“Long term, there’s going to be a shift in the ecosystem,” Jody Simon, entertainment lawyer and partner at Fox Rothschild, says
As the stalemate between the Writers Guild of America and the Association of Talent Agents stretches deeper into the summer months, bubbling frustrations and widespread uncertainty loom larger than ever: How long will it take for a resolution? What does a “win” look like for both sides?
In June, WGA leadership rejected the latest offer the guild received from the ATA and instead embarked on a new strategy to negotiate face-to-face deals with individual agencies, with varying success. Since then, the WGA has brought litigation against the top four agencies, with each in return filing lawsuits against the WGA.
According to an insider familiar with the negotiations, both sides have remained firm, without even a glimmer of hope for a return to the negotiating table to resolve the months-long dispute.
“I’ve been in a lot of meetings in the past few weeks and there’s not even talk of, ‘Oh so-and-so is talking to this person behind closed doors,'” the individual said. “That’s how these disputes get resolved a lot of the time. But there’s no back-room secret discussions going on. At this point, there’s no talk of getting back to negotiating. There’s no magic solution on the horizon. But that doesn’t mean that tomorrow that won’t change.”
Representatives from WGA and ATA declined to comment.
On one side of the dispute — which has centered on the packaging fees agents collect for bundling talent together for networks and studios, and the perceived conflicts of interests agencies have developed — writers are growing increasingly anxious with guild leadership’s staunch no-compromise approach to negotiating with the ATA.
The WGA has made it clear that it doesn’t believe the ATA has the right to negotiate on the agencies’ behalf. But the guild has made progress in negotiating with individual agencies.
“Right now, the WGA leadership is saying there’s no way to deal with these conflicts of interest. You look at any other industry, and they have barriers and regulations in place,” the insider said. “But as long as you take the position that there’s no way to regulate these conflicts, then there’s no winner.”
The WGA already has signed modified codes of conduct with several ATA member agencies that have agreed to put an end to packaging fees — first Pantheon broke ranks, followed by Kaplan Stahler Agency and Buchwald. But is this a sign of a winning strategy?
“These are real agencies deciding that this dispute has gone on long enough and that packaging isn’t really worth it for them; they’re ready to get back in the game,” said entertainment lawyer and partner at Fox Rothschild Jody Simon. “It’s still unlikely that the big four sign the code, though. They can literally afford not to and some of the people running those agencies have pretty big egos.”
Simon said there are divisions within the WGA, including hushed talk of writers returning to agencies that haven’t signed the guild’s code of conduct. And as elections for new WGA board members near, friction over leadership and debate over the best course of action in the ATA dispute have made their way into the public via Twitter or — as was displayed this week — open letters of support for candidates.
On Wednesday, writer John August (“Aladdin”), who also sits on the WGA board and negotiating committee, took to Twitter in hopes of quelling the in-fighting.
WGA folks: Let’s not be assholes to each other. We demonstrate our strength by building up those we support rather than tearing down those we don’t.
— John August (@johnaugust) July 31, 2019
August, along with fellow negotiating committee member Meredith Stiehm (“Homeland”), signed with Verve in the last couple of months after firing their agents whose agencies refused to sign the WGA’s code of conduct. Verve, though not an ATA member agency, signed a version of the code in May, agreeing not to package projects.
Although guild leadership has made some quantifiable progress, the discord points to a level of sustained — and possibly growing dissatisfaction within the ranks.
“I couldn’t say who is going to win here. It depends on the outcome of the election and the litigation,” Simon said. “It’s safe to predict though — well, it’s not even a prediction — there’s a tier of reputable agencies representing writers that have signed the WGA’s code of conduct and that’s good for the WGA. That’s a fact. Long term, there’s going to be a shift in the ecosystem. Interpreting those shifts and whether they’ll be wins for the WGA or not, I can’t really predict.”
The result of the elections, in which Phyllis Nagy (“Carol”) has emerged as a vocal and critical opponent, could have a major impact on the dispute with the ATA, potentially changing the guild’s no-compromise approach.
“People are keeping an eye on the elections and waiting to see what happens with that antitrust hearing,” the ATA insider said.
The lawsuits that have been filed are probably the only sure way of determining a winner in this dispute. There is currently a hearing set for September 19 in which the agencies are seeking to dismiss parts of the WGA’s lawsuit, which argues that packaging fees are a violation of agents’ fiduciary duty to their clients and against federal and state labor laws.
The dismissal hearing is scheduled three days after voting for the WGA election closes, but the four defendant agencies — William Morris Endeavor, United Talent Agency, Creative Artists Agency, and ICM Partners — want the hearing moved to August 27, one day before the WGA is set to hold a candidate forum in Beverly Hills.
According to the individual familiar with the ATA and its negotiations, any talk that the litigation is just a ploy to starve out the WGA is misplaced.
“They’re in this for the long haul. They understand that there’s not going to be a magic solution unless people get back to the bargaining table,” the insider said. “The problem for a writer is no matter what happens, this could take years.”