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VOLUME TWENTY-ONE, NUMBER 3 -- 2001TABLE OF CONTENTSSYMPOSIUM: SELECTED ISSUES IN LABOR RELATIONS IN THE MOTION PICTURE AND TELEVISION INDUSTRIES MOTION PICTURE PRODUCTION: TO RUN OR STAY MADE IN THE U.S.A. Runaway film and television production ranks among the most critical labor issues currently confronting the entertainment industry. In 1998, the direct economic loss of runaway production was $2.8 billion. When coupled with the loss of ancillary business, the losses likely totaled $10.3 billion for 1998 alone. This Article considers why many television and theatrical motion pictures targeted primarily at U.S. audiences are not made in America. It also examines the economic impact resulting from the flight of such productions. Finally, it explores solutions which may help curb runaway production. The collective bargaining agreements of both the Writers Guild of America and the Screen Actors Guild have expired or will expire on May 1 and June 30, 2001, respectively. If new agreements are not reached, one or both of the guilds may order their members to stop performing services in connection with ongoing or imminent theatrical and television productions. These potential strikes call attention to a union member's relationship with, and obligations to, the member's union during a strike. This Article generally addresses how a union member may continue to work during a strike, without incurring union discipline, by assuming "financial core status." The Article then discusses what unions and employers may tell employees about their right to assume financial core status, the benefits and burdens of assuming financial core status, and the importance of timing in selecting financial core status. Finally, the Article addresses the dilemma of the so-called "hyphenate" during a strike. Hyphenates, such as executive producer-writers, story editor-writers and director-writers, engage in both supervisorial work, which is not covered by the collective bargaining agreement, and writing, which is covered. During a strike, hyphenates may have conflicting obligations, because as supervisors, hyphenates may be required by their employers to cross picket lines, but as union members, hyphenates may be prohibited by their unions from working for a struck employer. Thus, the pressures upon hyphenates during a strike are compounded, and may provide an even greater incentive for them to assume financial core status. Agents have become powerful in Hollywood thanks in large part to the franchising system of the Screen Actors Guild. Now the growth of the personal manager is creating a fault line in the actor-agency relationship. This Article explores the origins of the conflict between agents and managers and provides a historical perspective for presently existing tensions. Entertainment industry jobs, particularly in the highly unionized mainstream media, attract applicants from around the world. For decades, non-American artists (“Alien Artists”) and entertainers of demonstrably distinguished merit and ability, have had the ability to enter the United States on temporary visas. In the Immigration Act of 1990, as amended in 1991, Congress created new classes of temporary-worker visas for these Alien Artists. Implementing regulations were promulgated that sought to give importance in the visa adjudication process to peer group evaluations of the abilities and professional prestige of Alien Artists. Many in the entertainment labor union community feel that these regulations have not completely lived up to their promise. This Article posits that one of the principal reasons for this problem is the lack of readily available information about how the Immigration and Naturalization Service (“INS”) evaluates peer group consultations, and proposes that reported or otherwise readily available INS decisions would improve the system. NOTES & COMMENTS During the early 1990s, discounting of prerecorded music compact discs (“CDs”) by national consumer electronics chains (“Discounters”) triggered intense retail competition in the prerecorded music market that caused retail CD prices to decline considerably. Struggling to compete with Discounters, numerous prominent U.S. music retail chains (“Retailers”) pressured the five major distributors of prerecorded music (“Distributors”) for intervention to counteract Discounters from discounting CDs. Foreseeing the impact of declining retail prices on their wholesale prices, and realizing the vulnerability of Retailers (their primary product outlet) to continued discounting, Distributors responded between 1995 and 1996 by enacting marketing provisions, known as minimum advertised prices (“MAPs”), that restricted any Retailers and Discounters receiving cooperative advertising funds from Distributors from advertising CDs below minimum prices dictated by Distributors. In 1997, a Federal Trade Commission (“FTC”) investigation faulted MAPs for causing an increase in retail and wholesale CD prices that, in turn, caused consumers to pay an added $480 million for prerecorded music products. Without admitting wrongdoing or paying any damages, Distributors settled with the FTC by agreeing to postpone MAPs for seven years. Months after the FTC investigation, the attorneys general of forty-two states and three U.S. territories filed actions alleging MAPs harmed their respective citizen-consumers by artificially fixing CD prices in violation of the Sherman Antitrust Act. This Comment proposes MAPs resemble horizontal and vertical restraints of trade outlawed by section 1 of the Sherman Act. From a related perspective, it posits that MAPs cost the music industry by fostering music piracy and by artificially supporting physical distribution to the impediment of more efficient means. Finally, this Comment concludes that Distributors and Retailers are better served by evolving to engage newfound competition rather than enacting provisions to impede competition. In recent years, the federal government has implemented
various surveillance programs to monitor the internet for criminal conduct.
The FBI’s
most recent surveillance program, Carnivore, attracted attention from
Congress, privacy advocates, Internet Service Providers (“ISPs”)
and the media because of its menacing name and technical capacity to
expansively monitor any internet conduct, including e-mail, chat room
discussions and website visits. Despite federal law enforcement’s
stance that Carnivore’s surveillance is constitutional, this Comment
criticizes federal law enforcement’s central argument that internet
surveillance is analogous to telephone surveillance by contrasting society’s
expectation for privacy on the telephone with its expectation for privacy
on the internet. This Comment further advances that the FBI should follow
their own wiretapping precedent and commission ISPs to produce surveillance
results because ISPs have an economic incentive to keep their innocent
clients’ information private. Finally, this Comment concludes with
a demand that federal legislators abandon technically outdated surveillance
laws and adopt internet-specific legislation to adequately protect internet
users from federal law enforcement’s continuing surveillance experiments. |
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