From Kristine Kathryn Rusch:
For most of you, the main issue in this year’s Writers Guild of America writers strike is whether or not your favorite TV programs will be affected. Already, some of the streaming shows, such as Stranger Things and Cobra Kai have shut down due to strike issues. The broadcast shows haven’t started next fall’s season (except maybe premiere episodes) and won’t until the strike is over.
Some shows, like late night talk shows and Saturday Night Live! have already gone dark. Others may soon follow, depending on what happens with different unions, acting in solidarity with the writers.
For some of us, this strike has already had an impact. I know that my deals, which were humming along just fine thank you, are now going to take a hit that I can’t predict. Will there be more opportunity after the strike ends? Less? How involved are my deal partners in the WGA? (One is in Spain. Will that matter?)
I’m not the only person licensing derivative work who is wondering these things. I know of half a dozen book writers who just had projects paused or set aside for now. None of us know what will happen next.
And that goes double for my screenwriter friends. Those in L.A. have their picket line schedule. The others in various places, like Portland, are doing their bit on social media. They’re taking a risk, but they understand why this strike is happening.
In April, nearly 98% of the WGA membership authorized a strike if both sides couldn’t come to terms. The negotiations went late into the deadline night, May 1, with the strike being called when talks broke down.
For those of you who aren’t really following this, here’s the one paragraph shorthand. Every three years, the Writers Guild of America, which represents thousands of movie and TV writers, negotiates the terms of a Minimum Basic Agreement with the Alliance of Motion Picture and Television Producers. This is a collective bargaining agreement, which all members of the WGA and AMPTP must adhere to. A lot of work goes into the agreement, and it really does protect the writers as best as possible.
If you want to understand how this all works, take a look at the FAQ the WGA provided on this particular campaign.
I’m not going to rehash the details of the campaign, the strike or even the potential impact. Instead, I’m going to focus on the thinking behind this particular impasse (and the 2007-2008 one as well).
For years now, I have written post after post about contract negotiations and understanding your rights as writers. This is important for traditional writers with book publishers, yes indeed, but also for indies. Indies, if they are successful, need to understand the Terms of Service they’re agreeing to, as well as the contracts that they might sign if they license derivative works (like audio or merchandising or (ahem) movies) for their book (or, more accurately, their intellectual property).
Contracts (which is what terms of service are) dictate everything about our intellectual property once we put it out into the world. Signing the wrong contract, even missing a word, can cause problems.
Let me give you a really clear example that a writer linked to in one of my blog comments last week. Mark Sumner wrote on Mastodon that in 1999, a series he worked on went from NBC to the SyFy Channel. His income for that series went from $240,000 to zero. “Because,” he writes, “my contract paid ‘per broadcast episode’ instead of just ‘per episode.’”
One tiny word. Broadcast. That’s what the contract said, and that’s how payments were triggered.
I’m sure that when the contract was negotiated, it was not common practice to move an active show from broadcast to cable. In other words, the contract language in Sumner’s contract was probably standard, and the change was unexpected.
It is the job of lawyers on both sides to anticipate problems. It’s also the job of lawyers that work for big corporations to find loopholes in contracts and exploit them so that the corporation can reduce costs.
I have no idea how many writers, actors, and other creatives got slammed with that one little contractual word in 1999, but I’ll wager it was quite a few. If you look at the history of residual payments from the late 1960s, you’ll see a similar pattern of behavior.
(For those of you who don’t know, residuals are financial compensation paid to creatives in the film/tv industry “for the use of a theatrical motion picture or television program beyond the use covered by initial compensation.”)
Early on, there were no residuals for TV. Then residual payments were capped at six rerun performances. It took years for residuals to be uncapped and to apply to things like DVDs and foreign markets.
It’s not just writers who must fight the industry to get proper compensation. Other guilds (like the Directors Guild of America and the Screen Actors Guild) have done the same.
Sometimes the Minimum Basic Agreement for all of these guilds strives to right past wrongs. As Patric Verrone, the president of the WGA West during the previous strike, told The Los Angeles Times in April:
We know from other work areas — like in reality television — that if you don’t get jurisdiction from the jump, you’re never going to get it. It becomes a really high hill to climb.
Jurisdiction. He’s speaking legally. The WGA tried to retroactively organize reality TV writers, with limited success. Reality TV became the go-to medium for the networks in previous strikes, because those writers were not even affiliated with the WGA at that point.
Gradually, the WGA has chipped away at the disparity, but it is a chipping away process, not an actual victory.
Because of that, and because of other issues that were not foreseen until they bit writers (and other creatives) in the butt, the WGA has spent this century trying to harness the future for years. The big win in 2007-2008 received a lot of criticism at the time. It was over “new media” which was barely defined.
At the time, everyone knew that the internet was going to be a major part of film and television viewing, but it was assumed that only a small number of people would want to watch their favorite shows on a computer screen. Streaming as we know it didn’t really exist. Netflix was a DVD-by-mail company.
Everyone thought that streaming would be an ad-supported business rather than getting consumers to pay directly for the service.
And yet…the WGA, the DGA and other groups held out for residuals from new media. At that point, the offer on the table from the AMPTP was zero. No money paid at all to writers if anyone watched a show streamed over the internet.
Getting the right to negotiate over a writer’s contribution to “new media” as well as an outline for residuals was a huge victory in the 2007-2008 strike. At the time, though, no one knew how big that victory would be. In fact, I remember a lot of grousing from my screenwriter friends (because another issue, which had to do with DVDs, did not get settled).
Now, though, everyone understands how big that victory was. Meredith Stiehm, the current president of WGA West, told The Washington Post,
If we hadn’t won that — 50 percent of our work right now is on streaming services and platforms. We wouldn’t have been covered for that.
It was a near miss. And studios are still mucking with the details.
Link to the rest at Kristine Kathryn Rusch
Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.
PG notes that contract negotiations that involve big stakes for each side of the negotiation require that the lawyers think beyond what they believe they are negotiating, using a little imagination.
OTOH, labor contracts that are too expensive for the employers can mean they’ll be willing to go farther out of their way than they would otherwise.