What happens when a theatre company wants to make a movie? They may want to release a filmed version of a show they’ve staged, or, increasingly frequently during the pandemic lockdown, create a production designed to live exclusively in the digital sphere, on a screen. Among the logistics they will need to figure out—equipment, safety protocols, means of distribution—there is the question of union jurisdiction for the production’s actors and stage manager. If they’ve traditionally worked under some kind of Actors’ Equity Association contract, the U.S. stage union, would they turn to Equity for a deal? Or, given that historically, anything professionally presented on a screen—whether on PBS or HBO or Amazon Prime—has been covered by the Screen Actors Guild-American Federation of Television and Radio Artists, a.k.a. SAG-AFTRA, would it make more sense to work with the film union?
This gray area has become a public battlefield, driving a wedge between the two unions that represent actors (and in the case of Equity, stage managers) at a time when a pandemic-stricken industry and its workers can ill afford such a dispute, not least because in both unions, workers’ eligibility for health benefits is tied to how much they work.
For SAG-AFTRA, the argument is simple: Anything presented on a screen should be under their contracts, or at least subject to an agreement stating that SAG-AFTRA is waiving that jurisdiction under specific circumstances. Representatives of SAG-AFTRA say this gray area is not new to the pandemic, or even the rise of internet distribution; it has been well established over the years. As Duncan Crabtree-Ireland (he/him), SAG-AFTRA’s chief operating officer and general counsel, has pointed out in many interviews, including with me, SAG-AFTRA’s involvement in theatre and theatrical productions made for screens has a long history, including everything from the Tony Awards broadcast to Hamilton’s move to Disney+ and the recent trend of live TV musicals, from Hairspray to Jesus Christ Superstar.
Even the familiar process of filming a popular stage production and releasing it to a streaming platform has historically been a collaboration between Equity and SAG-AFTRA. A production close to home comes to mind: the 2017 production of Antoinette Nwandu’s Pass Over that ran on Steppenwolf’s Chicago stage, and was filmed by Spike Lee as a special presentation for Amazon Prime. (Lee had done something similar with Passing Strange, and more recently with American Utopia.) The actors and stage manager were under an Equity contract for the show’s original rehearsal and performances, including an additional Equity rider and payment for the capture of the performance, while SAG-AFTRA contracted the shooting days and ongoing rights and residuals. It’s a process that Steppenwolf director of production Tom Pearl (he/him) said via email felt like it kept “with longstanding practice on other filmed projects I’ve done over the years in regional theatre.” Crabtree-Ireland also referred to this long history of Equity and SAG-AFTRA working together on projects, and even passing the reins when logical.
He compared it to the time that Disney, a film company, decided to try its hand on Broadway. “Disney had been a signatory of SAG and AFTRA since the 1930s,” said Crabtree-Ireland. “We didn’t go to Equity and say, ‘Hey, Disney is a signatory of SAG and AFTRA, so now we’re going to cover Broadway shows.’ ”
Now, of course, theatre producers are seeking alternatives to business as usual out of necessity, due to the pandemic. So what’s a union to do? The processes that were normally covered by Equity are moot in many areas, due to ongoing safety concerns, and state and local gathering regulations that are keeping productions off the stage and audiences in their homes. That loss of work has already put Equity and its members in their own fight for survival, especially in light of the decision by the Equity-League Health Fund (a separate organization from Actors’ Equity) to increase the work weeks needed to qualify for health care, not to mention the government’s unwillingness to support artists in this time of dire need. To Equity and many of its members, the fact that a number of stage productions have begun to work under SAG New Media agreements looks like a threat, not a collaboration.
This clash of the union titans has left companies like Independent Shakespeare Company (ISC) in Los Angeles in a difficult spot. With the pandemic putting an end to the possibility of their normal offering of Shakespeare performances in Griffith Park, ISC moved to produce online. Its hybrid production of Romeo and Juliet, which combined live and filmed elements and a chance to interact with the performers through social media, recently closed its virtual run, for which they used SAG-AFTRA contracts.
Like many theatres of all sizes across the country, ISC found itself turning part of its space into their version of a television studio, complete with a green screen and various set pieces. The company even hired a professional editor to help finalize the project. Even so, despite elements of the production process that were closer to film or television than theatre, ISC originally took their production to Equity for contracts and approval.
According to ISC managing director David Melville (he/him), when ISC brought their production to Equity around late June or early July, they were met with a slew of COVID safety protocols that needed to be met. ISC got to work: They found a lab that could do the COVID testing and turn around results in the required timeframe and created detailed plans for social distancing, deep cleaning, masks and personal protective equipment, etc. After completing Equity’s rigorous requirements, Melville said, they were provisionally approved.
“Part of doing this project was that we wanted to keep our artists working with Equity,” Melville said. “Then, when we wanted to start working at the end of July, beginning of August, everything just went quiet from Equity while they deliberated about signing off on the contract. We never actually got to see the new media agreement and talk about the contract details. It went to a committee where they were talking about how they were going to handle the one stipulation in the COVID plan, which is that the virus needs to be under control.”
Melville continued, wondering why they had even entered into contract talks if this stipulation, which was completely out of the control of ISC, would be a sticking point. At that point, Melville said, Equity spent a few weeks going back and forth, never quite telling ISC what the threshold was for them to be able to produce. The threshold, Melville recalled, was around 10 COVID cases per 100,000 residents, a number well below Los Angeles County’s current status. As of presstime the county’s rate was 78 per 100,000 residents over the last week, according to the Los Angeles Times. Once ISC was finally told what that threshold was, and informed that Equity wouldn’t be comfortable signing off until that threshold was met for “a couple of weeks,” Melville remembered thinking that he didn’t think his area would reach that point until the middle of 2021.
“I think part of what that number comes from,” Melville said, “is if they’re thinking about in-person, where there’s audience members, and that makes total sense. But this is a film set, with a crew of three or four people. There would be around eight people on set, all wearing PPE, following the health and safety protocols. I think that’s a major disconnect that Equity really needs to address moving forward.”
So if producers find themselves in similar situations to ISC’s—denied by Equity based on circumstances out of their control—are they supposed to stand down and not produce? Said Equity communications director Brandon Lorenz (he/him), “At the end of the day, it takes real workers and members to bring those productions to life, and we believe that whoever is involved should have the ability to earn healthcare, earn a fair wage, and be protected in the workplace. That’s what our contracts do.”
Ultimately ISC decided to move forward with producing Romeo and Juliet with SAG-AFTRA agreement, with safety guidelines that also include stringent testing and PPE requirements, along with a “zone” system that details when and how frequently those around the production need to be tested based on their access to and role on the set, with fluctuations in the local community’s infection and transmission rate taken into account. “The Safe Way Forward” guidelines were approved this summer by SAG-AFTRA, IATSE, the Directors Guild, Teamsters, AMPTP, and the Basic Crafts, and detailed in a 36-page document from the unions. This type of collaboration and thorough documentation contrasts with Equity’s move over the summer, in which they partnered with former OSHA head David Michaels to create four general guiding principles for safely producing, which have left many in the field begging for more specifics.
Moving ahead with Romeo and Juliet wasn’t a trivial decision for ISC. As Melissa Chalsma (she/her), the company’s artistic director and co-founder alongside Melville, put it, this is a life-or-death crisis for their company.
“We will not be here at the end of this if we can’t make work,” Chalsma continued, acknowledging these times are existentially challenging for Equity as well. “We want to be here at the end of this for our audience and for our artists to have employment. We always try to take the tactic that everybody’s on the same team, even when it doesn’t always feel like it. We’re all moving toward the same goals. But I know that with this kind of tension between Equity and SAG, it doesn’t feel like it’s going to be good for most. It’s really too bad, at a time when theatres are actually looking for support and a path forward—it’s regrettable.”
The dispute between Equity and SAG-AFTRA, which had quietly boiled under the surface for months, went public with a petition from Equity members calling on SAG-AFTRA to stop undercutting Equity contracts, followed by a New York Times article detailing the messy jurisdictional clash. Equity claimed in both the article and a subsequent press release that “actors have lost $600,000 in earnings and $150,000 employer contributions to the embattled Equity-League Health Fund.” In an interview, Lorenz noted that between March and September, Equity has given out over 240 agreements to producers for virtual or digital work, totaling 3,700 work weeks. And, as Lorenz pointed out, not to be lost in the shuffle are Equity stage managers, who are not covered under SAG-AFTRA contracts.
“We’ve heard from a lot of stage managers who are very frustrated and angry,” Lorenz said. “We’ve heard from stage managers who thought they were going to be going to work on an Equity contract and the employer suddenly shifted to SAG-AFTRA.”
Indeed, Equity stage managers have found themselves on the sidelines when SAG-AFTRA, which represents only actors, takes on productions that still require that job description to be filled. At ISC, Melville explained in a follow-up email, they created an ad hoc agreement for their stage manager, providing them with the same rate and terms as the actors and using language in SAG-AFTRA’s new media deal as a guide for their agreement.
SAG-AFTRA’s new media deal itself is under scrutiny by Equity, with criticisms flying about how it offers a minimum day rate of $125, presumably allowing theatres to undercut what they would have paid had their production been on an Equity contract. Equity contracts typically stipulate weekly payments, so one-to-one comparisons are difficult, but ISC’s Melville conceded that Equity’s rates are overall better for actors than SAG-AFTRA’s. On the other hand, he noted that $125 is just the minimum; the SAG-AFTRA business representative he spoke to made clear that the theatre could pay more if it wanted to. So ISC, hoping to remain true to its original conversations with actors (prior to the “no” from Equity), bumped up the day rate to $150, paid $600 to cover what would have been Equity’s “record fee,” and offered actors an additional $160 per week for each week the show ran digitally beyond its initial two-week run.
Still, even if companies work to mold SAG-AFTRA agreements to Equity expectations and craft equivalent side deals for stage managers, from Equity’s perspective it isn’t nearly enough.
“Those stage managers are offered work as independent contractors,” Lorenz said, “which means they have no workers’ compensation protections and they have no health contributions, no health weeks. Our focus is getting agreements issued that will allow the whole Equity company to be represented.”
“I think we’re headed toward more innovation, because otherwise, what? Are we just going to go into a coma? Just because Broadway is on pause does not mean that the whole theatre industry has to lie down for a year.”
Another concern that has arisen is that SAG-AFTRA contracts often have deferred payment structures, given that compensation is often tied to residuals, or payments upon airing/streaming. Asked about this, Crabtree-Ireland said that it’s difficult to compare SAG-AFTRA’s contracts with Equity’s, because the stage actors’ union has yet to allow anyone to see their new media contracts. This lack of access has been an issue between the two unions for months, as shown in a July 29 email published by Deadline from SAG-AFTRA president Gabrielle Carteris and national executive director David White to Equity leadership that states, in part, “We also requested, as we have now done on multiple occasions, to review the contracts that AEA intends to use to cover this work.”
The presumption here, a seemingly irksome one for Equity, is that projects released digitally and intended to live on screens are inherently SAG-AFTRA’s jurisdiction, and thus this work needs either to be done under SAG-AFTRA contracts, or to require SAG-AFTRA’s approval and permission. On the contrary, Equity argues that theatres are collective bargaining partners with whom they have standing agreements “that recognize that Actors’ Equity is the representative of actors and stage managers, and they should uphold their obligations under the agreement.”
For many theatres, it is that simple. New York’s Syracuse Stage is currently in Equity-approved rehearsals for an upcoming production of Lanford Wilson’s Talley’s Folly, set to run virtually Nov. 11-22. Syracuse Stage was one of the theatres involved in the early scramble to record as closures swept the country back in March. Back then, the theatre worked with Equity and the local radio station to quickly record their production of Amadeus to stream to audiences that wouldn’t be able to see the production in person. In those early days, as theatre closures spread, Equity reasonably hastened to create contracts allowing for the recording and distribution of productions unexpectedly forced to close.
But months later, actors involved in some of those hastily recorded productions, such as Berkeley Repertory Theatre’s production of School Girls; Or, the African American Mean Girls Play, argued that this haste resulted in contract violations. The hope is that by now both the contractual and creative process might move along more smoothly.
So far that seems to be the case for Robert Hupp (he/him), Syracuse Stage’s artistic director and director of Talley’s Folly. For his production, he’s cast husband-and-wife acting duo Jason O’Connell and Kate Hamill, a natural quarantine bubble he credits as one of the reasons they were able to get their production approved. This time, rather than rushing to pull together the recording requirements and going through the local radio station, the theatre has been able to partner with a film company, which has sent a representative to rehearsals to advise the production on camera angles and shot selection.
“We know that we can’t recreate that live experience of artists and audience in a shared space,” Hupp said. “In the spring, we spent a lot of time lamenting what we can’t do. Over the course of the summer, we really had to turn that conversation around to what we can do, not what we can’t do. That’s what’s been driving the conversation about planning for capturing this production on film.”
For Hamill and O’Connell, being a part of this process and participating in theatre in a way that they haven’t been able to for months had both of them in tears after their first Zoom rehearsal. After all, as Hamill noted, stage work is an incredibly important part of their lives, and it had been missing for half a year. But now, as theatres inch their way back into in-person work, Hamill sees this time as a window of opportunity for experimentation, especially in the digital realm.
“For the first six months,” Hamill said, “there was just a lot of shock and a lot of scrambling. Now people are really starting to come up with plans, both for what we see on our stages and how it’s made. I think we’re headed toward more innovation, because otherwise, what? Are we just going to go into a coma? Just because Broadway is on pause does not mean that the whole theatre industry has to lie down for a year. This is a really exciting opportunity for theatre companies.”
“This would stop tomorrow if SAG-AFTRA would stop interfering with our employers. This could stop tomorrow.”
In the tech world, innovation breeds competition, so perhaps it shouldn’t be a surprise that this time of innovation in theatre has led to its share of conflict. As SAG-AFTRA’s Crabtree-Ireland pointed out, as theatres venture into new realms of production, that may also mean involving unions beyond Actors’ Equity.
“If Steppenwolf decided they wanted to produce a television series,” Crabtree-Ireland said, “they could do that. There’s nothing saying they can’t do that. If they did that, that should be covered by a SAG-AFTRA contract, and not by an Equity contract, just because Steppenwolf has done theatre and that’s what they’re mainly known for.”
The question of what happens when a theatre leaves the stage only seems to be heating up, and doesn’t seem likely to go away. But for now, one side of the discussion has left the table altogether. According to Crabtree-Ireland, he thought the two sides were close to reaching an agreement, with just a few items that needed additional work. SAG-AFTRA was in the process of making modifications and reviewing Equity’s concerns, he said, when “all of a sudden, out of the blue,” they were contacted by The New York Times requesting comment on Equity’s on-the-record accusations that SAG-AFTRA was “trying to steal their work.”
“That was very shocking to me,” Crabtree-Ireland said, “I thought we were very close to reaching an agreement, and so did everybody else on the SAG-AFTRA side. It was shocking to find out that not only were those discussions to stop, but they were to stop, not through a courtesy call from Equity, but through an outreach from a New York Times reporter.”
For Equity’s part, Lorenz countered, “This would stop tomorrow if SAG-AFTRA would stop interfering with our employers. This could stop tomorrow.”
SAG-AFTRA maintains that they are ready and willing to grant a waiver to Equity to “unilaterally cover these projects without SAG-AFTRA involvement during the pandemic,” Crabtree-Ireland said. The caveat is that there would need to be an understanding that, when the pandemic ends, the jurisdiction over productions intended for screens returns to the hands of SAG-AFTRA, as before.
It’s always going to be messy when disputes that put in jeopardy the livelihoods of artists across the country both linger for months on end and wind up being tried in the court of public opinion, whether that’s SAG-AFTRA creating hashtags and Instagram posts calling for Equity to “play fair,” or lengthy Twitter threads from Equity detailing their position on what they feel is SAG-AFTRA’s encroachment. Amid the public acrimony, it was reported that SAG-AFTRA launched an investigation into Equity, with Equity president Kate Shindle firing back, though Crabtree-Ireland explained that this is merely an effort to learn more about the work of Equity’s “media committee,” and whether their work represents “a deviation from what our historical joint practices have been. We don’t really know, because it wasn’t ever presented to us, and frankly all of the documentation of it is hard to access. So we’ve been asked by our board to find out as much information as we possibly can, and only then make any kind of decision about what that means.”
According to Lorenz, the new agreements that Equity is working on for digital content are for situations in which actors are performing without an audience and with the intention of the performance being captured—a departure from contracts rolled out in the early days of the pandemic, which were geared more toward the distribution of archival films of productions. Overall, Lorenz said, Equity’s goals during this crisis squarely align with the calls they’re hearing most from members: How can you help us get healthcare? How can you help us make sure that we’re getting a fair wage? Right now, Equity argues, SAG-AFTRA stands in the way of those goals.
“Actions speak louder than words,” Lorenz said. “We are trying to get through the biggest crisis the industry has faced in generations by making sure our members have access to healthcare, have fair pay, and are classified as employees. That’s our focus, and launching investigations doesn’t help that.”
If Equity won’t come back to the table, SAG-AFTRA’s most recent move may force their hand: SAG-AFTRA has filed for a jurisdictional dispute resolution with the Associated Actors and Artistes of America (4A’s), asking the AFL-CIO to initiate a mediation process, potentially bringing in an external mediator to find an agreement between the two unions. As Hamill put it, the thing about any time of crisis is that it naturally creates a period of extreme hardship. Actors, stage managers, institutions, and unions all face an existential crisis that demands immediate and compassionate consideration.
“I trust that SAG and Equity will come to some middle ground,” Hamill said. “I feel like these unions are going to find a solution that protects members. This kind of turf war was going to happen at some point, and the crisis is making it happen. We can all curl into a ball and think about the things that are not going right, or we can find new solutions going forward.”
Jerald Raymond Pierce (he/him) is associate editor of American Theatre. firstname.lastname@example.org
Creative credits for photo: Amadeus, by Peter Shaffer; direction, Robert Hupp; scenic design, Misha Kachman; costume design, Tracy Dorman; lighting design, Dawn Chiang; sound design, Victoria Deiorio; hair and wig design, Robert Pickens.
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