Acting Under Orders

Does John Key know the conditions facing Kiwi workers within US film and TV productions here?

by Gordon Campbell

Prime Minister John Key was in Hollywood a few days ago, touting this country’s virtues as a location/destination for US film and television productions. The scenery, the studio space, the skilled and cheap work force etc. as he recently told RNZ, make this a good place to make movies.

Jobs in the film industry was the alleged purpose. To that end: “We’ve got everything from the flexibility in the way that the crews and things operate, through to a very high level of expertise.”

Quantity not quality, perhaps. Key’s efforts in this regard two years ago famously rewarded US studios (a) by raising the level of money refunded to studios if they locate their big productions here and (b) by exempting them from some fairly basic requirements of our labour laws. In the wake of The Hobbit dispute, Parliament removed the right of access by workers in the film and video gaming industries to overtime pay rates, sick leave and holiday pay entitlements and the health and safety protections available to employees – who can now (legally) be defined as ‘independent contractors’ and engaged on terms largely to suit Hollywood’s (or Wellywood’s) budgetary needs.

Recently, a contract for the Power Rangers production – a further season of which is currently being shot here – came my way. It is an eye-opening document. Since 2005, the New Zealand taxpayer has rewarded the Power Rangers show quite generously,to the tune of early $20 million via the incentives available under the Large Budget Screen Production Grant Scheme (LBSPGS.) (Year to March 2005 : $2.891m, March ’06 : $3.077m, March ’07 : $2.703m, February ’08 : $2.823m, March’09 : $3.009m, March 2010 : $3.031m).

Those incentive moneys were paid to the Disney Corporation, the previous owners of the Power Rangers franchise. The show has now been bought back by its original owner, the US entrepreneur ( and reportedly 104th richest man in America, Haim Saban.) There’s more about him, below. Presumably, the Saban production will also be applying in time for LBSPGS moneys. As the Herald on Sunday recently reported, there are concerns that many of the higher paid, high tech positions on the production are going to foreigners, and not to New Zealanders:

A new series of Power Rangers began filming in West Auckland this week, amid complaints that more technical crew were Americans, not Kiwis.

Well, there is nothing new about this. On Lord of the Rings, skilled workers from the US, France and elsewhere swelled the ranks of technicians required for the high pressure, highly specialised work needed to complete the films on deadline.

This is inevitable. New Zealand alone cannot meet the demand at the top end of The Hobbit production – and within Immigration, neither the will or the ability exists to arbitrate which local post-production technician could, or couldn’t match the skills of the foreigner that the production wanted for the job. The bigger issue is whether the contracts being offered to New Zealand workers are fair and equitable. And both the law change that occurred in the wake of The Hobbit dispute and the content of the Power Rangers contract raise genuine concerns on that score.

The contract that is being offered to Kiwis seems to give the Power Rangers producers a staggering amount of power over the actors it employs. The preamble to the contract document for instance, says that the performer has to be available anytime between I October 2012, and 10 May 2013 (by my reckoning, a period of 222 days) but “shall be guaranteed a minimum of 20 (twenty) not necessarily consecutive days” during that production cycle. These “working days” are 12 hours in duration, with a 45 minute lunch break. There’s a week of preparation that the performer is also expected to donate to the production free of charge :

At Producer’s request and subject to Performer’s professional availability, Performer shall appear at such place(s) designated by Producer during the period of one (1) week immediately preceding Performer’s start date(s) hereunder for tests, photo sessions, makeup and wardrobe. Performer agrees that, except as….agreed by the parties in writing, no additional fees shall be payable by Producer in connection therewith or in connection with any and all necessary travel or hold days, and Performer‘s start date(s) shall not be accelerated thereby.

Furthermore, clause 4.5 demands that the performer agree to significant restrictions on their trade. Or on their ability to seek any other work at all that could conceivably devalue their image as a children’s performer, for nearly 18 months afterwards :

During the term hereof and continuing through the 2012/2013 Production Season, Performer grants Producer exclusivity in the area of children’s and children’s-related programming, including, but not limited to, programming for the United States television networks (CBS, FOX and NBC), Cartoon Network, Disney, Nickelodeon and Pax Net and Performer shall not perform in a continuing role or as a regular performer on any other episodic television series or perform in any program that is intended for exhibition in the United States on before 30 November 2014 without Producer’s prior written approval, which shall not be unreasonably withheld. During such period, Performer shall not provide services for Performer’s own account or for any third party that would interfere with Performer’s ability to perform
Performer’s required services for the Series or other works hereunder or which may be inconsistent in content, taste and sensibilities with the traditional and family-oriented values of the intended telecaster of the Series without Producer’s prior written approval.

Here are a few other examples of punitive clauses in this contract, which looks more like a feudal document of bonded servitude than a 21st century agreement between professionals :

1. Extra Duties, No Pay. Under contract clause 2.2 The performer (actor) will do adverts, sound recordings to sell the Power Rangers merchandise, and/or work for them to make computer games – all without pay, if this work is done during the production period while they are doing the acting job for which they were originally hired. Or as the contract charmingly puts it :

During Performer‘s engagement hereunder, Performer shall, on any Working Day and for the compensation specified in clause 2.3 provide his or her Services in connection with the Series, whenever and wherever Producer may require, in a competent, conscientious and professional manner having due regard for the production of the Series within the budget, and as directed by Producer in all matters, including those involving artistic taste and judgment.

Performer shall provide services in non-commercial openings, closings, bridges, lead-ins, lead-outs and in and in connection with promotional materials (for both print and electronic media) created in connection with the advertising and exploitation of the Series, including, without limitation, trailers, interstitials, theme parks, video and computer games, public service announcements, station identifications, on-air promos, sound recordings for merchandise, phono records….; adlibs, improvisation, gags, bits and song lyrics etc and no additional fees shall be payable to Performer in respect of such Services provided the Services are rendered by Performer during a Working Day; such Services shall be provided either during or after the production period, subject to Performer‘s reasonable professional availability. Performer may be required to perform in multiple episodes on the same Working Day and within the same work week and no additional fees shall be payable to Performer therefore…..

2. The 60% Clause. Under clause 2.5 if the producer decides to re-record any number of dialogue lines, this will be done by the performer for free in addition to their normal work if scheduled on a designated Working Day for the performer – otherwise, the performers can be called in and paid only 60% of their ordinary daily rate, for recording sessions of up to five hours duration.

3. No Residuals. Under clause 4.5, The producer will own all the proceeds of all Power Rangers DVD sales and computer/video games. So much for the highly touted access to residuals (i.e. a small percentage share of the downstream profits from marketing spin-offs or foreign sales after the initial production costs have been recouped) reportedly offered under The Hobbit contract. No such crumbs from the table here. Normally, actors get paid a daily fee which covers the first four years of the show being screened in their own country, but then when other countries buy the show, they may get a ‘residuals’ payment. Not so with Power Rangers. The “100% world buyout” phrase below means the actors won’t get any residuals when the show is sold anywhere else in the world.

Producer shall have the unlimited right to exhibit and exploit all works hereunder and audio and visual excerpts therefrom in all forms and mediums now known or hereafter devised or discovered throughout the world in perpetuity without any further amounts owing to Performer (i.e., 100% world buyout).

4. Use of Identity, Throughout The Universe. Under clause 4.6 the performer gives the producer the right to use their photo, voice, signature in all merchandising without them earning an extra cent from it. e.g

Performer authorises the use, photographing and recording of Performer’s name, sobriquet, professional name. nickname, photograph, voice, sound effects, personal characteristics, caricature, signature, Performer’s actual or simulated likeness, performance, attributes and biographic data (collectively, “Name and Likeness”), and their reproduction in all manner and media in perpetuity throughout the universe in connection with the production, distribution, advertising, promotion, merchandising, exhibition and other exploitation of the Series and other works hereunder, including all advertising, publicity and promotion and materials related thereto (including, without limitation, reprises, flashbacks, promos, trailers, teasers, etc.) in any manner and by any means now known or hereafter devised including, without limitation, use on album or jacket covers of commercial recordings related to the Series (whether or not Performer’s performances are contained therein), use in theme parks, trade shows, Producer promotions, etc. and in connection with commercial advertising and commercial tie-ups relating to the Series (but no direct product or service endorsement without Performer’s consent), and no additional payment shall be required for any such uses.

And it doesn’t end there :

Producer may use and license others the right to use Performer’s Name and Likeness in and in connection with publications (including, without limitation, novelisations, press books, souvenir programs, one-sheets, commercial publications, etc.), by-products, tie-ins, merchandise, commodities and services of every kind and no additional payment shall be required for any such uses. Without limiting the generality of the foregoing, Producer may include photographs or other images or depictions of the likeness of Performer in or on or in relation to any exploitation of the Series and all documentaries, “behind the scenes”, “the making of” featurettes, promotional films and videos (including so-called “music videos”) of the Series in any manner and by any means throughout the world in perpetuity, and no additional fees shall be due to Performer therefore.

And if you thought you could get around all this by changing your name…. fergeddit :

Performer shall not change Performer’s professional name during the 2010/2011 Production Season.

5 Morality, Behaviour and Physical Appearance :

The performer is forbidden to do anything in private or in public during 2012 or 2013 that might conceivably devalue the franchise :

Performer acknowledges that the Series and other works hereunder are intended for children and that Performer will conduct himself/herself during the 2012/2013 Production Season with due regard to social convention and good morals and decency and will not make any statement, commit any act or perform any role that will or may create notoriety, or bring Performer, Producer, or the Series or other work hereunder into public disrepute or reflect adversely thereon or on any distributor, exhibitor, or sponsor thereof.

Not now, not in the future, and not even in the past :
As a material inducement to Producer to enter into this Deal Memo, Performer represents that Performer has not done in the past any act that would be a breach of the preceding sentence if done during the 2012/2013 Production Season.

This control over behaviour extends (in clause 4.12) to physical appearance. Woe unto any employee who changes their haircut, gets a tattoo or even tries to tan any part of their body (!) without getting prior written permission from the Power Rangers production beforehand :

Performer acknowledges that a condition of Producer’s desire to engage Performer has been and will continue to be Performer’s physical appearance and characteristics and significant change(s) or alterations) thereto may have an impact on Producer’s business or production activities. During the 2012/2013 Production Season, Performer agrees to consult with Producer and obtain Producer’s written approval before knowingly making any such change(s). For example, Performer will not cut, restyle, colour, or alter in any way his/her hair, teeth, eyebrows, skin, body size or general physical appearance including, without limitation, becoming underweight, overweight, or piercing, or tattooing or tanning any part of Performer’s body without the prior written consent of Producer.

So much for (only some of) the conditions of servitude. What kind of person is John Key inviting to do business with us? Who, exactly, is Haim Saban? Well, Saban has been a staunch donor to the Democratic Party and has been its biggest individual donor in some years. He was very close to the Clintons and reportedly slept over several times at the Clinton White House during the 1990s, and he supported Hillary Clinton strongly during the 2008 primaries. Saban has now transferred that support to Barack Obama and last month wrote this laudatory opinion piece for the New York Times spelling out why he prefers Obama to Mitt Romney. Some of Saban’s reasons are almost comically destructive of any lingering illusions about Obama being an independent or liberal player in the Middle East. Here’s how Saban sees it:

When the first President Bush had disagreements with Israel over its settlement policy, he threatened to withhold loan guarantees from Israel. Mr. Obama has had his own disagreements with Mr. Netanyahu over the settlers but has never taken such a step. To the contrary, he has increased aid to Israel and given it access to the most advanced military equipment, including the latest fighter aircraft.

Ask any senior Israeli official involved in national security, and he will tell you that the strategic relationship between the United States and Israel has never been stronger than under President Obama….That cooperation has included close coordination by intelligence agencies — including the deployment of cyberweapons, as recent news reports have revealed — to thwart Iran’s nuclear ambitions.

And is Obama grateful to Haim Saban ? You bet he is. Last month, Obama appointed Saban’s wife Cheryl Saban as the official US representative for this session of the United Nations.

In Democratic Party circles, Saban is seen as a counterweight to the huge monies being poured into the Republican cause by right wing billionaires such as the Koch brothers and Sheldon Adelson. For his part, Saban has described himself publicly as a “single issue guy” in his political activism and that issue, as he told the New York Times in a 2004 profile, is “the state of Israel.”

Here’s how the New Yorker magazine spelled it out in a profile in 2010:

His greatest concern, he says, is to protect Israel, by strengthening the United States-Israel relationship. At a conference last fall in Israel, Saban described his formula. His “Three ways to be influential in American politics,” he said, were: make donations to political parties, establish think tanks, and control media outlets. In 2002, he contributed seven million dollars toward the cost of a new building for the Democratic National Committee—one of the largest known donations ever made to an American political party. That year, he also founded the Saban Center for Middle East Policy at the Brookings Institution, in Washington, D.C. He considered buying The New Republic, but decided it wasn’t for him. He also tried to buy Time and Newsweek, but neither was available…

By far his most important relationship is with Bill and Hillary Clinton. In 2002, Saban donated five million dollars to Bill Clinton’s Presidential library, and he has given more than five million dollars to the Clinton Foundation. In February, Secretary of State Hillary Clinton delivered a major policy address at the U.S.-Islamic World Forum in Doha, co-sponsored by the Saban Center. And last November Bill Clinton was a featured speaker at the Saban Forum, an annual conference attended by many high-level Israeli and U.S. government officials, which was held in Jerusalem. Ynon Kreiz, an Israeli who was the chairman and chief executive of a Saban company and Saban’s closest associate for many years, attended the conference, and when I commented that his former boss appeared to be positively smitten with Bill Clinton, Kreiz replied, grinning broadly, “No! No! I remember once Haim was talking to me on the phone, and he said in Hebrew, without changing his tone so Clinton would have no idea he was speaking about him, ‘The President of the United States, wearing his boxers, is coming down the stairs, and I am going to have to stop talking and go have breakfast with him.’ ”

Saban’s current bond with Obama has been forged on the basis of the Obama administration’s truculent stance towards Iran’s nuclear programme. Saban has had Iran on his mind for many years, and he said this to the Haaretz newspaper in 2006 :

When I see Ahmadinejad, I see Hitler. They speak the same language….. Nuclear weapons in the hands of a religious leadership that is convinced that the annihilation of Israel will bring about the emergence of a new Muslim caliphate? Israel cannot allow that. This is no game. It’s truly an existential danger.”

Only last month in that NYT opinion piece, Saban congratulated Obama on his resolve to confront that alleged existential danger posed by Iran, and by military means if need be :

Mr.Obama not only has declared that all options are on the table, but he has also taken the option of merely “containing” a nuclear-armed Iran off the table. He has directed the military to prepare options for confronting Iran and has positioned forces in the Persian Gulf to demonstrate his resolve.

So there you have it. Contracts that impose virtual servitude on New Zealand workers, in order to add to the fortune of someone willing and able to use those resources to egg the Obama administration on into a military confrontation with Iran over its nuclear programme, thereby setting the Middle East ablaze. Is this the film and TV investment that John Key wants to foster in New Zealand?