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WGA strike could be ending, but Hollywood isn't out of the woods yet

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While hopes are high that the writers strike is in its final throes, there’s still a long haul ahead. Speculation has been mounting this week that the Writers Guild of America will meet with members on Saturday to present terms of a potential deal as a sort of taste testing (check in with EW.com this weekend for updates). If that presentation goes over well, the WGA board will most likely recommend the deal’s ratification next week and ask members to vote on it.

But then, just when you thought you were out of TV purgatory, the Screen Actors Guild and its bargaining partner, the American Federation of Television and Radio Artists (AFTRA), will begin negotiating their contracts with the Alliance of Motion Picture & Television Producers. The thorny issues at stake? New media (of course), DVD residuals, and SAG’s volatile relationship with AFTRA. We’re going to go out on a limb and say it’s not going to be pretty. To break things down, we spoke to Jonathan Handel, an entertainment attorney for TroyGould and a former associate counsel for the WGA, about what’s come to pass and what’s yet to be.

ENTERTAINMENT WEEKLY: Do you think there will be any problems with ratifying the contract once the WGA board gives its stamp of approval?
JONATHAN HANDEL: It depends on whether there’s a sharply split board or not. If you do get a sharp split, then you may see a less-than-overwhelming ratification. I would think, given the details that are emerging, that this contract will get ratified.

How do you think this is going to affect the way the TV networks do business, if at all, in comparison to the ’88 strike?

I think that there will be some permanent loss of audience, just as

there was in ’88. [The strike has] driven people more to the Internet,

and I’ve had civilians spontaneously say to me, “These companies seem

to be assuming that I’m just going to pick up my viewing habits where

they left off, and that’s not the case.” Sort of unsolicited

comments… so in terms of the way the industry does business, I do

think that pilot season will be a reduced phenomenon for a number of

years. You do have to wonder whether they’ll be backsliding and people

will start spending money like it’s water again. But for the next

several years, particularly with where the economy is and reduced

viewership, I think there will be few pilots, and I think they’ll be

less expensive. And the upfronts will change similarly. I think there

will definitely be fewer housekeeping and overall deals. They’re not

going to restore everyone on force majeure by a long shot.

I would imagine that a lot of writers are scared that they won’t be

coming back, especially since reality TV has been dominating airwaves

for the last several weeks.

I think people are scared and resentful. It’s going to take a while for

some of it to dissipate and some of it’s going to linger for quite some

time. The interesting question is: To what extent are writers going to

start to engage the Internet more assertively? Are writers becoming

informal directors because they’re picking up cameras and doing YouTube

videos? That’s got to be transformative for some of them. You have

reportedly about a half-dozen separate groups of writers seeking

funding to create mini production companies with an Internet

orientation. Quarterlife

certainly weighs on people’s minds [as] kind of a signal to people that

there may be a way of getting TV deals that involve back-dooring

through the Internet.

Do you think the approaching Oscars was a big

force in getting both sides to the table last weekend?

Absolutely. I think that and the desire to partially salvage this

television season, to get more original episodes on the air before the

season ended. The writers really struck a strategic blow with the

Globes. I mean, they turned the Globes into a cut-rate press

conference. The Oscars would turn into either a press conference or a

clip show, and neither one of those is particularly romantic.

But we

still have the SAG negotiations to look forward to. Traditionally, SAG

and AFTRA have been partners and negotiated their contract with the

AMPTP together. But there’s been a lot of infighting within SAG’s East

and West coasts and with AFTRA, right?

Right — the East is really more aligned with AFTRA. In fact,

reportedly everywhere except the Hollywood branch is more aligned with

AFTRA. [AFTRA is] more moderate.

SAG has aggressive leadership, with national executive director Doug

Allen and those guys.

And [national president Alan] Rosenberg. And that was maybe [about]

three years ago. There was really this rumbling, and now you see that

bearing fruit in the whole SAG-AFTRA dispute. And SAG has said that

they’re not necessarily going to the Writers Guild deal as an unaltered

template, just as the writers said about the Directors Guild deal. So

this story is not going to end with the settling of the Writers Guild

strike.

SAG actually wanted to negotiate on its own, is that right?

That’s exactly right. SAG moved to schedule a vote for the next month

[on] joint bargaining relationships, which is called the Phase 1

agreement. The reason SAG brought that up was because there’s 50/50

representation on the bargaining committee, even though most of the

earnings come through the SAG agreement. SAG didn’t want to be dragged

into a more moderate position by having 50 percent of the negotiating

committee be AFTRA.

And to one-up SAG, in a sense, AFTRA said it will go into negotiations

early.

AFTRA says they’ll start negotiating March 1 and try to preempt SAG

from trying to do a more assertive deal. It undercuts SAG’s leverage,

particularly if AFTRA tries to gain more assertive jurisdiction. So

we’re not out of the woods. This has got to be the bumpiest negotiating

cycle for Hollywood labor in several decades.

Who has control over what?

Historically, AFTRA had jurisdiction over taped shows, and SAG over

film. What that meant was taped shows — in addition to late-night and

stuff like that — would be half-hour, multi-camera comedies. But as

this stuff gets shot on HD… you get AFTRA trying to push for

additional SAG jurisdiction. If a movie is shot on HD, is AFTRA going

to push for jurisdiction? They might. And if you have overlapping

jurisdiction, it gives the producer the opportunity to pick and choose

which union has a more management-friendly deal. And that’s going to be

AFTRA.

How will this affect motion pictures?

Unless [SAG] pre-negotiates a deal and gets that done, which doesn’t

sound like it’s happening, you’re going to get a de facto strike.

People aren’t going to greenlight features that would start beyond

mid-March or so because they’d be scared that it might fall into a

situation where they couldn’t complete principal photography because of

a potential strike.

What other issues are there?

The writers had wanted an increase in the home video residual [DVDs]

and they took that off the table in November. SAG has said they don’t

consider it off the table for themselves. They want an increase in what

talent gets paid on home video, and that’s going to be a really

contentious issue. There are so many moving parts here, in terms of all

these unions with their splits and the conflicts between unions. The

reality and the animation thing is a conflict between the writers and

the [International Alliance of Theatrical Stage Employees].

Jurisdiction over reality and animation TV has been a conflict, too.

Who ultimately has say in the matter?

There are two ways you get jurisdiction over a particular show: One is

on a show-by-show basis. For example, most Fox primetime animation

actually is covered by the Writers Guild. But what the writers wanted

was blanket jurisdiction for those areas, and the International

Alliance of Theatrical Stage Employees covers more animation and has

had more success in reality. The AMPTP definitely has a concern over it

[but] they don’t want to step in the middle of it. If the Writers Guild

could control reality as well, they could bring the television industry

quickly to its knees and that would give them so much leverage for the

next negotiating cycle because the networks wouldn’t have anything to

substitute for the loss of programming. So pigs can get wings and fly

down Wilshire Boulevard in black Armani, and the studios would still

never give the writers jurisdiction over reality. It was a complete

non-starter from day one.

Visit Handel’s blog at digitalmedialaw.blogspot.com.

How do you think this is going to affect the way the TV networks do business, if at all, in comparison to the ’88 strike?
I think that there will be some permanent loss of audience, just asthere was in ’88. [The strike has] driven people more to the Internet,and I’ve had civilians spontaneously say to me, “These companies seemto be assuming that I’m just going to pick up my viewing habits wherethey left off, and that’s not the case.” Sort of unsolicitedcomments… so in terms of the way the industry does business, I dothink that pilot season will be a reduced phenomenon for a number ofyears. You do have to wonder whether they’ll be backsliding and peoplewill start spending money like it’s water again. But for the nextseveral years, particularly with where the economy is and reducedviewership, I think there will be few pilots, and I think they’ll beless expensive. And the upfronts will change similarly. I think therewill definitely be fewer housekeeping and overall deals. They’re notgoing to restore everyone on force majeure by a long shot.

I would imagine that a lot of writers are scared that they won’t becoming back, especially since reality TV has been dominating airwavesfor the last several weeks.
I think people are scared and resentful. It’s going to take a while forsome of it to dissipate and some of it’s going to linger for quite sometime. The interesting question is: To what extent are writers going tostart to engage the Internet more assertively? Are writers becominginformal directors because they’re picking up cameras and doing YouTubevideos? That’s got to be transformative for some of them. You havereportedly about a half-dozen separate groups of writers seekingfunding to create mini production companies with an Internetorientation. Quarterlifecertainly weighs on people’s minds [as] kind of a signal to people thatthere may be a way of getting TV deals that involve back-dooringthrough the Internet.

Do you think the approaching Oscars was a bigforce in getting both sides to the table last weekend?
Absolutely. I think that and the desire to partially salvage thistelevision season, to get more original episodes on the air before theseason ended. The writers really struck a strategic blow with theGlobes. I mean, they turned the Globes into a cut-rate pressconference. The Oscars would turn into either a press conference or aclip show, and neither one of those is particularly romantic.

But westill have the SAG negotiations to look forward to. Traditionally, SAGand AFTRA have been partners and negotiated their contract with theAMPTP together. But there’s been a lot of infighting within SAG’s Eastand West coasts and with AFTRA, right?
Right — the East is really more aligned with AFTRA. In fact,reportedly everywhere except the Hollywood branch is more aligned withAFTRA. [AFTRA is] more moderate.

SAG has aggressive leadership, with national executive director DougAllen and those guys.
And [national president Alan] Rosenberg. And that was maybe [about]three years ago. There was really this rumbling, and now you see thatbearing fruit in the whole SAG-AFTRA dispute. And SAG has said thatthey’re not necessarily going to the Writers Guild deal as an unalteredtemplate, just as the writers said about the Directors Guild deal. Sothis story is not going to end with the settling of the Writers Guildstrike.

SAG actually wanted to negotiate on its own, is that right?
That’s exactly right. SAG moved to schedule a vote for the next month[on] joint bargaining relationships, which is called the Phase 1agreement. The reason SAG brought that up was because there’s 50/50representation on the bargaining committee, even though most of theearnings come through the SAG agreement. SAG didn’t want to be draggedinto a more moderate position by having 50 percent of the negotiatingcommittee be AFTRA.

And to one-up SAG, in a sense, AFTRA said it will go into negotiationsearly.
AFTRA says they’ll start negotiating March 1 and try to preempt SAGfrom trying to do a more assertive deal. It undercuts SAG’s leverage,particularly if AFTRA tries to gain more assertive jurisdiction. Sowe’re not out of the woods. This has got to be the bumpiest negotiatingcycle for Hollywood labor in several decades.

Who has control over what?
Historically, AFTRA had jurisdiction over taped shows, and SAG overfilm. What that meant was taped shows — in addition to late-night andstuff like that — would be half-hour, multi-camera comedies. But asthis stuff gets shot on HD… you get AFTRA trying to push foradditional SAG jurisdiction. If a movie is shot on HD, is AFTRA goingto push for jurisdiction? They might. And if you have overlappingjurisdiction, it gives the producer the opportunity to pick and choosewhich union has a more management-friendly deal. And that’s going to beAFTRA.

How will this affect motion pictures?
Unless [SAG] pre-negotiates a deal and gets that done, which doesn’tsound like it’s happening, you’re going to get a de facto strike.People aren’t going to greenlight features that would start beyondmid-March or so because they’d be scared that it might fall into asituation where they couldn’t complete principal photography because ofa potential strike.

What other issues are there?
The writers had wanted an increase in the home video residual [DVDs]and they took that off the table in November. SAG has said they don’tconsider it off the table for themselves. They want an increase in whattalent gets paid on home video, and that’s going to be a reallycontentious issue. There are so many moving parts here, in terms of allthese unions with their splits and the conflicts between unions. Thereality and the animation thing is a conflict between the writers andthe [International Alliance of Theatrical Stage Employees].

Jurisdiction over reality and animation TV has been a conflict, too.Who ultimately has say in the matter?
There are two ways you get jurisdiction over a particular show: One ison a show-by-show basis. For example, most Fox primetime animationactually is covered by the Writers Guild. But what the writers wantedwas blanket jurisdiction for those areas, and the InternationalAlliance of Theatrical Stage Employees covers more animation and hashad more success in reality. The AMPTP definitely has a concern over it[but] they don’t want to step in the middle of it. If the Writers Guildcould control reality as well, they could bring the television industryquickly to its knees and that would give them so much leverage for thenext negotiating cycle because the networks wouldn’t have anything tosubstitute for the loss of programming. So pigs can get wings and flydown Wilshire Boulevard in black Armani, and the studios would stillnever give the writers jurisdiction over reality. It was a completenon-starter from day one.

Visit Handel’s blog at digitalmedialaw.blogspot.com.

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