Guide to New Media

(Revised December 2014)

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Contents

About This Guide
What Is New Media?
Work Must Be For a Signatory Employer
Writers Guild Membership
When Is New Media Writing Covered by the MBA?
What Kind of New Media Writing Is Not Covered?
High Budget Subscription Video-On-Demand (HB SVOD) Minimums
HB SVOD Minimums – 15 Million Plus Subscribers
HB SVOD Minimums – Fewer Than 15 Million Subscribers
HB SVOD Initial Compensation
Writing For Derivative New Media Projects
Pension Plan & Health Fund Contributions
Writing Credits
Residuals
Separated Rights
Additional Provisions
Writer-Owned Companies
Checklist for New Media Projects
Contact Information


ABOUT THIS GUIDE

This is a basic guide to the terms and conditions for hiring writers on new media projects under the 2014 Writers Guild of America Theatrical and Television Basic Agreement (“MBA”). Because the guide is intended for both writers and employers, we have avoided using the legal language of the MBA, and no attempt has been made to restate every contractual detail. If there is any inconsistency between this guide and the provisions of the MBA, the MBA will, of course, prevail.

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WHAT IS NEW MEDIA?

A key gain achieved through the 100-day strike in 2007-08 by the Writers Guild of America (“WGA”) was coverage of writing for new media.

“New media” as defined in the WGA Theatrical and Television Basic Agreement (“MBA”), includes all writing for the Internet and mobile devices. The definition covers new devices using these technologies as they evolve, as well as any other platform thought of as “new media” by the industry at the start of the 2008 MBA, which was February 13, 2008.

The WGA recognizes that many writers and employers working on new media projects may not be familiar with the MBA, of which the new media provisions are now a part. So we created this guide to help cut through the legal jargon and highlight the essential terms and conditions applicable to new media projects.

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WORK MUST BE FOR A SIGNATORY EMPLOYER

To hire a WGA-represented writer for a new media project, the company employing or acquiring literary material from the writer must be signatory to the MBA. Under the WGA’s Working Rules, a WGA member cannot work for or option, or sell literary materials to, any person or company not signatory to the current MBA.

The signatory process is straightforward. The employer must submit a standard application, which asks for basic information about ownership and legal status of the company. To request an application, companies employing writers should e-mail the WGA West Signatories Department or call (323) 782-4514.

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WRITERS GUILD MEMBERSHIP

Any writer who is not already a member of the WGA and is hired by a signatory company (“Company”) must normally apply for membership within 30 days of first employment.

A writer intending to spend the majority of time west of the Mississippi River (or in Canada, except east of Manitoba) should apply to the WGA West. The WGA West Membership Department may be reached at (323) 782-4532.

Eligibility for membership in WGA West is based on a unit system, which includes a prorated scale for new media work on programs of less than 30 minutes (see chart below). Writers who have earned less than 24 units are eligible for Associate membership, which is optional. Once the writer achieves 24 units during a three-year period, he or she is eligible for full Current Active membership and may no longer join as an associate member. For membership purposes a writer may combine units earned in any WGA-covered field of work, including film, television, and new media.

The following chart illustrates the prorated unit values, for membership in WGA West, based on program running time (including embedded commercials).

*Story refers to any material containing the characterization of principal characters, sequences or action that may be used in or may make a substantial contribution to a script. Teleplay refers to the complete draft of any script in continuity form, including the full dialogue.

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WHEN IS NEW MEDIA WRITING COVERED BY THE MBA?

This section summarizes the terms applicable to WGA-covered new media projects. With the exception of credits, the provisions outlined below are minimums and do not prevent a writer and Company from agreeing to better terms, including broader contract coverage than what the MBA requires.

The MBA covers writing for projects intended for initial release on new media that are filmed, taped or otherwise recorded in audiovisual form. Where the writing on such a project is for a signatory Company, the MBA will apply if at least one of the following tests is met:

1. The new media project is MBA-covered if the signatory Company employs or purchases material from a “professional writer.” As defined in the MBA, a professional writer is someone who has received:

  • Credit on the screen as a writer for a television or theatrical motion picture, or
  • Employment for a total of 13 weeks as a television, theatrical motion picture or radio writer, or
  • Credit for three original stories or one teleplay for a program one-half hour or more in length in the field of live television, or
  • Credit for three radio scripts for radio programs one-half hour or more in length, or
  • Credit for one professionally produced play on the legitimate stage or one published novel.

Almost all WGA members are professional writers under this definition.

2. The project is MBA-covered if its budget exceeds any of the following thresholds:

  • $15,000 per minute;
  • $300,000 for the whole project; or
  • $500,000 for multiple episodes ordered together.

3. The project is MBA-covered if it is based on a traditional television movie or series (e.g., webisodes for the TV series Parks and Recreation).

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WHAT KIND OF NEW MEDIA WRITING IS NOT COVERED?

The MBA does not cover the writing of text for a Web site, Twitter posts and audio-only podcasts.

If you are unsure if your new media project should be WGA covered please contact the WGA West Contracts Department at (323) 782-4501 or by e-mail for more information.

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WRITING FOR HIGH BUDGET SUBSCRIPTION VIDEO-ON-DEMAND ORIGINAL OR DERIVATIVE NEW MEDIA PROJECTS

Beginning May 2, 2014, the MBA provides terms comparable to TV for writers working on high budget projects made for certain consumer pay new media platforms (like Netflix, Amazon Prime and HuluPlus). In the MBA, we refer to these projects as High Budget Subscription Video-on-Demand or “HB SVOD” projects. Whether or not the new terms apply to your project depends on a variety of factors, including whether the new media platform is subscription based (i.e., where the consumer has to pay to access the programs), the type and budget of the program, and the date of the license agreement between the company that hires you and the new media platform on which the program will be exhibited.

PLEASE BE AWARE: THE EXCEPTIONS. The terms for HB SVOD projects are prospective from May 2, 2014 and apply only to projects that meet the specific criteria in the 2014 MBA. The new terms do not apply to a HB SVOD project where there is a fully-negotiated license agreement between the Company and the subscriber-supported new media platform that predates May 2, 2014. The terms also do not apply to sites like Yahoo that are advertiser-supported. Because there are fewer minimum terms that apply to such projects, writers and their representatives should look very closely at the terms proffered by a Company.

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HIGH BUDGET SVOD PROGRAMS

Derivative and original dramatic new media programs made for exhibition on a subscription video-on-demand consumer pay platform (e.g., Hulu Plus, Amazon Prime, Netflix) that meet the following high budget thresholds shall be defined as “High Budget SVOD Programs.” Programs less than 20 minutes in length shall not fall under this category regardless of the budget.

WRITING FOR DERIVATIVE NEW MEDIA PROJECTS

For new media programs derivative of any traditional television program,* the MBA specifies minimum rates according to the type of program. This initial compensation is separate from compensation for writing services for the original production on traditional media.

New Media Productions Derivative of Dramatic Programs**
(Other Than Daytime Serials):

New Media Productions Derivative of Comedy-Variety Programs and Daytime Serials:

New Media Productions Derivative of All Other Types of Programs:

* The traditional television program need not be WGA-covered, as long as it is a type of program covered by the MBA.

** Dramatic programs include scripted dramas and situation comedies.

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PENSION PLAN & HEALTH FUND CONTRIBUTIONS

WGA Pension Plan and Health Fund contributions must be made on both original and derivative new media projects. As of May 2, 2014, the contribution rate is equal to 17% of the “gross compensation” as defined in MBA Article 17 and is made by the Company directly to the Producer-Writers Guild of America Pension Plan and the Writers Guild-Industry Health Fund.

If the writer uses a loan-out company as the legal entity entering a writing agreement, the signatory employer must still make the pension and health contributions.

Eligibility for health coverage is based on earnings over four consecutive calendar quarters. Effective July 1, 2014, the minimum eligibility amount to qualify for health coverage is $36,568 in earnings subject to contributions.

When a writer first achieves eligibility, there is a three-month (one calendar quarter) lag period between satisfaction of the earnings requirement and commencement of coverage. Once coverage begins, it remains in effect for 12 consecutive months (four consecutive calendar quarters).

More information on attaining Health Fund eligibility, vesting in the Pension Plan and submitting contributions is available from the Pension Plan and Health Fund at (818) 846-1015 or at www.wgaplans.org

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WRITING CREDITS

In according credits for a new media project, the Company must first submit a Notice of Tentative Writing Credits (NTWC) to the WGA and to all of the participating writers on the project as soon as practicable after completion of principal photography. The NTWC contains the Company’s proposed credits, which are subject to final determination by the WGA.

The Company must grant screen credit to the writer—either on the screen or a linked Web site—if any other person involved in the project receives credit. The writing credit must be in the form “Written By” for dramatic programs (that is, scripted dramas and situation comedies) and in the form “Writer” or “Writers” for all other programs.

For more information, contact the WGA West Credits Department at (323) 782-4528 or e-mail.

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REUSE OF NEW MEDIA PROGRAMS (SIDELETTER ON LITERARY MATERIAL WRITTEN FOR PROGRAMS MADE FOR NEW MEDIA)

High Budget SVOD Programs Reused in New Media

Initial compensation paid to the credited writer(s) of a HB SVOD Program with 15 million or more subscribers shall include one year of use worldwide on such platform. For each subsequent year of use on such platform, Company shall make a fixed residual payment based on the applicable network prime time residual base in the following percentage:

Initial compensation paid to the credited writer(s) of a HB SVOD Program with FEWER than 15 million subscribers shall include one year of use worldwide on such platform. For each subsequent year of use on such platform, Company shall make a fixed residual payment according to the schedule above, but the residual base shall be 65% of the applicable network prime time residual base.

For subsequent exhibition of a HB SVOD Program on any subscription consumer pay new media platform other than the platform on which the program was initially exhibited, Company shall make a residual payment equal to 1.2% of distributor’s gross.

For subsequent exhibition of a HB SVOD Program on any consumer pay new media platform other than a subscription consumer pay platform (i.e., download-to-own or download-to-rent), Company shall make a residual payment equal to 1.2% of distributor’s gross.

Please contact the Guild Residuals Department at (323) 782-4700 for more details.

Derivative and Original New Media Programs (Other than High Budget SVOD Programs) Reused in Traditional Media

If a MBA-covered new media program (either derivative or original) is reused in traditional media (e.g., free television, basic cable, pay TV or interactive), residuals are payable under existing MBA formulas. For example, if a derivative new media program is reused on basic cable, Company pays 2% of distributor’s gross receipts. For details, contact the Guild Residuals Department.

The MBA requires the payment of residuals for new media programs in the following circumstances.

Reuse of new media programs in new media (other than HB SVOD programs):

REUSE OF TRADITIONAL PROGRAMS IN NEW MEDIA

Reuse of new media programs in traditional media:

If a new media program is reused on free television, the Company must pay according to the MBA the fixed residual payments applicable to programs made for television, with the first television exhibition treated as the second run. If a new media program is reused in other traditional media (e.g., basic cable), the rates in the MBA govern the residual payments. If there is more than one credited writer, the residual payment is split between or among them.

For both original and derivative new media programs, the writer and Company may agree to residuals in excess of what the MBA requires. Writers are encouraged to negotiate overscale residuals and profit participation that fit the nature and budget of particular new media projects.

For more information about residuals requirements, please contact the WGA West Residuals Department at (323) 782-4700.

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SEPARATED RIGHTS

Separated rights are contractual rights the MBA gives to writers of original material that are “separated” out from the copyright. Normally the holder of the copyright has exclusive rights to reproduce and distribute the material, prepare derivative works based on the original material, transfer the ownership of the copyright, and perform or display the original material publicly.

HB SVOD

If the project is covered by the new HB SVOD provisions described above, then the television separated rights provisions in Article 16.B. of the MBA apply, with minor exceptions. For a thorough explanation of television separated rights, please refer to the WGA publication entitled “Understanding Separated Rights” on WGA.org or contact the WGA Contracts Department for additional information.

ALL OTHER ORIGINAL NEW MEDIA PROGRAMS

For original new projects that are not covered by the HB SVOD provisions, the MBA provides for separated rights as follows:

First, if an original new media program becomes the basis for a television show or feature film, and the writer of the new media program also writes the television show or feature film, the writer may be entitled to separated rights in the television show or feature film. The sole fact that the story was first developed for new media will not prevent separated rights from existing in a traditional media project.

Second, if the writer of an original new media program would have been entitled to separated rights had the program been written for free television, the writer retains television and theatrical separated rights. The writer may exploit these rights or sell them to a party other than the Company; however, the Company has a right of first refusal if the writer intends to sell the television or theatrical rights to a different party.

Please note, however, that the Company may negotiate directly with the writer to purchase these rights at any time. The terms of such an agreement must be in writing, in either the purchase or employment agreement or in a separate contract. The Company must pay an amount separate from the initial compensation in exchange for such rights.

Third, if a writer creates a series that is exhibited exclusively through new media, the creator may be entitled to sequel payments. Series sequel payments are due when:

  • Separation of rights would apply if the original new media program had been written for free television; and
  • the actual cost of production exceeds $25,000 per minute of program material; and
  • the length of each program, as exhibited on new media, is 20 minutes or longer.

If all of these conditions are met, the Company must pay no less than the 15-minute television series sequel payment for each new media episode.

As with initial compensation and residuals, writers of original new media programs are free to negotiate better terms than those listed, including the right to write the project if it later becomes a television program or theatrical motion picture.

For more details on separated rights, please contact the WGA West Contracts Department at (323) 782-4501 or by email at e-mail.

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ADDITIONAL PROVISIONS

The following MBA terms and conditions also apply to WGA-covered new media projects:

Employment Contracts: A written contract must be submitted to the writer within ten days following commencement of services, and to the WGA within one week after the Company’s receipt of the executed contract.

Time of Payment: Payments are due within 48 hours of delivering literary materials and no later than seven days after delivery.

No Strike, No Lockout: During the term of the MBA, the WGA will not engage in any strike or work stoppage against the Company and the Company will not engage in any lockout of WGA-represented writers.

Grievance and Arbitration: A claim arising out of a dispute regarding writing on a covered new media program shall be subject to the grievance and arbitration procedures set forth in the MBA.

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WRITER-OWNED COMPANIES

In the emerging new media marketplace, many writers (WGA members and future members) aspire to write and produce their own content as a means of owning and controlling the works they create. The WGA supports these entrepreneurial ventures and recognizes that under these conditions many new companies may be owned completely or in part by writers. There are a number of special considerations relevant to writer-owned companies.

Membership

If you own a company (completely or in part) and also perform writing services for your company, in order for these services to be counted toward the 24-unit membership requirement the WGA reserves the right to determine if your employment and production company are bona fide. This ensures that writers who gain membership based on self-employment have legitimately earned the right to do so.

Pension Plan & Health Fund Contributions

If you directly or indirectly own at least 10% of a company and also perform writing services for it, special rules regarding pension and health contributions apply. For example, if the company employs you solely as a writer, contributions may not count toward your pension and health eligibility unless an unrelated third-party directly utilized and paid for the writing services. If you have a financing agreement with an unrelated third-party and you are employed for writing and other services (other than under Article 14) and the agreement with the unrelated third-party specifically states the amount to be received for writing services, then the normal contribution rules apply.

If your financing agreement does not specifically state the amount allocated to writing services, then contributions will be made based on the lesser of (a) actual compensation of at least $125,000 (as periodically adjusted) or (b) 5% (for non-dramatic programs including comedy-variety, documentary, quiz/audience participation) or 10% (for dramatic programs) of the total compensation your company received from the unrelated third party for producing the program.

If your project is 100% self-funded, the Pension Plan and Health Fund can accept contributions on your behalf when a project has been produced, distributed and revenue has been generated. Revenue can include licensing fees or ad revenue from distribution or exhibition as well as revenue received from consumer payments. The Fund will require information to demonstrate that revenue has been generated, including contracts with the distributor or exhibitor and proof that qualifying revenue has been received. Pension and Health contributions are payable on initial receipt of revenues, and are deemed earned and due at that time. Please check with the Employer Compliance Department at the Pension Plan and Heath Fund office for more detailed information and the most current reporting criteria whenever you are producing self-funded projects. You may reach the Employer Compliance Department by calling (818) 846-1015.

Ownership Rights

Writer-owned companies and projects provide great opportunities for writers to maintain ownership of the copyright in their works. The WGA encourages writer-owners to consult with their personal attorneys to ensure that they protect these valuable rights.

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CHECKLIST FOR NEW MEDIA PROJECTS

Whether you are a writer working for a Company or you own your own company that plans to produce new media projects, here’s a list of things that need to happen to ensure that your project will be covered and in compliance with the MBA.

Check the signatory status of the company employing or purchasing literary material from the writer(s).

If the employer is not signatory, it should contact the WGA Signatories Department and complete a signatory application.

Check the compensation on pages 5–6 of this guide to assure compliance with MBA minimums.

Submit all writer employment or purchase agreements to the WGA Contracts Department.

Make Pension Plan and Health Fund contributions for writers employed on new media projects. For more information and contribution forms, visit www.wgaplans.org.

After principal photography concludes, submit a Notice of Tentative Writing Credits to the WGA Credits Department.

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CONTACT US

The WGA hopes this guide has answered your questions regarding new media. If you have any additional questions, please contact us.

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