WGA Protects Series Staff Writers

(February 2005)

The WGAw recently prevailed in a legal arbitration in which a Company attempted to reduce writer-producer salaries on a television series. The Company (a major studio) tried to create a new policy that, in effect, "set aside" $1,000 of a writer-producer’s per episode fee as an "advance" against any script fees that might become due. On the series in question, this ended up reducing the per episode fee by $1,000 for each episode produced.

The WGA presented evidence that the writers and the agents had negotiated for the full amount (not the $1,000 less) and that the full amount would be used as the writer’s stated quote. We also argued that the full amount was actually compensation that could not be credited or offset against script fees. We took the position that this "policy" was a subterfuge to reduce salaries.

As of now, the Company has unfortunately chosen to read the arbitration decision extremely narrowly, to apply only to the writers on this particular series. The WGA strongly believes the decision should be read to prohibit all similar provisions in any writer’s individual contract. Given the studio’s current position, that means the WGA must police all similar contracts on a case-by-case basis. If your client is working under a contract that provides for an advance on script fees that may have been carved out of the writer’s per episode fees, please contact the Contracts Department at the WGA at 323/782- 4501.

The True-Life Story About Separated Rights

The subject of separated rights can be complex and difficult to master. One area of difficulty is the area of true-life stories. As an arbitration decision held, there can be separated rights in a true-life story as long as certain criteria are met.

When the writer is not given particular source material upon which to base the story and/or screenplay, or is given some material but is nonetheless given the leeway to find a new and different story (and does so), the writer may be eligible for separated rights. Those rights, of course, give the writer publication rights, stage rights, and rights to receive monies in certain circumstances (such as sequels) if the Company exploits rights it owns. It is important to note that this does not give the writer any additional rights in the life of the underlying subjects, or the facts of those lives. Rather, the writer has rights in whatever the writer has created: structure, characterization, point of view, research about the subject, etc.

Another recent arbitration decision found that there might not be separated rights in a true-life project depending on the nature of the assigned material and the manner in which it is assigned to the writer. It is therefore imperative that the writer’s contract state accurately what the assigned material is and what the instructions are to the writer with regard to that material (whether the material is intended to be followed or is provided as research). If there is a change in the assigned material, there should also be written confirmation of that change including the nature of that assignment as well.

Since the language in the contract can impact the writer’s entitlement to separated rights, please be aware of the references to any material given to the writer, and ensure they are accurately reflected in the contract.

Please call the Contracts Department at 323/782-4501 if you have any questions.

Animation Notice

As the result of a recent agreement with the majors, when your client is offered a job on an animated project, you and your writer-client must be notified of the applicable union agreement up front when the employer is signed to both the WGA agreement and the agreement with IATSE Local 839 (the Animation Guild). That means the Company must inform you as to which agreement applies.

This notice will give the writer the opportunity to take the job with full knowledge of the terms of the deal, try to negotiate above minimum terms (for example, WGA residuals and pension and health contributions if the show is IA) or choose not to take the job.

While the WGA would, of course, prefer that all animation be covered under a WGA agreement, there are companies that have had contracts with IATSE Local 839 (the Animation Guild) for many years and maintain their rights to hire writers under that agreement. As there are terms in the Local 839 agreement that are different from the WGA agreement, the agent and writer should know what rules would apply to the employment prior to agreeing to the deal.

Although specific provisions are subject to individual negotiations between the writer (or writers) and the employing company, the WGA can help advise writers on the kinds of provisions to propose, especially those that improve on the minimum IATSE contract. You may call the WGA’s Organizing Department 323-782-4511 if you have any questions.

So how could this work? The writer would be working under an 839 agreement. While 839 retains jurisdiction, the writer has the right to negotiate an overscale deal that meets the WGA requirements. When the Company makes the offer, the company rep says to the agent, "We propose X episodes and Y scripts, all at IA minimum as this is an IA show." The agent can say, "If you want this deal, we want an overscale agreement with WGA minimums, including residuals and WGA pension and health coverage." The Company may negotiate using WGA rates as the basis of the deal, or may stick to the original offer. Either way, the writer can then make an informed decision about the job. [It is important to note that if the company agrees to make contributions to the WGA Pension Plan and Health Fund, certain procedures still need to be completed with the company, the IA Funds and the WGA Plans before it can be finalized.] Hopefully, the notice will aid the writer in the deal-making and decision-making process.

If your client is offered a job on an animated project, please make sure you know whether the WGA agreement applies. Based on the writer’s individual circumstances, there may be a significant advantage to a WGA deal. Feel free to call if you have questions.