By Austen Au and Stephen Monas
This article explores whether filmmakers need to obtain the consent of actors to use their performances in music videos promoting their movies. The SAG-AFTRA Basic Agreement provides that photography of an actor cannot be used without separately bargaining with the performer and reaching an agreement, but there are four exceptions. An arbitration decision in 1986 found that music videos using actors' clips fell within the “in exploiting the picture” exception, but with the changing landscape of the entertainment industry, future arbitrators and courts may need to interpret the exceptions differently.
Top Gun: Maverick, Black Panther: Wakanda Forever, A Star Is Born, Furious 7 . . . fabulously successful movies whose success was driven at least in part by iconic music videos featuring their theme songs and the performances of their charismatic leads. But were the producers of the music videos allowed to use excerpts of those performances without the consent of the actors? And more importantly, what if you, as a filmmaker or distributor, want to promote your new picture by creating a music video using movie clips backed by the incredible new song you just spent a fortune producing and/or licensing? Assuming you have obtained the rights from the copyright owners of the relevant song and sound recording to use them in a music video, and you of course have the right to promote the picture, there is one more hurdle for you to jump: do you need the consent of the actors who appear in the clips to “reuse” their performances?
According to Section 22.A. of the Screen Actors Guild - American Federation of Television and Radio Artists (“SAG-AFTRA”) Codified Basic Agreement of 2014, as amended (“SAG-AFTRA CBA”), the photography of a performer may not be used in any other field or medium other than in the picture for which the performer was employed, without separately bargaining with the performer and reaching an agreement regarding such use. However, there are four exceptions to the reuse prohibition. Specifically, Section 22.A., Paragraph 3, provides that a producer’s right to reuse photography shall not be restricted if the photography is used “in exploiting the picture, or in trailers, promotional films thirty (30) minutes (or less) in length for theatrical and television motion pictures, or in advertising . . . .” Therefore, whether you can use excerpts of actors’ performances in a music video without their consent will depend on whether the music video falls within one of these four exceptions.
Surprisingly, the only authority on this subject is an arbitration decision from June 28, 1986, by the name of Screen Actors Guild (SAG) vs. Columbia Pictures Industries, Inc. et al., decided in the veritable digital dark ages long before the existence of YouTube, Instagram, Twitter, Tik Tok, and other forms of social media that are now readily available to people to exploit their music videos through. In the arbitration proceeding, SAG claimed that the named producers failed to “first separately bargain” with actors for the reuse of their clips in music videos and thus violated the Codified Basic Agreement of 1977, as amended. On the other hand, the producers took the position that they had the right to exploit and advertise their motion pictures in any manner and media they deemed effective, and that such reuse ultimately fell within the exceptions of Section 22.A., Paragraph 3. In analyzing whether the music videos at issue could reasonably be construed to fall within the exceptions, the arbitrator relied on the evidence record regarding the bargaining history relating to the “derivation, meaning and definition of the terms” relied on by both sides to support their respective arguments. With respect to the “trailers” and “promotional films” exceptions, the arbitrator found that the meanings of both words, as used in the motion picture industry, were placed in a context significantly different from music videos, despite similarities in their ability to promote a picture, and therefore held that the music videos could not be reasonably construed to fall within either exception. However, the arbitrator ruled that the music videos, while not qualifying as trailers or promotional films, fell within the “in exploiting the picture” exception, reasoning that the producers used the music videos to promote and publicize their theatrical motion pictures to enhance profits to be gained from each release, which in turn helped further the exploitation of such pictures. Having concluded that the music videos fell within one of the exceptions, the arbitrator subsequently denied SAG’s claims, with no need to analyze the “in advertising” exception as a result of the exceptions being joined by a disjunctive “or.”
Unfortunately, while SAG vs. Columbia Pictures Industries, Inc. is certainly persuasive, arbitration decisions do not form binding precedent. Therefore, it is unclear how an arbitrator or court would rule on the issue today. The lack of binding precedent may lead to inconsistent applications of the reuse prohibition exceptions and, consequently, conflicting awards. Nonetheless, an arbitration decision can still serve as a valuable starting point for future arbitrators and courts in determining whether music videos can fall within the exceptions set forth in the SAG-AFTRA CBA. Because arbitration decisions are not precedential in nature, there is room for future arbitrators and courts to use their discretion and expand their interpretations of the exceptions, which may be crucial considering the changing landscape of the entertainment industry and how content is created, distributed, and consumed in today’s digital age.
Take, for example, the term “exploiting.” Back in 1986, as revealed in the evidence record of SAG vs. Columbia Pictures Industries, Inc., “exploiting” was associated with the promotion of a motion picture to enhance profits. In the motion picture industry today, “exploiting,” in a contractual and legal context, is commonly understood to mean the distribution and monetization of a motion picture. Moreover, the perception of trailers and promotional films has also changed over time. In 1986, a trailer was seen as a form of teaser viewed in theaters or on videocassettes prior to a feature, while a promotional film was typically a longer “behind the scenes” piece providing an inside look into the making of the movie, available as a television special or in a “special edition” video. And as for music videos in 1986, they were usually broadcast on MTV (and other specialty channels) or less often sold as compilations or standalone video releases (“Thriller”!).
Nowadays, it is much more difficult to distinguish a trailer from a promotional film because of the various forms each can take. Studios, production companies, directors, and producers now have the latitude to utilize and incorporate into their marketing campaigns teasers, standard trailers, clip trailers, featurettes, television spots, and other forms of advertising in a variety of media, including social media and streaming platforms as well as traditional broadcast and distribution media. Although each form shares a common goal in creating public interest in a particular picture, they differ from one another in their style, content, and length, making it difficult to assert with absolute certainty that one form qualifies as a trailer but not as a promotional film, or vice versa. This is all to say that the context behind the reuse prohibition exceptions is different today than it was in 1986, and therefore, we must adapt to the changing times and analyze the exceptions with a modern lens.
In doing so, we may very well end up with the same conclusions as the arbitrator in SAG vs. Columbia Pictures Industries, Inc. At the same time, however, a modern lens opens the door to modern interpretations of the exceptions and arguments as to whether music videos can fall within the exceptions. For example, considering the industry’s definition of “exploiting” today, it can be argued that music videos cannot fall within the “in exploiting” exception because they do not actually distribute or make motion pictures available for viewing by an audience. Conversely, it can be argued that a music video that incorporates movie clips is just another form of trailer, as it is generally the same length as a standard trailer, involves the same use of visual montages from a movie, appears in the same media as other trailers, and ultimately serves the same promotional purpose, with the only difference being the utilization of one music piece in place of excerpted dialogue and voice-over narration. The same can also be argued of promotional films, as a movie music video is intended to promote the featured movie and is well within the time limits required by SAG-AFTRA. Additionally, despite not being analyzed in SAG vs. Columbia Pictures Industries, Inc., it may be argued that music videos can fall within the “in advertising” exception. Technological innovations have completely reshaped the way in which products and services can be advertised today, as evidenced by the rapid shift over time from traditional forms of advertising, in which advertisers paid media outlets to have their messages appear in print and on television, to product placement, digital advertising, and influencer marketing, where the connection between the advertiser and the advertisement may be less direct. For instance, a movie music video can be incorporated into a marketing campaign and used as a tool to generate interest and excitement for a movie prior to its release. Movie music videos are often showcased on various sites and social media pages, which subsequently increases public discussion of the actual movies. A movie music video provides viewers just one of many opportunities to form and express their own hopes, expectations, and opinions about a movie, such as how the song complements the overall tone of the movie or even a simple appreciation of the movie as a whole—all of which increase visibility and exposure for the movie. When the Codified Basic Agreement was first negotiated to include the exceptions, the definitional “intent” of each term, which formed the basis of the exceptions, was grounded in an understanding that is now arguably outdated, but with the introduction of new forms of advertising and entertainment media and changing perceptions, the exceptions must be evaluated in a modern context, which will in turn shape future discussions and analyses.
If you contact SAG-AFTRA today, it will take the same position it took, though unsuccessfully, in SAG vs. Columbia Pictures Industries, Inc.: that music videos are a separate entertainment product for a separate entertainment medium and should be set apart from the exceptions, and thus, producers are required to separately bargain with actors regarding the reuse of their photography. SAG-AFTRA will argue that today’s music videos are governed by its 2012 Music Video Agreement, as amended (“MVA”), which did not exist at the time of the 1986 arbitration, and that the MVA explicitly states that SAG-AFTRA is “the exclusive bargaining agent for all performers employed in the production of music videos in any media to speak, act, sing or in any other manner perform as talent . . .” Additionally, the MVA defines “Principal Performers” as performers “who are used on-camera who speak dialogue or portray a major part in the Music Video . . . .” However, when analyzing the language in the MVA more closely, a strong argument can be made that the MVA does not actually govern the reuse of actors’ photography in music videos. Actors who have excerpts of their performances used in music videos are neither employed to perform in the production of the music video nor are they used on-camera in such a production. Rather, photography is simply being reused. As the MVA is a written legal contract between SAG-AFTRA, which represents its members, and their employers, we must be precise in our interpretation of the MVA. Currently, the MVA is silent about the reuse of photography, whereas the SAG-AFTRA CBA is clear that there is no need to separately bargain with actors if the reuse falls within one of the exceptions of Section 22.A., Paragraph 3.
As the entertainment industry continues to evolve, we must adapt our analysis of the reuse prohibition exceptions and utilize a modern approach in interpreting the purpose and meaning of each. And while it does not appear SAG-AFTRA has debated the issue of whether the consent of actors is required to reuse their performances in music videos since 1986, if the issue is ever resubmitted to arbitration or litigated before a judge or jury, filmmakers and distributors have well-founded arguments that such use can fall within the exceptions. Moreover, because of these arguments, it is unlikely that the producers of the music videos for some of the most famous movies of our time, like those named above, had to separately bargain with the actors to reuse their performances. Nevertheless, in any event, and as best practice, filmmakers and distributors should ensure they negotiate a full buyout with actors for the use of their performances in any media in case they later plan to incorporate movie music videos in their marketing and promotional schemes.
