Recently in WGA Issues Category

I wish I lived in a world where this was as obvious as I think it is, but I guess I don’t.

Some people out there seem to think that I either:

a) speak for the WGA, or

b) believe I speak for the WGA

I don’t.

I speak for myself.

I am one person, the articles I post on this website express my opinions, I hold no position on the WGAw Board of Directors, I am not on the Negotiating Committee, and I represent no organization.

Various new outlets contact me through the site, because they read it. They ask for quotes or interviews, which I occasionally grant, but just as often do not. I do not identify myself in any way other than as an individual. I am, for a lack of a better phrase, a “talking head.” A commentator. An independent analyst.

Oh, and a union member.

I do not pay for publicity, nor do I retain the services of a publicist.

Okay, disclaimer done. Back to the important stuff.

Thanks, Brothers!Well, I’m pretty sure one of our commenters broke some news yesterday…the Teamsters are going to (sort of) back a possible WGA strike.

This is big news.

From Variety:

The Teamsters union — representing about 4,000 Hollywood drivers, location managers and scouts, casting directors and animal wranglers — is giving the WGA’s strike plans a major boost with a show of solidarity that could seriously disrupt local production.

The leader of Teamsters Local 399 is advising members, as long as they’re acting as individuals, that they should honor WGA picket lines. The Writers Guild of America could go strike as early as Thursday; negotiations resume today at the Alliance of Motion Picture & Television Producers.

In a message posted Monday, secretary-treasurer Leo Reed said Local 399 can’t strike, picket or boycott a producer while its contract is in effect but added that those restrictions don’t apply to individuals.

“As for me as an individual, I will not cross any picket line whether it is sanctioned or not because I firmly believe that Teamsters do not cross picket lines,” Reed said in the message.

What does that mean?

Well, the Teamsters can’t honor a picket line institutionally (so yeah, Mona was wrong). However, part of their deal is that if their council sanctions, or approves, of another union’s strike, then individual Teamsters cannot be disciplined for refusing to cross a picket line.

And in a not-so-subtle message on the Hollywood Teamsters’ home page, their Division Director, Leo Reed, announced that he would be one of those individuals who wouldn’t cross a line.

The upshot?

Panic.

I was shooting on the backlot at Paramount today, and I heard that the studio is reassigning all trucks and deliveries to go off-lot, in case of a picket line. Could be rumor, could be true. Seems like smart planning to me…particularly if the companies are taking the Teamster announcement seriously, which they pretty much have to.

The strategic upshot?

This just might help avert a strike.

Finally, at long last, we’ve got a real way to enhance our strike threat. Organizing reality was an abortion, organizing animation was a boondoggle, the corporate campaigns fizzled, the attempt to disrupt product integration was naive and impotent…

…but this is for real.

The Teamsters can shut a company down faster and more completely than any other union in town.

Now that the companies have to worry about an instant shutdown if the WGA strikes, they’re going to have to do a better job of bargaining.

And if they do a better job of bargaining, our side might actually get something to work with in negotiations.

Look, if Verrone is hell-bent on striking, then none of this matters. We’re all screwed, and there’s a bad deal in our future.

But if he’s not…and all I can do is hope that he’s not…this is a terrific strategic gain. We just amped up their fear level and made the threat of a strike far more potent.

And like any supporter of gun rights, I believe that showing you have a loaded gun is a good way to avoid having to shoot a loaded gun.

Well done, leadership. This was a huge step closer to your promise of an alternative to “strike or cave.”

How it must end…in the endFor the last week, I’ve been getting what I’ve begun to dub “The Call.” It comes from a producer, then an agent, then a studio executive, then a studio chairman, the president of production here, a fellow writer, a director…

“So…are you guys gonna strike or what?”

And of course, I have to say “I don’t know.”

But since everyone’s asked, I suppose I could offer my plan for avoiding a strike.

I had hoped that my union would have acted smartly by now and responded to last week’s signal from the AMPTP. The removal of their regressive residuals proposal wasn’t just an empty gesture. Think of it as the equivalent of Senator Craig tapping his foot under that bathroom stall.

It was a question.

“Wanna negotiate?”

The WGA’s silence has been deafening and no doubt has confirmed for the AMPTP that we do not want to negotiate, but are instead hell bent on a strike.

And yet…I don’t think that’s true.

I just think the WGA is bad at playing the signals game (and at this point, we must leave the Senator Craig analogy behind, before the rest of this article devolves into hand-waving and anonymous man-on-man bathroom action, Minneapolis style).

So I turn to you men and women of the AMPTP.

Wanna avoid a strike?

Here’s what you do.

Drop your proposals to gut separated rights. Drop your proposals to drop publicity for credited writers. Drop your proposals to apply residuals against other payments. Indeed, drop all of your rollback proposals, because they’re regressive and punitive.

And who are you punishing?

Patric Verrone?

Hey, go for it. Smart guy, but definitely a bit nuts, and I can’t blame you for feeling frustrated.

On the other hand, Patric Verrone’s not the one you’re talking about here. Hell, Patric usually works in animation, which doesn’t have most of the stuff you’re talking about rolling back anyway!

You’re punishing me. Your proposals are a gut-shot to the working screen and television writers who supply you with hit movies and hit hour-longs and hit half-hours.

So give us a break.

Take that crap off the table. We all know you don’t mean it anyway.

It’s payback, right? You’re still pissed at the WGA for that flop of a reality campaign. Granted, you found it obnoxious and meddlesome…but guys…you won, okay? The campaign failed. It failed big.

Or maybe you’re pissed at the WGA for asking for more DVD money. But look…we’ve asked for more DVD money every three frickin’ years since 1985. Why should this year be any different? And let’s face it…the result won’t be any different either.

So get over it. Okay? Get over the shot to your pride, get over Patric (who is just one of a lot of people in that room, many…if not most…of whom are more moderate than he), get over David Young, get over the public insults and the immoderate speeches.

You think writers are children?

Fine.

Then act like the adults you think you are.

The children are obviously holding their breath right now, but if your kids turn blue, you’re going to suffer as well.

To avoid a strike, take away all the rollbacks and offer to bargain seriously over a rate for internet downloads.

If the Guild fails to respond, then you’ll finally know that Patric would have gone on strike no matter what…for guts or glory or God-knows-what…and you can sleep well knowing that you honestly tried.

Of course, if you’re not interested in avoiding a strike, then stick with the current plan. It’s working.

Either way, it looks like you have the burden of adulthood.

You know.

Responsibility.

Be smart, AMPTP. Please. There’s still a way out.

Someone sent me a link to a site called Writers Bloc Comix, which is dedicated to “The Strength and Solidarity of the WGA.”

Well, that’s cool, except it’s pretty lame.

And kind of insulting to actors, who we sort of need to support us in a huge way right now.

These things don’t upset me in any real way. Obviously, the creators of the site have their hearts in the right place. My reaction is more one of embarrassment.

Putting relative issues of quality aside (although honestly, shouldn’t we be going to our best and brightest for the creation of propaganda?), I think what this type of stuff tweaks in me is my general distaste for organized religion.

I’m an agnostic (I think…I can’t prove God’s not real, but I’m pretty certain that knowledge of anything even approaching the description of “God” is far beyond the grasp of humans). More importantly, I detest group think. I hate rallying cries, I don’t like slogans or buzzwords, I get sweaty around culty thinking or “movements,” and in general, I get rashy around mobs, be they literate or otherwise.

I don’t march.

There are no parades for guys like me.

So when I see this sort of stuff, which is marked more by a naive sense of jingoism than any real critical thinking, I get squeamish. It’s not that it’s bad. I think stuff like this is probably useful (perhaps moreso if done better).

On the other hand, if it all feels empty and cultish, then I don’t think it should be out there at all. Writers may be stereotyped in negative ways by some, but everyone probably agrees that we’re pretty good at sniffing out bullshit.

This stuff feels like bullshit.

I guess what I’m saying is…it’s not that we need less propaganda at a time like this.

We just need better propaganda at a time like this.

The view
from hereThings are getting murky.

Following the successful SAV, the Guild returns to the negotiating table with the AMPTP. Right now, the Guild appears to have momentum. The AMPTP took their residuals revamp off the table, the Guild got a good turnout and a good result for the SAV, and while the companies aren’t completely flat-footed, it’s safe to say that the Guild pulled a bit of a Crazy Ivan on them, and that’s enough to rattle any opponent.

But how will this translate?

At this point, I really don’t know anymore.

I think the lack of visibility plays to the Guild’s favor.

Right now, the possible scenarios as I see them are…

1. The Guild strikes on November 1st, and the companies turn to the DGA to try and make a deal.

2. The Guild strikes on November 1st, the DGA tells the companies they won’t deal while the Guild is on strike, so the companies try and back-channel a deal to end the strike.

3. The Guild works past the deadline for a few weeks, then strikes in mid-to-late November, with the same DGA variables as above.

4. The Guild doesn’t strike at all, but keeps working past the deadline, because potentially fruitful negotiations are beginning.

5. The Guild doesn’t strike at all, because the DGA steps in right away on November 1st to announce the frameworks of a deal, and the WGA takes a wait-and-see attitude, which leads to a DGA deal, followed by a WGA deal.

There’s probably a few other scenarios here, but those are the ones that immediately come to mind. As you can see, SAG doesn’t figure into any of these, because in my mind, they’re very unlikely to bargain early with the companies. For SAG, the WGA has to be a bit of a godsend right now. We can be their canary in a coalmine.

The DGA is the big question mark. I’ve heard rumors ranging from “The DGA won’t even talk to the companies if the WGA is on strike, because the AFL-CIO won’t let them” to “The DGA already has a deal in place, and they’re just finalizing the details with the companies.”

Who the hell knows?

We’ve entered the fog. If I had to guess, I suppose the smart money is now on a strike…probably a very early one. November 1st.

I suspect that the fog will lift in about seven days. One week from now, I think the future of this negotiation will be pretty clear.

For the sake of everyone who works in this business, l hope things turn around quickly.

Quick newsflash.

The SAV passed.

The stats.

5,507 votes 4,974 Yes (90.3%) 533 No (9.7%)

That’s a decent result for the Guild. The turnout was higher than most turnouts, but lower than ideal. The 90% is right at the border of what you hope for in a SAV.

That 533 number is a bit worrisome.

Either way, it’s a victory for the Guild in terms of leverage.

If they use this as impetus for a strike, then it’s a loss for us all. Perhaps a necessary one, perhaps not. The next few weeks will tell.

The WGA is watchingI received a very disturbing email yesterday.

As most of you know, I’m directing a movie right now, so I sneak away during big lighting changes to write these entries when I can. And I’ve been pretty sick for the last week as well (two kids with croup = me with bronchitis). As such, even though I’m publicly on record supporting a YES vote for the Strike Authorization, I didn’t fill out my ballot. Just kept putting it off.

But that’s okay…I knew I didn’t have to send the ballot in. A few days ago, someone told me you could do a proxy vote online at the WGAw website, so that’s what I was planning to do.

And then I got the email.

It was from a member who I shall not name. She’s my “strike captain.” And she told me that the Guild had informed her that I had not yet voted, and she urged me to vote.

What…

…the…

……hell????

For as long as I’ve been a member of this union (12 years and counting now), every single vote we’ve ever taken has been a secret ballot. No one knows who votes or who doesn’t vote, and no one shares that information with other members. Furthermore, there was absolutely no indication in the voting materials that this ballot would be handled in any different way than any ballots before it.

Secret ballotting is, in my opinion, a fundamental requirement for a properly functioning democratic election.

Let’s think about this.

Someone on the Guild staff is collecting ballots and checking off who votes and who doesn’t.

The “you didn’t vote” group gets sorted into a…lazy pile?

Or perhaps a “disloyal” pile?

And who is supervising this election? An independent 3rd party, as we normally have?

Certainly doesn’t seem like it, since this sort of thing never happened in any of the other votes I’ve been a part of.

Now that they have their “you didn’t vote” list, then they share that information with other members. The good, loyal ones.

Those members then pressure the non-voters to vote.

In principle, I support a high turnout, and I was absolutely intending to vote. And of all the members in the union, I’m probably one of a dozen who have taken a widely public stance in support of a “yes.”

But now I’m not voting.

I will not be coerced by my union to vote. Nor will I support any union election that violates the privilege of a secret ballot. If the staff is tallying who voted, then what’s stopping them from seeing who voted how?

Will they make a list of the “no” voters?

And if they do, any guesses as to how long that list gets leaked?

Are you now, or have you ever been against the strike?

Why haven’t you cast your ballot in support of Your Leaders, dear citizen-member?

What they’re doing isn’t illegal. It’s just unethical and immoral and wrong, and I’m disgusted with leadership for daring to be so bold, and for abandoning such an obvious and necessary prerequisite for a fair and decent democratic referendum.

I call upon the Board of Directors of the Writers Guild of America, west to repudiate this policy, and to state clearly that all votes of the general membership be adminstered solely by an independent third party, that all voting information be held in the strictest of confidence, and that no members should be privy to other members’ voting records in any way.

If they fail to enact this policy, then I’ll go over their heads. I’ll go to the membership with a petition to amend the Constitution so that I know this never happens again.

I support a “yes” vote. But I also support the right of any member to vote “no” or to abstain from voting as they choose with total privacy and complete freedom from accusation, pressure, intimidation or recrimination.

The Guild should be ashamed.

---

Addendum

I almost always post my comments along with everyone else’s, but I wasn’t clear enough in this main post, and the comments below reflect some of that, so I want to set the record straight.

Of course there has to be a record that individuals voted. I’ve been voting in this union since 1995. Every time I’ve voted, I’ve had to sign and print my name on the envelope carrying my ballot.

It’s not like I suddenly got amnesia and forgot about that.

The difference between all those other votes and the current one is simply this: those envelopes were sent to an independent election supervision entity, where they were compared to membership rolls and tallied by independent parties who did not work for the Guild, nor were members of the Guild, nor have ever been members of the Guild.

The counting of ballots and verification of voter eligibility is an essential task that must be performed by disinterested third parties.

Not by the Guild itself.

This is obvious and fundamental. It’s so obvious and fundamental, it’s the way the union has conducted every single election I’ve been a part of…until now.

Thus, it’s painfully obvious to me that the change in procedure is not a lapse or a coincidence, but an intentional one designed to bring about precisely the kind of voting interference that I experienced yesterday.

Furthermore, the intentional sharing of such information with other voting members is a crass and blatant violation of my voting privacy.

That’s all. The conversation continues below…

Today, the AMPTP announced it was taking its residuals revamp proposal off the table.

Well done, AMPTP.

(By the way, how awesome was my timing? I put up an article, and boom! This happens! Total coincidence, of course, but it beats being a day late)

Now, I assume the rest of their odious proposals are still out there, but how can anyone not see this as at least the semblance of an olive branch?

They’ve made a move in the right direction.

If my guild’s leadership is smart, they will respond in kind. Maybe we take away one of our crazier demands (I have some thoughts on that, but I won’t get in their way on this). Then the AMPTP takes away another nutty demand, and so do we…and on it goes until there’s one issue left.

You know.

The one that matters.

Time to step up, WGA. You got the other side to blink. Reward that. Get past the bluster, and get down to business. There are tens of thousands of working people hoping that a deal can be found.

The least we can do is try and find a way to deal.

I’m a union guy. I was raised in a union household (my parents were public school teachers), I’m currently a dues-paying member of three unions (WGAw, DGA, IATSE), and if I do one more featured voice-over role, I’ll join SAG as well.

I believe in unions.

And I love my unions.

But my first love, my greatest love, will always be the WGAw. I’d like to think that I’ll keep directing films, but they have to be written first. I’ll always write first, and I’ll always be a writer first.

I want to be clear that when I criticize the leadership of my union, it’s because I love my union. I want our union to succeed. And there’s only one thing that makes me angrier than bad union tactics or poor union strategy or union corruption or union stupidity.

And that’s greedy management.

Thus, I thought I’d take a little time today to swivel the barrel of my gun toward the AMPTP. Say what you will about Verrone and David Young (and I do), but the bottom line is that I share their goals.

The AMPTP, however, has been acting atrociously. For those of you who don’t know, the proposal they currently have on the table isn’t just bad.

It’s immoral.

The first offense is their suggestion that residuals be tied to profit. I’ve already eviscerated that nonsense in another article, so I’ll simply refer you to that. If you want the executive summary, it goes like this: residuals are for the reuse of the fruits of our authorship. They must forever be tied to authorship. They are not a reward for the proper or improper work of the cast, the director, the producer, the editor or the marketing department. Period, the end, strike to the death over this if we must.

The second offense is the notion that residuals could be applied against up front money. In other words, if you’re paid more than scale, the company could attempt to “recoup” residuals out of your fee for writing.

Hell no.

Once again, residuals are not labor fees, they are reuse fees. It doesn’t matter how much you earn. That’s why we all get the same residual rate, regardless of how much we make up front. If the companies are serious about this redefinition, then they will need to stop using the word “residual” and start using the word “bullshit.”

Because that’s what this proposal is. And again…strike to the death.

Third offense—the elimination of separated rights. Our separated rights are already an impoverished version of the rights all American non-work-for-hire authors retain. They were fought for and won in the past, and they are absolutely worth fighting for today. Even if Hollywood weren’t currently attempting to turn every feature film release into a musical (thus triggering separated rights for screenwriters of original works), this would be a non-starter.

If they’re serious about this…then I’m gonna have to go with…

…strike to the death.

Fourth offense—a proposal that would eliminate the requirement to include the writers’ names in advertising, even in situations where the director or producer is included.

Strike.

To.

The.

Death.

But here’s the thing. All of that stuff is prologue to the big one. Internet.

Forget jurisdiction over animation, DVD residuals, creative rights (sadly), and everything else that the WGA wants to argue about. The only one that matters right now is finding good reuse formulae for the internet.

Naturally, the AMPTP proposal for the internet stinks. It’s horrid.

So…strike to the death?

No.

Here’s my basic principle.

I’m a moderate kind of guy. So if I think a proposal is worth the Strike Of Death™, then I’m going to presume that the AMPTP surely isn’t serious about it.

And yeah, I called them Shirley.

I think all of the above is hateful, unnecessary, intentionally provocative crap…except the internet proposal, which I hope is just a crappy starting point toward a good, fair-minded, let’s-end-this-25-year-war deal.

Now, I’ve tried to get my union to concentrate on The One Issue That Binds Us, because I think the other issues are distractions.

So now here’s my special little note to the AMPTP (and Ms. Brogliatti, hey…I hope you still love me, cuz I believe in you too…gotta be some more level heads like ours on each side of that table, right?)

AMPTP…drop your proposals. Get serious. Bargain in good faith. Silence the fringe voices on your side, and maybe you’ll find that the fringe voices on our side start to recede.

If not, you’re going to lose the moderates. There’s a lot of us. We’re active, and we vote. Right now, we’re watching and hoping.

But don’t mistake our even tempers for acceptance or an inclination to appease.

If you’re not serious about your proposals, then please get serious in a useful way.

If you are serious…

…then I’ll see you on the picket line.

There’s a really nice profile of The Artful Writer in the Wall Street Journal today. I think I can declare victory if I get away with calling the AMPTP’s proposals “nuts” and still get a nice quote from their spokesperson.

Getting dubbed “Hollywood’s Must-See” ain’t bad either, and it’s probably the first and last time I’ll earn that moniker.

I did want to add a slight bit of context to one quote. I said:

When it comes to union matters, I am the only game in town on this right now…

That’s mostly true. WriterAction is also out there, but they’re WGA-members-only, so in terms of public blogs, I’m the only game in town for this stuff.

At least, the only one I know of. Apologies to anyone else doing any serious coverage of this stuff. If you are, I’d love to know about it (and possibly offer a link).

Meanwhile, here’s the latest.

Things are getting worse.

The WGA rhetoric has now turned toward DVD residuals, which is utter nonsense. Everyone in the negotiating room knows that DVD residuals are the epitome of a sailed ship. Harping on doubling that rate is as pointless and absurd as the companies’ proposal to tie residuals to profit.

The fact that we seem to be moving backwards in terms of the seriousness of rhetoric is deeply disturbing. With weeks to go, tensions have steeply mounted. Furthermore, the companies have essentially initiated a lockout on feature writers. They’re not spending any more money on feature writing (so we hear) until a deal is struck.

I am growing quickly impatient with our side’s inability to knuckle down on the only topic that matters. DVDs, jurisdiction over animation and reality, product integration…all of it should be pushed aside. We’re beyond the point where red herrings and posturing are at all valuable.

If the AMPTP won’t grow up and talk like adults to us, then it’s incumbent upon us to claim the high ground. If we won’t, then saying “well they were acting like asses too” will serve as cold comfort on the picket line.

More to come.

….and voteSo, I’m a long-standing critic of the Verrone Administration, I think Patric and David Young have been strike-happy from the start, I think they’ve mismanaged our negotiating strategy since it began, I know that the last strike that they attempted (America’s Next Top Model) was an unmitigated disaster, and I’m not particularly impressed with their statements-to-deeds truth ratio.

But I’m going to vote “yes” for a strike authorization.

Wha-huh?

Have I fallen for the party line?

Not really.

The party line says that a 99% strike authorization may help us avoid a strike, because it would give the union a potent weapon in negotiations—one that could precipitate a strike-negating deal.

Of course, that party line presumes that leadership doesn’t want a strike. And I’m not ready to presume that.

If one presumes that leadership does want a strike, then the strike authorization vote is just an obligatory precursor to war…tarted up as a strike-avoidance tactic.

And everyone voting “yes” is just a sucker.

There’s precedent to think the latter could be true. For instance, current WGAw VP David Weiss made it clear in the election of 2004 that Writers United had no intention to fire John McLean. A couple of days after the WU sweep, McLean was out on his ass. Similarly, WU ran under the banner of “finding an alternative to strike or cave,” and here they are, asking us for a strike authorization vote.

If one were skeptical (and you all know I am), it would be hard to ignore the emerging pattern. The WU group has repeatedly insisted that they’re not strike-happy (as critics painted them), and yet they’ve pretty much followed the playbook for a strike-happy leadership.

Walks like a duck, and all that.

Still, game theory must apply.

In this circumstance, I have to trust people that I don’t want to trust, because failing to trust them now will certainly hurt any chance we have as a union to get a decent deal, whereas trusting them might hurt my chance.

If the authorization vote is defeated or passes with less than flying colors, the WGA is permanently hamstrung. This is why I wish they hadn’t called for this vote at this time. This is why I wish they weren’t skipping the “big meeting” where everyone can get together in a big room, get super religious about everything and vote “yes” in massive waves.

But that’s a woulda-coulda-shoulda, I’m not in leadership, and this is the decision they’ve stuck us with (and by the way, despite their communication that this choice was a “unanimous” one, I’m hearing that it “became” unanimous once it was clear that it was going to pass, i.e. there’s still dissent and debate in the room, which is a heartening thing).

If the vote passes in a big way, there’s a chance that leadership will pull the trigger in a burst of Norma Rae exuberance, thereby dooming us to a premature, lengthy and probably ineffective strike. However, there’s also a chance that it might help in the negotiating room.

Certainly the execrable behavior of the companies has complicated matters for us moderates. Their initial proposal was so horrifying in scope and tone, it’s hard to legitimately sue for peace when it seems like the other side is girding for war. Yes, it may all be a reaction to a WGA leadership they despise, but some of the nastiness has an old ring to it, like this absurd notion that residuals should be tied to profit, rather than authorship.

Since a rejection of the authorization vote results in an absolutely bad outcome, and the approval of the authorization vote results in a possibly bad, possibly good, possibly neutral outcome, I’m afraid I see no legitimate option other than holding my nose, investing faith in the hitherto unreliable…

…and voting “yes.”

Strike? Anyone?Okay, so here’s a deviation from the narrative.

Even though this post is up at 1 PM, I got tipped off to this one yesterday (and wrote this last night). As such, I’m not reacting directly to Patric’s communication with the membership, but I know the basic gist.

The WGA is asking its membership for a strike authorization vote.

The SAV is essentially a green light for leadership to declare a strike. Once we give it, they can call it (well, they can call it the second our current deal expires, which is on Halloween).

Of course, they don’t have to call it.

And therein we find the rub.

There are two reasons to call an SAV at a time like this, with a deeply stalemated negotiation.

First, you call an SAV so that you can get your membership out on the picket line immediately following the deal’s expiration. Call this the “I’m taking my gun out of the holster because I plan on shooting you” reason.

Second, you call an SAV as a strategy, in the hope that the added pressure and (presumed) show of support from the rank-and-file will turn the heat up on the other side, forcing them to come across the gap to try in good faith to make a deal. Call this the “I’m taking my gun out of the holster to show you that I have a gun” reason.

So which is it this time?

And should you vote yes?

I’m deeply conflicted on this.

If I had to guess, I’d say this move is a tactic rather than a required step leading to a fait accompli. If the vote comes back strong, it really does embolden the union, and it should certainly rattle the AMPTP. Destabilization is required to break a stalemate.

However, it is my deeply held belief that some in WGA leadership (and perhaps many) not only want to strike, but have always wanted to strike, have been praying for a strike for years, and have constructed the political equivalent of a long con in order to get the strike they believe our union requires in order to reclaim some sense of identity, purpose and efficacy.

I would like to vote “yes” and give the moderates whatever strategic tool they require to make a deal.

I would like to vote “no” to keep the militants’ fingers off the big red button.

As one screenwriter I know put it (and I paraphrase): “There’s a reason Sheriff Andy wouldn’t let Barney Fife put bullets in his gun.”

Indeed.

Then there’s this to consider: even if the request is for tactical purposes, is this the right tactic?

Let’s presume that the vote comes back strongly in favor of the authorization. Okay. And let’s say the companies don’t budge.

Now what?

Do we just sit on that authorization? Feels like a public declaration of impotence to me. I worry that Chekhov’s Gun applies. Once you can, you pretty much have to at some point, or you’ve invalidated that tactic permanently.

Let’s say the vote comes back, and it’s tepid (and for these things, anything less than 90% is probably going to be considered tepid). Even worse. Now you’ve managed to publicly embarrass yourself and show a weak hand to the other side.

Here’s the bigger issue.

Why? Why are we still pretending that we matter?

The studios are far more frightened of SAG and the DGA than us. Why don’t we just keep driving through the middle without forcing our own hand? Soften the beaches however we can for the big guns?

Regardless, the die has been cast. Let’s see how the votes go. I expect a higher turnout for this than the election. If the turnout is low, that’s also disastrous.

When I decide how I’m going to vote, I’ll let you all know.

Everything that has
transpired has done so
according to my designWhile the mainstream media continues to struggle in their effort to decipher the current state of Hollywood labor strife, I’m sitting here (in my trailer at 6:45 AM, thankyouverymuch) wondering when this narrative is ever going to stray from the formula.

As you might recall, I made a few simple predictions about how things were going to unfold. The WGAw would tepidly re-elect the Verrone group (not in terms of margin, but turnout), the WGA would stalemate its way through its negotiations and agree to work past a deadline, SAG would continue to posture threateningly (last week its members had an election choice between “militant guy” and “really militant guy”), and the DGA would likely step in and negotiate early in an attempt to short circuit the path to war.

Well, Verrone & Co. are safely back in office, SAG’s still flexing its biceps, our negotiations (now in round two) haven’t generated any exciting headlines yet, and now, as if on cue…

(from THR)

With Hollywood writers enmeshed in cantankerous contract talks with the studios, the DGA already has begun strategy meetings of its own. The development is sure to fuel further speculation that the oft-independent-minded directors will swoop into the mix of contracts talks to forge a template for other entertainment guilds to follow—like it or not.

There’s not really a question here, regardless of the word “speculation.” The DGA, whose contract expires this summer around the same time SAG’s does, will absolutely be negotiating early.

So here’s what is a question.

How aggressive will they be?

On the one hand, the DGA membership is less reliant on residuals (particularly their below-the-line members). On the other hand, they’ve got a stronger hand to play than usual. Even though the guilds don’t work together, in a funny way, they do work together. The more credible the strike threat from the WGA/SAG, the more leverage the DGA has in their “we’ll save you from a strike” negotiation.

While the WGA uses the strike stick, the DGA uses the carrot of stability, and stability has a very large and very real value for the AMPTP companies.

In another twist, however. I suspect the DGA is aware that if they don’t nail down a reasonable formula for internet download residuals (and “reasonable” is the rub), then the WGA and SAG won’t swallow their pill, and a strike will ensue.

Furthermore, if the DGA doesn’t make a deal, it could be viewed by the WGA and SAG as a green light for a strike.

So if the DGA can’t make an early deal, the AMPTP has a major problem. If the DGA makes an early deal that doesn’t lock in a download rate, the AMPTP still has a major problem. But if the DGA makes a deal that does lock in a download rate, then folks…

…this one’s pretty much over.

SAG and the WGA will still have to haggle over various terms of the rate as they affect their memberships unique working issues, and there are certainly plenty of other matters to negotiate. The big one, though…the strike-worthy one…will be settled.

So, what’s my prediction?

I think the DGA will cut a deal. And I don’t think there will be a strike.

Signed,

Endlessly Optimistic

My last essay went over reeeeeeeeeally poorly with leadership (yeah, I heard from them), so I guess I’ll squeeze some more lighter fluid on the fire.

If you’re a WGAw member who attended an outreach meeting, you’re now getting emails from organizer Kim Hoffman that read as such:

Before anymore time passes I wanted to thank you for attending the Outreach Meeting at the home of [redacted]. To help us with future meetings please fill out and return to my attention the attached evaluation. I have included a Commitment Form and information about the Picket-Contract Captain Orientation for your convenience. Being a Picket-Contract Captain is a great way to meet other writers and play an active role during this historic time. Think of the stories!… If you have any questions feel free to contact me at 323-782-xxxx. Please pass my number along to any of your friends or colleagues who have questions. All the best, Kim

Captain a picket line and make friends? Collect stories???

What the fu——????

Striking isn’t about making friends and collecting glory days stories. It’s a drastic labor action in which people make serious personal sacrifices. If we strike, some people will stop working and never work again.

Strikes are sometimes necessary, but strikes are always bad. Why in God’s name would the Guild be sending out these kinds of smiley-face, “See the world, join the Navy!” kind of messages?

Hey, folks, trench warfare is a great way to make lifelong friends, and just think of the stories!!!!

Yeah.

Hey, Guild. Staffers. People who get paid by our dues. Dig this: we’re writers. We’re better at detecting bullshit in word form than anyone else. Sharpen the internal propaganda skills, or the rank and file are going to start marking this crap as spam.

As someone who has a vested interest in a unified membership should a strike come to pass, I’m telling you…this sort of poorly rendered “these aren’t the droids you’re looking for” Jedi mind trick ain’t gonna cut it.

I’ve been largely silent on the upcoming WGAw elections, because it all seemed like a bit of a forgone conclusion. The Writers United (WU) slate, headed by Patric Verrone, will almost assuredly be re-elected. WGAw voters tend to be both apathetic and disinterested in switching horses midstream, and we’re certainly about as deep midstream as you can be right now.

But there’s one non-WU that really deserves your attention, not only because of what he’s saying, but because of what WU is saying about him.

He sent out a mailing recently. Here’s what he said.

---

Hi,

Not being on the WU slate, I wanted to take a moment to introduce myself…

I’m Jeff Kleeman, the ONLY member running for the board who was a former studio executive.

Having almost 2 decades of experience sitting on the other side of the table, I can bring the kind of real world knowledge to our guild that will not only give us a much greater advantage during the upcoming negotiations, but will also help the Guild navigate difficult issues such as free rewrites, late payments and how ancillary markets can be fully exploited.

There’s been an implication in some election materials that not voting for the entire Writers United slate would somehow weaken the guild during negotiations. In my view that’s both untrue and unworthy. I hope you’ll agree with me that the way to strengthen the guild is to elect the strongest possible board, and that the way to do that is to evaluate every candidate on his or her own merits.

Take a careful look at the WU candidates and ask yourself if there’s some redundancy. If they represent the fullest possible range of industry experience and knowledge. And then please consider finding the room to vote for me. I’ll inject new life into the Board and provide fresh perspectives while still maintaining the unity that’s so important as we move forward.

I can make a claim that few others can: almost all the writers who’ve endorsed me have worked with me. They’re not only attesting to my personal qualities, but also to my professional knowledge. Here are their names:

Daniel Petrie Jr.
John Wells
Ron Bass
Aaron Mendelsohn
Irma Kalish
Marshall Goldberg
Craig Mazin
Dennis Feldman

(and the list goes on…)

Thank you for taking the time to read this and to consider voting for me.

All the best,

Jeff Kleeman

---

Okay, back to Craig.

Seems pretty reasonable. His basic position is that he’s a writer like you and I, but he also has experience seeing things from the other side of the table. That’s useful. Furthermore, he can serve as a bit of diverse and challenging thinking in a room that’s otherwise full of march-in-lockstep WUers.

The list of names supporting him includes such geniuses as myself…but more notably…politically diverse but highly respected Guild pols like John Wells, Dan Petrie Jr., Dennis Feldman, Aaron Mendelsohn, Ron Bass, Irma Kalish, etc. Interestingly, Wells has supported Verrone in the past, as has Feldman, Mendelsohn and even Bass.

In other words, this guy ain’t some nut.

He also takes issue with one of the WU’s most odious political tactics—their insistence that either you have to vote for the entire slate, or you’re somehow against “unity” and “strength.” This is pretty much tantamount to the “either you’re for the Iraq War or you hate America” school of thinking (and I’m a guy who has supported the war while very specifically refraining from questioning the patriotism of those who don’t).

Standing up in the middle of a democratic election and challenging the very validity of a diverse political body is, well, nuts. It’s nuts, it’s insulting to the electorate, and it’s also just plain wrong. The companies don’t think that a monolithic Guild leadership is more of a problem for them. I honestly don’t think they give a damn what the WGAw Board does at this point (which is largely the result of poor leadership decisions by the WU group), but the idea that the election of one dissenting voice to the Board will somehow cripple our union is flat out hysterical.

It’s so hysterical, I must say it’s intellectually dishonest…and yes, Phil and Tom, even though I consider you friends, c’mon. This kind of all-or-none rhetoric is far more divisive than the thought that your total hegemony should be challenged.

Phil and Tom wrote the response for the WU group. Here it is.

---

Dear Fellow Members,

In a recent email one of the candidates for the board characterized Writers United’s position as “unworthy.” We’re sorry but we take umbrage at that. Recommending that Guild members re-elect all the incumbents who have done so much to organize and strengthen our Guild is hardly “unworthy.” What’s unworthy, if anything, is the suggestion that our Guild needs someone “from the other side of the table” in our leadership. The candidate making that suggestion, self-described as serving almost two decades in management, has been a Guild member for only two years, so perhaps he should be excused if he doesn’t know or remember recent Guild history. But here’s the fact: our former executive director, who spent two decades in management, spent six years in our boardroom and on our negotiating committees reminding us of his kind of “real world knowledge” — and he left our Guild weaker than at any time in its 67 year history. In the unlikely event that the companies invite a writer into their leadership, maybe we’ll reconsider. But until then, we think our Guild has had quite enough of management’s point of view, thank you very much.

There are some great people running for the board. Some are part of Writers United, some aren’t. In any other year we might urge you to vote for any of them. But even someone from management would have to admit that in this election - in the middle of some of the most important negotiations in decades - the most powerful message we can send to management is a strong endorsement of our current direction and leadership.

Please join us in sending the strongest possible message to management by re-electing the Writers United candidates.

Phil Alden Robinson and Tom Schulman

---

“Well,” as Quentin Tarantino famously wrote, “allow me to retort.”

Phil and Tom say that recommending that Guild members re-elect all the incumbents who have done so much to organize and strengthen our Guild is hardly “unworthy.”

I disagree on a number of points. First, they haven’t done that much. I give the WGAw credit for getting our television showrunners to stand tough, and I like the results with the Comedy Central shows. But honestly…how are we in any different a position than we’ve ever been? The companies aren’t playing ball with us right now in the way we want. We will almost certainly work past our contract deadline (a strategy first introduced by the guy these dudes hate the most…John McLean), and once again, we’ll be looking to other unions to shake the tree loose for us. In the last two years, we’ve spent millions on reality with nothing to show for it but some very public black eyes, we’ve lost scads of top-level staffers with an enormous amount of institutional knowledge…

…so, sorry, but I don’t think we’re “stronger” than we used to be. I just think we’re all more pissed off than we used to be, but it’s not WU that’s accomplished that. The companies pulled that one off all on their own.

So yeah, insisting on the basis of track record that every single one of the WU candidates be reelected is definitely unworthy of the integrity and intelligence I know Phil and Tom to both possess (certainly in greater quantities than a few of their slatemates).

Then, Phil and Tom really blow it.

They go after the fact that Jeff Kleeman has only been a WGAw member for two years. How dare he question them! The little pisher!

Hey, guys, he qualified for membership. He paid his initiation fee, he pays his dues. WU is the group that keeps saying we should represent more writers, including hundreds of writers who aren’t even writers, but reality editors, and yet we’re supposed to look down on Jeff because he’s a recent member?

That’s just hypocritical and mean-spirited. Deserving of an apology, frankly. Phil is as good as anyone at giving a speech about what it means to be a union and why more writers should be in our union. How sad, then, to read him shoveling dirt on a guy because he’s a short-timer. How is this the spirit of unity? Isn’t this just the spirit of “unity, as long as you agree with me”? Where’s the interest in consensus? Where’s the belief in the value of collective wisdom and a plurality of viewpoints?

Argh.

Then, it’s back to the usual grindstone. John McLean. Just as George W. Bush kept blaming Clinton, and just as Clinton blamed Bush Sr. before him, Phil and Tom keep beating the dead horse that is John McLean. First of all, they fired him two years ago. It’s enough already. Secondly, if they honestly believe that the Guild was at its weakest point ever in 2004/5, they need an MRI.

Weaker than we were in 1985, after a strike crumbled in two weeks under internal pressure from a large group of writers threatening to go ficore? Weaker than we were in 1988, after the longest strike in our union’s history failed to reverse rollbacks? Really? You know, I don’t mind a little bit of hyperbole, but this much of a whopper is delegitimizing, and makes me wonder why their pitch is so high (I have a theory, natch, but that’s coming in a bit).

Next, their central thesis.

But even someone from management would have to admit that in this election - in the middle of some of the most important negotiations in decades - the most powerful message we can send to management is a strong endorsement of our current direction and leadership

Absolutely incorrect.

The most powerful message we, the writers of the WGA, can send to management is a HIGH TURNOUT for this vote.

Dig that?

A high turnout.

Not a landslide for Patric. Not a landslide for Jeff Kleeman.

A high turnout.

What the companies fear are strikes. Strikes are the function of the whole membership. They know that the whole membership votes on strikes. Only 20% of the membership bothers to vote in these dog-and-pony elections. If 80% of us voted in this election, then mark my words…no matter what the results, the companies would be shaken to the core.

Phil and Tom know this. I wish they wouldn’t write otherwise.

So what gives?

Why the hysterical response to a single, off-slate candidate’s email?

This is WU’s greatest weakness. The group of them, comprised by some terrific people (like Tom and Phil and Robert King), has far too thin a skin. They hate debating, they hate being disagreed with, they hate compromising. They want to talk to each other or people who already agree with them. They don’t want bad news. They don’t want to hear that maybe their plans are wrong. They appear to be a faith-based organization, and they believe that the key to their success is mass-belief. If we all believe in them, if we all agree with them, if we all vote for them….then they will get us what we want.

Naturally, I disagree. This may be, in part, because I’m not an idealist, I’m not religious, and ultimately, I’m pretty much devoid of faith.

I’m a pragmatist. I’ve always felt kindred spirits in guys like Robert King and John Bowman, who are also pragmatists. Robert and I disagree on a lot, but I like the way he tackles problems. Same for John. Same for Ron Bass.

And, in a funny way…same for Patric Verrone.

I think Patric, in fact, devised this “vote for us all if you love your Guild” as a pragmatic strategy for winning elections, and it’s been working.

Good for him.

Good for all of them.

All I ask is that they not use their non-idealist cudgel of Fake Idealism to beat up one of the few frickin’ people that dared run against their political machine. Rather, show Jeff Kleeman the respect he deserves as a brother in our union, and as a writer with both the opinions and the balls to run for office.

He put his finger right on the hypocrisy of the “us or weakness” baloney that WU likes to peddle. Don’t crush him for it.

Hell, welcome him into the fold. He’s intelligent enough to read the WU strategy for what it is, and with the stakes as high as they are right now, we need all the smart, perceptive, analytical brains we can get.

Vote Jeff Kleeman for the Board!

Big news in the world of the WGA this past week. No, it’s not about how we’re going to sit back down at the bargaining table (I still expect that to be as relevant as post-season strategy for the Tampa Bay Devil Rays).

Mona Mangan, the Executive Director of the WGA East, has announced her impending retirement.

My immediate reaction was a simple “Thank God.”

Before I explain why I’m so happy Mona is leaving, let me first make it clear that I have no personal issues with Ms. Mangan. My quarrels with her are entirely professional.

The Executive Director is a critical position. The ED runs the staff (including all hiring and firing), the ED executes all policy, the ED acts as “chief negotiator” during collective bargaining…and more to the point, the ED really runs the union during the 353 days of the year the Board or Council isn’t meeting.

Mona has been running the WGA East for 29 years.

Since her rise, the West has had a number of different Executive Directors. Naomi Gurian, Brian Walton, John McLean and now David Young. Those four people are very, very different, and they were each supported by differing factions within the WGAw. They all, however, share one thing in common.

They despise Mona.

Mona’s reputation was summed up as such in THR.

But those at the networks and Mangan critics in the WGA West—where jurisdictional disputes have caused hard feelings in some quarters over the years—tend to fault Mangan’s personal negotiating style, which they claim is long on formality and short on practicality.

That’s a bit of a whitewash. Mona is long on formality, but what she’s really short on, in my humble opinion, is managerial, political or negotiating talent.

As I see it, Mona either takes forever to close deals (she got the 2003 PBS contract ratified a few weeks before it expired) or simple has no end-game in sight (see her current disaster of a negotiation, the CBS Newswriter stalemate). During my brief exposure to her, I was neither impressed by her grasp of facts or detail or strategy.

In short, I think she sucked at her job.

More damning that that…I don’t know anyone in WGA west leadership (membership or staff) who disagrees with me. No one. For all of our fights over negotiating strategies, credits, priorities, militance, etc., Mona is the great Unifier.

However, suckage wasn’t Mona’s greatest liability.

If Mona was really good at one thing, it was her ability to stay in power. She accomplished that a number of ways, but I think one of her aces in the hole was her identity as “the defender of the beleaguered East against the bullying West.”

Allow me to explain.

The WGA west is much bigger than the East. We have close to three times as many members. Furthermore, almost all of our members are screenwriters or television writers, whereas something like a third of the WGAE’s members are newswriters. Newswriters tend to earn less, which means that the WGAw brings in much more in dues money every year. On top of that, the WGAw controls the negotiation process for the “big” MBA that governs television and screenwriting. Finally, the membership requirements to get into the WGAw are more stringent than those in the East (to get into the WGAw you have to do a certain amount of covered work, whereas in the East you simply need any covered work). The WGAw thus has a staff of nearly 200 employees; the WGAE gets by with about 30. The WGAw has probably 30 attorneys on the payroll; the WGAE has two, I think.

You can see the circumstances. The WGAE has a natural inclination to feel bullied by their big brother in the west, and the WGAw has a natural inclination to feel like they’re dragging a “dead Siamese twin” around (credit for that goes to Tim O’Donnell).

But wait. Why are there two unions at all?

Well, back in the 40’s, this made…oh…20% sense. It was never reasonable. The divisions of the two unions had a lot to do with the divisions between the political groups that gave rise to them. Still, with New York as a dominant television center and Los Angeles as a film center, and with geography still a major issue in the way work was done, it wasn’t the craziest idea.

Today? In 2007? When everything is digital and businesses are scattered around the world and information moves at the speed of light? No. The idea of two unions delinated by geography is beyond moronic.

So why hasn’t merger occurred?

One possible answer is….Mona.

In 2006, Mona’s salary was $434,323. The total amount the WGAE paid out in salary in 2006 was $2,313,831. This means that Mona, one person, accounted for nearly 20% of the entire salary expenditure of the union she directed.

To put that in context, in 2006 the WGAw paid out about $500,000 to our Executive Director (that amount was split between John McLean, who was fired, and David Young, who replaced him). Total salary paid out by the WGAw in 2006? $11,582,000. While Mona soaks up 20% of the WGAE payroll, our E.D. accounts for about 4%.

That huge difference tells you a lot. For the size of her union, Mona was overcompensated…and one way to protect that overcompensation was to make sure no one killed the golden goose.

By “golden goose” I mean “stupid two union system.”

Our two unions account for enormous redundancy. We have two E.D.’s, two credits departments, two Presidents, two Boards, two magazines, two newsletters, two buildings, two staffs, two outside counsels……

….stooooooopid.

Besides, there are literally ZERO issues that are geographically determined. Take me (WGAw, lives in Southern California) and my friend Stephen Schiff (WGAE, lives in Manhattan). He writes movies. I write movies. He gets residuals, I get residuals. He goes through credit arbitrations, so do I. All the same rules.

I’ll add some irony. He tends to write for companies located in Los Angeles, and I tend to write for companies located in Manhattan.

Why the hell are we in two different unions?

In my opinion, there have been two roadblocks to merger. The first is Mona, who certainly had circumstantial reasons to oppose merger. The second is the issue of newswriters.

Newswriters work under a different contract than screen and television writers. In their current situation, it shouldn’t be that big of a power gain for them to have a greater say in the WGAE than they would in, say, one big union…because they’re under a different contract.

Ahhhh, but newswriters are guaranteed a certain amount of positions on the WGAE Council, and that council votes on things like accepting or rebuffing MBA contracts, striking over MBA contracts, etc. So in the WGAE, newswriters actually have guaranteed votes on whether or not screenwriters or television writers should strike, take a contract, etc.

That’s power they probably don’t want to cede. Furthermore, when they’re a third of the membership of a smaller union, they will always have a bigger voice in that union.

So what’s the answer?

I propose that once Mona’s gone, the two unions move immediately to create a merged union that would function as such:

One National Union

It’s called the WGA. Main office in the West, smaller adjunct office in the East. That union has a National Board that meets twice a year or so, in order to approve general matters of allocation, major staff issues, etc. But the real work of the union is done by…

Screen & Television Writers of America and News Writers of America. The STWA and the NWA (heh) are essentially locals of the WGA. They are subunions with their own leadership, their own Executive Directors, their own negotiating committees, their own elections, their own contracts, etc.

They don’t touch each other in any way.

If you write a movie or television show under a MBA contract, you’re in the STWA, local of the WGA. Doesn’t matter if you live in L.A., New York or somewhere in deep space.

If you write news under a MBA contract, you’re in the NWA, local of the WGA. Same deal. Location is irrelevant. Everything’s about the work you’re doing, not the zip code in which you’re doing it.

At long last, our union wouldn’t be a house divided by nonsense politics, baloney recriminations and petty turf wars.

There is no justification to divide a union by geography, and there is every justification to divide it by work area. Our current arrangement is a disaster.

Everyone knows it.

And the solution is painfully obvious.

Now that Mona is leaving, I believe there’s a chance the painfully obvious can become joyously real.

No, Brooks. No.So far, the WGA-AMPTP negotiations have gone pretty much how I expected. Both sides started very far apart, and any perceptible motion seems to indicate a widening of the gap. No one seriously expected a deal to be brokered; everyone’s working under the assumption that the WGA will work past expiration, and the AMPTP won’t really start bargaining until they have to face SAG or the DGA.

Still, that doesn’t mean there’s no room for journalists unfamiliar with our industry to lob Molotov cocktails of fiery ignorance into the breach. Ladies and gents, I give you Brooks Barnes and his artitorial on residuals in the New York Times.

Enjoy the slant. It’s delicious.

SCENE STEALER
In Hollywood, a Sacred Cow Lands on the Contract Table
By BROOKS BARNES

Jasper Johns isn’t paid based on the number of years his flag paintings remain popular attractions at museums. Rem Koolhaas doesn’t cash a check every time an architecture fan takes a trip to Seattle to see his space-age public library. So why should the writers, directors and actors responsible for box-office bombs like “Gigli” be able to pocket some cash every time somebody buys the DVD?

It’s a question that cuts to the heart of the biggest fight in Hollywood these days and sums up a fundamental choice the troubled entertainment industry needs to make: whether to cling to old blueprints for running the business or to draft a whole new set.

Brooks couldn’t make it out of the first paragraph without mangling logic, but I let him run on to the second paragraph, because I really enjoyed how he thinks a question he poses out of ignorance is, therefore, a really important question.

When an author creates a work of visual (or, in the case of architecture, “sculptural”) artistry, he holds copyright as well as certain moral rights (yes, even in the United States). That artist can control the display of that work. However, if the artist chooses to freely display his work, so be it.

If you paint a painting on the sidewalk of New York, and I walk by it, my simple act of looking at your artwork doesn’t infringe on your copyright or your authorship in any way. I’m not copying it, I’m not making a derivative work of it, I’m not destroying it and I’m not exhibiting it.

I’m LOOKING at it.

Hey, Brooks….I’m just looking.

That’s not at all analogous to our circumstance as screenwriters. While we do not hold copyright, we are acknowledged by the copyright holders (the studios) in very real ways as part authors of our works. Those copyright holders exploit our authorship for money.

They make copies of our work of authorship. They make derivative works. They exhibit it for money. And yes, they occasionally destroy it.

Just as an author of a book receives royalties for copies that people can possess, so too should we receive residuals for copies that people can own and enjoy.

Or, to please Brooks, if Rem Koolhaas wants to sell little models of his cool library, the manufacturer should pay him a royalty for every item sold.

Duh.

The spat, as always, is about money.

That’s a nice piece of reductive reportage. It’s a bit like saying, “John Smith awoke to find a strange man in his bedroom, rifling through his wife’s jewelry drawer. The ensuing spat was, as always, about money.”

It’s not about money per se. It’s about our rights and our due as authors of the movies we help birth.

Writers, who started talks with studios last month for a new three year contract, want to be paid the way they always have. Movie script writers get an upfront payment, now at least $1 million for a major film, according to studio executives. Screenwriters then receive a residual whenever one of their titles is put on DVD, shown abroad or otherwise resold. Under the same system, a typical TV series writer may get $30,000 an episode, plus residuals.

If any of you know Brooks, could you please ask him to just call me before he writes about Hollywood again? Movie script writers get “at least $1 million for a major film” now??? Really? Last time I checked, scale was still in the five figures. Yes, there are some of us who get paid over a million dollars for a screenplay…or for all of the drafts required to get a movie made. I’m guessing there are about 150 screenwriters in that club in the entire world. Plenty of movies get made where no writer gets paid more than a million.

The residual payments vary widely, depending on a maze of formulas.

Yes, it’s true. There is a maze of formulas. For instance, in movies, there are two.

Two.

The maze is just…arghhh! Can’t find my way out!

A lead writer might earn hundreds of thousands from the DVD sales of a blockbuster movie; a junior member of a writing team for a dud might get a few thousand or less.

Lead writer? Junior member of a writing team? Brooks, sweetheart…please…talk to a screenwriter before your fingers hit the keys. There are no “lead writers” in movies. There are no “junior members.” We’re not grips. We don’t have apprentices. Either you get credit for authorship, or you don’t. Doesn’t matter how old you are, how much you get paid or how long you’ve worked on a project. All that counts toward credit and residuals are the literary contributions you make to the final screenplay.

Studios want to junk the residual payment structure, which dates to the early 1950s, when the fledgling TV business borrowed it from radio. Under their proposal, unveiled with unexpected zest in early July by Barry M. Meyer, chief executive of Warner Brothers Entertainment, so-called creative employees would get residual checks only after the studios have recouped their basic costs.

Have a cookie, Brooks. You made it through a paragraph without getting anything wrong. Except that “so-called creative employees” really are, in actuality, creative employees. Qualifiers not required.

The two groups have reasonable arguments.

This is what I mean by “artitorial.” Is this an article or an editorial? If it’s an article, then what’s with the opinion? And if it’s an editorial…

…you’re totally wrong.

The other side does not have a reasonable argument.

In coming weeks and months, as both sides start huffing and puffing with even more intensity, the writers will declare that they can’t trust Hollywood accounting as to when costs are covered. They’ll also portray the effort to redraw the residual map as a huge rollback in wages. Young writers in particular will be hurt, they say, because they rely most heavily on residual income from failed movies and programs.

Oh, that crazy huffing and puffing! Through huffing and “portrayal” and “they’ll say” arguments, we’ll manipulate the truth!

Except that it is the truth, and no manipulation is required. Anyone whose brain stem is attached knows that Hollywood profit accounting is a joke. No film is ever reported to be in the black. Every film “loses money.” Every…single…one.

This is fact.

Expect studios to battle back with hard facts on finances.

Ah, but see, Brooks thinks that while we engage in huffery and tricks, the studios have “facts” on their side. Unbelievable.

While almost every project turned a profit when the residual structure was enacted, 6 out of 10 movies today will fail to make money even after they are distributed across multiple platforms, according to the Alliance of Motion Picture and Television Producers. On the TV side, almost 90 percent of modern series fail to make money. Studios argue that it’s ridiculous for a business to pay bonuses before it makes back its initial investment.

I’m going to presume, generously, that the above statistics are absolutely true.

So what? If 10 out of 10 films used to generate an aggregate profit of $100 million, and now only 6 out of 10 films are profitable, generating an aggregate of $900 million, then why should I give a damn? These statistics mask an obvious fact of modern Hollywood: franchises are rarer, but endlessly profitable. In short, you need fewer hits than ever to make a ton of dough.

Oh, and residuals AREN’T BONUSES, Brooks. They’re a negotiated equivalent to royalties. They are compensation for the reuse of works of authorship. They’re not a reward for a job well done. They are a payment for continued exploitation of a property.

Already lost in this tit-for-tat skirmish, say analysts and economists who specialize in Tinseltown’s peculiar business models, is the magnitude of the studios’ decision to simply put the residual structure on the table. The studio bosses probably haven’t figured out the best solution, said Josh Bernoff, a media analyst at Forrester Research, but perhaps for the first time they are insisting that cosmetic tweaks to their way of conducting business won’t work.

Hey, Josh Bernoff…you listening?

You got rooked by a frickin’ press release.

Even the studios don’t believe in this crap. It’s an opening salvo in what will be a very long negotiation. The fact that Forrester is often hired by the media corporations we’re negotiating with (and never by, say, me) may have something to do with their narrow view.

At a time when the likes of Paramount and Warner Brothers are having trouble turning a profit on movies that gross $200 million at the box office and the Internet is rapidly making the concept of intellectual property a quaint notion, the sacred treatment of residuals has an air of unreality, according to some economists.

Ridiculous. Anyone in this business knows enough to know that if you gross $200 million at the box office, you will absolutely be generating profits every single time no matter what the movie is.

Every…single…time.

“There is a good question about why they even pay residuals in the first place,” said S. Abraham Ravid, a visiting professor of economics at Cornell, who recently studied how studios price screenplays differently, based on writers’ box-office track records.

Oh God. And now a floating quote from that great center of Hollywood, the inheritor of Lew Wasserman’s throne, the mastermind behind the movie business…

…Mr. S. Abraham Ravid.

Where do they GET these people? It’s only a good question about why a company should pay residuals if you are:

• ignorant of our business
• ignorant of copyright law
• ignorant of the role Mel Nimmer played in creating the residual structure

Few components of Hollywood’s crumbling business model

Sorry, Brooks, stopped reading after you managed to call one of America’s healthiest business models “crumbling.”

John F. Bowman, chairman of the Writers Guild of America’s negotiating committee, said he disagreed with the sacred part, but that untouchable was fair enough. “These are wages to us,” he said. “They’re not bonuses.” He said he thinks that the studios are using the scary-sounding residual retrenchment to make their real target—using material on the Internet without paying a hefty residual—more palatable.

Arghhh! Bowman, you’re not helping! Residuals are not wages. If they were, then yeah, the companies could argue that “you’re paid too much” and our only argument back would be “no we’re not!”

Residuals are compensation not for labor but for reuse of copyright!

We need to start getting that right…because if we don’t, it’s not likely that the Brooks of the world ever will.

Clifford Green, one of the founding admins of WriterAction, has also resigned. What’s interesting about his resignation is the fact that he specifically chalks it up to not being able to work with Alex Sokoloff anymore.

And boy…do I ever understand that feeling.

I don’t doubt that my little cyberscreed precipitated his and Brian’s actions, although I also don’t doubt that this was a long time coming, and Clifford’s specific beefs probably don’t mirror mine. I don’t take any credit for his choices. I probably just served as an enzyme here.

Nonetheless, something’s happening behind the curtain at WA.

I can’t tell if all I’ve done is start a process where the well-intentioned admins up and quit in disgust with the institutional paranoia and reflexive defensiveness (that would be bad), or if these recent defections might open the admins’ minds to the notion that they step down and let other people be given a turn at the helm (that would be good).

Time will tell.

In the meanwhile…man, Lord Acton nailed it, didn’t he…?

John BowmanNow that the Kabuki Theater of negotiations is officially underway, I thought I’d reprint John Bowman’s opening remarks made on behalf of the WGA Negotiating Committee.

I really love this speech.

I love it because it’s the perfect tone. Calm, reasonable, business-oriented, without a trace of Norma Rae nonsense, no whiff of the words to “Joe Hill,” and no detectable mouth foam.

All in all, a huge step forward for us.

Naturally, Bowman had to put in plugs for a better home video residual rate and jurisdiction over animation and reality, but everyone knows those are essentially DOA. This fight is about downloads, and he’s positioned us strongly. With generous references to authorship and intellectual property rights, Bowman sure sounds like an Artful Writer to me.

I like what I’m hearing from my union right now, and it’s been a while since I could say that.

Here are John’s remarks.

---

First of all, I want to congratulate our corporate partners at CBS, Time Warner, News Corp., Disney, Viacom, and NBC-Universal on what appears to be another great year for entertainment revenues and profits. Box office is up, and broadcasters are getting ad rate increases across the board, driven largely by digital content created by many of the people in this room. We are all of us very fortunate to be working in an industry that is thriving. It is thriving not only because of the content created by members of the DGA, SAG, AFTRA, and the WGA, but also because the CEOs of these companies are proving to be extremely adept at finding ways to monetize the Internet and other new technologies.

There is a real disconnect, however, between what the companies are reporting to Wall Street and what they’re saying to the talent community. Investors are hearing about the changing landscape in entertainment and exciting new markets to exploit. In contrast, the AMPTP communicates nothing but problems to the Writers Guild. Problems like-and this was mentioned by AMPTP at a recent press conference-ad skipping, even though NBC Universal had just announced a one billion dollar DVR deal. And while WGA member revenues have not kept pace with industry growth-we are a line item that is definitely under control-the companies balk at giving us a fair and reasonable share of the industry’s success.

I don’t think anyone in this room is arguing about the right of writers, actors, and directors to residuals. As collective authors of a work, we are entitled to a portion of the revenue generated by that work. But you have publicly stated that you no longer want to pay us residuals on shows that are not in profit. Here’s why that is untenable:

Writers are a cost of doing business. They have no say in production, marketing, on advertising and publicity, directors, casting, the decision to spend tens of millions of dollars advertising, etc. They can’t be expected to be paid from profits when they have no say in the costs which affect those profits. Profits are under the control of CEOs and their executive staffs.

Intellectual property has rights, just as physical property does. Management has no problem paying the person who made the DVD box before a film turns a profit; they shouldn’t have any problem paying the artists who created the intellectual experience that came in that box either. To claim that intellectual property has lesser rights than physical property is a dangerous argument for anyone in our business to make. You are making the same argument to us that digital pirates make to you.

According to Hollywood accounting, The Simpsons is not in profits. How can we trust that kind of bookkeeping? What other business but ours has the accounting term, “monkey points?”

Residuals from shows not in “profit help” support a writing middle class, and keep writers in the business until they finally create that one great thing. Do away with residuals, and you do away with late-blooming careers like Marc Cherry and David Chase - they couldn’t afford to stay in the business. Your proposal transfers money from developing, promising writers, actors, and directors who need them the most to established pros who need them the least. It’s bad for the business.

Ultimately, your complaint is not about unprofitable shows, it’s about the portfolio nature of the entertainment business. Risk is spread out among many shows, some of which are unprofitable. This economic fact will never be changed, even if writers work for free, as you propose they do on the Internet.

Now let’s turn to your proposal that we do a three year study before bargaining about the Internet. Your reasoning is exactly the same as it was in 1985. Models haven’t emerged, the environment is uncertain, we’ll take care of you later. Well, we know what happened then. Home video and DVD sales soared, and nobody got taken care of later. But this isn’t 1985, when TV writers didn’t envision that their shows would someday end up on DVDs, and they’d get stuck with a .3% return. This time, TV writers can see how important the Internet is - our shows are already there. And, unfortunately for your argument, positive economic events are daily giving the lie to your doomsday scenario.

But if you insist on a study - I used to do studies for a living - I’ll give you one now. The Internet is a distribution channel with no major fixed costs, no media costs, no shipping or handling costs, and margins that are the envy of even the cigarette industry. Though you lose your monopoly on distribution, you have a strategic advantage that nobody else has: strong relations to the talent community. Above all else, nurture this relationship. If you don’t-if, for instance, you insist that members of that community not get paid for three years, or get paid, at most, a .3% residual rate, what possible incentive would they have to work for you? What incentive do they have to help you fight video piracy, when they’re only getting .3%? If you don’t pay them someone else will-Yahoo, Youtube, who knows? It won’t happen overnight, but it will happen, and very quickly indeed, if you bargain so unreasonably that you force talent to go elsewhere for a fair deal. Of course this study is flawed, but then all studies are - you can make them come out any way you want to.

I can imagine an NBC-Universal Wall Street press conference, 18 months from now. Revenues are down, profits are down, due to a work stoppage which you, the AMPTP, collectively, forced. Shareholders are restive. They ask the company this: “Your industry paid 84 million to fire Tom Freston, 300 million to invest in “Last FM.” Yet at a time when it was absolutely crucial that we establish a presence on the Internet, you chose to alienate content providers, the best strategic advantage you had. And you made this catastrophic decision over how much money?

Today you’ll receive our proposals. They are designed to help writers keep up with the overall growth of revenues in our business. Our operating principle is simple: if you get paid for the reuse of our material, we get paid. So let’s now back away from the edge, get real, and get to work. Studies and profit-based residuals are not serious proposals. They have no legitimate basis in the economics of this industry. They are non-starters for this committee and membership. Our response to such proposals will be a polite “no thank you.” But there are serious issues to discuss, issues that come directly out of our real relationship. Those issues are:

How we will share new media income

How we will produce material together for new media

How we will deal with the non-union shell companies that you’ve created to avoid paying the talent, especially on reality and animation

How talent will get a fair share of home video money

How we will work together on issues like piracy

How we will work together to make sure that new technologies are a boon for all of us

These are real issues. Writers and the talent community deserve to keep up and we have not been. All of our proposals will be focused on that central fact. Writers have to keep up with the industry growth that we help create. It is simple and fair. We look forward to your response, and thank you.

Just a quick update. In the wake of my essay on WriterAction, one of the admins, Brian Horiuchi, has resigned as an admin. If he wants to comment here as to why, I’d welcome that.

Sadly, Brian was one of the few (and perhaps the only?) admin who really got it over there, and I think he’s left for that very reason. He was outgunned.

Looks like things are gonna get worse there before they get better.

Also, I’ve been told that I’m pretty much considered Satan by the remaining admins. Naturally, I find this comforting.

Today, the negotiations began between the WGA and the AMPTP.

Well, at least the formality of negotiations began.

Leading up to this day, I’ve seen quite a bit of spin and positioning. As always, I’m here to try and untangle the truth from all of the hype. I’m keenly aware that there are some in union leadership who honestly wish I’d just shut up, because a membership that only gets their news from Pravda is a Happier membership, but we’re all too smart to be snowed.

And, frankly, I think leadership will probably like this particular article anyway.

Before I start with all that, I want to review some statistics that were released by the Guild in their annual report.

First, Guild members earned 905.8 million dollars in 2006 (under Guild contracts, of course). That’s down 1.5% from 2005, but still up quite a bit from 2004, when we earned 869.2 million. I’m not sure how we’re supposed to reconcile this major increase with our reported loss of jurisdiction. If we’re working fewer jobs but earning more money…could it be that fewer writers are just getting paid more?

It’s certainly possible.

Overall, however, the amount of working writers in the WGAw hasn’t really changed (even if the ones working have). Year after year, with minor fluctuations, about 4,400 WGAw members actually get hired to write. The total amount of “current active” members in the union? 8,084, which is down from 9,216 in 2000.

One thing to note about that: when it comes time to vote for contracts or vote for strikes, nearly half of the eligible voters will not have written under a Guild contract for at least a year. That’s not exactly an ideal political situation to be in if you are a working writer.

Television writing earnings held steady, although that number is practically worthless as an aggregate, since so many TV writers earn large portions of their dough as producers (which isn’t reportable to the Guild). Film writer earnings dropped slightly, but not in any major way.

The foreign levies situation still seems a mire. The program is still holding over $20 million. I’d like to see that number get knocked down into the single digits by ‘08.

And what about residuals? After all, that’s the big issue this year.

Well, WGA writers earned more in residuals this year than in any year prior: $264 million. Television residuals were way up, mostly because the boom in DVD releases of old shows is still echoing.

However, film residuals from home video were down, reflecting the softening of the DVD market.

Wait, I’m sorry…the Guild publication has a different explanation for that…

…this area declined…reflecting the prominence of non-Guild animated features, each of which woud generate a million-dollar residual, and also reflecting the exhaustion of the release of the film libraries into the DVD market, which has been ongoing for about seven years.

That is just dumb. Do we really need to editorialize about non-union work when it’s obviously not the cause of the dip? Non-union theatrical animation has been booming since I was in college. It is not at all a significant cause in the dip for feature residuals. It’s entirely about the DVD market going soft.

I just find bad arguments to be annoying.

Anyway, enough with the statistics. There were two major developments preceeding this week’s start of negotiations.

First, the companies announced that far from being interested in giving us a good residuals formula on downloads, they were now interested in getting rid of residuals altogether and shifting to a profit-participation model.

Awww, that’s cute.

Ummmmmmmmm, no.

Residuals aren’t some rootless payment we argued for because it sounded sexy. Residuals are our financial substitute for royalties. We agree to work for hire, they agree to pay us residuals as if our authorship were meaningful (which it is).

Like royalties, residuals don’t exist to reward us for the companies’ profits. They don’t exist to make us partners with the employees. They exist to compensate us for the reuse of our works of authorship. Plain and simple.

It doesn’t matter how much money a movie makes. Every time you reuse it by selling a DVD or airing it on television or putting it on the internet, you must compensate the author for that privilege.

Don’t get me wrong—I’m a big fan of sharing in profit. But not to the exclusion of what is a basic right of authorship.

Happily, I don’t think the AMPTP is ever going to do this. I think some members would like to do it, but the cooler heads there are well aware that if they attempt to eliminate residuals, the WGA and SAG will strike until their dying breaths. Even worse, guys like me would be happily marching next to guys like Patric Verrone.

Eliminating residuals is simply not an option. It’s a poison pill.

That’s probably why they shouldn’t have announced it the way they did. In my opinion, it made them look a little bit desperate. An insinuation might have been more chilling. A news conference?

Not their best move to date.

Meanwhile, the WGA has suddenly figured out how to play the game. Even though our latest contract bulletin features an article by “Chief Negotiator David Young” (particularly amusing, given how much current leadership hated the fact that John McLean called himself “Chief Negotiator”…meet the new boss….), the star of the WGA for the past two weeks has been not David…not Patric, but…

John Bowman, chairman of the Negotiating Committee.

And what’s so hot about that?

Well, kudos to Patric and David for finding enough to humility to realize that they’ve blown a ton of credibility with the town. On the other hand, Bowman has some legitimacy. He created a hit sitcom, and he was a showrunner, which means he’s had real experience dealing with management in a partnership.

He’s got an MBA from Harvard, so he can speak Corporate.

Most importantly, he’s a fairly moderate guy. I’ve known John for about three years now. He’s calm, level-headed, and completely disinterested in an ideology-driven agenda. He was a great choice to head the NegComm, and I think he’s an excellent complement to Patric’s olde tyme religious fervor.

Therefore, it’s WGA 1, AMPTP 0 as we head into the first week.

Still, this is pretty much all about biding time. We’re not going to make a deal in the next few months. And we will work past our deadline.

The game is still the same. Will the DGA sit back and see if a WGA/SAG alliance can get a good deal? Or will they decide that brings too much of a strike risk, and slip in between to end all the strife?

I hate to say it, but this fight probably won’t get interesting until next April.

I’ll keep updating as it goes…

In an ideal world, I wouldn’t have to tell you what WriterAction is. You’d just know. Either you’d be a member of the WGAw or WGAE and thus, be a member of WriterAction…or you’d be someone looking forward to the day you could join it.

Unfortunately, things haven’t quite worked out that way.

WriterAction was started by a woman named Alex Sokoloff back somewhere around 2002, shortly after the last WGA credits referendum. Alex and some of her likeminded writer friends (Clifford Green, David Hoag, Katherine Fugate, David Odell and Steve Chivers) decided that what our union was missing was any real opportunity for a collective meeting place.

Sure, there’s the “writers’ lounge” in the WGAw building, but it’s about as conducive to discussion as an operating room.

Alex and her cohorts believed that writers did want to reach out and form a real community where experiences could be shared, information gathered and debated, and maybe most of all, where union members could democratically participate in and influence their union.

On the other hand, writers didn’t necessarily want to leave their respective caves either.

And so, they created WriterAction on the web, and restricted it to WGA members only. In the beginning, it was a fairly crude site hosted with the free virtual community provider EzBoard. EzBoard pretty much sucks, but it’s free, and it served the basic purpose.

I joined it about two years after its conception.

In early 2004, I didn’t really know who was running the WGA, I didn’t know who stood for what, I didn’t know how a union worked…

In other words, I was an average Guild member.

I attended an outreach meeting on the upcoming negotiations, and the host suggested that I might enjoy WriterAction (because, I suspect, I’m an opinionated bigmouth).

I joined WriterAction on April 7th, 2004. At the time, I think there were about 80 members in total.

I loved it. In a very short while, simply by participating in that very tiny community of writers, I learned an enormous amount about how my union worked, how my fellow writers thought, and how we could actually change things for the better.

Shortly thereafter, I was asked to help administer WriterAction. And after that, I was recruited to run for the Board of the WGAw.

Everything was lovely.

Except that I haven’t posted a word on WriterAction in a half a year now.

What happened?

Well, for starters, Alex Sokoloff and I really started to hate each other. Rather than get into the personal issues there, let’s just stipulate that we had personal issues, I resigned as an admin in part over those personal issues, but I continued to post long after that.

Therefore, we can elminate that as a reason for my exit.

Was it out of boredom? Perhaps. The WriterAction community has never really expanded the way it should have. There are about 7,500 current active members in the WGAw (with another 3,500 in the WGAE, but since WriterAction continues to be a mostly-WGAw meeting place, let’s not consider them in the following equations).

Out of those 7,500 members, WriterAction currently boasts a membership list of 2,106 members.

Not bad.

Except that 1,590 of them have never posted even once. Always a bad sign.

There are 516 members that have posted at least once, but 81 of them have posted just once. There are only 284 members who have ten or most posts to their name, and only 360 members have shown up at all (to lurk or post) within the last two months.

From that, figure there’s about 350 regulars. Unfortunately, of those regulars, roughly half post at a rate of less than one post a week.

Even worse, the top 59 posters (which still include both myself and Josh Olson, neither of whom post there anymore) are responsible for a full 72% of all posts made in the whole history of the place!

In short, WriterAction really hasn’t grown significantly since the days when I found it on EzBoard.

Okay, so…why? Maybe it’s meant to be small.

No, it’s meant to be big. Its entire purpose, I think, should be in its inclusiveness.

Unlike this website, which is an extension of my will and personal philosophy, WriterAction exists to build community. You can’t build community unless you get some numbers, particularly when you’re trying to mirror a pre-existing community of 7,500 people.

At its best, WriterAction was considered a rising force in Guild politics. A number of active participants ran for the Board and were elected (including myself, Ted Elliott and Alex Sokoloff). Candidates visited the site to promote their platforms. In the Board room, people would say, “This issue is playing well on WriterAction” or “We’re getting killed over this on WriterAction.” There was a sense of accountability to the constituency for once, instead of the business-as-usual “no one’s paying any attention, so let’s just do what we what” brand of Guild politics.

And that’s all gone now.

Patric Verrone knew pretty early on that numbers are numbers. If the community doesn’t grow past 200 or 300 attentive eyeballs, it’s not going to make a real difference in the big game of Guild politics.

Mind you, the whole point of WriterAction isn’t to promote one idea over another. Rather, it’s to inform the membership, inspire the membership and hopefully hold the leadership accountable to the membership’s concerns.

A half a year ago, I stopped posting. I became fed up with the following:

• Seeing the same faces, day after day
• The belief of some of the admins that frequent posters were the problem, rather than the lifeblood of the place
• The inability of the admins to bring in new frequent posters
• The kudzu-like proliferation of forums and sub-forums
• The buzzing mess of the general politics forums, which are completely off-message
• The site’s technical stagnation
• The insane way the admins disciplined problem members

Most of those are self-explanatory, save the last two.

The site’s technical stagnation is one that definitely bugs me. Denise Meyer and I (who, together, run the Artful Forum), found vBulletin and migrated WriterAction to it from EzBoard. Before we did that, poor Alex had to literally approve new members by answering individual emails to her AOL account.

While vBulletin isn’t exactly rocket science, you do have to keep up with it. There’s no reason that WriterAction shouldn’t have simple things like spell-check or the ability to embed videos. Would those things save WriterAction? No.

On the other hand, if the admins over there encouraged people to use the “warn admins” feature and then installed one of the various “warning reports” mods, they might have a better time handling the problems that crop up…and that brings me to…

…the insanity.

Every board will have problems. Even a board like WriterAction, which doesn’t accept just anyone in off the virtual street, will have its share of cranks, jerks and miscreants.

The basic WriterAction rule is “don’t engage in ad hominem attacks.”

Here’s the problem.

First, they have some whacked-out definition of ad hom, which basically changes from circumstance to circumstance.

Second, they have this weird tic where they refuse to delete offending posts. Instead, they publicly post in the thread asking you, the member, to delete your own post…or they’ll do it for you.

Huh?

And then, and here’s where they really jumped the shark, they decided that once they made a decision and implemented it, that decision could not be discussed at all.

This is just stupid. When I get into my little fights with Olson, or when a couple of commenters start going at each other, I do my thing. I delete posts if they deserve it (with special care to avoid deleting attacks on me unless they’re really out there), and if people complain, I answer back. If I don’t feel like talking about it, I just don’t.

But I don’t ban people from questioning me. That’s ridiculous.

Even worse, unlike this site, which is my own personal domain, WriterAction is supposed to be about the community of WGA members…not any one writer’s philosophy…

Ah, but there’s the rub. See, when you run a community, you inevitably start to feel like it reflects on you…and that it’s yours.

In my case, this place is mine. But does the community part…the part where other writers express themselves…does that reflect on me?

Hmmm, tough to answer. Probably not, although I have to struggle against that from time to time. I think that’s where the admins of WriterAction have gone wrong.

Well, that, and the fact that they don’t really do anything. I mean, here’s a short list of stuff they should be doing.

• Hosting live chat events with leadership, and advertising them via email blast to all 2100 members, lurkers or not
• Eliminating forums that are underused or redundant to other forums on the web
• Establishing post icons for thread-starters who want that discussion to remain serious
• Creating a forum for newbies (and limiting posting in that forum to members with fewer than 50 posts)
• Creating a forum where disputes can be hashed out between users and admins
• Publishing the Board minutes each month
• Publishing the Board agenda each month
• Creating a “featured debate” section where two members can have at each other in a civilized fashion
• Asking each new member to bring two more WGA members to the site to increase active participation
• Actively pursuing A-level writers, who tend to attract lots of other writers

What they should stop doing:

• Debating every decision endlessly
• Splashing tacky and pointless banners on forum pages
• Intimidating users who “post too much”
• Denying users the right to publicly question them
• Adding forums that no one uses
• Resisting active leadership
• Engaging in passive leadership (e.g. meetings where they ask users to “give us ideas on how to make this a better place”)

Do I think the current administrators are up to this task? No. Not the majority of them, at least.

Do I think I am? Hell no. I’ve already done my part for WriterAction, and I have my own site to run.

No, it’s time for new blood. Not mine, not theirs.

WriterAction isn’t a personal site. It’s meant to be a mirror community for the WGA. We need it more than ever right now, as we head into elections and negotiations and possibly even a strike. We need an educated, engaged, connected membership.

And for WriterAction to become that, I think it needs new leadership. The current folks have done enough, but I think they’re tired and burnt and defensive and possessive.

The admins need to turn over the reins to some new members. They need at least one technical admin who does nothing but work the vBulletin side, and then they need about five people to handle the rest. Those people should spend their time revitalizing the site, and their only benchmark for success should be a marked increase in the number of active posters and active readers.

Anything less, and WriterAction will slowly bumble along as it does now: limited, unrealized and ineffective.

Elias Davis’ opponentAh, summertime, ‘07. The weather’s heating up, the Yankees are struggling, Paris Hilton something something jail something something…but most of all, there’s pre-strike panic in the air.

When Entertainment Weekly starts covering a possible writers’ strike, we’ve finally hit the big time. As we head deeper into summer and approach the October 31st deadline, there will be plenty more hand-wringing to be seen.

Before then, though, we’ve got the little matter of a WGA election.

And before I talk about that, I want to wax positive about our union.

I know. Shock of all shocks. I’m a vocal and public opponent of our current leadership’s policies, but something really good happened recently, and they deserve acknowledgement for their good work.

This month, following on the heels of a successful effort to bring The Daily Show under a guild contract, the WGAw and WGAE worked together to bring four more Comedy Central shows under union contracts: Mind of Mencia, The Sarah Silverman Program, The Showbiz Show With David Spade and the upcoming series American Body Shop.

Those contracts sound like good ones, and they include credit protection, salary minimums, pension & health and residuals.

Why is this so important?

Representation of labor is what unions do. The more labor they represent, the stronger bargaining position they’re in…at least in theory.

My personal theory is that in a union like the WGA, it’s not the numbers that matter, but rather the quality of employees that matter. It’s nice to imagine 1,000 reality editors in our union as “storytellers,” but it’s much better to have 30 people-who-write-words-and-get-paid-for-them types.

You know. Writers.

I was critical of Patric Verrone’s reality organizing effort for two main reasons.

First, Patric insisted on “union standards,” which require the signatory company to not only agree to do all its own shows union, but to force any subsidiary production companies to also go union. It’s a great theory, but since it’s never happened in Hollywood before and the film studios and networks don’t apply union standards to guys like me, something told me that they wouldn’t ever apply it to someone writing lines for Tyra Banks either. Insisting on union standards only gets in the way of actually achieving something.

Second, Patric was leapfrogging past basic cable to get to reality, and while there’s a large argument about whether or not many reality producers and so-called “preditors” are writers at all, no one questions the bona fides of actual writers on a ton of basic cable shows that aren’t under WGA contracts. Why not target clear-cut cases first?

It looks like the Guild is swinging around toward my view of things.

Here’s what the WGA didn’t do this time.

• They didn’t run a corporate campaign against Comedy Central.
• They didn’t attack Comedy Central’s advertisers.
• They didn’t insist that every Comedy Central show get organized at once.
• They didn’t insist that all future Comedy Central shows be under guild contracts.
• They didn’t hold rallies.
• They didn’t strike the shows.
• They didn’t fight with another union.
• They didn’t attempt to organize through the press.

And lo and behold…success. Four shows under Guild contracts. 30 writers getting P&H and residuals and credit protection…all of which are moral imperatives for employers to grant writers (in my humble opinion).

Now, compare that to the ANTM debacle!

Well done, WGA. I don’t know if this is a slight course correction or a signal of greater shifts to come, but I hope this trend continues. This is how you go about the business of representing writers—not through posturing and public aggression, but through quiet, private and leveraged negotiating.

Okay, that was the Good. Here’s the Strange.

The WGAw constitution requires the Nominating Committee to submit two candidate names for each officer position prior to an election. This is a somewhat rare quirk for unions. Most allow “white ballot elections” in which candidates can run unopposed. Not us, though. And that’s led to some weirdness in the past, particularly when no one but one person wanted to run for an office, so, well, patsies were recruited. Allies who were willing to fall on their sword.

Until this time, apparently. Elias Davis is running unopposed for Secretary-Treasurer. I think this may be a first. I’ll check with Tony Segall (WGA General Counsel) on this one, and report back.

And the Predictable?

Kathy Kiernan is running for President against Patric Verrone. Now, I know Kathy. She’s a very good person, but she’s not a serious candidate for President, and I don’t mean that in any disrespectful way.

Kathy was elected to the Board last year, and she was on a slate of candidates endorsed by…drumroll please….

Patric Verrone.

She’s an ally of Patric’s, not a real opposition candidate. And so, in order to go through the motions here, we have the obligatory “contest” that isn’t a contest. Both candidates will write lovely statements about where we are and where we have to go, and neither will take swipes at each other.

In fact, both will praise each other and talk mostly about how they both want the same things.

Then Patric will get re-elected.

It’s not really offensive. It’s just silly. It’s a little strange that Kathy’s the one running against Patric, particularly because she’s a newswriter, and as such, she doesn’t even work under the big contract that’s up for negotiations this fall.

Heh…you know…if she won and then we went on strike, our President would still be working while we all walked a picket line.

That would be amusing.

But she won’t win. She’s not in this to win, but to fill a slot. Personally, I hope her candidacy does at least a little to educate our membership about the fact that we do have newswriters in our union. They’re terribly served by the WGAE, whose Executive Director Mona Mangan has managed to beat her own dismal record for incompetence by bungling the CBS newswriter negotiations for over two years now.

Yes, they’ve been working two years without a contract.

Way to go, Mona. You’re a real labor hero.

I hope Kathy uses her platform, obligatory thought it may be, to shine a light on that sad story. For all of our obsession with internet residuals, there are people out there who aren’t even trying to get any residuals for anything.

They just want a halfway decent contract.

We won a nice victory in basic cable.

Maybe the news will be next.

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.

I just wrote a piece for The Huffington Post expanding my thoughts on the upcoming WGA negotiations, including what I think is going to happen. So, wondering if there’s gonna be a strike or not? Read "Something Picket This Way Comes". To those of you visiting from HuffPo, welcome to our humble site. We hope you stick around.

A few weeks ago, I received an email from a fellow WGAw member who wrote:

I joined the WGA last year. Joined WA a few weeks after. All this talk of strikes and what-not….man, it’s a mess. I’ve talked with fellow ‘newbie’ wga writers and the fact is: no one understands what the hell is going on.

…So, a primer or a “The WGA for Dummies” type of thing…y’know, like ‘Our Story So Far….” sort of article. It’s a big undertaking but if you’re ever looking for a topic for your site, maybe this is one that should at least start getting addressed.

At first, I groaned, because I thought that a) he was right, I did need to write this, and b) it was going to be a big undertaking.

But you know, in the end, it’s not really all that complicated.

And so, I present to you the primer. I will do my best to be as unbiased as possible.


What Are These Negotiations Anyway?

Every three years, the WGA, west and the WGA East work together to negotiate the Minimum Basic Agreement (or MBA) with the companies we all work for. The MBA sets the terms for things like “What is scale?” and “How much residuals do I get?” and “How much will the company contribute to my pension and health insurance?”

The companies are represented by a trade organization called the Alliance of Motion Picture and Television Producers, or AMPTP. The AMPTP is largely controlled by the big studios (Paramount, Disney, Columbia, Universal, Fox, Warner Brothers) and the big networks (CBS, ABC, NBC, Fox and The CW). Their chief negotiator is a man named Nick Counter.


How Do The Negotiations Work?

The WGAw and WGAE create a joint committee called the Negotiating Committee, or NegCom for short. The NegCom consists of 17 members, and the division between East and West is determined roughly by the proportion of the two memberships. The officers of the WGAw also sit on the committee in an ex officio status.

First, the NegCom drafts a laundry list of “stuff we want out of this negotiation,” and they send it to the members of the WGAw and WGAE. The members try and rank the laundry list in the order of importance to them, and the NegCom then uses this list as its “set of demands.”

In reality, the “set of demands” is pro forma, as the demands tend to be the same year after year, and the NegCom isn’t bound by them in any case.

The NegCom then proceeds to negotiate with the AMPTP. Our chief negotiator is our Executive Director (currently, that’s David Young).

The negotiations occur over weeks and sometimes months. They consist of two basic types of interaction.

The formal negotiations occur between the committees in large conference rooms. They have often been compared to kabuki, as they’re ceremonial, extremely structured and very carefully orchestrated so as to avoid making any mistake, setting any dangerous bargaining precedent or carelessly ceding leverage.

The true negotiations largely occur in sidebars. The two sides caucus separately, then send their three heavy hitters into sidebars with three guys from the other side, and wheeling and dealing ensues.

Once a deal is determined, the NegCom votes on whether or not to recommend it to the Board of Directors of the WGAw and Council of the WGAE. Following that recommendation, if the Board and Council vote to recommend the deal to the membership, then we all vote on the deal. Majority rules.


How Does A Strike Or Lockout Work?

The first thing to know is that while we’re covered by the deal we approved in 2004, we can’t strike, and the other side can’t lock us out.

Once the deal expires (October 31st, 2007), all bets are off.

If the NegCom fails to recommend a deal to the Board, or if the Board fails to recommend a deal to the membership, or if the membership fails to ratify a deal, then a strike is possible. It’s the same mechanism. The NegCom recommends a strike to the Board, the Board recommends a “strike authorization vote” to the membership, and the membership votes.

If the membership votes to authorize a strike, the Board is then free to declare a strike if they feel the need. The Board can also ask the membership to vote to declare a strike.

In no case can a strike happen without a majority of the members voting for it.

A lockout is pretty much just like a strike, except instead of writers refusing to work, the companies decide to no longer hire any of us until a deal is struck.

Again, a lockout can only occur after the current deal expires.

The WGA has struck a number of times since its inception, with the longest and most recent strike occurring in 1988.

The AMPTP has never locked out the WGA.


So What Are We Arguing About This Year?

Every three years, we ask for increases in minimums, increases in pension and health, more creative rights, and a long list of other things.

The big argument for the last 20 years, however, has been over residuals.

Most of our residuals formulas stipulate that we are to collect 1.2% of what the companies make off of so-called “secondary markets.” Those markets include broadcasting movies on television, pay-per-view, and home video.

It’s the home video that’s been giving us fits.

In 1985, the companies decided that they didn’t want to pay 1.2% of what they were making on VHS tapes. Instead, they wanted to apply the 1.2% to 20% of what they were making. After a failed strike in 1985 and another failed strike in 1988, we ended up with the much-hated home video formula of 1.5-1.8% of 20% of what they make on VHS…and DVD.

Arguing and posturing aside, there haven’t been any strikes since 1988, because once the home video battle was lost, no strike-worthy battle has arisen.

That’s changed.

Everyone is freaked out over “new media,” or “internet video on demand.”

In short, the football this year is how we’re going to be paid residuals when people pay to download our television shows and movies through the net, be it on to their iPod or their computer or their Apple TV or their DVR or some soon-to-be-purchasable tv-computer-internet thingy.

The two unions with the biggest stake in this are the WGAw/E and SAG. The DGA has a lesser stake, because many of their members are below-the-line employees (1st AD’s, UPM’s) who earn a relatively small fraction of money from residuals. Regardless, it’s a huge issue for all three unions.

It’s also a huge issue for the AMPTP. When they deal with one union on this issue, they know they are dealing with all three, because of “pattern bargaining.”

Pattern bargaining dictates that if one of the three creative unions gets a residual improvement, then the other two must get it as well.

Residuals are generally paid like this: the writers get X, the director, 1st AD and UPM get X, and the cast gets 3X (because there are many more actors to divvy the residuals for than there are writers or DGA employees).

So, whatever we’re asking for, the AMPTP knows it’s going to have to ultimately pay out five times that amount.


Is It Just Me, Or Does Everything Seem More Militant This Time Around?

It’s not just you.

In 2005, the WGAw elected a slate of candidates who expressed a desire to be tougher with the studios.

The basic plan of this slate, led by current WGAw President Patric Verrone, was to organize reality television writers, bring them into our union, and thus be able to create a very strong strike threat against the AMPTP (right now, the producers believe, rightly, that reality television is a huge wedge against the efficacy of any WGA strike, because it keeps new programming on the air during a walkout).

The slate believed that with this enhanced strike threat, we’d be able to improve on the 1.5-1.8% of 20% formula when it came to residuals for internet downloads.

Unfortunately, no reality writers have been organized into the WGA. It is highly probable that we will go into the 2007 negotiations without any enhanced strike threat.

Still, the last year has definitely been marked by heightened rhetoric from both sides. The WGA engaged in a number of controversial “corporate campaigns” designed to shame or pressure the companies into letting us organize reality writers, and the AMPTP took out a full-page ad in the Variety excoriating the current WGA leadership.


So Are We Going To Strike Or What?

Hard to say. Always cloudy is the future…

I think there’s certainly a better chance of a strike this time around than there was last time around, but my personal opinion is that there won’t be a strike.

It is possible that we might work past our contract, as we did in 2004.


Okay, What Happens If We Work Past Our Contract?

Not much. We lose our protection against a lockout, and certain grievance provisions go away, but other than that, our 2004 contract remains in effect. The idea of working past the deadline is simple: we try and get closer to the expiration of the SAG contract (June 2008), and then we use their strike threat as leverage to get us both a good deal on internet downloads.

The danger of waiting?

The DGA could always leapfrog the WGA and SAG and make an early deal (which they did in 2004). If they do, it’s pretty much game over. The WGA and SAG will almost certainly get stuck with the deal the DGA makes. If it’s a good deal, that’s no problem.

If it’s not, that is a problem.


Will We Win?

Possibly. A better question is…will the fight even happen? It’s possible that the entire issue of internet residuals will get punted down the line three years, because no one really knows how the economics of downloading movies and television will work.


I hope this primer was of use and answered everyone’s basic questions. I tried my best to stay away from political opinions. If you have any other questions about this rather nutty negotiation year, please go ahead and ask them in the comments section.

No HP for you!I certainly don’t want it to seem like I’m piling on here, but there’s something irksome about tithing 1.5% of my gross earnings to an organization that has lost its mind.

The latest failure of rational thought at the Guild involves something close to my heart: the public status of screenwriters.

Even though I tend to blog about what we can do as individuals to increase our presence in an industry obsessed with actors and directors, that certainly doesn’t mean I’m against someone else giving us a helping hand.

Like, say, the Guild.

That’s what I was excited to hear about a proposal that came out of a Guild committee.

Yes, that’s right. Something actually came out of a committee. Namely, the Publicity And Marketing Committee, which was recently formed to do something about the fact that screenwriters are given less public attention than a pilled-up Nicole Richie driving the wrong way on the 134.

The committee came up with a cross-promotion with HP, the computer, etc. company, with the help of PR firm Davie-Brown. The idea was that HP would run a contest called “The Scene Of Your Life.” Contestants would mail in three-page scenes, and the winners would receive HP computers including screenplays by big name writers…and those writers would actually autograph the computers.

Is it going to leapfrog us ahead of directors when Premiere Magazine does their Summer Preview issue? No. Is it smart? Yes. It starts the good work of equating writers with movies, screenplays with content…and most of all…screenwriters with some form of celebrity.

This is good. This is very good. Mind you, I’m not a big fan of celebrity, but I am a big fan of the celebration of screenwriters and what they do.

So, the committee has this idea, gets HP involved, it’s starting to come together…and what do Verrone and Young do?

They kill it. And why? Oh, brothers and sisters, you’re going to want to be sitting down for this one.

They killed it because Davie-Brown, the firm that reps PR for Hewlett-Packard, is also involved in product integration.

Let me say that again, because sometimes when I repeat something monumentally stupid, I’m not sure it’s real, so bear with me.

They killed a project that would have cost the Guild nothing and netted it free publicity and advanced the name of WGAw members and celebrated screenwriters…because it seemed like it might be contrary to their totally pointless and futile war on product integration.

Hmm, yes, it’s real.

See, Patric and David honestly believe that “altering your strategy to conform to new information or evolving circumstances” is just a fancy way of quitting. And because of that, they are apparently all-too-eager to start firing bullets into their feet.

Wait. Scratch that. Our feet.

To refresh your memory, Patric and David wanted to attack product integration to pressure the advertisers to pressure the networks to give us reality to strengthen our strike to get us better residuals. It’s a strategy Rube Goldberg would have passed on as “too complicated,” but these guys can’t let it go, even though our reality organizing campaign is dead, 18 months of attacking product integration hasn’t resulted in anything except a continuing hemorrhage of dues money, and there’s nothing left to gain by pretending it matters at all anymore, much less using it as a litmus test for whom we ought to be in business with.

Now, before I’m accused of rumor mongering, my information comes from two members of the committee, one of whom is the chairman and a political ally of Patric’s. Yes, there were some other issues with the deal that needed to be worked out (liability and so forth), but what the committee was told was that the “primary reason” it was being killed was the product integration issue.

I can understand Patric and David’s thought process here. They’ve staked their leadership on this strategy. Ergo, getting into business at all with a company that does the very thing that they’re attacking seems wrong.

Of course, they don’t really care about product integration. It’s just a wedge to get reality, which they also don’t care about, since that’s a wedge to get better residuals. And even though any casual observer can see that their strategy has failed, they still kind of have to stick to it, because if they don’t, then Lucy’s got some ‘splainin’ to do.

In other words, their pride and their public face is more important to them than our collective pride and our collective face.

Stupid failed strategy first, screenwriters second.

Like all absurd decisions, this one was as pointless as can be.

So, what next? Who knows? I can only presume Davie-Brown will turn to the DGA and run a “three minute video” contest. Winners will get computers signed by famous directors, screenwriters will continue to hunker in the darkness, but by God, Patric Verrone and David Young’s consistency will be intact.

Gah.

WGAw
Executive Director
David YoungAfter writing a bit about my migraines, it’s time I started doling some out to other people. I think I’ll start with Patric Verrone and David Young, who, as the leaders of my union, are chiefly responsible for conceiving, coordinating, and then ultimately killing the effort to organize reality television writers into the WGAw. No, you won’t see any official announcement from the guild that the effort to organize reality is dead. No funeral, no flowers.

But don’t mistake the Guild’s silence for a pulse.

This thing is dead. It’s over. It’s an ex-organizing campaign.

If you’re thinking, “Well, hey, nothing ventured, nothing gained,” I’m afraid to say that quite a bit was ventured…to the tune of seven figures of dues money…and not only was nothing gained, but we actually lost some yardage.

Yes, by my last count, our very expensive reality organizing campaign has managed to bring a net total of negative 12 writers into the WGAw.

What went wrong?

Well, just about everything.

Let’s roll back to the genesis of it all. Patric Verrone, the current President of the WGAw, has been banging the drum of organizing for a very long time, and for good reason. Organizing, which is the catch-all term for bringing new groups of employees into a union, is certainly a major part of union work. The fact that the WGAw lost an organizing battle with IATSE over animation writers, for instance, means that no one ever gets paid residuals on movies like Happy Feet or Shrek or Ice Age or…any of them.

This is bad.

As such, I believe in organizing.

However, where Patric and I differ is that I believe in organizing primarily as a moral imperative to improve the lives of non-unionized employees, while he believes in organizing primarily as a strategy to increase the bargaining power of already unionized writers.

See, I wanted reality writers to get covered by a WGA contract because it’s good for them. They would get minimums, pension and health, and decent working conditions.

Patric wanted reality writers in the WGA because he believed that would allow the rest of us to strike effectively and achieve the real goal, which is to improve our residuals formula. See, we all know that the companies use non-union reality as a wedge against our strike threat. If we strike, they can still keep running very popular reality shows, making our strike less harmful to them.

And Patric didn’t like this.

So he and David Young devised a strategy.

The Verrone-Young strategy goes a little something like this.

1. In order to get a better residuals formula, you need to win a strike.
2. In order win a strike, you need to have reality workers in your union, striking with you.
3. In order to get reality workers in the union to create that effective strike threat, you need to get them all, not just some workers or some shows or some networks or some production companies.
4. In order to get them all, you need to get the companies to agree to something they have never ever ever agreed to in Hollywood before, which is a union standards clause. This means that not only would the big companies agree to go union, but they would agree to only work with companies that also agreed to go union.
5. In order to get the never-before-gotten union standards agreement, we would have to pressure the companies through a corporate campaign, which is an orchestrated effort to attack the companies in multiple small ways…a “death of a thousand paper cuts”…finally bringing them to their knees.
6. Our corporate campaign included three phases. The first involved filing lawsuits alleging that the companies weren’t paying reality writers overtime.
7. The second phase attacked the companies over the practice of product integration (the inclusion of advertising within plotlines, etc.), with the expectation that advertisers would freak out and pressure the networks to accede to our demands.
8. The third phase was to attempt to create an industry-wide walkout by striking one show and hoping for the “match in the tinderbox” effect. That show was America’s Next Top Model.

You might think, like I did, that this was the most rickety, convoluted, pie-in-the-sky Rube Goldberg strategy you’ve ever encountered.

Or you might think it sounds great.

Either way, here’s what happened.

The overtime lawsuits were batted away like gnats. The companies will likely settle them quietly if they haven’t already. Meanwhile, I’ve been hearing anecdotally that reality writers are being paid overtime…but they’re being paid less per hour…so their overall pay hasn’t changed.

In short, the companies were not brought to their knees.

The effort against product integration included an incredibly clumsy, ham-fisted website called Subservient Donald, a ripoff of Burger King’s wildly successful viral marketing campaign “Subservient Chicken.” The Donald is a Donald Trump impersonator who responds to user questions by slamming various products that are advertised through product integration.

David Young believed that this would “go viral,” which is a phrase that should be outlawed. If you’re trying to “go viral,” you’re not going viral. The internet is rather good at ignoring forced messages.

Unsurprisingly, Subservient Donald was dead on arrival. All other efforts to attack product integration, including guerrilla street theater, picketing in front of advertising conferences and even a lobbying trip to Europe to attempt to influence legislators there against the practice…got nothing.

Zippo. Well, the companies were annoyed by the papercuts, but they weren’t dying or falling to their knees or even flinching.

And so, with hundreds of thousands of dollars spent and nothing to show for it, the WGAw took the writers of America’s Next Top Model out on strike.

There were twelve of them.

The theory, apparently, was that once the rest of the reality writers in town saw both the bravery of these twelve writers as well as the incredible show of support from the rest of the union, they would rush out on to their own picket lines in a chain reaction of labor solidarity. With a thousand reality writers on the street, Patric and David would finally bring the companies to their knees.

Ah.

Well.

As most of you know, it didn’t work like that. Instead, simple, obvious and oh-so-predictable human nature trumped Patric and David’s plan. Instead of rushing out to their own picket lines, the rest of the reality writers thought, “Hmmm, let’s see if these people make some progress or get squashed like bugs before we risk our jobs.”

The ANTM writers walked the line for many weeks. They were paid, in fact, by the WGAw. The picket line was catered (this is Hollywood, after all). WGAw members worked phone banks to get other members to walk the line with them in support (I made some of these calls myself).

Now, here’s what I said upon hearing of this strike, and I said it in the Board room.

“The CW would rather kill ANTM than give it to us now, and they would probably be compensated for it by the other companies.”

Why? Because the precedent of rewarding the WGAw for this kind of labor action would be unthinkable for them.

In the end, the ANTM writers were told that not only were they not getting WGAw deals, but all writing jobs on the show were being eliminated.

That’s right. ANTM said, “Hey, you know what, we can do this show with our editors. We don’t even need you, much less feel like giving you a union deal.”

And that’s how our millions in dues money got us the sum total of -12 writers organized into the WGAw.

Still, knowing full well that the ANTM writers were in the process of petitioning to try and get their jobs back anyway, the WGAw decided to light yet another bonfire of cash in a desperate attempt to save face.

They held a “unity” rally.

The entire staff suddenly focused on this event, as if it were ever going to make a damned bit of difference to the ANTM writers (one of whom told me that “if they ask me to speak at the rally, I’m going to tell everyone there not to listen to these people.”).

Hell, they even got Marc Cherry to record a phone message exhorting us all to show up, and then ran it on an autodialer out to all current WGAw members.

Hundreds of people showed up (estimates ran from 700 to 1,000 people), some of whom were non-members, but a good chunk of whom were members.

Patric and David spoke. They spoke about the need to fight. The need to bring the companies to their knees.

Everyone wore a red t-shirt. Then they marched past CBS as if to say, “Hey, CBS, don’t mess with us!”

Then they went home.

The ANTM writers are still looking for work. Some of us have been trying to help find them replacement jobs. The WGAw certainly isn’t.

Then again, I’m starting to wonder if the current leadership ever really gave a damn about these people. And now that this entire thing is dead and they’ve burned through the treasury and have nothing to show for it, all I can say is that I’m angry.

Writers have to earn nearly 67 million dollars to net the Guild a million dollars in dues.

I think they’ve probably spent more than a million on the reality organizing effort, which involved a major staff buildup, web expenditures, trips to Europe, trips to New York, research, production of a large number of useless presentations, catering, t-shirts, and flat-out stipends for strikers.

But let’s just say a million.

That gives me 67 million reasons to be angry.

That’s not all, though.

I have a friend. Good friend. I’ve known him for about six years now. I know his wife. I’ve known his kids since birth. He lives a few miles away from my house. I see him almost every week.

He’s been working in reality all that time.

He has no minimums, he has no pension and health, he gets no residuals, and he works ridiculous hours.

I came to Patric Verrone two years ago and said, “I believe we can organize his show if we take a vote of the staff, go through the NLRB process, keep it quiet, keep it out of the press, and in one year all of those writers will be in our union and have better lives.”

And he said, “So?”

See, that didn’t fit in Patric’s plan of everyone, so he rejected it.

My friend is still working non-union.

One last thought for you.

I had a conversation with a man who is currently on the Board and on the Organizing Committee as well. I put a hypothetical to him that clearly shows where the minds of our leadership are right now.

I said, “If the companies came to you tomorrow and said they’d give all reality writers a great collective bargaining agreement under the auspices of the WGAw, and it would guarantee them minimums and pension and health and great working conditions and even residuals, but the one condition was that it had to be separate from our agreement, so if we struck, they would have to keep working…would you take that deal?”

And he said, “No.”

That’s when I knew that my union, like Harold Crick, was living in a tragedy.

Dan Petrie, Jr.Ed. Note: Dan Petrie, Jr. is not only the screenwriter of films like Beverly Hills Cop, but he served as the President of the WGAw from 1997 to 1999 as well as from 2004-2005. Dan wrote a provocative and poignant post on WriterAction about a friend and colleague, Grace Reiner, as well as various issues that should be of concern to any WGA member. Dan added some context and has agreed to let me publish his remarks here. They are unedited.

Some sad news for all writers came today: Grace Reiner, Assistant Executive Director of the Writers Guild of America, west, is leaving the Guild. A lawyer, Grace has played a vital role in every Guild negotiation in memory. Between negotiations she is a fierce guardian of the Writers Guild film and television contract, the Minimum Basic Agreement (or MBA); more than one writer has nicknamed her “Rain Man” for her uncanny ability to cite by page and paragraph every obscure provision in the 400+ page document.

This comes on the heels of a wholesale series of departures in the wake of the appointment of our new Executive Director.

I learned this news on the WriterAction message board. As I’m sure most of the people who follow “The Artful Writer” know, WriterAction, which is open to WGA members only, was created as a forum to empower rank-and-file members to communicate with each other and debate Guild issues, and to speak truth to power, as the saying goes. As such, WriterAction has been a vital forum for Guild discussion and debate. It’s not quite as vital now, however: after the WriterAction founder became a member of the majority on the Guild’s current Board, she suddenly launched a rather vicious attack against “the obsessive posters here on WA who hate [WGAw President] Patric [Verronne], [Vice President] David Weiss, [new WGAw Executive Director] David Young, and the whole WU slate and who overpost enough to lull others here into thinking that that theirs is a majority opinion. I’m sorry to say that WA is NOT a good barometer of the state of this union. If you REALLY care enough to know what’s going on, then get off this site and go to a Board meeting. Go to a rally. Get to hear people who aren’t bitter and can’t get over their personal emotional issues with the current administration and who have an actual plan to tackle the issues at hand and get us a real contract next time.” She then announced that WriterAction had become, in her exact words, “a ghetto of the disgruntled. Not everyone here, but the loudest voices certainly are. It’s tragic, and shameful, and destructive, and BORING.”

Well, actually WriterAction was never a good barometer of Guild majority opinion. In fact, the whole point of WriterAction was to provide for the expression of minority views - at least, I thought so. But in the wake of the founder’s pronouncement, it was suggested that perhaps, as an experiment, the most frequent posters on WriterAction should take 3 months off. Perhaps then the Guild leadership would post on WriterAction, or expressions of support for the current leadership would be more freely expressed.

What a turnaround. It used to be that WriterAction administrators would only ask a member not to post after months of the most outrageous personal attacks and outright libel, and even then there would be a chorus of members asking that that member be allowed to keep posting.

But lo and behold, those frequent posters all agreed to stop posting for 3 months. Guess what? WriterAction grew more dull. Neither the Guild leadership nor their supporters swooped in to fill the void. But I still check in with WriterAction when I can, because even in its diminished state, it can still be an important source of Guild news. And thus, I found out the bad news about Grace Reiner leaving the Guild.

The person who shared that information went on to say, “Look folks, I’m trying not to be negative but I’m going to be honest. I think our current leadership is a disaster. The ANTM [America’s Next Top Model] strike was mismanaged from start to finish and some of the Guild’s best employees have been fired or left. We’re in very bad shape going into negotiations.”

Whoops. That’s exactly the kind of opinion that is not supposed to be expressed anymore. A member of Board was quick to take this person to task. “Isn’t your posting above an example of a tendency here to go immediately to the worst case scenario before knowing the facts?” the Board member said. “Linking Grace’s leaving with the performance of the leadership is what the erstwhile Princeton-educated Maison would call post hoc ergo procter hoc. Or, to put it more colloquially, carelessly tossing a match on dry brush. We have subsequently learned that Grace was not fired but left to pursue, in her own words, a “dream job” elsewhere.”

I’m guessing by Maison he meant Craig Mazin of this very website. Did Craig go to Princeton? (Ed. Note: I did.) If so, he would know that the logical fallacy of coincidental correlation is called post hoc ergo propter - not proctor - hoc. Later, the same Board member said, “the fact that several senior members have either been let go or have resigned in the past year, on David [Young’s] watch, probably has very little to do with him. Post hoc ergo procter [sic] hoc.”

I trust that the Board member wasn’t being intentionally disingenuous, but he could not have been, in my view, more wrong.

I hope you’ll agree that the forgoing gives necessary context to the following, which I posted on WriterAction in response:

————

At the risk of being told, in this great message board’s founder’s memorable phrase, that I am “tragic, and shameful, and destructive, and BORING,” and at the risk of being sneered at in Latin, I would like to correct a misimpression that has been left here, perhaps in all innocence.

Grace Reiner has indeed resigned voluntarily, to take a very good job: she will be Vice President, Legal Affairs, for the Disney Channel. The Disney Channel is a great place to work, and Grace is an exceptionally able legal executive, so congratulations are in order, both to Grace on her new appointment, and to Disney for making such a great hire.

That said, it is not true that leaving the Guild was Grace’s first choice, or anything like it. I believe it is fully accurate to say that Grace would not have accepted the Disney Channel’s offer, as good as it is, had she still been happy at the Guild.

One doesn’t have to fire someone to get rid of them. One can create conditions that force the person to leave. For example, one can ask the person to write memos on policy matters, and then exclude the person from meetings held to discuss those very memos. One can otherwise ignore, marginalize and exclude the person from the access, authority and direction needed to do the job. And, when that person formally asks for these concerns to be addressed, one can simply not respond.

Grace Reiner’s tremendous abilities have been highly valued by every elected leadership and every Executive Director of this Guild, going back to well before I was even a member - until now. Her talents have not gone unnoticed by others, either: she has received many tempting offers over the years, from studios, networks, other guilds and the AMPTP itself. But Grace always wanted to stay at the Writers Guild. She has exceptional loyalty to writers, and has always gotten great joy from passionately representing the best interests of writers.

Losing Grace Reiner is a bitter, indeed tragic loss for the Guild. As valuable as she’ll be to the Disney Channel, her unique knowledge of the MBA, the most complex single labor-management agreement in (I believe) the United States, and the bargaining history that informs every clause in it is just one of the many reasons she’s much more valuable to us.

Hard as it is to imagine a greater loss, let me suggest one. What has happened to the oversight function of the Board of Directors? Can it really be that board members are so out of touch that they honestly believe this hemorrhage of anyone who might offer greater experience or a contrary point of view is simply a series of unrelated, coincidental events?

As Clifford [Green] pointed out [in a post on the WriterAction thread], [former Asst. Executive Director and longtime head of WGAw Public Relations] Cheryl Rhoden was fired. She did not retire voluntarily [as the Board member suggested].

[Asst. Executive Director] Greg Bernstein was marginalized and excluded by our Executive Director, and promptly left.

It’s true that [former Deputy Executive Director and General Counsel] Marshall Goldberg [also a WGA member for over 25 years] is happy to be writing again, but it is also true that he was fired in a particularly brutal manner. He was escorted out of the building immediately, and told that he should not have his scheduled lunch with a board member. “Perp walk” seems an apt description; it’s certainly not a “canard” [the word used by that Board member to describe the use of the phrase “perp walk.]

Every board I was on was not shy about finding out what was going on at the Guild. Why does the current one seem to be different?

Why such a willingness to not probe behind some transparent official version of events?

Why did the Board vote to appoint our current Executive Director without debate, via a telephone poll?

Why did the Board accept the 7-2 vote of the [Executive Director] Search Committee at face value? Why did the Board not question the Committee about how its conclusions were reached? The Board would have learned that the initial vote of the Committee was 5-4 for another candidate (apparently the new Executive Director of SAG). The Board would have also learned that, after one member of the committee was persuaded to change his vote, making it 5-4 in favor of our current ED, the other two votes in favor were won by appeals for Guild unity.

In recent years the Guild has had a tradition of openness with the membership, of frank and full disclosure of information of concern to Writers Guild members, whether good news or bad, whether popular or not. Now there are a great many calls for unity and support but not much communication about what is really happening. Evidently at one point the America’s Next Top Model strikers made unconditional offers to return to their jobs - we know this because the Guild, quite rightly, filed unfair labor practice charges with the NLRB when those unconditional offers were not accepted. But of course, the moment the strikers made those unconditional offers to return to work, the strike had failed. When did that happen? When did the Board find out that that happened? And why did the membership have to learn about this in the trades?

Recently the membership learned - also from the trades - that Writers Guild East announced that a CBS Newswriters’ contract will be sent to the members working under that contract for a vote, and that Writers Guild East was urging rejection of the contract. Did the Board know that was happening? Why wasn’t it a joint announcement, as is required under East-West agreements which, I believe, are still in force? Did the Board vote in favor of sending the contract to the members concerned, and if so, did they do so before or after the East announced it in the trades? Did the Board satisfy itself that this strategy is the best one for our newswriters? Did the Board find something in our Constitution that permits such a vote in the first place? And once again, why does our membership have to learn about this from the trades?

I know, I know - these questions are all tragic, and shameful, and destructive, and BORING. Possibly they are canards as well. As much as I enjoy following the discussions on WriterAction, it’s not in my nature to post much. (I must say, I liked WriterAction better in the days when the founder did not think it was tragic and shameful for posters here to hold the Guild leadership’s feet to the fire, even when two of those feet were mine.) One reason I’m reluctant to post much is that I’ve seen how easy it is for posts to be misinterpreted. So I want to make it clear that I understand how hard it is to be a member of the Board or an officer of the Guild. I deeply appreciate and respect the service and sacrifice. All our elected officials are volunteers, all have other jobs, other lives; none can be at the Guild all the time - believe me, I know this.

But I also feel terrible about what happened to the ANTM writers. I’m fearful for our newswriters.

And I know that losing Grace Reiner is like losing a limb.

I’d be astonished if every member of our Board did not feel that loss as keenly as I do. I sincerely hope that, as the Board realizes that they were in the dark about the actions and inactions that caused this amputation, they will start looking at the causes of other departures. I hope they will prevent future departures. Our institutional memory is vanishing; we can’t afford to lose it altogether.

I hope that they will also look closely at the ANTM strike to see how the strategy and tactics that were embraced and supported so enthusiastically met with such failure.

I hope they will look deeply into, and fully debate, the new strategy in the CBS-Newswriters negotiation as announced, unilaterally, by WGA East, for while the East ED is the lead negotiator on this contract, we represent many members who work under that contract and our Board owes them the responsibility of an independent judgment.

I wish Grace the best of happiness and success in her new venture. The loss is all on our side.

In the last article, I wrote about what I perceive to be a growing gap between the way writers look at new ways to gain power and the way writers’ representatives look at new ways to gain power.

To summarize, the writer’s model is a traditional one, in which writers work as employees and collectively bargain with management for better terms…hoping to move our participation in revenues forward…and pursuing a strategy of organizing and strike threats to achieve this goal.

The representatives’ model, which is currently evolving, works a little something like this.

In the future, a filmmaking unit will not work as employees for a studio. Rather, the filmmaking unit (writer and director and perhaps star) will present their vision of a movie to a group of independent financiers, who will form a partnership with the filmmakers. Obviously, this is nothing new. Hell, just about every indy art film is made this way. What’s changing is the amount available.

For the sake of argument, let’s stipulate that the financiers will spend about 25 million dollars to finance the film, and in exchange for that, they will own 75% of the film. The filmmakers will still get paid their normal front-end salaries, but they will also own 25% of the film.

The financiers do not give notes. They do not request final cut. They have simple terms like “it has to be PG-13 or R” and “it can’t run more than 120 minutes.”

While the film is in production, the representatives shop it to studios. They state that given the economic realities of foreign sales, broadcast fees, etc., if a studio purchases the film for 40 million dollars, the studio pretty much knows they can automatically make that back and then some, just by dint of standard global exploitation of the property.

The studio buys the film for 40 million dollars. The financiers recoup their 25 million dollar investment, leaving an additional 15 million, which is instant profit.

The filmmakers’ 25% nets them nearly four million in additional cash. But that’s just the beginning.

The studio will spend money to market and distribute the film. Let’s say that they spend enough to offset the entire worldwide theatrical gross of the movie. No problem. As everyone knows, the profit is entirely in the video. That’s the free money. Because the studios rely on video for their profit, they have been loathe to share it with the artists.

The WGA strikes in ‘85 and ‘88 were over video residuals definitions. If we strike in 2007, it will be over internet video residuals definitions.

Currently, a writer receives 1.5% of 20% of the studios’ video earnings.

Surely that number is better for big stars or big producers, right? Well, maybe bigshots can do better than the 1.5%, but everyone gets screwed on the definition on the earnings. In the WGA’s case, it’s that 20% number. Some people get that number to 25%. Really big-time producers and stars can push it to 35%.

But financiers? The people who post the cash to finance the film?

100%.

In our example, the filmmakers are partnered with the financiers, so they piggyback on to the 100% definition. Now let’s say the sales deal to the studio included a 15% share of the video. Our filmmakers’ take would be nearly 4%.

4% of 100%. As opposed to 1.5% of 20%.

In other words, 4% vs. .3%. The video earnings would be 13 times as much as you would normally get.

If you’re talking about a decent hit, it’s the difference between earning a few hundred grand in residuals…and earning 30 million dollars in video profits.

Now, think that’s all crazy talk? Think that’s never gonna happen?

What if I told you it happened last week?

Instead of selling his next script to a studio, Sascha Baron Cohen packaged his next film with independent financiers for 25 million dollars, presold it to Universal for 42 million dollars, and will likely earn tens of millions if the movie does decent business.

Sascha Baron Cohen has leapfrogged beyond unions. He has leapfrogged beyond employment. He is an owner now.

Think this only works if you’re a star as well as a writer? Well, the filmmakers of Babel did the same thing. It’s happening more and more now, and I think it’s the wave of the future. Mid-sized budget films are going to be independently financed, and the studios will simply serve as releasing companies, providing the services that they provide best (marketing and distribution).

Why would the companies allow this?

First off, they’re not. They’re being competed against by new money, and if Baron Cohen wants to partner up with some Wall Street money to make his next movie, there’s nothing they can do about it.

Secondly, the very corporatization and conglomeratization that unions fear is very likely a source of advantage for entrepreneurs. The studios used to fly by their gut. No more. They’re not in the business of building a library that will pay off huge dividends in the future. They’re in the business of increasing their stockholders’ value right now, and that means minimizing risk.

As one agent explained to me, “Just about every studio film is now cofinanced with another studio or an independent partner. If they’re going to hedge their bet with outside money, why shouldn’t you be that outside money?”

In my mind, reliable filmmakers who shoot genre films for a price will be the immediate beneficiaries of this new model. Think Baron Cohen, Judd Apatow, Eli Roth and so forth. It will spread, though. Once a writer makes 30 million dollars on a movie that only earned, say, 90 million at the box office in the U.S., every single writer in Hollywood is going to want to do the same thing.

What’s the practical effect?

Studio development will wither away.

Production companies that aren’t based around artists will wither away.

The unions and studio management will continue to negotiate contracts that will cover fewer and fewer artists.

Total filmmakers will be rewarded.

Specialists will not.

Granted, this could all be crazy talk. Maybe what Baron Cohen and Guillermo Arriaga (Babel) did is just a brief quirk in the Hollywood timeline, and we’ll all be laughing about it five years from now.

Something tells me, though, that this trend will continue because it makes sense. If it does, we may finally get everything we ever thought we deserved.

And then some.

Edited to add: Ted just alerted me to an L.A. Times article about this very topic. Of particular note is the paragraph that describes how Tony Gilroy wrote a script, then declined to sell it to a studio, preferring instead to meet with private financiers.

Two weeks ago, I terminated the services of my manager. Since I had been without an agent for a number of years, it was time to go out and get one…and I hit the shark-infested waters like a nice bucket of bloody chum.

This essay isn’t about whom I’m choosing or why. It’s about the gap between writers and businessmen in the way they perceive our business, its future, and what ought to be done about it.

Over the course of the last week, I met with fairly high-level agents and occasionally the highest-level agents at CAA, ICM, UTA, William Morris and Endeavor.

While each agency has its own personality and each group of agents is unique, the perspective that the agencies have about the future of the business is fairly uniform. It’s also shockingly different than the perspective of the average writer about the same topic…and it’s miles apart from current WGAw leadership’s point of view.

I’ll attempt to articulate the two viewpoints, and in doing so, I suspect you’ll begin to see just how far apart the two groups are.

The WGAw leadership views the business through the traditional lens of management and labor, i.e. management exploits labor, thus labor must form a collective to demand fair treatment from management. Furthermore, since there are only five or so conglomerates that form management but thousands of individual writers that form the bargaining collective, numbers are key. Current union leadership believes that if striking is the ultimate gun to management’s head, jurisdiction is the caliber of the bullet.

The WGAw theory is that the more writers they represent, the more powerful they are.

In terms of the future of the business, the union’s viewpoint is that no matter what the future brings, be it digital delivery or an all-reality TV world or developments yet unforeseen, labor must continue to be fairly compensated through minimums, pension and health care and residuals. If not, then it’s war! We will strike and cripple the industry! And above all, massing numbers and creating labor unity is essential because the studios have become global conglomerates.

They’ve increased their power, thinks the Patric Verrone acolyte, therefore we must increase our numbers.

While it’s hard to characterize the perspective of the rank and file of the WGAw, I think I’d be fairly safe in saying that it’s pretty close to this: writers want more job opportunities, want to be paid better for those job opportunities, want to be treated better by their employers and want to participate more in the exploitation of the properties to which they contribute authorship.

Got it? Okay, good. That’s one side of the chasm. Let’s walk across the bridge to the—

Wait. Can’t build a bridge that long.

Helicopter?

Not enough gas.

Let’s get into a 747 and head on over to the other side, shall we?

First off, remember that I’m talking about businessmen who advocate for writers, directors, actors and filmmakers. If the other side were the companies, then their perspective would be an obvious set of antipodes to the writers’ views. We ought to be paid less and get no residuals, because that’s what their shareholders tell them to think.

The advocates are far different. In fact, the advocate businessmen seem more pro-writer than most writers or their union.

Well…scratch that. More pro-good-writer.

They don’t view anything through the prism of labor vs. management, a dichotomy that’s always been questionable in an industry like ours. Instead, they look at the business as swirling circles of financial interest.

And they see changes.

They see studios drastically cutting development budgets and even more drastically reducing output of self-generated films (for instance, Disney and its affiliates put out more than a movie a week in the early 90’s, but they’re now planning to make maybe eight total for 2008). They see massive layoffs of creative executives who used to be charged with sheparding film development. They see fewer and fewer “open” writing assignments, and more and more films being birthed by creative nuclei (writers and directors and producers and actors).

Most interestly, they look at the globalization and corporatization of the studios as an opportunity for artists, because to a one, the corporations that comprise Big Hollywood are more risk-averse today than ever before in their entire history.

The businessmen advocates don’t really care about strikes. To them (and probably to the companies), strikes are short blips on a long-term radar. The WGAw and many writers are looking at Hollywood as employers they have to fight, and the businessmen advocates are looking at Hollywood as a business in trouble that they can exploit.

And how?

Since the first schmuck with an Underwood typed “Fade In”, writers have believed that they contributed the thing of most value. By value, some might argue creative value, but I’ll demur on that for the sake of this argument, and stipulate instead that writers contribute the thing of greatest economic potential.

Sorry. I did it again. Good writers contribute the thing of greatest economic potential. Put a good writer together with a good director, and you have the two people who contribute the lion’s share of what constitutes economic potential. Throw an actor on there, and you’ve got 99% of the economic potential.

Take that fact, add two cups of studio fear and mix in a quart of modern economic realities…and you get the thing artists in Hollywood have been clamoring for since The Great Train Robbery.

Ownership.

More to come….

Ed. Note: If you’re a member of the WGAw, you should have received a voting packet recently. One of the ballots is for the Board of Directors. The other is to ratify the appointment of David Young as Executive Director of the WGAw. I think you should vote NO on this, and I wrote a “con” statement in the booklet. In case you’ve chucked it in the trash, here’s why I think you should vote NO. Thanks for reading.

As a member of the Executive Search Committee as well as the Board of Directors, I have the difficult task of asking you to cast your “No” vote today and refrain from ratifying David J. Young as our Executive Director.

When faced with a ballot choice of “someone” or “no one,” “someone” usually seems like a better option. But understand that a “No” vote does not mean we will be left without leadership or an Executive Director. A “No” vote today will not impact the upcoming negotiations, which are so important to our economic survival. A “No” vote simply instructs the Board and the Search Committee to provide you with a better option.

I’m not here to bury David Young. David is a good man with an area of expertise. Yet, simply put, the Search Committee found a better candidate. I wish I could tell you everything I know about the other candidate, but the constraints of confidentiality prevent me from doing so. I can tell you this.

• The other candidate is an executive for one of the country’s most successful and powerful unions. David Young has never held that kind of responsibility prior to joining the WGA.

• The other candidate has decades of experience negotiating with a very powerful owners’ cartel similar to the networks and studios we negotiate with. David Young does not have experience negotiating collective bargaining agreements, much less under the unique circumstances we face every three years.

• The other candidate represents a union of highly talented, highly-paid employees whose interests intersect with the media, intellectual property law and profit sharing. David Young’s experience is with seamstresses, carpenters and plumbers whose employment issues are not similar to ours.

• The other candidate’s union was faced with a threat from a new, non-union work force (like we are with reality TV). The other candidate organized those non-union workers before they began day one on the job. David Young has not had that kind of success, and his last major organizing effort on behalf of seamstresses for Guess Jeans was a complete failure.

• The other candidate has solid labor roots that go back 30 years, with connections to the AFL-CIO. David Young does not.

For the last year, I’ve watched David Young carefully, and I’ve been modestly impressed. He’s risen to the challenge of being the interim Executive Director but not, in my mind, to being our permanent leader.

Indeed, there have been significant failures.

Despite the statement of one candidate in the last election that all reality writers would be under our jurisdiction by the start of 2006, we haven’t brought one single reality writer into our union. Under David’s leadership, hundreds of thousands of dollars have been spent on expensive miscues, such as employees that David has hired and then quickly fired, ineffective corporate campaigns like Subservient Donald and the Product Invasion website, and various guerilla tactics that have done little more than garner fleeting curiosity from the press. Our expenses are way up, and our income is down.

In short, David’s heart is in the right place, but his strategies for our union have been scattershot and ever-changing. We simply can’t afford that. The other candidate brings a track record of focus, achievement and vision, and the Search Committee’s impression of this candidate was unanimously positive.

I believe it is this other candidate, not David Young, who can strike fear into the hearts of the networks and studios. I believe it is this other candidate, not David Young, who can last beyond any one President or any one negotiation. I believe it is this other candidate, not David Young, who can bring our union into the 21st century.

I know that David is a popular choice among our current Guild politicians. They’ve worked with him, and frankly, they gave him this job. He’s “their guy.” But you’re not electing their guy today.

You’re electing our guy.

Vote “No.” David can still lead our Organizing Department, but we have superior choices for the top job, and there’s never been a more important time to be choosy.

We can do better than our last Executive Director, John McLean, and we can do better than David Young…a man that John McLean found and hired.

Vote “No” and give us the chance to bring you a candidate more worthy of your support.

Here we go…In September, my term and Ted Elliott’s term on the Board of Directors of the Writers Guild of America, west, will come to an end.

Neither of us are running for reelection.

A lot of people have asked me why. And to be honest, I haven’t been exactly sure what to tell them. On the one hand, it seems quite likely that 2006/2007 will be the busiest year I’ve yet had in this business, and I’ve had some busy ones. As such, I could say that I just don’t have the time to devote to the Board, and given that I already co-chair the Credits Review Committee, I feel like I’m doing enough.

But that wouldn’t be honest.

The truth is that even if I had all the time in the world, I still wouldn’t run again, because I differ wildly from the people currently running the Guild, I differ wildly from the staff currently running the Guild, and I think that the current leadership and staff are driving us in a very dangerous direction.

I don’t have the votes to stop them, nor am I convinced that having the votes would matter. There are serious and fundamental changes in the way decisions are being made at the Guild, from the granting of waivers to the formulation of policy to the negotiation of deals. I don’t like it, and I don’t think it’s going to change any time soon.

As a sitting Board member, I’ve been fairly reluctant to talk about these things while still serving, but my term is nearly up, and I think it’s time for me to get vocal.

The current leadership was swept into office about a year ago, running on a platform that suggested we no longer had to choose between “Strike Or Cave.” Their idea was that by appropriating blue-collar union strategies like corporate campaigns (essentially PR assaults on the companies you need to negotiate deals with), the studios and networks would give us a good deal if we’d just call the dogs off.

I thought this was a bit naive. First, the companies with whom we negotiate are the media. Second, while corporate campaigns detailing abuses like sweat shops can be effective, corporate campaigns attacking “product integration” aren’t going to capture anyone’s imagination.

I’ve never been against corporate campaigns in principle, although I don’t think the WGA has managed to launch an effective one yet. Much dues money has been spent on a product integration corporate campaign, the evidence of which can be seen here and here. These haven’t really caught on. At all. This is not surprising.

What is also not surprising is that the “we don’t have to choose between strike or cave” leadership took their first opportunity to strike. Right now, the writers at America’s Next Top Model are on strike.

I feel for all reality writers. I know reality writers—not merely professionally. For the last six years or so, I’ve been playing cards every week with reality writers. Blind Date, Fifth Wheel, Flavor of Love, Elimidate…these are the people I take money from at the poker table.

I’d like to give some money back. I want, I really want, these writers to get portable pensions, portable health care, reasonable working conditions, minimums and credit protection. So…how do we do that? Is this the way? Strike show by show?

Yup. Most likely. Sure, I get annoyed when I think back to the “we don’t have to strike!” motto, because the truth is that reality writers will have to strike to get a deal. No doubt in my mind.

What also annoys me is that for the last year, the WGA has been pursuing an entirely different strategy, in which all reality would be organized in one fell swoop. The guys who ran on the “no, do it show by show” strategy—like Ted—didn’t win.

And now…but hey. Better late than never.

Look, these guys running the show right now are good people (for the most part) with their hearts in the right places (for the most part) and are pretty smart (for the most part).

But they’re naive. In my humble opinion.

It’s possible that this latest gambit will work. It’s also just as possible that the companies, fearing that the guys in charge at the WGA either want a strike or don’t know how to avoid one, will never give us reality writers because it’s reality that will be their most effective hedge against us when we strike.

Ahem. If we strike.

In the coming weeks and months, I’m going to talk more about these issues, with increasing frankness. However, my criticism isn’t solely for the leadership. I must say that I’ve been deeply disappointed with the quality of the loyal opposition in the WGA over the past few years. Much of it has been either personal or paranoid.

I intend to be neither. I will say nothing here that I wouldn’t say on the phone or in the room with the men and women I’ve been serving with for the past year. Hell, they’ve probably heard most of it already from me. My intention is not to be a traitor or to give comfort to the enemy, but to hold our leadership accountable and be a gadfly in the best tradition.

Maybe I’ll make them better. Because we, including me, need them to be better.

So it is written…Among the various songs of doom we hear in Hollywood (the box office is over!, people hate movies!, we’re out of ideas!), the one that’s always managed to sneak past my cynicism and actually worry me is this one: “Video games will kill us all!”

Of course, they’re not going to destroy the movie business any more than television did. The gaming industry, however, is enormous in every sense of the word.

I’m a gamer. I’m not a hardcore gamer, but what I love, I love. When a new Splinter Cell game is released, I get it. That day. I own a GameCube, a PS2, an Xbox and an Xbox 360. I play sports games, platform games, puzzle games, racing games…hell, I’ll play anything.

Anything except those damned RPG’s. Role Playing Games. Dungeons and dragons crapola. Elves and clerics living in ridiculous fantasy worlds, picking locks on treasure chests and worst of all, constantly referring to each other by names that have absurd apostrophes.

“K’shanna! You have discovered the Sword of V’landroth!”

What is that? USE VOWELS!

Anyway, point being…I do not like those games. And thus, it was with great concern that I discovered that the highest rated game for the Xbox 360—by far—was an RPG.

It’s called The Elder Scrolls IV: Oblivion.

I bought it. I bought it against my better nature, against my better instincts and knowing full well that I would open myself to endless mockery from my wife.

Let me first say this.

Best

Game

EVAR.

Now let me get to the larger point.

This game was written. Of all the games I’ve played, this one was not only the most clearly written, it was the most dependent on its writing. And yet, the writers of the game are not credited as writers. They did not earn minimums for their work. They do not have credit protections. They do not receive residuals. Not one penny of residuals for one of the best-selling games of all time.

This is Wrong.

I’ll back up to explain why writing is so important to this game. Yes, you fight monsters. Yes, you run around in dungeons. And yes, godDAMMIT, people have those ridiculous names with the apostrophes. The structure of the game, however, works like this.

Your character walks around a very, very large region of land consisting of nine cities and scores of smaller hamlets. You meet literally hundreds of individual non-playing characters. A large number of them have individual stories to tell. These stories, into which you become embroiled, are quests. Some quests are small. Some are large. Some are fast, and some are multiparters. The quests begin to stack up like firewood, each with loads of dialogue. At one point, I had about thirty quests that I was involved in.

You’re like a hero-for-hire wandering through a collection of short stories, and in each short story, it’s up to you to find your way to resolution.

Some of the quests are obvious. You meet a man whose wife was killed by goblins. You kill the goblins to avenge her on his behalf, and he grants you a reward. Some are trickier. Should you choose to kill a character who hasn’t threatened you, you are visited in the night by a shadowy man who represents the Dark Brotherhood. He invites you to join the Brotherhood and become a killer for hire. This spools out into a dozen quests, one of which involves you attending a dinner party and convincing each of the guests to kill each other. You get caught up in adultery, politics, betrayal, religion, the bizarre whims of demigods…and in every instance, the action and the goals and the choices you make are entirely in service of story.

On top of that, there are hundreds of readable books in the game. Yes, a writer sat down and literally wrote books so that players could read them.

So…who is the writer of Oblivion?

As best as I can tell, it’s these guys.

Quest Design was done by Brian Chapin, Kurt Kuhlmann, Alan Nanes, Mark E. Nelson, Bruce Nesmith and Emil Pagliarulo.

Additional Design was done by Erik J. Caponi and Jon Paul Duvall.

Additional Writing was done by Ted Peterson and Michael Kirkbride.

I say “as best as I can tell” because that’s what scrolls by after a long list of guys who programmed the texture maps for the trees and stuff.

I want these guys to be treated like kings, because they did great work. What to do, though? Video game writing isn’t covered by the WGAw or ANY union, for that matter. It’s the wild west out there, and that’s the way the employers like it, even though familiar Hollywood names like Les Moonves are sitting on the Board of Directors of the company that produced Oblivion.

As union guys go, I’m an extreme pragmatist. I know that the video game industry will never be organized and under union jurisdiction the way Hollywood is, and that’s for one simple reason. A large majority of the work is done overseas or in Canada. Ubisoft, Square Enix, Nintendo, EA…good luck trying to convince the French, Japanese and Canadians that they should abide by U.S. labor law.

On the other hand, there are still games made here, and I think we ought to be organizing them. Oblivion is made here. It’s indisputably written. My goal to bring wage minimums, pension and health care, credits protections and profit participation to the video game industry pretty much starts with one single game.

I don’t know the entire title, but I have the first part.

The Elder Scrolls V.

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.

Don’t get fooled again…A few months back, I wrote about the prospective peace deal being hammered about between the Writers Guild of Amerca, west and the Writers Guild of America East.

At that time, I felt that the deal wasn’t a bad one because at the very least, we’d finally get the WGAE to improve their membership standards, which are basically non-existent.

Here’s what’s happened since.

The membership standards thing never came to pass.

And even worse, new language was thrown in that now means that credit arbitrations involving WGAE writers can be administered by the WGAE. The problem with that?

Well, if you’re a first writer or a spec writer, you should know that the WGAE is slanted towards rewriters. Far more disconcerting however, is that they do not have a real Credits Department. They don’t have the staff, the don’t have the lawyers, they don’t have the experience.

Credits arbitration is extremely time-consuming, difficult, potentially litigious and always stressful. Our credits staff, which is nearly the size of the entire staff of the WGAE, barely keeps their heads above water…and now we’re going to outsource credit arbitrations to an organization with little to no experience or resources?

Folks, I believe in finding and making a good deal with the WGAE. I want peace. I just don’t want bad peace. This agreement was rushed to meet artificial deadlines. Important rights, like the right of any WGAw or WGAE member to choose the union to which they’d like to belong are scheduled for outright elimination.

It’s bad. Bad, bad, bad. Do NOT vote for this thing.

If you are a member in good standing of the WGAw and you’d like to support my efforts to defeat this very flawed scheme, consider lending your name to a statement written by a former Board member against the proposals. Here is the text. If you want to support it, simply email Barbara Ditlow at the WGAw and say, “I wish to add my name in support to Tim O’Donnell’s statement against the proposed changes to our constitution.”

You have until Wednesday to get your emails in. If you know other WGAw members, please alert them as well. If these poorly thought-out changes are approved, we are in for some very rough days.

Like this, but less evilIt is better to light a candle than to curse the darkness. Brothers and sisters, we writers are living in the darkness, and all I hear around me is cursing. The companies that employ us change the rules, they slip through loopholes, they invent new definitions and theories and business plans, and we’re constantly running after them, wondering why we’re always behind.

We have two real weapons. The first weapon is unity.

We’re not so good at that. I’ll talk about unity some other time, maybe after I pop a Xanax or something.

The second weapon is knowledge.

We’re awful at that. Every deal we make, every contract we sign, every bit of business we do as WGA members is governed by a master contract. The Minimum Basic Agreement. We can always do better than the MBA, but we can never do worse. It holds the keys to our minimum salaries, our residuals, our credits. It is the DMZ between us and the companies. It’s the battlefield where we wedge our way towards victory or get clobbered in defeat.

It is, in its enormous totality, the evidence of our struggles and our collective history.

And none of you have ever read it.

When I ran for the Board of the WGAw a year or so back, one of my campaign promises was to do what I could to help educate our membership, and one of the ways in which I promised to do that was to publish the MBA online. Traditionally, the MBA was available only by calling the Guild and having them mail you the book.

Yes, it’s a book.

The problem wasn’t one of mere reluctance. Typical of a monopolistic bureaucracy, the word processor files for the MBA were archaic and weird and not even pdf-able without a lot of work.

However, the DGA had managed to get their contract online, as had SAG. And so, with much pushing and forcefulness and nudging, I finally made good on my promise.

The 2004 WGA MBA is online, available to anyone. Because of its size, it’s been split into a few pdf files. The good news is that each file is searchable.

This seems as good a time as any to recommend the excellent PDF Plugin for Mac OS X. It allows easy viewing of pdf files right in your browser.

The MBA is enormous, and it’s a legal document, so it can be confusing and bewildering and, well, boring. There are some spots, however, well worth peeking at.

Article 1 contains the definitions that govern the document that, in turn, governs us. Learn who meets the definition of “writer,” for instance.

Articles 6 and 7 describe how the WGA and the AMPTP companies create the exclusive relationship between us, and under what conditions we can strike and under what conditions they can lock us out.

Article 9 explains how you can’t do worse than the MBA terms, but you’re always free to do better.

Article 13 lays out what “scale” is for every kind of job writers can do. If you’re wondering what you’re supposed to get paid, this is the mother lode.

Article 16 is the complete and definitive version of my skinny on separated rights.

Article 48 contains the slowly-advancing “creative rights” that we have made over the years, and should give you a sense of what we’ve been able to achieve…and what we haven’t.

If you don’t read anything else, read Article 51. Entitled “Supplemental Markets,” Article 51 is ground zero of our residuals battles. It defines residuals, it delineates the various formulae that govern them, and it contains the odious clause that, in 1985, slashed our residuals down to a fifth of their size. That little clause caused not one, but two strikes.

It may yet cause another. Read the Article. Educate yourselves.

If you only want to read two things, then after you’re done with Article 51, read Theatrical Schedule A. Boy, that sounds sexy, huh? Theatrical Schedule A is the basis of all of our credits guidelines for feature films. Within Theatrical Schedule A, you will find definitions of screenplay, story, literary material, and practically everything else you’d ever want to know about how and why our credits work (or fail to work) they way they do.

Okay, one last one. It’s an easy one.

As the MBA gets renegotiated, it’s often easier to create “side letters” that amend the main contract, rather than go into the main contract and start rewriting.

There is one extremely important side letter in the 2004 MBA, and I believe it will be this single three page document that will rest at the heart of not only our negotiations with the AMPTP, but SAG’s and the DGA’s as well.

You can find it on page 563. It’s very short. What it says of particular relevance is:

Where the subscriber pays for the program either on a subscription or per-picture basis, and where the payment is in exchange for the right to view the motion picture for a fixed and limited period of time or a fixed number of exhibitions, the Company shall pay to the credited writer an aggregate sum equal to one and two-tenths percent (1.2%) of the license fee paid by the licensee for the right to exhibit such picture on the Internet.

This sideletter gives us 1.2% of 100% of the companies’ gross on internet rentals, versus our formula of 1.5/1.8% of 20% of the companies’ gross on DVD sales and rentals.

The battle will center around internet sales. We believe we are legally entitled to sales by our definition. They do not. And so it goes.

There’s a larger point here, of course.

I know this stuff isn’t fun. I know it’s homework.

Do it anyway. Don’t rely on your elected leaders to do it for you. They’re just writers like you, and in my experience as a member of the Board, most of them aren’t particularly well-versed in the MBA either. Educate yourselves. Be smart. You’re going to be asked to make decisions soon that will affect your livelihoods in serious ways.

The only bad choice will be an uninformed one.

I was going to wait a bit longer before rolling out part deux, but we’re in danger of having the comments discussion duplicate some of the content of the original exchange, so I’m shrinking the window. I should add for casual readers of this site that the comments section for the first installment of this debate is about the best we’ve ever had, and should be considered as useful to read as these posts themselves.

Okay, on with the final chapter…

---

MAZIN: Josh, I think you’ve fallen prey to the whole “misunderstand Craig” thing.

Like you, I’ve compiled my list of dealbreakers, and while “a film by” isn’t one of them because I personally think the credit is so moronic as to have no impact whatsoever, there are other things upon which I insist.

It is also my great and pressing desire to see that a number of “best practices” become standard practices for all writers, and I hope to swing a very heavy bat on behalf of us all. I want a writer’s trailer on every set. I want writers at every test screening.

However, I approach this knowing full well that the one thing the WGA nor I can ever possibily legislate is good feelings.

By the by, wanting to advance the creative rights of writers and believing that writers can be a whiny and selfish lot are not mutually exclusive positions. I personally think writers can be whiny and selfish but no more so than directors, so I don’t really factor it into my personal equations.

So let me flip this around to you, because I think this is an important discussion, and because I think you and I actually have the same basic goals in mind.

How do we legislate better treatment? You and I both know that sometimes writers simply do not get along with producers or directors. Unlike a television show, there is only one “episode” in theatrical. When “they” have decided that they don’t need more from us, then what can we meaningfully do to reinsert the writer into the process as a welcome participant?

One of the things that frustrates me is that certain creative gains become distasteful chores for all parties involved when there isn’t a true partnership. The writer insists that he receive his contractually obligated screening. The director doesn’t show up. The producer sends an assistant to take the notes from the writer and toss them the second we’re gone.

All entirely legal and to the letter of the creative rights.

One of the things that I hope to accomplish in the near future is figuring out how to structure creative rights so that the companies can’t violate the spirit of them unless they feel they have cause. In other words, let’s stop pretending that there aren’t problems. There are. If there are, maybe there’s a grievance system where the WGA can help get the writer in a room with someone who actually cares what they think.

Anyway, that’s how I think. Coming up with wish lists is the easy part; figuring out how to make it all stick and be impactful in a real way is the challenge.

---

OLSON: Craig wrote:

Like you, I’ve compiled my list of dealbreakers, and while “a film by” isn’t one of them because I personally think the credit is so moronic as to have no impact whatsoever, there are other things upon which I insist.

Again, fine for you in your personal dealings. But as an official rep for working writers, it’s a fight you need to take seriously. Look at it this way - you want to use my posts on your web page, but you want to cut out any profanity or insults because you object to them for some reason. On a web page which is read by - what? I have no idea how many people, but far less than see any movie. “A film by” is an insult. It’s profanity. And it’s seen by far more people than read your web page.

And here’s the thing - whereas saying “!%%?” on your web page has no impact whatsoever on anything of import, the use of “A film by” continues to eat away at respect for writers, which, in turn, affects our ability to ply our trade.

I’m sorry you think it’s moronic and meaningless. I’d wager if you ever write something that’s of real lasting importance to you, in which you’ve poured a great deal of personal conviction, care and passion and told a story that is deeply personal to yourself, then had someone else cavalierly claim authorship because this system allows - hell, encourages - them to, my guess is you might not feel the same way. I could be wrong, but my sense is that you get how systemically diminishing the importance of writers affects our ability to do our jobs and to be effectively and fairly compensated for it.

I apologize for not being as up on these things as I should - I didn’t know until I read JL’s post why you were the beneficiary of such largesse on your last movie.

(Craig’s Note: Josh is referring to a post by another writer who stated that I have a uniquely positive relationship with a studio head, and this needs to be taken into consideration when evaluating my opinions.)

Good for you. That must be lovely. But I cannot imagine you are so blinkered you believe that your experience is in any way reflective of most screenwriters’ experiences.

You also need to understand that you got those perks because you managed to ingratiate yourself on the right person by being easy going and pleasant to work with. None of those things are standard issue in this system… for writers. On the other hand, the world is full of directors who get every single one of those perks and don’t have to be pleasant, easy to get along with, or good friends with the cat who runs the studio.

The film by credit matters, and it’s a tremendously important issue. The film by credit matters because the more a lie is repeated, the more people believe it. You and I recently had a discussion about your feelings for the President. It ended when you finally acknowledged that he hadn’t actually achieved anything that you could point to unequivocally and say, “Yes. That is good.” What he HAS done is talk a good game. I’ve been amazed over the last five years how this creepy, frightened looking little man has been able to simply come on TV and describe himself as steely eyed, tough and determined, and people buy into it, even though it’s crystal clear to anyone watching that he is none of those things. The film by credit is the same thing. It is a lie that’s repeated so often, many people believe it. And guess what? SOME OF THOSE PEOPLE PAY US.

It matters. It matters a hell of a lot.

The fact that Bob Weinstein treats you like a pasha has exactly zero bearing on any of this, and you need to know that the implication of your posts on the matter is that rather than complaining or pressing for change, we should all do our best to ingratiate ourselves on Bob Weinstein.

You take every opportunity you can to complain about writers, to put them down and to characterize them as whiners and complainers and babies. That’s fine if you’re just one more of us schmucks, but as our representative at the bargaining table? It ain’t right, man. You need to step outside your personal experiences and look around a bit.

---

MAZIN: JL, while lovely and well-meaning and a friend and colleague of mine, is wrong. My relationship with Bob is highly unusual, but it is largely a post facto product of how I worked and what I did on Scary Movie 3. Just about every bit of nice treatment I received on that movie was received prior to my pashahood.

You’ve got me wrong on the “film by” credit. I hate the “film by” credit. I think it is immoral and evil. When I directed, I was offered the credit, and I turned it down. I will direct again, and I will never take the credit.

However, it is a petty evil. More to the point, I don’t think anyone in the audience gives a damn. They’re more concerned about whether the theater has Junior Mints. Therefore, when I approach projects, I put that credit much lower on my hierarchy of stuff to worry about, because there are many other things that affect me personally and in more impactful ways.

I work with David Zucker. He doesn’t take the credit. I work with Todd Phillips. He does. That factor is pretty damn minor compared to a hundred other factors that make me want to work with them both again.

I will remind you that I did not make that admission about the President, and I reiterated that I didn’t make it, and until Uday and Qusay are brought back to life and Saddam Hussein is returned to power, I will never make it.

The fact is, Josh, that I do and have expended serious energy pushing for change. Actually doing it, Josh, turns out to be more difficult than writing about doing it. I invite you to join the actual non-virtual fight, which involves sitting in a room with CEO’s and DGA officials and anyone else we have a beef with and actually getting what you want.

Unfortunately, you have to strip away all of the armor you’ve collected and earned over the years, including the shiny new Oscar thingy, because when you’re collectively bargaining, you are a scale writer.

I’ll say again that I do NOT characterize “writers” as whiners and babies, although some writers factually are whiners and babies. Some are flat out insane. So what? I work and worry about the ones who aren’t.

Now, even after all of that, MG is actually hoping to hell that I continue to be his representative.

(Craig’s Note: I’m referring here to another poster who expressed concern when I mentioned I would not be running for a second term on the Board of Directors of the WGAw.)

Maybe MG knows a little more about what I actually do for writers than you do, Josh. Maybe MG knows that fourteen tons of your rhetoric have done less for him than the Stockholm Syndrome pasha bootlick has.

Maybe MG knows that you have no idea what I’m really like as a person, nor do you know how I go about the business of spending time and energy advocating for ALL members with our union and the companies.

Or maybe not. Maybe fourteen tons of your rhetoric just about equals what I do. I don’t care.

Either way, I don’t plan on running again. Due to recent developments in our union, there are certain things I can only do if I’m not on the Board…and I want to do them if they become necessary.

---

OLSON: Craig wrote:

However, it is a petty evil. More to the point, I don’t think anyone in the audience gives two flying fucks.

Um…. You realize that that’s a complete and total non-sequitur, right? It’s like saying segregation was a non-issue because people living in the Ukraine didn’t give two flying fucks about seperate water fountains in Mississippi. This has nothing to do with the audience. This has to do with how directors and writers are perceived by the people who write the checks and dole out the cookies. Not eveything is about the audience, Craig. I’m the last guy in the world to argue that they should give a damn about any of this.

The fact is, Josh, that I do and have expended serious energy pushing for change. Actually doing it, Josh, turns out to be more difficult than writing about doing it.

I’m quite certain.

I invite you to join the actual non-virtual fight, which involves sitting in a room with CEO’s and DGA officials and anyone else we have a beef with and actually getting what you want.

And some day I may do that. Right now, though, you’ll forgive me if I see communicating my concerns with my Guild reps as joining the fight.

I’ll say again that I do NOT characterize “writers” as whiners and babies, although some writers factually are whiners and babies. Some are flat out insane. So what? I work and worry about the ones who aren’t.

Craig, let me step back a bit, because I can come across pretty contentious, and I am a Huey Newton type when it comes to writers rights. I do not mean this as a cavalier smack or an angry response, and you’ve done a good job so far of not taking my comments as insults. I’ve read your posts for quite some time, and most of the time, when you’re discussing writers and their concerns, you’re dismissing them in a fairly insulting manner.

You routinely focus on the negative aspects of some writers, and use those to justify various and sundry mis-treatment of all writers. I cannot recall the last time I saw you be as dismissive of directors, studio execs or producers as you are of writers. You very much seem to have an axe to grind, whether you’re complaining about how pretentious we are, or how whiny we are, or how ignorant we are of reality. I never see you talk that way about anyone else. All of that - wherever it comes from (And your post about why writers don’t hang out with other writers was extremely telling, and extremely inaccurate in my fairly vast experience) HAS to factor into your attitude about the people you represent, and THAT is what worries me. If the guy sitting at the table who’s supposed to carry my water harbors an innate hostility towards me and my concerns, that’s troubling. And anyone who reads your posts couldn’t possibly come to any other conclusion.

I’m sorry you don’t like hanging out with other writers. I’m sorry you think proper attribution of credit is irrelevant. I’m sorry you think anyone why shoots higher than just pleasing the largest audience possible is pretentious. And if none of those actually applies to you, rather than telling me how untrue those characterizations are, why not ask why it is that so many people read that so clearly in what you write here?

Watch Straw Dogs some time if you haven’t lately (or ever.) Peckinpah was trying to say things about the nature of relationships, and of men, but what really comes through the clearest and the loudest is his tremendously screwed up view of women. Not intentional, not conscious, but it’s there, clear and bright as day.

---

MAZIN: Josh wrote:

[The “film by credit”] has nothing to do with the audience. This has to do with how directors and writers are perceived by the people who write the checks and dole out the cookies.

Uh huh. Okay. Well, I’ll take your point, and pose a question. How will legislating against the “film by” credit change the way we are perceived by the people who write the checks and dole out the cookies? (Hint: history has proven that the companies already agree with us that the credit is stupid, so there’s no influence or standing to actually gain. It’s also proven that they don’t want the DGA to go on strike over this stupid credit, which is what happened the last time the companies agreed with the WGA and tried to kill it.)

That aside, I can safely say that you and I have the same interest in mind. We want the cookie dolers to look at writers more respectfully and considerately than they currently do.

Right now, though, you’ll forgive me if I see communicating my concerns with my Guild reps as joining the fight.

Okay, fair enough. I deserve that.

I’ve read your posts for quite some time, and most of the time, when you’re discussing writers and their concerns, you’re dismissing them in a fairly insulting manner.

You routinely focus on the negative aspects of some writers, and use those to justify various and sundry mis-treatment of all writers. I cannot recall the last time I saw you be as dismissive of directors, studio execs or producers as you are of writers. You very much seem to have an axe to grind, whether you’re complaining about how pretentious we are, or how whiny we are, or how ignorant we are of reality. I never see you talk that way about anyone else.

Right. Well, I dispute your initial statement, because most of the time when I’m discussing writers and their concerns, I’m doing it in a very boring and legalistic way, because that’s often the only kind of language that actually facilitates change with the companies.

Furthermore, I do not believe I have ever justified mistreatment of writers as a group. Some individual writers reap what they sew. That’s just a fact. After all, we’re humans. Some of us are no good.

You do make an excellent point, though, when you note that I reserve the bulk of my criticism for writers, and not for the “others”.

Here’s why.

I’m talking amongst colleagues, and I’m urging us, a group with which I identify and to which I belong, to CHANGE.

I can’t urge producers and directors to change. They are Others. They’re on the opposite side of the table (most of the time). I’ll approach those guys with a smile on my face and a knife in my hand and get as much as I can possibly get for me, for you, for all of us.

But how do I approach me and you and all of us? How do I talk to la famiglia? Honesty and forthrightness. We will never get stronger if we don’t stop talking about our weakness. Crying won’t help ya, prayin’ won’t do ya no good.

Chalk it up to tough love. What’s the point of urging producers to be fairer or more considerate or more respectful? Please. Like they care about those things? They’re not in that business. Producers must be negotiated with. They must be convinced, wheedled, cajoled, and ultimately, they must be overcome.

Writers? I just want us to grow up. I think we can do better. I’d rather be the jerk who holds up a mirror than the demagogue patting people on the back. I think frank and self-critical examination is healthy and valuable, just as I think humoring and agreeing and rah-rahing and pity parties and soft saline-absorbent shoulders are unproductive and generate complacency and self-denial.

If the guy sitting at the table who’s supposed to carry my water harbors an innate hostility towards me and my concerns, that’s troubling. And anyone who reads your posts couldn’t possibly come to any other conclusion.

I don’t harbor an innate hostility to you and your concerns. I disagree with some of your positions, but overall, I’d say we’re actually on the same page.

This “only possible conclusion” line is so you, Josh. Yes. That’s right. No other conclusion but yours is even possible.

I’m sorry you don’t like hanging out with other writers.

My article clearly said the opposite. In fact, I specifically talked about the kind of writers I like having relationships with. It’s just that I tend to not do it in person as much as via telephone and email. I’m basically an introvert. Sorry.

I’m sorry you think proper attribution of credit is irrelevant.

Anyone who even has passing knowledge of me and what I care about knows how ignorant that comment is. Go read my articles on credits. Or consider that I’m currently co-chairing the Screen Credits Review Committee. I’m obsessed with the proper attribution of credits.

The difference between us is that I’m more obsessed with the ones I know I have a prayer of improving. Even if you put aside all other issues, the demographics of our own membership make fighting the possessory credit a waste of time. We would have to strike to get it. There are a lot more TV writers than screenwriters. They’re not striking over this. Anyone who tells you that the WGA will ever be successful in forcing out the “film by” credit is blowing smoke up your ass.

I’m sorry you think anyone why shoots higher than just pleasing the largest audience possible is pretentious.

I don’t think that, I’ve never said or written that, and I have said and written to the contrary.

And if none of those actually applies to you, rather than telling me how untrue those characterizations are, why not ask why it is that so many people read that so clearly in what you write here?

Too late on not telling you how untrue they are. Besides, I enjoy defending my own honor. Still, you pose another good question. Here are some possible reasons “people” (whomever they may be) misinterpret what I write in such a gross manner.

1. I’m a bad writer.
2. People are sloppy readers.
3. I’m hitting a nerve, and I’m getting a defensive response.

It’s probably a combination of all three. I turn this exchange back to you for the final salvo.

---

OLSON: Craig wrote:

How will legislating against the “film by” credit change the way we are perceived by the people who write the checks and dole out the cookies? (Hint: history has proven that the companies already agree with us that the credit is stupid, so there’s no influence or standing to actually gain. It’s also proven that they don’t want the DGA to go on strike over this stupid credit, which is what happened the last time the companies agreed with the WGA and tried to kill it.)

First of all, I’ve already discussed this, and second of all, history has proven no such thing. And as I touched on in the last post, the “film by” credit has already been legislated against us. If it helps your conservative soul live with it more, don’t think of it as creating new legislation… think of it as eradicating old legislation. Happy now?

I can’t urge producers and directors to change.

Um….. That’s sort of your job.

How do I talk to la famiglia? Honesty and forthrightness.

If you want to stick with the mafia analogy, you don’t do that in front of strangers.

Chalk it up to tough love.

Which I’ve always perceived as the first resort of the black-hearted. Sorry.

I’d rather be the jerk who holds up a mirror than the demagogue patting people on the back.

Again, I have no issue with that. None. As long as you’re just one of us, even if I disagree with your points, I respect your right to feel differently. But when you’re our rep, no. It doesn’t wash. As our rep, it’s not your job to tell us what’s wrong with us. It’s your job to fight for us, and not weaken our position with the folks across the table.

---

And so ends the debate. I look forward to keeping this ball rolling for a while with Josh and the rest of you in the comments section.

In a previous post, I wrote about how I like to foster relationships with writers who are better than I. I suppose I should have qualified that to say I like to fostering good relationships with those writers, but I’ll take contentious over nothing.

Enter Josh Olson, currently nominated for an Oscar for his outstanding work writing A History Of Violence.

Josh and I have tangled before in the political debate forum at WriterAction, a BBS for WGA members only. Recently, though, we had a debate about a very important and personal topic for both of us. The exchange covered a lot of ground, but it largely centered around our differing philosophies of how professional film writers ought to view the relationships between each other and their employers, how union representatives ought to behave, and above all, what attitude is ultimately the most productive one if your self-professed goal is to improve the professional lives of screenwriters.

The whole thing was pretty much kicked off by another individual who stated (and I paraphrase) that everyone in Hollywood pretty much owes their jobs to writers, as we provide the genesis for the process that employs everyone.

I argued that we need everyone else as much as they need us, because without people to produce our screenplays, our screenplays are unsellable. No us, no them. No them, no us.

I now present Part One of the great debate. The posts are edited only for the occasional obscenity (as we do have young readers) and in places where other individuals’ posts were referenced.

Thanks to the administrators of WriterAction for granting their permission to reprint these posts.


MAZIN: (in response to another person’s comment) I agree that our task is either as difficult as or MORE difficult than practically any job done on or for a movie. And I agree that if a writer is scorned, there’s a fair chance it’s because that writer is an a-hole. Saying things like, “You wouldn’t have a job if it weren’t for me” is consistent with that aforementioned scorn-generating quality.

---

OLSON:

And I agree that if a writer is scorned, there’s a fair chance it’s because that writer is an a-hole.”

No offense, but if you really believe that, you’ve either had a truly blessed experience in this business, or you’ve never actually worked in it.

---

MAZIN: Clearly, I’ve worked. Perhaps my experience is blessed. I don’t know. I work and play well with others in my sandbox. I’ve been treated poorly a few times, but mostly treated with respect and decency. I have watched writers be assholes and get treated poorly. But there’s no hard and fast rule.

---

OLSON: I’ll put my rep as a pleasant, decent, nice and easy guy to work with up against anyone here, Craig. Anyone. And while I have watched writers be a-holes and treated poorly, I’ve also worked in a system for almost two decades that by its very design treats writers badly as a matter of course. That you’ve managed to work in the business for almost ten years and not see that speaks to an amazing streak of luck that I’m sure everyone here finds enviable. But you need to know you’re an amazing exception.

Or it could just be that your bar is pretty low. To most of us, the writer is one of the most essential and important people in the process, deserving of just as much respect and recognition as the cast and the director. If you don’t buy into that, I suppose it would be possible to work here and not get the general frustration most writers feel at their treatment.

---

MAZIN: Yes, it may be that my bar is low, and it may be luck. Or maybe I just do things differently. Maybe people just want to love me because I’m so squeezable. I don’t know.

I’ll reiterate, though, that I have been treated poorly at times. And I get the frustration, because I’ve felt it. I do try and not dwell on the frustration, but simply steer around a-holes who frustrate me.

---

OLSON: Craig, please don’t take this personally, or as an insult or an attack. It is an observation, and one that is shared by many people who are familiar with your posts here and on your own web page - and I’m talking lots of people, including some of the biggest writers in this business…. when I read your posts on the treatment of writers, the complaints of writers, and issues related to the treatment of writers, the phrase that often comes to mind is “The Stockholm Syndrome.”

Dismiss that with a joke, by all means, but to many of us, this is our bread and butter, and a monumentally serious concern.

---

MAZIN: I can’t take your comment personally, but I can’t be removed from it via humor…so…I guess I’ll look at it from a purely intellectual point of view.

Some of the biggest writers in the business disagree with me, which I think is to be expected. Some of the biggest writers in the business agree with me, which I think is to be expected.

I am, after all, controversial. That’s not a point of pride…because I’m definitely not taking this personally. It’s just true. I hold some opinions that are controversial.

The implication of the Stockholm Syndrome is:

1. That a writer’s natural state is that of a victim/hostage
2. A writer who does not view his employers as hostage takers or abusers only fails to view them this way because their abuse has psychologically damaged them.

I dispute that our natural state is that of a victim or hostage, although it’s clear to me that many writers feel like victims and hostages. I’m not denying those feelings. I’m saying that our feeling-state of victimhood is not consistent with the reality of the actual status power we can wield if we just view ourselves as film-making partners.

Therefore, while I can never prove that I’m not insane or warped or servile or abused, it is my contention that I am not abused.

On my last movie, I was paid well. I was treated well by the director, the producer, and the head of the studio. I was meaningfully consulted on all aspects of pre-production, production and post-production. My name was on the call sheet. I had a trailer on the set. I had a seat at video village. I gave notes on all cuts of the movie. I was present at all test-screenings of the movie. I was meaningfully consulted on all aspects of the marketing of the film.

Prior to the production of that film, I had no hit movies to my name. No Oscar nominations either.

So…am I a victim dreaming that he is a film-making partner, or are you a film-making partner dreaming that you are a victim?

I’ve already acknowledged that victims and crimes DO exist. They happen often, in fact. Nonetheless, I will not spout feel-goodisms in order to buck us all up in a mutually satisfying Oprah moment of communal victimhood worship.

Writers are professional entrepreneurial adults. Professional entrepreneurial adults are responsible for their fates.

Here’s the message that “some of the biggest writers in the business” have given me.

“Your website would be better if you stopped coddling writers and just told them to stop acting like babies all the time.”

I don’t do that, because I don’t think writers are babies all the time, but you’re kidding yourself if you think I’m some special Quisling case.

There’s plenty of people who think like me, and there are plenty who are far harsher in their view.

Believe it or not, fellow bread and butter eater…this is MY monumentally serious concern. Writers will always be externally limited. We don’t have to be internally limited as well.

---

OLSON:

I’ve already acknowledged that victims and crimes DO exist. They happen often, in fact. Nonetheless, I will not spout feel-goodisms in order to buck us all up in a mutually satisfying Oprah moment of communal victimhood worship.

Writers are professional entrepreneurial adults. Professional entrepreneurial adults are responsible for their fates.

Indeed. I bust my ass to make sure I don’t screwed on deals. Before I was in the Guild, I was almost always paid well above Guild minimum, and made a point of standing firm on issues that many writers don’t, sometimes at the risk of losing a job. My agent is psyching himself up for the fact that on future projects, for instance, I’m making it a deal breaker that if I’m the sole writer, nobody can take a “film by” credit, and I’m considering taking a similar position on audio commentary tracks. I wish I could have taken those positions when I first broke in, but I simply could not. There’s a certain amount of clout that comes from my current position, and I intend to maximize that.

I’ve always been this way - I’ve always done my own work, fought my own fights, and because I’ve been around a decent amount of time, and because I’ve worked all sides of the fence, I’m a little more capable at some of this than some people. And if you and I are two writers just shooting the shit, and you say you don’t care about those things in your deals, I say, Go with God, my son. But if you’re a representative of my union, I say you damn well better care about those things, because suddenly your attitudes about these things affects MY livelihood.

I do those things because I can, but you know what? I shouldn’t have to. Those things ought to be a given in ANY writer’s deal, because I’d much rather spend my time writing and playing goddam video games than ensuring that I don’t get screwed by a system that is designed to treat me like an interchangable cog in the wheel.

Because in the end, Craig, it’s not about whether or not you or I have worked with producers or directors who personally treat us well or badly. It’s about whether or not we work in a system that is designed to degrade our input.

There’s plenty of people who think like me, and there are plenty who are far harsher in their view.

If they’re on the board of directors of my guild, I’d love to know their names, because while they might be representing someone when they’re sitting at the negotiating table, it ain’t writers.

---

That concludes this first chapter of the debate. I’ll be back in a few days to bring you the next installment. In the meantime, feel free to continue the debate amongst yourselves. Josh has graciously agreed to let me publish this exchange here, so I ask the home-team crowd to be as respectful of him as you would of me.

Adaptation?A: That’s a bit complicated for a quick answer.

But you’d think it would be easy, no?

I’ll start with what I think are the Academy rules, based on what the name of “Best Adapted Screenplay” used to be up until a few years ago. For a long time it was “Best Screenplay Based On Material Previously Produced Or Published”, and that pretty much says it all, right?

The Academy has an executive writers committee that meets to determine whether or not they feel a particular screenplay is an adapation. The WGA has far more rigid rules. It isn’t only concerned with prior publication or production. It is also concerned with unpublished and unproduced material of other natures that fall under the larger rubric of “source material”.

The WGA definition of an original screenplay is:

Original screenplays [are] those screenplays which are not based on source material and on which the first writer writes a screenplay without there being any other intervening literary material by another writer pertaining to the project. If a writer is furnished or uses research material, the screenplay is still considered an original screenplay.

Translation: no source material (discounting research material) and no other writer in between the start and completion of your draft. If that happens, it’s an original project.

Obviously, adaptations are therefore screenplays that are based, in any part, on source material. And what is source material?

…source material is material assigned to the writer which was previously published or exploited and upon which the writer’s work is to be based (e.g., a novel, a produced play or series of published articles), or any other material written outside of the Guild’s jurisdiction (e.g., literary material purchased from a non-professional writer). Illustrative examples of source material credits are: “From a Play by”, “From a Novel by”, “Based upon a Story by”, “From a series of articles by”, “Based upon a Screenplay by” or other appropriate wording indicating the form in which such source material is acquired. Research material is not considered source material.

Let’s go through that. First, there’s the obvious: published or exploited books, plays, essays, comics, etc. Interestingly, you can also include exploited story treatments by writers other than the first screenwriter. For instance, if John sells a treatment to a studio, and then George is hired to write the screenplay based on that treatment, the project is an adaptation because George has been given exploited literary material upon which to base his script.

Then, there’s the not-so-obvious. Let’s say John writes an original screenplay for a non-signatory company, i.e. a company whose dealings with writers isn’t covered by the WGA’s collective bargaining agreements, and then that company sells John’s script to a signatory studio like Disney. Disney then hires Sally to rewrite the script. If John had written that exact same script for a signatory, the project would be deemed an original. Since he wrote it for a non-sig, however, his script is considered source material, and John is not eligible for “story by” or “screenplay by” credit. The project is now considered an adaptation, with John’s screenplay functioning the way a book or play might.

That’s the one area where I imagine that the WGA and AMPAS might see things differently. From the WGA’s point of view, they must consider the non-sig script to be source material, because its ability to assign screenplay credit is entirely a function of its collective bargaining agreement, and the non-sig script doesn’t fall under that.

AMPAS, however, seems to be only concerned with what is, in actuality, an original or adaptation. In the example above, I think that the WGA would call John’s project an adapation, and AMPAS would call it an original.

This probably doesn’t come up too often.

The questioner specifically asked about Syriana, which AMPAS has apparently determined is an original rather than an adaptation. The WGA considers Syriana to be an adapation, because the screenplay was based (in some part) on a book. I believe the source material credit was “suggested by”, and that’s enough to make the script an adaptation. However, it appears the AMPAS writers committee felt that the script simply didn’t get enough of significance from the book, and thus they have deemed it an original screenplay.

A: It depends where you are when you write.

The Artful Writer is visited most frequently by Americans, but we do get a fairly good-sized international readership as well. There are lots of you from Canada, The Netherlands, Australia, Great Britain, New Zealand, Finland, Hong Kong…

…well, you’re pretty much from everywhere. Even Latvia.

Many of you have a similar question: if you sell a screenplay to a WGA signatory company, must you join the Guild? Embarrassingly, I’ve gotten the answer to this one wrong in a number of ways, and I’ve spread a bit of bad info in the past, so this post will hopefully set the record straight.

The determining factor when it comes to non-U.S. citizens is location.

The WGA is mostly concerned with jurisdiction, rather than prior membership or national citizenship. Regardless of what your passport says, if you perform the majority of writing services for a signatory while you are in the United States, then you must join the WGA if you’re not already a member, and the work is covered under our Minimum Basic Agreement.

However, if you live in the UK, you may work for a signatory to the WGA without the work being covered under our agreement. The WGA cannot compel you to join or compel the company to abide by the WGA’s collective bargaining agreement. However, you can negotiate to be treated as if you were under WGA jurisdiction! In other words, you can live in England, write a movie for Paramount Pictures from your home in London, and still get residuals and credit protection…but only if you get Paramount to agree to that deal.

If you hop on a jet and fly to New York, hole yourself up in a hotel and write the movie from midtown, then Paramount has to abide by the terms of the MBA.

The one final point to consider is that WGA membership isn’t really something you ever have to worry about choosing. If you meet the terms of membership through the appropriate amount of actual covered work, the WGA compels your membership. If you don’t, then you can’t join anyway.

For those of you writing outside of the United States, if you do sell or option literary material to any company that is a signatory to the WGA, try and negotiate yourself as if terms. The work won’t be officially covered by our MBA, but it’s well worth trying to get some of the goodies that those of us doing covered work get automatically. The company can certainly say “no”, but since they give those terms to thousands of other writers in the U.S. as a matter of course, you may find that they might be willing to bend a little…and give them to you too.

Ed. Note: This is a reprint of a an article published earlier this year. I’ll be back with a brand new post on January 1st or 2nd. Hope you’ve all had a nice holiday break.

Most WGA screenwriters are very aware that we do not retain copyright on our scripts. When we sell them to the companies, we do so on a work for hire basis. What that means is that we agree to provide our literary material to the company as an employee, and the company becomes the legal author of the script.

Many WGA screenwriters feel that this transfer of copyright is the source of any perceived or real weakness of our stature in Hollywood, and in fact, if we retained copyright, the “gun” would be pointing the other way, so to speak. We’d be in the driver’s seat, we’d be in creative control, our scripts wouldn’t be rewritten and mangled, and we wouldn’t be fired or ignored at will.

This is not true. In fact, not only is it not true, but if we retained copyright, we would actually be worse off.


The Way It Is Without Copyright

First, let’s lay out the realities that exist now under our current system. We sell a screenplay on a work for hire basis, and become copyrightless employees. As an employee, we are allowed to join a labor union that can collectively bargain on our behalf. As such, we have the right to minimum payment for our work, we have the right to collectively determine the proper attribution for our work (credits), and we receive residuals based on reuse as a reward for our de facto authorship. Happily, we are free to negotiate better terms for ourselves if we can, but just as importantly, no one can undercut us by selling scripts for basement prices or waiving their rights to residuals. If you sell a screenplay to a studio, you MUST do so within the MBA terms. Furthermore, as employees, we are entitled to health care and pension contributions from our employers.

Oh, and we get separated rights! You can read about those here.

The downsides of our current system? After our services are completed, the companies can hire other writers to rewrite us. They can hire directors to change the script as well. Our input is not mandatory for the film process. Also, we must tithe 1.5% of our gross income to the WGA.

Now, let’s look at what happens if we retain copyright.


What If They Let Us Keep Our Copyright?

First things first. If you write something like a spec, you own the copyright on it. If you sell it to a studio, that’s when it becomes a work for hire. Therefore, this choice I’m about to discuss isn’t completely hypothetical. You can actually do this!

I just wouldn’t recommend it.

One of the rights of the copyright holder is the right to create and control derivative works. A movie is a derivative work of a screenplay. Therefore, if you insist on owning the copyright on your screenplay, but you want a studio to produce a film from your script, you must license the right to do so to the studio. Currently, the MBA minimum for selling your original script is $100,000. Currently, the minimum for licensing the film rights to your script is…

…nothing. There is no minimum. You could license it for a dime if you wanted. Or just give the license away.

“Hold on,” you say. “I’m in the WGA! If I retain copyright, there must be some way that the WGA can still protect my rights!”

There is not. The WGA is a labor union, recognized, empowered and regulated by the United States Government. In the United States, labor unions are for employees only. A union cannot accept independent contractors and remain certified to collectively bargain for those employees.

Therefore, right away, here’s what you’re giving up when you insist on retaining your copyright and not working as an employee, but rather as an author who is licensing rights. You give up minimum payment for your work. You give up a guaranteed residual rate, and must bargain for your own royalty rate (and let’s point out…WGA writers can always negotiate better residual rates than are in the MBA, so no guaranteed minimum rate is a huge loss for copyright-retainers). You get no health care contributions and no pension contributions. That’s your problem.

“But,” you say, “at least I’m in control!”

Nope.

If the studio wants to take your screenplay and immediately go into production, they license the film rights from you. Now they are in charge of the film. They have no incentive to grant you any control over that film, and you have no moral right to it once you’ve licensed the film rights.

Of course, it’s a rare spec script that goes right into production. And what if the studio says, “You know what? We want another writer to prepare a new derivative work…a rewrite…before we consider producing this film.”

Here’s the one upside of owning copyright. You can say “no.” Of course, if the sole reward of owning copyright is that you can stop a bad film version of your script getting made, I’m not sure it’s worth losing minimums, health care and pension just for that.

Let’s be frank, though: the only way any studio would ever agree to license your material is if you did so completely. The studios will want to license the full, total and in-perpetuity rights to create new scripts, a movie, a TV series, a play, books, merchandise…EVERYTHING.

We know they would want to do this, because it’s what they do right now. Well, it’s almost what they do right now. Because we’re employees, we have the strength of a union to chip away at some of that (resulting in separated rights and residuals).

As individual copyright holders…it’s just you and your script versus a multinational corporation with a 70 billion dollar market capitalization.

My point is that as a copyright holder, you’d be subject to the same pressures the WGA employee writers are subject to, but without any of the collectively bargained guarantees and protections the employees have in place.

“Wait, wait, wait!” you say. “As the copyright holder, I do have a guarantee! The Berne Convention says that copyright confers certain moral rights that the companies can never take away by license or anything! And that’s why this is all worth it!”

Is that right?

Depends where you are.


The Realities of U.S. Copyright Law

The Berne Convention recognizes that copyright confers the following inalienable moral rights upon the copyright holder:

1. Attribution, i.e. to be properly identified as the author of the work when it is made public, and

2. Creative Integrity, i.e. no one can mutilate or distort the work in such as way as to be prejudicial to the honor or reputation of the author

“See?,” you shout. “I can license away the right to every derivative work from my screenplay, and I can even do so for no money, but no matter what those bastard companies do, they can’t deny me credit and they can’t change my freakin’ words!”

And if you just licensed those rights to a film in any country in the world except the United States, you’d be right. However, the United States Government (and this is a big one) does not recognize moral rights. Actually, they do for visual artists—painters and sculpters and the like—but NOT filmmakers or writers or software coders, etc. etc. etc.

What this means is that as the copyright holder, you can license away every last one of your rights and have NO protections left. Not even a credit protection, or a royalty protection. The companies can and will continue to mutilate and distort your work, because that’s what they do.

Do you think I’m painting too bleak a picture? Well, let’s examine the empirical realities of systems where screenwriters do retain copyright.


The English and Canadians Retain Copyright, So Why Can’t We?

There are three major differences at work in Canada and the UK, as opposed to the situation here in the U.S. First, Canada and Great Britain recognize moral rights. Secondly, and maybe even more importantly, Canada and Great Britain allow labor unions to represent independent contractors.

Thirdly, and most importantly, there is no “work made for hire” concept in Canadian or British copyright law. It’s not an option to be an author-employee.

So, with all of those differences in place, it would seem as if Canada and the U.K. would be writers’ paradises, and yet, we all know that the vast majority of screenwriting done on the planet occurs in the U.S. What gives?

Well, for starters, because the up-front fees aren’t collectively bargained, they tend to be far far lower than those guaranteed to employee-writers. Furthermore, they are often considered applicable against royalties. What that means is that if you get $10,000 for the film rights to your Canadian screenplay, you can expect the producer to reduce the royalties due to you by $10,000.

Imagine if the AMPTP suggested that the fees we earn for our scripts be deducted from our residuals! We’d be on a picket line tomorrow.

But wait. It gets worse.

Unlike our system, in which we have an infrastructure designed to continually and endlessly audit the reuse of products and then exact residuals from the companies on our behalf, the royalty system pretty much leaves the writer at the mercy of studio accountants. Here’s what one Canadian writer has to say about their system:

Producers report these earnings to the Guild on at least an annual basis. The WGC can, theoretically, request that a producer open his account books to prove statements of income, though you will understand that in practice, this is often difficult to effect. In the Canadian system, screenwriters essentially depend upon the honesty, fairness and openness of producers over the life of a project’s distribution - a period that could extend.over many, many years.

For those of you who have met some producers, it’s unlikely that “honesty, fairness and openness” will immediately leap to mind as apt descriptors.

But wait. It gets worser.

The fees for these rights are often determined unilaterally by the producers, especially when the state is the producer. A WGA writer living in the UK reports that the BBC wanted to rebroadcast some old radio shows. They were not compelled to bargain with the Writers Guild of Great Britain. Rather, they unilaterally opted to pay the writers $20,000 for the renewal of the license.

That’s not $20,000 per writer. That’s $20,000 for ALL of them to split up. About $25 per writer. Mind you, those writers owned the copyright on the scripts…but of course, owning a copyright on a script isn’t the same as owning a copyright on a derivative work.

But wait. It gets worserer.

Remember that up-front license fee in Canada? The one that gets subtracted from future royalties? How’d you like to split that with a guy who rewrites you?!?.

In Canada, the first writer “owner” often ends up “splitting” his/her script fee with any any subsequent writers that may come on board later.

You dig that? When you retain copyright, you are an “owner”, and your up-front fee isn’t a labor cost. It’s a license, and it’s divisible, and they can absolutely offer you a contract that requires you to both license away the right to prepare derivative drafts (which don’t violate your moral right to have your draft rewritten, see how clever???) AND divide that license fee with the new guy they contract with. You think people wouldn’t sign contracts like that? They do. With no “undercutting” protection that an MBA and closed shop affords, it is absolutely a race to the bottom.

Now, for those readers who hail from Canada and Great Britain, don’t get me wrong. I’m not beating you guys up for signing bad deals. The fact is that you can’t sign deals like ours because of the nature of your copyright laws. You are forced to be the owners of your work, and while being an owner can have its upside, it certainly has its downsides as well…as you can see.

The fact is that as employees represented by a labor union in the United States, we are far better off than writer/owners who retain copyright in Canada and Great Britain.


A Brief Comparison

For convenience, here’s a brief comparison.

If You Write In The U.S. On A Work Made For Hire Basis
You are guaranteed a minimum upfront fee that is not applicable against residuals.
You are guaranteed a minimum residual rate.
You are guaranteed the right to have your peers, rather than your employers, determine credits.
You are guaranteed the right to have health care and a pension if you meet the basic requirements.
You are guaranteed the protections of a federally certified labor union.
You are guaranteed separated rights if you qualify, and those rights are unwaivable.
You are guaranteed to not be undercut by any other writer working for the signatory companies.

And lastly, you are guaranteed the right to personally negotiate any term that a copyright holder might be entitled to.


If You Write In The U.S. As An Author Who Retains Copyright
You do not have any unwaivable rights.

And lastly, you are guaranteed the right to personally negotiate which terms, if any, you accept for the licensing of your copyright.


Not much of a contest, is it?

So…if retaining copyright isn’t the answer for improving our status, then what is???


Employees With “As If” Terms

There is a perfect world. In that perfect world, the writer is part of a collective bargaining unit, receives minimums and protections, but also receives the very best that copyright ownership can grant.

That philosophy has guided our negotiations stance for decades. That philosophy led to separated rights, residuals, credits determination and our fledgling reacquisition rights. The answer is not to give away all that comes with being an employee (including the ability to best protect our newest and weakest members as well as not be undercut), but to remain employees and try and enshrine more and more rights that are associated with a strong copyright licensing agreement.

Dig that?

The best way we can enshrine the equivalent of a strong copyright licensing agreement is by uniting and bargaining collectively, all the while enjoying the protections of being employees.

We don’t want copyright. We want a deal as if we had copyright. That’s my guiding light for negotiations, and that’s where the pressure comes back from the studios. It’s the smartest and best frontline for our struggle, and that’s where we should aim our firepower.

When we talk about retaining copyright, we’re not talking about empowerment. We’re talking about breaking our union and fending for ourselves. Still, the more we know about the promise that copyright holds, the better a deal we can wrest from the studios.


ERRATA: While the BBC threatened to unilaterally determine a crappy royalty rate for the reuse of the radio broadcasts, they actually could not do so lawfully because the UK writers retain copyright. Instead, the WGGB collectively bargained on their behalf and got them more like $75 per writer. This is still a low number, but it’s certainly better than $25. What’s interesting about this is that UK copyright law apparently views the recording of a radio broadcast as a performance (and so, not new intellectual property), whereas US law clearly views a recording of a radio broadcast as intellectual property, and not a performance.

I was also wrong to suggest that there are no minimums for copyright holders in the UK. Because the UK allows unions to bargain on behalf of independent contractors, they can get copyright holders minimums. In the U.S., however, there is no such protection for copyright holders.

Curiously, UK copyright law, which is far more favorable to the writer than US copyright law, has not led to a stronger economic conditions for British writers.

Ed. Note: This article was originally a post I wrote on WriterAction. I subsequently revised and published it here in January of 2005.

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

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

Participation Isn’t Defined by Employment, But By Contribution of Intellectual Property

First, some definitions. Per Schedule A, Paragraph 9 of the MBA:

A writer who has particpated in the writing of a screenplay, or a writer who has been employed by the Company on the story and/or screenplay, or who has sold or licensed literary material subject to this Basic Agreement, shall, for the purpose of this Basic Agreement, be considered a participant.

Pretty simple. If you participate in the writing of a screenplay, either as an employee, spec seller or just some dude who wrote stuff, you’re a participating writer (by the way, if we eliminated “A writer who has participated in the writing of a screenplay, or”, we’d have ourselves Writing Credits For Writers Only, but that’s a whole ‘nother discussion).

Next definition…what does copyright protect in regards to written works of art? The U.S. Copyright office says:

Copyright will protect the literary or dramatic expression of an author’s idea but not the idea itself.

So, first thing’s first. Let’s say I have an idea for a movie. “A high school outcast learns about life and love from a martial arts teacher.” The first question is…can I copyright that idea as it pops out of my head? No. It needs to be expressed in a fixed form. Okay. I write it down. I now own the copyright on that fixed form, i.e. that piece of paper with those words on it and any mechanical reproduction (xerox) of that fixed form (piece of paper with words on it). Does that mean no one else can use that idea? No. I could only own the copyright on the literary expression of the idea (which I haven’t written yet), but not on the idea itself.

A treatment or script is considered a literary expression of an idea. A logline MIGHT be a literary expression of an idea if it is specific enough. A premise, however, generally doesn’t pass the test of copyrightable.

Yes, this means you are absolutely free to write a movie with the same damn idea as The Karate Kid. You just can’t steal the specific manner in which that idea was expressed in a fixed form, because the literary expression is protected.

Okay. So…let’s imagine a world without studios. Yes, I can actually hear some of you sighing with joy.

In the world without studios, writers come up with an idea (which is not copyrightable), and then they write a script (which is copyrightable because it’s a literary expression of the author’s idea). Now let’s say that Harry has the idea about the kid who learns karate. Harry writes the script, and now he owns the copyright on the script…but he decides in all honesty that his writer friend Joe could really improve the script if he let him contribute to it. He offers, as the copyright holder, to authorize Joe to revise the work.

Joe agrees, but he makes a reasonable request of Harry. “Let’s say I contribute a lot to the final version. My unique literary expression (exluding elements borrowed from you) is copyrightable too, even though it’s derived from your initial literary expression. How will we determine authorship, or credit, for the final script?”

No problem! There’s a Scribes Union of writers who agree to submit to binding arbitration in cases like these. The SU says, “We analyze the drafts and then decide what a fair credit should be based on your individual, copyrightable contributions to the final script, paying careful attention to chronology as well as reuse of elements, etc.”

And so it goes. Joe rewrites you, the two of you submit to a binding arbitration as participating writers on the script, and you’re happy.

Ah, but there’s a wrinkle. Some dude named Fred says, “Hey! I wrote a different script based on the same idea of a high school outcast who learns about life and love from a Karate master! I should be a participating writer too, even though I don’t know these other guys.”

The SU arbiters read his script and respond as such: “Fred, we believe the only thing similar between your script and Harry/Joe’s is the idea. Since idea is not copyrightable, and written literary material is copyrightable, we believe you didn’t contribute any written literary material, so we don’t believe you meet the standard of participant in Harry & Joe’s script. That’s the bad news. The good news is that, in turn, they aren’t participating writers in your script either. You are free to exploit it without worrying about them asking for a piece of the profits, just as they are free to exploit their script without sharing profits with you.”

And that seems reasonable, right?

Now let’s re-enter our world. Yes, Virginia, there really is a studio.

Without getting into the why of it all, when a screenwriter sells a script to a studio, he is also transferring the ownership of copyright. The legal author of every script that Paramount owns is, in fact, Paramount Pictures.

But wait. It’s not The Godfather, written by Paramount. If writers aren’t the legal author, why do they get credit?

We get credit because we bargained for it, and we get to determine which participating writers get credit, because we bargained for that. Still, we’re in the weird place of assigning credit to writers who hold no copyright claims! So how do we do that?

We do it as if the participants all DO hold copyright claims. The WGA, much like my hypothetical Scribes Union, determines screen credit on the basis of copyrightable contributions (unique literary expressions in fixed form, yadda yadda).

This is important for the same reason it was important back at the Scribes Union. Here in reality, years after Karate Kid was made, a movie was released called “Showdown.” Showdown was about a high school outcast who lusted after a girl whose violent boyfriend was a karate master. Only by learning karate from a mysterious school janitor could he face off against the boyfriend and win the girl. The guy who wrote Showdown did not violate the copyright of Karate Kid because he only used the same idea, but created a unique literary expression of that idea called “Showdown,” and apparently did so demonstrably enough to avoid being sued for plagiary of dialogue, specific characterizations, narrative, etc.

Ooh, big deal, we protected the Showdown guy, right? Ahh, but by saying that Showdown is a unique work distinct from Karate Kid, we’re also protecting Karate Kid. Should they ever want to remake Karate Kid (and honestly, we can’t be more than five years away from that), they’re not going to have to deal with a lawsuit from the writer of Showdown.

Okay. So…finally we get to the sticky problems caused by the chain of title. If you’ve read this far, I promise you…we’re almost there.

Studio A buys Harry’s original script. They now own the copyright. They hire Joe to rewrite it. Then they decide that they really hate this thing, but Studio B is willing to buy it (ownership of copyright) out of turnaround, keeping the same producer along for the ride. The producer and Studio B sends the script to Fred, in the hopes that he can improve it.

Fred comes to them and says, “Guys, I read the script. I read it fifty times. I’ve memorized it. And I hate it. The only thing I like is the idea, but I have a completely unique literary expression I’d like to put in fixed form based on this idea (Fred is such a fucking geek). My unique literary expression has absolutely nothing in common with the copyrightable elements of the prior scripts. It may, however, have uncopyrightable things in common…i.e. not-unique literary expressions like ideas. For instance, I love this notion of a high school outcast who learns about life and love from a karate master. But that’s it. Everything from here on out will be unique and original to me.”

Fred is hired by Studio B AND by the same producer who was attached to Harry and Joe’s script, and he goes off and writes. The script gets the green light, and they shoot KungFu High!

When it comes time for arbitration on KungFu High!, Studio B follows the chain of title when determining how to list partcipating writers. They list Harry, Joe and Fred.

But Fred calls the Guild and says, “Wait a second. We determine credits as if we were the copyright owners of our unique literary expressions in fixed forms, which is why KungFu High can’t, say, be ‘written by Studio B.’ But that means the chain of title is totally irrelevant, because chain of title only reflects studio ownership of copyright, not the in-truth authorship of the scripts that this Guild is trying to determine. All that matters is whether or not the material I wrote can possibly be considered a work derived from another copyrighted literary expression. And I’m saying…it’s not. I’m saying KungFu High is totally unique to me with the exception of the uncopyrightable IDEA…and so Harry and Joe aren’t participants in the writing of it.”

And Fred then realizes something else. “You know what? I could have read Harry and Joe’s script, and THEN written my exact same script for Studio X, which has ZERO chain of title going back to Harry and Joe! And neither Studio A nor B nor Harry nor Joe could have sued me, because I didn’t take anything copyrightable from them. That means they contributed nothing copyrightable to my screenplay, which means they are no more participants in it than anyone else you’ll meet on the street.”

And Fred turns to Harry and Joe and says, “By the way, this also means that I’m not a participant in your script, which means that if Studio B chooses to exploit your version, I won’t be able to seek credit on that movie.”

The Guild now has a decision to make.

Is Fred right? Does his script contain zero copyrightable literary material taken from Harry and Joe’s script? The fact that he read their script is irrelevant, just as it’s irrelevant that the writer of Showdown most likely watched Karate Kid on cable. Regardless of the chain of title, do the two incarnations of the project (a term of economic, rather than creative, distinction) share anything in common other than the uncopyrightable idea?

The Guild will read the scripts and make that decision. However, there IS a decision to be made. Unity of the chain of title doesn’t necessarily preclude a complete division of copyright.

PS: Suddenly, the fact that the studio/writers of “Vice Versa” didn’t get sued by the studio/writers of “Freaky Friday” starts to make sense, right? :)

“Go home and get a
nice quiet sleep.”For a large portion of my first year on the Board of Directors of the Writers Guild of America, west, I was involved in an effort to mediate a serious dispute with the Writers Guild of America, East.

If the notion that there are two WGAs sounds stupid to you (much less the idea that they’re fighting), well, join the club called “everyone else in the world who is rational”.

The dispute centered around screenwriters, and it goes back to the formation of the two unions. I’ll give you the really short version: the WGAw agreed that the WGAE could represent screenwriters in the East in order to help the WGAE seem, well, prestigious, but in return, those screenwriters would also be in the WGAw, and half their dues would have to come our way.

That worked just fine. And then, at some point in the early 70’s, the WGAE said, “Actually, we don’t want to pay anymore.”

So begain a rift that would last 30 some-odd years.

The rift isn’t only financial. There are huge cultural differences between West and East. The East is considered by some to be overmilitant. The West is considered by some to be obsessed with first writers when it comes to credits. The East is more of a traditional labor union. The West has far more members and far more money, and acts like it.

And so it goes. Over the years, the distrust and malice has grown. So, too, did the increasing debt owed by the East to the West for the services that the West performs on behalf of East members. After all, the West has a staff of around 200 employees, included a few dozen attorneys. The East has a staff of fewer than 30, with maybe 2 attorneys.

A few weeks ago, the new leaderships of both unions announced that they had finally reached an agreement. What can I say? I think it’s an okay deal. Not great. And I think we would have gotten a far better deal for WGAw members if we had held out, because our legal case was far far stronger than theirs.

On the other hand, given the leadership we have right now, I believe this is the best deal I could have hoped for. That’s not a back-handed compliment, by the way, if any of those folks are reading this. It’s a direct criticism.

That out of the way, here are the major points of the deal.

In order to compensate the WGAw for the various services they receive from it, the WGAE will essentially pay a percentage of all of its dues to the West. That number will be far greater than the zippo we were receiving to date, but far less than what our current constitution calls for them to send us. Since the courts would have eventually compelled the WGAE to give us more per year, call this one as WINNER: WGAE

In the past, despite reams of passages calling for arbitration between the guilds in cases of dispute, the WGAE has often used a delay tactic. In this current dispute, they challenged the arbitrability of it in the first place, which was flat out insane. Theoretically, this settlement will create an arbitration clause that no one can wriggle out of or challenge without serious penalty. Since this takes away a traditional weapon from the East, this one’s WINNER: WGAw

While our constitutions called for national meetings once a year between the Guild leaderships, the WGAE often dragged their feet on this, and the WGAw wasn’t exactly banging the drum for them either. The settlement agreement forces these meetings to happen more frequently, and the dates are already set in stone. This is sort of a push, but since I think the result of these frequent meetings is a positive net gain for those of us who want a merger, and since it’s the WGAw that has been most in favor of a merger, I’m calling this as WINNER: WGAw

There are joint committees for things like awards and credits. Those committee makeups have now been mandated by this settlement to ensure that the WGAE has at least 33% of the seats. Given that they do not have anything close to 33% of the screenwriters out there (it’s more like 18%), this is a major victory for the East on committees like screen credits committees, etc. This is also a huge victory for them because instead of having 2 out of 15 seats on the Negotiating Committee, their representation will be proportional by voting members, which should mean an increase in seats. WINNER: WGAE

If there’s one thing that has angered me about the WGAE, it’s that they have different membership and voting standards than we do. To get into the WGAw, you need to accumulate a certain amount of work that equals 24 “credits”. At that point, you’re in, and as long as you stay current with your dues, you can vote on things like collective bargaining agreements…or strikes. Not so with the WGAE. All you need to get into the WGAE is employment. One job. That’s it. No matter how small. Therefore, a guy who writes one half-hour script in L.A. isn’t in the union and can’t vote, but a guy who writes a half-hour script in NYC can! This is ridiculous. This settlement states that the two unions will come to an agreement on common voting standards. The WGAE can let in whomever they want, but the voting standards for both memberships will be the same. Assuming the WGAw doesn’t lose its mind and lower its voting standards too far, this one is…WINNER: WGAw

There are a few other areas, but I feel like I’ve bored you enough. Suffice it to say, this was possibly for the best, but perhaps for the worst.

How’s that for mealy-mouthed?

In the meantime, I’ve got a ton of opinions about what has been going on with our union lately, but I’m going to keep my mouth shut until I’m in a more comfortable position to talk. Stay tuned…because things in this town are getting very very very odd.

And not in a good way. At least, I’m not happy.

If you haven’t read the recent article in the L.A Times about where we’re heading, check it out here.

Ed. Note: I’ve been working for a while on revamping the official Writers Guild of America, west website. Here’s an article I wrote for our Member News bulletin. The new website will be up by the end of the month, and I’ll alert you guys once it launches. In the meantime, if you go to the WGA site now, you can see how backwards it currently is.

I’m not wearing pants right now.

That’s one of the benefits of working in the Information Age. As writers, we’re creatures of windowless rooms. The internet allows us to indulge our essential drives to learn and create without coming in contact with other people or violating our primary directive: never move when you can sit perfectly still.

Unfortunately, our Guild’s presence on the web has been a liability. The site was originally designed in 1996 and received little updating since. When it comes to technology, nine years might as well be nine hundred years. Our site was poorly organized, annoying to navigate, used frame-based technology that predated the Monica Lewinsky scandal, and perhaps worst of all…it was ugly.

One of the first actions I took as a new Board member was to create a committee responsible for revamping our web site. Sure, I wanted a website that was competent, but my purpose was a bit deeper than that.

When I ran for the Board, my primary motivation was to improve the relationship between our members and their union. The root of the alienation is understandable. Writers are busy. We have families and friends and careers. It’s easy to allow the Guild to fade into the background, but when a residual check goes missing or a credit arbitration looms or a payment is late, I want to know my Guild will be there for me…without leaving my room.

Or putting on my pants.

In the years to come, the WGAw website will increasingly become the face of our union. It needs to be our clearinghouse for information, our calendar, our early-warning system, our library. Our website should inspire us to learn about the developments that govern our industry, shape our negotiations and impact our earnings. It needs to provide a pathway to our staff, and an opportunity to give feedback, ask questions or simply rant.

By rebuilding the website, we’ve created the foundation for all of that. Our new site is attractive, clean, easy-to-use, and adaptable. We have the ability to create moving-image libraries, poll our membership, and put a face on our staff and the leadership. If there’s a wall between the rank-and-file and the HQ, consider this website a big rock thrown through the barrier.

I’m proud of the work we did. In less than one year, we accomplished our goal. While much of it involved reworking site-maps and navbars and menu trees and databases and streaming video and content management systems, it’s the human experience that is essential. My hope is that our new, world-class website will bring members closer to their Guild and closer to each other.

Take your pants off, people. The new wga.org is here.

Vote for this guy,
wouldja?While much of what we do here at The Artful Writer centers around our craft & trade, credits, copyright law and all that good stuff, the fact is that Ted and I are both very politically active in our union, the Writers Guild of America, west. We both serve on the Board of Directors, and right now, Ted is running for President on a slate with a number of other excellent candidates.

If you’re a voting member of the WGAw or know some voting members of the WGAw, please spread the word. I’m not going to evangelize here too much, particularly because there’s a great way you can learn about Ted and his fellow candidates, known as the Common Sense team.

Just visit the Common Sense website to see what they’re about and why they’re the best choice for our union’s future.

And vote!

Thanks, fur’ners!Lately, some of you who have worked on television shows or movies may have noticed a new kind of check coming from the WGA. It’s a foreign levies check.

What are foreign levies, why are we getting them now, how do we get them, and what’s the all-around deal here with this dough?

This is going to be a little long, but bear with me. It has a very happy ending.

Let’s start with (oh God, not again…) copyright law. As I discussed in past articles like this one, U.S. copyright law is somewhat unique. We feature the work-for-hire laws that say that employers who commission work can be the legal authors of that work, and we do not adhere to “droit moral”, or the moral rights of authors.

The rest of world doesn’t see eye-to-eye with the U.S. on copyright law, and this created an opportunity for us when foreign countries (particularly in Europe and South America) began placing levies (read: taxes) on the sales of blank videocassettes, blank DVDs and in some cases, even computer hard drives.

The foreign countries basically viewed blank media as a way for consumers to record their favorite televised shows and televised movies (including broadcasts AND cablecasts of theatrical movies). As such, they felt that the authors of those shows and movies ought to receive some kind of royalty for each such blank media sold. In order to get that royalty, they placed a levy on the sale of blank cassettes and DVDs and so forth.

That tax is intended to be distributed to the authors.

First problem: distributed how??? The foreign countries basically use their own formulas that are based on how frequently programs are run, and then assign the authors of those programs a share of the foreign levies based on that very factor. Therefore, the authors of “The Simpsons” will receive a much larger share of the videocassette tax than the authors of a show that airs once on Spanish TV.

Okay, so far so good.

Second problem: who is the author?

The AMPTP argued that under U.S. copyright law, the companies it represents are the legal authors of all American television shows and movies broadcast on foreign television.

And they’re right.

The foreign countries, however, said “non” or “nein”…or whatever they say in Greece. After all, they’ve never particularly respected the legal basis the AMPTP MPAA (Ed. note: Turns out it’s not the AMPTP, but the Motion Picture Association that handles this on behalf of the studios) was using to claim authorship, namely work-for-hire.

The WGAw and DGA each felt that writers and directors were the authors.

The MPAA and the writers and directors had leverage against each other. The unions felt the law would view their authorship claim favorably, but the MPAA certainly could take an obstructionist stance that would end up costing the unions more than they’d collect in foreign levies.

Hence, a compromise.

Initially, the MPAA collected the lion’s share of foreign levies (80%+), with the WGA and DGA splitting the rest.

In 2001, largely with the assistance of a WGAw and DGA consultant named Bob Hadl, the unions were able to grab a larger share…up to 25%, with the rest going to the MPAA.

So hey, we were getting lots of money, we had successfully stood up as co-authors with the directors (think about that…it really is a big deal), and we were increasing our share as well.

Things were good.

Too good.

The money starting flowing in to the WGAw. All of it went into a special escrow account. Here’s where the problems started. We’d get a big check on a regular basis, but with it came a huge printout with literaly 40,000 line items about how the foreign country intended the money to be apportioned.

Yeah. 40,000. (Ed. Note: This used to say 14,000, but apparently it’s waaaay worse than I knew!)

Even worse, the information was often incomplete or not useful. For instance, you might see that $124.29 was assigned to a television show name, but not for a particular episode. So which writer gets the money for “The Waltons”? Or it was assigned to an episode name…but they wouldn’t mention the show. So who gets the money for “Another Bad Day Pt. 2”? Then there was the case with soap operas. The episodes typically don’t even get names, and the foreign countries wouldn’t know the episode numbers. Even if they did, by the time they got them, they were often repackaged and cut together into frankenepisodes for which authorship was difficult to determine.

Ah, but the problems continued. Foreign levies are meant to be distributed to all writers of all shows and movies airing on foreign television.

That includes programs and movies not covered by the WGAw like animation. And non-fiction work. And porn.

Yeah, porn.

The WGAw wanted to distribute all of the money it was receiving, but it didn’t have records for many of the writers credited with those non-Guild shows (and porn). Remember, this was in the dark days before IMDB really caught on, and even then, IMDB isn’t exactly a legally reliable database.

Oh, and all the above? That was when it was working well. Often, the WGAw would receive a check with NO information.

Zippo.

Cut to 2001, when the WGAw staff and leadership decided to do something about all of this. The money that had been coming in was quickly mounting in the escrow account. In fact, it was crossing the eight-figure line. This was bad for two reasons: people weren’t getting their money, and California State law says that money kept in escrow for longer than seven years can escheat to the state.

No one wants escheating, right?

The answer was to build an entire staff around receiving, tracking, processing and distributing foreign levies checks to all authors, WGAw or not, who were due them. In the meantime, the monies that were about to enter into the escheat zone would be moved out of escrow and into the WGAw’s general fund in order to be protected, but would still be owed to the receipients. Essentially, we created a system of many IOU’s for many John Doe’s, with the idea that as soon as we figured out who they were and where they were and who was their rightful heir if they were dead, then we’d distribute the money.

The only remaining problem was one of cost. Putting such a system in place with the necessary computers, full-time staff, check printing machines and envelope stuffing machines and mailing machines was going to cost a lot of money. The answer was that the WGAw would charge a 5% administrative fee (this fee was announced in the 2003 financial report to the WGAw membership, so there was transparency). In other words, of all the money we distribute on behalf of writers, we take 5% to cover the considerable costs of doing this job right.

Note the key word “distribute”. The WGAw does not collect a fee on foreign levies it collects…only foreign levies it actually distributes. The fee is only applied in “success”. There is no incentive to sit on the money. In fact, there is a very strong disincentive to sit on the money (especially considering that the money is held in an extremely conservative account that earns very little in interest).

Happily, the system now seems to be working. The pile of undistributed foreign levies had risen to a massive $20,000,000+ level, but the WGAw finally started making a real dent. Last year, the WGAw distributed $8,000,000 in foreign levies (a huge leap forward), and for the first time, we’re now distributing more than we’re taking in.

If you’ve read this far, then you deserve the lovely ending to this all. The aforementioned Bob Hadl returned to Europe recently, and he’s helped negotiate a deal to increase the WGA/DGA share of foreign levies to 50%, double our existing rate. When that deal goes into effect, we will even more strongly assert our status as the authors of both record and fact for the purposes of foreign levies.

And so, to our readers in France and Germany and Argentina and throughout the world…thank you for buying blank DVDs and blank videotapes and hard drives. You and your governments are supporting the real authors of creative works, and the WGAw is doing its best to make sure those authors get their proper share.

Our union has its share of evergreen problems…you know, the ones that never seem to go away. The pernicious practice of “free rewrites” is certainly one of them.

Here’s the way it works. The WGA requires that its members be paid for the work they do (duh). However, there’s a longstanding practice in the industry called “the producer’s draft”. You are commenced to write a draft, you turn in the draft, and the producer says, “Great. I have some notes. Do another draft, and then we’ll turn that in as the first draft to the studio.”

This is wrong. First off, it’s against WGA working rules. Secondly, every time a writer agrees to work for free, they are essentially undercutting every other writer in the union. Our minimums are in place as much to protect us from each other as they are from the Companies.

So why do writers acquiesce? Typically, it’s because they’re scared they will get fired or be labelled “difficult”. Unfortunately, the more you acquiesce, the more you are exploited. That’s the nature of the beast. There are cases where writers have literally done seven “free” drafts before getting paid…and when they do get paid, it’s for one draft.

By the way, I put “free” in quotes because nothing’s free. “Free” drafts actually cost us all money. They deprive the union of dues, they deprive the Health & Pension Fund of contributions, and they hurt every other writer who is now expected to conform to this practice.

The problem is…what the hell do we do about this?

The Guild arbitrated against the Companies, and they failed. Why? Well, it turns out that the Companies have very cleverly put distance between themselves and the producers they contract with. Technically speaking, there is one “delivery agent” for every script, and it’s often someone completely unrealistic (e.g. the chairperson of the studio). As such, the producers aren’t officially the employers of the writer, and so their requests can’t be seen as official or binding in any way. The Companies’ answer to the Guild’s demand that they do something about their producers was rather telling.

Basically, they said, “How about you tell your writers to simply refuse to do the free work, per your own freaking rules.”

Okay, fair point.

So, one might simply say, “Hey, let’s enforce our rules! If we catch you doing free work, we’ll fine you!”

Well, for starters, we don’t have any way of sussing out who’s doing the free work. Writers are notoriously fearful of complaining to the Guild because they think it will negatively impact their career. And then there’s other big humongo problem.

We have writers in our union who get paid millions for a screenplay. Those writers aren’t particularly interested in holding the Companies’ feet to the fire on every small revision or tweak. There’s a gentlemen’s agreement (pardon the sexism) that when you get paid millions of dollars, you may choose to work in a flexible manner.

Those writers are fiercely opposed to the Guild interfering in their lucrative work, particularly when it is lucrative for the union as well.

While some disagree, I’ve always thought of this problem as one primarily caused by and impacting the same subset of writers: screenwriters making low six-figures per script. They’re the ones who feel they have the most to lose if they refuse to do the free work (because they can’t walk into another studio the next day and get a million-dollar assignment), and they’re the ones who are being exploited by the free rewrite practice (because, well, they’re not making crazy money…although I know lots of people would argue that anything in six figures is crazy money).

Jacob Weinstein, our intrepid Man In London, once compared the problem to an interesting bit of Game Theory known as “the tragedy of the commons”. If you don’t feel like slogging through it, I’ll offer Jacob’s elegant summary:

People are more likely to do the wrong thing if they think everybody else is doing the wrong thing.

Once a writer becomes convinced that everyone else is doing free rewrites, he begins to feel like a self-crucifying schmuck for not doing them. Likewise, if a writer became convinced that very few writers were doing free rewrites, he’d begin to feel like a doormat (and schmuck) for agreeing to them.

Jacob’s idea is to publicize a long and impressive list of writers who simply do not do free work. However, it’s hard to say where “gentlemen’s tweaks” end and “free work” begins.

Does anyone out there have any suggestions?

Rob Long, a television writer who moonlights as a radio commentator, recently did this controversial segment on the WGA for L.A. radio station KCRW.

In it, he describes the convulsions our union goes through during negotiations. On the one hand, he says, there are the working writers who view the hinge-points (like residuals, etc.) philosophically.

I assume by “philosophically” he means dispassionately and rationally.

On the other hand, Mr. Long says there are the non-working writers—and they’re a bit more rabid. He writes:

Non-working writers, the Unemployeds, are a different, more querulous matter. These are writers who haven’t sold a script or drawn a writer’s paycheck in years, but remain passionately involved members of the guild and its most impossible to satisfy voting bloc. For some reason, years of unemployment do not lead to difficult personal decisions (“I must stop dreaming of success and riches. I must stop talking to my friends about my next big script sale. I must realize that my job at Blockbuster is not just ‘temporary’ or a ‘great place to people-watch and get material,’ but, instead, my true livelihood, and I will begin to treat it as such by arriving on time and in uniform, and not waste a customer’s time criticizing his rental choices.”) but, rather, lead to a stubborn and highly irrelevant obsession with the writer’s potential share of hypothetical ancillary revenue generated by a script that hasn’t been written, and if written won’t be sold by a writer who is not represented by an agent who won’t sign him because, and this is crucial, his scripts do not sell. Did I mention that this is the largest segment of the voting population of the WGA?

In my experience, Rob’s allegations are actually pretty commonplace, although they’re rarely articulated so well. What I find so amazing about this is that it’s the first time I’ve heard someone publicly put their name to it. It’s been a sort of secret, eye-rolling complaint whispered between writers who feel very comfortable with each other, but never said out loud in mixed company.

I’ll admit: these thoughts have certainly crossed my mind. In many ways, I was cured of them by my service to the Guild. It turns out that in reality, some of the most ardent opponents of strikes and olde-tyme labor union rhetoric are currently unemployed. Likewise, I can think of at least three multimillionaires who would be happy to see us all on a picket line right now.

There’s a larger issue at hand here. I think Rob gets a major part of it wrong: the fracture lines are not drawn along employability. He is right, though, about the other part.

Our Guild has two factions. And just as national politics has seen polarization over the years, I can sense it in our union as well.

A long time ago, I asked some writers to come up with names for the two main groups arguing about credit policies. I guess I’ll do the same again.

Is Rob right? Are we split in two? Is it along employed and unemployed lines?

Personally, I think the two groups are defined by the central belief systems they use when approaching negotiations. For me, the two predominant belief systems are Moral and Economic. The Moralists want us to get what we deserve, and striking is still labor’s best weapon to achieve that. The Economists want us to get what we can get, and striking is just another tactic to be number-crunched on a cost-benefit basis.

Maybe this is a false dichotomy, but I would certainly find myself in Economist camp (as I’m sure Rob would).

Moralists vs. Economists? You guys are writers…maybe you can do better. :) The larger question, though, is…is this healthy? Or is this union experiencing a nasty case of, well, disunion?

Over at Big Brain Boy, a fine blog about the future of entertainment technology, the cerebrum comments that:

In your future we don’t see much Pay-Per-View on your desktop.

I agree. Computers make for crappy movie viewing, and televisions continue their natural evolution towards home theater.

So why should the creative guilds be so concerned about residuals for movies downloaded over the internet?

The internet is a delivery system. Right now, you view the web via the internet on a computer. There may come a day when internet is used to deliver everything: phone, web, video, audio, smell-o-vision, you name it…to a variety of appliances (television, phone, fridge, cyborg house boy). For our economic purposes, it’s not the “what you watch it on” as much as it’s the “how you get what you watch”.

For as long as I’ve been a Guild member, our credit policies have been the single largest nexus of discontent among our membership.

Many years ago, the Guild won the right to determine the writing credits on films, and since that time, the policies have been debated and massaged like the U.S. Tax Code.

And still, no one seems very happy. Just like the U.S. Tax Code.

There are two main areas of credits policy. The first is the Great Quagmire—our credits guidelines. These guidelines are the rules by which our member arbiters determine who ought to get credit. Any changes in those rules must be ratified by the membership.

The second area is the administrative, or procedural aspect of credits. How are participants notified? How does Guild staff interact with them? What are the qualifications for arbiters? How do appeals work? Should arbiters work together or separately?

At Monday night’s Board Meeting, we created a new subcommittee of the Board that would only work to make recommendations about the administration of credits. We can’t touch the guidelines at all. If a recommendation requires membership approval, we’re not allowed to make it.

The committee is co-chaired by Ted Elliott and me, and it also includes Robert King, J.F. Lawton, Aaron Mendelsohn and Irma Kalish. That gives the committee a nice mix of first-writer advocates and subsequent-writer advocates. Better yet, those divisions are essentially irrelevant to a committee like this.

Our mandate is improve the process of credit arbitration in the hopes of reducing the level of emotional trauma that seems to go hand in hand with credits determination.

If you’re a WGA member, go ahead and use the comments function to suggest any ideas. Remember, we can’t touch the credits guidelines themselves. Stay tuned; I’ll have more updates on opportunities for you to be heard on this issue. Member input is crucial to this committee.

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

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