Thursday, December 23, 2010

WGA ARBITRATION: The Good, The Bad and the Ugly

The Good, The Bad and the Ugly

Hey, a movie you wrote got produced! Think you’ll receive screen credit? Don’t be so sure. The WGA Arbitration Committee has a little something to say about that.

by Jim Cirile

Reprinted courtesy of
Script magazine

Congrats! The big studio film you wrote has just wrapped production. But before you swig that flute of Dom, realize this: there is a chance you may receive no credit -- zip, zilcho, goose egg -- and that decision rests in the hands of a panel of three anonymous arbiters whose decisions are final. Warm and fuzzies kicking in yet? Welcome to the world of WGA feature arbitration.

Everyone reading this, of course, hopes to some day have such platinum-plated problems. Who cares who gets credit, as long as the check clears, right? Well, for many of us, the idea of toiling on a screenplay over successive drafts, creating characters and dialogue used in the movie, and then being shut out without our name appearing anywhere, well, that chafes our egos just a bit. Too, credit determination doesn’t just affect whose names appear (and do not appear) on a finished feature film. It also affects things like residuals and ancillary rights, not just on that one film but potentially on all future films based on that material. In short, who gets the credit also determines who gets a lot of future dough.

So come with us now as we set sail deep into the roily waters of the WGA Arbitration process, where nothing can go wrong… go wrong… go wrong…


Here’s how it works. Let’s say you’re Sue D. Nimm, and you’ve worked on one or more drafts of a screenplay which was produced by a Guild signatory production company. The producers submit to the WGA all the drafts along with a timeline of who did what. The producer also submits to the WGA their proposed version of the credits. In this example, you were brought in to rework a spec script written by Norm de Plume & Ry Turr. So the producer recommends to the WGA that the credit should read “Original Screenplay by Norm de Plume & Ry Turr and Sue D. Nimm.” (Note that the ampersand denotes a writing team, whereas “and” indicates a separate writer.) This proposed credit is also sent to all three writers. If all the writers accept those credits, then there is no arbitration. The credits are awarded according to the producer’s wishes, and everyone is pleased because the credits fairly reflect who did what. All ship-shape so far, right?

But suppose before you came aboard, the producer hired Werd Smith, who replaced Ima Hack, who replaced Eiben Scrood. And suddenly they’re all hollering, wait a minute! Where’s my name? Thus the arbitration process begins.

It should be simple, and often it is. About one third of produced films’ writing credits are arbitrated. The WGA Arbitration Committee -- three anonymous fellow scribes -- reviews all the “literary material” (aka “drafts,”) and apply a percentage system to determine who should get credit and who should not. If any of the writers dispute the producers’ timeline or other facts, they are allowed to present their case to a Special Committee at a pre-Arbitration hearing. The Arbitration committee then adjudicates, and in most cases, that’s the end of it, since the WGA’s appeals process is limited to whether procedural guidelines were followed or not, not the finding itself.

According to everyone interviewed for this article, most of the time the system works quite well. “The WGA has always been fair in my experience so far,” says manager Jake Wagner from FilmEngine, “specifically in situations where a client wrote the original draft, even in cases where ten other writers had rewritten a client’s original screenplay.” But as former WGA President Frank Pierson once said of the arbitration process: "The large majority of credits are still straightforward and uncontested," but "when they go wrong, they go horribly wrong." Batten down the hatches...


Veteran screenwriter Rob Sears (not his real name) tells us about the first time he met legendary writer/director Walter Hill. “I (gushed) to him, wow, you wrote “The Getaway”! And he said, ‘Rob, I really had very little to do with that script. You’re going to get credit on movies you didn’t do enough on, and you’re not going to get credit for the movie you wrote entirely by yourself. That’s the way Guild arbitration works.’”

Indeed, Sears says he’s been “screwed out of credit” repeatedly by the arbitration process. “I was hired for one particular movie and instructed to surgically remove the work of the previous writer. I (did that,) and I rewrote the rest of the script. Lo and behold, the production company put (only the first writer) up for credit.” The development executive explained to Sears that (the first writer) was really famous and that his name being on the finished film would make people go see it. But wait – shouldn’t the Guild be protecting writers like Sears from getting the shaft in this sort of scenario? Sears says just the opposite. “It says in the Writers Guild codicils, ‘we want to foster the appearance of fewer, more powerful writers.’ So they admit that they cherry-pick the people who get credit based on an appearance of fewer, more powerful writers.”

Want more? Sears also fills us in on a studio movie he wrote recently. “The original writer had written a cop story that took place in late ‘80s Los Angeles. I transformed it to post-Katrina New Orleans with the water still in the streets and different bad guys, etc. They shot the movie, and the studio said (the original writer and I) should share credit, because he’d laid the groundwork, while I’d written the script that they’d shot. Okay, great. My manager called me and said, hey congratulations, you got credit! And I said, no that’s their proposed credit.” In other words, there was still plenty of chance for Sears to get the ol’ shaft. “Of course, the first writer, who had never had a credit on another movie, said, ‘I deserve sole credit.’” Sure enough, the Guild awarded sole credit to the original writer, and Sears was shut out completely. “But in the process of this first arbitration, it turns out that the original writer wrote his draft with a policeman, who told him these stories. Now that guy wanted credit. After a second arbitration, the original writer had to share Story credit with the cop, but then he still got sole Screenplay credit. Once again, Sears was left out in the cold. “It’s not called arbitration for no reason. It’s very arbitrary,” he grouses. “It doesn’t have rules that we can understand or that they actually follow.”

A producer we’ll call Ty Morse says, “Obviously, they lean towards the original writer.” He recalls a 2-hour TV movie project his company was developing. “The network decided to make it a 4-hour – a 2-night miniseries. The writer who had written the first two hours (was unavailable,) so we brought in a second writer. That writer took the two hours and turned it into four hours. It went into arbitration, and the Writers Guild gave sole credit to (the original writer.) We all scratched our heads and said, okay, let’s assume (second writer) hadn’t changed one word of (the first writer) and just doubled the amount of words. He should at least get half credit. With no disrespect to (first writer,) the obvious conclusion is you split it 50/50. You don’t need to be a brain surgeon to figure that out.” Morse now uses this knowledge when breaking it to writers that they’re going to be rewritten. “I’ll say, hey, I know for a fact they favor the first writer. You may end up sharing credit, but you’re not going to lose credit on the movie.” Oh, yeah? Our next writer has something to say about that...


Think this voyage is getting a bit tempestuous? You ain’t heard nothing yet. Meet Larry Ferguson. You may know him from movies like “The Hunt for Red October” and “Highlander.” Ferguson says, “I’m one of two people who I know during that period of time that took the Writer’s Guild into a court proceeding.” In fact, Ferguson took his case to the Supreme Court of the State of California. And lost.

Venture back with us now a couple of decades to the Paramount backlot, where producers Don Simpson and Jerry Bruckheimer were having no luck coming up with an idea to entice Eddie Murphy to commit to “Beverly Hills Cop II.” Ferguson recalls, “My idea was that we do a series of killings based on the alphabet, that went from ‘A’ through however long it takes to catch (the guy.)” Ferguson pitched it to Murphy, and the project was a go. Ferguson was hired and wrote the first couple drafts.

After the film wrapped production, Paramount sent their proposed credits to the Guild: Story by Eddie Murphy and Robert Wachs; Screenplay by Larry Ferguson and Warren Skaaren. “I couldn’t believe it,” recalls Ferguson. “I called Don Simpson and I said, who is this guy (Skaaren) that you want to have credit on this? And he said, ‘Oh, he got screwed on the credit on ‘Top Gun.’ He should have got credit for that, so we’re going to make sure he gets credit for this.’ And I said, did he do some work?  And he said yeah, he wrote a draft. And I said that’s great, but now I’m getting screwed on ‘Beverly Hills Cop II’!” Even more outrageous to Ferguson: why was Eddie Murphy getting story credit, when he had pitched the idea to Murphy? Says Ferguson, “To me, that was just beyond the pale.”

Ferguson contested the decision using the Guild appeals process. “I said, show me the written material that Eddie Murphy submitted to you in order to get story credit. (The Guild arbitration representative produced) a memo written by (Paramount exec) David Kirkpatrick, with no copies to anyone, dated two days before I was hired.” That memo ostensibly said that Eddie Murphy had pitched Kirkpatrick the alphabet killer story two days before Ferguson was hired. “I said to the Writer’s Guild, you cannot use (that memo.) It says right here in the credits manual that only literary material will be considered. I figured I had them.” But the Guild refused to budge. “I got a lawyer and I went to court and I sued them,” says Ferguson. “(My position was,) I believe you guys have screwed me in collusion with the studio.” But the Supreme Court decided that Ferguson had signed away his right to sue when he joined the Guild and agreed to abide by the terms of Guild arbitration. “They said I didn’t have any rights.” Later, Paramount head Ned Tanen took Ferguson for a walk. “He said to me, ‘Larry, I know it’s a crummy deal, but that’s the way that it is. We can always get another writer. We can’t get another Eddie Murphy.’ He was the only one who ever told me the truth. I’ve never had anything but respect for him.”


If this all sounds pretty frightening, remember these stories are exceptional. Oftentimes, the seas are calm. Just ask writer Rick Jaffa (“The Relic.”) He and his partner Amanda Silver were brought in to do a production polish just before principal photography. “When we took the job, we didn’t even consider that we would get credit,” says Jaffa. “But we really did a lot of restructuring and complete reinventing. We consolidated characters, did a lot of work on the existing characters and a lot of structural work. Based on the Guild rules, we felt we fell within the guidelines of deserving credit. We’d done a lot of heavy lifting. There was a lot of rewriting, right up to the final few weeks of shooting. So we arbitrated.”

Jaffa and Silver sent a letter to the Committee stating their case and submitted all the drafts they had done. “You can’t help but have trepidation that it won’t go the way you’d hope. We felt there was a very real possibility we wouldn’t get credit because we came in so late,” Jaffa says. But soon after, “someone from the Guild called and told us that we had gotten credit. We thought that the final decision most accurately reflected the work that was done. I have no idea how the other writers felt. But we would call it fair.” In a tricky situation with source material (based on a book) and several other writers, the Guild found in favor of the writers who got the script over the finish line – as well as the original writers. “The Relic’s” final credits: Story by Douglas Preston and Lincoln Child, Screenplay by Amy Holden Jones and John Raffo and Rick Jaffa & Amanda Silver. “We were very pleased,” says Jaffa.


Screenwriter Josh Stolberg (“Sorority Row”,) who wrote the spec script (with Bobby Florsheim) that “Evan Almighty” was based on, yet received no credit, sees a move the Guild can make that could go a long way towards assuaging the feelings of writers like himself. “The thing that really irks me about ‘Evan Almighty’ was one day you wake up, and the Guild’s like, ‘No, you have nothing to do with this whatsoever.’ Morgan Freeman has a bodyguard that’s listed twice in the credits – once as a bodyguard and once as a driver. All right, so even if we’re saying that a writer does not deserve to have his name on the poster or whatever, okay, but why can’t that person have his name in the same place as the caterer?”

Stolberg is, of course, dead on. Why aren’t all writers who work on a movie given a “contributing writers” rolling screen credit? “I’ve been told (they won’t do it) because then studio executives would give everybody and their brother screenplay credit, and it dilutes the credit,” says Stolberg. “My feeling is that by pretending there aren’t other writers, you’re diluting the credit. You’re making it very hard to believe who is the actual writer on a film when you’re not acknowledging that (the credits are) for the most part (misleading.)” Jaffa agrees, “It’s hard when you look at that long list of credits -- all those people below the line and above the line who ended up with their name on the movie, and you were one of the people to actually craft and structure the characters and created moments, and you don’t end up with credit? It’s not fair.” Sears says he’s been saying this for years. “If you got paid to write on a movie, the WGA should arbitrate who gets the head credit, sure, but you should be listed at the end with the fucking PAs. The writers get screwed time and again, and the person who’s screwing them is their own Guild. Meanwhile the intern who got somebody coffee or ran down to get (the director) coke, you know, those guys get a fucking screen credit on the movie. It’s ridiculous.”

WGA Communication Director of Communications Neal Sacharow says that there is a mechanism in place for members who wish to change Guild policies. “The Guild currently has a committee of members that is charged with reviewing the existing credits rules and making recommendations on how the existing rules can be improved upon. The work of that committee is confidential. Any recommendations it makes would eventually be subject to membership approval.” So there you have it, folks. I suppose if we all lobby this committee, perhaps credit for all writers might someday rise to the level of an action item for the Guild. In the meantime, like it or not, we’re stuck with what we’ve got.

"I love the Guild I want to be a part of the Guild,” says Stolberg. “They do amazing things, and I understand that this is a very difficult process. They’re not just representing you, they’re representing the guy who rewrote that script. They’re not going to make everybody happy. But I know a lot of other people in the exact same position I have been.” WGA Board Member Dan Wilcox says, “It’s clearly not a perfect system, but if we didn’t do it, the companies would. And we know what that would mean. We’ve seen it.” According to Wilcox, the big issue is that by its very nature, arbitration is contentious. “It puts writers in the position of disputing each other. No matter which way you roll, one side is attacking the other side.” Veteran agent turned producer/manager Richard Arlook sums it all up: “I think the process is kind of like our justice system -- compared to other people’s justice systems, it’s still the best, but it doesn’t mean that innocent people don’t go to jail, and it doesn’t mean that guilty people don’t walk free.”

So when you find yourself sailing towards an arbitration, learn well the lessons from this article, and remember, you’re fighting against a fellow writer(s). Why not instead try to change the system so that ALL writers get credit? Oh, and if you’re thinking of taking the WGA to court – sorry, Charlie.

Back to CI Dec/Jan Newsletter


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