An argument that you may have heard from your agent or agency – and that may, at first blush, seem persuasive – is that packaging, which in this context is to say the attachment of additional elements to a project is beneficial and, in some cases, necessary to the success of a given project.
In order to give this argument its due, let’s spell it out in detail. As the argument goes, the landscape for selling a television or feature – which may mean getting a pilot script order, or a feature script deal, or having a pilot made, or a movie made, or getting a series order – is so competitive that it is either highly advantageous or an absolute prerequisite to attach talent in the form of a director, actors, or producers. The less weight you carry in the industry, the more important that option is for you. In other words, everyone needs a marginal advantage in setting up his or her project, and the less well-known you are the more reason you have to level the playing field by collaborating with other, more highly sought-after talent. Your agent and your agency – particularly if you are at one of the big four packaging agencies – is the key to doing that. They have access to a roster of talent that can be made available to you. But that only happens if you are represented at the given agency. If you are at another agency – and particularly if you don’t have a “name” yourself – that talent is effectively unavailable to you.
The conclusion your agents will draw, in this case, is that if packaging is eliminated as the Guild is fighting to do, writers will lose the critical advantage of having an agent and an agency that is willing and able to attach meaningful talent to your projects. This will hurt all writers – and hurt lower-level writers the most.
This is a false choice.
The argument is fallacious from the get-go because it relies on the confusion of homonyms. Packaging, as defined as the attachment of talent elements to a given project, is not the same thing as packaging fees, as defined as the agency earning its profit, not through commissioning its talent, but by taking a piece of a project’s budget and back-end.
Yes – at one point in history – these two concepts were related. At its outset, powerful agencies that had done, in their estimation, outsized work in getting a project made, by adding talent or finding funding, for example, decided that they were behaving enough like producers to get paid as producers, rather than as representatives of talent. As time passed, out-sized efforts ceased to be necessary. If a given agency represented more than one principal in a project, it demanded a “packaging fee” in lieu of multiple commissions. In 2019, even that isn’t necessary. The big four agencies take a packaging fee on virtually all of the television projects on which they represent the writer. No actual work beyond the mere fact of representing us is required. In fact, in cases where more than one agency represents a piece of principal talent in a project (writers, director or lead actor of a certain stature) they simply split the fee. That practice, of course, makes a mockery of the idea of packaging fees as being paid for the attachment of talent.
What’s the point of all of this? The point is that the Guild is not fighting back against the practice of attaching talent to our projects. We are objecting, solely, to the conflict of interest embodied in the packaging fee. And one is not the same as the other.
We pay our agents 10% of our salary. The directors and actors whom they may attach to our projects pay them 10%, as well. That is a lot of money. And on a studio feature – or a television series, particularly one that gets on the air – it may be an enormous amount of money. In the end, we will work hundreds of hours, or thousands of hours or – on a project that goes years – tens of thousands of hours and pay our agents one-tenth of everything we make, even though their work is dwarfed by our own. But many of them have taken a chance on us, early in our careers, and so, through most of the history of the relationship between agents and writers, the 10% deal has been deemed a fair one. Sometimes we overpay. And, over the course of a career, sometimes we get a deal. But always the 10% we paid covered the cost of hiring a full-service representative.
By what argument has our 10% commission ceased to include the service of introducing us to each other? The job of introducing one client to another – by way of a series of phone calls or emails, one agent to another – is hardly of a character that it should demand some kind of premium. And for those of us in television whose work is less about getting staffed than it is about successful development, the task of introducing us to other talent that may increase our chances of success is absolutely central to our careers. Let’s be honest, we’re not paying 10% of everything we make just to have someone set up meetings for us – or email our scripts around town.
The attachment of talent has become a service that demands a premium only because we have allowed our agents to get away with it.
And here’s a conundrum for you. These agencies that charge our shows – and cut into our profits – when they attach lead actors or directors to our projects – represent that talent, too, with the same promise that they will get them jobs. So why, when they fulfill their fiduciary obligations to those actors and directors who pay them commission, do they charge us – the writers – for the service they owe their other clients?
It is a scam. And the claim that basic services are no longer included in the fees we pay is based on nothing more than agency avarice.
Now they tell us that they cannot afford to provide these services for the basic fee of 10% – that if we hold them to their fiduciary obligations and forbid them from cashing in at exorbitant rates they will not be able to afford to do the work.
Perhaps they mean that they will no longer be able to afford the palaces that are their offices. Perhaps they mean that they will not be able to work in service to our talent and yet become rich, while many writers struggle, year after year.
Let them threaten us with that. But do you really believe that if studios and networks require talent to be attached to projects before they are made – in an industry that reaped billions in profits year after year – that no one will take on the job, on behalf of writers, actors, directors and producers, of serving as a go-between amongst talent? Of course they will. And they will be well paid for it.
The end of packaging fees does not mean the end of attaching talent to projects. It does not mean that we will go it alone in this business – the well known and the rising stars amongst us. It simply means that we will no longer be extorted for the service.
Agencies may respond to these arguments by telling you that there is an efficiency advantage to having talent collected under one roof. Anything the Guild does to discourage the agencies from being in the business of talent collection, they will say, disadvantages writers in general. We should, therefore, be amenable to them retaining their packaging windfall because we are indirectly benefited by a world in which they easily connect us to other artists in their stable.
There are two problems with this:
First, in the modern world, there is little meaningful efficiency gained by agents whose email address ends in caa.com or wme.com* principally contacting other agents with an identical email suffix. The marketplace has sufficient incentive to allow a flow of talent across agencies, should the agencies have the incentive to make that happen.
The problem is that the incentive actually goes in the other direction, and that is the second, more damning, answer to this agency claim. Agents, in general, are more inclined to connect their clients to other talent within the agency, because that benefits the agency bottom line. In and of itself, this is a big conflict. A perfect fiduciary would connect each client to the people most likely to benefit him or her on a given project. We tend to take that conflict in stride. But in a world of packaging, the incentive for agencies to keep projects in-house is too great. The chance that you will be introduced to a director from another agency, whose attachment to your project will require your agency to split its package, is pretty slim. And it’s even slimmer for a lower-level writer who does not have the power to demand the introduction.
In this way, the agencies have begun to behave like old-time movie studios, collecting talent in their stables and “assigning” them to projects in ways that, though they may benefit the client, first have to pass the test of benefiting the agency. It is not in writers’ best interest for that to happen. Our agencies are not our favorite sports team – or our alma mater. We have no fan loyalty. We do not prefer to work with WME directors because we are represented at WME, or CAA actors, if we are represented there.
The perverse incentives of packaging, in fact, create gross inefficiencies in the attachment of talent. It restricts the flow of talent across agency borders for no reason other than to benefit the agencies.
Notice here how the agencies’ treatment of its writers and of the studios is of the same, unfortunate character. To the studios, the agencies, in collusion with each other, say this: We have collected talent behind a wall. If you want access to our clients, you have to pay a kind of ransom in the form of packaging fees. If you do not pay the fee, those clients will be off limits to you. With the agencies in lock step, no studio is able to fight for long. (And if you think it isn’t collusion, why are the terms of our contracts negotiable, but the terms of packaging identical on all projects, across all agencies and all studios?)
Now the agencies say to writers: If you want access to other clients who may advantage your project, you have to submit to our packaging scheme. And if your Guild threatens to end the scheme, we will threaten you back with the same way we have cowed the studios – pay or our talent is off limits to you.
There is every reason that agents whose interests are allied with ours should do whatever is necessary to get us the talent that makes our projects go. They don’t need a ransom for that, and they don’t need to deny us access to talent from other agencies who might be best for our project. They engage in this argument in order to threaten us and pursue their best interest, in open conflict with ours.
But whereas the studios, in this particular instance, have no mechanism for cooperation that will allow them to resist the ransom, we do. We have a Guild. And together, as a Guild, this is what we say:
We are all “free agents.” Our value comes not from being housed in the offices of UTA, ICM, CAA or WME. It derives from our own talent. The marketplace of film and television is best served when writers, directors, actors and producers, who are suited to each other on any given project, are connected to each other by agents who put the interests of their clients first. That is their legal obligation. We made no deal to advance the careers of our agents. They are secondary beneficiaries to our success and not the other way around.
When the world is realigned to work that way, the “packaging” of projects by attaching talent will happen because it is in everyone’s best interest – writers, directors, actors, studios, networks and agents. And it will happen across agency lines.
*Some agents have actually changed their email address in the past month to try to make it appear their work is not still intricately connected to the rest of their corporate structure.