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Why I’m Voting Yes on the WGA Agency Code of Conduct

March 28, 2019

The Writer’s Guild of America is currently holding a vote on whether or not to institute a Code of Conduct for agencies that represent Guild members. I’m voting yes. In this post, I’m going to explain why and rebut some common arguments I’ve heard against the Guild’s initiative.

First, if you’re wondering what the heck all this is about, check out this explainer video:

In short: Rather than be paid by us directly, via commissions, the agencies now compel nearly every television show to pay them a “packaging fee”: 3% taken directly out of the budget, as well as backend points. This is a conflict of interest, because the people who negotiate our salaries are now being paid by our bosses. It also happens to be illegal: According to the California Labor Code, “No talent agency shall divide fees with an employer, an agent or other employee of an employer.”

I love my agents. They are wonderful people, and they work hard for me every day. But as we all know, when the corporate system you’re enmeshed in is unfair and coercive, being a good person doesn’t fix the problem. The way the agency business has changed on the corporate level is bad for writers and all other creators in the industry, and the Guild is right to try to stop it.

Here are some common arguments I’ve heard against the Guild’s attempt to change these conflicted practices, and my responses. (Please note that I do not work in film; thus my answers primarily relate to how these issues affect writing in television.)

“You’ll Never Get That Money Back”

This argument is generally made by folks who work in the cut-throat world of cable television, where budgets are razor-thin and the networks’ are under constant pressure to get their dollar-per-minute cost as low as they can. In such an environment, the argument goes, giving the network a reprieve from the 3% packaging tax wouldn’t cause them to use that money to make more episodes of TV or pay writers more; instead, it would be spent on food trucks at launch parties, or worse, find its way back to the paws of network fat cats who’d use it to line their golden litterboxes.

I happen to work on such a show. Every year when we go into production, I have to fight for every line item in my budget. Everything that can be cut, will be cut, without question; the only items that are left are those that are absolutely uncuttable.

So ask yourself this: Why, then, does the agencies’ 3% packaging fee survive? In an environment where anything that can be cut will be cut, what service is the agencies providing that is totally irreplaceable? What, in other words, is their leverage?

Putatively, the packaging fee is supposed to represent the effort the agencies put into combining multiple talents on a single project. But in practical terms, we know that this rarely occurs as advertised. When my agency successfully packaged a pilot I created, I was literally the only piece of talent on the show. There was no “package” – it was just me. Despite this, the agency was able to procure a packaging fee. This, we all know, is common.

So again, what is the agencies’ leverage? They’re not shooting the show. They’re not dressing the sets. They’re not cutting the tape. What leverage do they have that allows them to demand a 3% fee when they provide no material service to the production? Simple: We, the writers, are irreplaceable. But since the agency is our exclusive bargaining representative, they can refuse to close a deal with us unless they get their 3%. Simply put, they are holding our services ransom to procure their fee.

This means that in real terms, the leverage they are using is our leverage. We earned it by being so funny, hardworking, and pleasant to work with that we are irreplaceable; they did not. But instead of using that leverage to enrich us, they are using it to enrich themselves.

So why will that 3% (and let’s not forget the backend, of course) come back to us in the end? Because, in the end, it’s our leverage that is being used to procure it in the first place. Which means that in a real sense, it’s our money: we’ve simply been allowing the agencies to commandeer it.

Under the 10% system, we were the customers, paying the agencies for the valuable service of employing our leverage to increase our salaries. But not any more. There’s an adage in the tech world: If you’re not paying for a service, you’re not the customer. You’re the product. Instead of paying the agencies to act on our behalf, the packaging fee system allows the agencies to sell us to the studios and networks in exchange for rents that go directly into their pockets.

But guess what? If they’re able to use our leverage to enrich themselves, then they are certainly capable of using it to benefit writers instead. Making sure they do is what the Guild hopes to accomplish.

Can I guarantee that reshaping this relationship will result in higher wages for writers in the near term? No. But the relationship between the leverage we’re allowing the agencies to hijack and the money that they make is quite clear. We need to change the flow of the river if we want the water to go to a different place.

“The Guild Can’t Guarantee that Writer Salaries Will Increase As a Result of This Move”

This is true. No one can predict the future. But predicting exactly what will happen to the 3% is not the point. The real stakes here are ones of principle: what sort of conflicts of interest will we allow to those who exclusively represent us?

Let’s look at the question in a different way. What is the Guild actually doing, in legal terms, by imposing a Code of Conduct on the agencies?

Under labor law, the Guild is the only body that can legally bargain for us. That’s the nature of a collective bargaining agreement. We gave the Guild that exclusive right when we joined.

However, for the past few decades, the Guild has elected to extend the right to negotiate above-scale pay to the agencies. This right is ours, as a Guild, to grant or revoke.

That means that there are essentially two bodies that can legally represent us in salary negotiations: The Guild, and the agencies.

Imagine the following hypothetical. What if, instead of receiving dues from members, the Guild made a side-deal with the studios to be paid by them instead? Would you have faith that the Guild was representing the interests of writers in such an arrangement?

Of course not. Conflict of interest is too strong a word for it; it would constitute a reversal of interest, converting the Guild from an advocate for labor into an advocate for management. The next time contract negotiations came around, and the studios and networks said, “We can’t afford a scale increase! That would jeopardize our budgets,” whose side do you think they would be on, when the budget is what they get paid out of?

This is the situation we are in with the agencies; and until now, the Guild has permitted it. To put it in simple terms: The bodies the Guild has designated as our exclusive negotiators have allied themselves with management, not labor. The people who negotiate on your behalf are not paid by you; they are paid by your bosses. Why is this a state of affairs that the Guild should permit? More importantly, why should we, as Guild members, even be comfortable paying dues to a Guild that allows it?

If there is a good reason to justify such an arrangement, I haven’t heard one yet. Just as I don’t believe in working with a lawyer who’s being paid by my opposition, or an accountant who’s being paid by the IRS, I don’t believe in working with a negotiator who’s being paid by my boss. I can’t promise that ending the practice will result in higher wages; I simply think it’s a bad way to do business, and that nothing good can come from it. That’s why I intend to vote yes.

If the majority of the Guild votes the same way, the Guild will, for the first time, implement a Code of Conduct. The Code is simple: It states that the exclusive right to negotiate on behalf of writers will only be extended to organizations which are paid by us, not by our bosses.

To me, this is simple common sense. It requires no hard proof of guaranteed gains to make an argument for it; everything I know about how to do business tells me that it’s the better, wiser choice.

Rather, I believe the burden of proof is on the opposing side: Why should we allow anything else?

“This Will Hurt Lower- and Mid-Level Writers the Most”

There is no doubt that being without an agent is an uncomfortable prospect, especially for writers who only recently procured representation and felt that doing so was a major step up in their careers. But in my view, even for those writers this is a worthwhile and necessary step.

First of all, package fees and agencies conflicts of interest actually hurt low- and mid-tier writers the most. As the WGA’s video points out, it’s those salaries that have fallen most precipitously. Why? Because they are most vulnerable to the lopsided incentive structures created by packaging fees. High-powered showrunners and screenwriters are able to dictate terms to their agencies; writers in the first few years of their careers are not.

Secondly: This is not a strike. If the agencies refuse to sign the Code of Conduct and can no longer represent us on April 7th, there will still be just as many television shows that need writers, and just as many writers will be hired to fill those slots.

Yes, there will be disruptions to the normal process by which we apply for those positions, but those disruptions are manageable. The Guild has created an online tool that will allow members to submit themselves for consideration to shows, and that allow showrunners to read and sort those applications. Considering that the role agents play in hiring is to connect candidates with showrunners, this should help close most of the gap. Many showrunners, including myself, have already signed on to use the Guild’s the next time we are hiring; I can say with certainty that any Guild member who wants to apply to work on a show I’m running will be able to do so whether or not they have an agent.

Again – no one is downplaying that working without agents will be disruptive. But I’ll take it over a strike any day. And the benefit to every writer in the Guild is potentially just as great. And in the meantime, writers will come together to support each other.

I want to say it again: I love my agents. I hope that the Guild and the ATA will be able to find a negotiated solution, and that their agency will not force them to leave me as a client. But I believe that the Guild’s cause here is correct, and that they are right to take it on. That’s why I voted “Yes” on the Code of Conduct today.