A Hollywood Ending with No Sequel: Negotiation Strategies Sag-Aftra and AMPTP Should Employ to Prevent Future Strikes
By Molly Baraban
The Screen Actors Guild-American Federation of Television and Radio (“SAG-AFTRA”) strike finally ended on November 9th, after months of contentious dealings between the two groups centering on concerns over the future of acting and the ability to compensate talent fairly.[1] While we can now all finally celebrate the anticipated return of our favorite shows like Euphoria, House of the Dragon, and Stranger Things, we should also take a moment to critically analyze why SAG-AFTRA and the Alliance of Motion Picture and Television Producers (“AMPTP”) have historically continued to have conflict and how these groups can learn to negotiate better to prevent future strikes.[2]
Conversations between SAG-AFTRA and AMPTP initially broke down in October because of two essential sticking points. First, SAG-AFTRA’s demand for a “viewership bonus,” or a greater chunk of streaming residuals.”[3] AMPTP claimed that not only was the ask “economically untenable,” but that SAG-AFTRA presented it with an ultimatum to either agree to a proposal for a tax on subscribers or the strike would continue.[4] In response, SAG-AFTRA stated the notion to be "ridiculous,” and that it was AMPTP who wanted to shift from a model based on a show’s popularity to one based on the number of subscribers.[5]
Second was the issue of artificial intelligence (“AI”) use in filmmaking, with SAG-AFTRA’s main concern centering on the use of actor’s past performances to train AI models.[6] While AMPTP agreed that performers should be compensated when their likeness is used to generate a performance, it refused to negotiate further with SAG-AFTRA regarding this, likely due to fear of losing the ability to tap into a major time and money saver.[7] As a result, the parties continued to remain at odds regarding specific parameters for granting the right to use an actor’s likeness for AI modeling.[8]
While the parties have finally settled both issues, the disintegration of communications between the two throughout the negotiation process highlighted fundamental issues plaguing the working relationship between SAG-AFTRA and AMPTP. Considering the need of both parties to continue collaborating, each group’s negotiation style should be re-evaluated to get ahead of future issues. SAG-AFTRA would benefit from a more integrative “win-win” approach to future negotiations, while AMPTP should look to be more accommodating in future dealings. But what exactly does this mean, and how could each group have implemented these negotiation techniques in their most recent discussions and future ones?
An integrative “win-win” approach to negotiation would likely help the union to achieve its desired outcomes more quickly. An integrative “win-win” negotiation strategy focuses on equal-value contributions to the long-term relationship between the parties.[9] In situations where continued working relationships are imperative, as is the case between SAG-AFTRA and AMPTP, an integrative approach is the ideal negotiation strategy.[10] Here specifically, SAG-AFTRA could have employed “logrolling,” an integrative technique in which parties trade across issues in a negotiation.[11] For example, knowing that media residuals were a high-priority deal point for SAG-AFTRA, they could have, in exchange, conceded their request for AI regulations, given that studios are nowhere close to being able to replace live actors completely with AI.[12]
On the other hand, AMPTP would benefit from being more accommodating of SAG-AFTRA. An accommodating negotiation style is where an agreement is reached by putting the interests of the other party first to preserve the relationship.[13] In accommodating negotiation, the relationship—not the outcome—is the most crucial facet.[14] While this negotiation style may be viewed as a “lose-win,” AMPTP’s purpose for conceding to SAG-AFTRA’s demands in this specific negotiation would be for the purpose of setting themselves up for wins in future negotiations, again given the importance of maintaining a long-lasting working relationship with the Guild.[15] Here, the continued production of high-quality TV shows and movies hinged on getting the actors to stop striking and resume work, thus warranting accommodation of the current demands of SAG-AFTRA.
In conclusion, the best shot that SAG-AFTRA and AMPTP have at preventing future strikes is if they both pivot their negotiation strategies to utilize integrative and accommodating approaches, respectively. The historical relationship between these two groups indicates a continued inability to adapt to technological advancements within the industry and calls for a shift to approaching discussions with the preservation of a working relationship at the forefront. The future of our favorite TV shows depends on it.
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[1] Mallika Sen and Jennifer Farrar, This Isn’t the First Time Hollywood’s Been on Strike. Here’s How the Past Strikes Turned Out, AP News (July 18, 2023, 3:21 PM), https://apnews.com/article/past-hollywood-strikes-62de005f62e38dd09b38cd591ea26123 [https://perma.cc/JBL3-SG2P].
[2] Kelli Boyle, All the Shows Impacted by the Writers & Actors Strikes (So Far), TV Insider (Sept. 18, 2023, 2:55 PM), https://www.tvinsider.com/gallery/2023-wga-writers-strike-shows-affected-list/#49 [https://perma.cc/BK8T-4GST].
[3] Toni Fitzgerald, SAG-AFTRA Talks Break Down: Where Does Hollywood Strike Stand Now?, Forbes (Oct. 12, 2023, 3:05 PM), https://www.forbes.com/sites/tonifitzgerald/2023/10/12/sag-aftra-talks-break-down-where-does-hollywood-strike-stand-now/?sh=2d51c09d5867 [https://perma.cc/Z2RL-GQ8P].
[4] Andrew Dalton, The Hollywood Actors Strike Hits 100 Days. Why Hasn’t a Deal Been Reached and What’s Next?, AP News (Oct. 21, 2023 6:20 PM), https://apnews.com/article/actors-strike-100-days-explained-hollywood-40e0e325f7c92b6853bdc01c4c54b08c [https://perma.cc/S252-MW7Y].
[5] Id.
[6] Brian Contreras, Screenwriters Secured a New deal for AI. For Actors, the Right Could be Even Harder, L.A. Times (Sept. 28, 2023, 5:00 AM), https://www.latimes.com/entertainment-arts/business/story/2023-09-28/screenwriters-secured-a-new-deal-for-ai-for-actors-the-fight-could-be-even-harder [https://perma.cc/ME24-LGC9].
[7] Fitzgerald, supra note 3.
[8] Press Release, Alliance of Motion Picture and Television Producers, Statement from the Alliance of Motion Picture and Television Producers (July 18, 2023) (on file with author). See also Vanessa Roman and Kailey Johnson, AI Concerns of WGA and SAG-AFTRA: What Is Allowed?, Akin Gump Strauss Hauer & Feld LLP (Oct. 2, 2023), https://www.akingump.com/en/insights/alerts/ai-concerns-of-wga-and-sag-aftra-what-is-allowed#_edn8 [https://perma.cc/Z9YQ-AGME].
[9] Guhan Subramaian, Dealmaking: Secrets of Successful Dealmaking in Business Negotiations, Harv. L. Sch., https://www.pon.harvard.edu/freemium/dealmaking-secrets-of-successful-dealmaking-in-business-negotiations/ [https://perma.cc/3RL9-BGZG] (last visited Feb. 12, 2024).
[10] How To Save a Deal When Negotiations Break Down, Badger, https://www.badgermapping.com/blog/how-to-save-a-deal-when-negotiations-break-down/ [https://perma.cc/38CJ-LSW9] (last visited Feb. 12, 2024).
[11] Negotiations and Logrolling: Discover Opportunities to Generate Mutual Gains, Harv. L. Sch. (Sept. 6, 2023), https://www.pon.harvard.edu/daily/mediation/mediation-breaking-a-partial-impasse-in-negotiations/#:~:text=Logrolling%20is%20the%20act%20of,priorities%20of%20the%20other%20side [https://perma.cc/7Q3D-KNCW].
[12] Lauren Leffer, Can AI Replace Actors? Here’s How Digital Double Tech Works, Sci. Am. (July 25, 2023), https://www.scientificamerican.com/article/can-ai-replace-actors-heres-how-digital-double-tech-works/ [https://perma.cc/EU8C-KJTM].
[13] The Top Bargaining Styles to Use in Negotiation, ADR Times (Feb. 23, 2023), https://www.adrtimes.com/bargaining-styles/ [https://perma.cc/ML52-S3AB].
[14] Id.
[15] Marjin Overvest, What is Accommodation Negotiation? 3 Powerful Examples, Procurement Tactics, https://procurementtactics.com/accommodation-negotiation/ [https://perma.cc/W4NU-DYQX] (last visited Feb. 12, 2024).
