Class Action For Back Royalties For Performers

There is a class action lawsuit being worked on by attorneys for the Performers Union.   The details are somewhat vague but the gist is that there is an effort underway to sue for royalties on behalf of performers.

It seems to be an effort in futility but you have to remember that this is the same way that mainstream actors ended up getting royalties and residuals….by intervention of the respective Unions.

As my reader Lurking Reader has pointed out “Who will they sue?”  and that is a good question.  Certainly Vivid, Wicked, Evil Angel and some others would be likely targets, since they have been around a while and are still in business.

But I have to wonder if anyone actually expects to collect anything.   I can see a case for no, in that it is simply an effort to bring the idea to the forefront, at a time when there is a lot of re-organizing going on in porn.  Almost everyone that has editorialized on Prop 60 for instance has pointed out that they are in favor of condom use in porn, and that performers shouldn’t be responsible for paying for their own testing and treatments. Consider what The Sacramento Bee said about it:

“Producers, not performers, should bear the cost of tests for sexually transmitted infections. And condom use is not too much to ask from an industry that routinely exposes its workers to sexually transmitted diseases, some of which can kill them. That’s why rules mandating protection against blood-borne pathogens on adult film sets have been in effect here since 1992.”

“Regulators are working with the industry and AHF to formulate comprehensive, updated safety regulations. This is beyond overdue, and they need to get busy. Producers and distributors, not performers, also should pay for more meaningful STD testing, as the measure suggests.”

Read more here:
The point here being that Porn Valley is already changing, albeit at the barrel of a gun, so to speak, so adding “points” for performers wouldn’t be such a stretch and the implications would be far reaching indeed.
This class action suit is something to watch but it is in the very very early stages, to my knowledge a judge hasn’t even given it class action status yet, which I think can’t be done until filed, so it has a way to go but it is certainly worth watching.


15 Replies to “Class Action For Back Royalties For Performers”

  1. Jamie Gardner

    How can performers sue over royalties that were never promised to them? Marilyn Chambers got a percentage of Behind the Green Door but that was agreed upon before the movie was released. Many mainstream movies have royalties but Hollywood accounting is frequently used to avoid paying actors extra money beyond their salaries. Creative bookkeeping has made made movies “unprofitable.”
    When the x-rated companies do not give royalties, they are being above the board rather then promising royalties and then cheating actors out of profits by manipulating numbers.

  2. BT

    I don’t think the who to sue is that complicated in theory – you sue the production company that hired the talent and owned the product. That’s the way mainstream works. Now, if they’re trying to do this retroactively, it can be complicated by the fact some of those companies are now out of business. And given that there’s no history of royalties in the industry, it may be tough to argue that royalties are due for work done in the past.

    I think the real argument is whether the way that the industry has changed, it now more resembles iTunes and Pandora than the industry in the past, where consumers are interested in individuals scenes, just like individual tunes, and therefore should get a royalty, just like songwriters and performers do when their music is played. To make anything work, even with a union, you need employees who are willing to withhold their services to get what they want.

  3. ManCrack

    Performer’s need to get rid of the scum of the earth and the Extortionist and the piece of shit attorneys that back that crap. Queer fan boys that use multiple twitter accounts that will harass the performer’s in the name of the production companies that will pay them with free DVD’s and fan shit to harass the xxx stars.

  4. Removed Account

    If this was even remotely possible then any contractor in any industry could go back and sue a company after a job was finished, sometimes years later and demand more than they were paid for the job they did – even though when they did the job they were paid the amount the agreed upon and were contracted for.

    The only thing this is going to accomplish is padding some lawyers paycheck and making a judge fall out of his chair from laughing this dumb ass suit out of the court.

  5. brendachicago

    You figure the union would want to start with developing relationships with producers not by going to war with them. Also most of the producers arent making the big bucks any more. This is 16 yrs too late. Now working with them for better working conditions and possible future royalties now that works. Also porn doesn’t have the same razor sharp accounting systems and departments, the movies and music business have. Say they won, it would throw more producers out of business than performers getting big checks.
    Also the only way unions work is big numbers of members, if you dont have that you have nothing. Most performers who are focusing on paying this months rent aren’t going to walk off set because they are told to.
    The movie business was easy because there were maybe 5 movie studios when the union started.

    “The Guild was founded in 1933 in an effort to eliminate exploitation of actors in Hollywood who were being forced into oppressive multi-year contracts with the major movie studios that did not include restrictions on work hours or minimum rest periods, and often had clauses that automatically renewed at the studios’ discretion. These contracts were notorious for allowing the studios to dictate the public and private lives of the performers who signed them, and most did not have provisions to allow the performer to end the deal”
    Very different than the free lance porn world.

  6. BT

    Sorry, Jamie, but you are mixing apples and oranges. Royalties, or residuals, are not the same as getting a percentage of the gross or profit.

    Royalties – which is what musicians and book authors receive – or residuals – which is what actors, directors and script writers receive – is a payment that is paid every time a book is sold, a song is played on the air or in public, or a television show, radio show, or movie is re-aired or re-released in theaters. They are not tied in any way to whether a project made or lost money for the production company or the broadcaster. As an example, as a television script writer, I received a $25,000 fee every time a TV movie I wrote was re-broadcast after the original air date. It did not matter whether my producer made or lost money on the project. That’s what porn talent is seeking: You pay me $1,000 for a scene, but I get a small fee every time someone downloads my scene as a royalty. By the way, in mainstream, royalties/residuals are standard to the contract and are non-negotiable unless you’re a really in demand writer and can command a bigger royalty than the standard. That’s what the union accomplished.

    What you’re referring to is in addition to the standard, non-negotiable residual. That is giving the actor, writer or director a piece of the action. Today, it is generally tied to the gross receipts and not the profitability of the project. That way it is not subject to accounting. But again, that is outside the scope of royalties/residuals and has nothing to do with the union. That’s what agents do.

  7. MikeSouth

    Bear in mind Brenda, that Directors/Producers may well become a part of this class, as most of them don’t own the product when it hits the market. And as I pointed out this move may not be so much to recoup money from past releases as it is to make royalties/residuals a part of future agreements.

    One thing I have noticed about prop 60 and the royalty thing is the absence of talent agency thoughts/position. Presumably they would be very much against it but the FSC involvement may well have backed them into a corner they dont wish to be in.

  8. phyllisha

    Bingo Karmafan! We are not looking to sue Porn Companies, they are barely surving as it is, they would never survive the hit. We need more companies to work with not less!

    The only way to sign up for the union, is by going to the website,
    If you sign up, you can sign on to the class action law suit, if you would like too.

  9. BT

    If this were mainstream, directors would certainly be part of it. They get residuals when the product they directed is rebroadcast.

    In mainstream, at least, producers typically own the product they produce. That’s who would be making good on residuals.

    I’m also surprised that talent agencies haven’t taken a position, since its in the best interest of their clients, which is what they’re trying to promote. And yes, I don’t imagine that you can recoup from past releases, but I think they can argue for future agreements.

  10. BT

    PS, Mike: Nothing is easy, so please don’t think I’m minimizing this. That said, I think porn talent has a much better case in arguing for residuals than porn producers have in arguing against it. I cannot think of another artistic field in which talent is not compensated when their work is republished or rebroadcast. If you’re a magazine writer – my primary job for low these many years – you are paid a one-time publication right; if anyone wants to republish it, including the magazine that originally hired you, they have to pay you a republication fee, which can be quite lucrative. I’ve had any number of $5,000 assignments turn into $15,000 paydays after reprints. If you’re a photographer, the magazine that hires you for a shoot only contracts for 1 time publication rights – if they or any other publication wants to publish those same images there’s another fee. If the radio plays your tune or its used in a movie, television program or ad campaign, there are fees. If you’re an actor or director and your television show or movie is rebroadcast, you get a fee. A playwright or a choreographer gets a fee every time their play is produced or their original dance movement is used by another company.

    Only in porn is the talent paid once and tossed aside.

    Frankly, I think residuals/royalties would be a good thing for porn in the long run. Yes, there may be fewer production houses, which means less work and for fewer talent, but it could weed out the scum bags and bring professionalism back because only the strongest producers would survive.

  11. rawalex

    If I was running such a lawsuit, I would target one of the many video companies that still exist, but are incredibly weak. Perhaps a company that hasn’t produced much of anything for a while, but still is hanging in.

    My idea would that they are likely not to contest or would only fight it with limited resources, and thus might end up setting a precedent with a ruling in favor of the union.

    Taking on Vivid, as an example, would be painful. They would face Steven and a fairly solid list of lawyers who could easily tie this whole thing up for months (if not years) in legal motions, depositions, change of venue requests, and 100 other things. Unless the union has deep, deep, deep pockets they are likely to get outspent and out timed.

  12. BT

    The auto union does this, sort of, which is that they target the weakest of the Big 3 – or the most dependent upon labor at the time – to negotiate the new UAW contract when it renews. The outcome then sets the stage for the contract with the other two.

    Where the analogy falls apart is that the UAW is already established as are benefits – and, its a negotiation and not a legal action.

    In the case of a legal action that would impact the entire industry, especially those production houses with deep pockets on a relative basis, there is no way that a Vivid or Wicked would sit on the sidelines because the outcome would impact them. They would either seek to join the suit, or put their resources behind the defense of the action. For the life of me, I cannot imagine that the major players in the industry would put their futures in the hands of an under-capitalized competitor that couldn’t afford to defend itself.

  13. spawn777

    One key thing to remember here is that there are far more trackable ways to know what people have paid to watch today, than there were in years past, or ever in the case of radio. It’s not that inconceivable that royalties should make their way to individual performers. even if they were only paid on Pay per minute views, and DVD sales, it would be something

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