WGA authorisation to strike: why writers are defensive, in the streaming era

WGA authorisation to strike

Writers are absolutely essential to the supply chain of creation of enjoyable and diverse content, in the movie and TV industries. Yet, some of them are very much disgruntled, at the moment, in particular in the United States. And their concerns seem to stem from the disruptions imposed on their working conditions, in particular by streaming platforms, which now produce their own content (via either feature films or series) and therefore use the services of writers. Let’s dive into this issue, the changes that caused it, and what may happen next.

1. The role of writers in motion pictures and TV

1.1. Development versus production

1.1.1. Underlying rights

At the inception of every motion picture lay underlying rights of one sort or another. These rights may be manifested in the form of a published novel (The godfather) or autobiography (Raging bull), an unpublished stage play (Casablanca), a pre-existing film (Ocean’s eleven) or television series (Mission impossible), a person’s life story (Gandhi), a song (Frosty the snowman), a graphic novel (Batman), a toy (The lego movie), a board game (Clue), a video game (Tomb raider and, more recently, The last of us) or even a mobile phone app (The angry birds movie).

Other films are based on the rarest of all forms of underlying rights: an original idea! Of course, that original idea may be set within the context of historical events, either loosely (Singin’ in the rain) or more directly (Chinatown), and might also be inspired by actual people from history (Citizen Kane).

In broad strokes, the underlying rights being acquired as the basis of a motion picture could be founded in copyright, trademark, personal rights (i.e. US law rights of privacy and publicity) or implied contract. A combination of all of these rights may arise, on certain film projects.

These underlying rights need being acquired, via assignments, in order to become part of the chain of title.

1.1.2. Chain of title

Chain of title review should be a component of any acquisition of underlying rights. At its essence, this means identifying the genesis of the idea upon which the motion picture is based, then tracing each link in the chain of ownership to ensure that the rights were properly transferred and are not subject to any restrictions or encumbrances that would impair the film producers’ ability to produce and exploit the motion picture.

The first step is identifying the source of the project: where did the idea come from?

It could be a completely original concept dreamed up by a producer or pitched by a writer, or it might be an original take on a published work of media, art or entertainment. Either way, it would be advisable to enter into an agreement with the originator of the idea, and, if the project is based on preexisting intellectual property, then permission will also need to be obtained from the owner of that intellectual property.

In addition, if the preexisting intellectual property is based on the lives of real people, then, to the extent those people are going to be depicted in the motion picture, a signed release will need to be obtained from them, in compliance with their rights of privacy and publicity.

It is of paramount importance to build a solid chain of title throughout development.

1.1.3. Securing underlying rights: the motion picture literary rights option/purchase agreement

Once the necessary chain of title analysis is conducted, and the determination of which rights need to be acquired done, the film producers and their legal team will need to construct a deal to acquire those rights.

The most typical structure is the motion picture literary rights option/purchase agreement.

At its essence, an option is a grant of an exclusive right to purchase specified rights from the seller for a specified period of time, on specified terms. For example, a producer may pay a book author USD5,000 for an eighteen-month exclusive window wherein the producer may purchase all motion picture and television rights in the book by paying the author an amount equal to 2.5 percent of the budget of the picture, less the option fee already paid.

At the time the initial deal is being negotiated, it would be advisable to negotiate for the right to extend the initial option period once, or even twice, for an additional payment for each such extension. Typically, this extension period would run for an additional twelve to eighteen months.

1.1.4. Development

Acquiring the underlying rights and clearing chain of title is merely the beginning of a project’s development process. The film producers will next want to create a screenplay that has creative merit and is feasible to produce within the target budget.

Typically, the first step will be to hire a writer to create an original screenplay (or rewrite the existing screenplay, if the underlying material includes a screenplay that the film producer wants to use as a starting point).

As with the initial chain of title clearance, it is crucial to ensure that all rights and material generated during development can, and will, pass to the production. Therefore, anyone who provides services during this development phase, including writers and anyone who is supervising and giving notes to the writers (e.g. producers and directors) should all have signed agreements before they begin providing services. This is extremely important, especially once the project proceeds to production.

One of these agreements, to keep the chain of title clear, is the writer agreement: the core topic of this thought leadership article!

1.1.5. Motion picture writer agreements

The first question to ask, when the film producers are hiring a writer, is whether such writer is a member of the Writers Guild of America (‟WGA”). If not, then the production team and the writer are free to negotiate any kind of arrangement they would like (although the WGA rules, in particular the WGA minimum fees, often serve as a guide during negotiations, even with a non-guild member). If the production wants to hire a writer who is a WGA member, then they will be required to become a signatory to the WGA Minimum Basic Agreement (‟MBA”), and both sides will be governed by WGA rules.

While it is possible to hire writers on a weekly basis under WGA rules, it is much more common in the theatrical feature world for writers to be hired on a ‟step” basis, where they are paid for each pass of writing they make on a script. The WGA has divided those steps into the following forms: a treatment, first draft screenplay, final draft screenplay, rewrite and polish.

The WGA has also set minimum ‟scale” amounts that its members must be paid for each of these forms, which varies depending on whether the step is guaranteed or is at the producer’s option, and also depending on the budget of the project.

Once the production team has determined the number and form of the steps they want the writer to perform, the fixed compensation for each step (and amount of time given for the writer to complete each step) needs to be negotiated.

In addition to the fixed compensation for each step, the writer will try to negotiate for some kind of bonus based on credit. The typical structure provides for a fixed amount to be paid if the writer receives sole credit on the picture, reducible by all prior amounts paid to the writer (i.e. the fixed compensation for each writing step actually paid), plus a backend participation equal to 5 percent of the net profits of the picture.

The writer will likely ask for the first opportunity to render writing services on sequels, remakes and other derivative works, and for the right to receive passive royalties if they are not engaged to provide services on such derivative productions.

1.2. Motion picture versus scripted TV

So far, we have described the writer’s contractual arrangements, as they apply to the motion picture development and production cycle.

Let’s now turn our focus away from the theatrical feature film industry, and towards scripted television as a medium.

There are two key consistent characteristics of scripted television programming, which are essential to understanding the web of deal structures that bind the scripted television industry together.

First, television is a writer-driven medium. Let’s compare the role of the writer in television, to that of the writer in the theatrical feature film industry. In TV, in the vast majority of cases, the lead creative force behind a series (a ‟showrunner”) is a writer. This is in contrast to feature films, where the director is typically the ‟auteur” creative force behind a production. So, in television, most of the credited producers of a series are writers, who shepherd the project throughout its life-cycle. Successful showrunners include Ryan Murphy, Shonda Rhimes, Jill/Joey Soloway and Lena Dunham. In motion pictures, on the other hand, the writer’s role is generally performed entirely during the pre-production phase, and writers have little to no ongoing role in the actual production of their scripts. In TV, a pilot – and sometimes even a series – is typically greenlit to production on the strength of a pilot script and the reliability of the writers and producers, with actors and directors being hired after the threshold decision to proceed to production has been made. This is also a major difference from feature films, where the attachment of one or more key actors (and typically a director, as well) is virtually always the necessary component that pushes a film project from development into production. The dominant role played by writers in the television industry manifests itself in the process, and the deals, that bring a series to life. Because television is a writer-driven medium, the writer-producer agreement is often the most significant deal in the development process. But the staffing writer agreements, entered into with each one of the writers and writer/producers (other than the creator/showrunner) who will populate the ‟writers’ room” for the series, are also minutiously negotiated, in the scripted TV business.

Second, TV is a serialised medium. From a production perspective, a successful television series is always an ongoing project, which requires creative and production continuity over a period of years, months or weeks (as distinct from a theatrical feature film, in which cast and crew come together once, usually over a continuous or semi-continuous period of time, to produce a single closed-ended project watched in 1 to 3 hours maximum). Consequently, the dealmaking framework of television protects the ability of parties to maintain continuity of production and distribution over a period of weeks, months or years.

Now that streamers have successfully entered the space of scripted television, by producing more and more of their own series, in particular to meet the mandatory European-produced film quotas imposed by the European Union (‟EU”), the likes of Netflix, Apple TV and Amazon Prime are intensifying competition among studios and networks, for the best scripts, stories, talent and content. Also, streaming companies are moving the tectonic plates of how remuneration of writers work, in the film industry, but particularly in the scripted television sector, much to the chagrin of the WGA and its members.

2. Unionised writers: how the Writers Guild of America pulls the strings to improve writers’ fate

2.1. The deadline: WGA 2020 theatrical and TV minimum basic agreement expires on 1 May 2023

Every three years, the above-mentioned WGA’s MBA, which currently stands at a hefty 755 pages’ long, gets renegotiated and amended, by the members of the WGA’s negotiating committee, and the members of the negotiating committee of the Alliance of Motion Picture and Television Producers (‟AMPTP”).

The expiry deadline of the 2020 MBA is 1 May 2023, which is round the corner. However, the WGA-AMPTP contractual negotiations appear to have stalled.

Indeed, the WGA announced a two-week break in negotiations, starting 1 April 2023. Negotiations were slated to pick up again the week starting 17 April 2023.

Interestingly, the WGA-AMPTP negotiation is the first of three contract negotiations with entertainment unions. The Directors Guild of America (‟DGA”) will start negotiations on 10 May 2023, ahead of their contract expiration on 30 June 2023. The Screen Actors Guild (‟SAG-AFTRA”) contract with AMPTP will also expire on 30 June 2023.

2.2. Authorisation of strike to be ordered by WGA has now been granted

The WGA and its members have grievances. And anger has been boiling for a while now.

Already, in late 2007 until beginning of 2008, i.e. during the last worldwide financial crisis and collapse, a writers’ strike took place for 100 days in the United States (‟US”), bringing Hollywood production to a screeching halt.

Then, four years ago, on 22 April 2019, more than 7,000 WGA members fired their agents en masse – in a display of solidarity at the start of the WGA’s historic two-year campaign to reshape the talent agency business that still is playing out today, emboldening the guild in its ongoing negotiations with the studios and streamers for a new film and television MBA. Five days before the mass firings, the WGA filed a lawsuit against the big four talent agencies of the time (CAA, WME, UTA and ICM Partners) that sought to establish that packagings – in which the major talent agencies were paid fees by production companies to package the creative elements of their projects – were illegal under California and federal law.

Three of the eight named plaintiffs in the case – Meredith Stiehm, Ashley Gable and Derek Hughes – now serve as members of the WGA’s contract negotiating committee, with Ms Stiehm being elected president of the WGA West, six months after the last of the major agencies finally agreed to give up packaging fees in February 2021.

So, why are the WGA and its members angry?

On 14 March 2023, the WGA released a statement, complaining that, driven in large part by the shift to streaming, writers are finding their work devalued in every part of the business. According to the WGA, ‟while company profits have remained high and spending on content has grown, writers are falling behind. The companies have used the transition to streaming to cut writer pay and separate writing from production, worsening working conditions for series writers at all levels. On TV staffs, more writers are working at minimum regardless of experience, often for fewer weeks, or in mini-rooms, while showrunners are left without a writing staff to complete the season. And while series budgets have soared over the past decade, median writer-producer pay has fallen.

In comedy-variety, writers working for streaming services – which are now the primary platforms for entertainment content – lack the most basic protection of MBA minimums.

For screenwriters, compensation has also stagnated over the past four years. Their pay is often stretched out over many months and can be held hostage by producers’ demands for free work. Particularly for screenwriters working at or near MBA minimum, these conditions are untenable”.

So, streaming studios have reshuffled the cards, disturbing the old set ways of the TV business, by giving short orders to writers (for usually 8 to 9 episodes, rather than 22 to 23 as is customary in linear TV), separating writing from production and not relying on any season calendar (which, in the television series’ cycle, runs from September of each year to August of the following year).

To conclude, the WGA and its members want more money (elegantly described as ‟writer compensation and residuals from features in theaters or on streaming platforms” in the WGA statement) and more job security, as well as an end to the ‟mini-rooms” (i.e. smaller number or writers in the writers’ room). Other demands relate to increasing contributions to writers’ pension and health funds, as well as getting ahead of burgeoning technologies like artificial intelligence that are perceived as threatening writers’ jobs.

On 17 April 2023, the results of the WGA strike authorisation vote were in, with 9,020 (97.85 percent) of WGA members voting for such authorisation. Therefore, if no deal is in place by 1 May 2023, there is a very high probability that the WGA would start a strike, and all its members with it.

Let’s watch the space and see whether the writers’ ire has a ripple effect on the DGA/AMPTP and SAG-AFTRA/AMPTP upcoming contract negotiations!

3. The other side of the pond

3.1. United Kingdom and its writers: risk of inflammation in the horizon?

The Writers’ Guild of Great Britain (‟WGGB”) is the trade union representing professional writers in TV, film, theatre, radio, books, comedy, poetry, animation and videogames. So it is the equivalent of the WGA, but for the United Kingdom (‟UK”).

Like the WGA in the US, the WGGB negotiates rates and agreements, on behalf of its members. Such rates and agreements cover TV, theatre, audio and some areas of (theatrical feature) film. These national agreements cover key industry bodies, including the BBC, ITV, National Theatre, Royal Court and Royal Shakespeare Company.

The WGGB lobbies and campaigns on behalf of writers, to ensure their voices are heard in a rapidly changing digital landscape.

Therefore, the WGGB swiftly displayed some solidarity towards the WGA and its members, in their contract negotiations efforts, releasing a statement setting out that ‟in light of the WGA’s ongoing contract negotiations, including the recent announcement of a Strike Authorisation Vote from 11-17 April 2023, the WGGB’s executive council has supported the following motion. The WGGB advises its members not to work on projects within the jurisdiction of the WGA for the duration of the strike”.

Some commentators are even musing over UK writers following the footpath of their US colleagues, and contemplating labour action on their own. However, this is pure speculation, at this point in time.

3.2. France and its writers: all quiet on the Western front

Meanwhile, the French are mainly concerned about the fact that a WGA and writers’ strike may impact indie production and sales – at the upcoming 2023 Cannes film festival!

French writers are represented by the ‟Société des Auteurs et Compositeurs Dramatiques” (‟SACD”). And the French being VERY attached to their rights, privileges and perks, the SACD is doing a very efficient job to ensure that its members are well protected, well paid (via royalties, wages and residuals) and cannot be bossed around by film producers or showrunners/TV producers.

In November 20222, the SACD has even obtained that the French audiovisual authority, Arcom (which rules all French TV and cable networks as well as streamers which offer content in France), has a right to check the provisions of writers’ agreements with their producers, in order to assess whether these clauses are compliant with French copyright law!

With French theatrical numbers on the mend and up, post-COVID, French writers make the most of the protective context in which they evolve, where mandatory EU content quotas for SVOD platforms (imposing that 30 percent of all content on streaming services must be European-made) guarantee demand for original, home-grown films and series which most streamers will be unable to fill on their own.

Crefovi’s live webinar: WGA authorisation to strike – why writers are defensive – 28 April 2023

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