Performers in "Broadway's Lost Treasures" DVD Series Threatening to Sue- Page 3

[SueleenGay]

Posted: 3/3/07 at 12:22pm

Switz, the reason I brought up the Equity issue had nothing to do with talent. It had to do with the premise that the Union is there to protect you and ensure you are treated fairly and compensated at a decent wage. The people here who are suggesting that these actors suck it up and be glad they are getting "exposure" are not in the Union yet. You can't have it both ways.
There is also the ever present sense of entitlement that overflows on these types of topics. "It is ON tape so therefore I DESERVE to own it! Legal issues be damned!" As witnessed by Capt.Hook's endless whining about getting all the Rosie O'Donnell shows released on DVD.

[bk]

Posted: 3/3/07 at 12:48pm

"I remember when Broadway Theatre Archives was first being set up. Most of the delay in getting set up had to do with legal rights to copy and sell the plays. In this case each play had been telecast on PBS a number of years ago. There was no VHS or DVD technology at that time. They still got the legal go ahead to create and market the tapes. I wonder if copying the Tony award performances might have a similar legal basis? (I'm no lawyer so this is just speculation)."

I can speak to the above personally - since back in my acting days I appeared in one of the plays taped for Theatre In America, shown on PBS once and then put away, seemingly forever until the Broadway Theatre Archive began selling them. I was thrilled to see that the show I was in was included in the batch they were selling, because I hadn't seen the show since it was televised and I obviously didn't have a copy.

I had to buy a copy. I was never contacted in advance about the release. I have never received a royalty and/or residual from the release (all these shows were done through AFTRA). I'm sure I never will receive anything because I'm sure they've sold all of five copies (one to me). On the other hand, I'm really happy to have a record of my performance (I'm even on the cover of the DVD) and am glad that others can see the wonderful play and the performances of such terrific actors as Geraldine Fitzgerald, Joseph Maher, Donald Moffatt and Tom Hulce (his first big job - he was understudying in Equus at the time).

[CapnHook]

Posted: 3/3/07 at 12:49pm

Sueleen, and I shall continue to whine until I am completely satisfied, God help you.

As for the quote "It is ON tape so therefore I DESERVE to own it! Legal issues be damned!" - I don't think anyone here has said anything to that affect. People have argued "it's been on DVD for years, why bring it up now?" and people have argued "theatre should be preserved on DVD."

We're talking Tony Awards performances, here. Not a televised engagement where they were paid. When I was in the sixth grade, our middle school's performance of BYE BYE BIRDIE was broadcast on the school district's network TV channel. I never signed a release allowing them to broadcast my talent. Maybe I should sue them? They did it the next two years as well with ANNIE and PETER PAN. I never knew they were even telecast until I was in high school! (DAMNIT, I SHOULD BE COMPENSATED!! THOSE BROADCASTS COULD RUIN MY IMAGE! I'm gonna sue!!! Oh. Wait. I don't care.)

And as for the whole Equity situation: yes, the union is supposed to protect you (and Switz, what does talent have to do with this lawsuit?). However, if this happened to me, I wouldn't sue the producers of LOST TREASURES. I'd be suing AEA because they failed to protect me and that's what I pay/paid them for.

And that's the principle of the thing. That is what can damage your image or "exposure" or whatever reasons they are suing for. And I say go for it, if those are their intentions.

On the other hand, if the performers are simply thinking "I wonder if I should be making any money off of these DVDs?" then I do not agree with them. For situations of recent productions, I would. If Kristin Chenoweth is one of the ones suing over her performance in YOU'RE A GOOD MAN, CHARLIE BROWN - that's very recent. VHS and DVD technology existed in 1999. She has a case. However, if it is Carol Channing suing over "Before the Parade Passes By" then times were different back then. There weren't DVDs and I don't believe the VHS existed, neither. While she might have the "right," she doesn't have the "legal right" (from what I make of the law).

And that's if you want to talk legal sense.

Artistically, no, I wouldn't care if my Tony Awards performance was sold on DVD. Doesn't matter if I am not Equity. Awards shows are a celebration of your craft (and a publicity tool).

Updated On: 3/3/07 at 12:49 PM

[SueleenGay]

Posted: 3/3/07 at 1:49pm

Then they should be giving the DVDs away, not selling them. Then your argument might hold water. As long as they are being SOLD the actors have a right to a cut. Period.

[best12bars]

Posted: 3/3/07 at 2:40pm

Again, sueleen, I agree with you.

bk--I'm curious... Would your attitude be less resigned if this DVD of your production had sold over a million copies? Or is it because you have no legal claim to any profits from such a product to begin with?

And capn wrote: People have argued "it's been on DVD for years, why bring it up now?"

It takes a while to organize a class action suit. Are these people operating on a clock of some sort? The DVD producers and distributors ultimately released three volumes, plus a bonus "play" volume if you bought the box set. Would they have released more than Volume One if it wasn't selling well and making them money? Don't think so. But I'm not sure I get your point as to time-limiting. These performers have obviously looked into it carefully, checked out all the contracts, done a lot of research, contacted all the parties directly involved... and now they're taking action.

I don't know if they have any legal rights here... but "why didn't they act sooner" doesn't even make sense as a complaint.

On a similar note---My dad's best friend was Herk Harvey, who directed and starred in a cult-classic horror movie "Carnival of Souls." Herk passed away a few years ago, but starting about 10 years before he died, his movie was suddenly getting worldwide acclaim. It included a theatrical release, film festivals, countless home video and DVD releases, including a 2-disc special "Criterion Edition." And unfortunately the rights to the film had lapsed into public domain due to a clerical error many years earlier. Herk had no legal leg to stand on, and so he just enjoyed the ride. He knew he wasn't going to see a dime for it, but he went to the festivals, was interviewed in many national magazines and newspapers, and he participated on camera for the 2-Disc DVD. He also supplied Criterion with his own original negatives of the film. I asked him if he had any legal claim to profits would he have pursued a law suit, and he said, "Hell yes!" But since he didn't, it wasn't worth being bitter or vocally disapproving of the whole thing. Just let it be what it is. He has a legacy now, and many people have been exposed to his film over the years. He was very proud of that. And the money wouldn't have changed it. Yet, he would have gone after his fair share, had he been entitled to it.

My hope is that if these performers don't have any legal claim, they should show the same class that Herk showed. This is their legacy, just as "Carnival of Souls" is Herk's. Why stamp that out just because you "feel" you've been cheated?

However! If there is a genuine legal claim here, and they are owed money (or they never agreed to such an arrangement for home video sales), they have every right to go after profits. I would be disappointed in them if they didn't. And the illegal leeches of the world should take note and be warned against future business ventures.

Updated On: 3/3/07 at 02:40 PM

[Toon]

Posted: 3/3/07 at 2:45pm

I'm all for actors getting compensation when it's deserved. But c'mon. In a collection of performances like the Tony Awards, how much money is truly to be gained in the first place? It's not like we're talking about record breaking dvd sales here. If you go back and compensate every performer in all of these broadcasts, would it even be possible for the dvd to be released at all? In these types of situations I feel the performers need to weigh the odds of what is to be gained. A few measly dollars to make themselves happy and perhaps hinder anyone from wanting to consider future releases, or accepting that it's not always about "what do I get out of it". Now, I'm not saying producers of the dvds should be solely profiting, but there has to be some kind of middle ground when hashing out rights here. Theater performance dvds don't exactly top the charts, and if theater fans want to continue to enjoy performances preserved on dvd, then both sides need to come to an understanding before lawsuits like this deprive all of us from future releases.


*To clarify, I'm not trying to imply that performers should never be compensated or should sit back and be treated unfairly, but in this particular circumstance we're dealing with free broadcast performances and a heck of a lot of people. Do you not release it because it would be too expensive to pay everyone? Or do you get it released with some other kind of credit, etc? Tough call. Updated On: 3/3/07 at 02:45 PM

[best12bars]

Posted: 3/3/07 at 2:51pm

"How much" isn't the question. It isn't relevant to the situation at all.

Do they have a right to profits or don't they?

That's the only question that matters here. And it's the only question that will matter in the courtroom.

Updated On: 3/3/07 at 02:51 PM

[Toon]

Posted: 3/3/07 at 2:55pm

Let's say they agree to give all the performers a "piece" of the profit. Can any money really be expected to be gained, and will anyone want to mess with producing it or anything in the future on these types of theater pieces? It's the theater fans (and I think the performers in the end) that will miss out.

[SueleenGay]

Posted: 3/3/07 at 3:20pm

It is the obligation of the producers to at least get a waiver from these people. Many might feel that there is no money to be made and would rather have their legacy released for no compensation, but they should at least be given the courtesy to have a say.

I would love to hear from some union members on this topic. Are there none here who would weigh in?

[best12bars]

Posted: 3/3/07 at 3:31pm

I'm a union member... but I haven't been in a situation like this.

I'm also an ASCAP member. We receive royalties from airplay as well as any sales of our work. Sometimes it's literally pocket change, sometimes larger... but it all adds up. It's tracked, monitored, accounted for, and we're given compensation. That's why ASCAP was formed in the first place, by Irving Berlin and others.

[keen on kean]

Posted: 3/3/07 at 3:32pm

The relevance of all this may not be the 45 cents made on this series. It is a precedent for the use of any recorded performances in products that didn't exist when the recording was made. When the next great technological advance comes along, will people who consented to additional use get screwed out of residuals because the language in their consent didn't cover it? I am sure money is involved here, but it is the pattern of subsequent use that people may be concerned about. Who did profit from this series? Was it equitable to use these clips? Who knows...

[Kringas]

Posted: 3/3/07 at 3:41pm

I'm glad others have weighed in that they at least think the performers have some credibility here. For a while I was afraid everyone shared the "they signed up for being screwed over when they chose this profession!" sentiment.

[Toon]

Posted: 3/3/07 at 3:53pm

For a while I was afraid everyone shared the "they signed up for being screwed over when they chose this profession!" sentiment.

Certainly not. But we have lived in a technology-advancing age for some time now, and I would think that allowances, stipulations, and contracts would now be written in a way that would provide for these types of issues so that it's clear what would happen when people agree to perform on things such as the Tonys with regards to rebroadcasting/sale rights.

will people who consented to additional use get screwed out of residuals because the language in their consent didn't cover it

Unfortunately it's part of the business and part of the "not all things are fair" realization. Kids from the Brady Bunch don't receive royalties, and while it's a shame, it's just an unpleasant fact because of the way contracts were written. Fair? Probably not. Not everything can be. Performers need to learn from these types of contract problems and some rights issues need to be solved by taking more into consideratioon than they do when writing contracts or agreeing to perform.

It is the obligation of the producers to at least get a waiver from these people.

Realistically it's asking a lot to track down every single person involved with every single performance to ask for a waiver. Not saying it wouldn't be a nice thing to do, but let's be practical. I feel those things should now be written into agreements at the time of performing for anything.

[keen on kean]

Posted: 3/3/07 at 3:56pm

Toon - you're right. What this profession needs is better legal representation. (I was a lwayer once - then I woke up.)

[best12bars]

Posted: 3/3/07 at 4:11pm

"Realistically it's asking a lot to track down every single person involved with every single performance to ask for a waiver."

It's asking a lot??? Are you serious???

LEGALLY they MUST do it, or face a nice law suit that they will most assuredly lose. When someone is attempting to utilize another person's work for profit, CONVENIENCE on their behalf isn't something to be worried about. They MUST go through the proper channels for clearance or "waiver," or they must stop what they are attempting to do. Immediately. Period.

I really can't believe some of these comments. They are jaw-droppingly naive, and downright insulting to professional performers everywhere.

Good GOD.

I mention this from time to time in threads, but I'm a producer of interactive graphics and interactive content for DVDs with most of the major studios in Hollywood. That's what I do for a living. Every time you see a "talking head" on screen, that person has to be cleared legally, or paid for participation. Every single one of them. If they have a Coke can behind them on a shelf that shows up in a shot, we have to either "air brush" the Coke can out of the shot, or pay Coca-Cola for showing their product on a studio-released, for-profit DVD. Any time music is used on a behind-the-scenes featurette, it has to be licensed and/or cleared for use in that piece. There is no such thing as a "free ride" for any of it... and it's ALL about the contracts.

I really don't understand why this is so hard for some of you to understand.

[WalkOn]

Posted: 3/3/07 at 4:20pm

If the claim is legitimate, I'm with actors on this one.

[bk]

Posted: 3/3/07 at 4:24pm

As I said, it's all very well that they "MUST" track down people, but they don't. As I said, no one ever contacted me about the Broadway Archive release. I don't know what our AFTRA contacts stated back in 1974, but as someone has pointed out there was no home video then. AFTRA, of course, does nothing, not even when they're prodded. If it had sold a million copies, who knows how I'd feel. It didn't - I'm sure it didn't sell enough to pay for pressing them. If we're supposed to be protected by our union, then AFTRA should be waving a big stick - they like to talk big over there, but in the end, they do nothing.

But, just so you have some idea - they've been putting out a lot of TV shows that I guested in on DVD, and I have indeed gotten residuals from them - they've even put two pilots I did for CBS and ABC on DVD and I got resids from those, too - the largest of which was about $14.00. I have to assume that something like The Partridge Family sells fairly well, but you wouldn't know it from the resids.

[best12bars]

Posted: 3/3/07 at 4:43pm

bk---I'm guessing you didn't have anything in your contracts about "other media" units or releases. Who did, back then? You also probably had some sort of statement regarding who owned the rights to exploit, air, or publish your "work." etc. Meaning you didn't own your performance in this production. You were paid for your work initially, and that was that.

Peggy Lee was a VERY rare case. She actually had this "generalized" wording in her contract (regarding "new media") back in the 1950s, and Disney paid the price for it, when they didn't review all the original contracts thoroughly prior to the home video release of Lady & The Tramp. They really screwed up. She took them to court and she won.

But the standard SAG or AFTRA contracts from 20-30 years ago wouldn't have had anything like that in them. It was all about airings... and usually they were limited to a finite cycle of "reruns." I've heard the cast members from Gilligan's Island and the Brady Bunch say they ran through their cycles in the first 2 years. They (legally) haven't been paid since. No one knew those shows would be on the air non-stop for 30-40 years.

This falls under the category of "unfortunate," but there is nothing they can do about it. If they were to try to sue Paramount or Sherwood Schwartz, they would lose very quickly. They all had contracts, signed and sealed, and the agreements were met and fulfilled. End of saga. Now Viacom, Paramount (and to a very small extent still) Sherwood Schwartz are the ones making profits off of those two TV shows.

And that's "show biz," as they say.

But if these cast members had never signed agreements, contracts or waivers for those specific appearances... and then along comes another production company or independant producer who makes a giant stack of DVDs and sells them for profit without their knowledge or any legal documents to prove ownership or clearance of the content? That's a different story.

[SeanMartin]

Posted: 3/3/07 at 5:09pm

All right, if we're all about compensating people fairly for their contributions, what about the guys in the pit? Arent the musicians "entitled" the same way the dancers and singers are? What about the stage crew? Those arent empty stages up there -- *someone* had to shove all that stuff around. Isnt their contribution as worthy as anyone else's to the success of a production?

I'm just curious: where do we draw the line?

[best12bars]

Posted: 3/3/07 at 5:40pm

The line is drawn in the contracts.

Simple as that.

Words of opinion like "worthy," "fair" or "valid" don't hold up in court. When you are hired for work on a TV show, your contract and your union define what you are being paid for, and what you have a right to claim as your "work." You are working for a producer or production company, and they own the final property or "work."

That's why those contracts are long and boring and full of endless clauses and details.

The issue in this case is that the performers appearing on the Tonys didn't sign detailed contracts to do the Tonys. There are no legal contracts to look at and figure out exactly who owns the "property" being sold on these DVDs. They may have signed a single waiver to appear on the initial broadcasts (and most likely did), but unless there was a clause included about forfeiting all subsequent rights to rebroadcasts, sales, or "future airings," they most likely have a case.

The producers of these DVDs claim to have cleared these performances through AEA. That means NOTHING if the performers themselves didn't sign an agreement directly with AEA or with the Tony production company, waiving any profits, rights or claims of ownership, or financial compensation for anything beyond the initial airing of the awards show.

It's complicated... but that's what it comes down to.

Musicians, craftsmen and crew members on the awards shows are paid, and they are under contract to do the telecasts. Everything is signed and sealed.

The performers didn't have contracts to sing and dance on these shows. That's why there's a problem.

[Toon]

Posted: 3/3/07 at 5:49pm

They may have signed a single waiver to appear on the initial broadcasts (and most likely did), but unless there was a clause included about forfeiting all subsequent rights to rebroadcasts, sales, or "future airings," they most likely have a case.

Your own statement above gives a good case as to why they DON'T have a case. They also didn't sign a contract stating what rights they want to the performance in the future. Like you said, the line is drawn in the contracts.

As you said, they may have cleared it with AEA (who represents the performers in a way) and they felt it was fine for the performances to be preserved and released on dvd. That's what the union is there for, to protect the performers. Perhaps the performers need to take it up with AEA and not the producers of the dvd.

[best12bars]

Posted: 3/3/07 at 6:16pm

"They also didn't sign a contract stating what rights they want to the performance in the future."

That's not true. The waivers (assuming they all signed them) are only for a single televised event. They are not contracts. They go no further in the waiving of any ownership rights other than the initial airings across the time zones, otherwise nobody would sign them. This is why there's a battle about it. Nobody on either side thought these televised events would have a profitable future, or would ever see the light of day again.

I'm not saying the performers will win this case. It's very complicated, absolutely. And both sides would try to win.

I'm not even sure it WILL come to trial... because as everyone has pointed out (and probably agrees here)... the financial stakes aren't going to be very high.

The reason it SHOULD go to trial is because its setting a precedence for how this sort of thing is to be handled in the future. Not just the Tonys, but any awards show (or talk show, for that matter, where one-time-only performance waivers are also signed).

Sorry, Capn---This is why the Rosie show will likely never reach DVD with all its wonderful Broadway performances.

And the reason this case might not ever get to trial is also a financial one. I could see both sides settling out of court to prevent any serious monetary damage, but also to prevent any further exploitation of the work.

We'll see...

Updated On: 3/3/07 at 06:16 PM

[allofmylife]

Posted: 3/3/07 at 7:50pm

"It does not matter if this series makes ONE FREAKING DOLLAR these people are entitled to a part of it."

Well, not exactly.

I am a member of the Writer's Guild of America and every contract I have ever signed with a Hollywood studio contains a clause which basically says "and recording rights on any devicenow in use of ever perfected" which would cover DVDs. This is why we are planning to go out on strike against the producers (oh Jeeze, I'm one of them, too. What a moral dilema) in the fall. The writers do not get one whit from the produecrs or studios for the vast income from DVDs.

These actors all signed contracts which, even back then, probably covered all rights in any media. So they may not be entitled to any money.

Nobody before about 1970 gets ANY residuals from appearances on TV series either.

And I'd like to know just who these "50 individuals" are. Are we talking Robert Goulet and Julie Andrews, or that guy three from the left back there in the chorus? That could have a big impact on where this suit goes.

Plenty of ink for stars, not so much for the chorus.....

[Switz78]

Posted: 3/4/07 at 12:49am

I misread the comment about being in equity as a "if you were talented and in the union you would think differently" sorry bout that.
I witnessed an event on Thursday that made me read a bit into that.

I also don't get why wanting to paid for your work is thought of as evil or something. Even if it is 30 years down the line.

And why in god's name would you ever drop $100 for 1 two hour dvd of a musical? Is it a status thing or something.

Sueleen- Why do you assume union members haven't been commenting? Proud Union member here.

[CapnHook]

Posted: 3/4/07 at 12:58am

Switz - why in god's name would you drop $116.25 for a two-hour show?

Same to me. I see everything and anything I can live. But what about my future children? I want them to see the original production of [INSERT ANY SHOW NAME HERE...yes, even IN MY LIFE].