Question for FilmTVLaw.com:

Is the WGA on strike? The series I am working on is going ahead as though nothing was going on, but then I read in the trades that the WGA was on strike against agents. Is this going to affect the series I’m working on right now?

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for a great question about the WGA-ATA conflict. The WGA has gone through with its plan to instruct WGA members to terminate their agent contracts, which is going on right now. This will have a big impact on the entertainment business, but probably not an immediate impact on anyone’s current productions. Please feel free to check out my Q&A Blog for a wealth of other entertainment related advice and articles at www.filmtvlaw.com/entertainment-lawyer-qa/.

The backstory is that the Writers Guild of America West (WGA), the Guild that most professional film and television writers are a member of, has had a long-standing dispute with talent agencies regarding packaging fees. In fact, this goes all the way back to 1976, which was the last time that the WGA negotiated an agreement with the Association of Talent Agents (ATA). Just to back track and clarify, this has nothing to do with the Alliance of Motion Picture and Television Producers (AMPTP) or with the Minimum Basic Agreement for writers’ minimum fees.

Back in 1976, when the WGA negotiated with the ATA, it was already unhappy with the packaging fees that were allowed for in the agreement, but it was a seemingly small issue at the time. Little did the Writers Guild know that over the next 43 years, “packaging” would become the principle activity of agents, which would eventually swallow up the whole industry and become the largest source of income for some agencies.

WHAT ARE PACKAGING FEES?

At the heart of the WGA-ATA strike are packaging fees, which for many are still a little bit mysterious. Packaging fees do not seem to fit within the three-part negotiation that involves film and television producers, agents, and the talent they represent. Note this effects performers and directors just as much as it effects writers.

In the traditional scenario, a producer will go out and hopefully raise some development money, then the producer will contact an agency and inquire about the rates to hire a writer for a film or television pilot. The agent will pass along the information to the writer, and if the writer is interested, will then negotiate a fee for that writer to perform the writing work needed. For his troubles, the agent will collect 10% of the fee payable to the writer. Not bad given all the agent did was sit in his office, take a phone call, and forward information to his client.

But, in reality that is not how things work at all. First off, many producers do not have financing. Second, writers are not content to let their agents sit in an office and take random phone calls once a month. This traditional scenario of how films and television series are developed never worked.

In reality, there are tens-of-thousands of producers, some financed and some not, all desperate to get their scripts, television concepts, and reality shows made. There are so many, in fact, that it becomes very difficult weed out legitimate projects. On the other side, there are hundreds-of-thousands of writers, actors, and directors hoping to work on a film or television project who are looking for quick results from their agents.

AGENTS AND THEIR CLIENTS

At the core of the conflict is something that most writers (and performers) are not aware of, which is that not every project is passed along to the writer. We already knew that the project had to come through an entertainment lawyer, or directly from a major studio or network. So, a lot of projects get cut out right there.

But, of the bona fide projects that come through representation, a few agencies still refuse to pass along information about those projects until a packaging fee has been arranged.

That’s why at the center of the new WGA Code of Conduct, the code says an agent must pass along all projects to the writer client. That doesn’t seem that radical, unless you know that some agencies have based their entire business model around not doing the above at all.

PACKAGING IS REAL WORK

There are some realities about putting together a film or television series that probably even a lot of WGA writers are not aware. One is that packaging a project, which involves bringing together cast, writers, and directors with viable production companies and real distribution is hard, time consuming work.

If agents are the one being tasked with basically “producing” the entire project, it makes sense that they should be compensated for that work. Being paid out of the eventual production budget is a great idea, but how does an agent get to the point where there is a budget?

The problem is that the packaging fee is coming from the studio or the production company, which is technically the opposite party. The conflict of interest that arises is a natural result of the financial arrangement. If the studio is paying the agent for the cost of putting together the project, which is what packaging is, then who is going to get the better deal, the writer or the studio?

OPPORTUNITIES FOR INDEPENDENT PRODUCERS

If the WGA is successful it is going to make a lot of opportunities for independent film and television producers.

When the agencies are not too tied up with production and sales, and are available to hear about all legitimate projects that come through representation, it means they will be available to review more projects, expanding the number projects that writers are receiving, and allowing producers to find exactly the right person for the job.

In addition to opening the doors to more independent production, more writers might also now choose to have their deals negotiated by an entertainment lawyer, to ensure that the deal is in their own best interest.

Feel free to contact our office about rates for our packaging and representation services, and please do not decide about complex entertainment legal matters without consulting an experienced entertainment lawyer first. At BLAKE & WANG P.A. I have been representing feature film projects, television series, and recording artists for more than 19 years. Please feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer