Did the DGA Screw the Writers--Again?

The WGA has jettisoned its demands on behalf of animation and reality writers at the "informal talks" with the AMPTP which started this week. That sucks. And so does the pressure mounting from people who think the DGA agreement is something the WGA should accept. This is without seeing the actual agreement.

I've got a really major complaint about that agreement based on the summaries I've seen: the DGA sold out for too little on the Internet by agreeing to flat rates and a window of opportunity for the studios to (a) take all the money that comes in during the first couple of weeks of Internet availability while (b) there is no guarantee that the material will actually remain available after that.

I'm sorry, but if the DGA wanted a guarantee of payment, it should have stuck to a demand that any flat fee be an advance against a residual percentage of money from Download One. That's basically how the publishing industry has worked for centuries (although the vertical integration of media has meant that there is an attempt to steal those royalties from writers.) And why won't the studios agree to a reasonable percentage-based residual like that? Because I am willing to bet they've seen the future killings they will get by limiting creators to flat fees and barring them from participating in any way in the most valuable period of availability--the first three weeks of release. As David Letterman says "the AMPTP: cowards, cutthroats and weasels." And as Viggo Mortensen puts it, " it would be noble and only fair if those corporate decision-makers in the entertainment industry who are spending considerable funds on their reasonably successful campaigns to put the Writers Guild in a bad light as party-poopers would spend that money on a fair contract and fair compensation to the writers..."

I wish the negotiators the best, but I hope to god they stay firm with a demand for a percentage of download that does not include a black-out for the writers and shows some semblance of making up for the fact that there will be fewer and fewer reruns on network TV in the future. No more rollbacks.

DGA/AMPTP Accord

The word is out, but no details: the Directors Guild of America has reached a new contract with the AMPTP. The only thing we're waiting to find out is how badly the WGA is screwed.

It will be interesting to see if the DGA members who are also WGA members will be happy with the results. In features, the director is likely to be in a position to negotiate a better than minimum deal, but there are only a relatively few feature writers in this position (if the Swamp Thing movie is ever made, Len is likely to see far more money from his creator's deal with DC than he will for the back end of his contract with Warner Bros. for writing the script.) That's why the WGA negotiations are so important for most writers.

OTOH, if the deal the DGA struck is so onerous, the WGA may not be willing to take the scraps offered. In that case, directors will find themselves putting their respective creative touches on 120 blank pages. It doesn't start with the director. It starts with the writer.

And You Think You've Got Stress?

Hillary Clinton chokes up on the campaign trail and the reports sound like she's having a nervous break-down. Just how much do people hate smart, well-educated, accomplished Democratic women in this country? Give me a friggin' break. I don't recall the press stopping for a minute to report on the Reagans' abilities to tear up on cue, which I had the distinct displeasure to observe on an assignment one day back in the 1980s. Hillary's appears to have been an honest moment in a hard-fought campaign. It's tough to watch something you've worked for and you know you'd be great at slipping away.

I'm also really pissed at the commentators who think that things are all over with these two contests which represent less than 2% of the electorate. I'd suggest waiting until after Super Tuesday, when places like California get to check in, before drawing conclusions. Since I still think that Dennis Kucinich is the only candidate speaking like a true liberal, I'm more than irritated that the networks think they can limit candidates access to debates (that's you ABC.) I also think that it's questionable journalism that skewed the coverage after John Edwards came in second to Barack Obama by saying it was a race between Barack and Hillary. And the report I heard saying Hillary had lost Iowa by double digits was also unfair. She lost to Barack by single digits and was right on John Edward's heels. Only by combining the Obama and Edwards numbers does she lose by "double digits."

This race is exciting as it is. I know it is impossible for Fox Noise to be fair and balanced, but that doesn't excuse any of the rest of the journalists out there.

John Stewart and Stephen Colbert returned to the airwaves last night and did a great job of spreading the word on the WGA strike by bringing on guests who could intelligently talk about labor relations and the monetary issues at stake. We roared with laughter at "The AMPTP, pronounced NAMBLA" and Stewart getting jibes in about the companies lying either to the writers or their stock holders. Colbert's feigned lack of understanding about where the words on his monitor come from was priceless, as was the lack of "The Word."

I so wish the WGA would issue those shows interim agreements, but I do understand why they won't--so far. Unlike David Letterman, who owns his own show, I'm pretty sure Viacom owns "The Daily Show" and "The Colbert Report." Without the rest of the company signing on as well, it isn't a move in the right direction. Sigh.

Strike Lines 2008

It's back to the picket lines for my writer friends and family. At least the rains have stopped this morning and there's blue sky to be seen. I know the WGA wanted a good turn out today and I hope they get it.

I haven't checked the other websites yet, but there was rumor that United Artists, currently headed by Tom Cruise, was ready to sign the WGA agreement. United Artists hasn't been a powerhouse in a long time, but it got its start with performers Mary Pickford and Douglas Fairbanks, as I recall. It is the kind of place which would seem a likely candidate for solidarity with the writers.

How long will it take for stockholders to look at what the studios, networks, and AMPTP are doing before they start yelling "enough!"? The WGA is willing to negotiate and the terms they are asking are fair and reasonable. The late night comics are now reaching middle America, which may or may not have had a clue about things before last week (although I think it probably did--even in middle America box office returns are discussed on Monday morning.) AMPTP is looking pretty bad and the WGA and SAG have managed to pretty much scuttle the Golden Globes ceremony (as others have said, at least something good is coming out of this strike.)

A Good Idea

Rachel Abramowitz had a great idea in her L.A. Times article covering the Golden Globe nominations this morning: take the $100 million the studios use to promote films during awards season and use the money to solve the writers' strike. Not likely to happen, since it is logical and shows how the studios are willing to through good money after bad in some cases. I guess the studios look at it as millions for defense but not one penny for tribute. Cheap bastards.

To Boldly Go: Recognizing Trek Writers on the Strike Line

Considering how badly many writers were treated by Gene Roddenberry and some of his successors, there's a certain pleasure in knowing what's going on over on Melrose Avenue today. Oh how I wish I could be joining friends like Harlan Ellison and David Gerrold outside of Paramount Studios for today's Star Trek themed strike event. I would so like to get one of the special tee-shirts the WGA printed up. Having a day job is definitely getting in the way of my avowed occupation as a creative rights activist.

Friend Gillian Horvath explained about the various strike locations she's been on last night at our Amazing Race (yes, it's reality TV and no, we don't boycott it) watching dinner (this shiksa managed to make a nice brisket and latkes, even though I no longer eat red meat and brisket is a food I never ate with my Italian-American family.) She explained that the Bronson Gate at Paramount has "strike dancing" every Monday at 11 and it also has a "singles strike line" the same day. And I thought it was pretty funny 20 years ago when certain supermarkets in the D.C. area were identified as great places for singles to meet (the up-scale place in McLean was my favorite--rather like a Pavilions, Gelsons, or Bristol Farms is out here in L.A.)

Gillian gave us a demonstration of the "strike dance" choreography, complete with the drill team moves. Priceless. We agreed that the themed strike events are doing a lot to keep morale high during this trying time.

Meanwhile, the AMPTP showed its lack of good faith by walking out of talks Friday with a prearranged PR release blaming everything on the writers--after failing for four days in a row to produce the response to the WGA's counterproposal on Tuesday as they had promised. And Tom Short got IATSE to march in what was, in effect, a protest against the WGA strike over the weekend. No wonder they didn't want WGA members to support the demonstration. I have less and less respect for Tom Short every day and I can't help but feel much more sympathy toward the members of Local 600 who clashed with him (and lost their places in the board.) The man is acting like an AMPTP shill.

Some producer was quoted in the L.A. Times as saying the selfish writers don't care about the working stiffs. I've got news for said producer: my husband and his colleagues ARE working stiffs.

Scare Tactics

The Los Angeles Times reported this morning that the AMPTP has done such a poor job of telling its version of the WGA strike story to the public that they've gone out and hired a hard-ball public relations team to take over from the in-house effort and combat the very good job the WGA has done to tell its story to the world. Isn't it amazing what good writers can do? The article is here, and it should be a warning to all WGA members about what is to come in terms of devisive tactics so the studios win. Given this warning, nothing which is said by the AMPTP should be taken as the truth. I hope people remember this.

PR professionals profess that getting the truth out quickly is the best way to counter potential bad publicity. But when the truth is that you are greedy, scum-sucking weasels like the corporations which make up the AMPTP, it's very hard to tell the truth. That's why PR professionals are also known as hacks and flacks and are likely to work for anyone who will pay them. I have no doubt that the price of this publicity campaign will cost the AMPTP far more than the paltry $151 million over three years requested by the WGA for its members. Just watch.

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.