And Nothing Changes…
Posted by Craig Mazin on 22 Jan 2010 at 11:36 pm | Tagged as: The Craft & Trade
Ha ha! Pointless victory is ours!
There was once a time in America when great lawyers argued great cases in front of great judges.
A number of those cases were about things far more important than contracts and regulations and petty crime. They were about the soul of our nation.
Those cases literally changed our culture, our understanding of what it meant to be a human being, to be free to choose, to vote, to live as equals…
But I’m not going to talk about any of those cases today. Instead, I’m going to talk about a case that was misguided, silly and frivolous. I’m going to talk about how it dragged on for years, enriching attorneys.
Then I’m going to talk about how it ended with a nonsensical whimper, spreading some money around like a balm, but impacting none of us in any real way.
Yes, this should be depressing if I do it right.
Years ago, a number of (mostly television) writers got together and decided they were going to sue Hollywood: all the studios, the networks and the big talent agencies. They were going to sue them because it was their fervently held belief that they were being illegally discriminated against.
How so?
Their age. Now, put aside that the numbers would more strongly support such a lawsuit from black writers or Asian writers or Native American writers or albino writers. And put aside that most of the people running the studios and networks and big talent agencies are over the magic age of 40, which is where the plaintiffs drew the line in the sand. And put aside the fact that just about every hit television show is run by someone over the age of 40.
Hell, put aside all the other arguments I made years ago about why there are perfectly logical reasons why people may find it harder to get work as a Hollywood writer as they get older…none of which involve employers hatin’ on the 40 and overs.
These plaintiffs didn’t care. They believed they stopped working because they got old. In their world, all the people who stop working in their 20′s and 30′s just…well…I dunno, suck I guess…but they stopped working for one reason and one reason only.
Their incredibly advanced age of…40?
Ugh, I actually felt myself getting dumber as I typed that.
Part of the legal argument they made was something like this: the government defines discrimination in a certain way, much of which revolves around outcomes not matching what you’d expect if all things were equal…so if there’s an age imbalance in the writing staffs of television shows, then there must have been de facto ageism involved.
In short, causality is presumed, which, as anyone reasonable will tell you…is just silly.
Silly? Why, then this latest quintessentially American legal excapade might just have a chance!
So what happened? Yesterday, all of the networks and studios and talent agencies (save my agency, CAA…and I urge you to fight this, CAA!) decided to settle. Yes, a settlement. An agreement. An understanding.
Here’s what they did.
They all got together, all gabillion dollars of market cap between them…and they decided, one presumes, that the legal fees were outweighing the actual cost of a settlement, so how much would it take to make this shakedown go away…and the number was…
…drumroll…
$70 million dollars.
Whoa! That’s a lot, right? Well…kind of. On the other hand, that number is split among 17 corporations. If it’s split evenly, that’s about four million bucks a piece. Oh. Well…still…that’s not too bad, considering that–wait, what?
Oh dear. Turns out that about 2/3rds of the money will actually be paid out by the 17 corporations’ insurance companies.
So instead of an average of four million a company, the actual retail price of what each company is paying out? More like an average of a million and a half.
Each.
Wow. That oughta bring them to their knees!
But I’m being negative. It’s not about punishing the companies financially. It’s about changing the unfair system, right? The plaintiffs struck a blow for social justice. They got Hollywood to admit that it was biased against old folks, and–
Oh. Oh no…
The defendants strongly deny the plaintiffs’ allegations and state that their hiring and/or representation practices fully comply with the law and reflect their commitment to equal employment opportunity. They also note that they all have long-standing anti-discrimination policies and regularly employ or represent substantial numbers of writers over the age of forty.
Of course. This is the way it goes. Brown sues the Topeka Board of Education over unfair discrimination. The Board of Education hands Brown an envelope with some cash they’ll never miss, then announce that they’ve never discriminated against anyone and they’re not changing shit about the way they do business, so back to your Colored school, Mr. Brown…
Um, sorry. I forgot. That was a different time.
In this time, the plaintiffs say, “Yup. We’re fine. That’s the settlement. You deny doing anything wrong, we stop chasing you in court, and you give us some cash.”
Which, by the time the lawyers take their cut and divvy the remainder up among the class, well…I’d be surprised if anyone buys a yacht when this is all wrapped up.
And so, this absurd chapter in our business (mostly) concludes. Most of my friends working in the business are still over the age of 40. Most of the people running the business are still over the age of 40. We now have a resolved legal case in which the plaintiffs are willingly going along with a settlement that denies the very argument they made to begin with.
In the end, they behaved true to the oldest of Hollywood principles: they took the cash.
Although, when you think about it, what they really did was take the cash to go away.
Finally, their absence from the work force will have a clear and unambiguous explanation.
Anyone who agreed to take that money when the people that they’re suing refused to admit they’d done anything wrong or would be changing practices is a greedy coward. If you believe in the cause, you don’t shut up because someone hands you a bag of silver.
Congratulations for selling out.
You make a great case for a company man, especially since you’re not the one being discriminated against. Wonder how you would feel if being locked out happened to you?
But Frankie, nothing changed. The result of the lawsuit was some cash, not change. And now everyone who took the cash can never sue again, so the industry doesn’t have to worry about another lawsuit for 20 years or so.
Total loss for anyone who actually cares about things changing. Utter, greedy failure.
Frankie Fartburger:
Boy, the fake names are really getting lame around here…
Anyway, I disagree with your premise. I don’t think anyone has been locked out. But hypothetically, if I were locked out, I would sue with one goal in mind: winning…thus forcing Hollywood to admit their guilt. Hopefully, my victory would prevent anyone else from being unfairly locked out again.
Alvin Sargent, aged 82, is still working — because he’s a great writer. Hollywood would buy a script from a 90-year-old Mafia hit man if he were a great writer.
I think Ageism is probably real in TV.
While I don’t know if it is the case here, many insurance policies offering this kind of coverage will include what’s known informally, but widely, as a “hammer clause”. The text in the policy won’t be so crude as that as to how it is explained, of course, (the policy will typically talk about “cooperation” instead), but the practical effect is the insurance company can force the insured to settle whether they want to or not.
I agree that this case accomplished nothing except waste time and money.
I also agree that there’s no “Logan’s Run”-type nonsense going on once a writer starts getting gray hair.
But I will say this: if you’re a writer just starting out over the age of 40, there definitely is a stigma attached to you. And if someone ran the numbers, I’m sure you’d see something truly startling about hard it is to get your FIRST job after 40… Of course, that’s not what this case is about, which is why the case is mostly bunk.
I don’t know if ageism exists or not in the entertainment industry against writers. But why don’t you think their case has merit?
Did their work dry up because they were no longer good writers? Did their quotes get higher than their talent could justify? Is it possible that there are no “lateral moves” in the industry (i.e., either you advance or stop working rather than just stay stuck in middle, like you would in some other industries)?
As someone who’s trying to learn about the entertainment industry, I’m just curious.
if you’re a writer just starting out over the age of 40, there definitely is a stigma attached to you
Is this really true?
My brother and his writing partner just sold a spec script to Dreamworks. They’re both over 40 – first sale for each of them (even though they have a few writing credits for some syndicated tv 20 years ago and some previous bites for other things).
Another friend, also over 40, sold a spec script recently as well.
All of them are ripe with studio meetings about other projects/ideas. What will come from them, it seems, would have more to do with skill and need. I somehow doubt the studio brass will take a look at them and point them toward the door because they know who H.R Puffnstuff is.
My brother and his writing partner just sold a spec script to Dreamworks. They’re both over 40 – first sale for each of them (even though they have a few writing credits for some syndicated tv 20 years ago and some previous bites for other things).
Another friend, also over 40, sold a spec script recently as well.
All of them are ripe with studio meetings about other projects/ideas. What will come from them, it seems, would have more to do with skill and need. I somehow doubt the studio brass will take a look at them and point them toward the door because they know who H.R Puffnstuff is.
I’m finding it harder and harder to get work now that I’m dead.
Bill B.,
Great examples.
EDJ,
I’m guessing that the over 40 writers who are party to this lawsuit are people who’s careers have dried up for the usual reason that Hollywood careers dry up: because keeping one going is hard.
To sustain a screenwriting career, you have to keep the momentum going. If you’re an in-demand writer whose movies get made, this is a little easier than if you’ve worked a bit but never reached a high level of success, which is what happens to most people. When a writer turns 40 and has not yet reached the top of the pile, he (or she) has two choices. He can blame it on age discrimination. Or, he can accept a harder truth: that it simply didn’t happen — because he’s not talented enough, or lucky enough, or good enough at the non-talent parts of the job, such as writing the “must read” script that’s so essential to launching a career, building and sustaining and making good use of relationships, nailing your writing assignments, building upon past successes, etc). Where the over 40 writer is lucky (as compared, to say, the over 25 ballerina or over 30 athlete) is that his fortune can still change on a dime. Write that “must read” script and no one will care how hold you are.
if you’re a writer just starting out over the age of 40, there definitely is a stigma attached to you.
Are you shitting me? If you’re an [INSERT ANY PROFESSION HERE] starting out over the age of 40, there’s definitely a stigma attached to you.
People who have been doing [INSERT ANY PROFESSION HERE] since their teens or twenties have the benefit of about 20 years of experience by the time they reach 40. But I see your point. After all, I’m very close to 40 and just starting out on my career to becoming a professional violin soloist. Wish me luck!
And if it doesn’t work out in a year or two.. what was the name of that lawyer they used again?
Jake: “Anyone who agreed to take that money when the people that they’re suing refused to admit they’d done anything wrong or would be changing practices is a greedy coward.”
Nonsense. Many people have families to support – families who rely on them for food, a home and education.
Yes – it can be hard to put your family’s needs for those things above your own need to see the people who have wronged you admit it.
But part of being a man and having a family is the willingness to put the needs of your family first – even if that means accepting money from someone who refuses to admit that they are wrong.
Doing the right thing for your family doesn’t make you a greedy coward.
Mac (PS: This is just a post about the statement in general – I have no idea of the merits of this particular case. But those of us with families have to accept compromises all the time – putting their needs above ours.)
I think in features ageism isn’t much of an issue.
But in TV, let’s say you got in in your 30s. Your first few shows went down in flames–which is more likely than not. You missed a year or two of staffing–which is more likely than not…
I think ageism kills you there. The big guns, EPs and Showrunners, are often pushing 40, some over some under. But the people coming up are not. And the execs are not. I think a lower level writer who is pushing 40 is pretty fucked in tv.
But what can you do about that? Nothing, i think. It’s just bad breaks. Hollywood is littered with that story.
Let me clarify myself. I work in TV. If you’re looking for work at the staff writer level, and you’re over 40 — and you’re not a doctor, lawyer, novelist or playwright — there is DEFINITELY a stigma attached to you. The “40 Year Old Staff Writer” is big hurdle to overcome. (as Malcolm said above)
I’m sure in film no one — upon reading a good script — goes “how old is this guy?” In film, good material can trump just about anything (or so it seems from a tv writers’ POV). But in TV, material is just what gets you in the door — whether or not the door stays open is up to the personal opinion of whoever you meet with. And those opinions can be very superficial.
As for the guy who said getting your first job in many fields over 40 is tough — True, but that doesn’t make it any fairer
Eric,
Curious. A doctor or lawyer over 40′s okay? Is that only if you’re going up for a legal or medical show?
Thanks
“But in TV, let’s say you got in in your 30s. Your first few shows went down in flames–which is more likely than not. You missed a year or two of staffing–which is more likely than not…
I think ageism kills you there”
If you’re 20 years old and your first few shows go down in flames you’re going to have a hard time keeping your career going. It’s called failing.
Most people end up failing because this biz is hard. And then they get old and blame getting old.
There have been an awful lot of famous writing careers that haven’t even started until their 30′s. Robert Heinlein and Tom Clancy come to mind. “Living a little” first is often an advantage to a writer.
Old people suck. They smell like kasha and have weird sores on their heads. They ask dumbass questions about current technology or culture, then act annoyed when you try to explain.
It’s a known fact that writers over 40 are Out of Ideas. Why should execs hire a smelly old crankypants who’s out of ideas when he could hire a relevant idea slave who’s 20 and knows hot girls?
In conclusion, old people suck.
hey Turnover –
When Malcolm said “your first few shows went down in flames” I don’t think he was talking about the guy who gets his shows bought, aired and cancelled. He was talking about the guy/gal who gets a job as a staff writer on a show, and the show gets axed in it’s first season (which, historically, is what happens to the vast majority shows). So he has to start all over again as a staff writer somewhere else next season (after a prolonged period of unemployment).
“Staff writer,” in this context, refers to the lowest person on the totem pole in the writers room, and there’s no way you can hold a staff writer accountable for the overall quality/success of a show.
And you only really move from “Staff Writer” to “Story Editor” (the next leg up on the totem pole) when the show you’re on gets renewed for an additional season. When that doesn’t happen, and a writer has to move to a new show, it’s usually considered a lateral move, meaning they keep their previously earned title (staff writer, story editor, producer, whatever).
And if a writer keeps moving laterally as a staff writer, you do risk having some people — like you just did — wrongly assume that said writer is a “failure” even though he/she has been a victim of nothing more than business as usual (like I said, most shows get cancelled in their first season).
I’ll say this though — usually if you’ve had a couple staff writing credits on different shows, your agent can make a strong case for your next show to hire you as a story editor. at least, that’s the way it used to be.
Yes, what Eric said…
Hey Paula –
Not necessarily!
If you have a law degree or a medical degree (and the ability to write), you will DEFINITELY be super-attractive to any law or medical show regardless of your age. I worked for a medical show, and having a writer/MD on staff was a priority.
But if you can write, and you’re a little older, saying you were a practicing lawyer/doctor is like a “get out of jail” free card for most any show. Especially if you’re a doctor. I guess anytime someone leaves a (seemingly) lucrative career behind to follow a passion, it strikes a chord with showrunners. Especially a career that required so much training and investment.
Truthfully — any good story of how you spent your 20s and/or 30s can be really valuable stuff. Regardless of what you did. Politics? Peace Corps? Military? Those things can easily give you value. Heck, Diablo Cody was a stripper in Minnesota. The key is to make sure that when you get that interview (because someone saw your writing, liked it, and wanted to meet you), you’re prepared to tell them — interestingly — what you’ve been up to the last decade or so.
Unfortunately, if all people know about you is “40 year old” and “wannabe staff writer” they too quickly jump to conclusions that probably aren’t true (like that you’re a “failure” even if you’re just starting out).
So you know where i’m coming from: I’m far from an established writer. Most of my writing has been either freelance (like said medical TV show) or for other media (much funner than TV, but the pay isn’t nearly as good). But I’ve worked for enough networks and shows now (doing a little of everything) to see how things work. I’m still getting my footing as a writer, but the more I learn and the more I understand about how the business works, the more optimistic I get actually. it might seem chaotic and unfriendly on the surface, but there really is an invisible hand at play. A hand that gives as much as it takes. The trick is to always try to be one step ahead, so when it’s your turn to take a little, you’re there waiting.
(if that makes sense)
From the point of view of the Little Man…
So right now, I’m 29 and serving in the military with spec writing and querying being somewhat of a hobby. Now, come the ripe old age of 39 (when I retire from the Navy), I may wish to more feverishly pursue a writing career whether I have spec creds or not. I would hate to think that just because I’m a little older that I may be shown the door.
Likewise, I agree, a little living is required to be an exceptional writer. In my 20s, I visited over 30 countries coutless times, with outrageous Sailoresque happenings in each port! That’s 30 possible settings and an unlimited amount situations I would not have had any sort of grasp on had I chose (the option I wanted) to move to LA at the ripe old age of 19.
I think the biggest point that even the Fartburger is missing is that it’s NOT about the plaintiffs or the defendents of this case, but more about the echo-effect it will have on the future writers of America. Money is all fine and good, and I’d like more of it, but not at the cost of the future of the establishment. Not to mention this “Over 40″ descrimination thing is a load of shit. Fro an outside perspective, with zero knowledge of the plantiffs, I would guess that they are all wash-outs who were on a steady decline and saw a quick grab for money. I mean, it’s not like they’re going to ever get hired again…so in my head, I’m thinking they were probably on that road to begin with.
I piss on’m. The whole bleeding lot.
Eric,
Thanks a ton. Super helpful I’m a feature/long-form writer and an ex-lawyer. The lawyer bit is not relevant in features (except as an interesting conversation piece — it almost always comes up), but I’ve heard various stories of the difference it can make in TV and your insights added immeasurably to my understanding. I’d never before heard that it could be useful on non-legal shows, too, so that’s very good to know from a strategic standpoint. Thanks, thanks, thanks.
Second Eric and Malc. What they’re talking about is bad luck, which is not the same as failure, though, tragically, they’re closely related. One can fail in this business, not through lack of talent, hard work, etc, but through simple bad luck. In fact, even the most successful people in our business, have their war stories — projects that fell apart for reasons beyond their control (the actress won’t do nudity, a similarly themed movie that’s not similar at all just crashed at the box office, our last big budget feature tanked so now we’re feeling conservative, etc). If this happens enough times, you are technically a failure in that you have failed to succeed, but you also might be just one lucky break a way from success.
I suspect that those who are truly just one lucky stroke away from success don’t sue. They write and they hustle and they believe that sooner or later something will break.
Disclaimer: I’m talking about feature writing, where I truly don’t find age to be a barrier. I won’t opine about TV, where it might be (though as a feature and long-form writer, I’ve found that the doors are at least open to me to develop pilots for cable, where they buy pilots from writers who haven’t come up through the ranks. As one cable network exec told me, they can hire a show runner, what they can’t always find is a great idea.)