The Truth About Foreign Levies

History is tangible.  It clings to the truth.

But there are invented histories.  The lies created for these exist for a reason,
and are never arbitrary.  But while such lies can be almost impenetrable,
there really is no such thing as a lie that can not be penetrated.

And that is what history is all about.

In the final months of last year,  this city,  Los Angeles,  focused a greatl
deal of attention on a writers strike.  That strike and the attention continued
into the new year.

Now the strike is over,  and it is widely believed that the writers have won a
stronger agreement and,  for now,  fair compensation for use of
their work on the internet.

But the writers are unaware of another collectively bargained agreement
that has been in place for over seventeen years and is not up for
renegotiation for another eight.

The existence of that agreement reveals that no matter how widespread
the belief is that writers are in a better position now,  that is not the
reality.

In the last weeks of 2007,  several events took place,  of which,
until now,  only a few have been aware.
 
In the Office of the Inspector General,  it was discovered that certain
evidence in a Department of Labor criminal investigation was missing.

In New York City, the documentary film NANKING opened for
Academy Award consideration without a clean chain of title.

And in foreign countries where amendments to copyright law provide
remuneration to audiovisual creators for primary use  -
     
         works exhibited in theaters, broadcast on television
         stations,  and  presented on cable and satellite

1. agreements which illegally access and divert these monies

were renewed,  continuing  to defraud  the citizens of such countries
as Mexico and Argentina and to violate the human rights of the creators
of all audiovisual works exhibited in those countries.

Those events reveal much about the invented history that is
now in play around us.

It is a history invented by the inside and outside counsel,   the senior staff,
and the elected officers of the Writers Guild of America West and East,
the Directors Guild,  the Screen Actors Guild and their alleged adversaries,
Nicholas Counter and the Alliance of Motion Picture and Television
Producers (AMPTP).

Removed  from evidence in the criminal investigation into so-called
foreign levies – another invented term for another invented history –
is a collective bargaining agreement,  first negotiated in 1990.  Having been
renegotiated several times,  it was last renegotiated in 2005
for a period of ten years.

Why would a collective bargaining agreement be missing from evidence
in a criminal investigation?   After all,  collective bargaining agreements
are available,  as required by law,  to all members of a union.

But the writers who are striking right now for a fair and just basic agreement
are unaware of this collectively bargained agreement that is not up for
renegotiation until the year 2015.

Yes,  Mr. Counter,  I am outing you.

Nicholas Counter,  the chief negotiator for the AMPTP,  and
Jay Roth,  the executive director of the DGA,  are two of the
chief architects of the so-called Foreign Levy Agreement.

In 1990,  five years before he would be rewarded with the
lucrative executive directorship of the DGA,  Roth was
outside counsel for the  DGA,  the WGA,  and the
Screen Actors Guild in negotiating the 1990 agreement.

The unions have told many conflicting,  but never truthful,
stories about this agreement for over seventeen years,   and
the Writers Guild and its usual shills have never been hesitant
to state definitively that it is NOT a collective bargaining agreement.

But in downtown L.A.,  in both federal and state court,
the Writers Guild and the Directors Guild have put something
very different into the record.

In 1990, five years before he became executive director of the DGA,
Jay Roth was outside counsel for the WGA,  the DGA,  and the Screen
Actors Guild in negotiating this collective bargaining agreement.

Roth has hired the law firm Latham & Watkins to defend the
DGA in the current class action lawsuit which challenges the DGA’s
claim that it has the right to access so-called foreign levies for directors
who are not members of the union.

Here is what Ernest J. Getto,  Daniel Scott Schecter and Kristin R. Stohner
have put into the record in U.S. District Court to explain why their removal
of the lawsuit from state to federal court was proper:

             for the simple reason that Plaintiff’s claims arise under, and are
             dependent upon, the collectively bargained agreements between
             the DGA and WGA,  representing the directors and writers,  and
             the numerous theatrical motion picture and television companies
             that produced the works.

Roth’s lawyers further state that:

             These agreements constitute “contracts between an employer
             and a labor organization”  and/or a contract “between …labor
             organizations” within the meaning of Section 301 of the
             LMRA,  and this Court has federal question jurisdiction
             over a dispute related to these collectively bargained agreements.

As WGA writers were striking for a better basic agreement,  this collectively
bargained agreement,  which has been hidden from them for almost eighteen years,   
was the only piece of evidence in a courtroom just fifteen minutes away.

When Roth was selected as the DGA’s new executive director in 1995,
then DGA President Gene Reynolds,  touting Roth in a letter to members,
is the first of several DGA presidents to misrepresent to the membership
what exactly it was Roth did as outside counsel for the DGA in 1990
by claiming that Roth was:

             “counsel to the DGA, SAG and the Writers Guild in joint negotiations
               with the Motion Picture Export Association and European Collecting
               Societies and governments on issues relating to copyright and levies
               on the taping and rental of videocassettes.”

There is no record whatsoever in any of the countries in which the unions
have agreements with rights societies of Roth ever having “negotiated”
with the governments of those countries “ on issues relating to copyright”
or levies of any kind.

Roth negotiated the 1990 agreement with Counter and the Alliance.

And why,  as Reynolds claims,  would an export trade association
be involved in negotiating issues relating to the copyright laws
of European countries?   What exactly were these issues?  What
issues relating to the copyright law of any country would ever be
negotiable?

And where are the records citing the resolution of these negotiations?

In fact,  the agreement entered into evidence in federal and state
court is signed by the AMPTP companies and it is well known
by the parties to that agreement and every renegotiation of it
that Nicholas Counter has always represented the studios on
so-called foreign levies.

And,  in fact,  no European entity is party to the agreement.

What is agreed to in the agreement is how to divvy up between
the AMPTP,   the DGA,  and the WGA the cash  the two unions
will be accessing from European rights societies
.
When the United States signed the Berne Convention Implementation Act
of 1989,   rights under national treatment treaties became available to all  U.S.
writers,  performers,  and directors.

And although Roth is also representing SAG,   it is agreed that actors
will receive none of  the monies European collecting societies have
collected in their names.

From Article 8

   “It is expressly acknowledged by the parties that SAG and those it
     represents have no entitlement to any portion of the Author’s Share
     under the levies referred to herein.”

However,   the “levies referred to herein,”  by law,  designate a portion  
of the Author’s Share to performers.

This heretofore unknown historic moment is now revealed:
In a back room out in Encino,  the WGA,  DGA,  and AMPTP
strip U.S. actors of their rights under the Berne Convention.

The current agreement is in place until 2015.

So much for “treasured solidarity.”

This does not mean,  however,   that SAG did not receive monies.

It means that no actor ever did.

Not Tom Hanks for FORREST GUMP.  Not Julia Roberts
for PRETTY WOMAN or THE PELICAN BRIEF.
Not Denzel Washington for THE PELICAN BRIEF or
TRAINING DAY.  Not Gary Oldman and Chole Webb for
SID AND NANCY.  Not even Bill Maher for CANNIBAL
WOMEN IN THE AVACADO JUNGLE OF DEATH.
Or one cent from AFTRA for the so-called foreign levies
collected for him throughout the nineties.

The heirs of Grace Kelly have not received the monies
collected for her for THE SWAN.

Or the heirs of Gregory Peck the monies for ROMAN HOLIDAY.
                                                                                                          
There are,  however,  in every country where these monies have
been collected and paid out records of the individuals for whom
monies were collected and the amounts paid.