© Variety, Reed Business Information, a division of Reed Elsevier, Inc. November 7, 2007
© Variety, Reed Business Information, a division of Reed Elsevier, Inc. November 7, 2007
By Michael Fleming, Dave McNary
A sizeable chunk of WGA members -- who backed the guild with an overwhelming strike authorization and have been walking picket lines -- will break ranks with their union for the first time today.
That’s because the WGA expects members to obey Strike Rule No. 8, the Script Validation Program in which members were ordered to submit drafts in-progress of screenplays and TV episodes that were contracted by the companies now being struck.
If the screenwriters and reps queried by Daily Variety are any indication, the guild will not have to brace for a flood of paperwork. Many writers will heed the stinging prestrike missives that studios sent their lit agents, warning that they would be held in breach of contracts if they turned over studio-owned scripts to their union.
Many writers and their agents and lawyers have decided that ignoring this WGA mandate -- and risking consequences from the union -- is preferable to ending up on the wrong side of a lawsuit from a studio that might be looking to make an example of striking scribes.
The WGA maintains that the Script Validation Program is the same as it instituted during the strike of 1988 without complaints. Along with the prestrike flurry of letters that studios sent to writer reps, the AMPTP sent a cease-and-desist letter to the WGA on Oct. 19 and followed that up with a complaint to the Natl. Labor Relations Board.
Dealmakers and writers say the WGA hasn’t been specific about the consequences of disobeying its Script Validation Program, though the WGA has declared that members who disobey any of its strike rules risk "expulsion or suspension from Guild membership, imposition of monetary fines or censure."
Many scribes are angry about the program, alleging the WGA has resorted to Orwellian measures to police its membership with the implication that the union doesn’t trust its members. Others are upset at being put in the unenviable position of either disobeying their union or jeopardizing studio step payments that will be sorely needed after the strike ends.
Lit agents and attorneys found that studios would not indemnify their clients, as studios have offered to do for writer-director hyphenates who could face union fines if they cross picket lines to fulfill directing obligations. Studios assert that they have the legal high ground on the Script Validation controversy because they paid for and own the material in question.
Jonathan Handel, an entertainment attorney at TroyGould and a former WGA counsel, pointed out that development projects don’t truly become studio property until options are exercised. But Handel also says the WGA is over-reaching and intrusive, despite the guild’s pledge of confidentiality. "The writers are rightly upset over this," he said.
The WGA’s own rulebook tells writers that the program is for their benefit: "The filing of these materials will allow the Guild to determine the exact status of material at the beginning of a strike and may protect you in the event allegations of strike-breaking or scab-writing are made against you or another writer."
The WGA declined to comment further. WGA West general counsel Anthony Segall denied in a recent letter to the AMPTP lawyers that the strike rule violated the rights of the producers.
"The program is a lawful internal union rule designed to advance legitimate guild interests, including writers’ collective right to withhold their services in the event of a strike," he asserted. "Please be advised that the WGA will immediately respond to any attempt by the AMPTP or the companies it represents to re-characterize lawful strike activity as a breach of contract or violation of state or federal law."
Numerous writers have tried to find a middle ground by filing script drafts with their attorneys, with whom they have a privileged relationship. This way, if the WGA cracks down later, the writer’s attorney will be able to prove progress on the project at the time the WGA began a strike.
"I have asked my writer clients to protect themselves by simply emailing themselves a copy of their script so there is proof of the status at the moment they stopped writing," said attorney Eric Weissmann of Weissmann Wolff Bergman Coleman Grodin & Evall.
"They could also send a registered letter to themselves that will remain unopened so that they can prove they didn’t write during the strike, if the guild comes after them. I have advised my writer clients not to send drafts to the WGA because they’ve been specifically instructed by studios not to do so. The guild is not indemnifying these writers, so why should they put themselves at risk?"