Writers, Agencies No Closer to Reaching Deal As Both Sides Dig In

Getty

Another session is set for Monday, but observers are not optimistic.

The Writers Guild of America and the Association of Talent Agents met Thursday afternoon in a three-hour session that one agency source characterized as “disappointing but not surprising.” Both sides acknowledged a new, more courteous tone in the negotiating room, but both were pessimistic about a resolution to their dispute over the rules governing agency representation of writers.

“Unfortunately, it appears at this time that the WGA really doesn’t want to make a deal,” said ATA executive director Karen Stuart in a statement. “While we appreciate their overtures in tone, they didn’t present any meaningful counterproposals today — instead presenting their original ‘code of conduct’ with a different title.”

The WGA did not send a readout of the meeting but did supply a copy of WGA president’s opening remarks delivered at the session.

“While we appreciate the tenor of [ATA president] Jim Gosnell’s remarks on Tuesday, we disagree with most of your proposed solutions,” said Goodman. “In short, it is March 14th and we are still speaking different languages on the crucial issue of the role of the union in protecting the well-being of writers.”

At the meeting, the guild asked the ATA to respond to questions about independent film, which may signal movement on a somewhat secondary aspect of the dispute, packaging of feature films. Negotiations are scheduled to resume Monday afternoon, but most observers expect little movement until at least after a March 25 membership vote the WGA has scheduled on new rules to govern the agencies.

And even then, many are pessimistic that the two sides will reach a deal — and avoid litigation.

The existing agreement between the WGA and ATA expires April 6, and the WGA has said it will impose the new rules the next day, assuming (as is likely) that the membership authorizes that step in the March 25 vote. The new rules would prohibit packaging fees and agency-affiliated production entities, two lucrative business models that the firms are loath to give up. Packaging fees have been common, particularly in television, for decades, while affiliate production is a recent development that is mostly the purview of the three largest agencies, Endeavor/WME, CAA and UTA. In contrast, although most packaging involves the four largest agencies — the preceding three and ICM — a significant amount also involves mid-tier agencies such as Paradigm and APA, and sometimes smaller shops as well.

The WGA provided its proposed new rules several weeks ago, and the ATA submitted a counterproposal Tuesday that emphasized individual writer choice as to packaging fees and affiliate production. On many smaller issues, the ATA was largely in agreement with the WGA, or closely enough aligned that the smaller issues seem solvable.

At Thursday’s meeting, the WGA then provided a counterproposal to the ATA’s counterproposal — but in a sign of how little progress is being made, the WGA’s new document is virtually identical to the one it provided last month.

The guild’s only substantive change was the elimination of a provision that would have allowed the WGA to modify the rules unilaterally at any time on 60 days’ notice. The new version is structured as a negotiated agreement between the WGA and ATA, like the existing agreement — but it is otherwise the same as last month’s proposal, including the prohibition on packaging fees and affiliate production.

The unilateral nature of the WGA’s initial proposal was a nonstarter for all agencies, according to the ATA, because it would have put agencies entirely at the guild’s mercy if the union were to change the rules. By dropping that aspect of its proposal, the guild is presumably hoping to make its new agreement more palatable to smaller agencies, in hopes of peeling them off and getting them to sign on.

That way, if the guild orders writers to leave their existing large agencies April 7 based on those agencies’ (likely) refusal to sign the new agreement, the guild presumably believes that there will be alternatives for the writers. WGA members are not allowed to be represented for writing services by a non-signatory agency.

But whether the guild will be able to fracture the ATA and get any agencies to sign even the revised agreement is unclear. And if some do, it’s unclear the ones who sign will be agencies that have sufficient staff to represent an influx of new writers and sufficient experience to do so effectively. 

For more on this subject, visit THR's labor page.

Here is the ATA statement:

Statement from the Association of Talent Agents Regarding WGA Negotiating Meeting

March 14, 2019

Following today’s meeting, Karen Stuart, Executive Director of the ATA released the following statement:

“Unfortunately, it appears at this time that the WGA really doesn’t want to make a deal. While we appreciate their overtures in tone, they didn’t present any meaningful counter proposals today — instead presenting their original “code of conduct” with a different title.

Based on our conversations with hundreds of film and television writers, we’re hearing that they want to have choice and options. This is reflected in the counterproposals and the Statement of Choice the ATA presented this week, all of which are grounded in expanding transparency and enforcement. The Guild is pushing a unilateral mandate that questions writers’ own decision-making ability and will destabilize the entire industry, affecting writers, directors and actors alike. The Guild’s proposals will only weaken our collective ability to continue advancing artists careers and confront the power imbalance created by the dramatic changes in the media landscape.

ATA member agencies remain committed to finding a pathway and will meet again next week with the WGA to try to come to an agreement.”

——————

Here is a WGA email to members, containing Goodman’s opening statement:

Dear Members,

Today the WGA met with the ATA and gave a comprehensive counterproposal in contract language. The Guild asked the ATA to respond to our questions about independent film. Negotiations are scheduled to resume next Monday afternoon.

Below is the statement WGAW President David A. Goodman opened the negotiations with today to respond to ATA President Jim Gosnell’s opening remarks from Tuesday, March 12th.

“I want to take a few minutes to share with you how the WGA views this franchise agreement negotiation. And I want to thank you by acknowledging the unusual difficulty of this situation. The chief difficulty being that no one in this room has any experience with negotiating this agreement. We recognize that our analysis of the problems is something many of you have taken personally, and we genuinely appreciate your willingness to listen and to try to address the issues.

Our AMBA [WGA-ATA agreement] expires in just over three weeks. There is time to make a deal, and we commit, as you have, to making every effort to do so. To that end we have a comprehensive counterproposal for you.

But before we present it, I need to be very honest about where we stand today. While we appreciate the tenor of Jim Gosnell’s remarks on Tuesday, we disagree with most of your proposed solutions. Our progress here depends on honest communication, so I am respectfully going to tell why we disagree with your “Statement of Choice” perspective.  We think, along with industry consolidation, your fundamental conflicts of interest are at the heart of the problem of writers’ overscale pay. By denying any responsibility for the problem, you are abandoning your fiduciary duty and failing at the admittedly difficult job the WGA delegates to you: maximizing writers’ overscale pay. 

The negotiation, if it is going to succeed, cannot just be platitudes about empowering individual client choice. Choice is only a real choice if an individual writer has the power to exercise it in the face of a powerful company or agency.  Very few do. All of your proposals ask individual writers to do things that have already proven mostly impossible, like having a real choice in agency packaging and producing deals. Even something as simple as our proposal that you provide the Guild with the necessary information to enforce the MBA is unacceptable to you without the burdensome and unnecessary requirement of individualized client consent.

Let’s be clear: This is not an individual negotiation. It is a negotiation about how the Guild will delegate its exclusive right to represent all writers as a whole. This committee is empowered to represent all writers in a collective fashion, and we will not accept proposals that allow you to avoid providing all information and transparency to our Guild. It might sound harsh but your proposals remind us of those normally received from anti-union employers, who often attempt to remove the union from the power dynamic while paying homage to individual choice. As I’m sure you are aware, “Right to Work” laws and proposals are regularly presented as being about offering workers a “choice,” when in fact they amount to attacking unions and undermining employees’ collective power.

In short, it is March 14th and we are still speaking different languages on the crucial issue of the role of the Union in protecting the wellbeing of writers. 

Now let’s talk for a moment about declining writer income.  You mention orders of 8 to 13 episodes as if they are macroeconomic factors totally unrelated to your responsibility for overscale pay. The fact is episodic quotes have been stagnant for twenty years, a factor that has nothing to do with short orders. And in an industry awash with money, writers’ declining episodic quotes and the requirement to work many weeks per episode were completely yours to address. It is not misleading to say that as these problems developed, you did nothing, never said a word to us about the problems or how to fix them, so the Guild had to step in and start regulating options and exclusivity provisions (in 2014) and then negotiate a span provision (2017). We are in effect negotiating overscale income provisions into our MBA. Although we admit the business did change, you have taken the change as something you have no obligation to address. 

You also say that stagnation for lower and mid-level writers is not the result of packaging and “affiliated” production, that the data proves that writers working on agency-packaged shows make the same as those not working on packaged shows. This is a false premise. There is no way to compare what writers would make in a world with agency packaging and without agency packaging. Agency packaging is so dominant that it controls the whole market for writers in television. Even when an agency is negotiating for a writer on a show they don’t have a package on, the agency overall is in constant deal-making with the same studios for packaging fees on other projects. Even agencies that don’t package are at a disadvantage advocating for their clients in this system. And the disadvantage of agencies paid directly by our employers doesn’t stop with series television: Hundreds of screenwriters and pilot writers tell us that their agents not only fail to protect them from free work and late pay, but discourage them from reporting it to the Guild. Maintaining “conflict free” relationships with producers and studios too often trumps the well-being of writers individually and collectively. Until incentives are truly aligned again, this will continue.

Your comments about how the highest-paid Guild members are doing feel pretty tone deaf. We all know about the huge deals, but many experienced writers and showrunners in TV have had their pay pushed down close to Guild minimum scale. Most screenwriters don’t have quotes anymore, yet you have refused to give us every deal memo and invoice so that the Guild can defend them. And all this while the agencies take in billions from venture capital, which can only happen when you are extremely profitable. We feel you are saying that even though some of you are doing great, and the companies are doing great, if writers aren’t, the Guild should stop being upset about it.

Speaking frankly, it doesn’t appear you are taking our proposals very seriously. So I will say bluntly, we won’t make an agreement that turns packaging into a false individual choice that each writer is supposed to make. There will have to be a resolution, if one is to be had, that empowers the Guild to defend all writers’ interests. The same goes for producing. The extreme conflict of interest that is embodied by Agencies as producers cannot be dealt with by changing email addresses or calling entities controlled by the agency heads “affiliates.” We want a real solution: Those of you who are owned by venture capital should become separate entities. We are happy to have you as signatory producers, as long as the agency business becomes a truly separate entity.

Since you have commented about our public communication, I want to say that we need to be able to communicate with our members. You obviously have that same right to talk to your clients, and in fact when members asked me in previous weeks whether they should go to their agency’s outreach meetings, I always said yes. We hope we get to a moment in this negotiation where we’re in true deal-making mode, and then there will be nothing to say publicly. For the Guild’s part, we’ll know that the parties are truly engaged with each other and moving forward when you move past the rhetoric about “individual choice and empowerment” and take our union as the entity that you must deal with in order to reach a new agreement. I need to remind you that though I’m the one talking, I’m not just talking for myself.

I want to emphasize that any negotiated solution must come from this room and from the real interests and differences of the parties. We are ready to work with you every day to explore the possibility of a negotiated solution.”

In Solidarity,

WGA-Agency Agreement Negotiating Committee

Chris Keyser, Co-Chair

David Shore, Co-Chair

Meredith Stiehm, Co-Chair

Lucy Alibar

John August

Angelina Burnett

Zoanne Clack

Kate Erickson

Jonathan Fernandez

Travon Free

Ashley Gable

Deric A. Hughes

Chip Johannessen

Michele Mulroney

Michael Schur

Tracey Scott Wilson

Betsy Thomas

Patric M. Verrone

Nicole Yorkin

David A. Goodman, President WGAW, ex-officio

Marjorie David, Vice President WGAW, ex-officio

Aaron Mendelsohn, Secretary-Treasurer WGAW, ex-officio

Beau Willimon, President WGAE, ex-officio

Jeremy Pikser, Vice President WGAE, ex-officio

Bob Schneider, Secretary-Treasurer WGAE, ex-officio