Oct. 3, 2023
WGA and producers end 148-day strike with historic agreement
Did the perfect storm of general labor changes, economic distress, and a protracted strike create fair winds for the WGA to reach its desired outcome?
The Writers Guild of America and the Alliance of Motion Picture and Television Producers reached an agreement after a strike that lasted 148 days, five days shy of the longest WGA strike in history. Support for labor movements in the United States is among the strongest it has been in recent history as labor reform has been a unifying issue across industries this year. "CES Strike Report," U.S. Bureau of Labor Statistics, https://www.bls.gov/ces/publications/strike-report.htm (last updated Sept. 29, 2023). The strike garnered public support for writers' grievances and achieved significant progress in several areas. Among the biggest wins were minimum staffing requirements and employment guarantees, success-based residuals and bonuses for writers of streaming television shows, and guard rails around artificial intelligence tools. Memorandum of Agreement for the 2023 WGA Theatrical and Television Basic Agreement, Writers Guild of America.
Minimum staffing requirements and employment guarantees
The WGA's minimum staffing requirements and guaranteed employment represent big wins for writers given shrinking episode orders for projects in recent years.
Development rooms for television and high budget SVOD series must include at least three writer-producers, including the Showrunner, for rooms with three or more writers and guarantee at least 10 consecutive weeks of work. MOA, Article 14.L. Television development rooms lasting 20 weeks or more must employ at least three writer-producers, with additional writers required for projects in their second and later seasons mirroring the minimums for post-greenlight rooms. Id. Five writers must be employed for orders of seven to 12 episodes and six writers for orders of 13 or more episodes, including the showrunner and two other writer-producers in each case. Id. at Article 14.M.
Post-greenlight rooms convening after the close of a development room for the same project must employ at least two writer-producers from the development room, if available. Id. These writers are guaranteed employment for the lesser of 20 weeks or the post-greenlight room's duration, but weeks worked in pre-greenlight rooms may be applied against that guarantee. Id. Certain single-camera projects in production have slightly different requirements but also offer alternatives for achieving minimums. Id. at Sideletter on Literary Material Written for Programs Made for New Media, ¶ 4.d. Although these requirements take effect later this year and will not apply to all projects, the provisions serve as a foundation for writers to expand upon in future negotiations.
Success-based streaming bonuses
Success-based streaming bonuses for writers were another central point in negotiations between the WGA and AMPTP. Lead negotiators for the WGA made it clear that the disparity between producers' revenues and writers' residuals was a concern. Writers on streaming projects received a fixed buyout of their residuals based on the length of the project and number of subscribers on the service, as opposed to a revenue-based residuals model for traditional television, where writers receive a percentage of revenues earned by producers for that project. WGA Residuals Survival Guide WGA Residuals Survival Guide, Revised March 2022.
Despite producers' resistance to success-based streaming bonuses and disclosure of streaming data, the parties agreed that writers for high budget SVOD programs viewed by 20% or more of a platform's domestic subscribers within the first 90 days of exhibition of the project will receive a bonus of 50% of the fixed domestic and foreign residual. Sideletter on Literary Material Written for Programs Made for New Media, ¶ 4.e(.9), MOA. The bonus applies within the first 90 days of each exhibition year thereafter in which the project receives views by 20% or more of the platform's domestic subscribers. Id. The actual dollar amount of such bonus depends on the project's length project (e.g., half hour episode vs. hour episode vs. feature-length film). The AMPTP also agreed to provide streaming data to the WGA subject to confidentiality agreements, empowering the WGA to dispute writers' entitlements to success-based bonuses and, if necessary, audit the relevant producer's streaming data. Id.
It remains to be seen how many projects will qualify for these bonuses on applicable streaming services, what counts as a view for subscriber viewership numbers, and who counts as a subscriber.
Generative artificial intelligence tools
Developments in artificial intelligence birthed generative AI models that enable users to produce complex written materials, posing a threat to writers. See "Introducing ChatGPT," OpenAI, Nov. 30, 2022. The WGA's response is a proposal governing who may use generative AI tools, how these tools may be used, and the effect of writers' compensation. MOA, Article 72.
Producers and writers may use GAI tools subject to different restrictions. Id. Producers cannot require writers to use GAI tools but may provide writers with GAI-produced written material for projects after disclosing they were produced by GAI. Id. Writers need producers' consent to use GAI, which may be withheld if using GAI could adversely affect a project, and must abide by producers' policies on GAI usage. Id.
If a producer gives a writer GAI-produced written material to create literary material, the producer must disclose that the material was produced by GAI. Id. GAI-produced material cannot be considered literary material under any WGA MBA, cannot be considered assigned material for purposes of determining the writer's compensation, cannot be considered source material for purposes of determining the writer's credit, and cannot be used to disqualify a writer from eligibility for separated rights under the Minimum Basic Agreement. Id. GAI tools are still in their infancy, so changes are likely to follow as the technology evolves.
The WGA's tentative agreement contains many wins for writers and sets them up for success in future negotiations. The proposed terms must still be presented to the WGA's membership for a ratification vote, which is expected to take place in October. The WGA's resolution on these topics could assist SAG-AFTRA's as they resume negotiations with the AMPTP given the overlap between the guilds' issues. SAG-AFTRA negotiators should look to the WGA's successes and willingness to compromise on residuals and artificial intelligence as a guide for their own discussions.