Stix Nix (Rix?) Pix!!

That’s Variety headline-speak (yes, I know, it needs work) for the WGA’s apparent decision on Tuesday to pull back on its demand that reality TV programs come under the Guild’s jurisdiction. Most of the reps I spoke with during yesterday’s client negotiations believe this is a positive sign that the Guild won’t strike. However, the ground shifts every day so nobody really knows.

Deal flow on my desk continues to support the widespread consensus that reality TV and other non-scripted television programming will continue to be a substantial part of TV deal making. The irony is that the ’88 WGA strike had a significant impact on increasing the popularity of the genre in the first place. “Unsolved Mysteries” and “Cops” both received a significant boost in viewership during the ’88 strike.

Apparently, the Guild intends to spare writers working in reality TV the rod if they work in the genre during the strike. According to Dave McNary’s piece in yesterday’s Variety, “the WGA’s efforts to sign up reality shows have fallen so short that members won’t face any sanction for working in that sector should a work stoppage occur. In a telling move earlier this month, the WGA forged extensive strike rules that did not include any mention of punishment for working on reality shows — even though the rules contained sanctions for work in other areas of limited guild coverage, such as new media and feature animation.” You can get the WGA Strike Rules here.

According to McNary, real progress in negotiations won’t start until a day or two before the current agreement with the Guild expires. Nothing like writers working under a deadline!

Opting For The Bigger Hammer

The WGA is ratcheting up the rhetoric by recently issuing hardline rules to its 12,000 members if the guild goes on strike as threatened. In today’s Daily Variety, Nick Counter confirmed that the rules the WGA issued last week include “bans on writing animated features and for the Internet, even though those arenas are largely not under WGA jurisdiction. The strike rules bar any writing for struck companies, delivering any material or signing documents relating to writing assignments; they compel members to honor guild picket lines, perform assigned strike support duties and reporting strike-breaking activity. Discipline for violations can include expulsion, suspension, fines and censure; nonmembers who perform banned work during a strike will be barred from joining the WGA.”

I expressed my concerns regarding an actual strike earlier this week here. As I suggested, the WGA is following a fear of loss strategy; just not the way I envisioned. The WGA is threatening its own members with expulsion and other severe penalties and barring non-WGA writers from future membership if they work during the strike under certain circumstances. Although somewhat draconian, the WGA’s strategy serves several goals. It’s a shot over the bow with the studios and networks and it ensures that the guild’s members actually honor the picket lines. In my previous post, I linked to an article about last month’s taxi strike in New York, which failed in part because many drivers continued to work during the strike. If striking proves to be ineffective, the Guild’s negotiating leverage can be even more diminished than had they not gone on strike at all.

Several writer and producer reps I spoke with yesterday during negotiations (reps like to digress into other subjects in an attempt to regain leverage) believe that the Guild’s strike rules may be unenforceable; especially against non-WGA members. Frankly, it smacks of restraint of trade to me but that’s not my bailiwick.

As I noted in my earlier post, the threat of a strike is having a dramatic effect on the pace and terms of negotiations with writers. This week brought new surprises, with reps on deals I was negotiating demanding contractual pledges that their writers work through any strike and extending force majeure terms to ensure that a long term strike is covered. As with the WGA’s strike rules, strike breaking pledges probably raise enforceability concerns.

Such fears are carrying the day. I look forward with some trepidation to the outcome of all of this like a driver stuck in traffic easing up to a bad car accident.

When (Not) To Use A Bigger Hammer

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The constant drum beat of the pending writers’ strike is louder here in Los Angeles than the one to go to war with Iran. Such much for the insular and provincial world of Hollywood. The status and pace of the current negotiations with the Writers Guild of America can be found here.

At the movie studios, the networks and off-network cable outlets, the feeling amongst execs I’ve spoken with is that they’re ready to brave a strike. The studios had a lot of time to build up a surplus of projects. On the TV side, the networks and cable outlets have and will continue to have a ready supply of non-scripted and reality programming.

While far from an accurate metric, the pace of writing deals picked up markedly in recent weeks judging from the deal flow on my desk; and not just with WGA writers. Despite my personal feeling that the whole genre has jumped the shark, the number of my clients producing and “writing” non-scripted/reality projects is growing exponentially by the day. In the independent feature world, there’s talk of WGA writers ghosting projects under pseudonyms or under the radar on low budget fare. One independent producer I know is upbeat about the prospect of having access to more talented writers on the cheap.

For the writers’ sake – a number of them friends as well as clients of mine – I hope that the strike doesn’t last long. I understand the WGA Strike of ’88 devastated writers. As with the ’88 strike, a long strike now will hurt fledgling writers as well as established ones. With the high cost of living in LA, it is unlikely that even the most successful scribes can hold out long what with mortgages and private school tuition to pay for well into five figures. Acting talent and directors will likewise be harmed from the lack of work or by avoiding the picket lines of their union brethren.

Accordingly, I make this open plea to the WGA: Don’t strike. At least not yet.
The studios and networks would rather negotiate with you than fight, especially when everyone knows that negotiations are inevitable. The adverse effects of a strike will be negligible to the studios and networks compared to the financial hardship to many of your members. Maybe if you had more negotiating leverage, a strike would make sense but you don’t. Given the Guild’s limited options, it would be far better for you to use the collective fear of a writers strike than to actually go on strike. Some on the studio side worry about a long term strike despite their backup plans. They feel that neither side really prevailed in the last strike and don’t believe either side will prevail in this one. Fear of loss can be a powerful motivator for you; far more powerful than the actual outcome. Conduct yourselves accordingly.

Independent Bumps

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Recent observation: on two separate deals, different reps at different agencies asked for a $25K set up bonus if their writer-client’s projects were independently produced. A set up bonus or “studio bump” is often negotiated in a writer’s option/purchase agreement if the producer successfully sets the project up at a major studio. The bonus is often negotiated as an advance against the purchase price. Notwithstanding the ebb and flow of capital investment in independent pictures, financing projects at any budget level north of even $250K is always a test of a producer’s tenacity and access to resources. If this deal point develops into a trend, it will only be a testament to the rep’s negotiating ability; their client’s industry precedent; and the ignorance of the producer’s rep to the financing problems facing most independent producers. I rejected the reps’ requests in my negotiations for this very reason. The next time I represent a writer, things may be different.

Check out Jeff Garlin’s unusually frank interview with Elvis Mitchell on KCRW’s “The Treatment.” In addition to pushing his first picture as director, writer and star, “I Want Someone To Eat Cheese With,” Garlin speaks candidly about why it is OK to take lucrative roles on bad movies and the challenge of independent finance. On the latter, he laments the experience of meeting with a prospective investor at the Mondrian Hotel on the Sunset Strip. The investor brought along two hookers – they asked better questions than he did.

Lastly, the NY Times ran a piece by David Oshinsky about book publisher Alfred Knopf’s archive of reader’s reports (aka “coverage”) and rejection letters on such works as “The Diary of a Young Girl” by Anne Frank (“a dreary record of typical family bickering, petty annoyances and adolescent emotions”) and George Orwell’s “Animal Farm” (it’s “impossible to sell animal stories in the U.S.A.”). “Knopf wasn’t alone. ‘The Diary of a Young Girl,’ . . . would be rejected by 15 others before Doubleday published it in 1952. More than 30 million copies are currently in print, making it one of the best-selling books in history.” This should confirm what everyone already suspects: there’s no accounting for taste even among the taste makers. In other words, no one knows nuttin. Tenacity (see above) – not necessarily talent – over the long term is key.