On the WGA Strike

I’ve been asked a few times for my thoughts about the Writers Guild of America strike, so here are my thoughts:

On the level of a consumer, it hasn’t inconvenienced me at all because:

1. I don’t watch enough TV to care;

2. Even if I did, I’m on deadline right now, so well done, WGA, for cutting off one more thing that would distract me! You’re mensches, the lot of you.

So clearly, I’m okay with it at that level.

As a writer, well, come on. Television networks not wanting to pay residuals on Internet viewings of their shows, because they’re “promotional,” even as they sell advertising on them? Kiss my ass.

Here’s a really simple rule: If any money is coming in from a writer’s work, from anywhere, the writer gets a cut. See? Simple. End of story (that would be gross money, incidentally. We all know how creative movie and TV studios can be in explaining how even the most wildly successful money-grossers don’t actually net anything). If it takes a strike to hammer that point in — and apparently it does — that’s fine with me.

So, yes, I support the strike.

38 thoughts on “On the WGA Strike

  1. I gotta say, I agree. The networks and studios have discovered a gold mine online, and have a century long history of screwing the talent out of every penny possible. I hope it’s a long and painful strike, to really drive the lesson home.

  2. It strikes me (pun not intended until I noticed it) that the studios are playing a very dangerous game, what with so many more things competing for people’s eyeballs and with television viewership levels in decline.

  3. “If any money is coming in from a writer’s work, from anywhere, the writer gets a cut. See? Simple. End of story”

    Used books? First sale doctrine on physical objects? The story continues…

  4. Bookninja, if you want to make a cogent argument that selling a used book (which a writer did receive royalties for at some point) is somehow similar to NBC grossing money on Internet showings of TV shows that writers contractually have residual claim to, I’m delighted to hear it.

  5. I will agree that the writers deserve a cut.

    That being said, I am sad that Heroes, Lost, 24, and all of my favorite shows will be getting short seasons/cancelled.

    This was a big year for SFF TV and a bunch of great shows are going to possibly be hurt by this strike.

  6. I’m actually being affected by the strike. I was up for two different movies and both have pushed the start of production until after the strike ends. (The scripts are both completed, but there are always constant re-writes during production, so, no writers, no production).

    Having said that, the WGA has my full support. They’re being screwed.

    And Bookninja, used books being sold is not comparable to TV/Movie content going out over alternate media. When a used book is sold, the person who sells it makes some money. The bookstore that sells it makes some money. The original publisher doesn’t see a dime. When NBC puts content on their website, they make the money from the advertising they sell. Since they’re making more from the writers’ work, they should owe them their share. If, as they disingenuously say, they’re not making any money from showing things on the internet, they shouldn’t have a problem giving the writers a percentage. I mean how much would it cost to fork over 4% of $0.00.

    They’re lying through their lying asses.

    What they’re really trying to do is establish a precedent for not paying residuals on any new media. Since new media is going to be the only thing existing in the reasonably near future, this is an attempt to eliminate residuals completely.

    BTW, I’m not speaking from self interest here. When I was a member of the Directors Guild, I was never in one of the four job descriptions that received residuals. Since I’ve quit the Guild (long story), I’ll never be in a position to get residuals.

  7. John, Thanks for you support of the writer’s strike. A few months ago, I had a mailing from the Guild. There was a nickel stuck to the piece. The nickel showed how much Guild writers received from a DVD sale. As for the internet–it’s like the wild west and the studios are the corrupt bosses who run the town. There’s no law west of the internet.

    Thanks again for your support.

  8. Used book sales aren’t in the same ballpark. No one involved in the creation of a product gets a cut when the product is sold second-hand, as far as I know. Only the original owner and the salesman. Do used car salesmen pay residuals to Chevy and Toyota?

    Also (and I’m not clear on all the issues) but it’s apparently a situation in which the others involved in the creation of the product do continue to be paid (actors, directors, etc.) but not the writers.

  9. Solidarity from this union member. Mostly because they have a point about the networks/producers making money from their hard work (and the actors, directors, etc). Time to share (considering they got hosed out of DVD distribution royalties).

  10. Exactly right, John.

    The studios seem to think writers are disposable. They are not. Sure, they could switch to all reality TV, but reality TV sucks.

    Good writing is what makes for good TV. The actors, well, they can’t act if they don’t have any material.

    My favorite shows on TV (Battelstar Gallacitca, Pushing Daisies, Heroes, Lost, etc.) are all about the script. Most of the actors were (before they landed a part on the shows in question) relative unknowns. What does that tell you?

  11. I’m glad to hear you support the strike, John. I agree wholeheartedly: the studios are trying to set a precedent for not having to share any of the pie. It’s all the more offensive, considering that they don’t even bake the damn pie, they just sell and deliver it.

    I can’t help but put the studios in the same pigeonhole that I put record labels in: that of a distributor/middleman/marketer. Granted, they do finance the shows, but hey, there are plenty of filmakers and content producers that recieve their funding from other sources (maybe not so much in the US and Hollywood, but around the world this is sometimes the case).

    As a hypothetical (because I’m going to completely ignore the big honkin’ elephant in the room –Intellectual Property Rights and Licencing– for this little excercise), what happens if showrunners and creators in general decide to take their productions out of the studio system completely, and distribute and market exclusively through the internet?

    For example, let’s take my favourite show, Battlestar Galactica.

    There’s one season left for the show to wrap up, and the strike is going nowhere. There’s a few episodes already in the can for the upcoming season, but production is halted on the rest. What if Ron Moore (the showrunner) produced these last episodes on his own, away from Universal, using funding acquired by, say, having fans donate money, or by taking out a loan which would be paid back by selling the episodes on iTunes, or Unbox, or what have you (forget in-line ads—I think it’s clear by now that people are more willing to pay for TV shows than to put up with ads, for the most part)? Then they could do an end run around the middleman, and split the full, gross profits fairly, with an agreed-upon percentage going to the writers, the crew, the cast, and -obviously- marketing costs.

    I think that eventually, this is what will end up happening in general. As the means for producing media keep becoming more and more accessible to people with less-than-millionaire budgets, and the cost of distribution goes down considerably, since you dont have to pay broadcast fees, or DVD production and packaging (maybe pay for bandwidth, but if you’re on iTunes or Unbox, I don’t know if that’s an issue for individual providers, or if Apple and Amazon simply take that from their cut), you’re left with just actual production and marketing costs.

    I’m sure that a big part of the impetus for studios in trying to choke out the WGA (and the DGA, the SAG, and any other union that has negotiations coming up) from new media profits or residuals is this gasping attempt to preserve their profitmaking machinery, because deep down inside, they have to know that their days are numbered!

    Any way you slice it, though, it’s a cynical, greedy ploy. As much as I love TV, I’ll gladly go without if the people who provide me with hours of entertainment aren’t being fairly remunerated.

  12. As a strong union supporter, I’m all for the writers (and the Broadway stage hands) exercising their rights to cause a work stoppage as a way to negotiate with the otherwise all-powerful bosses.

    That said, I’m saddened by the number of non-writers being hurt by the strike. Makeup artists, lighting specialists, everyone else that earns their living from the entertainment industry. I’m not sure what the correct answer is there…

    Finally, John, what’s your take on the Broadway strike? Seems a horse of a different color to me…

  13. There’s an extremely good, and very detailed, write up on this subject by screen writer John Rogers at Kung Fu Monkey. Despite the fact that he’s a writer and therefore on one side of the issue, he took serious pains to be as non-biased as possible.

    I am normally somewhat less than sympathetic when a union walks out (long story, don’t kill me please), Roger’s piece completely changed my mind. Hope the writers get everything they’re asking for, and something extra for the years of DVD sales they’ve been screwed out of.

  14. John, I’d be happy to make that argument if you could first tell me how you got from my statement, pointing out an obvious problem in your simple rule, to support for NBC monetizing intellectual work product without reimbursement. Here’s a correction to your rule: “Here’s a really simple rule for the new contract: If any money is coming in from a writer’s work, from anywhere, the writer gets a cut. See? Simple. End of story” A collective bargaining agreement is what we are talking about in the end, and the writer’s want a good one.

    I was on the bargaining team that got Powell’s Books its first contract, and my dad pounded doors in a Chrysler plant as a member of the UAW, and later stacked boxes as a Teamster. NBC is a corporation and according to the logic of a corporation, they have an opportunity to make more money without paying writers – which is a good thing to a corporation. In other words, they act like an extremely creepy Libertarian. If you’ve ever negotiated a union contract (no, book contracts do not count) then the last word you would mention for the rules is “simple”.

    If there are any WGA members reading, and you have not been through union negotiations, understand this: morality has *nothing* to do with contracts beyond a tool to marshal support and gain leverage. It’s about power. Passion will help get you through, but money is what matters to your opponent.

    I’ll leave folks with my dad’s take on union negotiations (paraphrased), “It’s not personal for them, they don’t want to hurt you because they don’t care about you. They just want to make money. Show them they will make more money with a contract and you’ll get a contract.”

  15. Bookninja can you say cognitive dissonance is my friend? First you make a comment trying to make someone else look as if they didn’t know what they were talking about, then when you’re called on it by three different people showing that you’re the one thats clueless you try to pretend you were saying something else and they just weren’t ‘in the know enough’ to get it. After all they just don’t have you’re deep understanding of things.

    Scalzi was obviously making a straightforward statement about the ethics of royalty payments, not a comment about the complexity of contracts or negotiations. You misunderstood this (whether deliberately or not I don’t know), and then instead of having the balls to admit you were wrong you try to pretend the others were off and went about ‘correcting’ them.

    Now onto your ‘thoughts’ on libertarians, and yes I am one (more or less) which is why I’m ticked. Please explain where in libertarian thought it says theft is okay. I’m no legal expert so I don’t know if it qualifies on a legal level, but I do know that when you agree to share profits with someone for work they’ve done that you profit from; and don’t, ethically that’s theft. No matter what techncalities you use to justify it.

  16. You know, I don’t watch a huge amount of TV, but the vast majority of the stuff that I do invest my time in comes from US writers. Mainly via DVD. (I’m UK based).

    I’m saddened that I may not get to see the few shows that I currently enjoy. The loss of these shows – even temporarily (though some will inevitably die as a result of the strike) – means that my leisure time will be slightly less enjoyable. Balance “slightly less enjoyable” against the writers’ position of “being royally screwed”, and of course I come down on the side of the writers.

    For the foreseeable future, TV will consist of reruns and Celebrity Mud Wrestling, and the entertainment landscape will be a poorer place for it, but it is necessary.

    So, bring on the the unreality shows and season 2 of M*A*S*H – when the industry comes out the other end of this dispute, let’s hope it’s a fairer place for all to work.

    (And I realise I’ve not said anything that hasn’t been said a thousand times before, but it’s sometimes worth hearing that the cause is supported not just locally, but globally).

  17. (n.b. My original comment was made in the historic tradition of sf geekery where one listens, finds the obvious hole which shouldn’t be explained because of context, and then shows how “smart” you are by pointing to the hole. Scalzi’s certainly done it to me)

    Rigel -

    Sadly, it’s not theft that the WGA agreed to a crappy contract which was short sighted and didn’t lock up contingencies like Internet advertisement revenue. They caved – maybe they had to, maybe the bargaining unit was hurting, but they caved. If the contract *did* provide compensation for Internet revenue they wouldn’t have to strike. They are striking to get the royalties they should have insisted on before and the ones they deserve in the future.

    “The ethics of royalty payment” – are you high? These are corporate entities – they do not have “ethics” they have share holders. Management planned ahead and are exploiting the union’s weakness in the last round of bargaining to their financial benefit. Perfectly legal and perfectly wrong. Going back to my (second) point, it’s about power and whether the WGA can force AMPTP to agree to terms. All the talk about the morality of what a writer deserves is great if it leverages a better contract. Writers are professionals at delivering a message so I expect them to own the public relations campaign. To the extent this gets a contract, good.

    Libertarians – I am not one, and I’m sure people will correct me if I get this wrong. But the two parties came together in a free and open society and came to a contractual agreement. The result screws writers in the WGA, but assuming the basic human liberty (remember, trying to be a Libertarian here) and freedom of the individuals who voted on the contract or later agreed to join the union, they chose to get screwed out of Internet royalties. When I call the AMPTP an “extremely creepy Libertarian” I am simply suggesting that a “person” (corporate entity in this case) who believes in the rule of law, freedom and personal empowerment might say “This is legal, they chose this and we want more money”.
    A union contract is exactly filled with technicalities which precisely define compensation under a seventy year old set of laws. The WGA *did not get a guarantee to a share of profits in dispute in the first place*. The AMPTP and WGA never agreed to share these profits, so it is not illegal. But to a Libertarian (repeat, I am not a Libertarian), why is it unethical to exploit this advantage?

    Rigel, let me ask you, do you support unions and unionism? Most Libertarians I’ve met *hate* unions – stomping on my freedoms, forcing me to pay dues, keeping me down, etc… Libertarians certainly hated the idea of a union at Powell’s Books. So are you a pro-union Libertarian?

    (Scalzi, I’m happy to take this one into the private realm if you want)

  18. Bookninja –

    Nope, it’s fine to keep it here; it’s interesting stuff and aside from assorted snipery I’m learning things.

  19. I have this strange brainfart from time to time when I’m writing and I intend to put in a word or sentence or even a few sentences, but I don’t. Its right there clear in my head, but it doesn’t end up on paper (or computer screen). In this case I meant to put in that these guys (the networks, etc.) probably don’t care about the ethics at all, but its still ethically theft whether they care or not.

    Is it legally theft? Probably not, but quite frankly I don’t know anywhere near enough about the law to say.

    As far as the Libertarian perspective, I think you’re making a common error in the confusion between wrong and illegal. Here’ s an example I think (and I think most would agree) that being rascist is morally wrong. Does this mean I think it should be illegal? No.

    In this particular case here do the networks have the legal right to do what they’re doing, as I mentioned before I don’t know, but for the sake of arguement lets assume they do. That still doesn’t make it ethically right, ethics aren’t determined by contracts.

    It’s just as a Libertarian I no more think the government should interfere in a freely enterd into contract then I think they should attempt to force people to stop having attitudes I consider morally repugnant (i.e. rascism).

    So what’s the Libertarian solution? For those involved to learn from the experience and to make a better contract. And also to make sure others know so they can take care when they do business with the networks, or maybe even decide they don’t wish to deal with such unethical people at all.

    Now on unions, I happen to be from (and still live in) Michigan, which is a big union state. On more than one occasion I either had to be a part of a union or I didn’t have a job. So no, I’m not a fan. But I don’t think unions are ‘evil’. I think at one point they served an important function, but that time is largely past. But there are exceptions. And based on what I know of the situation (which is admittedly not much) the WGA seems to be just such an exception.

    Sorry I’ve taken up so much space, I just wanted to be clear and try to rectify a misapprehension I see people make a lot of the time about Libertarians. Just because we don’t want the government to interfere doesn’t mean we think this or that is right, it’s just that we don’t think government should be the determiner of whats right.

  20. Bookninja,

    Not trying to pile on here, but the crappy deal the WGA made with their last contract was a case of “take the loss now, ’cause we’re not sure there’s any money there anyway, and we’re gonna invest a lot of money into seeing whether there is or isn’t any money there, and if there is any money there, we’ll make it up to you when the next contract comes up.”

    “Trust us” = “Bend over and grab your knees”.

    Just because they made a mistake in the past and accepted a bad contract doesn’t mean they should do it again.

    I agree with you that Ethics doesn’t really have a place in this discussion. It is about power. Having said that, the WGA has decided that if they bend over again, they’ll never have any power in the future. The fact is that, historically, their “deal” was based on the proposition that they’d be paid a somewhat smaller salary for doing the work in the first place in exchange for owning a piece of the pie for any future income based on their “product”. That the studios are trying to continue to pay the lower initial salary while eliminating the future income is what the fight is all about.

  21. Nathan,

    I don’t see where bookninja says that WGA shouldn’t strike. I see his comment as saying that he was disagreeing that screwing the writers was “theft,” not arguing that they deserve to be screwed. But then, I also read his first comment differently as well. If John Scalzi were to say “Any money the networks get out of a writer’s work should be shared with the writer,” I would whole heartedly agree. But Scalzi’s rule of thumb covered a lot more territory than that and I thought bookninja was just saying that there are some places that it might not apply. That doesn’t mean to me that bookninja thinks it SHOULDN’T apply in the case of WGA vs Evil Scum Network

  22. Hope,

    You’re probably right. I suppose I was really responding to Bookninja’s tone, which seemed to be saying, “You made a lousy deal a few years ago, writer-boy. Suck it.” I may have been reading things in that weren’t there.

    And I honestly don’t know if the original assertion about selling used books was meant as a direct comparison or as a swipe at John for being too broad in his definition of “money coming in.” I stand ready to be educated.

    BTW, for some reason I assumed Bookninja was female. Was I wrong?

  23. In the interest of full disclosure, I’m a WGA member who has been on the picket line every day since this thing started.

    Rigel,

    “In this particular case here do the networks have the legal right to do what they’re doing, as I mentioned before I don’t know, but for the sake of arguement lets assume they do. That still doesn’t make it ethically right, ethics aren’t determined by contracts.”

    That they aren’t. There’s been a lot of talk about respect, and whether or not respect is what this strike is about. And it is, in a semantic way. The writers are demanding respect in the only form the studios understand — money. The studios aren’t technically breaking the law. They’re rewriting it. Since the CBA stipulates that promotional work doesn’t require the studios to pay residuals, they are classifying streaming video as promotional. Promotional for what, they don’t say. But promotional nonetheless.

    There’s a very simple reason as to why the studios don’t want to pay the writers residuals for the internet — they’re making money. If they weren’t, they’d be all, “Yeah, here’s a percentage for ya. We don’t make any, so you don’t make any, either.” But they ARE making money because they’re selling ads. Moreover, they’re selling ads that they get even more money for because you can’t fast-forward through the internet ads. If you want to see how heinously smug these asshats are, go watch the video that’s floating around where they all gloat about how much money they make off the internet.

    Essentially, the studios have found a way to get around paying the writers those hated residuals — they put it on the internet and call it promotional. They aren’t re-running shows much anymore, so writers don’t get residuals anyway, unless it’s foreign money or a few meager pennies for cable. But this doesn’t just hurt the writers, directors or actors. A not-insignificant percentage of residuals go to pay for IATSE’s pension and health fund. So this contract affects a lot of people. And since the studios are trying to break the unions, the WGA has to win this thing. Even if it’s not a perfect contract, getting more than 0% on streaming video and more than 2/3 of a penny per dollar (no kidding — 2/3 of a freakin PENNY) on downloads is a victory.

  24. Nathan,

    On Bookninja: I wasn’t sure, so I defaulted to “he.” My apologies if that was a mistake.

    Kay,

    As someone who has signed contracts with that clause “any media now known or hereafter invented,” thank you.

  25. Bookninja is a he (Ian, btw), and is pro-union in most almost all situations – including supporting the writers and their strike. I don’t know enough about the WGA to judge this strategy or the quality of their leadership. As far as I can see, they need a strong show (they chose strike) to leverage a contract that guarantees residuals from the Internet and future technologies.

    I hate to do this, but I cannot devote the necessary time to maintain the quality of this thread. I’m sorry, but work, grad school papers, holiday book sales, and (this really sucks) a tumor in my cat’s neck are going to be eating my time.

    Peace out.

  26. Thanks for clarification Bookninja.

    I had a conversation with a producer friend yesterday and got a little new insight. It turns out that the DGA contract is about to come up for negotiation too. That presents some interesting possibilities.

    1. They’re going to have some overlapping interests with writers, i.e. residuals.

    2. They’re much more likely to get to the table quickly since many of their members are also producers. (The chair of the negotiating committee is Gil Cates who’s producing this year’s Oscar telecast.)

    3. There’s also a feeling that since DGA and AMPTP have a somewhat warmer relationship, there will be less acrimony in their negotiations.

    4. Any agreement they reach will carry over quickly to WGA and later to SAG.

    Fingers are crossed.

  27. Also, Bookninja,

    Our 12 year old cat just got diagnosed with diabetes and there may be something else wrong. Not only would it cost a fortune in tests for further diagnosis, the vet says it would cost a fortune to treat it, whatever it is. In the meantime, I’m giving insulin shots and force-feeding 6 times a day trying to get him to start eating again.

    You have my sympathy.

  28. Of course they’re promotional. They drive people to watch the show (and other shows) on the network. SImple enough. But in this medium, these promotions also carry their own promotions (banner ads, etc.) When your commercials have commercials, then you have to pay residuals to the people who write your commercials. Clear as mud, right?

    John – any time a writer’s words make money, the writer gets a cut? Really? Are you sure? If Subterranean Press put online ads on their online version of Sagan’s Diary, would you expect a cut of that ad revenue? Or isn’t the promise of increased sales for your books enough compensation? I don’t see the need to paint publishers into a corner like that; it may mean I get less content available to me in the end. Can’t we just say writers should be fairly compensated when their work is used, and leave it to the writer (or the CBA in this case) to define what “fair” is?

  29. Of course we’re planning to share the ad revenue with John when we begin placing ads with the free posting of his story. We’ll decide what’s fair and send him a check when the contract calls for it.

  30. Brian, your hopefully intentional obtuseness about what “promotional” means as a contractual term of art rather than a dictionary definition aside, the issue with the WGA is pretty clear cut: the networks are generating revenue from online exhibition of the shows, and the writers should get a cut of that revenue as a residual. How that revenue comes into the network is aside the point that the revenue is there (or is expected, and expected to grow).

    And, yes, as it happens, whenever my work is generating revenue for someone, I believe I should have a cut (I make an exception for used books), and it is a foundation of any contractual discussion I have. I don’t write for anyone who I feel is treating me unfairly. Indeed, one of the reasons I work with Subterranean is because it treats its authors well in terms of payment, as a matter of course (note Bill Schafer’s comment above). I do just fine managing my own negotiations with the help of my agent; however, my situation is not generally the same as those of the people in the WGA, for whom collective bargaining is clearly more advantageous than individual bargaining.

    “I don’t see the need to paint publishers into a corner like that; it may mean I get less content available to me in the end.”

    Well, Brian, not to be rude about it, but who gives a shit about what you want in this context? The strike is about writers getting an equitable, if still tiny, share of the massive revenue pie, and in a general sense it’s not a bad idea to have as a starting point that writers share in every revenue stream, rather than the ones some corporation deigns to provide them, or not. Truly, I am sorry you might be inconvenienced by the fact that people who actually create the work you enjoy might want to have a little more of the income generated by their work to go to them; all the same, they do have children and spouses and retirements and mortgages to look after, and that money might come in handy.

  31. Dammit, John, why must you yell at me even when I’m agreeing with you?

    First of all, I’m well aware of what the term “promotional” means, and I believe I summarized it pretty well in my first comment. I didn’t mean to imply that Subterranian, or anyone else for that matter, would try to take advantage of you. All I was saying is that direct payment for the use of your words is not the only legitimate form of compensation. I would presume, for instance, that you’d be pleased to see excerpts of your work in a major newspaper (in fact, if I remember correctly, that’s happened once or twice, no?). That kind of exposure likely drives book sales, and you wouldn’t be damaged at all (in fact, quite the opposite) if that excerpt didn’t net you a direct share of the newspaper’s subscription revenue or ad revenue for that issue.

    A blanket statement like “writers get paid every time their words generate income” would require such payment, and would, in the end, hurt the writer, not help him/her. I’m only suggesting that the contract (or CBA, in the case of the WGA) setup parameters that are fair to the writers, without boxing anyone in to mandatory cash payments.

    And when I say “me,” I’m not referring to me personally, but to we, the public.

    “We” want to be exposed to quality entertainment as much as possible. Therefore, “we” want writers to be encouraged to create work, and “we” want publishers and producers to be encouraged to promote that work. The current arrangement encourages the latter, not the former, which is why the WGA (appropriately, in my opinion) went on strike over it.

    Your proposal, IMHO, would encourage the former, but not the latter, which is almost as bad.

    A fair settlement should be reached, including a fair residual structure for the writers AND a clear definition of how promotional material is defined in the online media…

  32. Brian Greenberg:

    “Dammit, John, why must you yell at me even when I’m agreeing with you?”

    I said it in a very even-handed tone of voice. You’ll know what I’m yelling because I’LL DO IT IN ALL CAPS.

    The thing is, Brian, that you like to approach discussions as if you know what you’re talking about, and that clearly anyone with any modicum of sense should see things as you do (“of course they’re promotional,” etc); the problem is that when I know your point of view isn’t actually an informed one, as is the case here, my general response is to unsheathe the hammer and bang on your head a bit. Now, this doesn’t seem to have ameliorated your problem of trying to act like you know what you’re talking about when you don’t, because you still do it. But I live in hope.

    As for agreeing with me, I’m aware (now) that you think you are agreeing with me, but the problem is that your lack of knowledge about details means that you’re really kind of not.

    “First of all, I’m well aware of what the term ‘promotional’ means, and I believe I summarized it pretty well in my first comment.”

    And you’re wrong, which means, protestations aside, that you don’t. I repeat: What “promotional” means in terms of a contractual term of art is different than what “promotional” means in a general sense. If my publisher gives copies of one of my books to reviewers without charging the reviewer for the book, it’s chalked up as a promotional copy of the book; I don’t earn any royalties from that book. But then, neither does Tor (or its parent company, or its shareholders) earn any income; fair enough. On the other hand, if Tor were to sell a stack of my books, say at a bookseller’s expo, earn income on them and then turn around and suggest to me that the sale of these books was promotional and therefore I shouldn’t make any money off them even when the company did, well, then there’s a problem. Because even if the book functions as promotion in a general sense of the term, contractually the company is obliged to pay me when it sells my books. Indeed, what it must pay me is detailed in nearly every situation, from its debut in the chains to any eventual ignominious end to the book as remainders. A sale being “promotional” in a general sense isn’t enough to deprive me of income I well deserve.

    In this same way, showing episodes online or selling them through the iTunes store may be promotional in a general sense, but it sure as hell isn’t “promotional” as its been typically understood to this point. Promotion includes sending DVDs to newspapers and magazines so critics can look at them, or having special preview screenings; it doesn’t mean selling episodes or movies online, pocketing the income and then claiming that such activity has no value other than promotion.

    “All I was saying is that direct payment for the use of your words is not the only legitimate form of compensation.”

    Even if this were true — and allow me to suggest this is a sentiment written by someone whose mortgage payment or child’s braces do not hinge on being compensated for one’s words — it does not follow that promotion is even remotely adequately compensatory relative to actually getting paid.

    Specifically, the idea of promotion as compensation falls down when you realize that a writer’s primary and generally exclusive avenue of compensation is his or her writing. With music, one of the reasons that there is not a performance royalty on radio is that the revenue a musician loses in the broadcast of the song can be recouped (theoretically, at least) through other mechanisms — through album/single sales, touring and so on. Writers generally don’t have these other mechanisms, so the compensatory mechanism of promotion is a very poor one for them. And, as it happens, this is why songwriters do get a royalty for radio play; because it’s understood that they need that income.

    As for your “newspaper excerpt” example, as it happens, if Tor were to license the serial rights to a newspaper or magazine, I would indeed get a cut of that income; if I had my contract here in front of me I could tell you exactly how much of that I would get; I think it’s 50%. That is, of course, for the books for which I have contractually allowed them to have a stake in the serialization; I don’t think they hold such rights for my most recent books (although again, I’d have to check). The point is, any time Tor makes money from my work, I make money from my work.

    Aside from that, yes, indeed, were I approached by a newspaper or magazine that wanted to excerpt a significant portion of my work (and I held the rights), I would very damn well expect to be paid; it’s my work. As you know, I sell work to newspapers and magazines on a regular basis, and the only time I did not take payment for that work was the “Being Poor” piece, and as it happens, doing so annoyed some newspapers because they’re not set up to not pay contributors; the Chicago Tribune kept sending me e-mail about it for a year and a half.

    Other than that, any time any newspaper, magazine, blog site or wherever has approached me with the idea of exhibiting my work and not paying me, while they pocket any revenue, my response has been consistently to tell them to kiss my ass. Since I’m currently a bestselling author who makes more money from writing than 99+% of writers, this policy clearly has not been detrimental.

    “And when I say ‘me,’ I’m not referring to me personally, but to we, the public.”

    How does that change the argument in any substantive way? This isn’t a strike about the consumer. What the consumer wants — and what the consumer might think is a rational course of action in this case — really is irrelevant, because the consumer by and large has no idea of the contract, legal and labor issues involved.

    To this extent, Brian, it’s nice you think you’re the side of the writers — thank you, I’m sure they appreciate the sentiment — but since you don’t seem to know a lot about how writers actually work, what you think would be helpful for them to do really doesn’t seem to be so much.

  33. Brian,


    How does that change the argument in any substantive way? This isn’t a strike about the consumer. What the consumer wants — and what the consumer might think is a rational course of action in this case — really is irrelevant, because the consumer by and large has no idea of the contract, legal and labor issues involved.

    Furthermore, win or lose, what the WGA is after won’t have any effect on what you have available as a consumer. The writers (eventually) will give you back “The Office” and “Lost” and whatever else you’re pining for. The only question will be who gets paid and how much.

  34. John,

    “Brian, your hopefully intentional obtuseness about what “promotional” means as a contractual term of art rather than a dictionary definition aside, the issue with the WGA is pretty clear cut: the networks are generating revenue from online exhibition of the shows, and the writers should get a cut of that revenue as a residual. How that revenue comes into the network is aside the point that the revenue is there (or is expected, and expected to grow).”

    Exactly. Moreover, the companies are actually getting more ad revenue from the internet because the consumer can’t fast-forward through it. If they are receiving ad revenue, it is not promotional. Or would people say that watching an episode of a TV show on the actual TV is promotional? This begs the question, What is it promoting? The website? The company? People who don’t quite get this (and the companies, who know better) say that it promotes the show. So if a viewer watches every episode of a series on the network’s website, how exactly is that any different from a viewer watching an ad-supported series on TV?

    The companies know damned well how much money they’re making and they think they’ve found a way to avoid paying the writers residuals all together. Right now, they’re offering the DVD rate for streaming, but it’s ONLY payable after the “promotional” period, which is six weeks. Which means, basically, that they won’t have to pay at all. The WGA wants the DVD rate doubled and wants streaming to match that.

    Oh, and by the way? The DVD rate is currently 1/3 of a penny per every dollar a company earns. So the WGA is asking for 2/3 of a penny, which doesn’t make much of an impact on the companies but DOES make an impact on the WGA and on IATSE, which gets a share of residuals for their health and pension plans.

    Maybe the companies have realized that they need to rethink their approach, because it was announced last night that talks will resume on the 26th.

    And John Edwards has a VERY firm handshake!!!

  35. Just chiming in again on the subject. As I predicted upthread @ 29, the Directors Guild went to the table on Monday and came to an agreement with Producers this afternoon. Many of the things WGA wants were addressed in DGA contract also.

    In very short order AMPTP will offer the same deal to WGA and since I doubt there’s anyone, WGA included, who believes they’ll get a penny more than the Directors, this strike should be over very soon.

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