The original post for this episode can be found here.
John August: Hello. My name is John August.
Craig Mazin: Oh, and I’m Craig Mazin.
John: And this is episode 20 of Scriptnotes, a podcast about screenwriting and things that are interesting to screenwriters. How are you Craig?
Craig: I’m good. Big 20 episode mark. This is where we don’t…we get renewed or go into syndication at this point?
John: Yeah, I guess we would have known by this point if we were going to be picked up for a second season. We would have already gotten our back 9 order theoretically.
Craig: Right. When can we renegotiate? [laughs] I’m tired of this salary that we get.
John: Yeah. It would really depend on our ratings. And I don’t really have a good way of gauging what our ratings are based on our competitors. Not that we really have competitors — it is a tough thing that we are doing right now.
Craig: I feel like, frankly, we have driven all of the competitors out. Why would anybody do a podcast like this when we are doing one? Stupid.
John: Well also how much should we be paid? It’s hard to say. Right now I feel like our salaries are probably commensurate with our audience.
Craig: That’s pretty rough dude. [laughs] That’s pretty rough. I want money. We should start doing what Zach does on Between Two Ferns. We should get a sponsor, like a weird sponsor, I think he does Mennen or something like that, Speed Stick. We should get something like Speed Stick.
John: Great. I listen to the 5by5 podcast and they have sponsors and every once in awhile Dan Benjamin breaks the conversation and talks about the sponsor and segues right back into the topics and is very good at it.
Craig: Given our tendency to always end on something about women’s reproductive health, maybe we can get some sort of sanitary product.
John: I think Vagisil.
Craig: Oh, good idea. Okay, well we will get — Stuart, get on that. [laughs]
John: So Craig, this week I went to CES for the first time.
John: Oh, so CES is the Consumer Electronics Show. It is in Las Vegas every year and I have always wanted to go. And so the Writers Guild wrote me last month and said, “Hey would you go and be on this panel that they are asking for a writer to be on,” and I said, “Sure, I’ve always wanted to go.” It’s a good excuse — they are going to fly me out there.
And it is not as much fun as I thought it was going to be.
Craig: Hmm. Tell me what went wrong.
John: Nothing actually went wrong. There weren’t great disasters. It is just when you see coverage of it you think like, “Oh my gosh, it is going to be a wonderland of new products. The future will be in front of me.” And instead it is a lot of the cruddy versions of the present in front of you, or the competitor’s version of this thing that you have already seen. At least that was my vibe — that is what I got out of it this year.
There were some things that were cool and new but most stuff was just…there was just a lot. There is just too much. It was like going to Lollapalooza but instead of great bands there were just a bunch of Chinese companies that made printers.
Craig: Right, so you are seeing miles of iPad knockoffs and printers.
John: Yeah. The thing that is actually really cool to see there are the TVs that will probably never come to the market, or won’t come to market for like five years, but they are ridiculously thin. They are as thin as your iPad, but they are like 50 inches wide. That’s amazing.
Craig: Yeah, I saw they had that OLED display from somebody that was super thin, but isn’t everybody sort of secretly waiting for this hypothetical Apple television thing to come out.
John: Yeah, if it comes out that would be great.
Craig: That would be great.
John: And some of the 3D stuff looked better than I have ever seen before. And a lot of it had glasses, but they also had little small things that didn’t have glasses, that you could hold your hand sort of like the way that the Nintendo 3D stuff works. Because it is so close to you it doesn’t have to require glasses. And that was okay.
But by about four hours into it my eyes hurt. And I don’t want to give that to the 3D. I think my eyes were just overwhelmed by so many things to look at and stare at and I don’t like crowds in general so it was tough for that thing.
I ended up sort of retreating into this one little room to eat lunch just to be away from people and to stare at a padded gray wall.
Craig: Well I also feel like sometimes, like for instance Comic-Con, any sort of gathering where you would expect a lot of nerds and geeks who are my brothers and sisters.
John: Of course.
Craig: Sometimes those are the worst crowds because there is something about the nerd/geek DNA that doesn’t seem to mind crowds very much. So everybody really…I have a feeling if it is people that do mind crowds at a normal level of tolerance, they will, like diffusion, they will seek places of less crowdedness and it will even out, but not so much nerds and geeks. If they find something they really like they will just jam in.
John: I guess I was expecting more ordinary geeks and nerds. Most of the people that you see at CES are really people who are selling these kinds of products, so they are not necessarily nerds and geeks. They are not necessarily big on tech; they are just selling their product. And so there are a lot of people who are at booths who I suspect work at some office in Omaha, or were hired specifically to be a pretty model holding something at this show. And they are not there for the joy of technology.
Craig: Not so many fans in other words.
John: Not so many fans. It’s not like a car show where you feel like it is everyone crowding in to see the latest cars. It is a lot more like, “We are businessmen from various locations.” And the saddest thing that I didn’t really expect is that so much of the activity takes place in these three giant halls in Vegas, they are all next to Las Vegas Hilton. But a lot of stuff actually spills into the hotel rooms at the Las Vegas Hilton.
And so you would wander through the hallways and there would be little signs on the door for “This company, come in and let us demonstrate our thing for you.” And it just felt like maybe that was even worse than being in the massive show floor was to be stuck in a little hotel room for four days waiting for someone to wander in.
Craig: Come into your room and use your bathroom.
Craig: Weird. I didn’t realize that. Did you at least have some Vegas fun?
John: I don’t gamble, so I didn’t have that kind of Vegas fun.
John: Yeah. I know. But I got to have dinner with Gary Whitta who is a screenwriter colleague of both of ours and it was great to catch up with him.
Craig: Does he live in Vegas? Oh, no, he went for the nerd fest?
John: He went for the nerd fest.
Craig: Got it. I can’t believe you don’t gamble. I want to change that.
John: Yeah. I don’t derive joy from gambling. When I do gamble, the few times I have been gambling, I would just say, “Well this is the $100 that I will lose,” and that is the $100 I will lose. But I don’t get the pleasure out of it that I am supposed to get out of it.
Craig: Mm, you are doing it wrong.
John: I’m doing it wrong. I’m clearly doing it wrong.
Craig: Yeah. We’ll fix that.
John: Yeah. But so let’s offer practical advice on something that hopefully more of our audience will benefit from which is getting credited on a movie, or a TV show, but really a movie.
Craig: Now that’s gambling. [laughs] Now we are talking about gambling.
John: [laughs] There is a little bit gambling. So our topic today is arbitration, but really in a general sense it is figuring out who gets credit for a motion picture or for a TV show. As we have talked about before on the podcast there are different credits that you get for screenwriting. There is “written by” which is both story and screenplay, and then the story and screenplay credits can also be parceled out separately if that is more appropriate for what a specific writer did on a project.
If you are not the only person who wrote on a given project there is a very high likelihood that you will have to somehow figure out who deserves the writing credits. And you have several ways of doing that. You and the other writers can all mutually agree on what you think those credits should be. And in most cases that decision will be respected and that will be the final credit on the movie.
Craig: Yeah. If in fact the writers, if there isn’t an automatic arbitration — we will talk about what triggers that — if the writers agree on what the credit is, that is the credit. There is a clause that allows writers to self-determine credits.
But, if there is an automatic arbitration, then there is no opportunity for that. And those cases arise when one or more of the participating writers is also what is known as a production executive which is a particularly bad, misleading legal term. What that really means is any writer that is also receiving credit as a producer or a director.
John: We launched into this and I didn’t sort of explain a big enough framework behind this. We are talking about movies that are written for Hollywood that are under the Writers Guild contract. The Writers Guild is ultimately the body that decides who gets credit for writing a movie or for a TV show.
And it hasn’t always been this way and there are problems with how credits are sometimes determined. But, given the choices you would probably rather have the Writers Guild figure out the credits on a movie than say a studio.
Craig: Yeah. And the idea was when this system was put in place way back shortly after WWII, so the company in the United States, these movies are exclusively, I think, works for hire. That means that the studios own the copyright. They are the legal authors of the movie. But who receives credit for authorship? Who is the author in fact of the movie?
And in order to determine that you have to look at all the people that contributed to it and make a decision. Prior to the Writers Guild making these determinations it was up to the studio. And the studio, frankly, can do whatever they want. They can give writing credit to the people who deserve it or writing credit to the people they like the most, or writing credit to their girlfriend. It doesn’t matter.
And to this day that, in fact, is the system that applies to feature animation. The studio has sole discretion over the determination of those credits. But for Writers Guild-coverage movies, live action movies, the Writers Guild determines it and what that comes down to ultimately, if there is a dispute among the participating writers, it comes down to an arbitration in which three of your peers get all of the scripts written by all of the participating writers, they read them — they don’t know who wrote what, they don’t know any names.
And then after reading all of them they make a determination about what the credit should be.
John: Exactly. So, let’s define some of these terms. So three of your peers, these are other screenwriters who are active members of the Writers Guild. I have been an arbiter. You have been an arbiter. They are recruited from the ranks of the Writers Guild. You don’t know who are the arbitrators on your project.
Craig: That’s correct. And there are some minor qualifications. You do need to be a member for a certain amount of time — I think it is five years — or have three credits. So, you can’t be a brand spanking new writer and expect to be an arbiter.
John: You don’t get paid to be an arbiter. It is actually quite a fair amount of work. So you do it out of a sense of responsibility, out of your writer’s citizenship. It is like voting: you feel like you need to do it because you want to make… you are going to do the best job you can as an arbiter with the belief that somewhere down the road you want those arbiters on your project being just as diligent.
Craig: Yeah. It is essentially jury duty for screenwriters and unfortunately, just as the case is with jury duty, it is very difficult frankly to get writers to participate as arbiters. It is work. Frankly, screenwriters hate reading screenplays, so the thought of having to read 12 drafts of a particular movie in order to make a determination is daunting.
And then on top of that you have to write a statement explaining your reasoning for the decision you make. It can be a little bit of a drag, but like you said, the system is only as good as the people who participate in it.
John: Let’s talk people through the process of how stuff goes into arbitration. You have written a movie. Let’s pick a name for this movie. Let’s say it is Batman vs. The Smurfs.
John: Alright. So, you were the first writer on Batman vs. The Smurfs and another writer was hired subsequently on Batman vs. The Smurfs.
Once the movie has finished production and there is no more writing happening on the movie the studio will send out what is called a Notice of Tentative Writing Credit. It is a very standardized form kind of memo that says, “We believe these are the writers who participated on this movie. We believe the proper WGA credit is ‘written by'” — or actually, it would have to be probably “screenplay by,” depending on sort what these underlying rights are.
It would say “written by Writer A and Writer B,” so the people’s actual names. And they send that out to everybody who worked on the movie, everybody who was a writer on that movie.
Craig: Yes. Everybody. That means even if they do a roundtable where they ask six or seven writers to sit in a room for eight hours just to do some punch-up on a comedy, for instance, which is fairly common. Even those writers will get the statement. Anybody that was employed under the auspices of this project gets this Notice of Tentative Writing Credits.
And all that is, is the studio’s suggestion. That is the beginning and end of the studio’s participation in the credit determination process.
John: Almost always. They may also get involved if there is a question of when material was submitted to the studio.
John: Over the course of arbitration the WGA may be asking the studio to provide certain drafts.
Craig: Yeah. It is the end, I suppose, of their opinion. [laughs] That is a better way of putting it.
John: So all of the writers who work on that movie, so this first writer, the second writer, and all of the people who were on that one comedy punch-up for Batman vs. The Smurfs, they all get this memo, this Notice of Tentative Writing Credits.
Usually it goes to your agent or your lawyer or both, but you get this notice. Actually one friend of mine who wrote on a movie somehow didn’t get the Notice of Tentative Writing Credit and it became a whole issue because she missed her window for when she could…
John: …protest. And it became a challenge.
John: Ultimately she was able to get her protest in there because some other things had happened. But, anyway, your agent and your manager/lawyer should be given this notice. And you will read this and you will say, “Well I think that is the appropriate credit,” or, “I don’t think that is the appropriate credit.”
John: Now, that doesn’t automatically mean that it goes to arbitration. As long as Writer A and Writer B or any of the other writers involved were production executives you have the opportunity to determine among yourselves what you think the credit should be.
So Writer A could call Writer B and say, “Hey look, I read through the Notice of Tentative Writing Credit. I think I deserve sole story credit and then we should share screenplay credit.”
Writer B might say, “Yes, I think that is actually a really good solution. I agree with this. We will both write up a letter to this effect and submit it,” and that will be the final credit as long as the other writers who worked on the project aren’t appealing that. That can sometimes happen.
It happens, I would say, a fair amount of the time.
Craig: It happens. Yeah. The simplest outcome to these things is that all of the participating writers get this Notice of Tentative Writing Credit and nobody has a problem with it. Everybody actually agrees with the studio’s opinion in which case the window for protest lapses and those credits become final.
John: Exactly. So we should list that as the simplest case. You get the Notice of Tentative Writing Credits, you agree with it, everybody agrees with it, Those are the credits. Done.
John: Second simplest case. You get the Notice of Tentative Writing Credits, the participating writers confirm among themselves, agree what the credits should be. They both write letters to that effect. Everything is done.
John: I ran into a case on a project a while back that we couldn’t actually do that because of weird things that were in our contracts that I think I actually spoke with you about. Certain studio contracts, this boilerplate, that can have the studio…can prevent writers from just reaching that decision.
Craig: Well, yeah, and in fact as far as I can tell it is every studio. Here’s the thing. I’m not sure this is enforced.
The deal is: writers get bonuses when they negotiate the terms of their employment. There is the money you get paid to write. And then there is a bonus that you get if you receive sole screenplay credit. It is never attached to story credit.
And there is a slightly diminished bonus you get if you share screenplay credit. And obviously the idea of the bonus is to reward you for authoring a movie that actually got made, which doesn’t…most of these movies don’t get made at all.
There is boilerplate language in just about every contract as far as I can tell that says if credits are determined by the writers agreeing amongst themselves to a credit that is different than the one the studio proposed they don’t have to pay you your bonus. And the reason why is because they don’t want writers to essentially collude to maximize the amount of bonus money the studios pay out.
On the other hand, it seems ridiculous because writers don’t care how much the studio pays out to other people. They just care about what they get. So, the truth is I don’t know if that is every enforced.
John: Yeah. The scenario in which I could see it happening is let’s say Writer A is a very low level writer and his bonus was $50,000 for the movie getting made. Let’s say Writer B was a huge writer and had a $1 million credit bonus. You can imagine a scenario in which Writer B would come to Writer A and say, “Hey look, if we just agree on this I will cut you a check for $200,000 so we can avoid all the arbitration and everything else.”
And I think that is the situation that that boilerplate language is trying to avoid. I don’t know that it really happens.
Craig: Maybe. Yeah.
John: But it did come up with one project that I wrote a while back where we realized that we couldn’t just simply come to an agreement.
Craig: Right. And that is a bummer.
John: That’s a bummer. So these are the two simple scenarios. First is Notice of Tentative Writing Credit. We agree. Everybody agrees. That is the final credit.
John: Second simplest solution is all of the participating writers decide their own credit, everyone agrees to that, and that becomes the final credit. If those two steps don’t work right then you file a Notice for Arbitration. So you are submitting a letter to the WGA. I think you can actually just call the WGA credits representative and say that you intend to seek arbitration on the credits for this move.
Craig: That’s right.
John: That starts the whole process.
John: So that process involves a couple steps. First off you have to determine which drafts are going to be read, which drafts were written under the terms of the WGA contract. That can be contentious sometimes, especially in terms of what literary material really is literary material. Are you throwing in every outline? That can be complicated.
Craig: Yeah. And there are rules governing this stuff and there is also a process called a pre-arbitration in which a separate group of writers will make a determination about whether or not something is, in fact, literary material and also what order things came in because chronology is very important. The arbitration process is based on a fundamental principle that all writers have access to all of the WGA-covered writing on the project that occurred before them.
It doesn’t matter if you read the script or not. It doesn’t matter if the studio gave you that first script or not. The truth is if it was assigned to you in your contract, and it always is, we have to assume you saw it. Therefore, if something occurs in a script that was written in June and something similar occurs in a script that was written in December, they will give the writer of the June draft credit for it.
So, a lot of times what happens is suddenly you think you are Writer B and then suddenly somebody waves their hands and says, “No, no, actually I turned something in before that. I’m Writer B. You are Writer C.” And then it becomes a whole thing about trying to figure out who came first.
John: Yeah. So, a pre-arbitration hearing may happen to figure out what order stuff happened in. I had a weird situation once where the pre-arbitration hearing was really to determine whether one of the participating writers was actually a writer at that point or was he a producer, like a studio executive on the movie at that point. Were those studio notes or was it really literary material?
So, there can sometimes be a pre-arbitration hearing. I wouldn’t say it is most of the time but it does happen.
John: Once you agree on which drafts are applicable, your name gets taken off of everything. And they start labeling things Writer A, Writer B, Writer C. If you are a writing team they will still call you Writer A. They don’t try to make it more complicated than it should be.
Craig: Yeah. You are treated as one writer by the rules.
John: And, of course, it can sometimes get complicated where you have a writing team and then they split up and one person wrote separately and then it just…yeah.
Craig: Yeah. I have been in arbitrations where I have been part of a team that was called Writer B and on my own I was Writer C. And unfortunately your contributions as Writer C are viewed as separate from your contributions as Writer B as part of a team. It is just the way it goes.
John: Once you figure out which drafts and what you are going to label the different writers, the WGA has to figure out who are going to be the arbiters. Arbiters are assigned numbers rather than letters so you will have Arbiter 1, Arbiter 2, and Arbiter 3.
They will get a giant FedEx envelope or box with all the applicable scripts in it, any background material. They will also get a statement written by each of the participating writers. The participating writers don’t have to submit a statement but they generally do which outlines their case for why they believe they deserve the credit that they are seeking on the movie.
John: Now Craig has a really good post on his blog about how to write a good arbitration statement. And so I am going to link to that in the show notes, but we can sort of summarize them here. I think this is back from 2005, but nothing has changed.
Craig: No. And unfortunately this is one of those areas where the psychology of the participating writer is in direct competition with their own best interests. Because it is a difficult process to go through; it is a very emotional process. The thought that you will either not be credited for the work you have done or that somebody else will be credited for the work you have done is horrifying properly to anybody who writes for a living.
It is a very difficult thing to go through and it is fraught with anxiety. You add to that mix the fact that you are entering into what people often refer to as the Star Chamber, where you are being judged by three people you will not see, whose names you will not know, and who will not be accountable to you.
And the only communication you can have with these people is this statement. Suddenly the importance of this statement grows into this massive thing. This is your make or break statement. And, add to the fact that we are writers and that this make or break thing is based on writing, and you can imagine how people obsess over the statement.
Unfortunately, on the other side of this thing where the arbiters are, here is the truth: as arbiters, we are judging the scripts. We grant credit based on the writing that we read in the scripts. And that’s it. Or in the treatments. Whatever literary material has been supplied to us.
The statements are nice, but frankly every statement basically makes an incredibly biased argument about why that writer should get this or that. They often include irrelevant comments about how long it took them to write it or that they got the green light or that they never read the other stuff. All that stuff in the end doesn’t really matter.
And tragically there are writers out there paying people, so-called experts, up to $10,000 to write so-called expert participation statements that will get them their credit. And the worst thing you can get as an arbiter is one of these over-written, clinical, legal treatises on why a writer should get credit. All you care about are the scripts.
So, how do you write a good statement? Well… [laughs]
John: Here are the bullet points you gave. So let me read them to you.
Keep the statement short. Absolutely. I think the first time I did this it was like a 15-page thing. I don’t do those 15-page things anymore. They have gotten a lot shorter.
John: Do not bad-mouth the other participating writers.
John: Obviously. Nothing, I mean, remember: it is other screenwriters who are going to be reading this thing. You don’t want to seem like a dick.
Craig: Yeah. Don’t be a jerk.
John: Talk about what you contributed to the final screenplay and nothing else which is very key because they are going to read those early drafts which were great but the only thing that matters is that final script. You have to show what of your stuff is in that final script.
Craig: Correct. And it ultimately doesn’t really… It is not your job to tell the arbiters, “By the way, notice that all of this guy’s first act isn’t even in the script.” They will get it, trust me. They don’t need you to tell them that. And it just seems petty. Talk about what you did.
John: Yeah. Avoid the percentage trap. And probably at this point we need to explain why you are talking about percentages at all, or shouldn’t, but why you are thinking about percentages.
In order to be credited as the writer on a project there are different thresholds you have to hit. I’m going to let you talk because I’m going to mess it up and then we will have to edit this back. So, for story credit, story credit can be split between two writers?
Craig: That’s right. A maximum of two writers.
John: So, in order to… If you are Writer B on a project you have to be able to show that you have contributed 50% or more to the story.
Craig: Actually, no.
John: See, that is why I am going to let you talk.
Craig: Yeah. Story credit doesn’t have percentages.
John: That’s right.
Craig: Story credit just says that you have to make a…I think it is significant or meaningful contribution to story. And they leave it up to arbiters to determine what that means.
The only limitation on story credit is you can’t give it to more than two writers, and again, teams count as one writer. So there is no threshold so to speak.
The thresholds come into play for screenplay credit. We have two thresholds essentially. The standard threshold is 33%. You have to show that you contributed at least one-third of the final elements that contribute to screenplay in order to receive screenplay credit if the project is a non-original screenplay. That includes adaptations and the like.
If it is an original project, typically something that began life as a spec or a pitch, then the first writer has to show that 33%. But all subsequent writers have to get a 50% threshold. They have to show that they have contributed in excess of half of the elements that contribute to screenplay.
Now, go ahead and ask me how an arbiter makes that mathematical calculation. [laughs] You can’t. It is nonsense. We typically refer to those percentages as guidelines. They are weird kind of — I don’t know how you… — metaphoric simulations of thresholds.
In my mind 50% is whatever half means. And 33% is a good amount. But no one, I dare anyone to tell me that they can figure out that somebody contributed 40% or 45% or 28%. It just doesn’t work that way.
But the upshot is that no more than three writers can share a screenplay credit. And that these percentages are guidelines. So, don’t talk about… That is the point, the reason you brought this up: the worst thing you can do, and I did it on a very early project because I was a dope, is to sit there and try and do math for the arbiters and say, “Look, I added it up and I got 59%.”
John: Don’t try to invent your own math to it.
John: It won’t help you.
Craig: No. It is just going to make you look like a dummy.
John: Your next bullet point: thank them for their service. Absolutely, because it is a hell of a lot of work. And I am always appreciative when I read a writer’s statement that thanks me for my service that doesn’t influence my choices. But I do get that small little endorphin burst that helps me then crack open the next script.
So, thank them, because you would want to be thanked. Golden rule.
Craig: Absolutely. Yeah. I have read some statements that were soaking in a strange sense of entitlement as if I had been employed by the writers to render this decision and it was… The statement was sort of a mix of griping, grousing, complaining about the process, suspicions that I wouldn’t understand, or complaints about how they had been burnt before by arbiters.
You know, I’m volunteering my time. And I don’t like it anymore than they do, so dispense with all the negatively. It’s just not going to help.
John: Yup. Next bullet point: cite the rules. This is really crucial because what the arbiter is ultimately going to do, he or she will read through all of the scripts, but the only way he can reach a decision is to go to the screenwriters credits manual and look at the rules and look at how to apply those rules.
So, if you are going to make a point, make your point using the same language as the rules that are going to be in the manual.
Craig: Yeah. If there is anything that approaches a trick, and it is not really a trick, but anything that approaches an effective way for your statement to have an impact on the arbiters it is this. The reason why is the arbiters have to write their own statement. When they are done with their decision they call the Guild and they say, “This is the decision I reached.” And then once the Guild has determined that there isn’t a deadlock among the jury members, then they ask each arbiter to write a statement explaining their reasoning.
And they do that because as participating writers we have the right to request those statements when the arbitration is concluded to review them and make sure that the arbiters didn’t violate any procedures, misapply rules, et cetera.
What you can’t do as an arbiter is write a statement like this: “I read all of the scripts and I just feel like Writer B just, they really wrote the script. I didn’t really get a sense from Writer A that they did much. But I do think Writer C should get story just because he worked a lot.”
John: “It seems fair.”
Craig: “It seems fair.” The staff will call you and say, “No.” You have to, please, use the language in the manual to clearly justify your remark that Writer B really wrote the script. Because we have to use the manual, it is helpful if the statements give us hints of how we could use the manual when it is time for us to make our decision.
I don’t think it is necessarily going to be determinative but it shows that you are serious and thinking about the problem the way the arbiter has to think about the problem. It can’t hurt. And it could help.
John: Yup. So the arbiter is given all of these scripts. He has received a big FedEx box with all the scripts in them and a timeline and really a deadline. This is how much time we have to figure out the credits. Sometimes there really is a ticking clock because there is a movie coming out, something big has happened. TV has more pressing deadlines a lot of times than features do.
Often I have had two weeks to read through the scripts and come up with answers. Sometimes it has been less than that.
John: When you are finished — that deadline is clearly spelled out at the start — when you are finished you call into the WGA. You give them your decision.
If the decision is not unanimous they may ask you to do a teleconference. And, in fact, this last one I participated in they already had the teleconference time scheduled from the start, so they blocked out a period of time for when they would do a teleconference, if they needed a teleconference.
So this last one I went on we had a teleconference which was actually really cool. If there is not unanimity you call into a number, you identify yourself only as Arbiter 1, 2, or 3. You explain how you reached the decision. The other arbiters explain how they reached their decision. If that discussion causes a unanimous opinion to form, that’s great. If it doesn’t cause a unanimous opinion to form, that is still okay.
You don’t have to have unanimity but you would like unanimity if you can find it.
Craig: Yeah. This is a rule change that our committee instituted a couple of years ago and it was kind of a revolutionary shift because the legal basis that the Guild has used to defend itself against many, many lawsuits over the years has been that this process is anonymous.
And they have always been very careful to preserve the wall of anonymity between both the arbiters and the participants and intra-arbiter as well so that I don’t know that you and I are both arbitrating on the same movie so I can’t call you up and say, “Hey John, shouldn’t it be this? Don’t you think it should be that? Should we give this guy credit?”
But we had another problem. The way that the rules work, if a decision is unanimous you are done. If a decision is two to one the majority prevails. Only in the case of three different decisions do you get deadlocked and then they have to impanel three new arbiters.
What we found was that —
John: Let me stop you for one sec.
John: What you are saying is unanimity, great. Two to one, majority rules.
John: Two to one meaning you agree on the exact same breakdown of credits. Sometimes what will happen is one person will say, “I think Writer A should get sole credit.” Arbiter 2 says, “I think it should be split equal between the two.” And Writer C [sic.] says, “I think story goes to this guy and the other two share screenplay.”
So it is possible to reach three different decisions out of an arbitration.
Craig: Absolutely. Absolutely. And it happens frequently. But what we were finding statistically was that almost two-thirds of decisions were two to one. Only one-third of decisions on features roughly were unanimous. And the problem that we were having for our membership was if you lose an arbitration two to one you are sitting there going, “I shouldn’t have lost that arbitration. I mean, you give me another three people I might win that one two to one.”
It is a difference of one vote. If you lose unanimously, well, you lost. You may not like it, but three people all agreed that it should be this. And what we found often was that the differences between the two people and the one were fairly minor and they weren’t very substantive.
But the writers on the other end didn’t know that. So, what we required was in any case where it wasn’t unanimous from the start the arbiters had to get on this anonymous — this is a constant unanimous/anonymous shift — they had to get on this anonymous teleconference and defend their decision and talk about why they thought it should be a certain thing. And then see if maybe there was room for slight adjustments — if they didn’t feel very strongly, if they were on the fence about a minor aspect of it — maybe you could go to a unanimous decision.
The staff monitors the teleconference to make sure that no one writer is badgering, one arbiter is badgering another, or that no one arbiter is misunderstanding the rules when they make their argument. And two great things have come out of this.
One, we have far more unanimous decisions. And, two, the staff gets a chance to listen to the arbiters and learn who is actually on the ball and who is kind of a dope. And that is a big deal because, frankly, of all the problems that we have with arbitrations I maintain — this is my opinion — that the weak link is the arbiters, not the participating writers, not the staff, not the procedures, not even the guidelines, which are problematic, but the arbiters.
And if the arbiters are bringing bias or slip-shot methodology or just, frankly, a lack of mental acuity, we need to know and not have them arbitrate.
John: Yeah. So, this teleconference may or may not have happened, so coming out of arbitration this first step of arbitration, you may have reached an unanimous decision, you may have reached a majority decision. You may have reached a split decision, a deadlock, in which case you are doing the whole process again. But hopefully you have come out of this with a decision.
It is the Writers Guild’s responsibility then to call or email or contact the participating writers and let them know what the decision has been.
There is a possibility of appeal. The possibility of appeal can only be based on the application of the rules. It can’t be based on “I didn’t like that decision.” You have to be able to show that the rules were not applied.
Craig: Yeah. More specifically that the procedures weren’t followed correctly because it is… I will tell you that the staff is quite good at not letting out statements. Well, the Writers Guild West staff, not to beat up the East, but we are far more particular about this in the West — the Writers Guild West staff is excellent about not letting statements out that violate our rules.
You will not see a statement from a Writers Guild West arbiter saying, “This guy should get screenplay credit because he hit the 33% benchmark. And that writer really had to hit a 50% benchmark.” We don’t let that happen.
Craig: You are not going to see anything like that. Where you can protest is if you feel the procedures weren’t followed correctly. For instance, you have evidence that one of the writers looked up your name and knew who you were. Or you believed that you didn’t have a proper amount of time to write your statement. Or, you can tell from one of the statements that the writer actually read the wrong draft, something like that.
So, when you get the judgment you have the opportunity to protest. And if you do protest you will receive the written statements of the arbiters which you can review. You will then be given an opportunity to go through with your protest or not. And if you do, you then go to what is called a Policy Review Board where three new writers hear your case with the proviso that they can’t read any of the literary material.
So they are not there to rejudge who wrote what. They are just there to monitor your experience with the procedures. And you can imagine that it is extraordinarily rare that one of these protests is effective.
John: Yeah. Basically in order for the protest to be effective you would have to be able to prove something that is very difficult to prove. Because the only things that the Policy Review Board is looking at are these three statements and do the writers get to make a separate statement to the Policy Review Board explaining their beef?
John: Is it just in the statement or do they also call in?
Craig: They actually can show up in person. Because the Policy Review Board, you can see those people face-to-face because they are not reading your material. And you can give them your entire experience. And you can say, “Listen, I was misled by this person who told me this.” Or, “I heard during this process, somebody called me up and said, ‘Did you know that so-and-so is doing arbitration and that they told me that it was you?'” Stuff like that.
Then you can make your argument. But, again, the Policy Review Board is a… It is cold comfort for somebody who has lost an arbitration because their ability to overturn an arbitration is extraordinarily narrow.
And I get why, I mean, because honestly everybody would appeal everything and make everybody read the scripts over again.
Craig: Every time.
John: So the outcome of a Policy Review Board, if they find that something was not followed properly, it just gets thrown out and the whole thing starts again.
Craig: With new arbiters, correct.
John: Yeah. Another chance to roll the dice.
Craig: That’s right.
John: One thing a Policy Review Board can do, I know from experience, is they can call arbiters. So if they have a question about an arbiter’s statement they can call him or her and ask specific questions about things if there are questions that are not answered just on the paper.
Craig: That’s right. I did an arbitration once and I was called by the Policy Review Board. And they asked me to explain. There was one statement that I wrote; it was a very complicated arbitration that involved a project where things had started as… Sometimes, unfortunately, the real world operates in a way that is inconsistent with the cleanliness of our rules.
So, sometimes someone sells a spec and then a studio turns it into a sequel. This happens all the time.
Craig: Well is it original, is it not original? It turns out it is not, usually; sometimes it is. It’s a mess. Anyway, it was a complicated arbitration; those are the types I usually get. And there was a sentence I wrote in my statement that was very specific and appropriate to the rules. And I guess one of the writers, the participating writers, had questioned whether it meant this or that.
And so the Policy Review Board called me, not in front of that writer, and asked me to clarify my statement and I did to their satisfaction and that was that.
John: Yeah. One thing that the process of being an arbiter has reminded me of is just the same way that you are writing your statement to arbiters knowing that those are other screenwriters, I have been very mindful of the statement I write as an arbiter being straight-forward and clear but also respectful and kind. Because you realize that in many cases the participating writers are going to read this and so you want it to be clear…
John: — but you don’t want it to cruel.
Craig: That’s right. There is no place for that. You should be…you are acting like a judge so you should talk like a judge and be dispassionate and impersonal and just be about the facts and also be aware that arbiters are not allowed… The statements that you write as a participating writer are considered private to you. It is private communication between you and the arbiters and the Guild.
What the Guild doesn’t want is for — if you and I are in an arbitration, I’m Writer A and you are Writer B, and I write in my statement, “Look, Writer B came in and worked for two weeks on this and then got fired and then they brought me back and it’s crazy,” I should be allowed to write that in my statement. It is not really relevant.
But I don’t want you reading that. So, arbiters are not allowed to quote or refer to anything that is in the participating writer statements because in the case of a protest you will get all of our statements and as Writer A I don’t want you reading in Arbiter 1’s statement how I said something about you.
It’s a very complicated business.
John: It is. Before we wrap this up, we have sort of jumped past a couple different times: production executive.
Production executive is a special term of art for determining screenwriting credits. And it doesn’t mean a person who works at Sony, although it can be a person who works at Sony. Production executive in terms of screenwriting credit is somebody who is employed on a movie in a non-writing capacity in addition to being a writer. Is that a fair description?
Craig: Uh, maybe, I don’t think that would work if you were both a writer and craft services. I think it comes down to —
John: It really means director or producer.
Craig: That’s right. It is a hyphenate. Writer-producer, writer-director. Because you can be a writer-actor and you are not a production executive.
John: Because oftentimes actors are —
Craig: That’s right.
John: — re-writing.
Craig: It is something that we have talked about.
John: Yeah. So, if you are a hyphenate like that, so let’s say Writer A creates a script, writes a spec script. A director comes on board and significantly rewrites it. That director may be considered Writer B.
John: And the fact that he is also a director triggers automatic arbitration.
Craig: That’s right.
John: So, that movie will always go to arbitration. There is no way to not do that. They can’t even come to their own agreement, can they? They have to go to arbitration.
Craig: That’s right. Because the presumption is that a director or producer is in a position to pressure the non-hyphenate writer either with their status on the project going forward for press and premieres and so forth, or for future work. So, they take that out of the equation and it is going to be arbitrated no matter what.
John: Craig, is the system perfect?
Craig: No, no, no. Far from it. It is a deeply flawed system, frankly. The procedures, I think, are pretty good in terms of the way that they have built the firewalls around anonymity and so forth.
Of course, they do the best they can considering that we live in a world with IMDb. If an arbiter really wants to know who the participating writers are, they may not be able to match names to drafts, but they can always go on the internet and find out who wrote on this thing. And then using information from the writers’ statements they may be able to even piece together which writer wrote which draft.
But the procedures in that regard are about as good as they can be. Where we fall down is in the guidelines which we have been steadily improving but which are odd and occasionally impenetrable.
And in the pool of arbiters themselves who, I think, are not well trained and not well guided, not by the staff but just by the… — We just sort of get thrown into the pool and we have to swim. And it is unfortunate because the system is a legal procedure being adjudicated by non-legal people.
John: All the same, the people who are adjudicating it actually understand what they are reading better than anyone else would.
John: They are the people who — well, a lawyer wouldn’t be able to read through a screenplay and know whether that change on page 56 was really significant to the rest of the movie or was it just an arbitrary change on page 56.
Craig: I agree.
John: That’s the advantage of having actual screenwriters doing this work.
Craig: Yes. Although I will say that there is a third option which is in, for instance, if you were to allege copyright infringement in the court — you write a novel and then somebody else writes a novel and there is a dispute. The courts rely on expert readers who are not only trained in terms of the dramaturgical and literary analysis of material but in the law itself to kind of combine those skills of legal analysis and literary and dramatic analysis.
We don’t have that training. And I think… Look, I have read — because I am one of the chairs of the Rules Committee, people will come to me when disaster strikes. And they will show me the arbiters’ statements. And I have read some unbelievably atrocious arbitration statements, that is to say, statements by the arbiters themselves. Statements that I thought revealed a very poor, un-analytical mind — a mind, perhaps, staring at the wrong things, thrown by bias, or just poorly argued and thought out.
And that is the part that concerns me the most. That is why I am always asking screenwriters that I know who are experienced and who are fairly left-brained to please, please call and volunteer and serve as an arbiter.
John: Great. Well let’s leave it at that as a final plea to our screenwriting brethren, the ones who actually are eligible — and I think a fair number of our colleagues are listening to the podcast now — to take the time out to actually do those arbitrations because lord knows you want smart people doing it when it is your time to submit for credit.
Craig: Yeah, you know what, take a day and read the scripts and they usually send you M&Ms with it which is nice.
John: Yeah. A little calorie boost. This last time it was a Snickers bar. So you never know what you are going to get.
Craig: That’s right.
John: And, Craig, thank you very much for a very thorough discussion of arbitration.
Craig: Thank you. Hopefully everyone is sound asleep now. [laughs]. This is one of those podcasts that people will go scrambling back to four years from now when they are suddenly sweating in an arbitration, but, if you are riding in your car, it may be not the most applicable thing.
Next week let’s talk about sex.
John: Let’s do it.
Craig: Yeah, okay.
John: Thanks. All right. Bye.