Tag Archives: entertainment law

Home Video, Internet, Licensing, Markets, Negotiations, Rights, Television

Internet Delivery Now Streeting With Traditional Home Video

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Jonathan Handel’s blog alerted me to the pending “day and date” release of the “The Bourne Ultimatum” on both DVD and via Internet delivery on December 18th. As Handel and the LA Times report, this will be the first day and date release of a motion picture on video in both Internet/electronic media and physical media. Usually (if there is such a thing given the pace of things now), electronic delivery of a motion picture streets with the pay-per-view or pay-TV windows.

Simultaneous Internet/Home Video release dates are consistent with current deal terms and those of older vintage that producers and distributors routinely negotiate for home video rights on motion pictures. The difference now is the form of delivery; physical media vs. electronic media. Although the revenue splits on existing deals might get tricky depending on the terms negotiated, the business is already acclimated to evolving home video revenue structures having moved from the traditional royalty formula to revenue sharing. While Handel correctly raises the prospect of brick and mortar retailer resistance, I suspect the issue of greater impact will come from producers, actors, financiers and other profit participants on motion pictures. Once they become aware of the more favorable cost differential between video tape manufacturing costs and broadband delivery they will expect a payment structure that accounts for the savings much as the WGA is demanding now.

Guilds, Negotiations, Notable, Writers

“Drinking From The Trough Of Distrust”

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That’s what I said as I cautioned the rep on the other side of recent negotiations unrelated to the WGA strike talks. I was sharing my very real concern that our negotiations were polarizing our respective clients and actually making it harder, if not impossible for us to close a deal.

Strike negotiators for both sides are well advised to conduct themselves accordingly. Dave McNary wrote in Variety that talks tanked late on Friday “after two weeks of bitter and unproductive negotiations” with no real sign of when or whether they will continue any time soon. Sounds pretty grim but maybe a holiday hiatus from hostilities (and several good nights’ of sleep, I suspect) will make for more productive negotiations. For a thorough breakdown of the issues, check here and here.

Prior to Friday’s “cratering,” Robert King, a member of the WGA Negotiating Committee, blogged prosaic on the state of negotiations and the current mindset of the parties this way:

Part of the problem of negotiations—and especially this negotiation—is that both sides tend to interpret the contractual proposals and counter-proposals in one way: as an attempt to fuck them. This is complicated by the fact that sometimes management’s proposals are designed to do exactly that; and sometimes they aren’t designed to do that, but might be used later by less enlightened souls to do that.

So dialogue, in a smaller room, with fewer people, and less of the theatrics of negotiations, allows everyone to discover what wasn’t designed to fuck; or was designed to protect against being fucked by someone else and has only the appearance of a personal fuck; what was inelegantly put; what has unintended consequences, etc. It’s also a place where language can be designed that satisfies everyone’s fears of being fucked.

In other words, sometimes there is the illusion of being farther apart than we actually are; and smaller side bar dialogue helps us discover if that’s indeed the case.

And then again there is just plain old being far apart.

Hopefully, this breather will allow cooler heads to prevail at the negotiating table. The studios and networks will start feeling the pinch from dwindling project reserves and the first stirrings of pilot season. By mid January, mounting financial pressures from holiday purchases and the lack of work will compel writers to return to the bargaining table. Maybe then, the parties will find creative ways to resolve the issues amicably and resourcefully.

And then again there is just plain old being too far apart.

Guilds, Independent Film, Writers

London Calling For Outsourced Writing

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With the WGA strike two weeks old tonight, the demand for quality writers (or near-acceptable substitutes) is getting acute.

The Guild only has jurisdiction in the US; making Canadian or UK writers a potential writing resource during the strike. In other words, Canadian and UK writers living and working in their respective countries should be able to write for the studios and networks without retribution. However, reps with writing clients overseas – myself included – are advising caution.

As far as the Guild is concerned, the less writing anywhere, in any media, the better negotiating leverage they have with the studios.The Guild’s Strike Rules threaten non-union scribes with denial of future Guild membership if they’re caught scab-writing for struck companies. The Writers Guild of Canada made it clear it would turn in any Canadian writers caught working for struck companies during the strike. Although UK resident writers could likewise write during the strike, there is mounting pressure for them to stand down as well. Could India be next?

Here in Los Angeles, rep confusion abounds. I’ve debated with several agents and lawyers over what constitutes permitted writing for Guild members and non-members during the strike. For instance, can a WGA member: work for a non-struck company? work on an Internet-based project? work in animation? go to meetings for the writer’s optioned property? Not really, it depends, maybe and probably not. Not exactly a bright line.

The WGA Strike Rules prohibit its members from working for “struck companies;” typically companies that are signatories to the now-expired Minimum Basic Agreement. The distinction between struck (signatory) companies and non struck, non-signatory companies is a fallacy since WGA members are prohibited from working for non signatory companies. Although the Guild encourages its members to contact them for clarity, anecdotal evidence suggests otherwise as the Guild has yet to return any of my clients’ calls.

In the days ahead, I suspect that reps, writers and producers will step up efforts to clarify the confusion. In the meantime, caveat scriptor.

Guilds, Negotiations, Writers

A Rock And A Hard Place

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Craig Mazin waxes philosophical on tomorrow’s likely strike in his blog, The Artful Writer. Mazin wrote “I love the idea of [a] strong strike threat that leads to a deal. That’s my greatest hope (and it’s not dead yet). I hate the idea of a strike itself, which I think will hurt us. That’s my greatest fear.” Craig must be reading my blog posts. More likely, we both understand the foreseeable consequences. Like Craig, I still hold out the possibility for more talk of a deal and less of a strike. My bet against a strike is still good – for now.

An informal poll of my colleagues and clients supports the conclusion that a strike is a lose-lose outcome for everyone in the business; the writers in particular, regardless of any gains for the Guild at the negotiating table. Mazin writes:

The WGA will always suffer more than the companies in a strike. And, I think given the realties of the industry today, I think the WGA will always lose a strike.

Always.

. . . If we strike, it’s about proving to the companies that we’re still a union that can do something.

And for many writers here, that may be reason enough.