The WGA and the Association of Talent Agents have concluded their sixth day of bargaining for a new franchise agreement, with the ATA making numerous counterproposals aimed at resolving their feud over packaging and agency affiliation with related production entities.
“We had an extensive dialogue with the guild today,” ATA executive director Karen Stuart said Thursday evening. “We presented its leadership with our formal counterproposals in a draft agreement, and we hope they will follow up in good faith to move this process forward.”
A spokesman for the guild declined comment, and no date was announced for their next bargaining session ahead of the April 6 deadline. Unlike each of the last five bargaining sessions, neither side today engaged in any postmortem rancor.
The ATA today made several counterproposals designed to address the guild’s concerns about packaging, including specific contact language that would allow agencies to continue the practice, but with more transparency and greater leeway for writers to opt out of packaged deals. The ATA’s proposals include:
1. An Agency shall be permitted to receive compensation from persons other than a Writer in connection with a packaged television (including OTT and other internet-delivered serial motion pictures) program. If an Agency receives compensation from, or in connection with, a packaged television program computed on a basis other than a percentage of the compensation paid to the Writer client of the Agent involved with such packaged television program, then the Agent shall receive no commissions on the compensation of the Writer for that Writer’s writing services or literary materials supplied to such packaged television program.
2. In the event the Agency receives compensation for a packaged television program as described in (B)(1), the Agency shall also receive no commissions on the compensation of any other Writer client of the Agency for his or her services on the packaged television program.
3. An Agent shall be permitted to procure employment for a Writer on a packaged television program so long as:
a. The Writer is the sole initiating element of the package, and the Writer consents to the program being packaged;
b. The Agent adds a Writer as an element of an existing package, and the Writer consents to participation in the packaged television program; or
c. The Agent adds a packageable element to an existing television program where the Agency had not previously received package compensation, and the Agent informs all Writer clients staffed on the television program of the new package as soon as reasonably practicable after the package is in place.
4. An Agency will provide a Writer designated to be a packageable element of a packaged television program with the agreement containing the terms of the Agency’s package agreement.
5. A Writer shall have the right to know all facts reasonably necessary to making an informed choice as to whether to participate in a packaged television program.
6. Prior to submitting a Writer to a packaged project (i.e, a project where the Agency has already been granted a packaging fee at the time of submission), an Agent shall:
a. Inform the Writer of the existence of the package;
b. Advise the Writer that she/he may choose to be submitted to the packaged project; and
c. Receive the Writer’s consent to proceed with such submission, but only after informing the Writer of the foregoing.
7. Absent the Writer’s specific authorization, no Writer’s agreement or pitch will be delayed due to agency package negotiations.
Read the ATA’s full set of proposals here.
With regard to the other key sticking point – agency affiliations with related production companies – the ATA proposed that:
1. An Agent shall be permitted to represent a Writer in connection with the engagement by or sale of rights to an affiliated entity, so long as, prior to the submission of such Writer by the Agency for such engagement or sale of rights:
a. the Agent informs such Writer of the existence and nature of the Agency’s relationship with such affiliated entity;
b. the Agent advises such Writer that the Writer has no obligation to be submitted to or accept engagement by or sale of rights to such affiliated entity;
c. the Agent advises the Writer of his or her right to have the material or services offered to other bona-fide production entities simultaneously with offering the material or services to the affiliate;
d. the Agent advises the Writer that the Writer may seek independent counsel in connection with the applicable project, at any point in the process prior to the Writer entering a transaction with an affiliate; and
e. the Writer, after being informed of the foregoing, gives consent to such submission.
2. An Agent shall not be permitted to represent a Writer in connection with the engagement by or sale of rights to an affiliated entity unless:
a. the Agent reasonably believes that such engagement or sale of rights is in the best interests of such Writer;
b. the terms of such engagement or sale of rights are negotiated in good faith and on an arm’s-length basis;
c. the Agency and affiliated entity are each in compliance with the following:
i. the individuals primarily involved in the day-to-day operations of the Agency are different than the individuals primarily involved in the day-today operations of the affiliated entity, and vice versa;
ii. the Agency, including any individual primarily involved in the day-to-day operations of the Agency, does not participate in any of the affiliated entity’s decisions regarding the engagement of or sale of rights other than in the Agency’s capacity as a representative of its clients consistent with the fiduciary duties to such clients;
iii. the Agency maintains the confidentiality of its clients’ confidential information from such affiliated entity, in the same manner it maintains the confidentiality of such information from an unaffiliated entity; and
iv. the Agency creates and makes available a written conflicts policy reflecting the above, and has annual training on conflicts for all employees.
3. No Writer shall be required (formally or informally) to work with an Agent’s affiliates. In the event that a Writer advises the Writer’s Agent that the Writer does
not want to be submitted to, or enter into an engagement by, or sale of rights to, an affiliated entity, the Agent shall follow the Writer’s directive, and such election by the Writer shall have no detrimental impact on the Agency’s representation of such Writer.
4. An Agency or Agent may not use the fact that a Guild investigation involves an affiliate of the Agency as a basis for its refusal to cooperate in such investigation.
WGA members will begin voting next week on a proposed Code of Conduct that would prevent both practices. If approved and no deal is reached by April 6, when the current agreement expires, the guild could order its members to fire all of their agents who refuse to sign the code.