Writers Guild Challenger Phyllis Nagy to Agencies: "We're Not the Enemy" (Q&A)

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Phyllis Nagy

"We will get nowhere by maintaining this stasis," says the presidential candidate on the eve of the union's election.

The Writers Guild of America West's officer and board elections have been a hard-fought referendum on the guild’s current campaign against major talent agency business practices, particularly packaging fees and affiliate production.

The balloting ends Monday, and as the battle draws to a close, The Hollywood Reporter sat down with WGAW presidential challenger Phyllis Nagy (and, separately, with incumbent David Goodman) for a candid Q&A. (This interview with Nagy has been edited for length and clarity.)

As we approach the finish line, how are you feeling about the election?

Well, it’s been a very long campaign cycle, for sure. I don’t know what to make of where any of us is, how the election will turn out. I can tell you that by speaking to more and more people each day who are concerned about various aspects of what may happen if leadership is reelected or conversely, what may happen if any of the WGA Forward Together slate is elected. So I would say that the membership as a whole remains as engaged, but also as divided as they might have been six weeks ago or however long ago it began.

What concerns are members expressing?

There are a number of them, I think they fall into different categories. There are the people who have always felt as if their Code of Conduct vote, way back in March or April, was a vote for leadership to negotiate in good faith in new Code of Conduct with the agencies. Those people still feel as if they were perhaps not being told the entire truth of it, and were mystified by the lawsuit. And so they are five and a half months into it by now, they’re wondering how in the world leadership thinks it’s going to get out of this situation, by waiting out CAA, UTA, WME and, to an extent, ICM. Because from that perspective, those members see no movement, no negotiation and no strategy other than what it’s been from the beginning, which is to divide and conquer a bunch of smaller agencies that don’t, by and large, engage in the practices that that that our lawsuits are all about.

The other area is growing concern from feature writers who have been saying all along that we actually need our agents, that the way that feature writers get jobs isn’t through other writers. Now, you know, this seems pretty fundamental to me, but apparently, it’s not quite registering yet with leadership, but I know that people are frustrated by this.

This feature open writing assignment portal that was set up is not working as it should. Many of the jobs that are listed aren’t even through signatory companies, there’s no direct communication with anyone, so people are sending things into a void, not hearing back. I know that there has been some acknowledgement of that from WGA leadership, but it’s still five and a half months in and no viable option for feature writers who aren’t working with managers, who don’t feel comfortable picking up the phone and calling old producer friends. And certainly the younger writers or the less experienced writers do not even have access to picking up a phone and talking to a previous contact, a previous work relationship. 

And also the wear and tear of this [agency campaign] is making people wonder, if this is going to go on for another five or six months, we’re into MBA (Minimum Basic Agreement) negotiations and what is going to be the net result of going into the MBA negotiations with the companies in this state, which is we’re fighting battles on two fronts. This weakens us, and our whole slate has been of that opinion for the entire time.

Conversely, on the other side of this, you’ve got writers who feel almost exactly the opposite point by point. They don’t see that there’s been a lack of negotiation, they do think that leadership all this time has been negotiating, the divide-and-conquer strategy is working. And somethings people just have to suffer for.

Basically, there’s been no shift in those attitudes. Very occasionally, when we’re able to speak to lower-level writers, being able to talk to people about why we believe that going back to the 10 percent business model that really hasn’t existed in 40 or 35 years will hurt them, ultimately, has had some effect. 

Why would it hurt them?

The idea is that, in the 10 percent world it’s only the highest earners who will eventually be kept. You’re not earning, you’ve got to go away. And I think that that that is true of any agency whether it’s the Big Four or any other smaller agency. We don’t think that will incentivize them to work harder for new clients. There have been some writers that we’ve spoken to who do understand that or agree with it. And on the other hand, we have current board members who actually have gone on record to say, "Well, if that happens, those writers should be dropped from agency rolls and they should just find agents who want to work for them."

I do find that extraordinary and really kind of naive. But when you’re looking at an action that’s been pitched as a crusade for right, there’s very little that you can say to counteract that without putting yourself into a position where you’re suddenly called a Republican or an elitist. We’re essentially advocating for a more moderate approach and a more pragmatic approach to how to resolve our conflict with agents or anyone else.

Is this action by the guild exposing fault lines of class or income division among members?

More than class or income — although those things obviously play into this — it’s a generational divide. We’re seeing a lot of people who have a very different attitude about what matters in building a career, and how money or privilege or earning boatloads of money or obscene amounts of money is no longer the goal. Well, it’s not our goal either. It’s not what we’re advocating. We actually think the action put forth by leadership ultimately played out to benefit people with boatloads of money at the expense of people who don’t have boatloads of money. 

But we are seeing younger people who, as [writer/producer] Angelina Burnett put it recently, have nothing to lose, are way more likely to go along with the leadership action on the grounds of it being the right political thing to do. That’s what we’re finding. And the older writers who have been around for a while, who aren’t big showrunners — although there are some, obviously — who have weathered a lot of different kinds of storms, difficulty, strikes, etc., are people that are reaching out to us. They’re concerned about how long this action will go on. What is the ultimate point of it? Is it a power grab? If so, we have no interest in that. Those are the kinds of questions we’ve all been facing throughout the cycle.

There have been some showrunners who are supporting your slate.

Yes, there are quite a few on that list. But also, significantly, quite a few of the writers who aren’t famous, who aren’t in nine figure deals with Netflix. And I think a lot of attention has been focused on the Shondas [Rhimes] and the Gregs [Berlanti], and not enough on the rest of the names on the list. We’ve always had a support of writers who are not quite the fancy. It’s just been hard to reinforce that message sometimes with the amount of pushback we’ve gotten from those who have always been firmly in current leadership’s camp.

One would think that younger writers have a lot to lose in terms of the difficulty of getting agents and then having to fire an agent. But you’re finding that younger writers tend to favor the leadership’s approach?

All of this is broad and anecdotal because we don’t have numbers. The divide is about we the younger TV writers. We are staff writers, we’re just on our first job, my agent didn’t do anything for me, my agent didn’t get me that job, why should I have them? And you don’t want to sound like father time when you talk to writers. But the truth of the matter is that agents have always fulfilled different functions depending on who the clients are. I don’t know if my agent has gotten me jobs so much as made it possible for me to make more money at those jobs through various ways. But this is a very difficult conversation to have with people who are just starting out and see only that, wait a minute, I did all the work to get that job. Well, you generally do, your agent doesn’t write the script for you and doesn’t sit in the room with you when you’re pitching, by and large. So it’s that kind of generational divide.

So the stopgap online systems are working for some TV writers but not others — is that what you’re finding?

There’s no evidence that the TV portal has resulted in more net job for writers, but there is evidence that it is working better than the current open assignment feature portal. There was a member who had called the guild about the feature portal and at least this member told me that it was admitted to her that they weren’t yet vetting the producers or organization that were posting these alleged assignments but that they were working on it. So perhaps that will improve.

At that moment in time, which was August, it was reported to me that of the 29 projects on that portal only 11 of them were feature projects and only two of them were actually with signatory companies. So I’d say that was a problem. I don’t know where it where it sits right this second. But I also know that, being a feature writer, nobody really hires from portals. It’s even more so a relationship business than TV because at least in TV the relationships are by and large with other writers, so there’s a there’s a level of access that people feel comfortable with. And I know very few people who are comfortable with picking up the phone to a studio executive and saying, Hey, you got any work?

What happens if the current leadership is reelected and then the lawsuits get dismissed on both sides?

If our lawsuit crashes and burns or fizzles out, then we’re in a really tenuous position, because we got nothing. If we have no claim, then we’re right back where we were and you would think that means we have to negotiate a new franchise agreement with these people. I don’t think at that point that membership would accept anything other than, it’s time to take another look at this, you have to just stop and do what the right thing. Now, if this is going on in the middle of the MBA negotiations, and suddenly our lawsuit is kaput, then that’s even worse, because that puts us in a terrible position with the companies: We are weak, we just lost something that the membership was solidly behind and we’re at the mercy of the companies.

If the agencies’ lawsuit is thrown out, we’re in this for a much longer haul. And then what I see happening is that the agencies who have been, as we know, quietly amassing packages around actors, directors and IP, signing foreign writers, we’ve heard stories of stockpiling scripts … they’re learning how to adapt without us. The notion that they will always need writers — yes, they will, but we will be writers for hire. Do they have to rep us in order to be to make that relationship work?

I see a lot of adaptation going on from a bunch of big diversified companies and we’re not really responding to that.

What I see is the Big Three or Big Four getting out of the writer business eventually. And I don’t mean that every single writer will never again be represented by one of those agencies. What I see is worse than that, which is that only the very successful, very wealthy, in-demand or people of the moment will be represented by those agencies. And I don’t think that’s what anybody wants.

I don’t know how many of those agencies that exist outside of the Big Four can take on 7,000-plus writers from the exodus and what the new landscape would look like. I think the assumption is that a bunch of junior agents from those bigger agencies will leave and set up shop elsewhere and we’ll have some sort of free market where these brave new agencies service all of our writers. But the only problem with that is, it’s very difficult to setup a business and even more difficult to make it a going concern, so there’s a lot of things that have to happen before that becomes a model that is viable. It will take more suffering and growing pains, but I suppose that is the other the other thing that could happen. 

But basically, I see a lot of writers without agents, at the end of this — possibly being represented by the guild in some way, even though I have heard many people from leadership saying that that’s not what they want.

But is that where we already are?

I do think so. If you go back to the original Code of Conduct that the agencies initially were being asked to sign on to, all of those other clauses about privacy and data would point to Yes, there is a scenario in which the guild could become like a hiring hall, that kind of union. It’s something that we’ve never been and I don’t see how we could operate as such, in an effective, good, fair way.

Do you agree with leadership that packaging fees have depressed writers salaries overall?

No, I don’t. I might if I had any other evidence to suggest that they were. I have some evidence that suggests that they are actually increasing them. Some of that comes from agency reports, so you always have to sort of look at those very carefully too. But what I do know is that for lower-level writers, 10 percent in your pocket is 10 percent in your pocket. Now, if we keep going up the food chain, packaging fees are benefiting agencies to the detriment of higher-level writers and showrunners. And so that’s why we’re saying this action is benefiting the very wealthiest of us. But it’s not benefiting in any way, shape, or form the person who is a staffer, for now, increasingly, many more seasons than just one. I just spoke to a young writer, like 30 [years old], who has been a staffer for now going into her fourth year. There was a time when that person would have been bumped up the chain much more quickly, to a story editor or the next level. And with the shorter orders, it’s just not happening.

The elimination of packaging doesn’t help that person in the short or medium term at all, because they’re still paying 10 percent of whatever it is they make a week. And that can be significant at that level. So, it really isn’t packaging fees that are hurting those people. Once they start to get into a situation where they have their own shows, it shifts a bit. But there’s still a way in which everyone underneath them will benefit from not having to pay a commission.

I never have believed that packaging hurt anyone. There are people who believe this is a fundamentally illegal thing. But it isn’t, strictly speaking, illegal now. And I don’t ever think that it’s a good idea to play the “we’re right” card and that’s why we’re doing this in a business transaction, which is essentially what this is, we’re trying to resolve a contract dispute. This is why courts exist. And this is why I suppose the leadership would say that they are challenging this practice in court. And if that’s the case, why was the business model necessary to disrupt in quite this way now, with the leaving of the agents? They would say it’s for leverage, I guess, we’re squeezing the agencies out of vast amounts of income. 

But at the moment, we don’t see that that’s actually having any effect. And so the question is, how long do you need in order for your thesis to start bearing real fruit? And that’s a question that has just never been answered. And I think the answer is, We don’t know, we just need to follow this through at the cost of possibly some people being left by the wayside as they are inevitably during any action. But since this is not a strike, it seems even more tragic than usual, at least to us on the slate.

What about affiliate production, which isn’t even the subject of a lawsuit?

The agencies adapted and saw this coming much more quickly than we did in terms of, well, this back end stuff is going away and we have to find another source of revenue so why not this. I think they are extremely problematic and need to be dealt with in a very comprehensive sunsetting proposal, not just you have a year to get rid of your ownership stake in it, but something that recognizes that there are many ways for big corporations to channel money, and a year is not enough time to make sure that we have the kind of deal that will make it attractive for them. And I don’t mean by attractive that we just give them stuff. What I mean is that there is a real plan about that. 

So at the moment, if you look into the numbers for affiliate production and who they’re giving jobs to, the vast proportion of those jobs, even though they say they’re separate entities — and legally they are — the vast majority of those jobs are going to their affiliated agency clients. And that clearly, in whatever sunset proposal we come up, that can’t happen. There has to be enforcement, there has to be parity, insofar as you can say that you cannot have 75 percent of the jobs going to your clients. 

But we also have to come up with a reasonable scenario whereby they can get out of these businesses and they’re not still somehow owned by them. At the end of the day, I do think that’s a problem. But I also know that a lot of the writers I’m talking to are benefiting from what they see as better deals from these companies. So part of what has to happen is that you have to make it possible for the companies to compete with these guys. Now how you do that I don’t know. But if what those companies are doing is offering writers what look like better deals, and yes, they are better deals, the guild position and leadership position is that it’s like an intro when you when you get cable or something.

But if these companies are problematic, why did the guild sign them up as signatory companies in several cases, and why were guild leadership like WGA East president Beau Wellman and WGA West co-chief negotiator Chris Keyser in business with Endeavor Content, for instance?

Those are questions you’d have to ask them. They certainly are questions that we have had. My question was, what about them now is different from when you gave them signatory status? To my mind, there would have to be something different in order for you to now object to what they’re doing and what they are. And again, they never really had an answer about that at all.

But that stuff’s all about packaging fees. They haven’t sued about affiliate production at all.

Well, affiliate production, they’re now saying, well, it’s all a great big conspiracy. Big business is big business, whether we’re talking about agencies or banks. We all know that people exist to make profits. What’s a bit confusing to me is what incentive do you give people to actually want to stay in business with you? Now that whether you’re a writer or an agent. If everything is illegal and everybody has to go back to 10 percent. And if the writers who have been benefiting from packaging fees and better deals with affiliate production companies have to go back to an income level or a kind of contract they haven’t seen in however many years, what incentive does anyone have actually to stay in the business?

That’s a bigger question then what we’re dealing with, but that long term is a real concern. If you take this as the new normal, who’s going to be able to afford to be in this business? Certainly not anyone who doesn’t already have a bunch of savings or residuals coming in from things that were made five or 10 years ago. Because those [residuals] look like they’re going the way of the dinosaur if we don’t focus on that pretty soon with the news about Disney wanting the same kind of deal that Netflix has had. But we’re not. 

Instead, we’re trying to figure out who’s a bigger crook, our agents or the studios. You can’t possibly have an intelligent plan of attack about either of the things if it’s just all focused on who’s the bigger enemy. Do any of us know who the bigger enemy is? I don’t see it as enemies. I see it as we’re in a landscape that’s shifting so quickly, that next year we’ll be having to have a different discussion about a different paradigm. And we have to be prepared to do that with all of our allies intact insofar as they can be.

We should be able to do this without remaking an industry power structure, which seems to me what part of this action is all about. Because we say we have the power to do this, do we actually? Does history bear us out on this? The history of negotiation, the history of what’s been achievable with strikes? Does that really bear out? It doesn’t. It’s not a very popular point of view, except among those of us who are voting for the opposition slate.

How do you assess your chances of winning?

The short answer to that is, I have no idea. If you go by who attends membership meetings, it would appear that they will win. But we also know that a lot of people who are opposed to the current action and how it’s being handled aren’t speaking up publicly, for obvious reasons. But they are in touch with us.

My view has always been that we do need to make a significant showing whether that means in vote totals or people winning seats on the board or officers, it could be either. But the important thing is that this notion that this is a mandate for what they’re doing supported by the vast majority — that we know is not true. And if we get a significant amount of support my greatest wish would be that that can’t be ignored.

You have to look at the changing temperature of the membership. So if even 30 percent or 40 percent or whatever it is, is saying no, we don’t agree, you have to seriously look at that and consider that it’s time to maybe look at your strategy for dealing with all this. I think that that is reasonable. Now, if we end up with the same 300 votes or 500 votes that leadership has consistently maintained that we end up with, then, okay, the voting membership has spoken and we’re on this course which I don’t see resolving for another year, at least.

So, last question: Is there anything that I haven’t asked you that I should or that you want to say to the members, or the agencies? 

What I would really say to all of those is that we will get nowhere by maintaining this stasis, we will get nowhere by not really seriously entertaining an analog thing, what it means when a group of people, in this case writers, who have supported thus far an action that is seriously aimed against people who we have traditionally thought of as allies.

The dangers of standing on ceremony. What good does this do us no matter who wins now if we don’t sit back, take stock and stop behaving as if we’re all right? No negotiation is ever really effectively concluded with one side or the other insisting that something is an absolute moral certainty. It takes a long time to get to something that way, as we can see right now in our national election. What is paramount is preserving the maximum number of careers that we can, and there’s a lot of working writers in this guild who are very concerned about this and have been dismissed by and large as either being rich or elitist.

People like me who are not — I’m not poor, but I’m certainly not in a nine-figure overall deal and I wouldn’t consider myself to be rich in the way that people throw that word around. None of us who are on this slate are in that position, though we’re doing fine. We need to get off this adversarial approach. We’re not the enemy. 

Neither is leadership, I have to be fair, they believe very deeply. It’s just time to ask serious questions about the efficacy of what they’re doing, should they win. And the agencies, too, have to think about what it’s going to mean to live life like this without writers if that’s what going to eventually come down the pike, and how our entire industry will be poorer for that.