Actor Battles Agency, Tests SAG’s Loyalty
September 22, 2006
By Andrew Salomon
An actor’s dispute with a leading advertising agency over payment for work he did on a commercial has put the Screen Actors Guild in the position of appearing to assist the agency in a three-year legal battle against one of the union’s own members even after it initially advocated on behalf of the actor.
That the guild has not shown more support for one of its own has frustrated and angered the actor’s lawyer, who is a former member of the union’s New York board, as well as a handful of SAG members, including a friend and confidante of SAG National President Alan Rosenberg. Nevertheless, according to the guild and outside experts in the field of labor law, SAG’s cooperation with the advertising agency and the agency’s counsel is not unusual and could, in fact, be appropriate in a matter such as this.
But what started out as a relatively simple fight over money has evolved into a situation in which SAG has to weigh the interests of an individual member against the needs of its members as a whole, which the guild stresses it is doing in this case.
SAG would not make its officials available to comment directly for this story. The union would respond only to written questions from Back Stage submitted by email. The responses to the questions were written by guild representatives and sent via email from guild spokesperson Michael McNulty.
The actor involved in the dispute, Tim Miller, also would not comment.
Background v. Principal
Miller is seeking to be upgraded from background performer to principal performer for a Celebrity Cruises commercial produced by Arnold Worldwide, a Boston-based agency that was ranked No. 15 in the United States by Adweek in 2005. The distinction between background and principal is vast: For a basic-cable commercial such as this, a background actor gets only the day rate of $535; a principal gets the day rate and residuals worth $2,581 for every 13 weeks the commercial runs. Miller’s attorney, Julie Hyman, said the commercial ran for 21 months and the residuals would be worth approximately $18,000.
Miller and Arnold will argue the case in binding arbitration within the next few months. If Miller wins arbitration, the case could move to New York State Supreme Court, where Hyman will argue that under Section 51 of the New York State Civil Rights Act, Arnold used her client’s likeness without his permission. If she is successful in taking the case that far, Miller could be entitled to punitive damages and court costs, a payout that could reach $1 million. There is a long way to go before the case gets that far, however.
Hyman argued that Miller is a principal because he meets the standards spelled out in the Commercials Contract: He is in the foreground, identifiable, and illustrating and/or reacting to the on- or off-camera message of the commercial. Elhanan C. Stone, a lawyer in the New York office of the firm Reed Smith LLP, which is handling the case for Arnold, said that Miller does not meet those three criteria.
For the guild, this is where things get tricky.
When Miller first saw the ad in October of 2003, he filed a claim with SAG’s Commercials Department. The entire department reviewed the commercial, according to SAG and a guild source in New York who took part in the review process.
Marilyn Kirschen, a manager of commercial/industrial contracts for the union, then wrote to Arnold requesting that the actor be upgraded from background to principal. “The performer is in the foreground, identifiable, and illustrating the commercial message,” she wrote in a letter dated March 22, 2004.
The case proceeded to SAG’s legal department, which reviewed the commercial twice more, the second time with the Commercials Department. After that, Kirschen wrote another letter, this one to Miller, saying, in essence, that upon further review the claim was not viable a position with which the New York SAG source agreed.
“So many of the [commercial] claims are open to interpretation,” the source said. “With theatrical, they have to be speaking a line. With this, what’s foreground, what’s illustrating the message, what does this really mean?” The source requested anonymity because of guild rules about speaking to reporters.
Change of Heart
About its position change, SAG wrote to Back Stage: “The overwhelming opinion was that his claim was not viable. Nevertheless, an attempt was made to secure some compensation for the performer.”
Sometime later, Miller hired a lawyer outside of the guild, Howard Blau of Blau & Barrows, who wrote “a series of letters to the agency,” SAG said in its email. “At the agency’s request, the Guild informed Mr. Blau by letter of the Guild’s decision and the reasons for it.”
The letter requested by Arnold, dated Feb. 25, 2005, was written by Ray W. Rodriguez, SAG’s deputy general counsel. “Upon further review,” he wrote to Blau, “the Screen Actors Guild has determined that Tim Miller’s performance does not warrant an upgrade.” After receiving the letter, Blau dropped the case and it was picked up by Hyman.
“To me, that is unbelievable that [SAG] would write a letter at the defendant’s request, thereby making it nearly impossible for an actor to seek relief outside of the guild,” Hyman said. “But I think we can beat it.”
Thomas Geoghegan, a labor lawyer in Chicago who has written several books sympathetic toward unions, said it’s not unusual for a union to side with management in a case such as this. “A union doesn’t want to take a bad case,” he said. “If it pushes a claim and it loses, it screws other people who have other legitimate claims.”
As for whether SAG should have provided the letter that the ad agency asked for, Geoghegan said there is a general rule: “There should be no quarter given” to management. But he stressed he doesn’t know enough about the specifics of the case to comment on the appropriateness of the guild’s actions.
Mark de Bernardo, a labor lawyer in Virginia who often represents management, said that, based on the general facts of the case, SAG’s actions aren’t uncommon: “It wouldn’t be unusual that [SAG and the ad agency] would have a commonality of interest.”
Dues to Pay
David Jolliffe, a member of SAG’s Hollywood board of directors and a friend and confidante of Rosenberg, was angry that the guild wrote a letter at Arnold’s request, sources familiar with the case said. The sources added that Jolliffe then lobbied SAG’s president to write a letter of support for Miller.
There was a lot of deliberation at the highest levels of the guild over whether Rosenberg should sign a letter drafted by Hyman. Jolliffe went so far as to offer edits on a draft, according to sources familiar with the case. Jolliffe could not be reached for comment.
“David Jolliffe was very sympathetic, working on behalf of Tim Miller,” said a SAG source on the West Coast who has spoken with Jolliffe more than once about the case. “Ultimately a decision was made by the staff that we can’t support anything but arbitration.”
But SAG won’t even go that far. “When the time came to determine whether Mr. Miller’s upgrade claim warranted the resources necessary to arbitrate,” SAG wrote in an email, “the decision-makers at the Guild were unanimous that Mr. Miller’s claim was extremely weak and the Guild was unlikely to succeed in arbitration.”
Hyman, however, could not disagree more: “You would think that SAG owes a duty to its member to testify in the arbitration proceeding on behalf of the member, not the defendant advertising agency. Perhaps the advertising agency should pay union dues, not the actor members.”
Kudos to Mr. Jolliffe! Cooties to the Decision Makers at SAG!
It’s one thing to stay neutral in a case that might be considered a close call. It, however, is quite another to aid and abet the other side in a dispute between an employer and one of our members.
Perhaps, legal and staff should take the proverbial Hippocratic oath: “First, Do No Harm!”
After making this post, and in the spirit, and in light of the above vein of thought, it seemed to moi that by sending the above-mentioned letter supporting the defendant advertisers claim in Mr. Miller’s litigation, SAG’s Legal violated our constitution. Here’s what I found in that document.
SAG Constitution (Mission and Objectives) Article 2, Section 2., (H)
” Without Limiting the foregoing, to protect the rights and properties of its members, and to do all things necessary or proper to advance and promote their welfare and interests.“
Now the Ol’ Dog, ain’t a lawyer but it seems to me that SAG hardly promoted the welfare and interest of Mr. Miller by aiding and abetting his opponents in this case.
Look, these folks for the most part do a great job. Unfortunately, in this case, by siding with the other side, they blew it! And perhaps, it is our fault. I don’t know about you but I am a little uncomfortable leaving decisions such as this completely up to lawyers and staff. And therefore the Ol’ Dog would like to propose that when it comes to such decisions that a Members’ Review Panel be added to the mix. Sort of a mnage a trios consisting of SAG Legal, Commercial Staff and Actors Review Panel to insure that our members don’t get screwed.
A.L. Miller SW Editor & Chief