negotiated. This would also be applicable to anyone who is now dead (see below) in the ICDR
Independently Created Digital Replicas is the same as above but it will be used in a picture you aren’t otherwise hired to work on. Realize it currently costs $10-20K to make a real working-walking-talking DR and it takes weeks to do so. This is not something the BG, day performer, or even guest star actor will likely have come their way any time soon. And while some have argued that you have to “bargain the specifics” yourself you do have the Employment-Based DR above to use as a model if you’re not a star with the same protections.
Digital Alterations get incredibly complex but also know that these have been done for decades. Think of the movie actor who curses, then it has to be changed electronically, for regular television. A.I. just makes some of those alterations much easier. However, this contract negotiation still requires clear and conspicuous consent, a reasonably specific description of intended alteration but only when substantially NOT as scripted. The same applies to protections that continue for the actor beyond death. Yes, there are some naysayers who do not like the potential loss of work, per voice matching and foreign dubbing, but altering original performances such as looping and your individual performance are protected.
And now for the scary monster out there, Generative A.I., which establishes terms for use of “Synthetic Performers” aka “Fakes,” created through generative artificial intelligence. What does that mean? It means A.I. engineers put three or four actual human scans, pictures of a person and even social media images into the A.I. blender and invent a completely new person. No nothing on the new person can look like you, if you were put into the blender. Yes, producers are required to inform SAG-AFTRA when any real person is used for G.A.I. training, as well as giving the union the ability to bargain in good faith over appropriate consideration if the Synthetic performer is used in place of a performer who would have been engaged under this agreement in a human role. Yes, there is a ton more to this, but it does become head-spinning and very legalese oriented, however, we have terrific protections. Yes, also, the background performers are protected as well in instances of digital alteration and G.A.I.
In closing, the movement of “No” voters mostly point out that A.I. will create a “condition of employment” and that there are many loopholes. And yet, with respect, forms of a condition of employment have existed for decades such as nudity, more pay, bigger trailers etc. Also, for the most part, the cost/time factors for real life DRs are not coming for me or you, tomorrow. Typically, when I discuss the loopholes per the SAG-AFTRA provisions it tends to NOT be about what is missing but about “what if” they BREACH the contract. All I can say to that is, they probably will, and that is why you establish fences and provisions, so that you have a legal leg upon which to file claims, create lawsuits, monetary remedies for our members and then in future negotiations use all of that information to force even more specific provisions based on case law. I’d love to believe that this strike, this negotiation cycle and this union could just STOP the concept of A.I. and while battling that monster also have won everything anyone would ever want in our contract. But there is a reality to how much you can win in one moment. Could we have gotten more if our TOP A-list stars would have demanded it? Probably. But even with the existential threat of A.I., the inflation issues over the last 5-8 years and a 118-day strike we still couldn’t get them, those 30-40 individuals to fully stand against the CEOs publicly for the rank ‘n file.
There are amazing gains in this contract, and there are obvious things missing or that just didn’t quite get as high as we all would have liked, but I have to say, with a negotiation package at least 3 times the size of any in our history, we did get quite a bit. So now, look at the vote, and if it was “No” well – looks like we’re going back to the drawing board, literally. If it was a “Yes”, then perhaps get more involved and learn how you can help over the next 2.5 years from now, get even more than what we did this time.
Why? Because YOU are the union.
Kevin E. West is a veteran television actor with nearly 70 credits including guest starring on The Righteous Gemstones, Hawaii 5-0, Criminal Minds, Bones, Castle, CSI: Miami, Justified, Leverage, Lost, 24, Desperate Housewives, NCIS, Alias, CSI, and dozens more, as well as a former stand-up comic.
Kevin has been a national speaker since 1991 including: the WGA, SAG-AFTRA, UCLA, and A Date with Hollywood panel (Swedish Film Institute-Stockholm). As the Founder of The Actors’ Network, Kevin is an expert on the ‘business of show business.’ The Actors’ Network is the most endorsed actor’s business organization in the U.S., with consecutive BackStage West “Reader’s Choice” awards (06/07). Alums include Emmy Nominee Masi Oka (Heroes), Chelsey Crisp (Off The Boat), Chris Gorham (Ugly Betty), and Maggie Grace (Taken).
Kevin is considered by many to be the top educator for the Business of Acting. He created, the interview series ActorBizGuru, voted the #1 online educational resource by BackStage West and co-Authored the audio CD, The Actor’s Guide to GETTING THE JOB. You can read more of Kevin’s “The Acting Biz” columns here.
Kevin E. West on X (formerly Twitter)
