LOS ANGELES (Hollywood Reporter) - For actors, image is everything. And misuse of that image is enough to take someone to court for using it without consent.
Over the years, performers have done just that. From Arnold Schwarzenegger suing a car dealership for using his picture as the “Terminator” in an ad, to Fred Astaire’s widow stopping the use of the iconic dancer’s image in a series of instructional dance videos, “right of publicity” lawsuits are sometimes the only ways an image can be protected. And while a handful of states, including California and New York, have laws on the books protecting a name, voice, signature, picture or likeness for advertising or other uses, the majority do not.
So what happens when a major Hollywood studio wants to sell off film or TV clips of actors without full consent? Are those rights still protected?
The answer is no.
It should come as no surprise to those who followed the 18 days of labor talks between the Screen Actors Guild (SAG) and the studios that one bone of contention was a proposal allowing the studios to set up an online clip library. Under the proposal, the actors would still be compensated for sales of their TV or film clips, but give blanket consent to their use.
The proposal creates a conundrum. Studio contracts generally take precedence, but the guild’s current agreement with the producers gives their members the ability to have a say in clips used outside the scope of promotion.
There’s no dispute the studios own the clips. But for SAG, giving up control of their members’ images is a hot-button issue that could heat even further later this month, when talks are expected to resume.
Since 1960, SAG has negotiated with the studios an agreement that limits the use of their clips for purposes of such things as promotions and trailers. The studios have to get clearance from the actor for anything that falls outside that scope.
“What we’re talking about here is a huge rollback to the existing contractual obligation that our members have,” said Duncan Crabtree-Ireland, SAG’s deputy national executive director and general counsel. “Our contract specifically says that they will not make any other use of the excerpt without negotiating with the actor.”
The studios, represented by the Alliance of Motion Pictures and Television Producers (AMPTP), believe setting up a clip library database is one way to combat illegal use of the footage. In a memo sent to its members May 7, the AMPTP said the primary issue with SAG is the use of clips for nonpromotional uses.
“Such clips are already widely available on Web sites and video-sharing services as a result of Internet piracy,” the AMPTP claims. “A legitimate market would generate payments for guild members by, for example, giving consumers the ability to legally purchase clips that they might otherwise obtain from an unauthorized source.”
An AMPTP spokesman declined further comment.
What scares SAG is what the consumer might use its legally purchased clip for, said one union insider.
At first, SAG negotiators thought the AMPTP was proposing a clip library for promotional use, but as discussions continued, they realized it was for use for anything, the member said. This would include video mash-ups, like the Internet favorite “Brokeback to the Future,” which has had 4.9 million views on YouTube; or “Titantic: The Sequel,” which has been viewed by 7.3 million YouTubers and uses at least a dozen clips from various Leonardo DiCaprio movies and other films.
Other uses for the clips could be packaging for sale things like the best screen kisses in Paramount Pictures history, according to the member.
And there’s always a chance the clips will be used in a way that’s considered crude by many, such as the YouTube video featuring Canadian musician Peaches’ foul-mouthed “F—- the Pain Away” paired with footage of beloved Muppet icon Miss Piggy. That video, added a month ago, already had 323,658 views as of Wednesday.
“It’s frightening to us,” said the insider. “And it affects us more so than the writers and directors. We’re always worried about overexposure.”