I Guess I Was Ahead Of My Time
Conspiracy?Some people are obsessed with the grassy knoll. Others are sure that 9/11 was the first time fire ever melted steel (except for every single day in every steel mill in Pennsylvania, but hey, Rosie O’Donnell knows best).
In the WGA, there’s only one conspiracy theory worth talking up, and lo and behold, it’s the strange case of Foreign Levies.
This is gonna be a long one, folks, so bear with me.
Last week, no less than three articles were published about this topic. The Los Angeles Times, Fade In Magazine and the L.A. Weekly all weighed in, and with varying degrees of accuracy and sensationalism. Prior to this, I guess the only person really interested in this topic (who isn’t a conspiracy theorist) was me. I wrote an article about foreign levies, and if you want the rest of this piece to make sense, you should probably go read that first.
Before I go into my analysis of the current brouhaha and the players involved, I should note for full disclosure that I spoke with Richard Verrier (the author of the L.A. Times article) on background, and I went on record with Stefan Avalos, who wrote the Fade In article.
Here are some facts.
In 2005, a class-action suit was filed against the WGAw, with William Richert as a named plaintiff, alleging that the WGAw had no legal standing by which they could collect foreign levies, and furthermore, they weren’t distributing them.
Also, a former staff employee at the WGAw named Terry Mial was recently fired. Mial, who had been working in the department that distributed foreign levies, is suing the WGAw for wrongful termination.
One last fact. There are some people who believe that the entire foreign levies program is a massive scam designed to steal money from writers and divert those funds into the pockets of highly placed Guild employees and political muckety-mucks.
I think Verrier wrote a very balanced piece, which you can read here. Avalos also did a very thorough job, and I also found him to be extremely balanced and fair-minded. You can read his piece here (the layout is odd…his article starts on the right side, but once you get past the first bit and hit “continue”, the formatting improves).
And then there’s Dennis McDougal at the L.A. Weekly. His article was awful. I understand that the L.A. Weekly doesn’t exactly “do” journalism the way everyone else does…his piece is a hybrid of reportage and opinion…but it’s such a nightmare of misinformation, it belongs happily nestled between ads for prostitutes and pitches for laser vaginal rejuvenation.
Hey, the L.A. Weekly’s gotta make money somehow…
Anyway, I think all of this publicity was precipitated by a recent court ruling in the Richert case. The Guild, represented by General Counsel Tony Segall, argued that the case should be heard in federal court (nb: Tony is really the WGAw’s outside counsel, but ever since the in-house general counsel was summarily fired by Patric Verrone and David Young, Tony has served as outside and inside counsel, an arrangement that makes me a bit squeamish, although I continue to hold Tony in high regard).
The guild wanted the case in federal court, because it apparently believed it would prevail on the basis that they had not violated the Labor Management Relations Act. See, part of the plaintiff’s anger is at the fact that the WGA and DGA share the foreign levies with the MPAA companies. The WGA wanted the case to be heard on those grounds in federal court (which governs the LMRA), because they were pretty sure they hadn’t violated that law.
And they probably haven’t. However, the judge turned down their request, and remanded the case back to the California courts, because:
Plaintiffs here do not allege that defendants breached their duty to collect or disburse foreign levies under the agreement. Rather, they allege that defendants have illegally converted funds that rightfully belong to plaintiffs by holding themselves out as having the right to collect foreign levies on behalf of non-members without having obtained the non-members’ authorization to do so.
Got that? The judge is saying, “The guys aren’t saying you screwed up by making a bad contract under labor law, they’re saying you screwed up by collecting this money in the first place without asking permission from the people on whose behalf you’re doing this.”
As to whether some limitation of rights occured (which is central to the question of whether or not the plaintiff’s case has merit), the judge said:
By providing that the Guilds would receive less than 100% of the author’s share, the agreement clearly limited plaintiff’s right to receive their full share of the foreign levies. The court therefore concludes that the agreement contains ‘clear and unmistakable language’ circumscribing plaintiffs’ rights.
This is certainly true. If you live in Europe and write a movie there, you retain copyright, and you get 100% of the foreign levies due the author of that movie (which would be 50%, actually, since the director gets half…I think…this may vary from country to country). Through their efforts to get that money out of Europe and into our hands here in the U.S., the DGA and the WGA had to deal with the fact that the talent are authors there but not authors here. Hence, the compromise to avoid litigation that led to the 50-50 split with the companies.
It’s important to note that while the Judge believes the agreement circumscribes the plaintiff’s rights, I don’t think her ruling implies that it does so illegally. That’s still up to the state courts to decide…although I must remind everyone that I’m a layperson. I’m playing the home game along with the rest of you.
As an aside, the plaintiffs sought legal fees from the WGA, but the judge didn’t grant those, because she felt the WGA’s position wasn’t frivolous.
As for Terry Mial, here’s what we know. We know that she claims to have complained a lot about the way foreign levies were being disbursed. We know that she alleges that she was cooperating with a Department of Labor investigation (although there’s no other evidence to date that such an investigation exists, formally or otherwise). Lastly, we know that she told a coworker to keep quiet about the alleged investigation or “I’ll have to kill you.”
Joke? Threat? I have no idea. It got her fired, though, and she’s charging that her termination was retribution for whistle-blowing, rather than murder-threatening. I do know that under Patric Verrone and David Young, the WGAw has become a fire-happy termination festival, with heads steadily rolling since they took power. Some of the costs of that sort of management style are resentment and lawsuits.
Reap/sow, etc.
Personally, I think you probably do have to fire anyone who makes a serious death threat. Let’s see how that case winds up.
Before I get into what the L.A. Weekly article got wrong, let me first talk about what I think the critics of the foreign levies program get right.
The star of McDougal’s article is Eric Hughes, former Guild candidate for President and general WGAw gadfly. I think Eric is a bit unhinged about all of this, and I know he’s certainly wrong about some things, but all in all, I don’t blame Eric for any of his more…shall we say…exciting theories about foreign levies.
It’s the L.A. Weekly’s fault for publishing them without checking facts.
Still, there are some things about foreign levies that trouble me.
First, while I’m basically on board with the concept that without the WGA stepping into the breach, none of this money would find its way to us, I’m growing increasingly impatient with the guild’s inability to do the job competently. It’s not the baloney accusations about “hiding money from easily-found widows” that bothers me (most of that stuff isn’t true, e.g. I hear that Preston Sturges died intestate, his heirs are apparently battling for his money, so the guild doesn’t know to whom his levies should go).
I’m more concerned about the bureaucratic inefficiency. Granted, the Guild was swamped by more money than it knew how to distribute, and granted, the paperwork it often gets from the foreign countries is insufficient or nonexistent. Still, you shouldn’t take on a job if you can’t do it right. While things are getting better, they’re not what I’d call “good.” If the Guild can’t manage to clear out all of the funds it’s holding within two years, it should wave a white flag and give someone else a try.
Second, according to the guild’s own internal investigation of the foreign levies money, $17,000 is missing. Unaccounted for. They’ve turned the results of their investigation over to the police, but how could this have happened at all? Where are the safeguards and procedures to prevent what sounds like outright embezzlement? While $17,000 is a pretty small amount in the grand scheme of the many millions that foreign levies bring in, it’s still seventeen thousand dollars.
I think the membership of the Guild deserves to know who, if anyone, is being investigated, and who, if anyone, has been put on leave or suspension over this incident. It’s incredibly embarrassing and disconcerting, particularly in light of the fact that the conspiracy theorists insist that people are stealing money hand over fist from foreign levies. I keep saying “No, there’s no proof!”, and now, apparently, someone has stolen some money. Arghh. If you can’t keep the cash safe, then stop collecting it.
Third, and why Hughes and Co. don’t spend more time complaining about this I don’t know…is the foreign levies deal with the MPAA a collective bargaining agreement or not? If it is, then why didn’t the membership ratify it through a vote? Our constitution clearly sets out the circumstances under which collective bargaining agreements should be ratified, and I think the language is incredibly clear: all CBA’s must be ratified, in one way or another, no matter what type they are or function they serve.
If the deal isn’t a CBA, then was the WGAw, as a labor union, legally entitled to make it?
Fourth: When I spoke with Patric Verrone to learn about foreign levies, he told me (accurately) that if the Guild doesn’t shift undisbursed levies into the union’s general fund after seven years, those funds would escheat…or default…to the state.
Here’s Avalos on that.
Keeping undistributed money from escheating to the state seemed a reasonable attempt to keep it safe for the writers not yet found, especially if “escheat” were synonymous with “forfeit.” Unfortunately, that was not the case.
Folks, I certainly thought escheat was synonymous with “forfeit.” I was wrong.
According to the California state controller website, “The Unclaimed Property law was enacted to prevent holders of Unclaimed Property from using your money and taking it into their business income. This law gives the State an opportunity to return your money and provides California citizens with a single source, the State Controller’s Office, to check for Unclaimed Property that may be reported by holders from around the nation.”
Hmmm. Okay, but all things being equal, why let it escheat?
And unlike the WGA’s five percent administrative fee, the state charges nothing to a claimant. Its service is free.
Oh. Right. Hmmm, not good.
Wouldn’t it therefore have made more sense for the WGA to let the unclaimed money escheat instead of holding on to it?
Well, from the perspective of a recipient of those funds, I think yes, yes it would make more sense to let the funds escheat.
Eric Hughes questions the legality of the guilds’ policy of keeping the money: “Unions do not have to allow money to escheat if it’s ‘dues-able’ … Once the member dies, the member no longer pays dues, so that money must escheat. Money for nonguild [members] has to escheat immediately.”
I’m not sure if his legal analysis is correct or not, but I think he’s on to something. It’s not necessarily good for the union, but it’s probably the right thing to do. Frankly, why shouldn’t members’ money escheat if the WGAw can’t find them or doesn’t know to whom it should actually go?
Contradicting the 2003 WGA newsletter, Segall denies that any principal amount of undisbursed money has ever moved from the levies fund into the general fund. “The only money that has ever flowed into the general account is interest on the money held in trust and, in the last couple of years, the five percent administrative fee.” Segall wouldn’t elaborate on how money, undelivered for more than seven years, had avoided escheatment, but felt the guild was handling it properly.
Ouch. I hate reading stuff like this. I don’t like it that our union put out a statement in 2003 that our general counsel is now saying is false. I also don’t like it that Tony is claiming that money that should be escheating isn’t escheating and not because it’s in the general fund, but he’s not gonna say how the WGAw is doing it, but it’s “proper.”
I generally give Tony and the union the benefit of the doubt, but I think after misplacing $17K, losing a fight in federal court, getting slapped with a wrongful termination lawsuit and contradicting union publications, I’m owed a better explanation as a member. I think we all are. We should know exactly why the WGAw isn’t letting the money escheat, and we should know exactly how the WGAw isn’t letting the money escheat.
This is why, in a way, I’m happy that guys like Eric are around. Does he seem to have an irrational vendetta against the WGAw? Yes, he does. Is he right about everything he says? No. Is he occasionally right? Yes. Is anyone else as publicly assiduous in their attack? No.
Eric is like a car accident. You don’t deserve to get hit by another car, but it’s one of the only ways you’ll find out if your airbag is working, ya know?
Still, like a car accident, conspiracy theories don’t care whom they hurt. Nor do the proponents of conspiracy theories care for truth. They begin with assured, preconceived notions, and then build cases.
That’s why they say silly things a lot.
(Ed. Note - 5/10/07 - I’ve now had a lengthy discussion with someone close to Eric, and as a result of that discussion, I wish to offer this limited apology to Eric Hughes.
Eric…if you’re reading this…I’ve unfairly associated you with some people who purport to speak on your behalf. I understand now that they do not, and will no longer tar you with that brush. My apologies.)
Here are some excerpts from the L.A. Weekly article that I find objectionable.
Since 1990, these critics contend, the guild has quietly been paying a king’s ransom in writers’ foreign earnings—far beyond the $20 million in withheld checks already acknowledged by Gor—to powerful Hollywood entities without the writers’ agreement or knowledge.
I think what “these critics” are contending is that the writers share in foreign levies money with directors and the MPAA companies. This is a matter of public record. Hell, I’ve written about it here on my blog. It’s possible that writers don’t know about it, the way that many citizens haven’t read the 9-11 Commission report, but that doesn’t mean that fact is being hidden, nor does it justify the use of the word “quietly” in the above paragraph.
The L.A. Weekly has learned that the Department of Labor has been quietly gathering evidence and testimony about the guild’s payment practices for over a year—though it refuses to confirm or deny that it is investigating.
Uhhh…..huh? If the DOL refuses to confirm or deny it, then how does the L.A. Weekly know this? If they have some evidence, why not share it with the rest of us? Why should Eric Hughes and some guy at the L.A. Weekly enjoy the privilege of that knowledge while the rest of us dues-paying schmoes get left out in the cold? If the DOL is investigating the Guild and there’s evidence of it…PUBLISH IT!
If not…why allege it without evidence?
Moreover, on April 12, a 27-page ruling by Los Angeles federal District Judge Margaret Morrow appears to have granted the writers some legitimacy, by rejecting the WGA claim that, as a labor union, it could collect and hold their money—and charge them hefty fees to boot.
I’m not sure that’s what the ruling said. There’s some tricky wording there…re: “as a labor union.” The WGA may still prove a right to collect and distribute (and hold, I suppose) that money, but outside of the federal statutes specifying management-labor relations. That’s the reason there’s still a trial yet to come. This seems unnecessarily misleading to me.
The controversial but, to many, compelling argument made by Hughes, Richert and other critics is that foreign levies are being withheld by all of Hollywood’s talent guilds in a long-standing practice they see as a bizarre twisting of U.S. copyright law.
That virtually unnoticed 1990 decision, by the guild’s board of directors, to funnel more than 90 percent of American writers’ foreign earnings to big studios and other fat cats, mirrors an old practice struck between screenwriters, actors, directors and the studios in the 1940s shortly after the WGA, Directors Guild of America and Screen Actors Guild were born—and conceded authorship of the movies they created to the studios.
Boy, where to begin on that doozy? I’m glad that an alleged “many” find Eric’s argument compelling. First off, Eric’s premise is incorrect. He believes that writers and only writers are due the foreign levies from movies and television. My understanding is that many countries (if not most) recognize that directors and writers share in the authorship of film and television.
Next, who needs pointless language like “fat cats” in there? “Fat cats?” Really? That’s how journalism goes these days? Anyway, the numbers are off. The early levies deals were bad, but they’ve grown increasingly better. Currently, writers are due 25% of foreign levies. The directors get the other 25%, and the AMPTP gets 50%. I’d like to think that when this deal expires, the breakdown will be even more favorable.
The truly big whopper in the above excerpt, though, is this nonsense about the guilds ceding authorship to the studios in the 40’s. Work-for-hire, the uniquely American quirk of copyright that allows a corporation to commission a work and retain copyright, has been applying to motion pictures since 1912, not the 40’s. Decades before the Guilds ever came into existence, Congress ruled that motion pictures (yes, they specified them) fell under work-for-hire. They don’t have to be created under work-for-hire, but they can be.
Because work-for-hire existed, screenwriters and directors couldn’t exercise copyright claims, nor could they license their work. They were, by dint of work-for-hire, employees. And guess what employees can form?
Unions.
The unions didn’t give away copyright to the studios. They unions were only possible because work-for-hire had already been introduced thirty years prior.
A furious Mial started smuggling out of the gleaming glass WGA headquarters records of “undeliverable” foreign levies—essentially, piles and piles of payment records and mysteriously uncashed checks reviewed by the Weekly, which she claims she rescued from the guild’s shredder.
“Gleaming glass?” Jesus, McDougal…have you seen the place? Gleaming? I guess gleaming sounds more evil or something.
I like the quotes around “undeliverable.” Beats having to write out “allegedly undeliverable,” which is accurate and responsible, but not as much fun.
By the time she left last June, she says, the bookkeeping had become so egregious that checks were cut, held for several months, then declared “undeliverable”—after which they were escheated back into WGA bank accounts, allowing the known totals of undelivered payments to swell far beyond $20 million.
Either she’s right, and the Guild is in serious trouble, or she’s really bad at figuring out what’s going where, in which case it’s probably for the best that she got fired.
Until her own death last November, Preston Sturges’ widow, Sandy, had been equally outspoken. At the same time that the guild invited her to unveil its new Preston Sturges Reading Room at the WGA West headquarters at Third and Fairfax in the summer of 2005, her late husband’s name appeared among the long roster of “undeliverables” in the guild’s foreign-levies division. Mial testified in her deposition in the Richert case that she knew of at least one check for $5,000 that Sandy Sturges was never paid—and had documents proving it, which were obtained by the Weekly.
As mentioned above, Preston Sturges died intestate. This is a bad example to keep banging on, because it’s the easiest one to explain away.
But in exchange for a large up-front payday and the promise of future residuals, all of Hollywood’s guilds “assign” copyright to studios, and have done so for more than two generations.
A massive untruth. The Guilds do no such thing. You know who “assigns” copyright to the studios?
We do. The writers. By our own choice. Me, Ted, Eric Hughes, all of us. There’s nothing stopping us from insisting that we retain copyright on our spec scripts, agreeing only to license the movie rights. Completely kosher, and we wouldn’t even have to pay the Guild dues.
Problem is that the studios won’t do business like that. They refuse. The Guild’s MBA is the minimum agreement we follow when we choose to abide by the studio’s terms. It is not some institutional infringement of our rights in any way.
Guild vice president Carl Gottlieb, in a posting to a popular WGA members’ blog called Writer Action, says the foreign-levies diversion scheme was originally hatched in 1990 by two studio lawyers and then-WGA executive director Brian Walton.
Carl isn’t the VP of the Guild. David N. Weiss is. WriterAction ain’t that popular (I’m just being bitchy now, but honestly, it’s the same 30 people talking over there), and the foreign levies program really isn’t a “diversion scheme.” That’s laughable. I guess the L.A. Weekly is a “print ‘journalism’ scheme hatched to lure men to so-called ‘massage’ girls who advertise in the smeary-inked pages.” Sigh.
“Under labor law, ratification is not required,” the WGA’s Segall tells the Weekly. “We don’t read it as requiring ratification.”
Hughes maintains otherwise, saying, “No union has the right to go in and negotiate without the consent of the membership”—not to mention nonmembers or the heirs of dead members.
See, this is what’s frustrating about Eric. He should follow this line of inquiry. Not the baloney moustache-twirling “save the widows from the Gleaming Glass Fortress” stuff. I think Eric has a real case on this point. And it’s not labor law that’s relevant. It’s the WGAw constitution, which is a binding contract between the union and its own members. The constitution demands ratification, regardless of whether or not the law says you don’t have to do it.
But in the end, after all this hullabaloo, here’s the messy truth, far from the world of accusations of theft and evil and so-forth.
The messy truth is that foreign governments collect money for the authors of movies and TV.
Those of us who work in Hollywood are and aren’t the authors of these things. We are in name, we’re not in law.
The foreign countries don’t recognize that corporations can hold copyright.
On the other hand, once the money crosses our border, our laws apply.
Big mess.
One day, maybe they’ll work this all out in The Hague. Given the nature of the international wheel of justice, I figure it will all be settled by 2040, after a few hundred million in legal fees.
What the WGA, DGA and MPAA did was a smart compromise.
Unfortunately, it might not hold up in court.
If it all collapses, we will lose. Of that much, I’m sure. Hughes and Co. believe that the money will finally flow directly to us, and they’re wrong about that. It will be a massive legal battle, and God only knows what we’ll get.
In that sense, I hope they fail.
On the other hand, institutions can’t expect to to build a house of cards in service of a good ideal, because those things never last. Bad structures inevitably fail. It may be that the Guilds’ foreign levies structure is fundamentally flawed.
In a year or two…or fifty…we may find out.
You’re part of the problem, who’s paying you off, conspiracy, lies, watch the skies, mwrah mwrah mwrah. Hiccup!
You asked: “….Third, and why Hughes and Co. don�t spend more time complaining about this I don�t know�is the foreign levies deal with the MPAA a collective bargaining agreement or not? If it is, then why didn�t the membership ratify it through a vote? Our constitution clearly sets out the circumstances under which collective bargaining agreements should be ratified, and I think the language is incredibly clear: all CBA�s must be ratified, in one way or another, no matter what type they are or function they serve.
If the deal isn�t a CBA, then was the WGAw, as a labor union, legally entitled to make it?…”
We have asked, Sweetie, we have, many times. Answers vary, from “We did this so it wouldn’t come up every MBA negotiation” to “It was the settlement of a legal issue, not something mandated in the MBA (though it is.) There are problems either way. It can’t be a collective bargaining agreement because it never got to the membership. It never even got to a full meeting of the BoD; it was an Officer Determined Matter. The problem with the Foreign Levies deal as a settlement of a legal dispute is that the Guilds involved did not have standing to make the deal for non-members, and possibly even for members. Kind of a head scratcher, isn’t it?
No studio employees were involved in the “hatching,” unless you count Robert Hadl, who was retired and available when the Guilds (WGA & DGA both) hired him. What he learned in 30 years of specializing in international financing, production. distribution, quotas, national treatment, etc. at MCA under Wasserman is almost unknowable by anyone else.
Also, a careful reading of the Judge’s decision suggests a “careful what you wish for” to the Plaintiffs. Without the Guild to bargain for them collectively, they may (after prevailing at trial) only win the right to take an extensive tour of the Continent (and Argentina), introducing themselves to each of the foreign collection societies, proving their identities, authorship, and entitlement, and collecting from each society individually in perpetuity. And probably paying Euro taxes on their new-found wealth. The Judge’s careful denial of legal fees suggests the plaintiff’s have a few more checks to write before their share of foreign levies comes rolling in.
Fortunately, Euro lawyers charge a lot less than their US counterparts. Unfortunately, there will be a lot more of them to pay, when (and if) Plaintiffs begin their “Collection Societies of the World Tour - 2010.”
You know, Craig, you and Verrier shouldn’t be messing with the police to try to find an angle to distract people from the real story of 20 million unpaid to this bullshit $17,000. The police have got better things to do with their time, and they aren’t interested in being used for PR spin. Especially to cover up an ongoing criminal investigation by the Feds.
Verrier said that the evidence was being turned over to the DA. That’s in print. Tony Segall was quoted saying it. But you know what? The DA didn’t get it. Now you’re saying it’s being handed over to the police. I hope you’re right about that. But then the LA Times is clearly wrong.
I hope you’re correct about this “evidence” being handed over to the police. I hope you back it up in a future post.
Because if you’re just making all this shit up, watch out dude, you stepped over another line.
Nice spin job! Your motives are not completely transparent or anything.
Enjoyed that piece a lot. It’s a shame that the Guild is being painted with this broad, unflattering, brush. There are many dedicated people, with the best of intentions, working hard on behalf of writers. Will they ever be smart enough, efficient enough, open enough, or good enough to satisfy writers? Nope. Is there room for improvement? Of course. These are complicated matters, but it continues to surprise me that writers are so ready to attack the very people (some would say the ONLY people) fighting their fight each and every day.
Will…okay, I’ll bite.
Which way was I spinning?
Your readers might find this informative. Not that facts play into any of this issue, of course:
http://wga.org/subpage_newsevents.aspx?id=2363
Wow, that WAS long. I have only two thoughts:
“The directors get the other 25%, and the AMPTP gets 50%.”
I thought it was the MPAA?
“Beats having to write out allegedly undeliverable, which is accurate and responsible, but not as much fun.”
Oh, come on! Give the guy a break. He was working under the constraints of a word count - or something. Adjectives like “gleaming” and nouns like “fat cats” have to come at the expense of something.
Just how many class action suits are there involving the Guild? Having just joined, I received the request to have my financial history supplied to the plaintiffs on the age discrimination suit and I thought, all yours, guys. Go with God. This one I’m not so sure about. I still receive foreign SAG residuals on stuff I did in college — 15 years ago. The last one was eighty-six cents. So I’m not holding out much hope for the Swedes owing me much on my writing. Sometimes the insiders forget that so many of us are so overwhelmed by our struggle to become one of you that we can’t imagine a larger cause than that to take up. I had to read your post twice to have maybe eighty percent of an idea what you’re getting at. And yet, I somehow sense that it’s important. Maybe it was the length?
Here’s an interesting fillip to all this …
There seems to be presumption, writ large in McDougal’s article but also touched-on-by-omission in the other two articles, that when it comes to the blank tape levies, any disputes over authorship will be settled under the jurisdiction of the country where the work is exploited (ie, the foreign country where the private copying take place), rather than the country where the work was created (the U.S., natch).
This is a rather important issue, since in the U.S., the Company that produces a movie is almost always recognized as the author of the screenplay and the movie, due to the work-made-for-hire law. However, under the laws of the countries in question, authorship is defined very simply:
(I’m citing Austrian copyright law throughout, but on these points, its similar enough to the laws of the other countries that it really doesn’t make a difference).
And how does the law determine who that person is?
So, failing proof to the contrary, the person credited on the work as the author shall be presumed to be author — that is, the person who created it.
Now we get the aspect of these countries’ copyright laws that has no equivalent under U.S. copyright law: Protection of Moral Interests; that is, the moral rights of authors set forth in the Berne Convention, which includes the right to attribution. Again, quoting the Austrian copyright law:
So if, for some reason, the person credited as the author on, say, a screenplay is not the creator of the screenplay … it’s within the creator’s rights to claim authorship.
And, presumably, if the creator can provide proof of his claim, he will also have the right to the appropriate author’s share of the levies — regardless of who was credited as the author on the work itself.
Now, here’s a little known fact: a unique condition of the WGA Minimum Basic Agreement is that the on-screen “Screenplay by” credit does not recognize the person who was employed in the job of “writer” — it actually recognizes what’s called “screen authorship” of the final script.
Since the usual manner in which the author or authors of a screenplay are designated is screen credit … under the laws of these countries, these are the people who are presumed to be the authors, and so these are the people who are entitled to appropriate author’s share of the levies.
Problem:
As I said, the U.S. does not recognize the moral right of attribution. Screen credit is not a function of the droit d’auteur; screen credit is not mandated by the right to attribution. When it comes to movies made under Guild jurisdiction, screen credit is a form of compensation as term of an employment contract (for all individuals, not just writers).
And that employment contract — the MBA itself, which sets forth the terms by which the Company shall give screen credit — would serve as proof that individuals designated as the authors of screenplays are not necessarily the creators of those screenplays … and so are not entitled to receive the appropriate author’s share of the levies.
Where all the writers who participated in making contributions toward the final script agree with the credit, there’s no issue — but what of the instances where the participating writers don’t agree with that determination?
There’s a number of rather well-known instances of writers who believe they were forced to share credit unfairly, or were denied credit entirely as a result of the WGA arbitration process. Michael Eddy Baker and The Last Samurai; William Richert and The American President; nearly all the writers who worked on The Hulk; and in weird reversal, the writer who received sole credit on Miracle is on record as saying he thought the other guy got a bum deal.
And, of course, there’s a faction of the WGA membership who believe that, in all cases, the first writer should receive sole credit for screen authorship, based on the argument that, in effect, the entirety of the creative act required on any movie is accomplished in the first draft, and everything after that is inconsequential to the final script.
So, basically, every single writer who believes he/she did not receive the screen credit he/she deserved — in television as well as theatrical — could have another shot at making the case that, contrary to the contractually-obligated-and-determined screen credit, he/she is the creator of the work and true author.
Actually, not just one shot: they’d have a shot in Austrian court, in French court, in German court, in Spanish court … etc. etc.
Of course, that’s accepting what seems to be presumed in all of these articles: that when it comes to a work of authorship created in the U.S. in the employ of a U.S. Company, U.S. copyright law and U.S. contract law are irrelevant to determining the authorship of a work for the purpose of dispersing blank tape levies.
Big ol’ can o’ worms, no question.
-
Craig: Thanks for going through this. Very helpful. But there is a problem you kind of skipped over. Everyone ho-hums the Guild pocketing the interest on the foreign levies and then claiming it went to cover expenses. The Guild is no more entitled to that interest than a lawyer who’s executing my estate. The interest belongs to the writers who earned the foreign levies, just as the interest in the lawyer example belongs to my heirs. The problem is even worse when you realize the Guild kept pocketing the interest EVEN AFTER it began charging 5% to the recipients. It’s not a small amount of money we’re talking about. At 6% the interest on $20 million is $1.2 million a year. The cost of processing foreign levies is a lot less than that. What happened to the difference? And what happened to the interest after the Guild started charging 5%? Fortunately the problem got corrected recently, although I don’t know if the back interest was ever returned to the funds. Regardless, there was definitely double-dipping and a misappropriation going on for a long-time. It wasn’t criminal — I don’t think anyone meant to steal anything or profited personally — but it was wrong.
PM
PM:
I agree, the distribution of interest is of great concern. A lot of what is going on seems to rise to the test of “improper” but not “criminal.”
So far, at least.
I always find it curious that keeping money owed to someone else isn’t viewed as a criminal act.
It’s legally wrong, that’s for sure.
So what is it?
It ain’t Traffic Court stuff.
Is it a matter for Civil Courts?
I guess so.
But why does ripping off millions rarely involve the police, yet stealing a tip jar always does?
They’re both crimes - but one gets the police involved much faster than the other.
I find it more than a bit disappointing, sad even, when Disney, a Corporation making $8 billion just from their studio division, signs a contract which guarantees the writers of POTC a piece of the profits for merchandising of the POTC movies…yet in the end, Disney simply refuses to pay them.
Why?
Because they can?
I guess it’s because Disney employs lots of accountants and lawyers who can make it very expensive and difficult to extract owed monies when they don’t want to pay up.
But imagine a renter refusing to pay his rent to his landlord, a cashier refusing to give you change - a boss refusing to pay his employees - all Hell breaks loose when those things happen.
So why is it “accepted practice” yet not seen as “criminal” when a corporation keeps money that isn’t theirs? How different is that from stealing?
Just my musings - I’m not privy to the internal workings of the WGA and don’t know what in Hell is going over there outside of their library.
Boy, I hope this formats right…
Craig, I’m glad you don’t feel that I twisted your words, took you out of context or made you victim to any of the other dangers that are inherent in being interviewed for this kind of story.
I did intend to write the most accurate article possible. If any inaccuracies are found, please take into consideration that — I’m human and subject to the occasional error.
Disclaimer complete.
My honest take, after speaking to a lot of people, from non-guild writers and directors on up to one of the V.P’s of the MPAA is: I think, from the Guild side, the foreign levies program was probably started with good intentions, but by people that really weren’t capable of pulling it off. Brian Walton was, at best, a sucker seen coming from a mile away. His ‘deal’ cost writers, both guild and non-guild, millions of dollars.
And as a screenwriter who has been affected directly, let me say - that really sucks.
The same thing happened at the DGA.
And that really sucks too.
Over the years, I also believe, because minimal effort and ignorance were profitable, there was abuse of the program. People other than the writers and directors the money was meant for, have been profiting with foreign levies money.
Considering the ease with which I was able to track down "unlocated" writers and directors owed money, I can be nothing but suspicious. The interest earned and kept on their money is a pretty obvious eyebrow-raiser. The 5% fee, once interest wasn’t earning enough (I’m paraphrasing Segall’s words from my interview with him), seems another uncool, and excessive thing to do. And by ‘uncool’, I hate to say it, but I do mean - criminal. And honestly, criminal or unintentional - The IRS does not forgive financial transgressions, why should we?
We need to stop drinking the Kool-Aid from the paternalistic non-writers at the Guilds, the MPAA/IFTA/Who-Knows-What-Else and form an honest to god third party collecting society. Guild Status be damned.
If Musicians can do it with, why can’t we? They certainly ain’t smarter. I hear concerns that it would be a mess, and cause all kinds of financial heartache, etc. But so far, everyone I hear those concerns from has a vested interest in the levies programs remaining at the Guilds.
Won’t know unless we try.
As things currently stand, I don’t think the best interest of the writer/director - or even the independent producer for that matter, is being represented the way it should.
That’s my take. Any longer, and this comment will begin to reiterate what I already wrote in the Fade In article.
Now, back to the 14th draft of my latest screenplay, already in progress.
Stefan:
I don’t know if the 5% is criminal or not.
I do agree that we have a situation of good intentions and bad results.
I’m with you on this. I think a 3rd party is probably the way to go, but which 3rd party? And who will hold them accountable? And what will they charge us?
“And what will they charge us?”
10%
You were right, Craig.
This was long.
But, as always, I loved the picture of money.
Craig and Ted and I have been sparing about this for years in private and semi-private.
Now that this scandal has broken to the larger blogshere, I’ll be curious how long it takes others to realize what I found out long ago.
That both of you deliberately take a simple issue “pay people their money” and then to everything you can to complicate it with irrelivant points and long discussions about details that don’t matter.
Since this first broke in the NY Times 2 years ago, the Guild has been holding onto 20 million dollars it should pay to people who deserve it. Pay them.
“The only money that has ever flowed into the general account is interest on the money held in trust.” How is this good intentions? How is NOT letting some portion of $20 million go to escheats (do we know how much?) good intentions? Letting stuff go to escheats means it’s not your problem anymore. If it’s so hard for the Guild to use google and the phone book and find these people, then let it all go to escheats! Why didn’t they do this? Because they are illegally collecting at least $1.2 million a year (as PM calculates above). The $17,000 is nothing—it’s a distraction. Writers are owed MILLIONS—how can you say it’s a case of good intentions? That’s the spin—that you’re defending the Guild for who knows what reasons… You know good people there, I’m sure, and as a writer you support the Guild, fine. Obviously not everyone who works there is a criminal, but someone is. And as they say, if you make a mistake in my favor, it’s an honest one, if you make a $20 million dollar mistake in your favor…
Will:
You’re leaping to a conclusion you can’t prove.
I believe that many of the millions will be distributed…the guild is just being very slow about it. Painfully slow.
I believe that some of the millions can’t yet be distributed because the guild doesn’t know to whom they should distribute the money. You do realize that much of the money that has come in was collected on behalf of the authors of pornography, for instance.
Ever see the names pornography writers use?
Those won’t be in the phone book.
I know that Ted and I tend to complicate things with our facts and words and laws and ambiguities. I know that makes things difficult for some people. Still, I’m not willing to sit here and print stuff under my name that I can’t prove.
I can’t prove that anyone has stolen anything…beyond $17,000.
(And what’s this talking point that 17G is a distraction? Distraction from what? How does that fact derail any of the lawsuits?)
I’m not defending the Guild. Frankly, I don’t like my union very much right now for a number of reasons separate from this issue.
I’m simply doing my duty to the facts I have. No more, no less.
I’ve never been willing to go beyond the facts I have. I have always been puzzled by people who won’t show me evidence they insist they have, and yet get angry at me because I won’t draw the same conclusions they do.
The best I can say to people who say, “You’ll see!” is “Okay!”
I’ve stayed out of this, but the porn writers thing is just so left field…. I have the feeling that if the issue was primarily the usage of pseudonyms by porn writers, there wouldn’t be a big hoo hah over all this.
So tell us, Craig - about how much of that money was slotted for porn writers? Half? Three quarters?
PS: I also seem to recall you opining that Bush was a pretty aright cat, and that we just needed to let his war plan play out before passing judgement on him, so I’m thinking maybe your track record ain’t so hot when it comes to judging duplicity and criminal behavior….
You’re right. I’m not trying to prove anything and of course I’m leaping to conclusions.
And I don’t doubt that the principal will eventually be paid to the writers—but it seems likely that millions in interest, which belongs to the writers, has already been spent (see Segall’s quote above).
But I’m glad you’re sticking to the facts and what you can prove—namely the reason they can’t track down the writers is because most of them are PORNOGRAPHERS!
If I’d have known porn writers were allowed into the Writers Guild, I would have stopped speccing screenplays and started churning out credits like BROKE-CONDOM MOUTAIN, FUCK THE MEEKERS, FISTING FOR FUN AND PROFIT and NEO-CONS AT WORK AND PLAY years ago …
Here I am trying to break into the business in a literary fashion, when all I had to do was porn - sheesh.
BUSH WARS is also a great title for a porn film, isn’t it?
And you bet, anyone who thought he was at least a somewhat capable leader is gonna be eating crow for years, and they’d better chow down with a smile.
Actually, they’re not in the guild, and this is the source of at least part of the strife.
The WGAw took on the task of collecting and disbursing ALL foreign levies on behalf of WGA members and non members as well.
The guild’s argument is that it was told it had no choice.
Regardless, the WGAw now has to figure out how to get the money out to non-members of all stripes. Many have written in animation, many have written documentaries, and yes, many have written in pornography.
Hey Craig: I’m not a conspiracy nut or obsessive-compulsive but I am upset about this pocketing-of-interest issue. I checked with some Guild staffers and they said that until the NY Times story a few years ago, the Guild devoted no more than two staff people to processing foreign levies. That’s maybe $120,000 a year. That means a million dollars a year is unaccounted for ($1.2 million in interest on the funds that weren’t distributed less the $120,000 in staff costs). Now, according to staff sources, there are maybe six or seven staffers at most processing foreign levies. Say that’s $400,000 a year. But the Guild is also charging the recipients 5% to cover the processing costs AND until recently it was still pocketing the $1.2 million a year of interest. So what did happen with the $800,000 to $1.2 million in past years? If it went into the Guild operating budget and got spent, will it ever be returned? Or will it just be forgotten about? That’s a lot of money under the bridge, a whole lot.
PM
PM:
You’re right to wonder about this. I certainly am. There are some mitigating circumstances to be aware of, however.
First, there’s a difference between money spent on dedicated staffers and money spent on staffers who work on foreign levies. For instance, I suspect Tony Segall has billed quite a few hours as an attorney dealing with foreign levies. Also, guys like Don Gor, who act as comptrollers for the entire organization, spend much of their time on these matters.
In addition to staff, there are many other real costs, e.g. computers, mailing materials, an envelope-stuffing machine (that’s one I know they actually had to go out and buy…), etc.
I wish organizational accounting was as easy as “it costs X for seven staffers…so everything above that is gravy.” It ain’t.
Also important to remember is that the 5% only applies to money that’s actually disbursed.
Now, with all that said, there is a serious problem here. Anyone with a brain can see that an organization that is earning large amounts of interest on capital will be disincentivized to hold on to that capital. Even if the interest rate is lower than the 5% it earns on disbursement (and it surely is), holding the money for a year or two or five and then disbursing it and collecting the 5% above and beyond would certainly maximize value for the institution…while minimizing value for the writer.
Here’s a thought…
We’re talking millions of dollars - owed to tens of thousands of writers! Ultimately the very succesful writers might get a check for $500 bucks - peanuts considering their salaries in the US - while the average writer might get a check for $5.73. Am I totally off with these numbers?!
Question is, is the communal effort worth the individual benefit?
The WGA shouldn’t have to act of behalf of non-members. So screw them. At the same time members could agree that all foreign levies will be spend on… say… a new shiny buidling on Sunset. Right next to the DGA! And make it ten feet taller….heh.
Obviously some people begin with the premise that the checks should be for larger amounts, but the levies checks I get tend to be in the mid three figures. I don’t think I’ve ever broken $1,000 with one of them.
My check easily broke four figures. I think a common misperception is that the big movies have the biggest checks. In fact, a lot of ‘B’ product (non-guild stuff) pulls in bigger money because it plays a lot more on EU TV, especially late night TV.
This didn’t seem to go through so I’m posting it again.
The WGA is hiring, for anyone interested. Among the jobs posted for May…
Foreign Levies Administrator, Media Relations Manager, and Senior Counsel. http://www.wga.org/subpage_whoweare.aspx?id=2353
Anyone here interested? :)
J.F. —
If you bothered to actually read the judge’s ruling on whether or not the lawsuit should be tried in state court or federal court, then you’d know that the plaintiffs are not simply demanding that the Guild pay out the money it is holding. They are also asserting they be compensated for losses — those losses being the difference between the amount of money owed to authors under the laws of the various foreign countries, and the amount of money they received or are due to receive from the Guild.
That means that the presumption of the plaintiffs is that, absent the Guild’s involvement, they would have been able to claim the foreign levy money without challenge from any production company recognized as the author under U.S. law, or they would have prevailed in any such challenge.
In other words, the presumption is that, in regards to the foreign blank tape levies, a writer who works under a contract with a U.S. Company under U.S. work-made-for-hire law is not bound by that contract or that law anywhere outside the U.S.
Obviously, you have given zero thought to what it would mean if the plaintiffs prevail on every point in their lawsuit, or how significant that would be for every writer who has ever worked under a contract of ay kind — including a union contract — with a U.S. Company under U.S. work-made-for-hire law.
But that’s because, for all your posturing, you don’t give the smallest piece of gerbil shit about the fact that screen and television writers in the U.S. have been systemically denied the economic and moral rights they are due as authors by the peculiar institution of the work-made-for-hire law.
-
Craig and Stefan are getting checks… the Guild must be doing something right.
Based on their numbers I admit my guesstimates were way off. So, eh, let them gerbils shit away! For this is an important issue afterall.
Talk about big money…
P.S. Ted, will Sparrow kick Spidey’s ass or what?!
I’m not too sure about the inner workings of the WGA but it sounds like some of the corruption that goes on within SAG (at least regarding the interest holdings).
Every production of a certain budget (I think it’s now productions over $75,000) has to post a bond to SAG in the form of a cashier’s check. Although SAG says that they will return the bond after the production has wrapped, most of the time they just keep that money in an interest bearing account for a month and sometimes more.
I know it’s not the same but it seems like the WGA has absolutely no interest in sending out those checks anytime soon until there are some real governmental inquiries.
Ted,
You say:
“But thats because, for all your posturing, you dont give the smallest piece of gerbil shit about the fact that screen and television writers in the U.S. have been systemically denied the economic and moral rights they are due as authors by the peculiar institution of the work-made-for-hire law.”
Gerbil shit.
Gerbil shit.
Yes, Ted, I don’t give a gerbil shit about your desire to talk about gerbil shit “facts” that don’t matter while people would like to be paid the money they are owed without listening to your gerbil shit reasons why they can’t.
But for you to say I don’t care about why writers are denied moral rights? I seriously fucking care.Ted, remember when you and I had a long discussion on the issue of copyright on the writeraction.com blog and suddenly you decided to delete all your posts because you didn’t like the way it was going? I deleted mine out of respect, because I din’t want to argue with a ghost, but frankly you and Craig have never been a friend of moral rights. So make sure this time you’re willing to back all the gerbil shit you are saying. (Because I have a copy of all your posts before they vanished.)
You have no respect for moral rights.
Yes, I know the studios fucked us out of moral rights in 1910 thanks to Edison, but you and Craig keep saying that’s a “good thing.” (We get health care! Like we can’t if we don’t sell all our rights away to the companies.)
Guess what, in 1989 the United States finally signed onto the idea of moral rights for writers by agreeing to the Berne Convention of 1886 (only because it was forced to by the WTO to get the TRIPS agreement.) I’d be interesting to hear your spin about why the United States waited a hundred years to agree that writers have a “human right” to benifit from their artistic creations. (Like you did by getting a piece of that Disneyland ride. Oh, right, you didn’t create that, did you? But I’m sure you enjoy the money Disney Studios pays you. Was it shortly after that you decided to run for the Board of Directors of the WGA and advise writers they didn’t have any right to copyright because of work-for-hire laws?
THE WGA IS STEALING MONEY FROM WIDOWS. I know that seems extreme, but they actively target them. Teri Mial, a WGA staffer who worked in the Foreign Levies department said that widows were given the run around until they “grieved themselves to death.” But you, Ted Elliot, don’t give a gerbil shit about that, do you?
The DGA is doing the same.
And they are both stealing money from all writers and directors.
Thank you and Craig for trying to confuse the issue with gerbil shit.
In the amount of time you devote to pretending to present facts you could try to talk to the staff and make sure at least some people owed are paid the money or find out why.
You want me to provide you with a list of the phone numbers of people the WGA says it can’t find? Would that help? Or would you just talk about bullshit legal issues that prevent you from doing anything?
No, let’s talk about gerbil shit.
Gerbil shit is small.
Like the WGA’s repeated claims that all the money involved in this is small. Small shit. Tiny shit. Tiny stinky shit.
But guess what? The shit you and Craig are in is not small. It’s huge. At least a hundred million dollars a year.
The shit you are standing in is worth tens of thousands of dollars to “each” of the artists you are trying to tell to run away.
I don’t think this time they are going to listen to you. The smell is too large.
J. F. Lawton
As the actual legal holders of copyright, what is to keep the studios from trying to secure 100% of the foreign levies money for themselves? In fact, don’t you think that’s exactly what they’ll do now that this issue is heading toward litigation? There’s a good chance that the guilds will end up with zero as a result of these conspiracy theories of guild theft.
Really, let me collect and distribute all of the money. I’ll do it for a flat 10%. After all, 10% of it is mine anyway.
This is all very interesting. I wonder how I’ll feel about the issue if I ever become a pro screenwriter…
DAYDREAM-STYLE DISSOLVE TO:
I’ll spend most of the morning writing, then I’ll spend part of the afternoon reading comics and pretend it’s research for an adaptation I’m not even in the running for, then spend the rest of the evening playing video games “to relax for a while.” Then if I get a check for $218.44 in the mail for foreign levies, I’ll be like: Oh yeah, forgot about these. I wonder what ever happened with all that stuff people were upset about.
OMG I AM PART OF THE PROBLEM!!!!!!!11!
Well, for all of J.F.’s hullabaloo, it turns out that the WGAw did go to the police over this 17K.
From the L.A. Times…
I’m happy that we at least know the name of the person the Guild suspects.
J.F. —
Yes, your disdain for facts is well-known. For instance:
We did not create the ride, but we (along with Jay Wolpert and Stuart Beattie) did create elements that are now used in the ride, and so should benefit economically from that use.
However, Disney has taken the position that we are not entitled to benefit economically from the use in the ride of the elements created in the movies.
In other words, J.F., the idea that Terry and I get a piece of that ride at Disneyland is not a fact, but is something you made up, a product of your own fevered little imagination, and completely divorced from reality.
And, of course, out of this self-created ‘fact,’ you have spun a scenario of corruption that has Disney paying me to run for the Board of Directors and advise writers that they don’t have any right to copyright because of work-made-for-hire laws.
When the fact is, writers do have a right to copyright — and they also have the right to give up any claim to copyright by entering into a contract with a studio under work-made-for-hire law, which automatically assigns authorship and initial copyright ownership to the studio.
And that is a choice that pretty much every writer who has ever sold a script to or written a script on assignment for a U.S. production company has made.
What surprised me was the number of WGA members who are apparently unaware of this.
What also surprised me was that there are some WGA members who don’t want writers to be aware of this, who would prefer that writers remain ignorant of this fundamental fact of our profession — because, if they were aware of it, that would make it a lot more difficult to sell them on the idea that the reason screen and television writers in the U.S. typically don’t own the copyright in their work is because of other writers in general and the WGA in specific.
You weren’t, by any chance, the source of McDougal’s fabricated history of authorship in Hollywood, were you?
So, yeah, J.F. — I still maintain that you don’t give the smallest piece of gerbil shit about the rights of other writers, because if you did, then you would not view my simply talking about the work-made-for-hire law and its relationship to our profession as tantamount to taking the studios’ side or the WGA’s side, and you want not feel the need to spin your little conspiracy theories in attempt to smear me.
You also would not so cavalierly dismiss how significant a win for the plaintiffs in the lawsuit would be for all U.S. writers, or how a win might impact …
… why, how a win might impact your screen credit on Pretty Woman … since it could conceivably give the other writers who made contributions to the final script the right to claim the co-authorship they were denied under the MBA.
Hm.
Sorry, J.F., I might have underestimated you. Maybe you do recognize how significant it would be if the court found that works created under contract in the U.S. are not subject to U.S. law outside the U.S.— but you’d just as soon certain other writers not be aware of it.
Keep on perpetuating that ignorance, J.F. It’s what you’re good at.
-
Wow. Just wow.
SLAM!!!! :)
Okay.
This is what I don’t understand. All of you guys obviously have a pretty vehement history but from Craig’s past articles and this one included, I’m confused as to where and how one would gather that he’s protecting the WGA in any way. I mean, he’s posted a ton of articles about his displeasure with the WGA.
It seems (I could be wrong) that he just doesn’t accept or go along with every single unfounded theory that comes along. But it’s not even that he doesn’t believe some of these theories but he doesn’t find it helpful to discuss these theories without facts. So instead, he brings up issues and topics that are backed by facts.
Craig, am I close?
Kev:
Here’s how you know you’re doing something right.
Everyone hates you. :)
You’re dead on. I’m absolutely interested solely in the truth, and truth is statements backed up by evidence and fact.
I have zero vested interest here, beyond the grand or two I earn in foreign levies each year.
I will continue to think critically and form conclusions based on evidence rather than allegation.
I can say this, however. I did have a lengthy discussion with someone close to all of this who’s on the “Guild is corrupt and bad” side of all of this, and as a result of that discussion, I can offer this limited apology to Eric Hughes.
Eric…if you’re reading this…I’ve unfairly associated you with some people who purport to speak on your behalf. I understand now that they do not, and will no longer tar you with that brush. My apologies.
I’m including the above in the article, out of due diligence and a sense of fair play.
Craig:
What’s even more interesting is that people like J.F. probably have a valid point but don’t realize that no one can hear them through the foam around their mouths.
So here’s a wacky idea. Let’s kill the insults and the erroneous personal attacks and discuss the WGA some more. I have a feeling that J.F. has some interesting and thought provoking things to say and I’d love to hear more before this degrades even further.
I’m surprised kevin is able to type with all that drool on his keys…
Seriously K, I don’t think these guys need you to mediate. Unless you have something valuable to contribute - like I do with this post - I suggest you let the adults talk and listen quietly from the peanuts gallery.
Interesting. My jury’s still out, but this is a fascinating example of… something or other.
Craig, just for the record - your notion that you’re doing something right when everyone hates you is one of the more self-serving bumper stickers I’ve seen posted here. I’m reminded of a recent interview with Quentin Tarantino in which he talked about how great the women’s dialogue was in Death Proof. There’s some things you just don’t get to say about yourself. Leave it to someone else - and not Arbouet, PLEASE - to declare you a bold maverick. You don’t get to label yourself such. It’s sorta like giving yourself a nickname.
Sometimes everyone hates you because you’re a bold challenger of the status quo, the only one with the balls to tell the truth. But sometimes everyone hates you because you’re a dick. (And by “you,” I mean the generic “you,” buddy. You’re never a dick.)
And to Kevin - plenty of people can hear J.F. through the alleged foam, thanks. I’d argue that your need for arguments to be couched in a specific form and tone speaks more to your limitations than his.
It’s kinda like people who insist that if you use profanity you have a more limited vocabulary than people who don’t.
There’s something really kinda grotesque about an aspiring screenwriter dictating to a pro how he should express himself when discussing issues related to screenwriting.
Lastly, I’m STILL dying to hear about how the real problem is all these damn porno writers….
Sincerely,
Josh “Lone Wolf” Olson Maverick and Rebel, Inc.
Johnny:
I think we’ve all kind of figured out that you have absolutely nothing to contribute. Like…ever. Hush, hush now.
Josh:
I’m not an aspiring screenwriter. I’m an established director/producer. There’s a difference. And what’s really grotesque is that you don’t realize how close you are to Al Sharpton. Sometimes you might have something interesting to say but all anyone can see is the funny hair. But you see, sometimes people agree (like I have with you and/or Joshua). Or sometimes people disagree (like I have with Craig and Ted). But sometimes people just like to scream and shout and show off their cavities.
So…is this gonna turn into another insult free for all or are we gonna hear more about the WGA? C’mon, surprise me. Write back without one, without one insult. I’d seriously like to hear more about your views. I’m not being facetious. I’m genuinely interested.
Josh —
One of the reasons the Guild has given for the backlog in dispersal of the foreign levy money is that there a number of movies and television shows that were not produced under Guild jurisdiction, where there are no credits for writers, or where writers are credited pseudonymously, without any record of their true identities. That includes porno movies, but is not limited to them.
But since the lawsuit against the Guilds asserts that the Guild never had the right to claim and collect the levies on movies and tv shows produced outside Guild jurisdiction in the first place, this may end up being a moot point.
-
For the life of me, I can’t figure out how JF manages to try to paint Ted and Craig as the bag men for WGA failings. They were in office for a time and fought long and hard for internal reform. They stopped serving in large part because they didn’t like how the place was run.
The foreign levies issue is what it is - I’ve read much of the decision and it doesn’t say what some on this board and others are claiming it says - as far as I can tell, the ruling is very narrow and is more jursdictional. Have you read it, JF? Is your argument perhaps based more on your hopes and dreams than the actual law or ruling?
As far as being advocates for writers and their rights, both Ted and Craig are more than stand-up. I often disagree with Craig on substantive issues and who could expect someone to advocate for a writer whose position he didn’t agree with? Yet Craig has and does.
Ted may have the best understanding of copyright law and the legal and business aspects of being a screenwriter of anyone I have met in this town. I can say that having studied copyright law in law school with the drafter of the copyright act. The positions he takes are, more often than not, simply explanations of the reality of the business and law. His personal beliefs rarely intrude on or color these explanations, unlike JF’s J’accuse. With regard to copyright, work-for-hire and moral rights, this is simply how things are. To twist his statements into anything like advocacy on behalf of the studio or toward anything but stronger rights for writers is inaccurate and irrational.
Ted,
Thanks for the clarification. I remember a few years back when I got a check for foreign monies on my first movie, which was not a Guild project, and had been done almost a decade ago. It was a strange and happy little surprise, but I still don’t quite get why the WGA was involved.
And I really mean it - I’m on the sidelines on this one, learning what I can. As a tactic, Craig’s comment about the porno writers felt like a Tony Snow-style sidestep, and cast immediate suspicion on the rest of his comments. Somehow, I truly doubt that the thing that makes this issue so complicated is the porno writers….
Kevin,
Curiously, yours is the only post with any insults in it. Saying that you are not a professional peer of two established screenwriters is simply a statement of fact. And no, my friend, while you may be the greatest filmmaker the world has ever seen, you are not by any definition “established.” And honestly, saying you are is kinda, well… insulting.
Get a few movies into theaters. Or at least into the local video store where any and all can see the fruits of your labors. But don’t be in such a rush to declare yourself a made man. It’s sorta like the comment I made about giving yourself a nickname. When you’re established, you won’t have to tell people. They’ll already know.
Josh:
I’m mostly in television now. I’ve directed a couple of pilots and sold a show to MTV. Whether you recognize my name or not is a silly argument. How many people out there just recognize a director’s name if he isn’t famous? An argument I think even you were making…
Is that a joke?
Whoops, I meant:
The question of foreign levies for pornography isn’t a joke. It’s a serious question that goes to the heart of the conundrum the WGAw finds itself in, both legal and procedural.
I think everybody’s aware that the pornography business is an enormous and global one.
The levies collected on behalf of pornographers are substantial. I suspect the total number of undistributed levies derived from pornographic works of authorship is counted in the seven figures.
Two questions.
How can the WGAw distribute that money when many of the names are pseudonymic?
Does the WGAw have the right to collect money for non-members?
If the word “pornography” is too distracting, substitute “animation”, which is almost entirely non-WGAw (so it’s non-union or IATSE Local 839), or “documentaries”, which also tend to be non-WGAw or non-union productions.
Craig,
I don’t doubt that there are many porno writers due levies. But you brought them up as some kind of justification for why writers who CAN be found haven’t been. It felt then - and still does - like a rhetorical side-step, and as someone with no axe to grind here, it causes me to have some doubts about what you’re saying. That’s all.
Kevin,
“How many people out there just recognize a directors name if he isnt famous? “
We’re not talking about “out there.” We’re talking about in HERE. Yes, if you were established, you’d still have to explain what you do to my grandmother. But not to me.
Sorry, but it’s a big gripe with me, one that’s bugged me since I first set foot on LA soil. Everyone’s in a rush to declare themselves the thing they want to be some day. Do the work. Earn the name. It’s hard. It’s MEANT to be hard.
Craig,
I don’t doubt that there are many porno writers due levies. But you brought them up as some kind of justification for why writers who CAN be found haven’t been. It felt then - and still does - like a rhetorical side-step, and as someone with no axe to grind here, it causes me to have some doubts about what you’re saying. That’s all.
Kevin,
“How many people out there just recognize a directors name if he isnt famous? “
We’re not talking about “out there.” We’re talking about in HERE. Yes, if you were established, you’d still have to explain what you do to my grandmother. But not to me.
Sorry, but it’s a big gripe with me, one that’s bugged me since I first set foot on LA soil. Everyone’s in a rush to declare themselves the thing they want to be some day. Do the work. Earn the name. It’s hard. It’s MEANT to be hard.
Josh:
Sorry, it’s a gripe for you. But I work out of NY. Not LA. And…I’m not sure how you’ve become the litmus test for who works regularly or not. Of course, you win anyway because you’ve roped me into the “I’m somebody!” game. Congratulations.
And thanks for the advice.
Josh:
I’m hard-pressed to see your objection. I wrote:
It stands to reason that the WGAw’s ability to disburse money to individuals for whom they have no internal records will be more limited than their ability to disburse money to WGA members.
While Google and other methods help, they’re not fool-proof, and “we Googled him” doesn’t really hold up in court if it turns out you mailed a check to the wrong Josh Olson.
Pornography is a particularly thorny problem because so many of the names associated with those levies aren’t real.
However, there’s a larger question of organizational purpose. The WGAw is a labor union, not a clearing-house or people-finder. As such, it’s safe to presume that some organization would be better at this task than the WGAw.
The questions that raises are…can that organization make the numerous deals required with the foreign countries who collect levies, and what will that organization charge the recipients?
I’m still a big fat nobody, and, sadly, whipping out the WGA Member card in bars does absolutely nothing to impress women.
I decided to look at how the Writers Guild Canada handled the issue of blank tape levies, since there is no complication of the work-made-for-hire law up there — screen and television writers are recognized under Canadian law as the authors of their work, always.
Turns out, the WGC established a separate organization, the Canadian Screenwriters Collection Society. If a writer works for a production company under a WGC contract, it automatically authorizes the Society to claim, collect and disburse the levies on their behalf, whether they have become a member of the Society or not (membership in the Society requires a one-time $150 initiation fee). Additionally, any Canadian writer may become a member of the Society.
I wonder if the WGA or DGA considered a set-up like that.
Another point of interest, which goes to the Guilds taking 5% of the disbursed levies as an administration fee:
The CSCS charges a 15% administration fee to members (ie, paid the $150 initiation fee), and a 25% administration fee to non-members (ie, worked under a WGC contract, but did not pay the $150 initiation fee).
Here’s a link to their info page, for those interested:
http://www.wgc.ca/cscs/about.html
-
“Im an established director/producer.”
I think I just threw up in my mouth… just a little, but I can taste the cat+fiddle burger.
Back to the beers…
Whipping out the WGA card. Huh. Never tried that one…
But my wife DID get my attention with a wry smile and the slightest hint of her SAG card. :)
Craig,
“While Google and other methods help, theyre not fool-proof, and we Googled him doesnt really hold up in court if it turns out you mailed a check to the wrong Josh Olson.”
Yeah, but there’s only one William Fuckner.
Stephen,
Never use the words “my wife” and “sag” in the same sentence. She’ll thank you for it.
Kevin,
Wow. You got me. It’s only pretentious when people in LA call themselves the thing they want to be. When people in New York do it, it’s cool.
Love,
Josh Olson Established comedy writer
Not completely off the subject, this is my lastest post at my blog: www.wgatruth.com
I repost it here because it will amuse me to see Ted Elliot spending hours trying to make up crap to discredit it. (Have fun Ted!) Like Stefan, I hope the formatting works.
Supposedly in light of the recent LA Times article (more likely the articles in Fade In Magazine and the LA Weekly) the WGA has gone on the offensive with their own “facts” about the collection of Foreign Levies. Here’s the link to the full text:
WGA Commentary on Levies
What is stunning about this is that despite an ongoing investigation by the Federal Government, and two civil lawsuits, the WGA still acts like this is a PR battle they can win by misleading their membership. In print. Don’t they know someone is going to end up on a witness stand being asked where they came up with these “facts?” Here is my edited version with comments:
WGAW Commentary (Posted on WGA.org May 4, 2007)
… the Foreign Levies Program is a notable success story. If not for the WGAW’s efforts dating back to the 1980s, no writer would receive any payments. The money would have remained in the hands of the producers who, as copyright holders under U.S. law, claimed the right to 100% of the levies attributable to American works. By bringing legal and political pressure to bear, the guilds have been able to secure a fair and growing share for writers and directors.
The biggest thing the WGA doesn’t mention here is that WGA officials negotiated these deals in secret without ever bringing the issue to the membership at large, or, as was legally required, getting a vote authorizing them. The deals were only mentioned long after they were signed by Guild representatives and money was being collected (or not collected since most went to the studios). Further, the WGA made no effort to inform non-union writers that they were in the process of negotiating deals to collect their money.
Had the WGA notified its own members of the issues involved, and notified non-members, a debate could have been had about whether the WGA was the proper entity to collect this money, or whether it would be better to create a US collection society, like those in foreign countries, and more like ASCAP or BMI which collect music royalties (which are basically the same as levies). It should be noted that none of the foreign collection societies handling this money for their native filmmakers are unions.
Moreover, in terms of declaring a notable success story, the WGA and DGA ended up with agreements only giving them 7.5% each. Hardly a huge victory for money that in each country only belonged to the artists who created the works, and specifically (by law) not to the corporations distributing them.
The program has grown over time. The WGAW now receives levies from 15 countries in Europe and Latin America. Total remittances from foreign collection societies in the last fiscal year alone exceeded $10 million. Since the inception of the program, the WGAW has distributed nearly $37 million to writers (and their heirs and beneficiaries).
According to this “fact” over a third of the money collected in the last 16 years, if one can trust the WGA’s own math, hasn’t been paid to the people that deserve it. This fact sheet mentions that “37 million” has been distributed and later that there is a “sizable backlog” of funds being held in a “20 million” dollar trust waiting to be paid to the people it is owned to.
It should be noted that WGA documents submitted in civil court cases say that all interest collected by the WGA on this 20 million unpaid goes to “expenses” incurred by collecting the money. That in addition to the 5% off the top. (Apparently, it costs a lot not to pay people.) This hardly gives the WGA any motivation to pay people in a timely fashion since the 3 percent annual interest being collected by the WGA on 20 million in sweep accounts amounts to over $600,000 a year. Compound that over a few years and we’re talking millions of dollars that goes to “expenses.” Seems like more than enough money to find writers that can be easily found.
Also, while one might be excited about the fact that over $10 million a year is now being collected (thanks to the WGA’s efforts for writers) given that a third of that hasn’t historically been paid out in a timely fashion, this seems to be a growing problem. After all, if one does the math according to the Guilds figures, the Guild only collected on average (37 million paid plus 20 unpaid = 57 million collected over 16 years) less than 4 million a year. Over the next 16 years we’re talking about 160 million even if it doesn’t grow. (And given how quickly it grew already, why wouldn’t it continue?) If the Guild continues to fail to pay about a third of the money, for whatever reason, honest or not, we’re talking about over 50 million dollars sitting around in bank accounts waiting for them to “find” the writers who deserve it.
Whether or not the WGA has been acting in an honestly disorganized (or simply corrupt) fashion, after 16 years of handling these funds any writer would have plenty of reason to file a civil case suggesting, demanding, they shouldn’t be trusted to handle these funds in the future. Under the current agreement, the WGAW and the DGA each receives 25% of total foreign levy remittances on behalf of the writers and directors.
In light of recent lawsuits and bad press, the fact that the WGA only pays writers 7.5% hasn’t gone over well with the membership and the press. So there has been much talk about the recent new agreements that writers now get 25%. Of course, once again, the membership wasn’t allowed to vote on these new agreements, and wasn’t informed about the issues and wasn’t asked if, well, maybe they should get 35% or 45%. Let alone getting all the money they are entitled to under the laws of France, Germany, etc. (Like French filmmakers, German writers, etc.)
Anecdotal evidence also indicates writers aren’t suddenly getting three times as much money as they used to, or, given the math that the WGA is collecting over twice as much money on average (10 million from 3 plus million) than they used to, six times as much as they are due now.
How, the WGA can bounce around huge numbers like this without any paperwork available to members to check out what they are talking about is amazing.
Distribution of foreign levies is not an easy or simple matter. The WGAW distributes the money based on data provided by foreign collection societies. The distribution data, however, are frequently incomplete or unintelligible, and in many instances do not include writers’ name. Titles sometimes arrive in foreign languages or are inexactly translated. Where adequate information is lacking, the funds remain in a trust account while the WGAW does the research necessary to permit distribution. While there is still a sizeable backlog of funds awaiting distribution, we have greatly increased the efficiency of the distribution process over the course of 15 years.
So the Guild it just recently re-negociated these deals to get 25% of the money, but didn’t bother to put in the contracts any language telling the collection societies when they had to make payments, in what form, in what translation. We’re talking about deals worth over ten million a year and they didn’t bother to say that the money had to be backed up with computer records in English and has to be deposited each quarter, etc.
Even if I didn’t know the truth this would be a preposterous thing to believe. But I do know the truth. The Guild gets detailed records, the names of the films, the amounts and the writers owed them are carefully listed on the checks with backup documents. How do I know? I’ve seen copies of the documents and the checks. How did I get to see them? Because they were snuck out of the Guild by Teri Mial who worked in the collections department and she handed them over to the Feds.
Now, it isn’t a complete lie that the Guild doesn’t have records of who all this money is owed to. That’s because every six months, they shred all the records to destroy the evidence of who the money was supposed to be given to.
In short, the Foreign Levies Program provides a valuable service to all writers, and the WGAW is committed to its fair and efficient administration.
What the Foreign Levies Program is, in the words of several Guild whistle blowers, is a slush fund. Money is collected from around the world and some of it is paid out to union members, especially well connected ones the Guild wants to keep happy and paying dues. Anyone not paying dues, like widows, their families and no-members, aren’t paid. Also, sometimes members aren’t paid if the Guild is feeling particularly frisky and greedy. The checks not paid out are signed over into the general fund by the Guild’s president, and all records of the money they were owed is destroyed every six months.
So what happens to all that money? It collects interest and slushes around. Since there are no records of who the money is suppose to go to, it can go to anyone. Guild Presidents, Board Members, ex-Board members who need to be paid off to keep quiet, etc. Money can be transfered to people who can then use it for fundraising to buy off politicians, pay to refurbish Victoria Riskin’s apartment in New York, anything. That’s the great thing about a slush fund.
What is a levy?
Under agreements with the member companies of the Motion Picture Association of America (MPAA) and other producer organizations, the Writers Guild of America, West, Inc. (WGAW) and the Directors Guild of America, Inc. (DGA) receive and distribute “foreign levies” - monies payable under foreign laws to writers and directors of copyrighted works in the United States. These monies are remitted to the WGAW and DGA by foreign collection societies, and represent payment for three types of exploitation of audiovisual works: private copying, video rentals and cable retransmission.
It appears the word “Levy” was deliberately chosen by the studios and unions because it was meaningless and confusing. The word levy means to impose a tax, and yes, these are taxes. So I suppose it’s technically correct to say that these are “Foreign Levies” that is “Foreign Taxes.” But it is also meaningless and unhelpful. What taxes are are the unions collecting money from? What are the purpo