The Albatross

And I like libertarians. But c'mon people.

Someone linked to this silliness at Biz of Showbiz. in the comments. It recycles the usual "Writers make 200 G a year" crap, along with taking the spiffy new angle that this is about powerful, wealthy writers attempting to strangle the free market in order to avoid competition.

The good, high quality writers will always get their due, and good upcoming writers need the freedom to be able to break into the industry without having the union albatross hung around their knecks.

Whether there's a writers union or not will have no impact on the industry or writers; that's what they need to learn. Writers are needed, that's known. What also needs to be known is the industry overall would benefit, as well as the writers, from an open, and free market where everybody can compete. That will only strengthen the product they offer.

I've noticed several similar comments in a few posts, along with the usual suspects over at Megan McArdle's place at The Atlantic blogs.

First off, good writers can always get their first jobs non-union. It's called the Taft-Hartley Act, sparky, and it's utilized so often that the phrase is used as a verb in Hollywood. ("We'll just Taft-Hartley your first script.")

Now to the main beef:

Listen, before you spout off the usual "The free market will out" along with "Hey, I'm smart enough to negotiate my own contracts, why aren't you?" with a side order of "just go somewhere else if you don't like it", you need to understand some things. If you don't, then every argument you make is without merit. Period. It's like trying to discuss the Middle East without the fundamental understanding of the difference between Shia and Sunni.

There is no free market in Hollywood. In television for example, with the dissolution of "finsyn" rules in 1995 almost every independent producer has been either absorbed into one of the big media companies or dissolved. We've gone from 40 producers in television to the big Six.

Six. Six companies control almost all mass media in America. They control all, and I mean all, the standard distribution channels in America. They are also negotiating as a single entity, the AMPTP. If you've read your Adam Smith, you know that this is actually one of the situations he notes in Wealth of Nations which will indeed break the fingers of the invisible hand.

(Now, as noted on this blog, the rise of the internet as a distribution channel will indeed change things ... over the course of the next ten to twenty years or so.)

This is where I'm always amused at libertarians, because they so love markets but never seem to understand how business actually works. If you, my fine libertarian friend, decide to forego the union and negotiate your own contract vis a vis residuals (or pretty much anything else), you will find that unless you are one of the maybe eight out of 12,0000 most famous and profitable writers in Hollywood, you will get exactly the same deal from each studio, or slightly worse. Because what possible motivation would they have to share their profits, relative to each of the other five competitors? That's just common sense.

Asking why writers don't just go start a new United Artists instead of negotiating for a fair residual on new media is like asking why autoworkers, if unhappy with their current contracts, don't just go start their own car companies. Sure, some of us are actually trying -- did anybody notice, in my posts on the pilot, any mention of a studio? -- but what the hell are the rank and file writer supposed to do in the meantime? And how does the remote possibility this could be done in any way justify the AMPTP's position, that they will reuse our material for free for the foreseeable future? And AGAIN, people, try to be clear on this -- we have intellectual property rights on this material. If you believe authors and songwriters should get royalties, then you believe screenwriters should get residuals. Period.

You will also, theoretical libertarian free agent, have given up most of the protections afforded by the Guild, including the protection of making sure you actually get whatever deal you may have negotiated. As John Bowman noted, we are one of the only industries in which corrupt accounting is so common, we actually have the term "monkey points."

I've seen a bunch of people arguing "well, that's what litigation is for." Yes, what a spiffy world that would be. Each individual writer against the legal departments of billion dollar multinational corporations. Enjoy waiting ten years for your check, assuming you win. Even with the Guilds in place, people still have to litigate all the time. Peter Jackson had to sue for his share of the back end, because New Line tried to stiff him on FELLOWSHIP OF THE FRIKKIN' RING -- $870,000,00 worldwide, DVD unknown.

That. Shit. Happens. All. The. Time.

Oh, and try getting a hold of those DVD numbers. They are so infamously untraceable they're a standing joke among writers and even producers.

Once again, real world business experience vs. libertarianism -- RLWB 2, LIBS 0.

Let me tell you a story, leaving most of the juicy bits/names out. I recently worked on a very large movie. When the time came to arbitrate the credits, long after the movie was written, shot and cut, one of the producers claimed a writing credit based on an outline that neither I nor any of the other writers had ever read. (PS. Not Don Murphy. Don is cool.)

Now remember -- and this is important for the story -- credit arbitration is largely dependent upon how similar your written contribution is to the movie as filmed and released.

During the arbitration process I, being a nice guy, was willing to accept that maybe the studio screwed up. Maybe they had the outline before ay of us started work, but didn't show it to the writers. If so, I firmly believed the outline should still be considered by the arbitration committee. Whatever the committee thought fair, I'd live with.

"When did the studio buy the outline? When did it enter into the chain of materials?" I asked, trying to nail down a timeline. And remember, this was about two years after I'd written my draft, as first writer on.

Pause. "The studio is in the process of acquiring it now."

I cleared my throat. "So the question is, should you give away a writing credit -- and therefore a chunk of my income -- based on an outline that nobody's ever even seen, that only now is being purchased by the studio after the movie is cut, submitted by one of the only people who's viewed the final cut of the film as it is to be released."

"... yes."

That. Shit. Happens. All. The. Time.

Only the Guild-mandated arbitration process gave me any recourse short of litigation of dealing with this. And in the days before that arbitration process was established -- through the Guild's struggle with the studios -- they wouldn't have even had endure the pretense of submitting the outline.

You know what I felt, as a "young writer" when the "union albatross" was slipped around my neck? I remember, indeed, my first horrified thought. "Wow, a living wage!", followed immediately by "Now I can get my loved ones better health insurance." Years later, as a successful writer, that albatross was the only thing keeping much more powerful, connected humans from taking some of my .3% DVD residual above and beyond what they were already making.

Listen, I get it. You love free markets. So do I. I just know that they weren't designed by Jesus. They're not perfect, and sometimes you need a union not out of any high moral stance, but just to maintain fair business practices.

To paraphrase a previous post -- I live with the tiger, I love it, but I respect its teeth and instincts. Stop asking why I don't just pet the kitty.