The 401st Blow :: Thoughts On Media

Why Unions Are Not Your Friend

Posted in Distribution, Law, Policy, Rant, Software, Theory by Noah Harlan on March 23, 2010

Dear Reader,

Unions are the enemy of independent film.

I know, I know, they have “indie” deals but at the end of the day, they are your enemy. And now it is starting to show.

Craig Mazin is a very successful screenwriter (SCARY MOVIE 3 & 4) & sometime director (SUPERHERO MOVIE) and the author of a blog that I really enjoy, The Artful Writer. It is definitely worth adding to your RSS feed as he has lots of good insights. Craig is also a former board member of the WGA West and last week he wrote a post On Net Neutrality…

In his post, Craig makes an interesting argument against net neutrality legislation and in particular, WGAw current board member Carleton Eastlake’s assertion that the WGAw should support net neutrality.  Below are some of Mazin’s points from the post and some of my thoughts. But where it really gets interesting is in the comment section which I highlight below. But let’s start with the content of the post:

if we do not have net neutrality, it’s quite easy to see how the major ISP’s could, as part of content provision deals with the studios, throttle or completely block out the major P2P channels. In fact, the efficacy with which this could be accomplished is one of the battle criesfor net neutrality by those who support it. This isn’t a question of conjecture.

Mazin is arguing here that the best thing for writers (and content creators in general) is to let the major ISP’s strike deals with studios as that will ensure that the ISP’s will pay the studios for that content and the studios will pass that money on to the creators.  Craig is being incredibly optimistic here. First, he’s assuming that the ISPs will be paying the studios and not that the studios will be paying the ISPs NOT to be slowed. If I’m an ISP, what’s to stop me from going to each studio and saying: “Hey there, that’s a mighty nice set of films you have there. Would be real shame if something were to slow them down… hehehe”. If Craig would like proof of who is setting payments, take a look at iTunes. You want on the best distribution network out there, you have to play by their rules. You don’t want on the network, fine, you can go sit with all the other people making fortunes in the Capitol Records building these days.

Oh wait… I forgot…. *crickets*

Then Craig is assuming that the studios will share that revenue in a reasonable way. But the reality is that that revenue (if there is any) won’t be generated film by film, it will be an overall deal. A blanket payment for content. How do you, as a content creator, ensure that you’re getting a fare cut of it. This is a fair pricing issue and one which is far more complex than anything the unions have encountered as it doesn’t involve the sale of content. It involves the speed of data. Craig continues:

I’m a big believer in free speech on the internet. However, let’s be honest about P2P networks. They exist almost primarily to circumvent licensing agreements on software, music and video. And they’re stealing money from writers every day. What an odd institution for the WGA to be defending…

Craig’s just wrong here. Some networks are dominated by illegal file sharing but others don’t have any. Take Skype. Yep, the calling service. Guess what, it’s P2P. How about Chat Roulette, the hot site of the moment? Yep, P2P as well. And there are dozens of other examples. If you pass judgement on the whole set of P2P as illegitimate you’re shutting down innovation because you aren’t smart enough to enforce your laws effectively. It’s akin to saying that we should ban highways because a lot of people speed. There are even people using the most “dangerous” of the P2P networks and turning them into powerful marketing and distribution networks for their work. Check out Jamie King’s Vodo if you want to see how that can work. Criags argument is what happens when people who don’t understand technology try to come up with 20th Century solutions to 21st Century issues.

Then comes this exchange with Carleton which I think gets to the most interesting point. First Carleton:

As for maximizing the revenue of the surviving major media companies on the net by allowing a degree of monopolization, that’s a point I’m ready to debate. I agree that no one should want out of spite to reduce the revenue pool that writers and other talent share in from the major companies. But I’d much rather see independent and specialty production and distribution companies also thrive on the Net. Having worked for several years at Cannell, a successful writer-owned TV production and distribution company that expired along with fin-syn “broadcast neutrality”, to coin an analogy, I’ve directly experienced the model of how net neutrality can restore an era of independent production that creates enormous opportunity -and revenue – for writers.

And now Craig’s response:

This is kind of shocking, coming from a board member of the WGAw. Let me get this straight. You favor the economic prospects of individual EMPLOYERS over the economic prospects of individual EMPLOYEES? Cannell the man was a writer. Cannell the company was an employer. As union members, our interests have to first run to the employees, Carleton. I, for instance, write movies for studios. My salary generates dues and P&H contributions to the union. Are you honestly saying that my financial bottom line is less important than the financial bottom line of a company hiring writers for an internet show?

See, the thing is, we’re writers until we’re not writers. The day I create The Mazin Internet Studio and launch a web show and hire writers to write on that web show, I’m an employer. I’m on the other side of the table. That’s not to say that I can’t be a good guy. However, it is to say that my interests as an employer shouldn’t be anywhere in the same galaxy of concern for the WGA as the interests of my employees.

In short, while I think it’s nice that writers can be as entrepreneurial on the web as they wish, the Writers Guild of America has to serve its primary function, which is to protect my interests as an employee. That’s what it’s federally chartered to do. That’s what all labor unions do. It’s fine for the WGA to help its employees grow into businesspeople, but not at the expense of the writers who still get hired to write.

Yes, we want to make sure that there are lots of employers for our services, and in that regard, I understand the desire to avoid anything that feels like it will throttle competition between the employers. But let’s be real…the companies that will challenge Fox, Disney, Sony, Universal, Paramount and Warner Brothers aren’t internet shops set up by individual writers. It’s the other big monsters out there like Microsoft, Google, Clear Channel, etc.

This inspired the following exchange between Craig & I in the comments. First from me (with some edits to avoid repeating points I just made above):

Your proposal to hand over arbitration of download speeds to companies like Verizon and Time Warner means ensuring that independent artists remain out in the cold. Why would Time Warner allow these artist’s work to come over their pipes if they could, instead, throttle that content in favor of work they have a greater profit incentive for. Your position on this Craig is basically saying to independent artists that unless they sign up with a major studio that audiences shouldn’t have the same access to their work.

I am mildly opposed to Net Neutrality legislation for legal reasons (I think it is potentially an unfair restriction on commerce) and I think that companies that choose to create walled gardens of preferred content will ultimately shrink and die under market pressure. We all forget, we’ve seen this before.

AOL once believed that they knew what parts of the internet we would like best and chose to give that, and only that, to us. Then upstart service providers came along and offered people open pipes to any content they wanted.

We know who won that war.

Craig’s response (emphasis added is mine):

With all due respect to my fellow writers who work outside of the studio system, I don’t. I work within it. The WGAw is designed primarily to represent writers who work within the studio system. The vast majority of the WGAw’s financial resources are derived from writers who work within the studio system. Our pension and health is funded by the studios.

So yeah, my opinion is that the WGAw should be more concerned with promoting those of us who work within the studio system. Sure.

So apparently all writers in the WGAw are equal, but some are more equal than others. My response:

But to your point Craig, you are saying not that “it’s best at getting us paid” but, rather, “it’s function should be to ensure those of us who are paid the most continue to be paid the most. If you don’t make as much as me then the Union should be less interested in your opportunities.”

Is the function of a union primarily to help maintain the lifestyle of those who are best off in the union or to ensure that those who are most in need of defense in the union have that defense. Your argument is the former.

By that logic SAG should only do what is in the interest of the top 5% (the WGAw probably the same) since they provide the vast lion’s share of the money to the union – heck, why even bother with covering background actors? I guess I’m surprised to hear that the Union should only support the interests of those who pay it the most in residuals.

I understand your point of view and certainly why it makes sense to you. I respect it. I guess it’s just interesting to hear that the union should prioritize the interests the wealthiest parts of its membership.

In the context of this argument, why should the WGA have it’s low-budget agreements at all?

Craig responds:

Not at all. Not sure how you got that.

My argument is that anyone earning a minimum as part of a Guild job deserves to be defended by the Guild. AND my argument is that virtually all of those people currently work for the studios. AND my argument is that the day any of those people start their own internet production company, they’re no longer someone the Guild must defend for, but rather defend against, because they’ll be employers.

It’s not rich vs. poor. It’s employees vs. employers. Or, I suppose…professional studio writers vs. independent non-studio writers.

Now this sounds reasonable at first blush. But hang on a second. If you have points on a film, points above scale, aren’t you a form of an owner. You have a profit interest in the film that is on a par with the owners of that film. Furthermore, it highlights a serious shortcoming of the WGA, DGA and SAG. The very premise of a union is predicated on the idea of collective bargaining. You take groups of people who have no capacity to individually bargain for better terms and you bundle them all together.

If you work on an assembly line in Michigan and you demand $1 an hour more than you’re being paid now they could fire you and replace you with someone else who can do your job. You have no individual value and thus no capacity to individually bargain. You are replaceable. But that’s not the case with a writer. Diablo Cody writes Juno and gets an Oscar. The next film she writes she gets paid WAY above scale because she now has individual bargaining power. What then is the purposes of the union? In Craig’s world the union is a collection agent. It’s there to do accounting work. But that’s not what they’re built for. Craig is asserting that unions should represent the interests of the members who contribute the most, but those members generally aren’t subject to the minimums that the union bargains for since they are the individual bargainers. Jack Nicholson or Tom Cruise gain nothing from being members of SAG. Joe Schmoe who just moved to Hollywood gains a a lot, but Craig says that he who pays the most should get the best terms.

My response to Craig:

What about the writer who receives points beyond basic residuals? They should now be considered someone to defend against as well, no? They are now a part of the production entity with an ongoing profit interest in the work that is in line with the producers (employers) and now should be treated as such.

You carve out an interesting role for the WGA with the following criteria for union support:

1) You must work with studios.

2) You must not have an ownership interest in your work.

Again, there is a logic to that position it just seems to narrow the role of the union and ensure that up and coming writers will likely want nothing to do with it until they’ve signed (an increasingly elusive) studio deal.

[snip – diversion section here on union history]

Also, I put the question back to you, since you say “professional studio writers vs. independent non-studio writers” – what then is the point of the low budget agreements?

Craig never answered that question.

So I ask you, what is the point of the union for the independent world if it’s primary function, according to members of it’s board, should be to represent the interests of those who earn the most by working for studios and don’t own their content in any way?

Thoughts?

Advertisements

4 Responses

Subscribe to comments with RSS.

  1. Brian Chirls said, on March 23, 2010 at 11:28 pm

    Noah,

    This is a well thought-out post and you make some great points.

    There is another problem with Magin’s point here:
    “the companies that will challenge Fox, Disney, Sony, Universal, Paramount and Warner Brothers aren’t internet shops set up by individual writers. It’s the other big monsters out there like Microsoft, Google, Clear Channel, etc.”

    Beyond the issues of principal around Net Neutrality which so many of us have been debating for years, this point fails purely as a matter of practicality. The power of a union depends on there being more suppliers of jobs than there are suppliers of employees to fill those jobs. Google is the single best example of a monster whose very creation depended on Net Neutrality. Writers as well as the rest of us depend on an open network to allow the growth of many future Googles to come up with new ways to hire us, buy our product and help us reach audiences, especially as the mini majors die away and the major majors make fewer and fewer productions.

    Also, a note on your comment on AOL:
    “I am mildly opposed to Net Neutrality legislation…and I think that companies that choose to create walled gardens of preferred content will ultimately shrink and die under market pressure.”

    You do make a good point here about the walled gardens being endangered. Take a look at what the Mozilla Foundation is doing, especially with drumbeat (http://www.drumbeat.org/). As a very smart participant explained to me the other day, the purpose of Mozilla is not to build a web browser; the point is to keep the Internet open and drive competition by demonstrating that openness leads to better innovation.

    BUT, it is not the likes of AOL and Facebook that threaten the open network; it is the cable and wireless access providers who lay their cables on public land and broadcast their signals on public spectrum and reap the benefits of a near-monopoly (sometimes not just near). Without Net Neutrality, they can abuse their monopolies, their vertical integration and publicly granted resources to protect the content their content. If anti-trust laws were being enforced the way they were when the studios were separated from their theater chains, these companies would likely be broken up. And, if they’re going to benefit from the public land and spectrum, they need to sell those resources fairly.

    I just started reading “The Future of the Internet and How to Stop it,” which I imagine will address some of those points. I’ll let you know how it turns out.

  2. Noah said, on March 23, 2010 at 11:55 pm

    I think you’re pretty much dead on here Brian – both on the understanding of net neutrality as a facilitator of new modalities to replace the ossified hulks of yesterday’s industries and about the entrenched advantage that access providers have at their disposal. Take me in Manhattan, my options are Verizon or Time Warner for internet because I’m in a very small building and third parties aren’t getting in here. That being said, things like Sprint’s deployment of nationwide 4G WiMax can be enormously disruptive since you now no longer need a hard line to provide broadband to the home.

    Over the weekend I was with an acquaintance who is setting up a telephone network in the Virgin Islands. It’s all VOIP and all done wirelessly. They’re able to come in as outsiders and they don’t have the overhead of cables – just a handful of towers. They don’t even need spectrum since it’s not proprietary cellular. The future is a bold new place and those clinging to the physical husk of yesteryear will not be long for this world.

  3. Mark said, on March 24, 2010 at 12:37 am

    Noah,

    The points about unions and studios are obvious. Yes, of course they exist primarily to defend the paychecks out of studios. That’s where the money is.

    But on the other side, they exist primarily to defend employees against abuses only studios can inflict. Independent productions – and by this I guess we increasingly mean micro-budget productions, can barely wipe their own asses, much less take advantage of anyone the way a studio can.

    So I think I would re-phrase “enemy” to unions being “irrelevant” to micro-budget productions. Because in reality, these productions are not employers at all. In the sense that everyone on board knows this project is not likely to pay their rent or feed them. And they are doing the project for reasons other than the money; experience, keeping their chops up, just cause they like the script. Often on these films, everyone holds a boom at some point, or helps carry something in, and mostly no one cares. Because they are not there for the money. They are there to be a part of something they want to be a part of.

    The low budget contracts(from SAG anyway) are about as fair as they can be, I think. But I do think the unions will have to understand sooner or later that a waiver system will have to be put in place. I know more than one SAG actor who would agree too.

    M

  4. Noah said, on March 24, 2010 at 12:52 am

    I don’t know that I agree that the points about unions & studios are obvious. What I tried to point out is that in fact this is counter to the fundamental purpose of the union. That being said, I think anyone who has had to pay a draconian SAG bond would disagree with the assertion that unions are ‘irrelevant’ to indie films. Also, micro-budget – where noone is paid – and indie are not synonymous. While budgets may be crushed, there are still a large number of films being made under the various low-budget agreements and those are not just micro-budget films. I would submit that it is on those films that the traditional role of a union is perhaps most important – to ensure safe and humane working conditions, to ensure a minimum level of compensation or to ensure that deferrals or back end participations are recouped. That is where a union is functioning in the service of those “replaceable cogs”.

    That being said, who are they collectively bargaining with? I have complained in the past that the SAG fight with the AMPTP was frustrating because two parties, neither of which represented producers, were having a fight, the result of which would be applied to us.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: