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TV & Film ReSiduals and the Advent of Streaming
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Legal article that received the Jack J. Katz Memorial Award for excellence in the field of entertainment law. The article explores the history of residuals within the film & TV industries, with the goal of examining how the increased power of major streaming players fundamentally disrupts the compensation and collective bargaining structures.
Have your cake and Stream it Too
It is perhaps unsurprising that the film industry, built at the intersection of intellectual property and evolving technologies, has been shaped by its battles to sustain profit participation across new media. Residuals are a peculiar profit-sharing mechanism of hybrid legal status, birthed from market-driven needs of distributors and union defense of their creators’ needs. Today, every film labor union depends in some measure on residuals,[2] and, as of 2018, annual residuals payments are estimated to be $2.5 billion.[3] They are clearly a lynchpin of an ever-changing industry and may soon be facing an existential challenge from streaming.
The rise of major streaming players has heralded: (1) a change in the fundamental business structure of the film industry; (2) a newly dominant medium that is incompatible with profit sharing based on “reuse;” and (3) division internally and externally of the industry’s negotiating bodies in labor talks. These three compounding shifts exacerbate an already tense debate over the future of residuals that remain integral to the functioning of the film industry. While panic over a new threat to residuals is a story as old as the film industry itself, the rise of streaming platforms, and their capacity ability for continuous and ubiquitous content consumption, challenges the underlying framework of residuals and the film industry itself, demanding new answers to old questions...
[1] Handel, Jonathan on Hot Topics in Residuals, Green Hanson Janks Podcast, December 2018.
[2] For above-the-line talent, actors, directors, and writers, as well as musicians, residuals are direct and sizeable portions of their annual income. For skilled and technical laborers, residuals are a critical mechanism to fund their pension plans.
[3] Handel, supra note 1.
“With maybe one exception, every single above-the-line strike in this industry, since the inception of the unions in the 1930s, has been about residuals. Not about basic compensation. Not about pensions and health. Not about rollbacks. Not about underlying conditions. Residuals.” [1]
the Unconstitutional Conditions Doctrine Applied to Waivers of Criminal Rights
The unconstitutional conditions doctrine posits that the government may not condition a benefit, even one that is not required, on the waiver of a constitutional right without meeting strict scrutiny. Though this doctrine enjoys rich development and support in the First Amendment context, a completely different approach has developed to analyze constitutionally sufficient waiver of criminal rights. There, the Supreme Court generally views constitutional waivers by criminal defendants as contracts conferring mutual benefits, focusing on a pressing need for this efficiency. While less than three percent of criminal defendants exercise their right to a trial, [1] the Supreme Court maintains that the continued waiver of these rights to a jury trial, to confront one’s accuser, to invoke the privilege against self-incrimination, and more are essential to the continued functioning of the legal system.[2]
The Court has never articulated why this doctrine would apply to some rights and not others; rather, two versions of the doctrines have evolved independently, creating glaring and irreconcilable constitutional inconsistencies.[3] This memo intends to provide a bird’s-eye summary of the doctrinal discord between the Court’s assessment of waivers of non-criminal and criminal rights, while also delving into opportunities presented by precedent, at the Supreme Court and lower court levels, to explicitly expand the unconstitutional conditions doctrine in the criminal rights context and to resolve this doctrinal inconsistency...
[1] National Association of Criminal Defense Lawyers Report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, 5 (2018).
[2] See, e.g. Santobello v. New York, 404 U.S. 257 (1971)
[3] Jason Mazzone, The Waiver Paradox, 97 Nw. U. L. REV. 801, 832 (2003); see also Howard E. Abrams, Systemic Coercion: Unconstitutional Conditions in the Criminal Law, 72 J. Crim. L. & Criminology 128, 132 (1981) (“To date, the Court has not formulated or consistently applied a coherent theory of unconstitutional conditions analysis. Compare Zablocki v. Redhail, 434 U.S. 374 (1978), with Califano v. Jobst, 434 U.S. 47 (1977); compare United States v. Jackson, 390 U.S. 570 (1968), with Brady v. United States, 397 U.S. 742.”).
parental mirrors
Cheese is one of my favorite foods. Onions are my favorite. As a result, one of my best snacks is something I like to call “onion nachos,” a personal take on the popular dish. It is, quite literally, onions cut up, peppered with cheese, and marinated in the microwave. This is a source of great derision in my shared home. My roommates are appalled, concerned, and, generally, very unhappy about it.
As you might expect, I am asked, often with a lot of disdain, why I like and am doing this.
To say I have been raised to have an adventurous appetite is an aggressive understatement. My father is a truly phenomenal cook. He is the third of three French boys born on a French farm to a relentlessly French woman. She owned one pair of scissors that are used for three very distinct purposes: sewing, trimming her nails, and cutting the throats of her smaller animals, a method which she insisted is the most humane.
As soon as my father was confirmed not to be a girl, his mother resolutely decided she was not going through any of that again for another boy. She would just have to raise my dad like the daughter she was never granted. This upbringing endowed my father with a certain confidence and flair in the kitchen that he felt was his moral imperative to share.
I learned early on that any resistance to foods was not an option. In the summer, my grandmother would unapologetically serve me the rabbits I had naively adopted the past spring. “Tu te rappelles de ton petit lapin, Remi?” (“Do you remember your little rabbit, Remi?”) Once, she waited until the first bite was already in my mouth to tell me that dinner that night was cow tongue. This news was much more difficult to process while feeling the bovine tastebuds on my own human ones.
I developed a kind of French Stockholm syndrome. I ate Remi. I liked that tongue...