Today, if the Writers Guild tried to give the determination of this basic moral right of authorship back to the studios, we’d have to go on strike to jam it down their throats. Determination of who gets credits is the single most contentious, divisive, unsatisfying issue for the Guild and for the film community. No way the producers want the arduous, expensive, and sometimes litigious job of sorting out who did what.

Nevertheless, it is commonly assumed in the media and among writers and producers themselves that the Guild’s credit determinations are unfair, the process poorly administered and basically dysfunctional. Into this wilderness of false assumptions, half truths, misunderstood data, vicious rumor, and nasty legal tangles we now gingerly tread. There be monsters here--or are there?

Is the System Broken?

In 2004, the Guild received 3,243 notices of tentative credit for television shows and 260 for motion pictures. For the sake of clarity, we will deal only with screen, but the television process works pretty much the same way--and with the same results.

Of the 260 movies, 79 went to arbitration while nobody seemed to have a problem with the rest. (It’s worth noting that, while the common perception is of movies being written by relay teams or mobs of writers, in 2004 some 67 percent of movies made under Guild jurisdiction were credited to a single writer or a team of regular collaborators.)

Of the 79 credits that went into arbitration, 46 were automatic arbitrations under one of the provisions of the Guild’s contract. This requires that any credit--including a producer, director, or executive of the film--be arbitrated and final credit allocated by three independent arbiters who are members in good standing of the Writers Guild. This was put in place to stop the abuse of power by predatory producers, executives, and directors. It is a source of some irritation for writer-producers who have to submit to the process of arbitration even when they and their writer-partners have worked together for years and have no problem sharing credit. But years of bitter experience taught us that this process is necessary to stop the blackmail of writers to give away credit to people who have the power to hire and fire. “Don’t go to the Guild or you’ll never work here again” is a useless threat because the arbitration is automatic.

In addition to the automatic arbitrations that year, 33 writers protested the proposed credits on their movies. Here’s what happened: The Guild credit administrators and participating writers received the notice of tentative credit from the studio. One or more of the writers protested they had not received proper credit. They were then sent a copy of the credits manual explaining the process. The studio was asked for the pertinent material--all drafts of source material, story outlines, scripts and notes, and cutting continuity if applicable--and copies were sent to each of the writers. They were instructed by the Guild staff to review the materials and to write detailed statements, including what they each regard as a fair credit, with an analysis and defense, and to submit any written material they feel is pertinent and missing from the studio submissions.

The Arbitration Process

Studios often manipulate credit to eliminate payments to highly paid participating writers, to kowtow to valued directors and producers, or to cut off money owed to writers of originals being remade. On occasion, the various parties have attempted to alter dates on notes or drafts or even introduce counterfeit “notes” to claim credit. Participating writers may produce drafts of dubious origin. The stakes are high, memories are often vague, and contradictory claims might be made.

If there is doubt about authenticity, a pre-arbitration panel of three members of the Credits Committee will conduct a hearing in which all participants and claimants have an opportunity to verify or challenge the submitted material, in testimony or with documentary evidence. The panel has the power to make a binding decision as to what may be accepted into the arbitration and to exclude what appears tainted, false, or unsubstantiated. Last year there were nine pre-arbitration panels, but even that is more than enough.

For the actual arbitration, the participating writers are given a list of all the available arbiters (experienced Guild members in good standing) and are asked to mark off any whom they might have reason to believe would not be objective, competent, or fair. From that edited list, eliminating anyone the participating writers did not accept, three arbiters are recruited by Guild staff.

The participating writers’ names are removed from all materials, substituting an identifying letter (Writer A, Writer B, etc.), and everything is sent to the arbiters to be read and evaluated. Thus the arbiters do not know the names of the writers, and they do not know who the other arbiters were. This is done to avoid any possible taint of conspiracy or favoritism or celebrity effect in the event a writer is a star and an arbiter a fan or critic.

The arbiters work through the materials, sometimes dozens of complete versions of the screenplay, the source material if there is any, the various notes, and the writer’s statements. If they have questions about rules and procedures, they have on call a credits consultant, also a Guild member who has extensive experience as an arbiter.

The consultant does not read the material; his or her job is to advise the arbiters on rules and give advice from experience. The consultant is specifically forbidden to recommend a decision. In the event of a difference among the arbiters as to who gets what credit, the consultant tries to understand the difference and advise (if this seems pertinent) the arbiters as to the details of the other arbiters’ reasoning to try to bring about a consensus. In a third of the cases, the arbiters agree. In the remaining cases, the decision of final credit is decided two to one.

Finally, the arbiters send to Guild staff and the consultant their written decisions, together with a page or two explaining the rationale for their decision.

For Example

People still argue over this one. Citizen Kane was written by Herman Mankiewicz for producer John Houseman and director Orson Welles. It was never formally submitted for arbitration, but we do have the written record that conflicts with the fervent belief of Orson worshippers that Welles deserved at least a split credit. If the current arbitration process had been in play in 1941, our imaginary arbiters would have read a 302-page first draft by Mankiewicz titled The American. They would have been told in statements from Welles and Mankiewicz that this draft was written by Mankiewicz between frequent meetings with Houseman in the Apple Valley motel where Mankiewicz was recovering from a broken leg and where he went to get away from distractions while writing.

Welles and Houseman do not dispute that Mankiewicz wrote this draft alone. The arbiters would have the final shooting script submitted by RKO. There were no notes or written material of any kind produced by Welles, and Houseman never intruded upon writing credits. Here is the point: The arbiters are allowed to use only written material; they may not speculate on what might have happened or on what was said in meetings or on the telephone or hearsay. The decision must be based upon written material and the verifiable record. Guild staff review all submitted material to try as best they can to determine its date and true source. Did Welles have input in the screenplay? No notes, letters, scenes, or even scraps of dialogue on paper. Did he tell Mankiewicz what to write or verbally suggest scenes and dialogue or elements of structure and order of scenes? It is certain Welles did--that is the function of a director. The arbiters would also note (I’ve had the opportunity to read all the relevant material) that everything that is in the final filmed version of Kane is in Mankiewicz’s first draft, either very close to its final form or easily recognizable in stage direction, dialogue, or scenes. From first draft to shooting script, it was a matter of editing out unneeded scenes and refining the narrative. Mankiewicz was the sole writer employed down to the actual shooting. This one is a slam dunk for arbiters: “Written by Herman Mankiewicz.”

Others are not so easy. There were 11 versions of Cat Ballou. The first nine were singing cowboy-style dramatic versions. Walter Newman (#10) got fed up with the dramatic approach, rewrote it as a satiric comedy, threw it on Harold Hecht’s desk, and quit. I had the job (as #11) of fulfilling the wonders Walter had wrought in making it a comedy. We split the credit, Walter deservedly in first place. What had changed was not the story, nor the events, nor even the structure; it was the theme and style, dialogue, and some new scenes. I’m sure some of those other nine writers might feel they have a claim. But it was Walter Newman who gave life and personality to the picture by reconceiving it as a comedy.

This calls for subjective judgment, not merely counting lines of dialogue. This system will never be perfect, but it’s the best we have and herculean labors (akin to cleaning stables) in trying to refine the rules of the credits manual have most often only made matters worse.

Fear and Loathing: The Policy Review Board

Grounds for appeal from an arbitration: dereliction of duty by arbiters, the use of undue influence on the arbiters, misinterpretation or violation of Guild policy, or production of new source material, scripts, or material unavailable to the original arbiters. Of the 79 arbitrations last year, 18 were challenged and sent to a Policy Review Board.

The Policy Review Board consists of three experienced members of the Credits Committee, not including the consultant on the arbitration being challenged nor the arbiters themselves. The board reviews the case to determine if there was any deviation from Guild policy or procedures that could have misled arbiters to an erroneous decision. The board does not read the material, nor is it empowered to change the decision of the arbiters, but only to be certain the procedure was properly followed. In the event some aberration is found, the board may send the case back to the arbiters for a reconsideration, or it may appoint new arbiters to redo the whole process.

The Policy Review Board hears from Guild administrators on the handling of documents and the conduct of the case. If there was a pre-arbitration panel, they review that record. They interview the writers involved. These meetings are to be avoided at all costs--writers sometimes bring lawyers (and in one case, a loaded gun--we now have security officers present). Lawyers bluster and threaten and more often than not merely muddy the waters.

Last year, of the 18 challenges, three were returned to the arbiters for reconsideration. Two resulted in a change of the arbiters’ decisions.

Legal challenges to the Guild are rare. In 20 years and some 6,000 arbitrations, there have been nine court cases. In every one, courts have ruled that the Guild has jurisdiction, that our procedures are fair and have legal standing to protect the writers involved. Most important of all, the courts have validated Guild conduct of the arbitrations, especially the anonymity of the arbiters as protecting the process from any taint of undue influence or conspiracy. In no case have the plaintiffs won.

Anonymity also protects the arbiters from any possible retribution from studio executives, directors, or from the writers they are judging, who may be people for whom they might someday work. The risk is real, and it takes courage to do this job, in addition to the stamina to wade through the materials in a complicated case.

Though a negative decision is hard to take (I can testify personally to that) for both reasons of pride of authorship and the residuals and royalties involved, on the whole the system does work--perhaps 95 percent send some writers away disappointed but at least knowing they had an exhaustive and difficult hearing by their peers, not the arbitrary whim of a studio executive or piranha director. Of the remaining 5 percent, the Review Board and the occasional court case are horrible. And, we all being human and prone to error, a few are ghastly miscarriages of justice. I submit that the Guild’s batting average is infinitely better than the justice system’s in handling death sentences.

Yet the perception persists that something is wrong, that existing credits are unreliable. Partly this is because the media are naturally drawn to drama and conflict. High-profile disputes are the ones that appear on TV and in print, too often with the plaintiffs charging the Guild with carelessness, stupidity, or favoritism--or all three--often in colorful language that make great headlines. Meanwhile, the arbiters soldier on, on a task that often requires detailed analysis of cubic feet of screenplays and mutually contradictory statements and claims. They get few thanks, except from the Guild itself and from the knowledge they do this to guarantee the integrity of the screenwriting credit.

I believe that dissatisfaction with the process is rooted in the criteria for how to make a judgment of deserved credit. These are constantly in dispute. The single most divisive issue is the balance of contribution from a first writer and a second and subsequent writers. In judging an original screenplay, the arbiters are given guidelines: the original writer(s) need contribute more than 33 percent to the shooting scripts, while any subsequent writer must have contributed at least 50 percent to qualify for screenplay credit.

If the first writer--in the judgment of the arbiters--falls short of 33 percent, the original writer is still entitled to at least a shared story credit. The first writer is always entitled and guaranteed no less than a shared story credit. The Guild currently advises arbiters to give greater weight to the first or original writer, for reasons that seem obvious.

Repeated efforts to write a clear and unambiguous guideline on this issue alone have failed, as the membership has refused to accept the idea that a second writer should have parity with the original. Thus the decision is left to the subjective judgment of the arbiters, who, as veterans, carry the scars of past battles in which they were first but came in second, or second and didn’t even finish. We ask ourselves, does this color their decisions?

In baseball, 33 percent is championship performance, but the fact that arbiters can agree unanimously in only a third of the cases indicates our work is not done. Our best efforts to write unambiguous guidelines on the issue of first versus second writer alone have failed, as the membership has refused to accept the idea that a second writer should have parity with the original or some different way of measuring contribution be contrived. As the Screen Credits Manual says, it is conceivable that a single line of dialogue might so alter one’s perception of what a story is all about that the one line rises well above a 50 percent value. It is also possible that every line of dialogue be rewritten without really changing the essential meaning. Why should this count toward credit? What if the big surprise in The Crying Game  had not been in the original but was the sole surviving idea of a second writer? But the surprise was what the film was about. These intangible and unyielding issues make simple rules impossible to write, and they also result in inconsistencies that sometimes make decisions seem random or irrational.

It is a legal truism that hard cases make bad law, and the inequities of trials by jury are something we live with and endure in the larger community. Within our smaller and more parochial film world, where these decisions can make or break careers, the truism seems even more true. Do we just suffer with it? Or try to do something about it?

The Film Credits Committee (and its twin in television, which operates in much the same way) constantly monitors the system, constantly considers possible changes, constantly considers rewriting the rules and procedures (and especially the guidelines for arbiters). It is an incremental and evolutionary process in which every altered nuance seems to invite unintended consequences, usually for the worse. And after 70-odd years of sifting and resifting all this, there are still differing views among the Guild membership as to what the credits should properly represent.

Why should they be limited to those who have done “substantial,” “quantifiable” work on the screenplay? Since the caterer’s fry cook gets a credit, why shouldn’t the writer whose work falls below, say, 20 percent, get some form of recognition? Or the gag writer the director drags in to “punch up” the jokes? In the past we allowed credits for “Additional DialogueÉ,” but these were abandoned because they appeared to raise doubts about the work of the credited writer. If a writer was paid to consult without actually writing (as happens) and contributes to the final result, why not some form of credit? Why not--during the end credit crawl--an alphabetical list of every writer employed on the movie, in addition to the formal credits in the beginning?

That’s a short list of ideas put before the Credit Committees over the years, to be worried to tatters and cast aside. Only to be again rolled out at the bottom of the mountain when the next committee of Sisyphus was (and ever will be) appointed.

In the end, we fall back on Winston Churchill’s ironic bow to democracy: a terrible form of government, he supposedly said, but the best we have been able to devise.

Or maybe the Guild should forget royalties on DVDs and go on strike to make the producers arbitrate credits.