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Writers and Agents Confront the New Normal: “Hypocrisy All Over the Place”

Six months into their historic feud, writers and agents are still trying to figure out whether this is the new normal with Clandestine calling "psychological warfare," hidden money and lots of hurt feelings.

At this year’s Primetime Emmy Awards on Sept. 22, a powerful contigent of Hollywood insiders will be paying special attention to the acceptance speeches. The question on their minds: When the winning writers take the stage, will they thank their agents?

The Emmys is the first major awards show to take place since about 7,000 writers fired their agents en masse in April after a negotiating stalemate over packaging fees and other concerns about conflicts of interest. With lawsuits filed by both sides and no signs of a peace offering on the horizon, the feud has spurred the major agencies to cancel their Emmy parties and writers to think twice before name-checking their former reps onstage.

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The conundrum underscores just how charged relationships remain between the sides nearly six months after the public firings, which saw scores of writers break up with longtime agents, some via emotional Instagram and Twitter posts. Half a year later, on the heels of a high-stakes election that saw WGA president David A. Goodman retain his seat Sept. 16, the only truly consistent narrative is that there isn’t one. “We haven’t fully recalibrated what the new norms are,” says one manager. “The rules are not clear and there’s a lot of psychological warfare going on.”

While many writers are doing the best they can to follow the guild’s mandates, there are also those who — as evidenced by widespread rumblings on the covert nature of some writer-agent relationships — seem to be valuing their own self-interest over WGA solidarity. As one veteran entertainment lawyer sums it up, “There’s dichotomies and inconsistencies and hypocrisy all over the place.” That some writers and agents are still in touch is not surprising, particularly for those who’ve been friends for years and are still wrestling with the emotional toll of the professional divorce. “It’s painful. We used to talk every day,” says The Dark Tower showrunner Glen Mazzara of his split from CAA’s Rob Kenneally, his agent since 2002. They’ve spent Thanksgiving together, been guests at each other’s birthday parties and moved their sons into the same dorm at NYU. “It’s a friendship that’s very important to me, and it all becomes more uncomfortable because there’s a giant elephant in the room.” Many writers with long-standing relationships like Mazzara’s have tried to push through the awkwardness in an effort to maintain their friendships as the bitter feud rages on. “It becomes like checking in on the ex that you parted ways with pretty amicably,” says one TV writer. “Like, ‘You doing OK? How are the cats?’ ”

But sources say that a growing faction of writers are contacting the agents they publicly fired and not exactly “asking about how their children are doing in school,” as one agent puts it. Those knowledgeable individuals say that writers are careful to remain discreet, often using personal Gmail addresses and cellphone numbers to talk business matters. Multiple agents report being asked by former clients — either out of pure self-interest or because they disagree with the guild’s tactics — if they could help with deals covertly while lawyers and managers remain the face of negotiations. “You have people who are low-key scabbing the guild,” says a manager with knowledge of such arrangements.

The four largest agencies claim some writer clients have even hired their agents back. One major agency that provided numbers only on the condition of anonymity claims that of the roughly 1,400 writer clients it had prior to April, close to 150 never fired them, about 500 are still repped in other areas (acting, directing, producing) and approximately 100 have either asked for help getting a deal done or rehired their agents. No other major agencies would provide names or even rough estimates of clients who’ve returned, fueling skepticism about whether it’s a legitimate phenomenon or an exaggerated claim aimed at weakening the guild’s solidarity. The ATA declined to comment. “I have no doubt that there are some writers in this town who are quietly talking to their agents against the rules,” says newly re-elected WGA board member Angelina Burnett, who has written for The Americans and Halt and Catch Fire. “We just have no evidence that it’s happening in any sort of systemic way.”

To be fair, tales of writers going back to their agents haven’t emerged only from the big four agencies. One rep at a smaller outfit insists such dealings are rampant, estimating that about half the time “fired” agents are actually handling deals. Mazzara suggests those members should consider going Financial Core, or “Fi-Core,” which allows writers to retain certain benefits like health care and pension plans by paying a portion of their dues but technically be non-union, forgoing the right to vote or hold office in the process. “To go around the guild and yet get all the benefits from being in the guild is ludicrous,” he adds.

Concerns that the WGA, with 15,000-plus members, doesn’t have the bandwidth to police such conduct are not unfounded. “What are they going to do, public shaming?” says one source. “That feels like Gestapo stuff. Who would want to be a part of that?” But the guild does have a committee that investigates members who have been accused of violating its directives to not work with any non-signatory agencies. “We will deal with it if it’s brought to our attention,” says Burnett, who explains that the guild employs a “respectful, low-key, confidential process” in such cases. This normally involves conversations with members to make sure they understand the regulations, and if there’s evidence that they broke the rules, they’re subject to disciplinary action (possibly a fine). The WGA declined to provide any information on how many members the committee has investigated. “Most of what I’ve been hearing is not confusion about the rules but rather frustration with shady dealings from former agents,” says Burnett. “[Whether it’s] agents reaching out to bully [clients] and insist on a commission for shows they had nothing to do with, or saying, ‘All my clients have come back so you should, too.’ “

The outreach does seem to go both ways. One TV writer says he received a call from his former rep, who said that a piece of material had crossed his desk that he thought might be good for him. The agent went on to explain that he couldn’t technically tell him about it but that he could tell the writer’s manager, who could then pass it along — if he was interested, that is. The writer responded that it would be better if the agent didn’t give him the heads-up in the future and just gave the back-door tip independently of him so that he could maintain some plausible deniability about it. Such clandestine conversations between reps and writers seem to extend beyond dealmaking. One agent says she’s been asked directly by clients which shows are staffing, if she could pull together lists of executives at networks to pitch to, and whether she knew other writers worth hiring. “There’s a lot of confusion and gray zone and chaos,” says a manager.

And for writers who were under overall deals prior to April and are therefore already paying 10 percent of everything they make to their former agency, some feel as though they’re being asked to punish their agents by paying them to do — well, nothing. “I’m approaching it the same way I approach paying my taxes, which is I’m trying to do everything right and legally — but it’s confusing,” says Silicon Valley and Barry showrunner Alec Berg. “Much like the IRS, it’s this massive Gordian knot of different rules and things that apply to one thing but not another.”

Given the heightened sensitivities surrounding high-profile negotiations, some scribes have gone out of their way to show that their deals crafted in recent months have been done entirely aboveboard. Sources say Game of Thrones creators David Benioff and D.B. Weiss were transparent with the WGA about their $200 million overall with Netflix, delivering documentation to the board throughout the process that’s said to have shown that their attorney Gretchen Rush was negotiating the deal alone, without the help of their former agency, CAA. Many industry insiders find it hard to believe that Benioff and Weiss’ agency, which has had a decade-long relationship with the showrunners, wasn’t at all involved and won’t see any cut of the rich pact, but one person with knowledge of the discussions confirms, “From what I understand, they don’t get a penny of the nine figures.” No one involved in the deal would comment.

To fill the agent void, managers and lawyers are taking on additional responsibilities. That means everything from administrative tasks like following up with studios and networks to make sure clients are getting paid to collecting information from creative execs on what material they’re looking to buy. “I’ve been so overwhelmed with the uptick of the work, to the frustration of my wife,” gripes one manager. “And part of that work is downloading the agents in their absence. It used to be, ‘Managers don’t do anything and I’ve always got to loop them in,’ and now it’s a complete role reversal.” Non-agent reps are also having to field more pitches from studios and producers for their clients. “In the past, it was just some total losers who’d say, ‘Hey, I got your name off of IMDb. Can you send this to your client?’ ” says one lawyer. “Now it’s real people you’ve heard of.” Some clients are even asking their attorneys to help them get staffed on shows. “I don’t know how to do that,” says one lawyer with a laugh.

Some of those managers and lawyers are also relying on agents for intel or advice when they need it. “We’ll call them,” admits one attorney, “with the client’s permission, of course.” Whether agents are taking those calls varies. “Some days are like, ‘Fuck the writers,’ ” says an agent of the bipolar tone within agency ranks, “and other days they’re like, ‘Treat the writers like we still represent them.’ ” Reps say there are “loopholes” that allow them to keep doing business with certain scribes. For example, agents are still working with many writers who are also producers, directors or stars, claiming that they’re just repping them in the latter capacities. Producing services, however, have become a battleground. The WGA’s stance is that producing in television is an extension of writing. Agents argue that the guild doesn’t have jurisdiction over producing and claim that several multihyphenate clients of theirs are fine with agency representation for their non-writing work.

As if matters weren’t already complicated enough, there’s the issue of pay. While some agents may be passing along tips simply in an effort to retain clients if the conflict is resolved, others — especially those whose help was sought out by the writer — are expecting to be compensated. “I have managers who are calling me asking me for advice,” says one agent, “and I’m like, ‘Listen, I’m happy to help you if the client’s going to pay me on it.’ ” And sources say some writers are paying, or at least intend to, particularly for negotiations that started before the firings. “It’s like, ‘Of course I’m going to pay my agent,’ ” says one lawyer, relaying a conversation he had with a writer, ” ‘and if I’m going to pay them, then they might as well chime in.’ ” Multiple agents say clients have told them they’ve set aside 10 percent of earnings that they plan to give them once the conflict is resolved. One source suggests that some writers have opened escrow accounts for that very purpose, which may allow for certain tax benefits. “If their agent is nervous about whether they’re going to get paid eventually, this shows them, ‘Hey, it’s sitting over there at the Bank of America,’ ” says an attorney. ” ‘As soon as you guys resolve this issue, it’s yours.’ ”

Mere verbal agreements, however, raise questions about the likelihood of a follow-through. Some insiders say they wouldn’t be surprised if agents who never see the money sue former clients down the road, though how much claim they really have to those commissions is a topic of debate. “It’s tricky because they have to prove that they’re entitled to it,” says a lawyer. “Someone saying, ‘I’m going to give you a gift when the dust settles,’ that might be a little be harder to enforce.” Managers and lawyers acknowledge that they’re fielding calls from agents trying to suss out whether the writer actually has the intention to pay. “Some people are much more hands-off, like, ‘Hey, so-and-so told me they would pay me and I’d appreciate that,’ ” says one person on the receiving end of such calls. “Others are paranoid and freaking out about it.”

By and large, agents claim they’re not worried about the loss of work and are keeping busy — but some agency partners are said to be feeding alternative work to lit agents. One prolific producer says agents have been setting him up on meetings with podcasters, authors and journalists — all writing talent outside the bounds of the WGA — and that TV development season has been heavy on IP as a result. Many lit agents, some of whom acknowledge they’re considering becoming managers, are capitalizing on the slower pace by taking long vacations and actually taking advantage of summer Fridays. “We’re not grinding away at the office all day,” says one, who notes that the time for reflection also has a downside: “You’re seeing a lot of existential crises where agents are like, ‘Wait, what is my life if it’s not doing this a hundred percent?’ ”

Regardless of how the negotiations between the WGA and the Association of Talent Agents ultimately pan out, the rift between the two already is remaking the business. Sources say some of the agencies are taking the opportunity to rethink their client lists. According to one insider, at least one major agency has openly discussed not inviting close to a third of its writers back if and when an agreement is reached. “The quote was literally, ‘Because it’s time for us to clean house,’ ” says the source. By the same token, there are plenty of writers who have come to realize that they might not need an agent. “And for those of us who have chosen to spend a career representing writers, that feels like shit,” says a top rep.

As the conflict carries on, talk of a potential strike also looms as the Writers Guild’s master contract, known as the Minimum Basic Agreement (MBA), with the studios is up in May. The central issue at hand: How can writers make sure they’re compensated fairly in the streaming era when backend is increasingly eliminated, digital residual fees aren’t significant, and shows in general have shorter episode orders? Guild leadership doesn’t seem too concerned about having the agents back on their side before then. “The notion that the agents have ever been useful to us in MBA negotiations is patently absurd,” says WGA board member Burnett. But a host of writers, reps and execs worry that by attempting to fight both battles simultaneously, the guild may be biting off more than it can chew. “There is a feeling that it’s sort of like Game of Thrones: The Starks and the Lannisters are fighting while the White Walkers are coming,” says Berg. “Don’t the Starks and the Lannisters need to just get their shit taken care of quickly so that we can all fight against the White Walkers or we’re all going to be dead?”

This story first appeared in the Sept. 18 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.