January 2005 Archives

Q: I’m in the WGA, and a company that isn’t signatory to the MBA wants to hire me. They’ve agreed to become signatories, and they’ve handed me the commencement checks. I’ve done everything right, but the union is saying that because they are a “new production entity,” they need extra assurances. That’s nice, but in the meantime, all I know is my own union is keeping me from cashing a check. What gives?

A: First off, full disclosure. I’ve composed this question myself from some similar ones I’ve received.

When a company applies to become signatory to the MBA, they have to show that they will be able to meet their obligations under the MBA—current and future.

The only way to do that with new production entities (the kind that aren’t owned by the likes of Paramount or NBC) is to require them to show collateral. If they have enough assets to cover their future obligations to pay residuals, for instance, their application to become signatory will be viewed far more favorably than if they do not.

Let’s say they don’t…or as is more often the case, let’s say they simply don’t want to open their books up to the Guild.

If the Guild allows them to become signatory so that a given writer can finally cash that check they desperately need, then the union hasn’t just relaxed the rules for that writer. It has essentially opened the entire membership up to this company, and if this company is predatory or unethical, the Guild will have failed in one of its primary responsibilities.

The Guild may seem like the heavy here, but the truth is that there are hundreds of signatory companies, and many of them are small. Obviously it’s not impossible to become a signatory. If the applicant company is refusing to show proof of their worth, maybe there’s a reason they ought not be trusted. I am extremely sympathetic to writers who want (and need) to cash those checks. Alas, if the company won’t meet the basic standards of our industry, then the writer cannot accept the money.

I think I’m allowed to take a break from writing about writing when something truly historic and wonderful takes place.

As one of, oh, what—five Hollywood screenwriters who openly supported and continues to support the liberation of Iraq?—January 30th is an honest-to-goodness emotionally moving day.

You can read some excellent coverage and opinion on today’s success over at fellow screenwriter and blogger Roger L. Simon’s site.

Well done, people of Iraq. Well done.

Hollywood has always been an oxymoronic intersection of political liberalism and hypercapitalism. One of the odder fruits of this unnatural union is the town’s continuing assault on progressive copyright philosophy.

In this article, we see a typically progressive pro-public attitude towards the intent of copyright and the current state of intellectual property rights enforcement. Here’s a taste (which, I’m sure the author would agree, would be considered fair use):

…the only groups with a common interest in the direction of such laws are those corporations who want to lock up culture in perpetuity (or “forever minus a day,” as former Motion Picture Association of America head Jack Valenti once suggested).

…One of the most suggestive responses to this dilemma has come from Duke University law professor James Boyle…”What we have right now is an exponentially expanding intellectual land grab, a land grab that is not only bad but dumb, about which the progressive community is largely silent, the center overly sanguine, and the right wing short-sighted.”

Professor Boyle, who is on the Board of Creative Commons, which The Artful Writer uses to help establish its copyright policy, has certainly forgotten more about intellectual property law than I shall ever know.

He has put forth a call for “digital environmentalism,” in which politically progressive thinkers try to convince Americans to care as much about the public intellectual domain as they do about the public environmental domain.

I’m deeply pessimistic.

For starters, this debate centers around property rights, and Americans are fairly consistent in their belief in private ownership, particularly when it comes to questions of entrepreneurship. We only seem comfortable with public ownership when it comes to matters of blatant public welfare (e.g. utilities, roads, police). Hell, we haven’t even gotten around to publicizing health care. So what of intellectual property?

The need for communal possession of intellectual property is obvious in certain cases (e.g. scientific research), but less so in others (Gosh golly, just how long is Jay-Z going to own the lyrics to “Big Pimpin”?)

Indeed, while the thought of a corporation pouring carcinogens into our public water supply is instinctively repulsive, the idea that The Walt Disney Company will extend the term of its ownership of Mickey Mouse simply doesn’t have the same effect. While there’s the occasional horror story (and the article above cites a few), telling an elementary school they can’t paint a Mickey Mouse mural on their wall isn’t quite as environmentally outrageous as, say, Bhopal.

Granted, copyright was never meant to last forever, and Valenti was wrong to suggest that ownership ought to be permanent. However, if the “digital environmentalism” movement is the intellectual property cousin of anti-globalization and Green-ism, I wonder why more Hollywood stars aren’t protesting the steady tightening of the corporate fist around copyright law.

Could it be because those of us who work in Hollywood are the direct beneficiaries of such policies, no matter what our politics? Could it be because every time the corporate lobbyists prevent intellectual property from becoming public property, they don’t just enhance their bottom line, but ours as well?

Could it be that professional artists’ greatest economic ally is the corporate exploiter, and so they look the other way while corporations continue to pummel the public domain into submission?

Ah, well…no one likes a cynic. Besides, freeing Tibet is more fun.

Apparently someone felt that he owned the poetic phrase “Back That Ass Up,” and attempted to sue for copyright infringement.

Ignoring the obvious questions (is “Back That Ass Up” really poetic, and who the hell would admit to owning it?), this is a good example of the kind of expression that is not considered unique, and therefore not ownable.

What the hell do I know?

Still, I start every non-spoof movie I write with an investigation into theme. The theme is the argument at the heart of every good screenplay.

I believe that the protagonist’s relationship with the theme is ultimately what defines the structure of the film.

You be the judge…

Well this is just absurd, but at least there’s a silver lining. The Financial Times reports:

A Beijing company has been found guilty of offering unapproved digital versions of eight books written by one of the country’s leading experts on intellectual property rights in what appears to be an extreme example of Chinese online copyright abuse.

Seven of the volumes allegedly made available on the internet by Beijing Scholar Digital Technology were about issues directly relating to piracy, including one entitled Knowing the Enemy and Yourself; Winning the Intellectual Property War.

Pirating books on IP piracy is pretty damned ballsy. Still, it wasn’t so long ago that China was the Mos Eisley of copyright law. It’s good to see their courts finally responding. You can read the complete article here.

Q: Can a WGA member sell something to a non-Guild Comedy Central show and/or get staffed on one?

A: Technically, no. Working Rule #8 states that “No member shall accept employment with, nor option or sell literary material to, any person, firm or corporation who is not signatory to the applicable MBAs.”

The key phrase is “applicable MBAs”. If you’re in the WGA and you’re attempting to work for a non-Guild show in an area where we do have an MBA (and in this case, there is an MBA for Basic Cable) then you are in violation of Working Rule #8.

However, the Board of Directors has generally declined to penalize or restrain members who work for such shows if they notify the Guild and provide them with information about the show. In this way, the Guild can work to organize the show.

As such, if you are a WGA member and have been approached about writing for a non-union show on basic cable, please contact David Young in the Organizing Department at the Guild. Just going ahead and taking the job is a violation of our Working Rules and could expose you to penalties.

In our last discussion of intellectual property ownership, I spoke about how ideas can’t really be possessed.

The example of an idea I used was “A psychologist must uncover the secret of a child who claims to see ghosts.” My point was that even though this was the idea of The Sixth Sense, Disney didn’t own it any more than I.

And that’s true…in a sense. It’s also not true. And the reason—something called the idea-expression dichotomy—goes to the very heart of what we create and what we own.

There’s a P2P program called BitTorrent that’s been catching the eye of anti-piracy folks for at least a year now. I’ve been saying for a long time (to anyone who’d listen) that the real villains aren’t the ethics-neutral P2P applications like BitTorrent, but rather the folks who facilitate the illegal downloading of copyrighted material through the P2P apps.

In other words, if you have a piracy problem, don’t go after the ship-builders. Go after the people saying “Arrr” who are misusing the ships.

Recently, the MPAA seemed to realize that the game had changed and began threatening to sue sites that listed pirated movies for download via BT. The worst of the bunch was SuprNova.

If you go to SuprNova now, you’ll see what kind of cowardly dogs they be.

Way to go, Dan Glickman. For all of the strife between writers and studios, it’s nice to be reminded that we’re all in this together.

As part of my surprising adherence to my own campaign promises, I’ve created a committee to revamp the WGA website. We’re well into the task, but if you have any suggestions, go ahead and comment. I’m putting a priority on input from members, but non-members actually form the bulk of wga.org visitors, so their thoughts certainly matter as well.

I’d give you some areas to focus on, but I don’t want to lead the witness.

I’m working with Berkeley Breathed of Bloom County and Opus fame on the story for an animated Opus film. One of the many rewarding things about this collaboration is that it forces me to justify certain of my core storytelling precepts…things I’d otherwise just “know” and never really examine carefully.

We were discussing what sort of goal Opus should set his sights on in the beginning of the film. It occurred to me (and forgive me if others have said this before or better) that 99 times out of 100, the hero of the movie aims low. What do I mean?

It’s been said that ours is a business in which “the idea is king.” As such, millions are paid for ideas, battles are fought over the possession of ideas, and first writers and rewriters bludgeon each other over the precedence and prominence of ideas.

Perhaps we can put some of those struggles behind us with a simple understanding of a basic tenet of intellectual property: no one actually owns an idea.

So, the theoretical question has arisen: how is it ever possible that a group of writers could write scripts connected by a single chain of title, and yet some of those writers would not be considered participating writers by the WGA in an arbitration?

Here’s my explanation, informed by my reading of the MBA, but no less informed by a discussion I had with Ted Elliott, who crystalized the “as if” theory (more on that later).

The following glossary of terms is always a work in progress. Please use the comments section to either propose new terms or changes to the definitions of existing terms.

AMPTP: The Alliance of Motion Picture And Television Producers is the “other side of the table” when it comes to collective bargaining between the creative guilds (WGA, DGA and SAG) and their employers. The AMPTP was formed in order to represent all of the signatory companies during contract negotiations.

Creative Rights: There’s a concept in copyright called “droit moral” or “moral rights”. The idea is that there are certain inherent rights due to the author of a copyrighted work including, for instance, the right to attribution. Since the studio is typically the de jure author, we writers must negotiate for rights inherent to our de facto authorship. You can see a list of such rights here.

Mazin’s Law of Representation: “A bad agent is worse than no agent.” To be repeated like a mantra when you start wondering if it’s time to leave your crappy rep.

Minimum Basic Agreement: The Minimum Basic Agreement is the collectively bargained master contract that governs all employment by signatory companies. The MBA is basic, meaning that writers can individually negotiate terms that are better than those the MBA provides, but never worse. The WGA typically renegotiates the MBA with the signatory companies every three years. While writers’ agents often negotiate salary, amount of steps and credit bonuses, the MBA dictates the terms that are standard to all writers: scale minimums, residuals formulae and many creative rights. Currently, our MBAs cover non-animated motion pictures, non-reality network television and some network and affiliate newswriting as well.

Residuals: If WGA writers retained copyright on what they wrote, they would be entitled to royalties as compensation for the reuse of their material by licensees. Since we do not retain copyright, our union successfully negotiated residuals, which provide a similar benefit. Residuals apply to reuse of our material in supplemental markets (most notably VHS/DVD sales and rentals, as well as PPV). You can read more about residuals here.

Scale: Scale refers to the minimum amount that the signatory companies must pay a WGA writer, per the MBA. Scale varies widely depending on the nature of the work and the budget of the project. You can find all of the scale amounts in the Schedule of Minimums

Signatory Companies: The production companies that have signed the MBA. These are the only companies for whom WGA members are authorized to work, per Working Rule #8.

Spec Scripts: “Spec” is short for “speculative”. When you write a screenplay “on spec” without compensation, you are writing speculatively. WGA writers may write on spec as a matter of choice (and then sell the resulting spec script to a studio), but signatory companies may not force or even ask WGA writers to write on spec.

Writers Guild of America: When we say “WGA”, we typically mean The Writers Guild of America, west. There is also a Writers Guild of America, East. Don’t ask me why the East is capitalized but the west isn’t. Anyway, the two unions are the exclusive screen and TV writers unions in this country, with the WGAw covering everyone west of the Mississippi.

Work For Hire: Generally speaking, if you write something, you’re the author and the copyright owner. However, if you write something for an employer during the scope of your normal employment, or if you’ve been commissioned or specially employed to write something as a contribution to a motion picture, then your literary material can be considered a “work for hire”. Why is this important? When we’re dealing with a work for hire, it’s the employer, not the employee (the person actually doing the writing) who is considered the legal author and copyright holder. Practically every screenplay sold to signatory companies is a work for hire. For reference, here’s the technical definition of the term:

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as *a part of a motion picture or other audiovisual work*, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Working Rule 8: There are a number of Working Rules that the WGA imposes on its members, but perhaps the most important is this one. It states:

No member shall accept employment with, nor option or sell literary material to, any person, firm or corporation who is not signatory to the applicable MBAs.

What that means is that if you’re a WGA writer you can only sell to or work for signatory companies. For what it’s worth (and that’s quite a bit), the signatory companies can only hire writers in the WGA…or writers that must immediately join the WGA immediately following their qualifying employment.