The COVID-19 pandemic has altered the way many businesses operate—including performance venues and theaters. As most theaters have been shut down since March 2020 (Broadway is not scheduled to tentatively return until May 2021), artists and producers have been determined to find a workable solution to safely continue operations. One of the most popular options has been to stream live theatrical performances online, which would enable patrons to enjoy a show from the comfort and safety of their own homes. This solution, however, has called into question which of the two largest actors unions, Actors’ Equity Association (“Equity”) and SAG-AFTRA, would oversee the contracts for the actors participating in these live streaming performances.

On the one hand, Equity has traditionally covered the world of live theatrical performances, and on the other hand, SAG-AFTRA has represented actors working in film and television, recording artists, and media and radio personalities. Thus, the merging of live performance with broadcast has created a rift between these two unions—with Equity claiming that works created by theater producers should fall under its union contracts, and SAG-AFTRA claiming that anything recorded for broadcast should fall under its own union contracts. SAG-AFTRA has for decades covered recorded or live broadcast performances, including Broadway shows like “Hamilton,” “Diana” and “Jesus Christ Superstar,” but the increased demand for streaming of performances has put pressure on Equity to determine whether it has a right to cover these works as well.

Equity first brought its dispute with SAG-AFTRA to the public’s attention by contacting the New York Times, which published an article on October 7, 2020 explaining Equity’s claim that SAG-AFTRA had agreed to cover around 60 streaming theater productions which should have been covered under an Equity contract. Equity further claimed that its members were being offered much lower pay, that its members would need to work longer hours to meet healthcare eligibility thresholds, and that the SAG-AFTRA contracts were not covering stage managers.

In response to the New York Times piece, SAG-AFTRA claimed that it had been negotiating contracts based on a proposed waiver with Equity. This waiver allowed Equity, until April 30, 2021, to cover recorded theater performances streamed on restricted platforms only accessible by ticket holders or subscribers, and not on streaming platforms already working with SAG-AFTRA such as Netflix, Hulu, YouTube, HBO Max, Disney+, Apple TV+, CBS All Access, and Peacock. Under the waiver, Equity was also limited in the number of tickets a producer could sell—the producer could not exceed double the amount of seats in its theater (limited to a maximum of 950 tickets per show). Both unions had the right to revoke the waiver with 60 days notice. 

SAG-AFTRA maintained that the two unions were still negotiating the waiver when Equity went to the New York Times, but that it would be launching an investigation into Equity’s contracting practices and filing a formal complaint. Particularly, it believed that many of Equity’s agreements with producers have taken thousands of days of work from performers who should have been working under SAG-AFTRA contracts. Despite the imminent complaint, Equity maintained that it would continue to issue contracts with employers interested in producing remote live theater.

Instead of turning to litigation, however, the unions reached a tentative agreement on November 14, 2020, which was approved unanimously by the SAG-AFTRA National Board of Directors and Actors’ Equity Association National Council. This agreement recognized and preserved SAG-AFTRA’s historic jurisdiction in broadcast of live and recorded performances. However, given that live theater companies would only be able to reach audiences during the COVID-19 pandemic by recording and/or streaming productions, Equity would be allowed to cover these types of works until December 31, 2021 (this would not include distribution on paid streaming services like Netflix, Amazon, HBO Max, and Hulu).

The unions’ settlement of the matter has avoided costly litigation and potential fallout on the livelihoods of the members they represent. Many artists are struggling, and this equitable outcome will give artists a reliable means to maintain their healthcare coverage, make a living, and continue to entertain us while our country continues to fight and adapt to the pandemic.

For more information on this article and this topic, contact Charles Wallace.