Would An Unscripted Talent Union Succeed?

As labor actions in Hollywood continue to impactthe entertainment industry in the U.S. and beyond, unscripted cast and crew members are adding their voices to the call for better working conditions. Here, entertainment lawyer Nicole Page explores if unionization is really the answer, and how production companies can address the concerns.

It's been a tumultuous and challenging time in the unscripted business. Budgets continue to shrink, entertainment companies continue to merge, buyers continue to disappear and everyone who works in the non- fiction industry is feeling the strain. In the midst of this, talk of unionization is everywhere. No doubt inspired in part by the WGA and SAG- AFTRA strikes, everyone from unscripted talent, to producers, to editors are collectively saying, "We're not going to take it."

While erstwhile Real Housewives star Bethenny Frankel is leading the charge for unionization of unscripted talent (with SAG-AFTRA throwing its support behind her campaign), other unscripted workers are also fighting for better compensation and working conditions.

In addition to the push for unionization of unscripted talent, there has been a longstanding effort by the WGA to unionize producers of reality shows, and on shows such as Survivor and Swamp People editors successfully unionized under IATSE and achieved full pension, health and welfare benefits, among other protections.

Recently, editors and producers at prolific production company Story Syndicate succeeded in unionizing with the assistance of the Motion Picture Editors Guild and the WGA East.

It has historically been the case that unscripted TV is the lower-budget alternative to scripted, and it could be argued that unscripted production flourished for that reason, particularly on cable. Budgets ore often so low that paying talent a nominal amount became the norm, apart from such examples as the Housewives franchise, where cast members routinely earn upwards of $25,000 or more an episode.

Also, many of the stars of Housewives have parlayed their reality-show stardom into book and product deals - although after Frankel's sale of her Skinnygirl alcohol brand for a reported $100 million, network contracts with cast members were retooled to include what's called the "Bethenny clause," which grants the network a cut of profits from any cast member's business that is promoted on the show.

Currently, SAG-AFTRA covers hosts of reality competition shows under the National Code of Fair Practice far Network Television Broadcasting, also known as the Network Code. Contestants and cast members are not covered, but SAG-AFTRA has expressed support for unionizing those individuals as well. Certainly, reality television is rife with horror stories of individuals alleging mistreatment, and complaints about exploitation are not new. The conventional wisdom is that networks demand more extreme situations and salacious behavior because that's how they attract and keep an audience; the more sensational, the better. And unlike actors playing a role, reality cast members are indelibly associated with their "character" because they are portraying themselves.

In addition, unlike professional actors - who likely have representation in the form of agents, managers, attorneys, or all three - most people appearing in reality shows have no representation, and have little to no leverage to bargain for better pay and conditions.

The casts of the Housewives series and others who make a living from reality are outliers. It's hard to justify spending thousands on legal fees when you might earn very little from participating on a show. Cast members of shows where there are hundreds of applicants are on their own, which seems to make the need for an unscripted talent union that could demand better compensation and working conditions even stronger.

But would a non-scripted talent union succeed? A strong union relies on a large, committed membership that can effectively implement the two key tools available to it - namely, collective bargaining and strikes. Unlike actors, directors and writers, who devote their entire careers to their craft, unscripted talent may appear on a series for a few weeks or monthsand then go back to their regular jobs. While some individuals earn their livelihoods from appearing on reality series, most people are not relying on reality-show participation as their sole source of employment.

There is also the question of leverage. Whereas skilled, experienced and bankable actors are comparably limited, there is potentially an endless supply of individuals willing to participate in reality shows, where all it may take to get the job is a big personality and a willingness to expose yourself.

Separately, unlike actors, who are united in their demands from the studios, there are myriad motivations for the individuals who want to appear on unscripted TV. A Top Chef contestant may simply value the opportunity to appear on the series in order to promote her restaurant, while a cast member on a docusoap might care more about residuals or an episodic fee.

It isworth thinking about the level of cohesion that would exist between the disparate members of the unscripted talent community. Those people who will devote comparatively little of their career to reality television may feel that being on TV is its own reward. Others who appear on dozens of episodes that are endlessly repeated may feel differently.

Either way, what cannot be disputed isthat reality-show participants should not be subject to unfair or dangerous conditions.With or without a union, all people have the right to a safe and equitable workplace.

As our firm represents many production companies in addition to talent, we are naturally interested in how our clients could be affected by unionization in the unscripted industry. What we find is that production companies are often caught in the middle between buyers, who want more drama and higher ratings but are unwilling to increase budgets, and talent seeking higher compensation.

Of course, I believe that everyone who works in our industry is entitled to be fairly compensated, but I am concerned that if production costs increase due to unionization of costs, those costs may be taken out of prodco fees. That, in turn, may make it harder for some companies to thrive, which could then lead to layoffs in an already tight market.

Whether or not unionization of unscripted workers occurs, prodcos and buyers should ensure that policies and practices are in place to prevent and report unsafe and exploitative workplace conduct. Most already do so, especially following state-mandated anti-sexual harassment training and other laws that come into effect with the #MeToo movement.

The problem - one which is not unique to non-fiction television – is that many people fear speaking up. Production companies can work to combat this fear by clearly explaining to cast members the type of behavior that will not be tolerated on set, and the process for cast members to report such behavior. When misconduct is reported, prodcos should take complaints seriously, conduct investigations, and implement necessary action.

It was recently reported that two cast members on Below Deck Down Under were recently terminated for sexual misconduct.
Cast member Captain Jason Chambers made it clear that he had a zero tolerance policy for such behavior. Production companies need to do the same.

Originally piblished by Realscreen.

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