The original post for this episode can be found here.

John August: Hello and welcome. My name is John August.

Craig Mazin: My name is Craig Mazin.

John: And this is Scriptnotes, Episode 97, a podcast about screenwriting and things that are interesting to screenwriters. How are you, Craig?

Craig: Good. I’m liking the sound of that 97.

John: It’s a lot of episodes.

Craig: It’s a ton.

John: Yeah.

Craig: One of our best episodes was the one we just did last week, the live one.

John: Yeah, it was a lot of fun. So, we had a big crowd at the WGF and that was a good, fun time; got to see our people as we did our live Three Page Challenges. Once again, thank you to our brave volunteers for that.

Craig: Yeah. They were terrific. They took their medicine. And, you know, there was something to recommend about all of those. I have to give Stuart credit — I mean, I hate to do it…

John: Mm-hmm. Tough.

Craig: I know. I just don’t like over-praising. Or praising. [laughs] But, Stuart did a very good job of picking out three Three Page Challenges that were — none of which were bad. They were all good and just had interesting issues to address.

John: And it was only after Stuart sent us those samples that he realized, like oh my gosh, I picked only women. And so at first I emailed back saying pick one guy or male writing team so we have some diversity. But then you emailed back like, yeah, screw that.

Craig: Yeah, I mean, who cares. I love — you know me, I’m very consistent. I ignore all that stuff. So, if we happen to get three women, good. And it was good, yes.

John: Hooray. So, that was our previous live podcast episode. Coming up on July 25 we have our next live episode, which is our 100th episode, which is very exciting. Tickets went on sale for it this past week. And they sold out super, super quick.

Craig: How fast did they actually go?

John: Within three minutes after I tweeted that they were sold out.

Craig: Dude, we’re Bon Jovi.

John: We are Bon Jovi. So, while that’s exciting, it’s also frustrating for people who didn’t get a chance to come who wanted to come. And so I feel awful about that situation. We’re trying to find out a way to release some more tickets so we can get some more people coming to our show.

If not, we’re also looking at ways to maybe live stream it or do other things, so people who cannot physically be with us can be with us emotionally as we celebrate 100 episodes of this podcast.

Craig: [laughs] It’s a pretty remarkable thing, I have to say. I am grateful. I am legitimately grateful, as somebody who has a tiny, tiny Grinch-like dark, sooty marble for a heart. I am very grateful for people and their interest in our little podcast and what we talk about.

And a bit overwhelmed, frankly, by the interest in all of it. So, to everybody that jumped on that and bought tickets like we were, I don’t know, Nirvana in 1991, all I can say is thank you. And hopefully we’ll put on a good show for you.

John: Originally I was concerned that someone had like just bought 100 tickets all at once and has had a master plan to scalp them or something, but we got the word back today that the most any one person bought was six tickets. So, it’s not like there was some great cabal doing things.

So, it looks like highly motivated individuals bought those tickets, which is a great thing. We look forward to seeing a lot of people there and at future events. But today let’s talk about three topics that are of interest to screenwriters. Those would be the question of have first acts gotten shorter, and if so, why and what does that actually mean.

Second topic, the WGA released its annual report that shows that numbers are actually up significantly for writers, but only in TV.

And, finally, we’ll talk about the fight over the title The Butler. And what it means for a screenwriter who wants a certain title, but also what it means for the film industry and antitrust suits and famous lawyers.

Craig: And famous lawyers. So, quite a bit on our plate. I guess we should start with our first act.

John: Yes. So, this is actually motivated by my friend Rawson who sent an email asking, “Is it just me or is everybody asking for everything that used to happen in the first 30 pages to happen much faster?” Basically, the first act has to be much, much faster and shorter than it used to be. And he came up with a provocative title that very much feels like a Sex and the City question: Is 15 the new 30?

Craig: Yeah. I loved it when you forwarded me this from Rawson. I thought it was such a great observation, because it’s one of those things that I hadn’t really crystallized in my mind until I saw him write it out like that. I think it’s absolutely true that this is a pressure, a creative pressure, that’s been coming down increasingly lately to compress down first acts. I felt it in a huge way when I was writing Identity Thief. There was a lot of pressure on me to shorten that first act. I feel it all the time.

I went to go see World War Z…

John: I was going to bring up World War Z.

Craig: Yeah, and I really like that movie. That first act, I think, is a minute. [laughs] I think it’s a minute. There’s a scene where Brad Pitt wakes up with his family. They have a very kind of cereal-advertisement morning. They get in the car. And then zombies.

John: Yeah. So, we should define our terms, which is a good thing to do when we’re discussing whether something has changed is to talk about what it is we’re actually talking about. Let’s talk about what a first act is supposed to be, or what the function of a first act is in a screenplay.

And it’s one of those terms that’s kind of invented, but it’s a useful thing that we do talk about a lot in the Hollywood industry. So, classically in a play, an act is a very clear division, like the curtain comes down, or like this is where we’re stopping the show to move onto another thing. Obviously movies don’t do that. And so when we talk about a first act we’ve usually been talking about something that happens about 30 minutes in. And there are certain characteristics of what’s happened to this story at this point that indicates you’re at the end of the first act and you’re now moving into the second act.

And so sort of a laundry list to add to the kind of things I’m saying, generally you’ve reached a new place. Or, if you haven’t really gotten to a new place, you’ve reached a new direction. And your character is taking charge of the situation, or at least has a clearer idea of what his goals and motivations are. It’s to tell you what is specific about this story and what does this character need to achieve in order to get through to win this story.

What is your protagonist trying to accomplish? The game has changed in some significant way at this first act marker.

What else would you say is indicative of a first act?

Craig: Well, I guess a very simple way of thinking about it is that in the first act, not at the end of the first act, somewhere in the first act something happens to change the hero’s normal world/normal life, and at the end of the first act the hero has begun their journey to make things right again.

John: Yes.

Craig: And for me, at least, I find that this first act is the most important act of a movie. It’s the most interesting act, for me. We’re creating a world. We’re building a world in the first act. We’re creating a person. We’re then introducing a problem. And then we’re pushing that person right to the edge of the nest and finally flicking them out.

And that first act has — it seems — has been squeezed and squeezed.

John: Let’s talk about some classic movies, movies that people are going to recognize what the first act is in that movie. Classic example is Wizard of Oz. Wizard of Oz, the line is “We’re not in Kansas anymore.”

Craig: Right.

John: She’s literally moved from one place to another place. She is now in Oz and everything is different.

Craig: Yes.

John: Charlie and the Chocolate Factory is when they reach the factory. That first act is getting them to the factory. The second act starts when they’re in the factory. So, everything you know about Charlie Bucket, and in my version of the movie, everything you know about Willy Wonka, there is setup that’s getting you there, so when you reach that second act you are, hopefully, ready to be on this journey.

Craig: Sure. Star Wars, I think probably when Luke realizes that his aunt and uncle have been burnt to death and there’s nothing left for him in this planet anymore and he decides to leave.

John: Yes. Little Miss Sunshine is when they hit the road to California.

Craig: Right.

John: They’ve gotten in the bus.

Craig: Yeah. The easiest ones are road trip movies. When they hit the road, the second act has begun.

John: Back to the Future, he gets stuck in 1955.

Craig: Right.

John: That’s about the right place. Comedies can sometimes be tougher, especially when you’re not going to a new place. I was looking up some, like Mean Girls, and what people thought was the act break in Mean Girls. And some people will differ on where they think the act break would be.

Mean Girls was when she finally decides, you know what, I’m not, I’m going to — she turns on the mean girls. So, she’s not going to try to become one of the mean girls, she’s going to bring them down. And that starts a different arc, where up to that point she’s been trying to assimilate. And at a certain point she says like, “I’m not going to try to assimilate. I’m going to bring them down.”

Craig: Yeah. At some point the meat of the adventure begins, whether the adventure is a legitimate adventure, or a character exploration. And sometimes in a high concept it’s when the high concept kicks in. So, in Groundhog Day when he wakes up that first time and it’s the same day again, that’s the end of the first act.

John: That’s a very classic first act shift. It’s also kind of those moments where what would be in the trailer that establishes what the premise of the movie is, that’s often been the first act break.

Craig: Yes, yes.

John: Not always, but often.

Craig: The stuff that comes before James Brown goes, “Ow! I feel good.” [laughs]

John: Yeah. Now, let’s go back to World War Z, because World War Z was one of the first things that popped into my mind because I just saw this last week. And there are no spoilers for us to say that very, very early on in the movie there are zombies running through the streets.

Craig: That’s not the end of the first act, per se.

John: No. And my question is you could argue that it feels like the end of the first act because like the world has profoundly changed. You could also say that was sort of the inciting incident.

Craig: Precisely.

John: That is the moment where everything has started to happen. And then you could call the end of the first act when they get to the ship that they’re sort of landing on.

Craig: It’s funny — I actually think the end of the first act is when he leaves to go to Korea. So, he begins his adventure and leaves them behind. And there’s that moment where he says, “I’m leaving, you’re staying, and I am beginning an adventure,” the purpose of which is not only to save the world but to return and fix things.

John: Yes.

Craig: Still, it happens in such a compressed manner. And for that movie, I have to say, no quarrels. There wasn’t, and we never really do movie reviews here — I really liked World War Z. Some people complained a little bit that the characters were thin and I think, yes, absolutely, they were very, very thin. It was like Hero and Hero’s wife. But, that’s not where I… — I did not lack from enjoyment simply because the characters were thin. It was a little bit like watching a bible story or something, you know.

John: Yeah. What I found so fascinating about sort of how it chose to do it is it didn’t do really any of the work that we expect to see in the setup of a movie, like the setup of who these characters are.

Craig: Right.

John: I mean, it was just the very broadest strokes on like, “This is a family. They seem to be doing pretty well.” And suddenly then we’re off to the races. And they tried to fill in some more stuff along the way, just sort of incidental conversations about what he used to do, what this was. But, in some ways it was surprising that it wasn’t filling in more of those details, because that’s what kind of kept you alive and alert for, because you kept listening for anything that would tell you who these people are or what is sort of unique or special.

Craig: Well, and one of the things about World War Z that is interesting is that the character ultimately doesn’t change. And because the character doesn’t change, we’re not dealing with a movie where there’s a traditional thematic arc. When you do have a traditional thematic arc and a character is going through some sort of internal combustion to end the movie in a philosophical place that is perfectly oppositional from where he or she began, you need that first act.

In comedy in particular I feel you need it, because comedy isn’t about a thousand zombies piling on top of each other like ants to get over a wall. Comedy is about the human condition. And so we need that first act desperately to meet somebody, establish who they are, establish what they believe. Kind of soak them in it for awhile.

John: Before the main plot engine really kicks in.

Craig: That’s right. And it’s okay for something to happen on page 10 that throws their world out of stasis. But it’s not okay for them to immediately then just jump into adventure. There needs to be a period of resistance and a period of contextualizing what happens and what this means for me. And then we begin the adventure.

John: So, a good example of that would be The Heat, which I don’t know if you’ve seen The Heat yet.

Craig: I haven’t seen it yet. I’m very excited to.

John: So, I thought it was fantastic. Melissa is fantastic and she’s obviously a friend of both of ours. But The Heat is very much — has a very classic first in act in that you meet the Sandra Bullock character, you meet the Melissa McCarthy character, separately. They cross paths probably about 15 pages into it.

Craig: Sure.

John: Hate each other. Despise each other.

Craig: Right.

John: At each other’s throats. And then probably around page 30 or so they have to partner together in order to get the plot of the movie to resolve. They both had their interests for why they’re going into it. And it’s very clear that we’re going to be watching this movie to see how their relationship develops over the course of this movie.

Craig: And you need the, if they meet each other… — So, okay, the way you just described it is sort of a perfect reason why you don’t want 15 to be the new 30. You need 15 pages to introduce two people and show them as they are separately, so that we understand what their strengths and limitations are, separately.

Then we need some time where they are together where we establish that they do not get along and why. And ideally it’s tied to their strengths and their weaknesses. Once we’ve done that groundwork, it’s perfectly fine at that point to kick the apple cart over and force them to head out into the field, whereby they will do the work of the plot as well as their own relationship. But we need those 30 pages.

And I’ve got to tell you, I mean, I don’t understand why there’s this big rush, rush, rush to shorten the first act. I think audiences love first acts.

John: So, my theory on why we feel this development pressure for shorter first acts is the people who’ve been reading the script have been reading the script for like six years.

Craig: Yeah.

John: So, they know what the movie is and they know what’s going to happen. And they’re eager for what’s going to happen to happen. And so as they read the script or as they see early cuts of the movie they’re like, “Just get to it already. Just get to it.”

And that pressure is the pressure of someone who does not have fresh eyes, who is not seeing this for the first time. They’re seeing it as a person who knows every frame of the movie or every word that’s going to happen. And they’re eager to get to the thing much, much quicker.

Craig: I agree. And in comedy the pressure comes down often in this way: the big funny things that happen in comedies, the big set pieces, the sequences, typically are second act stuff. You’re first act doesn’t have a lot of big crazy sequences. And so naturally there’s this feeling of, “Uh, we need to get people laughing — faster, faster to the joke stuff. Go, go, go!”

And it’s a mistake because what we know on the other side of the thing, the making of the movie thing, is that it’s the setup that makes all that stuff work. And, look, nobody wants to sit there and watch an hour of setup. But there’s nothing wrong with 25 minutes of setup.

John: Now, devil’s advocate here. I think sometimes I’ve been reading scripts where I’m in this first act and it’s like, okay, I’ve got it. I got it. I got it. You’re just giving me the same thing again and again.

Craig: Yes.

John: So, in no way are we arguing for repetition, for boring scenes, or things that feel like they’re, you know, they’re lovely bits of set dressing that’s keeping us from getting to our real story. So, I think the challenge is still on the writer to make sure that at every moment you’re flipping the page because we’re deeply engaged and want to know what’s going to happen next.

And even if that what happens next is not the thing that kicks us into the second act, we want to be curious and fascinated about what’s going to happen next with this character. What this character is going to do so that as the story progresses we are deeply invested in them.

So, it’s in no way an opportunity for those three page scenes where characters talk about their lives and backstory, because that’s just awful.

Craig: Yeah. Frankly the opposite; I always think of the first ten pages in particular as very precious real estate where you have to pack in a lot. You want to make it vibrant, and informational, and interesting, and dramatic. Everything that you do in that first act has to have a purpose and that purpose must pay off. The bud must blossom at some point in the script, or it shouldn’t be there.

And, listen: it may be that your story doesn’t need a traditional 30 page first act. And that’s fine. But if you feel like it does, do it. I do it. I mean, the script I’m writing right now, the first act ends I think on page 31. And I’m okay with that. [laughs] We’ll see what the studio thinks.

John: Now, one of the common characteristics of the break between the first act and the second act is the characters reach a new place. But I would caution people from thinking that, “Oh, that means that in my thriller I can’t have them get to the cabin in the woods until page 30.” That’s not what that means.

Craig: Right.

John: You may get to the cabin in the woods on page five. But, the nature of the relationship between the characters are what the characters are facing would make that big change at the end of the first act, which would be some time down the road. So, we get to know who the characters are, what they’re expecting, what the tensions are above them, what the normal life is for them before everything goes crazy.

Craig: Yeah. Normal life is so important. I’m a huge believer in the concept of normal life and establishing what that means for characters, even if they’re lives are circumstantially not very normal. Okay, so you have a character whose job is to be a stunt person. So, what’s their normal day? Hurling out of a fifth story window on fire and crashing into a thing full of glass. Well, that’s their normal life. Show it.

But then something is going to happen to make that even less normal later down the line. Still, you need to always show what’s normal before you show what changes.

John: So, what are some actionable things that a writer can do to push back against this 15 is the new 30 idea?

Craig: Well, I can only tell you what I do, and basically it’s to make the case. I just keep making the case. And I don’t always win. One thing that I know is that there were scenes that were put in, for instance in Identity Thief there were a couple of scenes that were requested of me in the first act that I didn’t think needed to be there. And there was one scene that was taken out that I definitely think needed to be there and it ended up hurting later.

And I can always now go back and say, “Well, let us remember the lessons of this.” But, the truth of the matter is there is no magic shield. There will be times as a professional screenwriter where you can’t keep people from making a mistake. Even if you fall on your sword, somebody else will come along and write that mistake for them.

So, but I try. I just try and make the case as patiently as I can. I find that this is where directors help, making an alliance with a director helps. Directors want to make sure that their audience gets what’s going on, gets the logic, doesn’t feel rushed through, because one side effect of rushing through a first act is that you simply care less.

What about you?

John: I will bring it up. I will try to argue for why those scenes need to be there, why that moment needs to be there, why we need to understand who this person is in that moment. That said, I tend to be a person who does move very quickly. And I get stuff started very quickly. And so Go is a movie that is essentially three first acts. The Nines is a movie that is essentially three first acts. That’s a way that I feel comfortable writing. But even if you look at those, both those movies are sort of like three short films sort of stacked next to each other.

They do have that kind of classic development where you understand what the normal life is, you understand this is the choice the character has made that has kicked us into this next section where everything is different, and this is the resolution of what’s going to happen because of the choices that they made. And so even though they move much more briskly, I’m doing the things that need to be done in those times.

And if I were to try to do that first setup that was so quick for just the little section one of Go, and make that carry us over through the whole rage of the movie, it wouldn’t work. The fact is, in Go I’m able to stop the movie, set up these three new people at a new time, and let them run in their own story.

So, I tend to want to have things go quickly. But I still get those notes sometimes. With Preacher I kept getting the notes, “We need to get to the Saint of Killers faster.” And it’s like, well, then we’re not going to know who any of these people are. And that’s going to be a very frustrating thing.

Craig: A question that I often ask when I hear somebody say, “We need to get to blah-blah-blah faster,” the question I will have in response is, “Why?” And sometimes simply asking why will put them on their heels a little bit, because the truth is they don’t know why. They’ve just been told somewhere in the factory that faster is better.

I’m okay with going faster if you can tell me why. It’s simple.

John: Yeah. Our next topic, the WGA, the Writers Guild of America, each year has to file its annual report which shows not only what its finances are but sort of what the status is of writers for film and television and a few other people who get lumped into the Writers Guild. How much they’ve made. Who got employment? What was going on in the Writers Guild this year.

And so I think we’ve talked about this; each time it has come up on the podcast, sort of where the numbers are and where the numbers are moving towards. This would have been a very smart time for me to actually have the report in front of me.

Craig: I have it in front of me.

John: So why don’t you, Craig, give us the overview of sort of what has changed from this year from the previous year?

Craig: Sure. Well, first off, a little preamble: the Guild seems to be in fine fiscal health. In fact, it ended the year with a surplus, a $4.5 million operating surplus, which of course in my mind means, hey, why don’t you reduce our dues a little bit. But, that’s never going to happen. [laughs]

So, let’s talk about what changed.

John: I did notice that the strike fund seemed to be quite healthy.

Craig: Yeah, the strike fund is just fine. [laughs] Everything is fine. Honestly, the whole thing about dues is a discussion for a later date.

But, okay, so the overall picture when we talk about writers who have been hired and how much money we’ve made, interesting from this year to last year, a little bit fewer. A little bit fewer writers were hired, down by 1%. But the amount that they earned was up by 4%, which is actually a decent jump relative to last year and the year before. But when you break it out into TV and film, two totally different pictures emerge.

John: Yeah. So, television has increased by a nice clip, which is great. There are more writers employed in television than at any point in the last six years.

Craig: Yes. Television writers, the amount that were employed is up 2.3%, and that’s on top of year, after year, after year of increases in the amount that have been employed. And, also, their earnings are up and they’re up a whopping 10%. That’s a big jump. And consider this: if you look at year, to year, to year, to year, percent change versus prior year, starting in 2008 because everything is sort of based off of 2007 here as a sort of five-year review, up 1.4%. This is earnings, up 1.4%. Up 13.8%, up 7.6%, up 7%, up 10%.

TV is crushing it. In 2007, TV writers earned $456 million. In 2012, they earned $667 million. Wow.

So, surely that kind of success has carried over to features, right? [laughs]. No. Wah. Everybody get your trombones out. Make the sad note. Here we go.

How many writers have reported earnings? We’re down 6.7% from last year in feature film. And earnings, the amount of earned, money actually that we’ve pulled in, down 6%.

Here’s the worst part of all of this: if you look compare us to 2007, where television, there are more writers compared to 2007, and we’re way up by like 50% in terms of how much TV writers have earned. Opposite situation in screen. In screen from 2007 to now, 25% fewer writers employed as screenwriters. And earnings down 35%.

So, in 2007 there were 2,041 writers who reported earnings in screen. Last year, 1,537. Incredible. In 2007, $527 million in total earnings in screen. Last year, $343 million. Yikes.

John: Yeah. It’s a bloodbath, but honestly it feels consistent with what I know from people who are actually working is that many of my… — Those TV writers didn’t just magically appear. A lot of those people are feature film writers who are now working in television. And that’s completely consistent with the people I know, is that so many people who were feature writers have now moved to television. Or they took a TV show on the side, but are still trying to do feature work, but they’re not doing the feature work, they’re just doing television.

Craig: Yeah.

John: And that’s the reality of the people who are making money right now is people who are writing on TV shows. And god bless that there are TV shows. You can’t imagine how awful this would be if those jobs didn’t exist in television, if we weren’t making more television than at any point in history.

Craig: It would be horrifying out there. When you look at in terms of residuals…

John: Yeah, we should stop and clarify for a second. So, earnings for this report, earnings means money that you’re actually making in that year for the work that you were doing in that year.

Craig: Right.

John: And because it is earnings in that year, the previous year’s numbers actually change a bit because things get reported after the fact. And so even the numbers that are coming in for this year, they’re not really final numbers. They’ll shift a bit based on people who report earnings that came in late in 2012.

Craig: That’s right. The residuals is the money that we earn on the reuse on that stuff that we write. And that is less of a snapshot of how the employment situation is and more of a snapshot of what the marketplace is like in terms of consumers, and what they’re buying, and what they’re consuming.

So, even though screenwriters have been decimated in terms of the numbers of us who are employed at all and how much we make when we are employed, residuals seems to be holding pretty steadily actually in screen. And they are up. In fact, they’re up in both. They’re up about 6% in television and 5.3% in screen. Television, you know, there’s more residuals there, which is not surprising, because there’s just so many more television shows.

What I thought was interesting as television generated $200 million in residuals. The Guild, and this is very Guildy of them — this is where sometimes they make me nuts because they get a little editorial in these things — the highlight of reuse of programs in new media, where the rental services such as Netflix and Hulu Plus drove significant growth from $4.21 million to $11.26 million in 2012. And that is impressive if you look at it just as, okay, $4.2 million to $11.26 million. Not so impressive when you look at it as $11.26 million out of $200 million.

John: Yes.

Craig: And the reason that they’re banging that drum and making such a big deal about that is because they don’t want anyone to think for a second that we had that new media strike purposelessly.

John: Yeah. So, that number was up. My question for you is: when you’re buying something off of DirecTV, like you’re buying a show off DirecTV, or you’re buying something off of iTunes, that’s not included in this new media. That’s included in home video, correct?

Craig: No, I think that they’re calling “new media rental services,” I would imagine, would cover renting on iTunes, sure. Yeah.

John: Okay. But purchasing on iTunes might be…?

Craig: That’s different. Yeah, purchasing seems to be… — I mean, I guess, it’s hard to tell, frankly, because they may be lumping all new media into this, because where they say “where the rental services such as drove significant growth,” well that means, okay, so — but driving significant growth doesn’t mean you’re solely responsible for that growth. And certainly Netflix and Hulu are “such as” not “only.”

John: Yes. So, let’s talk sort of bigger picture here. If you are a feature film writer, you are likely making less money than you were before.

Craig: Yeah. Maybe.

John: A prototypical individual screenwriter was probably making less money than they were before, either by not being employed, or by making less per draft. And that seems to be consistent with at least the writers I’m talking with.

The fact that residuals are holding steady is good news if you’ve been employed for awhile because then you actually have some movies that have a life after theatrical.

Craig: Right.

John: So, that may help tide you over. What is hard to gain any reassurance from looking at these reports is that there’s any end in sight for sort of what is going to happen to the feature film writer.

Craig: Well, there’s a little bit of an end in sight. I mean, first of all, let’s point out that your prototypical screenwriter probably doesn’t exist, that what’s happened is we’re looking at a mean average of two very different poles on a graph. It seems that the rich have gotten richer and the poor have gotten poorer when it comes to screen. That’s at least a little bit of what our surveys and some of our anecdotes tell us.

So, the bell curve has become, you know, sort of a two-hump camel. But, there’s a little bit — a little bit — of hope. And where that little tiny bit of hope comes in is in home video, because home video is the area that collapsed under screen. That was the area, that was the marketplace, that was really propping screen up and thus propping up employment, and budgets, and the amount of movies that were made.

And when it collapsed it collapsed spectacularly. So, when you look at theatrical film videos from home video, in 2007 — sorry, let’s take 2008, because that was the high mark — in 2008, $47 million roughly in home video residuals.

John: So, that indicates a very healthy home video market because we’re talking a fraction of a percent equals…

Craig: That’s right. So, as the theory went, writers get a nickel for each DVD sold. So, all those nickels for DVDs added up to $47 million in 2008. In 2011, it was down to $30 million. That’s a huge drop in just three years. It’s just precipitous. That’s what has changed this business more than anything.

However, a little tiny bit of hope: in 2008, home video actually went up 1%. And you would think that going up 1% wouldn’t be cause for celebration, but after year-on-year declines of big, big jumps in percentage, you know, from $47 million all the way down to $30 million, holding steady is a big deal.

So, if you look at 2012 to 2007, home video on the whole dropped 30%. And remember what I said our earnings dropped? 35%. I mean, and 25% fewer writers. That’s the number, to me, that is the leading indicator here is home video. And if we can hold home video I think maybe we have a chance of just holding things where they are right now and maybe not having them get worse.

John: So, let me restate your thesis in a way, make sure we’re talking about the same thing. So, with the decline in home video, studios have been spending less money on writers for theatrical films because they’re feeling the pinch and they’re feeling we’re not going to be able to make our money out of things, therefore they’re spending less in development?

Craig: Yeah. I think basically they’re saying as home video declines the amount of films we make will also decline, and therefore the amount of screenwriters we employ will decline, and the budgets of many of those projects will also decline.

John: And those numbers are borne out by the actual numbers of theatrical films the major studios have made over these past few years has genuinely declined. And so with fewer films, there’s fewer writers. And subsequently there’s also fewer films in development because they’re expecting to make fewer down the road.

Craig: That’s right. And basically they’ve declined by about a third. So, the magic number for screenwriters is a third. Things are a third down. They’re roughly a third down in terms of how many of us are hired, roughly a third down on how much money they spend on us, roughly a third down on how many movies they make, and roughly a third down on what home video is generating.

John: Now, what we said before in terms of my experience is that a lot of feature writers have moved over to television and that it’s really they’re television writers now. I think those two numbers are also closely coupled because a lot of the reason why I think our theatrical home video is down is because television is up.

People have a certain number of hours in the day. I think the fact that we’re living in maybe a golden age of television and we have better television than we’ve ever had before is making someone choose to watch Homeland rather than rent that DVD, or watch that DVD, or buy that DVD at Target for that movie. And I think those are more closely related than you might at first glance notice.

Craig: That may be true. We know that it’s not a zero sum game, that new markets can be created. Before VHS, there simply wasn’t movie viewing at home. And then suddenly everyone was watching movies at home and it became a thing.

Also, let’s recall that the purchasing or renting of movies does not equate on a one-to-one with the watching of them. That’s how Blockbuster made its fortune. People buy movies they don’t watch. [laughs] They rent movies they don’t watch. And so the fact that they don’t have as many hours in the day doesn’t necessarily stop them from buying these things.

It is our hope that things have stabilized and maybe even if we can be greedy enough for a second to be hopeful, really hopeful, that they’ve not only stabilized but that the base of home video can now support growth in new media. And new media right now just simply doesn’t generate that much money for screenwriters. Last year it generated $5 million. Home video generated $30 million.

So, for people that sit there and insist that no one buys DVDs anymore, and that the world is all about iTunes, all I can say is, no, not yet, but hopefully soon. Hopefully soon.

John: So, with that, let’s go to our third topic of today which is The Butler. So, the backstory on this, there’s a lawsuit that’s occurring between Warner Bros. and the Weinstein Company. The Weinstein Company directed by Lee Daniels called, that they want to call The Butler, which is about a butler, I think it’s about a butler in Obama’s White House who has been a butler for a tremendously long time — an African American butler.

Craig: I think it’s based on a true story.

John: Based on a true story. And so this butler who has been serving the presidents for all of these years is now serving an African American president and sort of what that change is. And that’s Lee Daniels’ film.

So, the Weinstein Company wants the title, The Butler, and Warner is saying, no, because Warner controls copyright on a 1969, sorry, 1916…

Craig: Not copyright.

John: Well, actually they do own copyright, but copyright is not the issue here. They control the title, The Butler, because they have a 1916 silent film called The Butler.

Craig: The very popular 1916 film, The Butler.

John: Which apparently has not been shown theatrically in nearly a century. It’s not even like a big, giant movie.

Craig: No, nothing from 1916 is a big, giant movie. This is absolutely a sharp stick in Harvey’s eye. There’s no question about that. There’s no value in the silent film, The Butler. Here’s what’s going on… — I mean, look, I don’t know why the sharp stick is in the eye. Hollywood is a tough place.

John: Let’s back up because I had actually blogged about this years ago, because people would write in this question, like, “I have this title that I want to use, but there’s another movie from years ago with that title. Will I be able to use it?” And the answer is generally, “Probably.”

And people think you can copyright a title. You can’t copyright a title. Copyrights exist to protect literary works and other works, but like longer works. You can’t copyright a pure idea. And you can’t copyright a title.

Craig: Right.

John: So, and if you have any questions, IMDb some common phrase and you will see there are hundred movies called Dead of Night, for example. That happens a lot.

You can trademark certain things, but not movie titles. So, you can trademark Transformers, because it was a toy line.

Craig: Yes.

John: And so there are some things which are protected because they’re trademarks. But there are very few things that are protected because of their trademark.

Rather, the system that we have set up is run by the MPAA and all the major studios are partners in this. And they have what’s called the Title Bureau. And when you are going into production on a movie you can register your title with the Title Bureau so that no one else could take that title.

But then there are negotiations if your title is considered to be too close to someone else’s title. And every time you submit your title, the other studios can say, “Uh-uh,” and raise their hands and say, “No, we do not accept that because of X, Y, or Z.”

Craig: Right.

John: I had to go through this on The Nines. When we registered our title we had complaints from this movie 9. We had a complaint from The Whole Nine Yards. A lot of people raised complaints and one-by-one they sort of gave up their complaints and everything was cool and we were able to keep the title, The Nines. It happens all the time.

Craig: All the time. Yeah.

John: That’s why it is so remarkable that this happened in this case where they would not yield.

Craig: Right. Yeah, my very first movie that I wrote with Greg Erb was called Space Cadet. And Lucas blocked it because he said he had a movie in development called Space Cadet, which he never made, obviously. So, we had to change it.

Here’s the deal with this title registration thing: everybody that’s involved in it does so voluntarily. If you’re a member of the MPAA, it’s a requirement of being a member of the MPAA, but there are actually very few studios that are true members of the MPAA, the big ones are. The little ones, like the Weinstein Company, for instance, they may not be official members of the MPAA, but they become members of the Title Registration Bureau. And by doing so they voluntarily agree to be bound by that bureau.

They say, “I am going to sign something that says that from now on I am subject to your arbitration if there’s a dispute over title.” Now, why would anyone do that? They do it because they want protection for their titles.

So, if I’m the Weinstein Company and I make, say, Pulp Fiction, I don’t want Warner Bros. to be able to put out a movie called Pulp Fiction five years later. And if you’re not part of the Title Registry Bureau, you can. So, it’s all about preservation and protecting yourself. In exchange for protection of your titles, you submit to the bureau so that other people’s titles can also be protected. In this case, it seems like the normal horse trading that goes on, the normal gentlemanly, senatorial back and forth has been pushed aside.

Typically, studios will horse trade with each other. If you file for a title, and Warner Bros. says, “Well, the thing is we have that 1916 silent movie called The Butler,” if it were Disney, Disney would call up and say, “Guys, come on. We could do that all day long to you, too. We’ve got a thousand movies in our library. Do you want us doing that next year to you? We’ll do it.”

“Nah, I don’t want you doing that to me. Let’s just agree to fight over real substantive ones.” That’s what the system is really there for.

In this case, Warner Bros., that’s why I said sharp stick in the eye, this is just vindictive. They’re just being vindictive. I don’t know why. Not my business. However, I think that Harvey is going to have a tough time here.

John: Yes. So, it is important to note that this was an arbitration, so it’s not a court case — it wasn’t a court case in this situation. But, now lawyers have been brought in. David Boies, who is a very famous attorney, was part of the team that filed the Prop 8, so I know David Boies, and he’s lovely, and great, and smart. So, he is filing these letters against Warner Bros. and against the arbitration people, the MPAA, saying, “Uh-uh, not cool. And, we’re going to keep pressing this.”

Basically, first off, by the time this podcast airs this may all be resolved, so we should talk in a more general sense, but he was arguing that the damages that Warner was claiming, so essentially Warner was going to make Weinstein Company pay a fee if they didn’t stop calling the movie The Butler, even in these promotional things up to this point.

Craig: Right.

John: Which is, again, I’m sure part of that contract that was signed.

Craig: No doubt.

John: Boies makes an interesting case, though, is that on some level does having a title really mean that you’re permanently protected in all cases forever because you have that tile. And to what degree could they claim that anything called The Butler, or having the title Butler in it is going to be protected by Warner Bros. It’s going to be like off limits for all the people for all time.

Should there be some distinction between a movie that’s actually in the public consciousness, you know, like Pulp Fiction, versus this obscure title from a long time ago. Because, otherwise people could essentially just title squat and never let a title go, become available.

Craig: And they do. I mean, look, where he is going to run into trouble are the following areas. One, the Weinstein Company voluntarily entered into an agreement to be part of this Title Registry Bureau. They did so, and accrued benefits from being a member of that bureau. So, their titles have been protected by the bureau. And in becoming members they’ve voluntarily agreed to follow the rules that say basically whatever this arbitration decides, that’s it. I mean, binding arbitration is a real thing. Thank god it’s a real thing or else the courts would be even more crowded than they are.

The notion that you don’t have to belong to the Title Registry Bureau, you do it so that your title is protected, too. So, I mean, theoretically somebody could call it The Butler if they wanted. They’d just have to now open up all their other titles to people grabbing them.

John: I have a question about sort of the — antitrust got brought up. And antitrust is not going to really kick in on this case because it’s of Weinstein’s and Warner’s and all that situation, but it does strike me as this is an agreement between all the studios to protect titles in a way that a court could look at and say, “This is not cool. This is a way of stifling individual speech, corporate speech, through this collusion of powerful entities.”

Craig: Yeah, they could. And if he makes that argument I would be surprised, because the last thing the Weinstein Company wants is to start dismantling the very valuable quasi trust protections that the business has created for itself.

Look, I’m not a lawyer. I’m certainly not an antitrust lawyer. I’m not sure that this is antitrust because it’s voluntary. You don’t have to belong to this to be able to release movies.

However, where they could run into trouble is I think you need to belong to it if you want an MPAA rating.

John: Which is a big deal…

Craig: Yeah.

John: …because without that you can’t get theatrical distribution in many markets.

Craig: Right.

John: And everything else becomes much more complicated. For a long time you couldn’t get on iTunes without an MPAA rating.

Craig: Right, exactly. Now, that I’m not sure is the case. So, I’ll have to do a little research there. But if that is the case, then I would see, well, yeah, now you’re sort of bundling a “optional service” with a not-so-optional service, because you really can’t put your movie in theaters or on iTunes if it’s not rated.

But then again, you could…

John: You could argue the antitrust thing about the whole MPAA.

Craig: Correct. That’s my point.

John: The entire entity. The ratings system is easily, has as many problems with…

Craig: More. More.

John: …with antitrust.

Craig: And I guess that’s my point, is that the ratings system has somehow survived this kind of thing. And I believe it has. There’s no chance that the title registry bureau won’t. So, anyway, I think this is — David Boies is collecting some money while Harvey gets really, really angry. [laughs] But I don’t know how they win this one.

It’s offensive…

John: On some level, have they won already just by getting the popular attention on the title fight?

Craig: I don’t think anybody cares.

John: I think maybe the fact that it’s getting some minor New York attention, it probably feels good for Harvey, about this movie that I would never have heard of if it weren’t for this. He will have to change the title. Everyone will know what the new title is, because they’ll lose the suit. Or, it will be Lee Daniels Presents The Butler. And there will be some way that they’ll phrase out of it.

Craig: No, they won’t be able to get that either. I mean, look, underneath all of this I suspect, frankly, it’s just a flat out extortion scheme that Harvey didn’t want to go along with. There have been a billion cases where basically people who are squatting on titles have gotten bought off.

I mean, I know one producer, I will not say his name, who kind of blew me away with his grossness and told me a story that he basically made lists of things that sounded like provocative titles and then went and registered them with the Title Registry Bureau.

And I think you have to sort of show that there is some minor effort towards development. And the idea was if somebody does actually develop a film with that title they have to come to him and pay him. And he said he wants to get paid like $500,000.

John: Wow.

Craig: It’s so gross.

John: That’s gross.

Charlie’s Angels, the second Charlie’s Angels movie was called Charlie’s Angels: Forever, but that didn’t test well when they just were testing titles. And so Sony I think either had a list of other titles of things they owned or controlled, or just things they thought were cool titles. And so Charlie’s Angels: Full Throttle was the one that tested the best and that became the title of the movie.

Craig: Full Throttle.

John: Full Throttle.

Craig: Full.

John: There is a motorcycle sequence in it so it kind of matters, makes some sense, but it’s just…it was tenuous.

Craig: Charlie’s Angels: Full Throttle is sort of the movie version of Extreme for Doritos. It doesn’t necessarily mean anything, but it seems good. [laughs] It’s Charlie’s Angels: Max.

John: Yeah.

Craig: Yeah.

John: Forever actually made more sense in that there were tremendous things in the script that were actually about sort of legacy and things going on…

Craig: Oh, John, no, no, no.

John: But no one cares about the deep thematic resonance…

Craig: Yeah, your themes of eternity and immortality were pushed aside because the Throttle, you see, needed to be full.

John: There was a Cirque du Soleil sequence in Charlie’s Angels for awhile that was never shot, but which would have been amazing, because you kind of want the Angels to fly, and then they could have actually flown.

Craig: That would have been cool. Why’d they cut that?

John: Yeah. Pretty. Because…

Craig: Oh, wait, I know, Half Throttle?

John: Half Throttle. All the Vegas stuff went away. And so it was at a Vegas, it was a heaven-themed Vegas casino.

Craig: Perfect.

John: It was good. And they also used to slide down the outside of the pyramid…

Craig: The Luxor, I was going to say. That’s the only casino you can slide down. Well, you know, years later yours truly was there watching a man parachute out of a helicopter. Flyover. It was close enough.

John: Fantastic. So, I wasn’t sure that in Hangover III that any of that was actually real. So, there was some help — there was some parachuting that was…?

Craig: It was real. The guy jumped out of a helicopter and parachuted over the strip. And actually did for real parachute over the Bellagio fountains.

John: I’m certain the insurance on that was crazy.

Craig: I don’t know. [laughs]

John: Not your responsibility. I love the big like not my problems.

Craig: Not my problem! I will say that the guy, the coordinator who handled that unit was awesome. Like, I just want to make a movie about that guy. And he does all the movies, I guess, and he’s just an amazing helicopter stunt pilot/parachute dude. What a life?!

John: It’s a great life.

Craig: Yeah.

John: It’s a great life until something goes wrong and you’re done.

Craig: I know.

John: But it’s a great life while you’re doing it.

Craig: While you’re doing it.

John: Yeah.

Craig, it’s time for our One Cool Things.

Craig: Oh god. Do yours. [laughs]

John: I’ll do mine first. Mine was, I think, also sent to me by Rawson Thurber who gets the MVP award for like helping support the podcast this week. He sent this thing called The Hero’s Journey by Glove and Boots. And it’s these puppets who are talking about Joseph Campbell’s Monomyth, the hero’s journey, and sort of like what it actually means in movies.

And so the movie that they’re actually sort of talking through is Happy Gilmore, which seems like a real stretch for it, but they have a plausible case. And I thought it was a really good introduction to sort of like what the Joseph Campbell Monomyth is and sort of what we talk about when we mean they call it the adventure and these are the kinds of characters who you see in this thing.

What I don’t think it does an especially good job at is the reality checking of not every great movie has the Joseph Campbell arch and Monomyth in it. And many movies that are terrible actually try to hit all those things and it doesn’t really work. So, it’s not a formula that guarantees that you will have a good movie, but it’s an interesting pattern you can see in many movies that you love, and it’s an interesting way of thinking about sort of what is a classic hero’s journey in film.

So, I would recommend that and it’s funny and goofy. And it reminded me of Wonder Showzen, which was a great show. For all I know it could be some of the same people doing it. But it was a good, fun thing. It was a little YouTube video worth your six minutes.

Craig: I’ll check that out. I do have a Cool Thing. I’ve been holding this one back for awhile, because again, I hate praising — myself or anyone. But I have a friend named Ken White. He’s a lawyer. He’s a defense attorney actually here in Southern California. I give him a lot of crap about defending criminals and all the rest, although somebody has to do it, right?

John: Yeah.

Craig: Ken is one of them, maybe the principal author, of a multi-author blog called Popehat. Popehat. Popehat.com.

And what I love about Ken is he’s — I mean, politically he and I are very similar. Just sort of strong libertarian streaks, no party allegiance, not afraid to point our fingers at anyone and go, pfft, like that. And he is an excellent writer. He’s an excellent writer and very good at explaining legal things. And there was one saga that he followed, I don’t if you were familiar with the Prenda Law case.

John: I don’t know what that is.

Craig: So, there’s this whole thing about these copyright trolls, where these companies will buy up copyrights that are essentially worthless and then go after people who are maybe pirating them or maybe not, and just extorting settlement fees out of them.

And there was this company, Prenda, that basically, they were a law firm. And what they did was they…

John: By the way, Prenda is such a made up name.

Craig: Isn’t it amazing, right? Prenda.

So, Prenda is a law firm. And this law firm decided, “Look at all the money we can make. What we’re going to do is we’re going to basically start a shell company, as lawyers we’re going to start a shell company that will represent,” this is already a no-no. “That shell company will buy up a bunch of useless copyright for porn. Old copyright porn, okay. And then we’re going to go and basically find some ding-a-ling somewhere that downloaded four minutes of that porn, or not, send them a threatening letter and say basically you need to settle with us.”

And it was an amazing scam, because who wants to actually go to court over their porn downloading? Except one guy did. And oh my god did Prenda Law get their asses handed to them. And Ken just covered it beautifully and wrote about it in such a great, clear, instructional way, with plenty of doses of anger. And all the things you could want from a wonderful internet nerd. He is a great guy. And so I recommend that you all check out Popehat.com.

John: Fantastic. So, links to Popehat.com and this Hero’s Journey clip on YouTube and all the things we were talking about on today’s podcast you can find at johnaugust.com/podcast.

If you have a question for us, if it’s longer you can write to ask@johnaugust.com. And Stuart sort of sorts through those and helps find the good questions out of those batches. But if you have a small thing you want to say to Craig or to me, Craig is @clmazin on Twitter. I am @johnaugust on Twitter.

We have a Facebook page that we never actually mention, but people sometimes come there and like us.

Craig: They do?

John: We do have a Facebook page.

Craig: Huh. I’m plugged in as always.

John: Yeah. If you are listening to this in iTunes and want to give us a rating, that would be fantastic. We’d love that. It helps other people find our show. If you are not listening to us on iTunes, it would be great if you subscribed, because that way we would sort of know how many people are out there listening to our show.

And I think that’s it.

Craig: I think we should get Bon Jovi to sing us out.

John: That would be fantastic.

Craig: We’re the Bon Jovi of screenwriting podcasts.

John: Yes. So, actually we have like two minutes here so I’m going to just launch into this right now. Because one of the things I want to be doing after this 100 episode madness has cleared is originally when I was doing the outros for these shows I would like find some goofy thing on YouTube that seemed to be about what we were talking about. And I would use that audio as the outro, which was fun, but I didn’t actually clear any of those clips.

And so in backups we’ve clipped that out because like, eh, I would hate for some weirdo, some Prenda Law person to come after for me using that.

Craig: Prenda.

John: So, what I’ve started doing is just took our [hums theme] theme and just built that into different little arrangements in GarageBand, which was fun and goofy for me to do. But, I would love some of our listeners to do the same kind of thing, and to give us an outro that uses [hums theme], and build something cool out of it.

So, if listeners would like to do that, the same address I gave to you before, ask@johnaugust.com, is the perfect place to do that. And just send us a link to something you’ve made.

Craig: Nice.

John: We’ll have more details up at some point with — it’s not a competition, it’s just an exhibition of…

Craig: It’s a competition. I’ll be judging. [laughs]

John: Craig will be silently judging what people are doing.

Craig: Silently judging.

John: But I really mean just if you have an interesting sound or a free couple hours on a Saturday and want to do something, I have a hunch that we have some very talented listeners who are not just writers, but who can also do musical kind of things.

Craig: Yeah, man.

John: So, if anyone would like to do a little outro, to be less than 30 seconds. It should be accessible to us in some way as a mp3 file so we can clip it onto the end of this. And if we do use your thing we will give you a link and a shout out in the show.

Craig: Nice! Man, this podcast is getting good. It took us 97 episodes. I feel like we’re just about there to good.

John: We’re in a pretty good place. I think in the Behind the Podcast we’re almost at a place where “and then drugs came into the picture.”

Craig: Oh, exactly, like, “Everything was going great, and then…” This is it, oh, listen to that. The drugs [sirens blare in background]…they’re coming for me. Drugs.

Well, listen, the drugs will be kicking in. That’s the title of this podcast. [laughs] And then the drugs kicked in.

John: All right, Craig, have yourself a great week.

Craig: You, too, man. Bye.

John: I’ll talk to you next time.

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