Or How an Actor/Blogger Does Not Win Friends But Hopes to Influence People

New media residuals bargaining brought the town to its knees during the WGA Strike and SAG and DGA strike threats in 2007 and 2008.The Breakdowns list more and more webisode casting notices by the week. All major agencies support at least one new media desk. Each day, the Internet occupies a bigger part of the working actor’s career portfolio.

But confusion is rife on every frontier. Both SAG and AFTRA vie for jurisdiction on the web, and due to ever-lessening equipment and software costs, that space is more accessible to non-pros than any other broadcast medium.  The lines between amateur and professional can be hard to distinguish. At what point do your improv troupe’s taped sketches need waivers? Do you have to become a union signatory to put your wedding video on youtube? (improv troupe – as soon as you upload the sketches for broadcast, wedding video – well, kind of!

SAG and AFTRA divide web acting into two major categories: Derivative (web work derived from other media, such as the webisodes produced as companions to television’s Heroes and Lost) and Non-Derivative (original content produced for the web, such as the breakout indie The Guild (which was ultimately acquired by MSN). Scores of actors are flexing their creative muscles in web series not only as actors-for-hire but also as actor-producers. For this article I set out to explore the ins and outs of working in low-budget, independently produced non-derivative work, the kind that Minerva’s “enterprising LA actor” is likely to be auditioning for and/or thinking about creating for himself.

The Goods

Unlike AEA’s LORT pay scales or AFTRA/SAG television minimums, non-derivative productions with budgets under $15,000 a minute (which isn’t a hard limitation to meet when you’re shooting digitally), well, have no minimums. The initial up-front pay for an actor’s services is completely up to negotiation between the individual actor and producer. A friend summed it up like this: “In this climate, that means if Angelina Jolie wants to do some webisodes, sure, she might be able to pull a $2000/minute. You and me? Zero.”

Working under SAG and AFTRA new media union contracts, however, does ensure that an actor receives a percentage of the series receipts once the project has been on a platform for an extended period of time and has earned some income. Working union also means Workman’s Comp is provided for on-set mishaps and your employer must make health & retirement contributions based on the fee they negotiated with you. Perhaps most importantly, by establishing compensation frameworks and enforcing them, the unions set precedents for the next rounds of negotiations, when the monetization of the Internet is sure to be more consequential and complex.

Dying to know more about secondary markets, “covered performer” status? Knock yourself out – go here and here and report back! After a couple of hours of that I was opening a bottle of red wine and wondering how on earth I was going to a) disseminate any straightforward practical info as to what an actor can expect when she’s cast in a web-based project (calls to the unions, I suspected, would be long on spin but short on hard numbers) and b) write a story that wouldn’t put our readers to sleep…I know! I’ll talk to creators of series and actors whose work on the web I really admire! They’ll tell me first-hand their experience of working with SAG and AFTRA and I’ll get to showcase the peers I’m really excited about! It’ll be fun, inspiring, a great mix of creativity and business, which is what ACTING ON THE INTERNET IS ALL ABOUT!

You hear that? That’s God. Laughing at my plans.

I spent hours watching web series that had been produced or recommended by friends or that I had discovered through various online tv channels or magazines. I emailed the creators whose work interested me most. I wrote that I wanted to talk to them about their process and business models, imagining that acting union issues would be just one topic in a wide-ranging conversation.

However, troublesome union issues emerged as the prominent unifying theme in all my interviews. As it is Minerva’s mission to first and foremost educate and facilitate the work of ambitious, proactive actors, these matters seemed the most important to focus on. Ultimately, not one of my interviewees had a clean business slate, either because of varying degrees of not-giving-a-shit about acting union jurisdiction or, in one case, making a (fineable) mistake regardless of her best efforts.

Which kind of sucks. Everyone I interviewed had valuable things to say about other aspects of their process, and I’d love to expose our readers to their work and their websites. However, as an online resource for actors, our mission doesn’t encompass whistle-blowing and impeding work. SAG claims it is aggressively enforcing Global Rule One, which bans all members from working non-union. Since the series’ creators, not their actors, consented to participate in this article, I’ve changed all identifying factors about the individual creators and their series (ie, the hospital show doesn’t really take place in a hospital!) in order to protect the actors.

The Newbie

Throughout the fall I’d received an email every few weeks from an old acting class acquaintance whenever he had posted a new episode of his law firm web drama online. But I only tuned recently, once one of the emails mentioned a positive review in an online media magazine. And so there I was, arriving a little late to a very cool party. Once I dropped by the series website (it’s not broadcast on web channels such as www.koldcast.tv) I saw subtle acting, precise writing, and the most sophisticated and evocative camera work I’d yet seen on a web series.

The Newbie immediately responded to my interview request, eager to get more publicity for his fledgling series, and I was looking forward to having an in-depth conversation about work I’d found so affecting. When we got on the phone I said I’d like to talk about his creative process, dealing with the acting unions, and how the project has impacted his career. He paused and said he would not talk about union issues.

I explained that Brains of Minerva is a site that seeks to empower and educate actors. Since there is so much confusion around union issues on the web, an article about working on the Internet would be remiss in not exploring them. I then mentioned I’d be attempting to talk to SAG and AFTRA as well. He said that although he was glad we were diving into all this, he no longer wanted to participate in the article since there was a chance that SAG and AFTRA might read it and research his actors’ union status. The Newbie agreed to speak further as long as nothing would be attributed to him and his series and actors could not be identified.

The Newbie’s series features exceptionally accomplished actors who are not shy about displaying their extensive TV and studio feature credits in their series bios. Clearly they are union members. Didn’t his actors inquire about union coverage before they started work? He said he’d asked his actors if they wanted him to file with AFTRA and they had actually discouraged him from doing so.

But how could The Newbie have not prioritized working under union rules, especially since The Newbie is, himself, an actor?

The Newbie said he felt bad about the situation and wanted to rectify it, but he thought, starting out, that no one would watch the series so why go through the “hassle” of filing the union paperwork? The show’s attention had caught him by surprise, and he was hoping to file “retroactively” with AFTRA (According to the rep I later spoke with at AFTRA, it is not possible to receive retroactive coverage for a project.). I could hear the regret in The Newbie’s voice; he was now missing out on publicity because he had not taken care of his business obligations. The Newbie did, however, suggest I reach out to another series creator, who I’ll call her The Frontierswoman, whom he knew had been working SAG from the start.

I was disappointed to say the least. To ensure that I wouldn’t end up with more interview time I couldn’t attribute, I thought I’d best make sure my other interviews were with creators more experienced and established, who would surely have thought through the consequences of working union or non-union. To do so, I believed a safe bet would be to research the Writers Guild of America’s list of series they’d signed as signatories, find a couple I’m especially fond of, and set up two more interviews with their writer/directors. Besides, I thought, I still had The Frontierswoman and that’ll be totally on the record, and, then, hey what about The Actor, an acquaintance who’d worked on a super-high profile series, which must’ve been union. And there’s always SAG and AFTRA…

The Writer

The Writer is a writer. She graduated from an Ivy-league college only a few years back and has been toiling away as an editor at a well-known mid-sized media company since. Two years after moving to New York City and exploring the comedy scene, she sought a venue for some short play scripts she wrote in college. She’d always been a fan of character-driven shows like Seinfeld, and her web-designer roommate encouraged her to think new media.

The Writer rounded up a few friends from her improv school and began shooting her first season two years ago. The show looks unassuming, with it’s post-college kids rambling about relationship minutiae, but it ends up meandering into unexpectedly delicate emotional territory without ever losing its droll stride. The series is now on hiatus, but The Writer assures me that another season is in the works – she learned it’s important to have an entire season mapped out and shot before she starts releasing it. That way she maintains her viewership with a consistent twice-weekly releasing schedule.

The Writer hasn’t put any money into marketing the series, but through social media networking and word-of-mouth it garners in the “tens of thousands” of viewers when each episode is released. The show is also distributed on a web tv channel and its writing attracted the attention of the WGA, who approached her to become a WGA signatory. She told me she was excited to become a WGA signatory since the union “confers legitimacy on the show” and she wants to be part of the “advocacy and community-building” the WGA is enabling for web-based writers.

When I was researching The Writer’s show on its website, I couldn’t find any credits or bios for its young and talented cast. “Um, your cast is really good, but I couldn’t find credits for them. Is there a Credits page I’m missing?”

“Uh, no, I guess that’s a shortcoming on my part. On some of the episodes the cast names are listed in the tags. I should fix that.”

“Yeah…Do you use a SAG New Media contract?”

“No. We’re just, you know… keeping it loose.”

Keeping. It. Loose.

“Are your cast members in the acting unions?” I asked as I IMDB’ed one of the few whose name was listed the episode tags.

“I think some are.”

Ms. IMDB’ed, it turns out, had logged a good 20 episodes as a regular in a network series, so, yeah, I’m thinking she’s SAG or AFTRA.

“Has none of your cast inquired about you getting a union agreement?”

“Nope.”

Not a total surprise I guess, since none of them seemed to care about having credit on the series, either.

The Writer seemed genuinely appreciative of the talents her actors had bestowed upon her work  and wanted the web to be a place of  creative freedom for all. Unfortunately, she had not recognized that acting union status, like the WGA’s, would also count significantly towards her show’s “legitimacy.”  Maybe she has an excuse, I thought: she’s a Writer. And perhaps her young cast isn’t yet concerned enough about health insurance and pensions and income requirements to learn to advocate for itself.

Thank goodness for my next scheduled interview with The Entrepreneur. As the creator of a well-established, well-reviewed series and a surely a union actor himself (his site bio lists extensive national commercial credits), I’m confident his business dealings will bridge the gap between the inexperience of The Newbie’s and the apathy of The Writer’s.

The Entrepreneur

The Entrepreneur spoke to me as he was wrapping up a visit to a suburban Target before reporting for a commercial he was shooting in the area. The Entrepreneur has been in the business for the last eight years. But while he’s earned his living acting for the last four, he grew tired of “names” snagging the TV and film roles he sought and knew he’d have to take matters into his own hands. Two years ago he set about creating his hospital comedy web series as a vehicle to “show the casting community what to do with me.”

“I’ve always been a do-it yourself-er. Working on something like this gives you a great education in the whole business,” he said. Making his own series is the perfect antidote to the misery he felt (and still feels) going on auditions “where I have no control.” However, at this point in the game it’s the proceeds from his commercials and voice-overs that finance the series. The Entrepreneur is aggressively seeking corporate sponsorship and product placement for the series and has even hired a brand rep to help the search. He sees his series as the first project in his own multi-faceted media company.

Like The Writer’s, the writing on The Entrepreneur’s show attracted the WGA who asked him to be a signatory. He welcomed the chance, and the alliance has gotten him meetings with several literary agents and a studio executive who has asked to look at his upcoming projects. But he was most excited to have the WGA imprimatur because “it will allow me to hire other WGA writers” when his company expands.

The series is on hiatus as he seeks corporate sponsorships that he then hopes to write into the series scripts. He typically shoots an episode in 1-2 days. His actors don’t receive any money, but his three-person crew does because, “I have to pay the crew.”

What about SAG/AFTRA agreements? The Entrepreneur acknowledges that he uses union actors (including himself), and says getting SAG/AFTRA signatory status is “on the list” but hasn’t been a priority.

Have none of your actors asked for a union agreement?

“You know actors,” he said. “Give them a part and a camera and they’ll do anything.”

The Frontierswoman

Conversely, getting a SAG Agreement was one of the first items on the The Frontierswoman’s pre-production to-do list. She began making her series as a showcase for her acting and writing back in the webisode dark ages of 2007.

“I wanted access to SAG actors, and it never even occurred to me that I could do that without a union contract,” she said.

The Frontierswoman has been working with the same SAG rep since she started and says that, for the most part, the rep has been extremely helpful. Her initial contract with the union allowed her to pay her actors whatever she negotiated with them and no residuals. That contract has since been revised. She still has the freedom to negotiate her actors’ pay rates, but if she is still broadcasting the material after six months and it earns money, she must divide 6% of the gross receipts among her actors.

When she saw her initial contract she became alarmed at all the business-speak her acting training had done little to prepare her for. She asked her rep about setting up systems for the W-2s, Workman’s Comp, etc. that were mentioned as her responsibilities as a producer. Her rep, however, pointed out that these were necessary only if and when she made money, and that she could “cross that bridge” when she comes to it.

Lo and behold, she actually made money. A friend from junior high found her on Facebook, took a look at her series and liked what he saw. He worked for an advertising company that pitches web series to companies seeking product placement on the Internet and asked to pitch her series to clients. Another web series bought a mention on her show, which resulted in a $2,700 windfall.

And it turned out to be a rather expensive bridge to cross. The process of setting up payroll for her actors turned out to be far more complex than she imagined. She set up an LLC, which incurred filing fees. She also had to pay for Workman’s Comp insurance, payroll taxes (which she estimated to be 20% of each actor’s fee), SAG Pension/Health contributions (13% of the actor’s fee), and fees for a payroll service to process it all. She initially negotiated a deferred pay-rate of $125/episode for each actor. With the attendant fees, paying her actors $125 was nearing $200, and a lot of headaches.

Would she go union again knowing what she knows now?

“That’s a good question…Yes, yes, I would.”

She sees the acting on the Internet as a big opportunity and wants to help actors ensure their well-being. “I want to be a part of the conversation, of the process of change,” she said.

If she were to do it again, though, she would factor in the payroll costs to her initial negotiations with her actors. She also hopes SAG is taking money-making on the web more seriously for beginning producers. She would have liked to receive a check-list from the union as to what she needed to set up, but thinks that “SAG is so scared of being liable for anything in case you screw it up that I think they just leave you on your own. I think they’re used to dealing with film producers who have a lot of business training in film school. But with web shows it’s actors who are doing a lot of the producing and that’s not part of our training.”

As we were ending our conversation The Frontierswoman asked when she would get a copy of my article to approve. I was surprised at the request; it’s against all journalistic standards. I explained as much, and she became agitated.

“I gave you a lot of really sensitive stuff…” she said.

What exactly was she concerned about?

”Uh, yeah, what am I concerned about? It’s just the…Workman’s Comp…”

“Ok, I think what you’re saying to me is that you should have set up Workman’s Comp before anyone set foot on your set. You feel your SAG rep led you to believe that you only need to do that ‘if you make money’ and making money was such a long shot that you didn’t do it. You did it only once you made money and you had to start paying people. You don’t want the state to read this article, connect the dots, and fine you.”

“Yeah, that’s what I’m saying. It would suck if I got in trouble, because I’m the one who tried to do everything right.”

While neither The Frontierswoman nor her actors had violated union rules, she had committed a business labor infraction and it became clear that she had not understood the consequences of responding to a press inquiry. Reluctantly, I made another assurance of anonymity.

The Actor

Unlike the other shows in this piece, the series The Actor appeared in was co-produced by an internationally famous producer and one of the preeminent web production companies. I saw the series when it was released earlier in the year and thought it had the slickest look and best editing I’d seen on the web. And the fact that I actually had seen it spoke to the marketing money behind it. Finally, I thought, I’ll get some insight on how an actor working in a well-oiled new media machine interacts with the unions.

The Actor, an LA transplant whom I knew from NY theater circles, saw the casting notice on ActorsAccess and was attracted by the big-name producer. Finally, I thought. I’ll get some perspective on how a big production company deals with union actors.

The Actor was paid $100/day up-front and shot 10-12 days over the course of three weeks. He said he was treated well and the series had yielded the best-looking footage on his reel.

I asked him if he was working under a SAG New Media Agreement.

“No, it was non-union. It said that on ActorsAccess. I’m not SAG.”

“But you’re AEA,” I said.

“Yeah, but this was on-camera.”

“As a member of any of the acting unions, you’re actually not supposed to do non-union work if it falls in another acting jurisdiction.”

“Really?”

This wasn’t the first time I’d heard this from an otherwise-savvy actor. The “reciprocal agreement” barring union members from doing non-union work in other jurisdictions seems to be a little-known and little-enforced union rule. Nonetheless, it exists in each of the 4 A’s for a reason. A SAG rep once summed up for me like this: “(If producers could hire union actors from another jurisdiction) then all film producers would only hire AEA actors and vice versa because they’d be getting employees with a comparable skill set without having to pay minimums, benefits, etc.”

“Yeah, you know Claire,” said The Actor, “I kind of remember that from when I joined AEA. But, you know how it is… It’s so hard out here…(by bringing up your union status) you don’t want to be that (read: difficult) actor…”

AFTRA Wants to Sign Your Garage Band

No, no one wants to be that actor, but it’s going to be harder and harder to earn money as an actor if we can’t maintain and improve union coverage in new media.

Jennifer Holland is an AFTRA Business Representative and Organizer who works on new media projects. Summarizing AFTRA’s achievements in its last round of new media negotiations, Ms. Holland stresses that AFTRA accepted the same agreements from producers as did the WGA and DGA, which, unfortunately, means that there are no residuals due actors on web projects with budgets under $25,000/minute. AFTRA did, however, earn Health and Retirement contributions based on the fees negotiated between the actor and producer, late payment penalties, and access to the licensing agreements from the major studios (which will be used to determine how much money web projects are earning and thus affect future contract negotiations).

Since becoming an AFTRA signatory doesn’t increase an independent producer’s start-up costs, why are so many afraid of the process? Are they concerned that having union obligations might deter a distributor down the road, cutting off their chance at earning back their investment and reaching a larger audience?

“Yes, yes, it could be,” she admitted. “Unlike television and film, the distributors on the web are not the usual suspects and aren’t used to dealing with unions. There are exceptions, like Crackle, which is SONY. Basic cable companies can be shy to sign on, but those are ‘supplemental markets’ and only 3.6% of gross receipts are divided among performers.”

I told her that, after talking to several producers, I suspected the perception of going union was more onerous than the reality. What is AFTRA doing to educate producers about the procedures and benefits of working with union actors?

One of the most difficult parts of job her is in fact identifying who those producers are since more and more small production companies pop up each day. “We’re really dependent on our members telling us who’s producing what. I do reach out. I do panel discussions (there is in fact one tonight in LA), I reach out to Tubefilter and The Vault.” She also holds open office hours on Friday for members and producers who want to ask questions. You can email Ms. Holland at jholland@aftra.org.

“So would you say that you’re putting your resources, as a union – in order to advocate for your members in new media – towards finding the producers and educating them rather than on focusing on disciplining members who choose to work non-union?” I asked.

“Umm…” she said. “Yes, I would say that…Look, I’ve always thought the hardest part about being an actor is waiting for the phone to ring. Your world is dependent on someone calling you. I’ve always envied musicians and painters because they can just go practice. But the Internet is like the actors’ garage band. I want to foster that. I want to show them how to be business people.”

The Fortress of SAG-itutude

So, if AFTRA is “not focusing” on members working non-union, what’s SAG’s stance on the matter? SAG has been vocal in its threat of enforcing Global Rule #1, which bans members from working non-union. And what is SAG doing to educate producers as to the process and benefits of working with union actors?

I wish I knew.

I left a message with The Communications Department at SAG last Wednesday with the subject matter I wished to discuss (issues regarding SAG members working in new media) and my deadline, which at the time was last Friday. I received a return call on Thursday at which time the Communications Director told me that she would be unable to speak to me for several days due to her schedule, but that everything I needed to know about acting on the Internet was “on the SAG website.”

“No, it’s not,” I said. “I’ve spoken to several independent producers, many of whom are using union actors and are not signatories, some of whom are SAG members themselves. There seems to be a dearth of information out there for independent producers and I want to know what SAG is doing to change that.”

“Oh, that wasn’t in the phone message.” She repeated that she was out of town and could speak when she returned.

“That’s too late. Isn’t there someone else I can speak to at SAG? I’ve had a long conversation with AFTRA and I’d like to get SAG’s input.”

She asked whom I’d spoke to at AFTRA so that she could arrange a talk with someone of similar position at SAG. We extended the deadline of this story to accommodate such a call, but as of yesterday, I had not heard from SAG.

A Thing for the Kids to Do

The story wouldn’t be complete without some SAG perspective, though. Through a friend I was put in touch with Richard (not his real name), a longtime SAG member who has kept a close eye on new media issues.

Richard (a dual-card holder in SAG and AFTRA) surmises that the rates producers pay in non-derivative for extended use, etc. are very similar in SAG and AFTRA.

Richard hears stories all the time about members doing non-union web work. While it’s commonplace, he thinks it’s (increasingly) dangerous. “SAG is really putting it out there that it’s a violation of Global Rule 1.”

I then told him the story The Frontierswoman had relayed to me about what she experienced as her SAG rep’s underestimating her need to set up her business structures before the cameras started to roll. How could this happen?

“For years,” he said, “everyone at SAG thought the Internet was a little thing on the side thing ‘for the kids to do.’ No one thought anyone would make any money off of it. Now, it’s different.”

From www.sag.org:

Screen Actors Guild’s purpose in enforcing Global Rule One is to educate members that a union contract is mandatory if SAG is to be able to continue to fully protect them into the future. Members who violate Rule One could be required to appear before a Trial Board conducted by a group of their peers. A Trial Board has the authority to Discipline to impose fines, suspend, or expel a member from the union.

“No member shall work as a performer or make an agreement to work as a performer for any producer who has not executed a basic minimum agreement with the Guild which is in full force and effect.” – from the SAG Constitution

In plain language, that means that a SAG member must always work under a union contract, and must NEVER work non-union.

What It Is to Work

What I initially conceived of as a “dry” piece for Minerva has been the one, by far, that has stirred up the most complex and difficult feelings: anger at encountering the disregard actors have for their own work, sadness at hearing the feelings of desperation that justify ‘working’ at any cost, and ultimately having to confront my own shortcomings fulfilling my responsibilities as a union member. While I haven’t worked on non-union projects, I have been content to let the negotiating committees sort through facts and figures, thinking my cocktail party comments were a sufficient way of making my “union voice heard.”

Obviously, my survey wasn’t scientific, and I’m sure there are several producers out there who have their union ducks in a row and actors who ask them to. However, if I uncovered this level of apathy in my sampling of series with the otherwise most serious credentials, I suspect this disregard for acting union status is pervasive.

For most of us, earning union membership is a milestone in our careers, a sign to our friends, families and ourselves that we are ‘legit.’ We applied great diligence to earning the work that would give us our union cards and, along with them, greater professional status, access to more/better auditions, and health and retirement plans. But being a union member means always being a union member, not just when it’s convenient for us. And right now, part of that job description entails facilitating our unions’ abilities to get coverage for work in new media.

While sorting all this out is a huge burden for this acting generation, there simply won’t be future professional acting generations if we don’t take it on. It’s also a huge opportunity – to effect change, to be “part of the conversation,” as the Frontierswoman said.

Here are some ways you can make new media a better place to work:

·Attend a Union Info Session/Panel discussion (again, AFTRA is holding one tonight, Dec. 10th). Ask your local SAG/AFTRA office to host a new media discussion at your acting school/university/alumni association/networking group.

·Share your experience: Take SAG’s New Media online survey (it takes less than 5 minutes) and read it’s New Media FAQs.

·Know the terms: SAG’s got a great glossary.

·Know the players: Tubefilter is a great resource.

·Watch the work: Poke around on KoldCast and vimeo.

·Get the work. Send your online casting materials to the creators you’re interested in working with. One good part of the Wild West aspect of new media is that the creators are accessible and looking for collaborators.

·Hold some hands. If you know a producer who’s reluctant to become a signatory, ask her why and bring up these issues with your union New Media Reps. They want these projects to be union – they might have access to facts or be able to offer a work-around that your producer isn’t aware of.

UPDATE: We are thrilled to have finally gotten a comprehensive interview with the New Media Department at SAG. Check out this piece we did in July 2011 which has lots of info on the department, where it’s going, and how you can help. The post includes a tip-sheet on how to get reluctant producers on the acting union band-wagon.

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