This article explores whether filmmakers need to
obtain the consent of actors to use their performances in music
videos promoting their movies. The SAG-AFTRA Basic Agreement
provides that photography of an actor cannot be used without
separately bargaining with the performer and reaching an agreement,
but there are four exceptions. An arbitration decision in 1986
found that music videos using actors’ clips fell within the
“in exploiting the picture” exception, but with the
changing landscape of the entertainment industry, future
arbitrators and courts may need to interpret the exceptions
differently.

Top Gun: Maverick, Black Panther: Wakanda
Forever, A Star Is Born, Furious 7 . . .
fabulously successful movies whose success was driven at least in
part by iconic music videos featuring their theme songs and the
performances of their charismatic leads. But were the producers of
the music videos allowed to use excerpts of those performances
without the consent of the actors? And more importantly, what if
you, as a filmmaker or distributor, want to promote your new
picture by creating a music video using movie clips backed by the
incredible new song you just spent a fortune producing and/or
licensing? Assuming you have obtained the rights from the copyright
owners of the relevant song and sound recording to use them in a
music video, and you of course have the right to promote the
picture, there is one more hurdle for you to jump: do you need the
consent of the actors who appear in the clips to “reuse”
their performances?

According to Section 22.A. of the Screen Actors Guild – American
Federation of Television and Radio Artists (“SAG-AFTRA”)
Codified Basic Agreement of 2014, as amended (“SAG-AFTRA
CBA”), the photography of a performer may not be used in any
other field or medium other than in the picture for which the
performer was employed, without separately bargaining with the
performer and reaching an agreement regarding such use. However,
there are four exceptions to the reuse prohibition. Specifically,
Section 22.A., Paragraph 3, provides that a producer’s right to
reuse photography shall not be restricted if the photography is
used “in exploiting the picture, or in trailers, promotional
films thirty (30) minutes (or less) in length for theatrical and
television motion pictures, or in advertising . . . .”
Therefore, whether you can use excerpts of actors’ performances
in a music video without their consent will depend on whether the
music video falls within one of these four exceptions.

Surprisingly, the only authority on this subject is an
arbitration decision from June 28, 1986, by the name of Screen
Actors Guild (SAG) vs. Columbia Pictures Industries, Inc. et
al., decided in the veritable digital dark ages long before
the existence of YouTube, Instagram, Twitter, Tik Tok, and other
forms of social media that are now readily available to people to
exploit their music videos through. In the arbitration proceeding,
SAG claimed that the named producers failed to “first
separately bargain” with actors for the reuse of their clips
in music videos and thus violated the Codified Basic Agreement of
1977, as amended. On the other hand, the producers took the
position that they had the right to exploit and advertise their
motion pictures in any manner and media they deemed effective, and
that such reuse ultimately fell within the exceptions of Section
22.A., Paragraph 3. In analyzing whether the music videos at issue
could reasonably be construed to fall within the exceptions, the
arbitrator relied on the evidence record regarding the bargaining
history relating to the “derivation, meaning and definition of
the terms” relied on by both sides to support their respective
arguments. With respect to the “trailers” and
“promotional films” exceptions, the arbitrator found that
the meanings of both words, as used in the motion picture industry,
were placed in a context significantly different from music videos,
despite similarities in their ability to promote a picture, and
therefore held that the music videos could not be reasonably
construed to fall within either exception. However, the arbitrator
ruled that the music videos, while not qualifying as trailers or
promotional films, fell within the “in exploiting the
picture” exception, reasoning that the producers used the
music videos to promote and publicize their theatrical motion
pictures to enhance profits to be gained from each release, which
in turn helped further the exploitation of such pictures. Having
concluded that the music videos fell within one of the exceptions,
the arbitrator subsequently denied SAG’s claims, with no need
to analyze the “in advertising” exception as a result of
the exceptions being joined by a disjunctive “or.”

Unfortunately, while SAG vs. Columbia Pictures Industries,
Inc. is certainly persuasive, arbitration decisions do not
form binding precedent. Therefore, it is unclear how an arbitrator
or court would rule on the issue today. The lack of binding
precedent may lead to inconsistent applications of the reuse
prohibition exceptions and, consequently, conflicting awards.
Nonetheless, an arbitration decision can still serve as a valuable
starting point for future arbitrators and courts in determining
whether music videos can fall within the exceptions set forth in
the SAG-AFTRA CBA. Because arbitration decisions are not
precedential in nature, there is room for future arbitrators and
courts to use their discretion and expand their interpretations of
the exceptions, which may be crucial considering the changing
landscape of the entertainment industry and how content is created,
distributed, and consumed in today’s digital age.

Take, for example, the term “exploiting.” Back in
1986, as revealed in the evidence record of SAG vs. Columbia
Pictures Industries, Inc., “exploiting” was
associated with the promotion of a motion picture to enhance
profits. In the motion picture industry today,
“exploiting,” in a contractual and legal context, is
commonly understood to mean the distribution and monetization of a
motion picture. Moreover, the perception of trailers and
promotional films has also changed over time. In 1986, a trailer
was seen as a form of teaser viewed in theaters or on
videocassettes prior to a feature, while a promotional film was
typically a longer “behind the scenes” piece providing an
inside look into the making of the movie, available as a television
special or in a “special edition” video. And as for music
videos in 1986, they were usually broadcast on MTV (and other
specialty channels) or less often sold as compilations or
standalone video releases (“Thriller”!).

Nowadays, it is much more difficult to distinguish a trailer
from a promotional film because of the various forms each can take.
Studios, production companies, directors, and producers now have
the latitude to utilize and incorporate into their marketing
campaigns teasers, standard trailers, clip trailers, featurettes,
television spots, and other forms of advertising in a variety of
media, including social media and streaming platforms as well as
traditional broadcast and distribution media. Although each form
shares a common goal in creating public interest in a particular
picture, they differ from one another in their style, content, and
length, making it difficult to assert with absolute certainty that
one form qualifies as a trailer but not as a promotional film, or
vice versa. This is all to say that the context behind the reuse
prohibition exceptions is different today than it was in 1986, and
therefore, we must adapt to the changing times and analyze the
exceptions with a modern lens.

In doing so, we may very well end up with the same conclusions
as the arbitrator in SAG vs. Columbia Pictures Industries,
Inc. At the same time, however, a modern lens opens the door
to modern interpretations of the exceptions and arguments as to
whether music videos can fall within the exceptions. For example,
considering the industry’s definition of “exploiting”
today, it can be argued that music videos cannot fall within the
“in exploiting” exception because they do not actually
distribute or make motion pictures available for viewing by an
audience. Conversely, it can be argued that a music video that
incorporates movie clips is just another form of trailer, as it is
generally the same length as a standard trailer, involves the same
use of visual montages from a movie, appears in the same media as
other trailers, and ultimately serves the same promotional purpose,
with the only difference being the utilization of one music piece
in place of excerpted dialogue and voice-over narration. The same
can also be argued of promotional films, as a movie music video is
intended to promote the featured movie and is well within the time
limits required by SAG-AFTRA. Additionally, despite not being
analyzed in SAG vs. Columbia Pictures Industries, Inc., it
may be argued that music videos can fall within the “in
advertising” exception. Technological innovations have
completely reshaped the way in which products and services can be
advertised today, as evidenced by the rapid shift over time from
traditional forms of advertising, in which advertisers paid media
outlets to have their messages appear in print and on television,
to product placement, digital advertising, and influencer
marketing, where the connection between the advertiser and the
advertisement may be less direct. For instance, a movie music video
can be incorporated into a marketing campaign and used as a tool to
generate interest and excitement for a movie prior to its release.
Movie music videos are often showcased on various sites and social
media pages, which subsequently increases public discussion of the
actual movies. A movie music video provides viewers just one of
many opportunities to form and express their own hopes,
expectations, and opinions about a movie, such as how the song
complements the overall tone of the movie or even a simple
appreciation of the movie as a whole—all of which increase
visibility and exposure for the movie. When the Codified Basic
Agreement was first negotiated to include the exceptions, the
definitional “intent” of each term, which formed the
basis of the exceptions, was grounded in an understanding that is
now arguably outdated, but with the introduction of new forms of
advertising and entertainment media and changing perceptions, the
exceptions must be evaluated in a modern context, which will in
turn shape future discussions and analyses.

If you contact SAG-AFTRA today, it will take the same position
it took, though unsuccessfully, in SAG vs. Columbia Pictures
Industries, Inc.: that music videos are a separate
entertainment product for a separate entertainment medium and
should be set apart from the exceptions, and thus, producers are
required to separately bargain with actors regarding the reuse of
their photography. SAG-AFTRA will argue that today’s music
videos are governed by its 2012 Music Video Agreement, as amended
(“MVA”), which did not exist at the time of the 1986
arbitration, and that the MVA explicitly states that SAG-AFTRA is
“the exclusive bargaining agent for all performers employed in
the production of music videos in any media to speak, act, sing or
in any other manner perform as talent . . .” Additionally, the
MVA defines “Principal Performers” as performers
“who are used on-camera who speak dialogue or portray a major
part in the Music Video . . . .” However, when analyzing the
language in the MVA more closely, a strong argument can be made
that the MVA does not actually govern the reuse of actors’
photography in music videos. Actors who have excerpts of their
performances used in music videos are neither employed to perform
in the production of the music video nor are they used on-camera in
such a production. Rather, photography is simply being reused. As
the MVA is a written legal contract between SAG-AFTRA, which
represents its members, and their employers, we must be precise in
our interpretation of the MVA. Currently, the MVA is silent about
the reuse of photography, whereas the SAG-AFTRA CBA is clear that
there is no need to separately bargain with actors if the reuse
falls within one of the exceptions of Section 22.A., Paragraph
3.

As the entertainment industry continues to evolve, we must adapt
our analysis of the reuse prohibition exceptions and utilize a
modern approach in interpreting the purpose and meaning of each.
And while it does not appear SAG-AFTRA has debated the issue of
whether the consent of actors is required to reuse their
performances in music videos since 1986, if the issue is ever
resubmitted to arbitration or litigated before a judge or jury,
filmmakers and distributors have well-founded arguments that such
use can fall within the exceptions. Moreover, because of these
arguments, it is unlikely that the producers of the music videos
for some of the most famous movies of our time, like those named
above, had to separately bargain with the actors to reuse their
performances. Nevertheless, in any event, and as best practice,
filmmakers and distributors should ensure they negotiate a full
buyout with actors for the use of their performances in any media
in case they later plan to incorporate movie music videos in their
marketing and promotional schemes.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.