Performers call out for pay rights
A new Bill seeks to recognise and protect the economic and moral rights of actors
Darlington Michaels is as flamboyant on screen as he is in person. As the colourfully dressed Papa G for close to 20 years on the soap opera Isidingo, Michaels’ tsotsitaal-driven performances were nostalgic, over the top, but endearing all the same.
Standing outside his Braamfischerville, Johannesburg, home in slacks and a pyjama top, Michaels is subdued; perhaps in public holiday mode. He walks with a limp, a reminder of the stroke he suffered in 2013, which suddenly cut off his time on screen. “I was away for two years because of the stroke,” he says. “As you can see I am limping.
“I didn’t get the stroke here at home or while doing my own business; it happened while I was on a company obligation. I was assigned by SABC and Isidingo to go to the J&B Met in Cape Town. Unfortunately, when I got there I suffered a stroke. What was sad about that was that the hospital bills had to be paid by me, even though I hadn't gone there by myself.”
Michaels says his hospital stay, which was for more than two months, left him with bills of about R25 000. When he eventually returned to the show it was as a “call actor”, appearing infrequently, at the mercy of the show’s producers “You can't feed a family as a call actor,” he says. “To make an example: sometimes you can bring in R6000, sometimes it’s R26000, depending on the number of calls.”
With his health not quite what it was before the stroke, Michaels says it has been a year since his last Isidingo call. On the TV screen to the left, a Generations omnibus plays at half volume, inevitably colouring our conversation.
“The shows and films I have been involved in, they have been playing repeatedly on SABC and I never got any royalties out of that,” he says. “What I know is that if there is a repeat, procedurally, SABC must call you to say come and fetch your cheque.”
What Michaels is tacitly suggesting is that perhaps other actors negotiated their salaries more favourably than others. In his lounge, searching for an attorney’s number in a pile of papers marked with handwritten phone numbers, he’s a little removed from the surefooted Georgie Zamdela of Horizon Deep fame. He admits to having been a little “naive about these issues” for years.
“As far as I know, you sign a contract; there is a fee that is supposed to be paid out as a royalty for the repeats of which you get 25% of what you were earning per episode.”
Michaels says he has yet to collect any money for repeats and that, at some point in his career, he had opted to operate without any agents. He says he rode the wave of Papa G for so long that he started to believe in his own invincibility. And, because he is etched as that singular character in our minds, it is perhaps difficult for Michaels to secure other work. “People have this perception that I am expensive,” he says. “It's not like that. We suffer. What you are witnessing is unadulterated poverty. We're looking left, looking right. But I could still take many casual roles at my age.”
Although pensive about his future, Michaels is not defeated. He invites us to come and check out his Melisizwe Community Theatre group in rehearsal, so we can see the flame of Gibson Kente still burning within him.
Michaels’ fate is that of many performers gripped by an industry that is, at best, a fair-weather friend. In her submission to Parliament this month as part of a lobby for actors’ royalty rights, Florence Masebe said: “The narrative of poverty in the arts continues to be one that sticks with the performers while producers and broadcasters get the creamy side of every deal. As things stand now, South African actors are owed incalculable monies by the public broadcaster for all the works that were sold to MultiChoice for the SABC Encore channel on the DStv platform. There is still no clear position from the public broadcaster on when and whether any of the performers whose works are being rebroadcast on SABC Encore will get their due commercial exploitation remuneration for the said works. Families of departed actors, many of whom died poor, have lost all hope of ever receiving any compensation for this.”
Considered as freelancers, South African actors are not protected by labour laws that give workers room for collective bargaining, monitoring of workplace safety under the Occupational Health and Safety Act and social security through company contributions towards the Unemployment Insurance Fund. In addition to this, they have to make independent provision for retirement funding, medical aid and more specialised overheads such as vocal, acting and dance coaching to maintain their skills. Other monetary issues include the deduction of agents’ commission fees as well as taxes — all of which many actors struggle to meet when they’re out of work.
South African actors are governed under the Performer’s Protection Act (No 11 of 1967), which predates the emergence of television here. The Act does not consider the performer as having ownership of his or her performance. This means they do not have a say in how, when or where their performance is redistributed. Nor are they guaranteed, by law, to receive remuneration when it is redistributed.
The Performers’ Protection Amendment Bill of 2017 seeks to update this to ensure that those who do not recognise the economic and moral rights of performers will be subject to consequences.
Adrian Galley, chairperson of the South African Guild of Actors (Saga) says: “The Performers Protection Amendment Bill currently being discussed in Parliament holds out some hope of levelling the playing field, by granting actors certain inalienable rights by default. For a film to be made and to reach the public — through distribution to cinemas, television broadcast and online streaming services — certain rights must be transferred along the value chain. But the actor will be in a better negotiating position if the law acknowledges their ownership of those rights in the first place.”
In contrast to South Africa, other parts of the world have evolved legislation and treaties to recognise the contribution, economic and moral rights, as well as the significance of a performer in audiovisual works.
These rules and regulations were established to ensure that performers are recognised in the redistribution of their performances.
In addition to this, actors have the right to publicise their performances through sales or the transference of ownership should they see fit to profit from their work. The alternative to this would involve the actor giving broadcasters permission or a contract that declares that a sum of the profits made from redistribution must be considered for the performer’s remuneration or royalties.
American labour laws consider performers to be employees — allowing them the right to collective bargaining, strike action, pension and medical aid. They also have the right to residual payments long after their performance.
A tangible example is how the lead cast of American sitcom F.R.I.E.N.D.S is contractually entitled to about $20-million each from the $1-billion dollars that the production company behind it makes.
Contrary to the concerns expressed by actors to Parliament this month, in February 2016, the then communications minister, Faith Muthambi, said the SABC has provisions to pay residual payments based on 2% of the profit made by the national broadcaster. At the time, the SABC was said to be dealing with claims as they were made. So where are the wires being crossed? Why has this reached Parliament?
Neo Momodu, head of corporate affairs at SABC, says: “The standard contract signed with actors on SABC currently makes provision for the principal actors to claim either repeat fees or content exploitation fees from the SABC and many do so. The former applies to principal actors on shows that are repeated on the SABC channels, the latter to those actors when the show is licensed by the SABC to other parties.
“Performers who perform in an SABC-commissioned drama production do get paid residual fees [also known as repeat fees] only under specific payment conditions. The SABC only pays principal performers and writers where there is a repeat of the production in agreement signed with production houses.”
Masebe’s submission, a sentiment echoed by Michaels, is that although a framework exists to offer actors paltry repeat fees, a climate that discourages them from activating these still exists.
“We now have multiples of television channels and countless viewership platforms. The old freelance agreement is as good as dead since we now operate in an environment with many players and no legal regulatory framework,” she said to parliament earlier this month. “Even the very SABC that made this [30 odd-year-old agreement] with Performance Art Workers Equity operates in breach of this very contract. I am personally yet to earn 1 cent of commercial exploitation fees for the many dramas I worked on that have been rebroadcast over and over again. In fact, the little right to repeat fees that this outdated agreement with SABC assures actors gets removed by producers without consequence. Michaels said that in his experience of the industry, one was always made to feel expendable if one sought to be a stringent negotiator. Add to this, exorbitant agent fees meant that many actors chose to forgo them.
South African actors are not protected currently by labour laws that give them inalienable rights by default