Guest Column: Behind SAG-AFTRA’s Long-Awaited Victory in IMDb Birthday Display Battle

Guest Column: Behind SAG-AFTRA’s Long-Awaited Victory in IMDb Birthday Display Battle

Even before its March 2012 merger with the American Federation of Television and Radio Artists, the Screen Actors Guild expressed consternation over the revelation of actors’ ages without their permission by IMDb, the premier online entertainment industry database that boasts of its commitment “to being the most complete source of film, TV and celebrity information.” 

Ken Howard, SAG’s then-president, issued a press release in the fall of 2011 complaining that “IMDb publishes the actual dates of birth of thousands of actors without their consent, most of them not celebrities but rank-and-file actors whose names are unknown to the general public.” The release added, “When their actual ages then become known to casting personnel, the 10+ year age range that many of them can portray suddenly shrinks, and so do their opportunities to work.” Howard might well have added that the same held true for motion picture and television writers who, in 2010, had settled a decadelong class action lawsuit against networks, studios and talent agencies, alleging they too were the victims of rampant age discrimination.

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SAG’s concerns about performers were mirrored in an October 2011 federal court lawsuit filed in Washington by Junie Hoang against and Amazon (IMDb’s parent) for revealing her true birth date, conduct she alleged facilitated age discrimination. However, by April 2013, all but one of Hoang’s claims had been dismissed and a jury found IMDb not liable for her remaining breach of contract claim. Her appeal was unsuccessful.

Undaunted by IMDb’s recalcitrance and Hoang’s litigation defeat, SAG-AFTRA went to Sacramento to pursue its members’ cause. In January 2016, the union sponsored Assembly Bill 1687, which sought to preclude any “commercial online entertainment employment service provider” (i.e., the subscription-based IMDbPro website) from posting or otherwise publicizing “date of birth or age information” upon a subscriber’s request. More controversially, AB 1687 also required that such age-related information be removed from public view within five days “on any companion Internet Web sites under its control” (i.e., the public-facing website). By the time this bill reached the California State Senate, the Association of Talent Agencies, the California Labor Federation and WME-IMG had lined up in support. Opponents included the Electronic Frontier Foundation and several other tech industry organizations. AB 1687 garnered overwhelming support in both legislative chambers, and Governor Jerry Brown signed it into law on Sept. 24, 2016.

However, before this measure could take effect on Jan. 1, 2017, Inc. filed a complaint in San Francisco federal court against the State of California to prevent its enforcement. IMDb alleged that AB 1687 violated both the First Amendment and the Commerce Clause of the U.S. Constitution, as well as Section 230 of the Communications Decency Act. When IMDb subsequently moved for a preliminary injunction, SAG-AFTRA intervened in order to defend the constitutionality of the statute it had sponsored, arguing principally that AB 1687 was a mere regulation of commercial speech that deserves a lower level of protection than political or other types of speech. Before rejecting this argument, the federal trial court precluded SAG-AFTRA from even conducting any discovery to demonstrate how IMDb’s policies facilitated age discrimination. Even though the trial court held that combating age discrimination in the entertainment industry was a “compelling” government interest, it found no evidence that AB 1687 was “actually necessary,” that no “less-speech-restrictive alternatives” had been explored, and that the law was not narrowly tailored

In 2019, the California Attorney General and SAG-AFTRA appealed this ruling  to the Ninth Circuit Court of Appeals. In support of its appeal, SAG-AFTRA enlisted a wide array of friend-of-the-court supporters, including the AARP Foundation, the Studio Transportation Drivers of Teamsters Local Union No. 399 — and then-Los Angeles County Supervisor Sheila Kuehl who explained, “As a former actress who appeared in three television series in my youth, in particular a CBS television series that was on the air in prime time from 1959-1963 in which I portrayed a high-school age girl when I was already in my 20s and attending college at UCLA, I am well aware that it is possible to believably play characters who are younger than a performer’s chronological age.  More recent television series, such as Glee, confirm that this remains currently true.”

Perhaps even more critically, prominent LGBTQ organizations also came to the defense of AB 1687 in the form of a letter to the Ninth Circuit from the Transgender Legal Defense & Education Fund, Inc., Transcend Legal, Inc., Equality Federation, the National LGBTQ Task Force, the Transgender Law Center and GLAAD. In June 2019, these groups advised the appellate court that IMDb “has been recalcitrant when it comes to the issue of publicizing the birth names of transgender individuals in the entertainment industry without their consent.” They supported upholding the constitutionality of AB 1687 “because IMDb has exhibited a similarly defiant attitude with respect to publishing actors’ and other industry professionals’ ages and birthdates without those individuals’ consent. As with transgender individuals’ birth names, the nonconsensual dissemination of ages and birthdates all too often facilitates and perpetuates discrimination in the entertainment industry.”

While this appeal was pending, and less than two months after the LGBTQ community’s Ninth Circuit submission, IMDb modified its “deadnaming” policy to allow people to remove their birth names from its site — but only if the person no longer voluntarily used it and the person was not “broadly publicly known.”  Thus, for example, IMDb continued to use the birth names of Chaz Bono and Caitlyn Jenner.

Notwithstanding the State’s and SAG-AFTRA’s arguments, and those of this array of supporters, the Ninth Circuit in June 2020 affirmed the trial court’s decision. It concluded: “Unlawful age discrimination has no place in the entertainment industry, or any other industry. But not all statutory means of ending such discrimination are constitutional. Here, we address content-based restrictions on speech and hold that AB 1687 is facially unconstitutional because it does not survive First Amendment scrutiny.”

During the ensuing two and one-half years, and throughout the height of the COVID-19 pandemic, maintained its policy of refusing to honor the requests of entertainment industry professionals to have their age-related information removed and continued its practice of “deadnaming” prominent celebrities.

However, last week, SAG-AFTRA President Fran Drescher announced that the union had reached an unprecedented agreement with both the subscription-based IMDbPro and the public-facing IMDb sites.  Pursuant to that accord, any entertainment professional with an existing IMDb name page can join IMDbPro for free, claim their IMDb page and choose whether their age/birth year or an array of other demographic information will be displayed on their IMDb and/or IMDbPro name pages — all at no cost.  Beyond age-related information, both sites will now respect the choices of entertainment industry professionals about publicizing (or refusing to publicize) their gender, gender identity, pronouns, sexual orientation, race, ethnicity and disability.  In addition to SAG-AFTRA, GLAAD, Women in Film and the Anti-Defamation League were also reported to have collaborated in achieving this major policy turnaround.

While it is certainly true that some of this demographic information can be gleaned from other sources, it is also true that IMDb and IMDbPro have become the de facto, go-to sources for comprehensive information about the careers of entertainment industry professionals for casting directors and others seeking to employ both above- and below-the-line talent. And though this may not spell the end of unlawful employment discrimination in the entertainment industry, it is certainly a welcome and long-overdue first step.

Douglas E. Mirell is a partner at Greenberg Glusker Fields Claman & Machtinger LLP.  His practice focuses on privacy, defamation, publicity rights, copyright, trademark and First Amendment litigation.