We are in the first phase of staffing season, with the showrunners of pilots and the studios behind them assembling lists of prospective writers to hire should the pilots go to series. TV literary agents are busy making calls to inquire about needs on various shows and pitching clients.
Come Monday, all that may grind to a halt if the WGA and ATA cannot reach a last-minute compromise, their deal expires, the guild calls upon its members to fire their agents, and they follow through. That could lead to a potential legal battle, a possible purge of big agencies’ client rosters and reduction of their agent ranks and a likely free-for-all, with agents going after top writers/showrunners who had been represented by a rival agency and are now free agents without the stigma of poaching. Or, according to a recent statement by the ATA, it would throw “our industry into chaos.”
Negotiations between the two sides is the only way to prevent the chain of events from happening. But as of now, no meetings have been scheduled.
Many TV studios are taking the ongoing battle in stride, with only a few stepping up to get their staffing lists completely ready by April 6, when the WGA’s current franchise agreement with the ATA expires. While its expiration does not mean a work stoppage, and writers under overall deals will not be impacted, it could change the way studios make deals with writing talent going forward.
In the battle royal, the WGA has leverage after the overwhelming membership vote last week – 95.3%-4.7% – to approve a new Code of Conduct agents will have to sign if they want to represent WGA members in the event that no deal with the ATA is reached. More than 100 ATA member agencies, including all major ones, have already said they won’t sign as the code includes a ban on agencies employing packaging and having affiliated production companies. Today, the WGA sent the agencies a modified Code of Conduct proposal but the minor changes do not affect those two fundamental issues.
There is not much room for compromise — the agencies already offered to make packaging transparent and a subject to approval by clients, an offer turned down by the WGA. There may be a rationale for that — industry veterans point to the 1976 Artists’ Managers Basic Agreement, which institutionalized packaging. In it, the procedure is described as voluntary, and there are a number of safeguards and protections never really enforced.
That 1976 agreement called for WGA members to have two independent attorneys appointed by the guild negotiate their deals on packaged projects to make sure their interests are protected. The agencies were to fund an escrow account with an initial contribution of $2,500 to pay for those lawyers, originally selected as Sol Rosenthal (negotiator) and Stuart Glickman (alternate negotiator). The 1976 agreement also includes sample forms for agents to give clients to sign, informing them of their right to use a WGA negotiator.
I hear in the 43 years since the agreement was approved, the escrow account has grown to as much a $200,000 as there have been no more than a handful of instances of writers getting assistance on packaging deals from guild-appointed attorneys.
With packaging left unchecked on both sides for so long, the practice evolved, from occasional and often justified to a blanket policy applied not only where warranted but also where no actual agency packaging work had been done. With cases of abusing the practice — as illustrated in the many examples shared by writers over the past couple of months — overshadowing instances where packaging has been effective and advantageous to writers, the WGA had dug in its heels, so far not accepting any resolution that would keep packaging in any form, including in today’s modified proposal.
Agencies’ forays into producing also remains a no-go for the WGA, labeled by the guild as a classic case of conflict of interest whereby the same person works for a writer both as his agent and as the writer’s boss via a agency-affiliated production company that may employ the scribe.
That leads to the biggest question: on which of the areas are the agencies willing to compromise in order to secure a new franchise agreement with the WGA, and what will transpire if that doesn’t happen? Many point to SAG (now part of SAG-AFTRA), which has been without a franchise agreement with the ATA for the past two decades, with actors never walking out on their agents. (SAG-AFTRA was quick to voice its support for the WGA after the results of membership vote on the code of conduct were revealed Sunday.)
If the agencies make concessions on any of the two main issues, it will profoundly reshape the agency business, in which TV lit has become the main revenue driver and profit generator for the top four agencies CAA, WME, UTA and ICM Partners.
If the WGA-ATA’s deal is allowed to expire this coming Sunday, the WGA asks its members to fire their agents and the majority of them comply, we are entering uncharted territory.
Some had predicted the WGA may try to push the issue to the agenda for its pending negotiations for a new contract with studios as that current agreement expires in 2020. There was skepticism whether the companies would agree to only deal with reps authorized by the writers guild to make deals for writers, and the AMPTP recently indicated it does not plan to get in the middle of the dispute, rejecting the WGA’s request for “group boycott” of talent agents who won’t sign the proposed code.
There is also the possibility of a legal battle between the WGA and the agencies, with experts pointing to a somewhat obscure precedent, the 1991 case of sports agent Thomas M. Collins v. National Basketball Players Association, that may play a role.
In the late 1980s, Collins voluntarily stopped functioning as a player agent because of a lawsuit filed against him by his former client Kareem Abdul-Jabbar. After the lawsuit was settled, Collins submitted an application to be recertified as an agent, which was rejected by the union. Collins went on to sue the Players Association, but the case was dismissed.
While the case does support the WGA’s argument that they have authority to regulate agents and deny them certification, industry sources argue that Collins v. NBPA is 20 years old, and the entertainment industry is very different than professional basketball, where the NBA has a monopoly and there are caps on numbers of athletes and salary amounts each team can work with.
Saber rattling and name calling is commonplace during contentious negotiations and has been a part of virtually every standoff between the writers guild and the companies. But this time, it’s different; it feels more personal as the writers don’t go against the faceless corporations but some of their their closest confidants who often had been by their side for decades.
That is why writers have tried to make the distinction, attacking agencies’ practices while signing praises of their individual agents.
Still, some of the heated barbs by WGA leadership and a number of top writers, including the agencies being called “a cartel,” “greedhead,” “a Biblical plague of fulminant, venereal boils,” as well as being indirectly linked to disgraced moguls Harvey Weinstein and Les Moonves, has stung, with agents privately saying they are hurt by some of the qualifications.
The labor conflict has opened a rift between writers and agents that may take a long time to fully repair. And the consequences from the bruising battle could be far-reaching. I hear many veteran top literary agents are reevaluating their client lists that had grown a lot over the years and, if WGA members indeed leave their agents en masse, when an agreement is eventually reached, the agents do not plan to invite all clients back.
On his podcast earlier this week, Larry Wilmore shared his “chief concern for writers who are just starting with agencies, women and writers of color who are some of the most vulnerable.” “It’s often harder for them to get agents, especially when you finally got to that Top 4 (WGA, CAA, WME, UTA and ICM Partners who represent estimated 75% of working writers).”
Those up-and-coming writers representing fresh/disfranchised voices also would be the most affected by potentially having no agent during the crucial phase of staffing season since senior writing positions on shows are usually filled based on relationships and established writers’ previous work, with precious handful of staff-writer positions going to lesser known scribes pitched by their agents.
The WGA has floated a possibility for literary managers to be able to procure work. Few consider it a good idea not only because it would violate labor laws, but also because it would raise the same potential conflict of interest issues on which the WGA is fighting the ATA — managers also produce, getting fees from studios for projects that feature their clients.
The WGA also is trying a different, peer-to-peer way of finding employment without agents’ involvement. Last week, the guild launched a database for writers to submit themselves for staffing jobs. While the effectiveness of the system — which likely would inundate showrunners with far more submissions than they can review — has been met with a dose of skepticism, it raises a question recently posed by Wilmore on his podcast during a conversation with writer-comedian and member of WGA’s negotiating committee Travon Free: Is a future without agents possible?
While the representation business is powerful in the U.S., that is not the case in many other parts of the world. While circumvent, Free’s answer did send a chilling message to lit agents.
“I think it is a possibility,” he said. “It’s one of the options. It’s going to be the thing that if we don’t have them, it does fall on us. And then if left to prove that we can be resilient in that way and gain employment with the help of friends, managers and lawyers, then that’s a risk they [agents] have to be willing to take. It would shift their entire business if literary clients, somehow on the whole, or to a certain percentage, found work without them.”
A lot of TV lit agents, especially the younger ones who represent up-and-coming talent, feel the anxiety of their own future being in limbo. As of now, they plan to continue to work next week, even if they have been dismissed by their clients, doing research, collecting information and preparing to hit the ground running when things go back to normal.
If they go back to normal.