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Union Strikes, Hollywood Style

By S. Asra Husain

The Writers Guild of America recently made history by striking, and bringing a halt to the production of television shows in Hollywood.  The Writers Guild of America East and the Writers Guild of America West came together to gain rights in new media distribution of their work. [1]  This article will look at this instance of a union strike and discuss the law surrounding union strikes in the United States.

The Writers Guilds were predated by the Authors League of America, which was founded in 1912. [2]  This organization turned in the Screen Writers Guild in 1920. [3]  The Guild organized in response to cuts being made by movie studios to reduce the pay of writers and actors during the Great Depression. [4] In 1954, after many disagreements by the different writers groups within the Guild, the factions of television, movie and radio writers came together to form the Writers Guild of America. [5]  The Guild works to represent writers of movies, television and new media in negotiations with producers, namely to determine crediting and residuals for writers, educating Guild members and the public and lobbying legislatures in the interest of the Guild's members. [6]

A new issue that has arisen with the Writers Guild of America is how to deal with new media and compensation.  Many writers are compensated for their work on writing televisions shows and movies.  As a result of past negotiations, the residuals for subsequent sales of these shows and movies on DVD and in syndication have been awarded to the writers.  With the increasing use of the internet and studio use of websites to allow viewers to watch televisions shows at their leisure, the Writers Guild has questioned the lack of compensation that they have received for new media use of their product. [7]  The Guild decided to strike after negotiations that began in July 2007 regarding compensation and residuals for new media as well as DVD sales, contract negotiation and Writers Guild of America jurisdiction fell through. [8]  The members of the Writers Guild of America East and West both were given the green light to strike when the contracts expired on October 31, 2007. [9]

The Guild had gone on strike before in 1988.  That strike lasted for five months and was the result of disagreements regarding residuals. [10]  The 1988 strike cost the industry a reported $500 million in the 22 weeks that it lasted, causing the industry to change radically. [11]  During this period, television stations began to use alternative programming, giving rise to reality shows such as Cops and news magazine programs such as 48 Hours. [12]  A similar change was seen in the landscape of television following the recent Writers Guild strike.  Many stations turned to reruns, reality television shows and movies to fill their schedules and keep viewers tuned in.  [13]

The demands of the Writers Guild members raise questions regarding intellectual property law as well as employment and labor law.  Writers are usually afforded proprietary rights in their work as a result of the power of Congress to afford writers "the exclusive right to their respective writings and discoveries" as a means to promote progress in the arts. [14]  Prior to collective bargaining agreements by the Writers Guild of America, the 1976 Copyright Act gave employers of writers for movies and television the proprietary power over the works created under employ. [15]  The Minimum Basic Agreement (MBA) was negotiated by the Writers Guild of America as a means to create a separation of rights for the writers and therefore allowing them rights that the Copyright Act did not. [16]  The MBA allows production companies exclusive rights to scripts that are written under contract for them for a certain amount of time, and after that time both the writer and the company share a nonexclusive right to produce the property. [17]  The test for separated rights requires that the writer writes an original story, which can include a story or screenplay. [18]

The question of rights regarding to the use of Writers Guild member products on the internet was one of the main points leading to the writers' strike in November.  An unfair labor practice strike is one that is prompted by an unfair practice by an employer and not as a result of wage disputes. [19] In this case, the dispute may be deemed as an unfair labor practice strike because there was an issue of the writers' statutory rights in regard to copyrighted material being placed on websites.

In February of this year, the Writers Guild West and East membership voted 92.5% in favor of ending the writers strike. [20] The strike lasted about 100 days and was discussed often in the news in this period.  A new agreement between producers and writers was reached in late February, but did not accomplish the writers' goals regarding viewing of television on line and cable television.  The new agreement allows for a 17-24 day window for promotional viewing of television shows on line and in other forums and did not make any improvements in the area of cable television. [21]  This new agreement will remain in effect until May 2011. [22]  Television shows written after the strike agreement went into force should be on television in early April of this year. [23]

[1] Michael Cieply, David Carr, Brooks Barnes, Screenwriters on Strike Over Stake in New Media, NyTIMES.COM, Nov. 6, 2007, http://www.nytimes.com/2007/11/06/business/media/06strike.html?pagewanted=1&_r=1&ref=movies.

[2] Hugh Lovell & Tasile Carter, Collective Bargaining in the Motion Picture Industry: A Struggle for Stability, AMERICAN LAW INSTITUTE, Jan.25-27, 2007.

[3] Id.

[4] Writers Guild of America, Guide to the Guild, 12, http://www.wga.org/uploadedFiles/who_we_are/fyicame.pdf

[5] Writers Guild of America, supra note 4, at 13.

[6] Writers Guild of America, supra note 4, at 1.

[7] Gregg Mitchell, Writers Guild Strike Authorization Vote Passes by Resounding Majority, Oct. 19, 2007, http://www.wga.org/subpage_newsevents.aspx?id=2505.

[8] Id.

[9] Id.

[10] Gabriel Spitzer, Ouch! Remembering the 1988 Writers' Strike, MEDIA LIFE MAGAZINE, Jan. 2001, http://www.medialifemagazine.com/news2001/jan01/jan15/3_wed/news3wednesday.html.

[11] Recalling 1988 Strike, Nov. 2, 2007, http://www.showbuzz.cbsnews.com/stories/2007/11/02/tv/main3447509.shtml

[12] Id.

[13] Cieply, supra at note 1.

[14] Grace Reiner, Seperation of Rights for Screen and Television Writers, LOS ANGELES LAWYER, Apr. 2001, 28.

[15] Reiner, supra note 14, at 29.

[16] Reiner, supra note 14, at 30.

[17] Id.

[18] Minimum Basic Agreement, art. 16.A.2

[19] 48B Am. Jur. 2d Labor and Labor Relations Sec. 2615.

[20]Gregg Mitchell, Writers Guild Members Vote to End Strike, Feb. 12, 2008, http://www.wga.org/subpage_newsevents.aspx?id=2775.

[21] Dave McNary, WGA Talks Ratification, VARIETY, Feb. 25, 2008, http://www.variety.com/article/VR1117981456.html?categoryid=2821&cs=1.

[22] Id.

[23] Lacey Rose, Welcome Back TV!, FORBES.COM, Mar.5, 2008, http://www.forbes.com/business/2008/03/05/television-hollywood-networks-biz-media-cx_lr_0305tv.html.

Full post as published by The Journal of the Business Law Society on April 04, 2008 (boomark / email).