Hey, where’d he go?

Well, I’m pretty busy right now, working on the movie. But also, given that leadership dropped their reality and animation (and presumably their sympathy strike) demands, and press blackout negotiations are underway, it seemed like a bit of an inopportune moment to offer my analysis of the deal. I’ll let everyone do their thing, and let’s see how it shakes out. I certainly have plenty of opinions about some of the arguments out there, a few of which are a bit misguided (Justine Bateman’s comes to mind).

In the meantime, here’s a flyer for a worthy event I’m happy to promote. The Industry Strike Fund helps offset some of the collateral damage the WGA strike has caused in the entertainment community. Please consider attending this event, or simply donating here.

Click (once, and then again, I think) to make bigger.

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The DGA summary had one notable omission: what about ad-supported streaming for theatrical movies? The last we heard from the AMPTP, their offer was zippo. Nada. Nothing. “It’s promotional.” Riiiiight.

I’m happy to report that the DGA deal locks in a rate of 1.2% of 100% of distributor’s gross on ad-supported streaming for theatrical films. That’s fantastic news.

Edited to Add:  Some of you have been asking how gross works via ad-supported streaming.  I’m trying to find out.  It’s part of the television streaming formula too, which goes to 2% of distrib. gross after benchmarks.  I’ll let you know whatever I can find out.

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While I continue to study the terms of the deal, I was forwarded a copy of an email John Wells sent to another writer who was interested in his opinion on the deal. John granted me permission to republish his email here. The following is the email, unedited.

---

Dear Jim,

I think the DGA deal is good. Very good. For writers, for directors, for the future.

Let me run it down:

EST – ELECTRONIC SELL-THRU (download to own)

3.25% of 20% on Theatrical product after the first fifty thousand units are downloaded (first fifty thousand units are paid at the old homevideo/DVD rate).

3.5% of 20% on Television product after the first one hundred thousand units are downloaded (first one hundred thousand units paid at old homevideo/DVD rate).

Our current rate is 1.2% going to 1.8% of 20% in homevideo (Ed. Note:  Not exactly.  It’s 1.5% going to 1.8% of 20%). This DGA deal doubles our much hated homevideo/DVD. A rate we have tried to improve on for over twenty-two years without success. Twenty-two years. As recently as a few weeks ago the Companies were still saying they would “never, ever” raise this rate. One company exec told me we were “out of our fucking minds” if we thought we would ever get an increase in the DVD rate for EST. This is a huge, historic victory for everyone.

MADE FOR INTERNET – DERIVATIVES (Webisodes/mobisodes)

The DGA got jurisdiction over made-for and derivatives. The AMPTP agreed that all “high budget” made-for and derivatives would be DGA covered employment. The Companies are required to make Pension and Health payments for a DGA director and his/her team and to negotiate minimum payments in good faith.

On “low budget” made-for and derivatives, the DGA has jurisdiction if the Company wishes to employ DGA members, with the same requirements to provide Pension and Health and negotiate minimums in good faith.

The definition of high budget is also very encouraging: $15,000.00 per minute, $300,000.00 per episode, or $500,000.00 per series — whichever is lowest. To put this into perspective, QUARTERLIFE, the web series that Herskovitz/Zwick are producing is being made for more than three times this amount and would clearly be covered employment, as would all of the mobisodes and webisodes made for existing shows so far. Another big win for all of us.

Just as an aside, this “high budget – low budget” solution was championed by several members of our WGA negotiating team and it’s great to see it’s the same solution arrived at by the DGA.

AD SUPPORTED STREAMING

A 17 day free promotional window on existing shows.

A 24 day window on new shows.

As a practical matter, this is actually a two week window (three weeks for new shows) with the Companies allowed to “preview” the show on-line for up to three days prior to it’s initial run for promotional purposes.

After the initial window, the Company would pay $600.00 (for an hour program) for the right to stream each episode for an additional 26 weeks. After the first 26 weeks, the Company would pay an additional $600.00 for 26 more weeks. For a total of one year at $1200.00.

If the Company chooses to leave the episode available for ad-supported streaming after the two 26 week cycles, they would pay 2% of distributor’s gross going forward. Distributor’s gross is the definition we always wanted and they didn’t want to give us.

The $600.00 figure is 3% of the standard residual rate (or 6% of the rate annually) and is tied to the minimums, so as minimums increase each year, the $600.00 will increase right along with it.

This is an extraordinary figure. I’d been pushing a 5% rate per year and assumed it was a real stretch to get that. We got 6%. Unbelievable.

A momentary aside, you’ve asked me before about the AMPTP’s earlier offer in streaming that would “replace a $20, 000.00 residual check with a $225.00 residual check”. A bumper sticker slogan that’s been repeated often in last few months. While this kind of statement is very useful for keeping people fired up on the picket line it doesn’t hold up under even the mildest scrutiny. It’s apples and oranges.

The statement assumes that streaming will replace network reruns, but for most shows, there are no network reruns. And the shows that do get rerun are rerun because their numbers hold up well on rerun and fill slots (Saturday night anyone?) where it’s not economically feasible to stick in original programing.

The total residual load for a network rerun across the three Guilds is approximately $100, 000.00 per hour. No other form of programming (reality/game shows) is that cheap. That’s why the shows get rerun. And for those shows that don’t get rerun, the studios are dependent on syndicated revenues and foreign sales to make a profit on these shows.

The Companies are going to jealously guard the value of our work to make sure they don’t undercut the syndicated and foreign market value of these episodes. I suspect we’ll find the Companies make most shows available online for the initial “free” promotional window and maybe one 26 week period and the episode will disappear online until the episode has been fully exploited in syndication and foreign. Only to “reappear” online as a library piece some years later in the hope of “soaking up” some library “gravy” after we’ve seen our full syndication and foreign residuals paid.

ONLINE RENTALS

This has not been widely reported, but the DGA was able to get the Companies to reconfirm the 2001 Internet Side-letter. What does the 2001 Internet Side-letter say? Well, in 2001 we were able to get the Companies to agree that all rentals occurring over the Internet would be paid at 1.2% of 100%. The recent announcement of the Itunes deal and the Netflix deal will clearly fall under the 2001 Side-letter and be paid at this much higher rate (four times or more the current average homevideo/DVD rate). As would any Internet “On Demand” models that emerge. This is very important. We had assumed that the Companies would make a run at getting the online rental rate down to whatever their eventual EST rate would be. The DGA made sure that didn’t happen.

This may become our most important rate as the Internet market matures. The Companies have made it clear that they would much prefer nurturing an online rental market rather than an EST market. Why? The EST market is going to cannibalize their highly profitable DVD market. An online rental market will supplement it. This is another big win for all of us.

FINANCIAL REPORTING

Also largely unreported is the DGA’s new language on financial reporting and auditing of these new markets. In an unprecedented move, the Companies negotiated with the DGA to allow the DGA full access to all of their un-redacted financial records and contracts in new media during the term of this new deal. This has never happened before. It will allow the DGA to analyze whether the terms of this new deal are working and if the revenues are being properly reported. This is another extraordinary aspect of this deal and a cause for celebration.

That’s it. The headlines. And because of pattern bargaining in our industry, we’ll get all of it in our contract.

While the DGA richly deserves our thanks and appreciation for negotiating a terrific deal that will serve as a template for all three creative Guilds, none of this would have been possible without the blood, sweat and sacrifice of WGA members during this very effective strike. The Companies made a deal they didn’t want to make because of our resolve. They clearly understood how important these issues were for our members and stepped up to resolve them.

Our Negotiating Committee has numerous issues that are specific to writers that must still be resolved with the AMPTP: the term of our next contract, pension and health issues, separated rights on new media, and jurisdiction for material written for derivatives that will not be filmed (show blogs, web-only stories, etc). But this is a historic deal. We’ve won. The strike was necessary to win it and I can only assume our Negotiating Committee will be sitting down with the AMPTP by early next week to resolve these last, final issues.

It’s a very good day for all of us.

John

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The DGA deal was announced today.

Skip past the news articles and summaries.  They’re incomplete.  For the fuller picture, go here.

Before I give my opinion on any of it, the next thing I’ll write (I guess tonight) will be a careful, facts-only explanation of all of it for those of you less versed in Guildspeak and the arcane nature of some of our formulae.

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Cute.

Here’s what I wrote in my last post.

“The first thing we all have to do is take a good long look at whatever the DGA deal is. And now when I say “we” I mean WE. You, me, Patric Verrone, the NegCom…everyone. If a deal comes out this week, and we have people sending signed letters to our union demanding that we accept it…and if we have union leaders firing RPGs off in the press about how it’s a cave and a sellout…then we might as well just stop pretending we’re in the business of collectively bargaining for employees, strap on some lycra tights and convert ourselves into an Extreme Fighting league.”

In other words, I don’t want pressure groups sending threat letters to our union, and I don’t want our leadership immediately slamming the coming DGA deal in the press.

Pretty simple, pretty moderate.

THR made the “and” into a but…as in, if we send threatening letters BUT the leadership slams the deal, then this would be bad.

The nice thing about blogging is that I know the reporters who read my blog and then quote it will certainly come back and read this.

So guys?

“But” is different than “and.”

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It’s extremely likely that the DGA will be announcing a deal with the AMPTP this week. Smart money says it happens tomorrow.

Forget about what happens next.

Let’s talk about what you’re going to do next.

And who are you? You’re a guild moderate. You’re not running crazy in the streets shouting that you’ll go fi-core. You like your union…hell, maybe you love it. You hate the deal the AMPTP offered us, you’ve followed the strike rules, you’ve picketed…but you’re not exactly thrilled with how things have gone down. Maybe you thought we should have done less shouting in the press, or fewer angry/snide letters to the membership. Maybe you thought telling a crowd that “we will make a deal that includes reality” was a bit ridiculous. Maybe you thought sticking with our demand for sympathy strikes and jurisdicition over another union’s work area was counter-productive.

My God, maybe you disagree with your leadership!

Oh no!

Fair warning: if you’re one of those people who simply can’t make the distinction between loyal opposition and “traitorous coward,” then stop reading. If you are, say, the idiot who announced that if they ever met me, they’d like to “punch me in the heart” because I dare speak out loud about my own union’s policies, then yeah, go away. Everyone since the beginning of time who has said “Keep your mouth shut!” or “Love it or leave it!” or “Don’t speak out against the family!” is basically acting out of their own fear that their position is too weak to survive open critique.

And it’s not exactly conducive to that all-important unity everyone’s always going on about.

Even worse, if you’re one of the people who honestly believes that we shouldn’t openly question our leaders because during a strike, we are like soldiers at war who should not question orders, then please…go away (but first, read about labor unions). I’m not a soldier. Soldiers don’t operate within a democratic system. They operate under a chain-of-command. When you advocate analogizing military systems to democratic organizations like labor unions, you’re showing a bit of a fascistic streak.

However, if you’re someone who agrees with the following comments from Bill Maher…

[My] writers are important to me. As Paul McCartney once said, I’d rather have a band [to play with] than a Rolls Royce, and I’d rather have my writers than a Rolls Royce. And for sure, corporations are taking over everything and strangling this country and strangling little men. We do need unions more than ever but…

…what I don’t love is an atmosphere that has taken over this town. An atmosphere of witch hunt and threats, and that’s coming from the union and I don’t like that. The analogy is this: liberals criticize the conduct of the Iraq War, whether that was the right move and what it’s led to, and the Bush administration tried to conflate that by saying if you [believe this] then you don’t support the troops. That was a lie then and a lie now.

In the same way, when I question whether this was the right strike at the right time, and I question the leadership which has not been very consistent…it’s the same kind of deal. You have a situation where these guys, these writers have been led into a situation in which there is no exit strategy, and we may not win this war. So we’re not wrong to criticize it. This is still America.

…then stick around. Cuz I want to talk to you.

Oh, and congratulations for not losing yer frickin’ mind.

I’ve been getting a lot of emails and phone calls in the last few days. There are a lot of you out there. And you’re worried about what’s going to happen after the DGA deal comes out. Some of you are highly agitated. That’s to be expected. This strike has been longer than leadership would have hoped, and we’ve gotten an extra-large cupful of jack squat to this point. When people lose faith in their leaders, they start to come up with plans and tactics and strategies.

My message to you all is simply this.

Relax.

Take a deep breath.

And please, for the love of God, don’t do anything stupid.

The first thing we all have to do is take a good long look at whatever the DGA deal is. And now when I say “we” I mean WE. You, me, Patric Verrone, the NegCom…everyone. If a deal comes out this week, and we have people sending signed letters to our union demanding that we accept it…and if we have union leaders firing RPGs off in the press about how it’s a cave and a sellout…then we might as well just stop pretending we’re in the business of collectively bargaining for employees, strap on some lycra tights and convert ourselves into an Extreme Fighting league.

The second thing we all have to do is TALK. We have to talk to each other. And you know, I am as guilty as the next guy. Patric and I haven’t spoken in a few months (imagine that!), but I did work very hard to help get TWC/Dimension to sign an interim deal with the WGA, and Patric was nice enough to send me a note of thanks.

Maybe we could work our way up to a phone call next.

We have to start talking to each other because like it or not, Patric’s right about one thing: we’re all in this together. I don’t want to quit my union. I don’t want to threaten my union. I want to convince my leaders that not everyone agrees with every damned thing they say, not everyone agrees that “unity” ought to be a catchphrase for “obedience,” not everyone agrees that their strategies are sound, and not everyone agrees that disagreeing is tantamount to weakening our Guild.

Here’s what weakens the Guild.

Bad strategy, bad execution, inconsistent messages, fear and panic.

Reasoned dissent? Public discussion? Free exchange of ideas?

No.

Somehow, I managed to be both critical of leadership and help get TWC into the fold. Yes folks, the world isn’t just black and white.

If you disagree with our leadership mildly or moderately or severely, don’t be afraid of the dogpilers, the shouter-downers, the angry mob, the religious zealots and the swirly-eyed Kool-Aid guzzlers. This is as much your union as theirs. You pay dues, you vote, you matter…end of story.

(Note:  I want to be clear that the above is not meant to refer to “people who disagree with me.”  There are a lot of critical thinkers that disagree with me.  I’m talking about the jerks who believe that “shut up” or “I want to punch you” are acceptable substitutes for rational discourse.  Everyone should repudiate them…and that goes for people who argue any side of these issues.)

But don’t–I repeat–don’t be hasty. Take a deep breath, review the DGA deal, and then let’s all talk. Let’s talk with our leaders respectfully. For all of our differences, and for as tough as my criticism has been, many of these writers are my friends…and I suspect they are in a very emotional and exhausted place.

It’s time to start forging some bridges between moderates and militants. When the DGA deal comes, there will be no more time for blame and recrimination and hindsight.

My goal now is what my goal has always been. I want us to sign the best deal I believe we can get.

Just as our leadership needs us to make the strike work, we need them to make a deal work.

Patience. Deep breaths. Ignore the lunatics and shit-flingers. The Theater of the Hysterical is drawing to a close.

Let’s see if a new day of rational discussion can begin.

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Sometimes the rules and regulations we have to follow are inconvenient. Annoying, even. One of my recent posts was about the interim deal the WGA made with Letterman (and now UA), and how it ought to be ratified by the membership.

No doubt it would pass in the 90 percent zone (all the more reason to do the vote, I’d think), but sure…it involves printing ballots, mailing them, counting them…

…caring about the constitution…

…giving a shit what the membership actually thinks…

Annoying stuff like that.

One of my problems with our leadership is that they have a tendency to be a bit cavalier toward our constitution and our MBA. For instance, they pushed through a constitutional amendment to rearrange our relationship with the WGA East. Part of that deal was a requirement that the two guilds either decide upon common membership standards, or have an arbitrator do it for them. They did neither.

Even though we did vote on that one.

Similarly, I was there when Patric Verrone told a room full of hundreds of reality TV employees that if our organizational effort was successful, the WGA would waive their initiation fee entirely. Only problem with that is that our constitution says that the Board of Directors can only reduce the initiation fee to an amount no less than $500.

But hey, who cares, right? It’s just a bunch of silly rules.

Then there’s the strike rules, which, unlike the constitution, we are all meant to take VERY VERY SERIOUSLY.

There was that curious strike rule that forbade WGA members from writing theatrical animation…but that one quickly went by the roadside as the Guild realized it couldn’t really stop writers from working in areas another union already covers.

And now there’s the strange case of Jay Leno.

According to the New York Times, Patric Verrone apparently told Jay that he could write and perform his own monologue material.

“Jay said, ‘Let me get this clear: I’m allowed to write my monologue,’” said the writer, who asked not to be identified because he was a strike supporter and did not want publicly to challenge the guild’s version of events. “Verrone said, ‘Well, since you are taking one for the team, we won’t hassle you about that.’”

Couple of things about that. First, there’s a difference between speaking “unidentified” and “not publicly.” This writer’s charge couldn’t be more public. On the other hand, I understand his concern about being associated with public criticism of Verrone, Young or the WGA leadership. I can’t say it’s been a walk in the park for me, but whatever. I’m happy to be the jerk that uses his name.

Anyway, Verrone apparently gives the okay to Leno to write and perform the monologue, and then does a 180 and decides Jay can’t write and perform his monologue.

The problem is that our strike rule here seems to contradict our MBA (which is still in effect).

The relevant passage says that the following isn’t literary material (i.e. the stuff our contract covers).

material written by the person who delivers it on the air unless such person has written material for delivery by another person as well as by himself/herself on that particular program; provided that, unless elsewhere herein excluded, the following shall not be excluded: Such material written for any dramatic programs, and such material written for comedy-variety programs broadcast in prime time on a basis of once-a-week or less unless the material was completely written for another purpose prior to such person’s engagement.

Okay, let’s try and parse that.

This paragraph talks about excluding material (written monologue jokes) if it’s written and performed on air by the same person (Leno) unless Leno writes material for someone else to deliver on that particular program.

I’ve seen Leno’s show. It’s pretty much a one-man act. I’m going to presume that Leno only writes for himself…and doesn’t sit around scribbling quips for Kevin Eubanks.

What’s not excluded? Self-performed material in dramas (not The Tonight Show), comedy-variety programs broadcast in prime time (not The Tonight Show) on the basis of once-a-week or less (not The Tonight Show) or material written for another purpose (not The Tonight Show).

Frankly, the way the above provision is worded, it seems like it was created solely to exclude late night monologues from “written literary material covered by the WGA.”

So what’s going on here?

Let’s put aside Verrone’s alleged 180 and all that it implies. Let’s even put aside the madness of strike rules that reach beyond the governance of our contract and fundamental jurisdiction.

How does this help anything? How does fighting against Jay Leno and his decision to write his own jokes help get us a contract? How does letting it happen hurt us getting a contract?

It doesn’t do anything. Unless the lack of a Jay Leno monologue somehow convinces the DGA to not bargain early and, in fact, link arms with us and fight to the death for the deal terms we’re asking, picking a strange and likely losing battle with Leno makes no sense at all right now.

I think we should just leave the guy alone. He could have been on air since our strike began, but he stayed out. Didn’t have to. Did. And if he owned his own show, there’s no doubt he would have signed the same interim deal Dave signed. He doesn’t, he did the best he could, he’s not asking his writers to go fi-core and come back to the show, he’s just trying to exercise his right to write self-performed material as excluded by the WGA…and our leadership apparently feels the strong need to try and stop him.

Well, good luck with that.

Meanwhile, over in the East…things are getting truly bizarre.

In a stunning display of awful timing, miserable management and overall incompetence, not-soon-enough-to-be-retired WGAE Executive Director Mona Mangan has somehow managed to enrage her own employees so much…they’re now threatening to go on strike.

Yes, a labor union’s employees are going to strike against “management,” aka the labor union.

What the hell?

I remember sitting in a room with Mona a few years ago when the WGAw and WGAE were trying to negotiate a settlement to our constitutional dispute (note: that was back when people gave a damn about what was actually in that document), and Mona brought up the fact that the WGAw’s staff employees weren’t unionized, while the WGAE’s staff employees were. Apparently, she felt this was just another way that the WGAE was more of a “union” union than we were.

Heh. I guess she should have ran that one past her actual staff.

Apparently, Mona negotiated a contract with her staff’s union. They ratified the deal, but then Mona apparently decided to change some of the terms of the agreement after it was ratified, which is sort of like the seller trying to hike the price of an eBay item after the auction closes. Normally, I’d think there would be no way in hell this could be true, but it’s Mona. This is the woman who “closed” a deal with PBS, but took nearly three years to actually put it to a vote. This is the woman who has had her CBS newswriters working without a contract for years now.

Oh, but it gets worse.

Because she is apparently reneging, and because her staff’s union is rightly refusing to sign a new, lesser deal than the one she already agreed to, Mona decided to delay paying her staff their Christmas bonuses.

The word that comes to mind is “Jesus!”

Some great hero of labor she turns out to be, huh? It’s all pickets and the working man until she’s management…and then it turns out her people have to strike against her. What a joke…and what a terrible embarrassment to boot. For as much criticism as I aim at my union’s leadership, they are light years beyond Mona in terms of credibility, competence and general decency.

By the way…why the hell aren’t the CBS newswriters on strike???

They should have gone on strike the minute we did. They will never have more leverage than right now, while the rest of us are striking. All for one and one for all, as it were. They were handed a terrible offer years ago. Mona didn’t take it, but she couldn’t get them a better one either, so her plan was apparently to do…nothing.

No new contract. No raises for the newswriters. Nothing.

So when we struck, did she finally take them out?

No.

They’re still working without a contract while we refuse to work. And yeah, those news reports generate ratings for CBS while we’re trying to weaken them.

Thanks Mona. You’re a real peach. Retire early, wouldja?

Lastly, tomorrow is potentially the beginning of the end.

Of course, “the end” can mean different things.

The DGA will commence negotiating officially with the AMPTP tomorrow. I wish them (well, “us” too…I’m also in that union) all the luck in the world. I truly believe that they are negotiating for all of us.

May they achieve the deal that we could not.

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It’s been essentially confirmed that the Nikki story regarding a secret cabal of A-listers plotting the WGA’s doom is based on a hoax.

Nikki hasn’t retracted the story yet.  At least, I don’t see a retraction.  She ought to.

Even stranger, the hoax involved…

…you know what?  I’m not gonna add more grist to that particular rumor mill.  I’m sure all parties involved, anonymous and otherwise, have had a strange enough week without me piling on.

But I will say that I had nothing to do with it.

That should go without saying, but one of the problems with the rumor culture is that people will attempt to fill in names for “stuff.”  I spent a dizzy afternoon first defending the names of good friends of mine who were suspected as the ringleaders of some dissident group, and now I’m reading vague accusations about me and this hoax on another website.

I’ve deliberately avoided commenting on Nikki’s more rumor-y stuff, because I’m not Perez Hilton or TMZ.  I’m way wonkier (and my next piece about this whole Jay Leno brouhaha will be appropriately MBA-nerdy).  I’ve never met Nikki, and frankly, I have nothing against her.  She can do whatever she wants.  What’s crucial for the rest of us is to keep in mind that her website doesn’t solely exist to inform and educate, but to sell advertising clicks to L.A. Weekly, Fox Searchlight (member of the AMPTP), Amazon and whoever else is in her advertising queue.   I don’t know what her standards of publish/don’t publish are, but again…it’s her site.  All I know is that everything there has to be taken with at least a grain of salt until there’s independent corroboration.

The way you guys should take everything I say with a grain of salt…until there’s independent corroboration.  I’ve gotten things wrong before.

In the meantime, there may come a day when like-minded writers get together to magnify their political power in this union.  Should that come to pass, it wouldn’t (couldn’t!) possibly happen until there was actually something to argue for, like a reasonable offer from the AMPTP.

There hasn’t been one yet.  That’s something everyone can agree on.

Well, that…and that Britney Spears is a bona fide nutjob.

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Got a few emails today asking if I have anything to do with this.

Nope.

Didn’t know about it, wasn’t invited to it, don’t know if it’s true or not.

Funny…I think there are folks out there who think I’m the sum total of the WGA political dissident community, or perhaps representative of their philosophical vanguard.

Not even close.

UPDATE:  I’ve spoken to a few writers who haven’t been invited, and they’re the definition of A-list.  It’s possible that something’s going on, but if so, it doesn’t seem to be as Nikki is reporting.  Grain of salt and all that.

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