Wednesday, November 7, 2007

Writer's Strike, Day 3

The WGA went on strike on Monday and production is grinding to a halt out here. Len's been too sick to go out on a picket line, but I think he's missing a lot of fun. If I didn't have this day job, I'd go out with my camera. It isn't often that writers are actually in a position to legally protest their working conditions. If novelists talk about what they are being paid or the terms of their contracts with the thought that they should all get together and protest the obscene grab of rights these multinational companies have put into their contracts, the Justice Department could come down on them like a ton of bricks for anti-trust violations.

Many years ago, I sat on the national board of directors of the American Society of Media Photographers. Unlike Local 600, which covers still photographers who work on movies and television, ASMP is a trade association and not a guild or union. Unions can collectively bargain. Trade associations cannot, and trade associations can get into trouble with the afore-mentioned Justice Department if any of the clients their members work with decide to complain about them for, oh, doing surveys about what is actually being paid for the use of photographs in consumer magazines. ASMP used to do a very helpful survey and pricing guide. I haven't seen one in a very long time. Since ASMP members can't collectively bargain, each photographer individually has to make a deal for a job and there are photographers, often new photographers, who see nothing wrong with undercutting a bid which would be fair compensation and payment for all parties involved in order to get the job. In the long run, such behavior destroys the entire business. Just ask any photographer about how they are making a living with the new technologies. Particularly, ask them about payment for stock photographs these days.

In those good old days of the 1980s, before I went off to law school because I could see the writing on the wall, many photographers looked at stock photography sales as retirement income. Stock photos, for those who might wonder, are those pictures which have universal appeal, are properly released, and can be used for many different purposes. I've had a few images which have been licensed over and over and over. If you look hard enough, you too can identify stock images. Those checks from the agencies which licensed my work were like found money when they arrived quarterly or monthly (depending on which agency) and it was a happy arrangement where they got half of the fee and I got the other half. No more.

Two agencies dominate stock photography in the US: Corbis (owned by Bill Gates) and Getty Images. They bought up many existing agencies around the world and sucked up photographers who didn't necessarily want to be with them. They promulgated contracts which gave themselves more than 80% of each license. Photographers are no longer "creators" but are now "suppliers" of images. The digital revolution has shrunk license fees to a fraction of their former values. The agencies make lots of money by licensing images in bulk at discount. The individual photographers are left with pennies--probably a lot less than it cost to make the image in the first place. I know some photographers who made a killing by being the first to sell their entire file to Corbis, which was paying good money in the 1990s to acquire libraries. But I look at those photographers as helping to put the profession in the current sad state it is in. They got theirs and to hell with everyone else who gets told "these are our terms, take them or leave them." I left, even though I would rather not have done so.

As an attorney, I've met a number of photographers whose livelihoods have been damaged because they lost the ability to say no to a bad deal. Which brings us back to the WGA.

I am so very pleased to see the writers say NO! to a bad deal. It's a lot easier to say no when there is some clout to deal with those who might say yes, but each member of the WGA had a secret ballot with which to express an opinion, and 90% of them did say yes and even those who voted against the strike have expressed their solidarity with the actual action.

The writer starts with a blank piece of paper. You know those ideas that producers are always throwing around--they are a dime a dozen. You know how below the line workers are complaining that writers don't know what work is--they've never seen the sweat and panic that comes at 2 a.m. when a scene simply will not come together. Hell, the below-the-lines are somewhat protected from working 24 hour days, which writers are not. There's no craft services set up in our house unless I'm around to cook when Len's on a deadline.

I took a day job so we could have health insurance, which has become more difficult for writers to achieve unless someone has a job on a TV series and the prevailing wisdom is that Len falls into the "too old" category for series jobs. And since much of his TV work has been on animation, where Local 839 doesn't cover everything and doesn't believe that writers have particular value, there's even less likelihood of health coverage. As a still photographer, I did join Local 600, but still photographers are not required as part of a TV crew and enough days shooting on a film are very hard to come by to qualify for health insurance. And, oh yeah, my quarterly dues are a hell of a lot higher than Len's are when he's not doing WGA projects.

Many writers look to residual payments to keep them covered under health insurance during those periods when they aren't working. Many people don't really understand why residuals are important or why writers should get them. When I was a law clerk at the WGA, I had one of their lawyers ask me if I knew what residuals were and if I understood them. I said yes because they are the equivalent of relicensing photographs or collecting royalties on printed work. The lawyer then said "maybe you can explain them to me. As far as I am concerned, writers are no different than lettuce pickers and I don't see why they should get residuals." I was flabbergasted and I've never gotten over the fact that an employee of the WGA could say that. How can you represent people when you don't believe in their issues?

Residuals are royalties for creators who work in the film industry. A whole legal fiction has arisen around who the creative forces entitled to copyright are in television and motion pictures. It's been controlled by a little phrase called "work made for hire" by which the actual creator of a work agrees that the person paying for the work is the "author" for purposes of copyright law, so the copyrighted work can be protected. The phrase arose under the 1909 Copyright Act and was expanded under the 1976 Act and a few years ago the music industry slipped in an expansion which was rescinded after a justifiable outcry from the singers and musicians adversely affected. Copyright legislation is supposed to be accomplished by balancing the rights of the creators and the publishers (in the broadest sense of that word), which is a far cry from the Constitutional instruction (Article I, Section 8, Clause 8, as I recall) to Congress to balance the rights of the creators and the public. The founders of this country thought creative out put was important to the welfare of our nation. (I think John Kennedy was the last president who agreed with that. Hence, the Kennedy Center and the Kennedy Center Honors.)

So, according to the law, motion pictures and television programs may be considered "works made for hire" if the parties agree in a writing to that. What the real creator gives up is the right to the copyright of a work for his or her life-time plus 70 years. (I thought the plus 50 years was more than enough, but the Walt Disney Company saw the end of copyright protection for Mickey Mouse and paid copious amounts of lobbying money to get the term extended.) It very clearly doesn't have to be that way, because copyright rights can be licensed in parts with the balance retained by the copyright owner and it is possible for a writer to license a screenplay without losing their own copyright rights. Don't let the AMPTP find out you know this little secret, but going along with their legal fiction leads to the creation of the WGA. Writers have balanced the loss of control of the copyright by the ability to organize and collectively bargain as "employees" in the motion picture and television industries and that has led to residuals--payment for the relicensing for work during that work's useful life--just as a novelist collects royalties on a book (and, at least until the motion picture industry started foisting its business model on the publishing industry) and retains control of all subsequent and subsidiary licensing of the work for further royalties. And writers in television and motion pictures can strike in order to say NO! to a bad deal.

Writers are not like lettuce-pickers, except in the way they are treated by the forces of greedy businesses who want to exploit their labor without appropriate compensation

Lettuce-pickers do not have a Constitutional provision which entitles them to benefit from their creativity. Congress has the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

If the AMPTP wants to keep its little legal fiction alive by which writers have given up the authorship of screenplays and teleplays, they damned well better get back to the bargaining table and figure out a fair percentage for residuals in the new media and stop trying to pull the wool over the eyes of the public by crying poverty. Anyone with a computer can have financial facts at their finger-tips.

The AMPTP has looked to the WGA and other Guilds to help them with the fight against piracy. They've gone to Congress to cry about the money they are losing to pirates. They've sued people for pirating films and sued companies for uploading what they consider to be copyrighted work owned by them. If WGA members aren't going to see residuals for the Internet and see a piddling amount for home video sales, what's their incentive to helping with this battle? If the AMPTP was losing money on the Internet, the shows wouldn't be there legally.

Now, for any members of the AMPTP who think that busting the WGA, SAG, and the DGA will make life better for them in the future: Writers are more sophisticated than they were in the past and have access to a whole lot more information. A writer isn't going to sell a spec script without the knowledge that licensing "all rights forever throughout the universe" means that in 35 years he or she gets an inalienable reversion of the rights which were licensed and the companies are left with a problem. If DVDs were produced, they can continue to produce DVDs, but if the next mode of distribution is fiber-optic input silicone, that source of revenue is lost to them. We'll weep all the way to the bank.

This strike is not about being unreasonable. It is about getting a fair share of revenue. If the companies are making money, those individuals who created the work that is making them money are entitled to a percentage. But that percentage better be based in reality and not in Hollywood accounting. We all recognized Fred Amisten's character on Saturday Night Live the other night because we know an item that costs $0.60 to make and sells for $29.95 has a profit of $29.35, not a loss of $13 and change. For the writers and other creators entitled to get a royalty, an increase of $0.03 or $0.04 per unit is not going to send any studio head to the poor house. I understand the total increase that the WGA was looking for in 1988 would have amounted to $6,000,000 in payments--less than 10% of what Michael Eisner was pulling in salary that year and an even smaller percentage of the pay-off his buddy Michael Ovitz got when he was fired after a little more than a year helming Disney.

Even if the WGA got everything and every penny it was asking for and the other Guilds got the same, no studio head would be headed for the poor house and no company would be going under. This is all about greed, plain and simple, but too many studio heads believe in Gordon Gekko.

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