Tuesday, 7PM: Open for Business

As of 7PM yesterday, the WGA strike is officially over. This is great news—nay, fantastic news—and deserves some closing remarks.

Why did the strike happen at all? How could it have gotten so bad that writers thought their chances of getting a better deal would require walking out on work altogether? Why did the AMPTP offer so many rollbacks and no residuals on the internet before the strike, only to cave at the end of the strike?

Here's what I think...

Hollywood moguls were under pressure with their Wall Street investors to perform financially. The AMPTP was watching an emerging new media—the internet—where they they had been labeling webisodes and mobisodes as "promotionals" to encourage viewers to get hooked on a given series. Once a full episode had been broadcast, it was cheaper to re-broadcast those episodes and also label them "promotionals". Because webisdoes, mobisodes, and full-episode internet broadcasts were considered promotionals, aka "freebies", nobody can be paid from them or the AMPTP loses money.

Since the writers went on strike in 1988 and were convinced then to accept a debilitating residual rate on video rentals for VHS (the AMPTP's tack then was, "we don't know yet if there will be any money in home video rentals or DVD sales, but don't worry, we'll take care of you next time..."), the AMPTP thought they could pull the same stunt again. After all, the WGA is a guild, i.e., a loosely knit, geographically decentralized group, not like a company of workers, so if a strike occurs, it should be easy to whittle down the writers' collective resolve as the months would drag on. And to remind the writers on who's the boss, the AMPTP would start by offering writers 34 pages of rollsback on pension, health care, etc. so writers have to claw past all those rollbacks first and not have enough gumption left over to dispute the Big Kahuna, internet residuals. Essentially, divide & conquer.

What they didn't count on was:

1. Writers have a long-term memory. The DVD medium for digital entertainment is already on its way out, soon to be replaced by the internet, and writers haven't forgotten how they got screwed the last time around with the residual rates for home video rentals and DVD sales. Like an abused lover, writers grew some self-respect since the last strike.
   
2. Writers had the high moral ground. Writers weren't asking for a lot, just to receive residuals as authors of their work as if they were book authors and songwriters. Even then, they weren't asking for a set fee, but a percentage of profits—"If you don't get paid, we don't get paid." Writers slept the sleep of The Pure; their resolve was absolute.
   
3. Writers are writers. The AMPTP might have waged an effective war in the trade magazines, but writers make their money with words, so over time, the court of public opinion swayed in their favor. It's kind of absurd for the AMPTP to tell Wall Street investors they expect to make tons of money off new media but tell writers there's not enough money to pay residuals fees to compliment meager upfront costs.

The strike's over. United we stood, united we won.

EPILOGUE
Every battle has its compromises and some items were left on the table. The WGA wanted to bring reality TV writers under the WGA umbrella, but had to cut that lifeline, for now. Most of us would assume reality TV shows don't even use writers... I mean, it's reality TV—what's there to write? While that's true to an extent, the AMPTP does hire "Consulting Producers" or "Story Editors", which is basically the AMPTP trying to give a title to these people which doesn't include the word "writer" for fear the WGA would try to have them covered, which means the AMPTP would then have to pay benefits, pensions, meaning less profit. But what does a "Consulting Producer" or "Story Editor" actually do? They create situations (scenes), they might help cast talent that best interact with each other (character creation), and develop each episode's rough storyline (story arcs). So in many respects, these people are a new breed of writer.

Thus, they also ought to be covered by the WGA.

But you can't win them all. Looking forward to 2011...

Strike is almost over... (phew)

It looks like the WGA & AMPTP are really close to putting this nasty strike behind them:

LOS ANGELES (Reuters) - Negotiators for Hollywood studios and striking writers have agreed to terms of a new contract that could be presented to union leaders in days and, if approved, end their three-month-old labor clash later this week, two sources told Reuters on Monday.

While the outlines of an accord were reached over the weekend, the two sides still need to hammer out contract language before a deal is submitted for approval to the governing boards the East and West Coast branches of the Writers Guild of America, they said.

Those sources, who were briefed on the status of talks but were not authorized to speak publicly about them under a media blackout, said negotiators hoped action by the WGA boards on a deal could come as early as Friday.

An endorsement by WGA leaders presumably would be accompanied by a decision to call off the strike, but if the WGA boards were divided, the walkout might continue pending a ratification vote by rank-and-file members.

One source said the big breakthrough in the latest round of talks, which began January 23, came on the key sticking point of how much writers should be paid for advertising-supported Internet "streaming" of television shows.

That source also characterized the writers' agreement in principle as an improvement over the terms of an earlier, separate contract deal for Hollywood directors that helped pave the way for studios and the WGA to resume bargaining after weeks of stalemate.

"They reached agreement on the major terms, and now its a question of reducing it to (contract) language, which we're all hoping goes well and continues in the same spirit of progress that the talks have experienced so far," he said.Link.

This is fantastic news. Obvi.

As for how good the deal is? Time will tell... stay tuned.

P.S. I got handed about a month's work to do in 2 weeks so you won't see me updating very much for a while.

Bognosian: 6 points on the AMPTP's motives

This email from Eric Bognosian (care of Nikki Finke's site) offers some excellent insight about the AMPTP's motives:

1) In the spirit of 'residuals', the producers have never played fair. Contractually they short the writers (take a look at the international "buy-out", which isn't even being discussed in this negotiation) and then short the writers again by under-reporting income (again, especially internationally).

2) In the new "Internet" age, for the first time, very exact accounting will be possible. Of course the advertisers will demand such exact accounting. Servers will be able to count the "hits" on any download very exactly. So potential residuals can potentially be calculated to the fraction of a dollar.

3) In the new Internet age, the producers / studios / networks will be able to circumvent the international "middlemen"—national television stations and distributors in foreign territories. With the Internet they will be able to distribute directly to the local consumers. Furthermore, they will no longer need to distribute only to the largest markets (Germany, Italy, etc.) but will be able to distribute to every single person with internet access on the globe (Antarctica, for example).

4) Ergo: Much greater profits (for example, a product like Coca Cola can advertise by being tacked onto an international distribution of say, the tv program Friends, or a download of American Gangster that goes directly to every person with a computer on the planet.) And Coke will be able to count every hit. Potentially, so could the WGA.

5) Much greater profits and much greater exact accounting. Studio / networks want one and not the other. Understandably, since they haven't been sharing in any real way in the first place (except with their insider partners, the star producers).

6) This gives them a good reason to attempt to break the union(s). It's not irrational. It's just business.

Residuals aren't just for writers

More insight as to why the Producers are leaning on writers so hard. Courtesy of Stephen Susco:

Is the AMPTP colluding?

This piece poses an excellent question: why are producers legally allowed as a single body (the AMPTP) to negotiate with each labor segment separately... when producers are actually competitors? As Elisberg puts it so plainly: "The AMPTP is like if General Motors, Ford, Daimler-Chrysler, Toyota, Honda and Nissan all got together, decided the terms they would offer employees, and then negotiated as a single body against one isolated division of U.S. auto workers at a time. Divide and conquer. Take it or leave it."

Hmmmm, divide and conquer. Sound familiar? It should.

I wonder how long it will take for Big Government to realize that the AMPTP is acting like a monopoly...

Writers Guild Strike Primer: Part 8, The Big Question
by ROBERT J. ELISBERG
Posted December 6, 2007 | 11:00 AM (EST)

Negotiations between the Writers Guild and AMPTP have started again, and there is a fascinating situation at play, yet it has gotten little attention.

Look at that sentence again. Actually, I'll make it easy for you, just re-read the first seven words.

"Negotiations between the Writers Guild and AMPTP..."

It certainly looks normal. No one gives it a second thought. But the entire entertainment industry should. In fact, everyone should.

There is a hugely-important question here.

The AMPTP, you see, is a group of about 350 member film companies. Nine companies at the top, however, drive the whole train.

"Nine companies" is a polite term. Megathorpian multinational corporations is the accurate term. You know, General Electric, Time-Warner, Sony Electronics, News Corp. -- otherworldly behemoths, like that. The kind of gargantuan institutional leviathans who, when you refer to "they" (as in "You know what they say" or "How could they do this to us?") are the "they."

Here's the question.

Why is it the AMPTP who is negotiating with the Writers Guild of America???

In fact, why is the AMPTP negotiating with anyone? The Screen Actors Guild, the Directors Guild, any of the 80 industry-wide collective bargaining agreements it handles.

The issue is not that these AMPTP companies are part of multinational corporations...it's that they are competitors with one another.

Let's repeat that: the AMPTP is comprised of competitors. And they are negotiating together against labor?? In heaven's name -- why?

Before anyone tries to answer the question, hold off a moment as this is put into a larger perspective.

Imagine the auto industry for a moment.

The AMPTP is like if General Motors, Ford, Daimler-Chrysler, Toyota, Honda and Nissan all got together, decided the terms they would offer employees, and then negotiated as a single body against one isolated division of U.S. auto workers at a time. Divide and conquer. Take it or leave it.

It's not that it would be massively illegal. It's that it would be unconscionable. No one in the aghast free world would stand for it. Even Luddites who wished it wasn't illegal understand why it's unacceptable.

Or imagine if all the tobacco companies got together. What if they hid research about nicotine, and then...oh, wait, they did. And they all got hauled before Congress.

Competitors are not allowed to negotiate together, to even confer together. It's called collusion. When baseball owners merely created an "information bank" for offers being made to free agent players, they were fined $280 million. Two competitors cannot talk with one another if there's just a hint of agreement. Imagine ALL competitors in an industry getting together to set ALL wages and ALL labor conditions.

It doesn't happen. Anywhere. Not "anywhere in the U.S." Anywhere in the free world.

Except Hollywood.

Paramount, Fox, Warner Bros., NBC, Disney, CBS, Universal, Sony, MGM...and 341 of their signatory pals all unite to set the pay scale and working conditions for writers. And then for actors. And then directors. And then for all employees in the entertainment industry.

Say what?

Why is it the AMPTP who is negotiating with the Writers Guild of America???

Everyone grasps that it's wrong for competitors to gang up. Little children understand it's wrong. ("Mom! Billy and Janey are teaming up against me!" "Now, you kids leave your brother alone. You know it's not nice.") Everyone knows it. Embryos know it. Paramecium. Rocks.

And even the AMPTP knows it

On November 14, WGA president Patric Verrone and SAG president Alan Rosenberg went to Washington, D.C. and met with congressional leaders and the FCC to inform them about the difficulties of negotiating with "seven multi-national conglomerates, all supposedly competitors but they all come together to negotiate."

Two days later, the AMPTP announced it was finally willing to go back to the negotiating table.

This was not a coincidence. There were many reasons the AMPTP went back to the table -- but this was not a coincidence.

Two days. There were terrified.

It's not just the terror of Congress looking into monopoly collusion, but Congressional hearing and lawsuits over the media monopoly stranglehold. Americans have a long-held abhorrence for illegal monopolies.

Why is it the AMPTP who is negotiating with the Writers Guild of America???

In any other world, in any other industry, the writers -- and then actors, directors and others -- would each negotiate separately with their employer, one at a time: You get a fair contract with one studio, and everyone else either agrees to the same basic deal or falls behind their competitors. It's the way business works. It's the way the law works.

Up to now, the entertainment industry has accepted this arrangement. Up to now, they've long-become used to heavy-handedness, but they expect fairness, as well. However, when rampant, monopolistic corporate greed passes all decency, at some point they might have to give the arrangement another look.

"They" - this time - is the United States government.

And so it's up to the AMPTP to decide what's truly in their best interest. Greed or fairness. What's at stake for them is arguably their worst nightmare. Because someone in a position to do something may eventually ask a very big question.

Why is the AMPTP negotiating with the Writers Guild of America???


UPDATE

One semi-caveat here, just to be fair. Because Fair R Us. I've subsequently been told that there might be some law that allows for certain collective bargaining by companies. But regardless if that's the case, the larger perspective and question that's posed remains -- even if there is some law, it's obviously not something that's used much, if at all, in other industries. Why Hollywood stands for competitor companies uniting to negotiate is something that should be addressed -- not only by the creative community, but the companies themselves, since it's becoming apparent daily that they have such divergent interests among one another.

And to be clear, it's not just that competing companies unite to negotiate, but that they do so against each individual segment of labor one by one. If the companies really do want to unite to negotiate, make it a fair fight and negotiate against all the unions of their industry together, as well. Then, you might see quite a different result. (It would be a mess, but hey...)

The bottom line is that there certainly appears to be some major unfair balance here, whether there's a law or not, that should be addressed. Laws are supposed to correct wrongs, not bring them about. If a law does exist, then it appears its being abused as not intended, and should be redressed. In the end, law or not, the question remains -- why is it the AMPTP who each union negotiates with, not individual companies?Link.

Divide & Conquer

Finally, some insight! The email below was just emailed to WGA writers and provides exactly the insight I've been looking for to explain why the producers seem to be shooting themselves in the foot. Basically, they're trying to wear down the writers in the hopes they break rank:

The Playbook of the AMPTP
Fellow Members,
A few years ago, I was on the WGA Negotiating Committee. As negotiations with the AMPTP were drawing to a close, I went to a dinner party where I happened to be seated next to a gentleman who until recently had been for decades the chief negotiator for the Companies in another segment of the entertainment industry. He was a wiry guy, and he had a sense of humor. When I asked him if he was the Nick Counter of that particular part of the industry, he smiled and said wryly that he thought he was better than Nick but, yes, that was a fair comparison. He said he knew Nick and admired him. For an hour and a half, sprinkled in with the small talk, he told me about his negotiating strategy. After the party, I went to my car and jotted down as much of it as I could remember. I thought it might be useful to share it with you now:
Strategy for Hardball Negotiations:
Piss off the leaders and spokespersons for the other side. A leader who loses his temper loses something in negotiations. Why?
1) Anger clouds judgment.
2) It’s human nature to want to be liked, even in a tough-as-nails negotiator. A person who loses his temper is embarrassed, usually comes and apologizes, and always gives something away to get back into the good graces of the other side.
The end game is the money, but hardball negotiations aren't about money, until the end. The real game is dividing and conquering.
Tactics:
* Lower the expectations of the other side, divide and conquer.
* Raise and lower the expectations of the other side, divide and conquer.
* Do everything possible to destroy the credibility of the other side’s leadership, divide and conquer.
* Use confidants and back channels to go over the heads of the stronger leaders to the softer targets. Divide and conquer.
* When you figure out the other side’s bottom line, offer a fraction. It’s surprising how many times that stands.
Sound familiar? If you examine the recent "leaks," comments, and press releases from the other side, you'll realize this is exactly the strategy the Companies are employing against us today. And why not? It's worked for them for the last 20 years! They are putting us on an emotional roller coaster by raising and lowering our expectations, attacking our leaders, trying to pit the town against us, refusing to move on the issues that matter to us, bragging about their generosity when the opposite is true, fear mongering and claiming we're going to ruin this industry – hoping we'll splinter, lose faith in and attack each other, negotiate against ourselves, and cave.
As events unfold in the next several days and weeks, we should have no doubt about what the Companies are really up to and what to expect from them. But this time, in every way possible, we must let them know we're on to them and their strategy won't work. We understand their game, our solidarity and resolve are greater than ever, and we're going to stay strong – and reasonable – until we get a fair deal.
Let's return to the picket lines every day with a powerful show of force. As Patric says, we're all in this together.
Tom Schulman
WGAW Board of Directors

Auto salesmen use a similar tactic. They hook you by various means—e.g., to prolong your wait time so you think, "Well, I've spent a lot of time here... I might as well buy something."—until they can find something which really sticks (the right car, the right price, the right dealer) and then reel you in. This tactic, however, is a two way street. I knew a customer who went to a car lot early in the day and purposefully hemmed and hawed until 10 hours later he hadn't made a final decision. His tactic was simple: "they think they're getting me to waste my time, but I'm also getting them to waste their time." Imagine you're an auto salesman spending 10 hours with a customer only to see him walk off the lot undecided. Finally, after 11 hours, he was ready to sign a check and looked up a the salesman and said, "Knock of $1,000 or I walk." They were shocked at first, but so impressed with his by-the-book 11th hour negotiating, that they offered him a job.

A cause worth dying for

A man without a cause worth dying for is not fit to live.
—Martin Luther King, Jr.

I've been trying to put into words, succinctly, exactly why the WGA strike is a battle worth fighting. It becomes especially difficult to justify when you see people losing their jobs because of the strike. Worse, they're usually not even writers, just innocent victims caught in a crossfire.

And then I read this bit by John August and I felt he had reached into my body and strummed a perfect harmonic (boldface and italics are mine):

I got an email yesterday from a friend (and USC classmate) who works as an editor on a TV show. He was upset that in my blogging about the strike, I hadn’t talked about the many below-the-line crew members who have lost (or will soon be losing) their jobs as a result of production stopping.... many of the non-writing, non-acting folks who are integral to making movies and television feel that the WGA was cavalier in calling the strike.

The thing is, we’ll never know.... The better question — the question I asked my friend the editor — is whether there’s anything he’d strike for, even knowing that it would (at least in the short term) hurt him, his colleagues and others inside and outside of his industry. If the answer is “no,” that a strike is never an option, then he should be prepared to lose his health, pension, and other benefits. Because that’s how they were won.

Back on Track

Thanks to weeks of backchannel phone calls by some big name Hollywood agents, it looks like the WGA and AMPTP are going to meet up after this Thanksgiving holiday. This is great news, but...

...like everything else in this business, one's expectations can be summed up in two words: "We'll see."

P.O.V. I.S.P.

This chant heard today at NBC's picket line:
"On an Internet download where if a writer doesn't get paid, it's called PROMOTIONAL.
"On an Internet download where the studio doesn't get paid, it's called PIRACY."
Link.

From the Horses' Mouths*

* no WGA writers were used to script the following interviews.

Which pencil goes down?

Writers can write spec scripts, but they have to be truly spec scripts—outside of any contractual relationship, expressed or implied, with a producer. —WGA spokesman Gregg Mitchell

In the midst of this writers' strike, many writers are still unclear what they can and can't write.

Take this L.A. Times article:

"Surely, we can write a spec, right?" asked Tim Fall, another WGA screenwriter and actor....

A few minutes later, Fall [had] resolved the spec issue, sort of. "My lawyer e-mailed me," he said, holding up his BlackBerry. The verdict, he said, was that writers "are not enjoined" from writing spec scripts, but that it was nonetheless "potentially a gray zone."

Great. Big help.

What are the guidelines in this new war zone? For starters, the WGA has drawn up its own Strike Rules:

1. Stop writing for all struck companies immediately.
   
2. Do not deliver or submit any literary material or any documents to a struck company.
   
3. Do not negotiate with a struck company.
   
4. Notify struck companies to return your literary material.
   
5. Do not discuss future employment, sales or options with a struck company.
   
6. Do not negotiate with a struck company to obtain financing for development or production of a project.
   
7. Honor all Guild picket lines and do not enter the premises of any struck company.
   
8. File with the Guild copies of all unproduced literary material written for a struck company ("script validation program").
   
9. Inform the Guild of the name of any writer you have reason to believe is engaged in any strike breaking activity or scab writing.
   
10. You have the obligation to picket and/or perform other strike support duties.
    
11. Do not attempt to negotiate a settlement of the strike with any struck company.

That sounds to me like WGA writers are still free to write whatever they want as long as it isn't intended to be for pay. You can write a spec screenplay for yourself, but—for the duration of the strike—not with the intent to sell that spec to anyone in particular. Obviously, that's cold comfort to serial TV writers, but feature writers can dig out their wildest script ideas and go crazy. These scripts might get sold one day, but they're not being written to be sold. A hazy difference, perhaps, but an important one. Writers have writing in their veins... telling a writer not to write at all is like telling the sun not to rise.

The WGA also has this to say about non-members:

The Guild does not have the authority to discipline non-members for strike breaking and/or scab writing. However, the Guild can and will bar that writer from future Guild membership. This policy has been strictly enforced in the past and has resulted in convincing many would-be strike breakers to refrain from seriously harming the Guild and its members during a strike. Therefore, it is important for you to report to the Guild the name of any non-member whom you believe has performed any writing services for a struck company and as much information as possible about the non-member's services.

In a union-happy town like L.A., having your WGA membership barred is pretty bad news. Some writers are cavalier about crossing the picket line, which is highly risky, because if the WGA doesn't unconditionally and indefinitely welcome them into the picket line (as wise strikers would do), it's career suicide.

Spin That Promotional

I was once watching late night TV and saw two men sitting at a table, the one on the left interviewing the other on the right. The man on the left had a nice shirt and tie, and suspenders. In the background, an outline of a world map was composed of many light blue lights against a dark backdrop. Sound familiar? It looked like Larry King Live.

In fact, I thought, "Okay, this interviewer must be a stand-in for Larry King. So who's being interviewed?" The setting and dress lended the authenticity of Larry King... but it wasn't Larry King. And so I listened to this dude being "interviewed" about an amazing memory system he had devised. They spent many minutes touting the usefulness of the system and they had done such a great job of it that near the end of the program, I wanted to buy their memory system. Until the words flashed on the screen "PAID ADVERTISEMENT". It had been a sham. All the legitimacy I'd lent it because it looked like Larry King had been completely false. The interviewer was not a fact-finding journalist, but a paid actor.

Some years later, I heard a telemarketer talk about this approach as "framing our product in an environment familiar to the viewer". As he said that, I smiled as I heard in my mind comedian Bill Hicks:

I suppose the telemarketers who made that Larry-King doppelgänger can live with themselves by "framing" truth so they can better sleep at night, but all I see is a deception, an un-truth, a lie. In common parlance, it's referred to as a bait-and-switch.

And one such deception is "framing" web-based entertainment as "promotional". If you call a show a "promotional", the logic must go, it suddenly becomes something used to sell a larger product, so the writers and actors and crew members get paid nothing. If you you point a camera at Matthew Fox and broadcast that recording on TV with commercials, or sell it on DVD, writers get paid money. But if you broadcast the same thing online—and show advertising(!!!)—writers get paid nothing because it's "promotional".

Yeah. Sure. Sounds totally fair to me.

Why Writers Must Strike

WGA member Harold Gould explains, without hyperbole or venom, why writers must strike:

Red Shirts & Picket Signs

Well, it's official—the 11th hour talks with the AMPTP broke down and the WGA is walking the picket line.

That means I'm officially closed for business; let's all hope the negotiations continue and the strike has a swift resolution so we can all get back to work.

Monday, 12:01 AM: Closed For Business

As I type this, negotiators for the Writers Guild of America sit opposite negotiators for the American Motion Picture and Television Producers. Their meeting will hopefully avert a crippling industry-wide strike. We'll see how that plays out.

I hate strikes. I do. I loathe them. In my experience, strikes usually incur an unreasonable degree of collateral damage to the faultless public. No matter how you slice that, strikes typically fuel a venomous word of mouth from which few participants ever totally recover. On top of that, strikes have always felt to me like a legal equivalent to bullying... and blackmail. And I'm not even a dues-paying WGA member, so this writer's strike doesn't really affect me. Or does it?

I do get offered film writing gigs of all sorts.

Thus, after having studied what writers are fighting to achieve with this strike, I can't, with a clear conscience, accept any writing contracts from producers for the entire duration of a WGA strike.

Writers are not asking for the moon, and it seems like they've taken every step to appeal to the AMPTP's common sense. However, when logic fails...

Pencils down means pencils down.

Respectfully, then, this is for all producers out there: for the duration of a WGA strike, I cannot accept any writing work for motion pictures, including: script & story consultation, feature script writing & rewriting, outlines, treatments, log lines, dialog polishes, character bios. Nothing. My writing factory will be closed for business until further notice, which is a polite way of saying, "Please don't ask me to do any writing work." It will just result in an awkward conversation as I offer a ham-fisted explanation why a non-WGA member is essentially joining a WGA picket line.

Perhaps my response would be this simple: one day I will be a WGA member and on that Day of Days, I couldn't proudly stand beside my WGA colleagues with the knowledge that, in their greatest hour of need, I was a scab undermining everything they risked their livelihoods to secure. Most important of all, one day, all the benefits the WGA are fighting for now, will benefit me, so accepting work during a writers' strike would be like shooting myself in the face.

If this morning's negotiations fail, the WGA's strike is scheduled to begin Monday, November 5, 2007 at 12:01 AM.