Earlier this week, SAG-AFTRA filed an unfair labor practice complaint vs. Epic Games over AI Darth Vader. While we still don’t have results from this complaint being investigated, we now have sufficient reason to believe that SAG-AFTA’s complaint could be turned down.
Attorney and YouTuber Richard Hoeg made a twenty minute video explaining the situation and his legal analysis on his YouTube channel. We’ll share our own summary of his explanation, but of course, it’s worth watching his video so you can see him explain it in his own words.
If you may remember, we made it a point not to refer to SAG-AFTRA’s legal action as a lawsuit. There is a specific legal definition of unfair labor practice in US labor law that’s associated to the National Labor Relations Act. What you need to know is since this is not a lawsuit the National Labor Relations Board (NLRB) can investigate and remedy this complaint directly. If the NLRB can’t settle the matter, that’s when it can go to one of their Administrative Law Judges, to be treated like a federal case.
According to Hoeg, SAG-AFTRA’s claim is that Epic Games should have undergone collective bargaining with them before they could go ahead with using James Earl Jones’ voice to make AI Darth Vader. However, this presupposes that as a member, James Earl Jones has to be represented by SAG-AFTRA. Hoeg points to section 157 of the US Code, and we’ll highlight the same section he drew attention to below:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
Hoeg’s analysis doesn’t mean that SAG-AFTRA has a non-zero chance of coming ahead in their unfair labor practice complaint. But it’s a major flaw in their argument, that Hoeg suggests that unions have a habit of ignoring. Because as we pointed out earlier, several states in the US put together right-to-work laws to protect a worker’s right to refrain from joining unions or collective bargaining.
Hoeg doesn’t litigate SAG-AFTRA’s argument that they have the right to represent a deceased union member over that person’s family or estate. But he does point out that licensing a person’s likeness, which would include their voice, isn’t a term and condition of employment.
Finally, Hoeg points to a valid concern that led to SAG-AFTRA’s legal action. And that is that unions like SAG-AFTRA may no longer be able to effectively bargain with employers, if these employers can just license work from creatives instead of dealing with unions. And this opens up a new can of worms between unions and non-unionized workers. If the NLRB rules vs. SAG-AFTRA here, that could extend to living creatives who decide to work directly with employers and pass over unions.
With all that said, we’ll have to wait for the NLRB to respond, if this is immediately dismissed or becomes an investigation, and what happens after that. But for now, we highly recommend you watch Hoeg’s video below.
