The 2009 WGAW election season is upon us.

I posted this originally on another site, but thought it worth posting here, as well:

All the candidates are avoiding the elephant in the room:

The terms we ended up with in the 2008 MBA.

Both the New Media Re-use terms and the New Media jurisdiction terms we ended up with are terrible — worse than what we were told they were, and worse than the terms either the DGA or SAG got.

But explaining why requires a membership that has some degree of intellectual curiosity about their own contract, as well as the ability to consider facts that contradict their own beliefs.

That does not describe very many Guild members.

“Organize organize organize” and “We’re kicking corporate ass!” are pretty much as complex as Guild politics can get.

“FOUR LEGS GOOD, TWO LEGS BAD, was inscribed on the end wall of the barn, above the Seven Commandments and in bigger letters. When they had once got it by heart the sheep developed a great liking for this maxim, and often as they lay in the field they would all start bleating ‘Four legs good, two legs bad! Four legs good, two legs bad!’ and keep it up for hours on end, never growing tired of it.”– George Orwell, ANIMAL FARM

I stand by this.

But it was pointed out to me that perhaps I have become unpleasantly cynical about my fellow Guild members. That maybe its not a lack of interest or intellectual acumen that limits Guild political discourse to the level of punditry and sloganeering common to national politics, but simply a lack of awareness and information.

Fair enough. Let’s find out.

WGAW Board member and WritersUnited co-founder Robert King wrote a letter in support of the Wells/Gould/Keyser slate. In it, he brought to light the fact that, in drafting the 2008 MBA, the Guild fumbled the ball on the terms covering residuals on so-called “ESTs” — electronic sell-through or, more commonly, iTunes downloads.

Well, not so much fumbled the ball, as handed it to the opposing team, stepped aside, and waved bye-bye as they ran past toward the goal line.

In the 2008 MBA negotiations, the Guild gave away EST residuals on more than thirty years of movies and tv shows.

Conventional wisdom bandied about on picket lines was that coming into these negotiations, the studios refused to pay us for the use of our work on the internet.

Not true.

In 2001, the Guild won us the right to residuals on internet exhibitions of movies and tv shows produced since 1971. The rental rate was set at 1.2% of 100% of total receipts; the EST rate would be agreed upon at a later date.

(The terms also established that since use of movies and tv shows on the internet was outside the primary market, payments would be made for that use.

So, really, when the AMPTP’s initial offer included no new rates for internet residuals — in fact, when the Companies started streaming network shows without our permission — the Guild’s response should have been to fold our collective arms, smile smugly, and say “We already established six years ago what kind of girl you are, AMPTpetite. Now, we haggle over price.”

But that would require acknowledging that the Guild had actually achieved some solid gains in past negotiations — which runs contrary to the narrative that goes, the Guild can’t achieve anything in a negotiation without a strike.)

In 2008, of course, we agreed to an EST rate — based on the DVD rate, calculated against 20% of total receipts, rather than “of 100%” rate we’d been holding out for since 2001 — payable on movies and tv shows produced after the strike ended.

The DGA agreed to the same rate on movies and tv shows produced under their new contract; so did SAG.

But in drafting our internet nee “New Media” residual terms — which, remember, the Guild insisted on doing before accepting any offer or ending the strike — our negotiators got rid of the language that required EST payments on any movies or tv shows produced under any previous contract.

That’s wasn’t part of the deal the DGA made, and it wasn’t part of the deal that SAG made, patterned on the DGA deal.

We gave back EST residual on over thirty years of movies and tv shows.

Even at the lowly DVD rate the AMPTP had been offering since 2001, that still represents millions upon millions of dollars in writers’ income … gone.

This can be easily verified by anyone. The 2004 MBA — look at the “Sideletter on Exhibition of Motion Pictures Transmitted Via the Internet” — and the 2008 New Media Reuse terms are online at the WGAW website. The only thing you have to know — which, apparently, Guild negotiators did not — is that terms in a collective bargaining agreement are prospective unless they explicitly establish retroactivity (and that, too, can be easily verified).

And, it must be pointed out:

The Guild insisted upon drafting and signing off on the final language of the New Media Reuse sideletter, before the AMPTP ever put the offer on the table, before accepting the offer, before ending the strike. This significantly undermines any argument the Guild could make that the language does not accurately reflect the agreement reached between the Guild and the AMPTP.

As does the fact that the language in the 2004 MBA that established retroactivity of all internet residuals is still in the 2008 MBA — but its been moved, so as to apply only to the rental rate agreed to in 2001.

The other internet residual terms — covering free-to-the-viewer streaming — also include language that explicitly establishes retroactivity of those terms.

The only internet residual term that does not include retroactive language is the EST term.

And our EST term is identical to the one in the DGA’s contract, and SAG’s contract.

However, both the DGA and SAG retained the language from their previous contracts that establishes retroactivity of all internet residuals. The EST rate they agreed to applies going forward only, just like ours. But their contracts still anticipate EST payments for work done under previous contracts, at a rate still to be determined.

All evidence points to the Guild, and the Guild alone, as the source of this screw-up. You can be pissed at the AMPTP because they did not warn us that we were giving away something they did not ask for — but its not like its the AMPTP’s job to represent the interests of writers in negotiations.

That’s what we elect officers and Board members to do.

There’s house meetings and coffee klatches and candidates night coming up. Go to them. There’s people running on both slates who were on the Board and the Negotiating Committee. Ask them about the EST rate.

Ask them about the problems with the terms covering new media programs derived from covered tv series (there’s nothing in the contract that requires that a derivative new media program must be produced by a signatory company. At least one studio is contracting them to non-Guild prodcos, and the only thing the Guild has done is threaten members with an unenforceable rule).

While you’re at it, ask them why there’s nothing in the derivative new media terms that requires payment to the creators of the television shows, or even acknowledges that derivative new media programs are an exercise of the creator’s serial sequel rights.

And since we theoretically got the same terms as the DGA requiring the Companies to share data about new media residuals, ask them why the DGA has been meeting with Residual Department execs from every Company for the last year, while we’ve only just been able to get our phone calls returned.

And ask them:

What are we going to do in the next negotiation to repair the damage done to the MBA in the last negotiation?

And don’t stop asking until you get real answers.

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Every writer struggles.

Or, I suppose I should say…every writer who writes something worth reading…struggles.

Naturally, this statement gives rise to the conclusion that the struggle is required for creative success–that the struggle is part and parcel with success. I’m not sure that’s true. It may be that other things we require for creative success (insight, focus, self-critique, investigation, diligence) throw off some misery the way fossil fuels throw off pollution.

Either way, some writers elevate their own suffering to an art form. They mount their crosses each morning, and dutifully display their stigmata to anyone near them at the end of the day.

Others seems to toil quietly, smiling…which makes the open sufferers paranoid. “Why the hell are THEY so happy?”

Of course, apparent happiness isn’t the same thing as actual happiness.

And some of the people who are smiling aren’t smiling because they’re happy. They’re smiling because they’re drunk. How many of the best of our craft have we lost to alcohol? To drugs?

It’s a tough gig, made tougher by the fact that part of what we must achieve is the appearance of effortlessness…and we must achieve that appearance of effortlessness through tremendous effort.

I won’t bore you with any of my own thoughts on this, because Joseph Epstein has already written a fantastic essay on this topic for In Character. Interested to hear what you all think.

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After terrific short tales by Scott Frank, Jeff Lowell and Nichelle Tramble, it’s my turn.

If you have a few minutes for a short story, head over to Popcorn Fiction and check out Lightning in a Bottle. I hope you enjoy it; it’s obviously quite far from the sort of thing I’ve done recently as a screenwriter.

In keeping with Derek’s desire to have a formal “letters to the editor” policy at Popcorn Fiction, I’ll turn the comments off here. But if you liked it, you can always email the site at editor@popcornfiction.com, or let me know at clmazin@artfulwriter.com.

Hopefully I didn’t use too many adverbs. 

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This isn’t an article for everyone. But if you’re a working screenwriter in Hollywood right now, it’s an article for you. And if you’re hiring writers, it’s definitely for you.

Things are trending poorly.

Ask around. You can talk to baby writers, typical writers, A-listers, marquee names and practically any agent in the business…and you hear a lot of the same gripes. Since the double whammy of the strike and the economic collapse, the companies seem to have changed a number of business practices, and all at screenwriters’ expense.

I’m going to argue that these changes will ultimately be at their expense as well.

What’s happening out there?

The changes have come in three basic areas.

First, compensation seems to be down. You can still get your quote, but there’s a resistance to paying it, and bumps have become harder to negotiate, no matter how well-deserved they are. Some writers are being told that their quotes will not be honored.

Second, one-step deals are proliferating. At certain studios, they are the only option.

Third, the amount of work required to even get a job has expanded tremendously.

The question of quotes is easy enough to explain. Everyone’s stock price dropped, credit got tight, the DVD market began to soften, and the companies slashed costs. They haven’t just gone after writers. They’ve got after everyone. Directors, actors…even themselves. It’s hard to tell a man who is gnawing on his own foot that he’s eaten too much, but that’s the argument I’ll make in a bit. Similarly, one-step deals are an obvious hedge against the dreaded “we got the first draft and hated it so much we know that we’ll never like the next one but oh my God we have to pay for it anyway” syndrome. The third situation…the overpitching…is a further hedge. Why should the companies buy a blueprint for a house when they can walk into a model home, sleep in it for a night, and then decide if they want to buy?

I’ll tell you why.

All of these changes are shortsighted. All of these changes come with unintended consequences. And all of these changes aren’t going to get studios better writing. On the contrary. This stuff is going to backfire.

How?

When it comes to quotes, time will be the best medicine. For all of their collusion on these matters, the companies are primarily competitors. Intense competitors, to be precise. Sooner or later, someone is going to smell money on a project, and they’re going to break ranks and pay a premium. Once this happens, the market will begin to correct itself. There are writers who are in high demand. They have limited time and limited interest. Those writers, as always, will drive the quote market. It may take some time, but I do expect that quotes will be honored, and bumps will be restored when earned.

The one step/two step thing is more problematic. On paper, it seems like a great idea. Limit your risk in R&D! And in some cases, it might even make sense. Writers might not want to commit to a series of drafts (I know one A-lister who prefers one steps!). And unproven writers might get hired more often if there is less risk attached to their employment.

But for the vast majority of writers, the second draft doesn’t represent a chance to fix the mess of the first one. Writing isn’t bricklaying. The creation of a story, particularly in a collaborative medium like film, requires bursts of activity followed by reflection, followed by new activity. The second step is as important to the first as the first is to the idea itself. The second step, in the hands of an accomplished screenwriter, is where the movie really begins to take shape. It isn’t a fix, but an evolution.

So, a company might say, then the studios will pay those writers for that second draft.

Sure. After reading the first.

But sometimes the difference in quality between the first and second draft is remarkable. A quantum leap can occur that would not have been predictable from the first draft alone.

If you don’t guarantee that second draft, you know what you end up with?

A series of first drafts from a series of writers.

No one gets the chance to grow the story internally. And then you, the companies, end up spending even more to bring in a succession of highly-priced writers, each of whom is laboring under the barrel of the one-step gun.

I’m doing a one-step deal right now. And I have confidence that I will deliver a first draft good enough to warrant the studio exercising my optional second step. My methods and rhythms lend themselves to first drafts. But I know writers…really really good ones…who work differently, and who don’t have the same rhythms. They need that second step to really shine, and when they shine, it’s damned impressive.

By insisting that everyone get only one step, I think the companies are short-changing their own ability to develop. And if they think the solution is to just demand that second draft for free, well…all they’ll end up with is a bunch of second drafts from the kind of writers who aren’t busy enough to say, “No, sorry, I don’t write drafts for free.”

Not exactly appetizing, right?

This brings me to the third problem. Right now, the feature business has contracted. Fewer movies are getting made. Fewer movies are being developed. Fewer specs are being bought. But the number of screenwriters driving from lot to lot hasn’t really changed. Sensing the imbalance, the studios have begun asking multiple suitors to “pitch us more.” Not just a take, but a story. Sometimes it’s a story, then revise the story, then pitch the story again.

A lot of times, it’s pitch the story, then adjust the story, then pitch to the boss, then pitch to the boss’ boss…

Well, at least, that’s what I’m hearing out there.

Here’s why this is a bad idea for the studios.

First, it’s exhausting. Breaking a story isn’t the easy part simply because it goes faster than writing a draft. It’s the hardest part of what we do. Now take a screenwriter who is up for three different jobs. Make him break three different stories in order to get that job. Not only are the companies wearing out the creative muscle that they will be relying on if they do hire him, guess what that screenwriter isn’t doing while he’s working on all those pitches?

Yup…you got it…writing that other thing that they’ve already hired him to do.

If every writer at every studio is dividing their attention between the work they have and the work they need to line up, how does that benefit the studios?

Yes, committing to two drafts is, in an immediate sense, risky. So is looking into the sights of the sun. Oh but mama, that’s where the fun is…

All of us work in a high-risk, high-reward business. If you try and mitigate the risk, somewhere down the line you’ll probably end up limiting your reward. Better to look a writer in the eye, get a sense of his passion and approach for the material, and then trust that you’re going to get something you love.

Let’s face it…the studios know as well as we do…just because the pitch sounded great doesn’t mean the script will be great. And every producer knows a writer with the charisma of a moldy shower curtain who then turned around and delivered something brilliant two months later.

I don’t write this from a place of entitlement, and I’m not whining. There are a lot of writers who make seven figures, and there are a lot of studio executives on the unemployment line right now. It’s hard out there, and Hollywood has never been fair. This isn’t about what studios or writers morally deserve.

It’s about what works.

I think the new trends will hurt the writing, and anything that hurts the writing eventually hurts the movies. That’s not something we want, and I know it’s not something the studios want. Hopefully, as the economy begins to recover, the studios will re-evaluate and reverse this negative trend.

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