Commentary and Analysis by Nancy Prager of Prager Law
By now you have heard that the members of the Writers Guild of America East and West have gone on strike having been unable to come to terms with the Alliance of Motion Pictures and Television Producers (AMPTP). The last writers’ strike was in 2007. The world was very different as the issues being negotiated now compared to the issues then reflect.
Believe it or not, in 2007 the producers argued that writers should not be compensated for the use of their work on the Internet because the Internet was mainly for promotional purposes. Such claims belied the reality that both writers and producers faced at the time on the internet: piracy. Additionally, there were already countless startups trying to figure out how to transition television to the Internet (IPTV) and distribute movies on the web (streaming). One of those startups was Netflix which had launched streaming on January 16, 2007. The writing was on the wall… the Internet was the future.
While there are no soothsayers in the room during collective bargaining, the negotiators have to consider what the future holds – not just what the current landscape looks like. In 2007, the WGA refused to abandon their claims for coverage for “new media” uses of covered works and the strike continued for 100 days. In the end, the WGA was successful in many of its efforts including extending the agreement to emerging distribution on the Internet and increasing rates for all uses.
As I wrote in 2007 for Cnet.com “[w]ithout their words, the producers and studios would have no content to deliver to consumers, and the Internet would be a pretty boring place.” While there are many new sources of entertainment like TikTok and YouTube, the pandemic reinforced that consumers still love movies and television. They just like getting them through a variety of means.
The demands in 2007 seem quaint compared to what the WGA members face in 2023. While fees are a significant issue in 2023, these negotiations turn on something more basic in union history: working conditions. Per the WGA’s statement last night, the basis for the strike:
The companies’ behavior has created a gig economy inside a union workforce, and their immovable stance in this negotiation has betrayed a commitment to further devaluing the profession of writing. From their refusal to guarantee any level of weekly employment in episodic television, to the creation of a “day rate” in comedy variety, to their stonewalling on free work for screenwriters and on AI for all writers, they have closed the door on their labor force and opened the door to writing as an entirely freelance profession. No such deal could ever be contemplated by this membership.
The issues writers face in 2023 that the Writers Guild are trying to redress in this contract directly relate to changes in the industry resulting from the new technologies that were only emerging in 2007. The ability to stream movies and television on platforms like Netflix and Hulu heralded in “cord cutting.” Networks slowly began to launch their own streaming platforms where they not only uploaded existing content but began producing shows and movies specifically for streaming. Cord Cutting lead to Peak TV because there was just so much content being produced, even during the pandemic thanks to Georgia’s generous tax credit plus covid response.
Peak TV would seem like it would have been a boon to writers: Without words what would there be on the streamer of your choice. Some of the practices that have emerged over the past five years include:
- Series have shorter seasons on streaming platforms than network television: 22 episodes on broadcast compared to 10 episodes for a streamer. Writers are paid based on the number of weeks they work, and scripts they produce. A shorter season means less money.
- Because of budget constraints, streamers have developed an approach to using writers on a limited basis to help the staff writers develop the show in so-called “mini-rooms.” Writers will work with the staff writers to beat out stories, develop characters, and even write some dialogue. The staff writers’ engagements are not for long in the mini-rooms with the scripts being written by one-three writers.
- Historically, writers have received on-going residuals from syndication and reruns of the shows on which they worked. The way deals are structured for streaming has negated much of the back-end revenue for writers (and everyone else).
Another issue being negotiated in 2023 is a direct result of what happened in 2007: writers on reality television want to be covered by the WGA. The reason? There would be no reality television without the writers who craft the stories the talent “tell.” The writers do so without any of the protections the WGA provides, and often in the freelance manner the WGA highlights in its statement.
Significantly, there are so many known unknowns facing those in the room in 2023 which were only the stuff of science fiction in 2007. The Copyright Office is hosting roundtables to address issues related to content created using Artificial Intelligence. Commonly available AI tool chatGPT is credited with creating a hit song using deep fake voices of Drake and The Weeknd. It won’t be long until AI tools create an algorithm friendly movie without acknowledging the source of the data that fed the machine (i.e. writers). Writers and their representatives recognize the risk and have specifically included a prohibition against the use of AI to write content for AMPTP companies. So far, as noted in the WGA Negotiation Status update on May 1, the AMPTP has refused the request. (WGA_proposals)
Whatever the reasons for the strike, the restrictions on writers during the strike will have ripple effects throughout the industry and the ecosystem that supports it including those of us in Georgia. Similarly, the outcome of the strike will cast a shadow long after it is over. The last strike lasted 100 days. Some are expecting it to last far longer because the issues are more complex and complicated than just pay and technology companies not just studios are negotiating for AMPTP. For the sake of all involved, here’s hoping that the issues are resolved quickly.
Nancy C. Prager provides corporate and intellectual property legal services to a wide range of clients in technology, business and entertainment. She focuses on all aspects of a business or project’s lifecycle, from idea through execution to exit. Her breadth of experience allows her to address regulatory issues, from privacy to financing, and advise clients through evolving standards to seek opportunities in non-traditional outlets. For more information visit her web site or email nprager@pragerlaw.us.
