While WGA members have rallied around their union in a brass knuckle battle to dismantle agency packaging and end agencies’ forays into producing through affiliated companies, a lot of people have been buzzing about a missive written by an established but anonymous writer who is questioning the wisdom of forcing writers to make a Sophie’s Choice between union loyalty and their agents. There have been numerous testimonials from writers on the horrors of packaging over the past few weeks. Here is a different side of the story as the emotionally charged discussion rages with accusations from both sides, as a vote looms next week.
THE THINGS WE THINK BUT DO NOT SAY (OR HOW I LEARNED TO STOP WORRYING AND LOVE THE NEGOTIATING COMMITTEE)
'The Wire' Creator David Simon Rips
I’ve been a member of the WGA for twenty years. For the last ten, I’ve been fortunate to work consistently and successfully in both features and television.
In 2007, I found myself staffed for the first time since 2003. At the time, I was represented by a boutique agency and a very nice man who had no ability whatsoever to advance my career or find me jobs. I couldn’t argue with his responsiveness, the quality of his notes or his reputation around town; little of this redounded to my financial benefit.
Long story short… I was back after four years in the wilderness. I’d been taking out loans from my parents and other family members to make ends meet and stay in this business. I’d sold my house to live off the profits (long since exhausted), done a little consulting work in a completely different field, was blessed with the opportunity to write a freelance or two of a show I’d formerly staffed on, and sold a script at a bargain price. It never got made.
Do not cry for me.
When the new show came along, it was a life-changing event – a chance to rebuild my career. My financial house wasn’t in order, but by god there was hope. Getting staffed saved my ass. I got a brand new agent out of the deal, too. One phone call later, I went from boutique to WME.
Everything was looking GREAT.
Now, go back and look at the date. (Go ahead, I’ll wait). Do you see what it says? 2007. The strike. On the ballot, I didn’t vote “no.” I circled “no” and then wrote the word “fuck” as many times as I could fit on the paper around “no” with little arrows pointing from each expletive to my vote so there would be no ambiguity in the parsing of it.
You all know what happened next.
Overnight, untold millions upon millions of dollars of writer wealth were destroyed. Bye bye, overalls. Bye bye, shows that employed writers. Bye bye, two-step deals in features. Bye bye a LOT of things. But by god, at least when it was all over we brought the studios to heel and forced them to pay us enough money from digital streaming that some of us could afford a cup of coffee roughly every three months. High five everybody.
Although I hurt… my job survived. I got a full second season, then a full season on my next gig. Since the strike, I’ve written movies you’ve heard of and worked on a bunch more. I’ve consulted on great shows and met great people, made some friends for life and taken care of my family. (2007: no children, two dogs. 2009: one child, two dogs. 2015: 3 children, one dog. Write that down… there’s a test later.)
In no small part, this is thanks to my agents.
My bona fides: In the last year, I took a showrunner gig on an animated series. I insisted the show operate under WGA jurisdiction and lo and behold… it’s WGA, not IATSE. The guild now has two new members who enjoy the protections of the MBA. They also get the sweet membership card, the screeners, and all the free coffee they can drink at guild functions.
I’ve served on roughly fifteen (probably more) feature credit arbitration committees. The stat keeps coming back to me because they know I’m a sucker for a free Kit Kat bar and I have no sales resistance. Every year, I participate in the WGF Veterans weekend. I hired one of those vets as an assistant and helped him find representation. Once in a while, I pay my dues on time. Hell, I think I might have finally figured out how to use the web portal.
I’m telling you all of this because I need you to understand where I’m coming from when I make the following statement about the current unpleasantness between the WGA and ATA:
What. The. Actual. Fuck.
I’ll be very honest… I have thoughts on the issues. I have opinions. I have beliefs. However, before I became a writer I was an analyst. A math guy. My brain is wired to consume input and convert it into information for decision makers (myself included). I don’t like to make blanket statements in the absence of good data. It hasn’t stopped anyone else in the last several weeks, but that’s not what my ramblings are about.
This is about the WGA, the Board, the Negotiating Committee and the process. It’s about a relentlessly negative tone and personal attacks on our agents – the very people who should be our partners. It’s about how writers have been turned against one another by our fellow writers, creating a climate of fear and dividing the guild. It’s about us.
My specific concerns break down as follows:
1) We have failed to educate the membership on the issues
The Board announced its intentions almost a year ago, longer if you count the chatter that preceded the decision to withdraw from the ATA agreement. They’ve had at least twelve months to engage the membership, educate us on the issues and shape our approach to the problem as a community. They may point to the surveys they conducted — and yes, surveys are a good way to gather data from people who choose to participate in surveys, but often survey isn’t the same thing as a conversation.
I can’t shake the feeling that perhaps some members of the Board and NegCom (sweet robot name!) had a particular outcome in mind, or that the surveys were a vehicle to demonstrate tacit support for these goals. It’s hard not to believe this, considering we made little to no effort to educate the members on packaging, affiliated production or how any of that works until the last several weeks. The information that has been presented has all been in the context of shoring up the Board’s arguments on the merits of their case against the agencies.
Sorry, kids. That’s ridiculous.
We’re all affected by packaging, etc., and we all face the same choices whether the guild wins this fight or not. Wouldn’t it have been better to begin laying out how these things work a year ago so creators could make smart choices about their packaging or lack thereof? Wouldn’t it have been better to make everyone wiser?
Yes. Yes, it would have. Instead, we get the fire hose… and what comes out is high in rhetoric, low in content. I’m told the guild is compiling data. Great! But the guild shouldn’t be compiling data on the effects of packaging; the data SHOULD ALREADY HAVE BEEN COMPILED.
Let it be known I have also given this speech to my agents in recent weeks. I’m an outlier – I ask questions about my deals. I get involved. Not every writer does this. The agencies need to be proactive in helping their clients (i.e., us) get smart about the pros and cons of every deal point… not just packaging fees, but everything. To make good choices, we need good data.
What we don’t need is anyone, the guild or our agents, to treat us like children and shield us from the complicated issues behind our deal points. That is what’s happening now.
2) We haven’t really been negotiating in good faith with the ATA
The NegCom says the ATA refused to negotiate until very recently; the ATA says the reverse is true. I’ll tell you what I believe based on conversations with both sides and reports from the news media… when the NegCom tells us the ATA has stonewalled efforts to resolve the crisis, what they mean is there were a couple of formal meetings in which demands were read and conversation did not follow. When the ATA tells us they reached out several times to the WGA, what they mean is they reached out to have informal sit-downs. I have no idea who is right and who is wrong in this scenario. I can tell you this much…
Everything about the NegCom strategy tells me real negotiation with the ATA was never on the table. Their entire goal appears to be to hype up the membership, create a strike atmosphere, call a vote and then use that vote to force the ATA into accepting the guild position on every issue. This is theater, pure and simple.
Maybe I would be more excited about this theater (it’s like Hamilton, but different!) if I felt we’d done a thorough job in educating members and truly breaking down the real world problems and concerns. We haven’t. All of this feels like a crisis of our own invention.
3) We have been disingenuous in supporting our claims
When the WGA laid out how packaging works (very recently), we made a big deal out of the 3/3/10 fee schedule the agencies enjoy. What we didn’t talk about is the fact that the middle 3 doesn’t really exist anymore and the back 10 is going the way of the dodo.
I’m not going to argue the details of any of these points… it MAY BE true that 3% off the top represents an unfair kickback that harms writers. It may also NOT BE true. What IS true is if you throw a rock at a room full of writers and that rock bounces around and hits every single writer present, you will not hit anyone who actually understands packaging fees… unless they used to be an entertainment lawyer and gave it all up for the fun part.
No one has ever laid out what these numbers actually mean to writers’ bottom lines except in mushy, anecdotal ways. I suspect if there were analytical rigor, we would discover that sometimes it really does hurt writers and sometimes it really helps writers. We may also discover that it effects different writers differently, depending on level. Awkward, I know.
The same goes for claims about the relationship between writer earnings and packaging. The WGA now claims that over the last 10 years, writer compensation has gone down 23%. Hi, math guy here -23% relative to what? What in the data points to a causal relationship vs a simple correlation? Does the 23% factor in the massive wealth destruction that followed the 2007-2008 writers strike? Does it factor in the death of the two-step deal that is directly attributable to the outcome of that strike? (Hi, feature writers! Welcome! You matter, too!)
Let’s pretend that we can’t establish causality for any of the above. What other factors have driven the market in this direction? The slow, wheezing death of the back-end? The rise of programming on cable or streamers that pay lower rates at the same time that broadcast TV has become less relevant? The squeezing out of middle management positions on staffs?
Dead back-end. A flood of lower paying jobs, many filled by new writers with no quote. The end of mid-level opportunities. In this scenario, the question is not “why has writer compensation plummeted 23% in a decade?” The question is why it hasn’t been worse.
When discussing the impact of span protection, we want to push the problem off on the agencies. Maybe we should try taking responsibility for a contract we negotiated that enshrined scale minimums for low- and mid-level TV writers. Could the agencies negotiate better deals in these cases? Maybe! But let’s not pretend that somehow they are failing in their duties just because we failed before.
We like to claim support from the DGA and SAG. Really? Great. So the actors who don’t have any agreement at all with the ATA are going to walk out the agency doors with us? OH, RIGHT. THEY WON’T. But don’t worry guys, they are (quietly!) cheering us on… Then there are the statements and stories from our fellow writers. You know the ones I mean… the anonymous ones, especially the first round that sounded like they were all written by the same person and miraculously tracked David Goodman’s speech on a one to one basis. The stories that very often tell us of friends of friends who heard things or said they knew people who did things, all of which were presented without any attempt by the Board to cull or curate. I’m not saying all of these stories are bullshit, I’m saying… we deserve better.
But wait, there’s more!
A common refrain from leadership in justifying our approach is that we are merely implementing an idea pioneered by NFL players. Let’s put that to rest. We are not NFL players. This is not the NFL. The NFL is essentially a monopoly; the film and television businesses are not. If I want to make a movie, I can pull together financing outside the studio system at nearly any budget point. It doesn’t matter how much financing I can pull together if I want to start an independent football team. The NFL won’t let me. Also, I cannot play for the Pittsburgh Steelers and the Dallas Cowboys at the same time. The NFL won’t let me. Deals with “players” and codes of conduct don’t enter into it. The two situations are not comparable.
Finally, we continue to gloss over the fact that if I am unhappy with my agent’s behavior or performance, I can fire her. (See page 1)
My agent is my employee. This basic fact never seems to enter the conversation. We are promulgating a fiction that agencies are entities with whom we are in an adversarial, subservient relationship, against whom we may strike.
I’ll say it again since no one else wants to: if we don’t like our agents, we can fire them. Now, say it to yourself. See how easy that was?
4) The risks of our strategy and objectives are borne disproportionately
It’s easy to say you’re ready to walk away from your agent when you’re sitting on a fat overall deal, already in development, writing three features or you’re independently wealthy from (ironically) the deals your agent negotiated for you years ago. You have no skin in the game. Your skin is slathered in 10,000,000 SPF sunblock.
It’s easy to say you’re ready to walk away from your agent when you know the moment the dust settles, you will have legions of agents falling prostrate at your feet to represent you.
Its easy to mouth condescending platitudes like “I know it’s hard, but it’s necessary” when it hasn’t been hard for you in years (maybe decades). Gee, dad… thanks for the tip. I’m sure it will hurt you more than it hurts me.
It’s easy to say you’re ready to walk away from your agent when you’re not going from hard-won feature gig to hard-won feature gig, sucking up one-step deals and knowing your only hope to stitch together a career is pitching on one project while writing another. You know… meeting on open assignments or getting in to see executives so you can Willie Loman your way through a desperate conversation that maybe someday might lead to a paycheck.
It’s easy to forget how hard this job can be when you don’t have someone in your corner; you’ve had an army in your corner for so long you take for granted the vulnerability of writers who do not share your blessings (“I’ve got six TV people and eight feature people and three lawyers and two managers and a partridge in a pear tree! CAN’T YOU SEE HOW HARD IT IS FOR ME TO MAKE THIS DECISION?” No. I can’t.)
It’s easy to forget the effort to find just one agent – to find help.
We can’t just throw these writers out in the street to fend for themselves, while destroying the supply of people who might be willing to take a chance and be in their corner.
5) There are inherent, self-defeating paradoxes to our approach
The Board has suggested that in the aftermath of the Agentocalypse (TM), we can simply continue to use our managers. Okay, sure. But…
The ostensible reason for firing our agents is over packaging fees and affiliated production. That’s bad, remember? Our agents are failing in their fiduciary duties to represent us and avoid conflict of interest. They’re governed by their agreements with the guilds and laws that hold them to certain standards; e.g., limits on commission, attaching themselves as producers, owning the means of production and self-dealing. Let’s say that we’re right and our agents are all in violation of these basic responsibilities, and also fuck them.
Our fallback position… stay with me on this… is that we turn to people who are not governed by these obligations, rules and laws at all. Agents are bad, but managers who can charge any commission they like, attach themselves as producers and open a company store if they want are somehow good. No, really. Trust me. It’s way better for us.
Surely, once managers have cut agents out of the equation, commission fees won’t go up. Surely, they won’t require any deal they make for their writer clients to include them as producers. Surely, so-called double-dealing and kickbacks will become a thing of the past!
But look, we’ve thought of that. We sat down with the managers and told them “Hey, you’re next!”. Genius. Now they’re on notice.
For the sake of the argument, pretend none of the above is totally bananas.
We still need to solve the issue of who will actually negotiate our deals and perform services only agents can legally perform while the Long Night drags on. Managers can’t do it… they are prohibited from doing these things by state law. That’s fine! We’ll just tell them that we’re happy to look the other way and not complain while they’re busy destroying their competition and entrenching themselves in the financial structure of the entire industry.
Am I the only one who sees the problem?
We’ve asserted repeatedly that packaging fees are an illegal kickback and affiliated production represents an illegal conflict of interest. In short, we are saying our agents are criminals (lazy ones!). Now we want to turn around and a) come to an understanding with managers who can do exactly the same thing, but worse and b) we will look the other way while they violate the law. In short, we’ve become enmeshed in a criminal conspiracy to engage in anti-competitive practices that will leave writers several steps behind status quo.
Once again, let’s pretend none of that is totally bananas.
Let’s say we come to our senses and decide that orange is NOT the new black. Who exactly negotiates our deals? Pretend for a minute showrunners are competent to engage the process (or legally allowed to involve themselves). Come on, guys – we don’t even understand our own back end. That leaves us in a place where the studios, networks and streamers have all the power to dictate terms. That leaves us worse than where we started for low and mid-level writers. Scale weeklies for television won’t just be enshrined, they will become religion.
As for feature writers… oh, who cares? You’re just feature writers. YOU’LL BE FINE! Honest.
6) In some respects, we’re just plain wrong
Packaging has been with us for decades upon decades. We have all benefited from it or suffered from it. People currently railing against it are also enjoying a lack of commission fees. It’s not just us, either. Actors, directors… many people have worked under this paradigm for a very long time and have done so happily (some perhaps, less so).
We are saying it’s an “illegal kickback.” Okay. But I’m here to tell you… just because the WGA says it’s illegal doesn’t make it illegal. If it were illegal, the DOJ would frogmarch half of Beverly Drive to the nearest courthouse. It’s not illegal. We may not like it, but it’s not illegal.
Affiliated production entities are a new wrinkle in all of this. There are aspects to it that I don’t like, though I also see how the best version of it could be of benefit to everyone. I don’t know my final answer. However, I can say two things with reasonable certainty:
“Conflict of interest” is not inherently a conflict with the law. Where there may be a conflict of interest, it must be addressed and mitigated. In this case, we have separate cost centers that exist as subsidiaries owned by one corporation. This is neither new nor novel, generally speaking. To say Endeavor Content represents a “conflict of interest” is to state the obvious. To suggest that any conflict of interest violates the law by the mere fact of its existence is incorrect on its face.
Then there’s this…and I really need help with this one…
The affiliated production entities are already signatories to the MBA. I’m sorry, maybe I missed something… must we allow anyone who wants to sign the MBA, sign the MBA? Or does participation in our contract represent tacit acknowledgement that they have a legal standing to sign? If we’ve “always” known these entities are illegal conflicts of interest then dear lord why can I work for them in the first place?
If the agencies are right – affiliated production entities are intended to benefit creators and artists – the WGA should work with SAG and the DGA to negotiate rules that encourage the positives and mitigate the perceived negatives. That goes for packaging too.
Who are we to dictate such enormous changes in the financial structure of the entire industry without input from actors and directors? Aren’t we all in this together?
7) The Board has no end-game
Scariest of all is that we have no end-game and we know it. Staffing season will apparently be managed by networks of showrunners who will share writer names (in their copious free time). forwarding samples and arranging meetings. Feature writers will uh… do stuff…
Meanwhile, writers who find themselves with no representation will bum rush the managers. Manager ranks will expand. Fees will increase to cover the overhead. (Adam Smith says hi!)
Within management companies, political knife fights will leave writer blood on the floor.
Big agencies may be able to cover the overhead to keep agents and staff on the rolls… for a time. The fact we still pay them commission (now in exchange for zero services) will help. But junior agents – those most motivated to take a chance on a new writer – will lose their jobs. Assistants will lose their jobs. Organizational operational capacity will deteriorate.
Some small agencies will go out of business, or they will rebrand as management companies. The total supply of available representation will shrink at a time when we need it most.
When the music stops, not everyone will have a chair.
These are all things we can reasonably predict as outcomes, none of which we have prepared for or adequately addressed in the rush to start a fight.
Another prediction: show budgets will not increase. Not by 3%. Not by 1%. Agencies will continue to collect their existing packaging fees. Since future negotiations cannot consider their impact, a hypothetical 3% that was never on the table cannot logically materialize.
New staff positions will never emerge from the mathematical fiction of this dividend. Writer compensation may cease to plummet, but only because no one can pay us under scale.
8) We have created a climate of fear surrounding this issue to suppress debate
I’ve spoken to many writers who feel exactly as I do. They have questions and misgivings the Board and the NegCom have failed to address or simply brushed off. They are worried and anxious and frankly, kinda pissed.
Meanwhile, guild “information meetings” turn into pep rallies where we see that dissent will not be tolerated.
Our leadership make speeches that appeal to emotions, not logic. We are inundated with countless statements from anonymous sources. We encourage writers to hate our agents and inculcate an “us vs. them” mentality. Trolls are set free on comments sections on Deadline or in forums letting it be known that disagreement is not honest but heresy, and heresy is a crime.
Profligate mention of Rule 23 (with questionable legal basis) suggests that dissent will be met with ostracism. Offenders will become un-people. Leadership can insist up and down that nothing is farther from the truth, but the zealots our tone has radicalized don’t care.
In short, we’ve stayed on message with flawless discipline. The message is “shut up.”
It cannot work this way. It must not work this way. We shouldn’t pay lip service to those who suffered under the blacklist while stifling dissent in our own ranks by threatening careers and livelihoods. We have to be better than this. We are better than this.
I’m sure the Board and the NegCom believe that we will come through this with some sort of agreement that achieves our policy objectives. A victory, if you will.
I’m sure Pyrrhus of Epirus thought much the same.
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