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.”
What scares SAG is what the consumer might use its legally purchased clip for, said one union insider. 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 yesterday.