13 April 2019

Well-Merited Pink Slips

So the WGA and Association of Talent Agents have reached an impasse over the ATA's inherent conflicts of interest. The WGA has directed its union members to fire agencies and agents who won't sign a no-conflict-of-interest agreement.

To the general public, this sounds like a union just trying to enforce a closed shop that it doesn't deserve for greedy members. What the public forgets, though, is that most unions didn't arise due (solely) to compensation issues; indeed, most unions in industry arose due to working conditions and other management abuses, and only after some progress had been made on working conditions did pay become the issue most ballied about. In this particular instance, the agencies continue to demonstrate that they just don't understand the actual subject of the grievance:

“Unfortunately, not to our surprise, the WGA did not accept our offer, did not provide counterproposals and refused to negotiate further. We’re prepared to continue to fight for the best interests of writers and all artists,” said Karen Stuart, the executive director of the Assn. of Talent Agents, the organization that represents the agencies.

This tone-deaf response demonstrates, quite specifically, exactly what the WGA is objecting to: Failure of the agents and agencies to place the interests of their writer-clients first. "All artists" my fungus-ridden left big toenail (oops, don't have one to be fungus-ridden, never mind). When you are representing Janilla Youngwriter, you may not subordinate Jenilla's interests (financial and otherwise) to those of your other client Kenneth Establishedwriter; even the veriest moron understands that. Equally, though, you may not negotiate reduced compensation for Janilla as part of a package that also benefits Oliver Oldwhiteactor, Don Director, Peter Producer, Paul Producer, and not incidentally the Agency as a production partner (even if not credited as such in the formal credits1).

Yes, it's the way H'wood has operated for half a century… since about the time a previous antitrust action took cinemas away from the film studios, which was a last straw in attacking one aspect of abuse of market power in H'wood. This finalized the shift in "where the money is" to include more than just the studios. That historical reliance — what old-school contract scholars call "the settled expectations of the parties" — doesn't, in either economic or moral senses, matter. After all, whitewashing and whiteface are historical reliance, too, some more subtle than Al Jolson (such as casting Hispanic Henry Silva as a North Korean assassin with virtually no comment). The Black List was and remains historical reliance. <SARCASM> So is/was the respect offered the Don… and market value at slave auctions… and the divine right of kings. None of which we've really escaped on current evidence. </SARCASM>

The agencies attempted to raise a smokescreen by claiming that the WGA's stopgap would violate California's Talent Agencies Act by getting persons who haven't registered as "agents" to procure work for writers.2 There are exactly no qualifications for doing so other than "character and responsibility of the applicant and premises" (see Cal. Labor Code § 1700.7) and identifying the persons and business entities involved along with fingerprints (id. § 1700.6)… and agreement not to take outside investment (id. § 1700.30) or fee divisions that create a facial conflict of interest (id. § 1700.39), and Guild agreements limit the fee to 10% plus allowable expenses. (Given the behavior of some agents — not to mention utter incompetence with contract negotiations — the lack of qualifications shouldn't surprise anyone. And it's more regulation than literary agencies!) And a license costs a whole $25 filing fee plus $275 a year (id. § 1700.12).

The agencies continue to demonstrate that they couldn't spell "conflict of interest" if spotted the first dozen letters or so. However much I believe the WGA has been coopted and fails to fully work on behalf of writers in general, this time the WGA is both ethically and economically in the right. Now someone tell me again about H'wood being a pinko-liberal system when so much power is held by agencies acting like nineteenth-century robber barons and twentieth-century zaibatsu?

  1. I am not going to defend the crediting practices in H'wood. Neither am I going to attack them in detail — at least not today. Their quantification and quantization are fundamentally dishonest and disrespectful of art… and that's one of their good points. This particular practice is an example: ATA agencies taking what is functionally a producer's credit while not being disclosed as such.
  2. The agencies' analysis is fatally flawed for a number of technical reasons and one extremely simple one: Neither the statute nor the case law prohibits an "unregistered" third party from assisting Talent with contract negotiation once an agreement in principle has already been reached to employ that Talent. And it can't. Besides, that's arguably the practice of law, which is outside the scope of the Labor Code entirely.

    The letterhead of the threat letter is itself highly revealing, but that's the insiderest of inside baseball.