May 2006 Archives

Everyone thinks better
on a mountain…It’s been a while since my last post, but that one had such an active commentary, I feel like I wrote more this past week for the site than any week before it.

Some questions were raised in that commentary that inspired contemplation. And so, I wandered up into the mountains, got naked, ate some mushrooms and stared into the sun.

What is the purpose of this site?

I’ve been saying for a while that Ted and I have a point of view about how screenwriters ought to think and behave in this business, and we want to spread that gospel before new screenwriters or currently working screenwriters turn into grouchy, bitter, self-defeating screenwriters.

Somewhere along the line, some people (okay, three so far, but still) have gotten the idea that Ted and I are screenwriting Uncle Toms. Quislings. Roy Cohn-like gay bashers.

Pick your self-hating metaphor.

How to address this? Well, it’s possible that our accusers are right. It’s possible that Ted and I hate ourselves and our vocation, and this site is designed to fill our unfillable spiritual wounds. We’re spraying our miserable contagion over the internet, because if we can’t be happy then neither should you. After all, if you’re a happy, well-adjusted, proud screenwriter who fights evil and defends good, then you’re living proof of our weakness, our servility, our slave minds.

Like I said, entirely possible.

But just as David Lee Roth didn’t feel tardy, I don’t feel Uncle Tommy. I like to do the job, I like to be known as a screenwriter, I like to talk about screenwriting, I absolutely take pride in my work (even if I have a natural tendency to avoiding sounding like a boastful schmuck), and above all, I want to empower other screenwriters.

Folks, I’m an activist.

Here’s what this activist actually believes. And from now one, when people question what I believe, I’ll be able to just publish the link to this post, and that will save us all time and carpal tunnel pain.

Screenwriters are professional artists: This means we’re creative thinkers, but we are also employees in an industry. I believe that if we do not accept we are both, we will self-limit.

Screenwriters are crucial: We are the story-telling experts in a story-telling business. Screenwriters and directors are the coauthors of films.

Screenwriters are disempowered: All people exist on various power continua. Screenwriters are relatively underpowered compared to the people for whom and with whom they work.

Power is not something that is deserved: Just a simple philosophical belief of mine. Mind you, I’m not Thucydides either. Might doesn’t make right. Neither, however, does deserving power make one powerful. Screenwriters ought to be more powerful? Sure. Of course, everyone thinks they ought to be more powerful. When everyone can make the same moral argument, that argument becomes worthless.

Power is something that must be gained: How do you gain power? Lots of ways. Some march, some starve themselves to death, others plot, others punch. Regardless, I believe in discussing strategies of empowerment without having to deal with the baggage of what I do or do not deserve.

Knowledge is a fundamental piece of any successful empowerment strategy: We’re all familiar with the “knowledge is power” platitude, but I’m here to tell you it’s not true. Knowledge itself is just, well, knowledge. Knowledge that informs purpose? Now you’re getting somewhere.

My purpose is to empower screenwriters: And yes, my chief strategic tool is knowledge. Because…

Screenwriters aren’t educated enough: This is not up for dispute. This is something I know, because as of two years ago, I knew so much less than I know now about issues with enormous influence over my work and my career, and I still don’t know enough. And, frankly, the odds are excellent that I know more than you. Part of my mission to empower screenwriters is to teach them what they don’t know…but what their employers do know. I want us all to understand the laws that govern our work, the economic principles that affect our livelihoods, the realities of the productions behind our movies, the details of the jobs that our collaborators do, the reasons why we are lied to and the truth that we’re not hearing…I want us all to know all of it. I want the screenwriter to no longer be satisfied with merely being the smartest guy in the room. I want the screenwriter to also be the most informed guy in the room.

Self-criticism is good: We’re not made of glass. We can do this. The fact that we are mistreated by others neither obviates the need for nor eliminates the benefit of self-critical analysis. Nothing should ever stop us from improving ourselves. Nothing. There is power we can take, and we should take it. While we’re working on that, let’s not forget the power we can make all on our own.

Whining is bad: I don’t like whining and complaining because it’s useless, and my time is too valuable for useless, losing strategies. Ted and I state problems, enumerate the symptoms, analyze causes and then propose solutions. We never just state a problem. If you’re looking for sympathy, take us off of your bookmarks. We’re not therapists. We’re strategists. Go cry on someone else’s shoulder. We’re busy.

I only suggest doing the doable: Because I want to empower writers, I only discuss strategies that I believe have a chance of working. I have no interest in strategies that strike me as ridiculous or ignorant of fact, circumstance or law. There are writers who believe that the best way to empowerment is simple: the WGA should ban rewriting. One writer, one movie. This solution is ignorant of fact, circumstance and law, and so I don’t bother with it. If you find anything less than revolution to be uninteresting or uninspiring, then leave this site and do not return. It will only upset you.

Nothing is taboo: When it comes to improving the working condition of the professional screenwriter, nothing is off the table for me. Producing, directing, flattering, fawning, yelling, screaming, quitting, acting, learning, manipulating, threatening, lying, conniving…I don’t care. All fair game. I want to win. No one in this business flights by Marquess of Queensberry rules. Why should I?

That’s it.

That’s all there is.

I want to empower screenwriters. That’s why this site exists. Think I’ve got it wrong?

Start your own site. Blogger’s still free.

Will work for
access to set…A reader wrote in with a question about the WGA’s preferred practices, but rather than dump a quick answer off in the Q&A bin, I thought I’d write a larger piece about the creative rights and preferred practices enshrined in the MBA for screenwriters—and what they actually mean for us.

All professional screenwriters have at least one or two awful tales about how they were discarded from or poorly treated on the production of a movie they wrote. In response to a seemingly unending march of boorish behavior on the part of directors and producers, the WGA began routinely demanding creative rights gains in each collective bargaining negotiation.

This is a brief summary of some of the bigger ones. For the whole kit and caboodle, get thee as always to the WGAw website.

Coverage Can’t Be Sent Around Town

That’s right. The studio can blast your script to pieces in its internal coverage, but it’s forbidden from emailing that coverage to another studio or producer inquiring about your work.

The Right of Prima Scripta

Okay, I just made that Latin phrase up, but the idea should be obvious. If you sell a spec, you are entitled to the first rewrite on it. Furthermore, if you’re still the only writer on the project and a new “element” is added (a director or star), the company must hire you for the next draft.

Consultation on Notes

The studio can’t just give you notes and refuse to talk about them with you. This is a curious right, because usually we can’t get the studio to shut up about notes. Remember this one, by the way. I’m going to refer to it at the end when I make my Big Point about all of this.

Authorization of Rewrites

Remember our big discussion about free rewrites? That’s what this attempts to address. Your contract must include the name of the person authorized to actually request a paid draft. Sadly, this person is usually the head of the studio, and typically you’ll never speak to them. A shell game, really.

How Many Writers???

If you’re called into to pitch on an assignment, and you happen to be so bold as to ask how many other writers are being called in to pitch on the assignment, the studio has to be honest about it. Roughly.

You’re Covered Under Their E&O

This is a big one. When you write a movie for a company, they must include you under their errors and omissions insurance policy, and they must indemnify you for legal expenses and damages. After all, they’re the official “author”, right? Makes sense, and a big protection for WGA writers.

You Get To Describe Your Vision To The Producer

Yeah, that’s right. Before production begins, you have the right to a meeting with the producer to talk about all aspects of production involved in translating your screenplay to film. Of course, what would really be great would be a meeting like that with the director, right? Well, that’s a “preferred practice.”

“Preferred practice” is a nice way of saying “the companies don’t have to do it if they don’t feel like it.”

Call Sheets

You must be listed on daily call sheets, and the currently employed writer is entitled to receive a daily call sheet when issued to the crew.

Table Reading?

Before a movie shoots, the cast sits around a big table and reads the script out loud. Theoretically, this would be the most important preproduction event for a writer to attend. Alas, we do not have a right to be there. Why? Because the DGA doesn’t like the idea of it. It’s not that directors are all insecure egotists. Some writers have shown up at those things and acted like jerks. On the other hand, the fact that this isn’t a right and is merely a “preferred practice” is quite ridiculous, and I’m hoping that will change.

Set Visits

We have a right to visit the set of the movie we wrote, but that right is subject to the director’s approval. So, umm…what the hell kind of right is that?

First Class, Baby!

You fly to a gig, you fly first class. Non-negotiable. Booya!

Cast And Crew Events

If you work on a movie, you get an invite to the cast screenings or the wrap parties. If you live in L.A. and the wrap party is in Saskatchewan, they don’t have to pay for you to get there. But you do get an invite. Notice that I didn’t say “premiere”, right? See, here’s another fun little “right” that we have. We have the “right” to attend the premiere and press junket of the movie we write…unless the company notifies us otherwise. Sigh.

Writer’s Viewing Period

The writer is owed a chance to screen a cut of the movie and give notes on it in enough of a timely fashion so that those notes might actually be incorporated. By someone. Theoretically.

A VHS Copy!

Yes! They owe us a VHS copy of the movie we wrote!

What’s a VHS?

Hey, we also get a copy of the script! Sigh.

As you can see, some of these rights are important and clearly well worth fighting to keep, while others are either pseudorights or completely worthless. What’s fascinating about this list, however, is that it’s essentially an insight into basic professional courtesies that have been denied screenwriters.

If they hadn’t been denied us, we wouldn’t have collectively bargained for them. Unfortunately (and here’s the Big Point, y’all), there’s a difference between getting a rule on the books and actually getting treated with courtesy. You can’t legislate good will. We can force the companies to let us watch a cut of the movie so that we can give notes, but we can’t stop them from not caring about a single thing we say.

That’s why my personal crusade has been to try and move professional screenwriters away from standing on these rights and demanding them like Norma Rae, and move screenwriters toward practical real-life solutions that actually improve the relationship between them, the employers and the director.

It’s significant that we have the right to discuss our vision with the producer. I can tell you, though, that it’s far more satisfying to have the producer call you and say, “Hey, we should talk about the movie before the cameras start rolling.”

The WGA is a labor union, and it must live in the world of institutions and bargaining. It will be very challenging to make real creative rights gains at the negotiation table. Positive working relationships are not governable by contracts. They just happen…or they don’t. Remember that right about “consultation on notes”? Well, apparently some studios were just handing some writers notes and refusing to discuss them further. Why would a studio ever do such a thing?

Probably because they had zero interest in that writer actually succeeding. The working relationship was bad. Now, thanks to our creative rights, they have to discuss the notes with that writer.

That won’t change a single thing about the way they feel about the writer.

Know your rights, but do what you need to do so that you get all those things you’re entitled to without having to ask.

Grosso goes all inA landmark case is finally making its way to a courthouse near you (if you live in L.A.), and it could potentially affect how every screenwriter does business in this town. Possibly for the better, but possibly for the worse.

Call this one a case of “be careful what you wish for.”

Here’s the background. In 1996, a writer named Jeff Grosso submitted a screenplay about the world of undergound poker to a production company named Gotham Entertainment, which had a first-look deal at Miramax.

Miramax did not make the film. However, they did produce the movie Rounders in 1998, which is also about the world of underground poker.

Grosso sued.

As we’ve pointed out endlessly here at The Artful Writer, ideas are not considered intellectual property. No one owns them, therefore theft of ideas is impossible. In order to claim that Miramax and the writers and producers of Rounders stole his movie, Grosso had to show that they stole some of the unique literary expression contained in his screenplay.

He failed to do that. The Ninth Circuit rejected his claims of infringement, stating that the two scripts had substantially different moods, pace, themes, settings, character, sequences and dialogue. The only commonalities were basic poker terms that weren’t unique to the writers, but widely known by anyone who plays the game.

But if infringement were all that Grosso charged, I wouldn’t be writing about it.

Grosso also charged that Miramax had violated an implied contract with him.

An implied contract is defined as:

A contract not expressed by the parties but, rather, suggested from facts and circumstances indicating a mutual intention to contract. Circumstances exist that, according to the ordinary course of dealing and common understanding, demonstrate such an intent sufficient to support a finding of an implied contract. An implied in fact contract does not arise contrary to law or the express declaration of the parties.

Grosso alleged that by accepting the submission of his screenplay, Miramax entered into an implied contract with him. The essence of the implied contract? That if they used his script, they’d have to pay for it.

Used. Now, apparently there’s a different standard for “use” and “infringe.” “Use” can mean “use of ideas,” and so, the Ninth Circuit denied Miramax’s motion for dismissal on that charge. The case goes to a jury now.

Lots of screenwriters have seen this case as a new sword to wield against the companies. Many have had the experience of pitching a concept, getting passed on, and then seeing a film with a similar idea in a movie theater a few years later.

It’s no surprise, therefore, that lots of writers are rooting for Grosso.

Lots…except, say, Brian Koppelman and David Levien. Brian and David are the credited writers of Rounders. It is their claim that the screenplay for Rounders is wholly original to them, and given that the Ninth dismissed Grosso’s infringement claim, it appears that they’re right.

If Grosso should win, what does this mean for the Koppelman and Leviens of the world? Imagine pitching an idea totally original to you, and being told by the studio that they’ll buy it, but only as a rewrite of a prior idea someone else pitched them, because of implied contract.

Imagine selling a spec to a company, only to be told that your original screenplay is actually going to be considered an adaptation of a five year-old spec they didn’t buy…because there’s an implied contract, don’t-you-know…

The truth is that there is no implied contract. Hell, Grosso never even met with any Miramax execs. I hope that the jury sees fit to deny Grosso’s claim.

Of course, if they don’t, not much will change. The studios will simply require all writers to sign statements acknowledging, prior to submission, that there is no implied contract.

If Grosso wins, it will be an empty victory, and possibly a true annoyance. Screenwriters live in an unfair world, to be sure, and studios often bully us. We don’t need “heroes” like Jeff Grosso, though.

I’ll take my chances with writers like Koppelman and Levien. You know. The ones who actually do the work.