HUMANDIVERGENT

LegalDispatch 0.77

Oct 06, 2023

Well, I missed last Friday. (But, hey, you got a “bonus” edition the previous Monday, so technically I didn’t skip a week.)

Am I the only one finding the post-WGA-strike landscape weird? I suspect not. There doesn’t seem to be a market for new TV projects at the moment with all the studios/networks/platforms putting all their efforts into restarting returning shows and/or franchises.

And so I’ve been focused for the past week mainly on the copyedit for my novel (PROJECT FROST). That was a fascinating exercise and I’m grateful to my copy editor for being brilliant and — stunningly — even more OCD than I am.

I also got a look at the preliminary design for the book’s cover and it’s cool beyond my wildest expectations.

THE WGA DEAL

This week, I also voted on whether to ratify the new Minimum Basic Agreement (MBA) the WGA made with the Alliance of Motion Picture and Television Producers (a/k/a AMPTP a/k/a the guys we’ve been striking against for the past five months.

As a matter of principle, I won’t reveal what my vote was, but I can say a few things about the deal in general.

First and foremost, I think it’s a good deal. However, where the deal falls on the spectrum of bad to good to “exceptional” (to use the Negotiating Committee’s description) really depends, I think, on what metric one is applying to it. For example, if you are comparing this deal to the one achieved in 1960, the last time WGA and SAG went on strike in tandem, you’re likely to be very, very disappointed. But I really think that’s an unfair yardstick. (If for no other reason than that Hollywood teaches us that the sequel is rarely as accomplished as the original.)

No, I prefer to measure the deal against the following question: Was it worth five months of being on strike? The more I review the deal and its specifics the more I am convinced that it is. And although the devil is usually in the details, in this case I find that the deal is better for the precedents it sets rather than the specific benchmarks and minimums we gained. Here, for me, are the high points in no particular order:

Unlike previous contract negotiations — and perhaps for the first time ever — we gained something for all areas/members of the Guild. Typically, we trade away something in X area to get something in Y — that’s, y’know, negotiating — but that didn’t happen this time. That alone is incredibly remarkable.
Jurisdiction over comedy/variety writing for streaming.
Two-step deals for feature writers. Yes, we had this before the 2007/2008 strike. Yes, the number of applicable scripts is relatively small. But the thing to remember here is that this is called the “Minimum Basic Agreement” for a reason. (Spoiler: It’s the word “minimum.”) We’re setting floors here. We’re setting precedents. And if something is available at minimum, it’s hard to argue that it shouldn’t be given to writers working above minimum (also known as “over scale.”)
Script fees for Staff Writers. It’s hard to believe, but Staff Writers (entry-level writers on a staff) weren’t paid for the scripts they wrote. Now they will be. Huge. (Full disclosure: Script fees for Staff Writers were offered by the studios before we went on strike.)
Minimum staff size mandates. Personally, I don’t think this was the “hill to die on” (to use Negotiating Committee chair Chris Keyser’s phrase) that others believed it was. And I question what other gains we could have made in other areas had this not been our primary focus. But it’s nevertheless an impressive gain in that (a) the studios originally said that they would never give on it, so it’s a pretty huge concession; and (b) it does the very important — in fact, critical — work of memorializing the need and existence of a writers room. And the really wonderful surprise was that the provision also includes an unprecedented definition of “showrunner.”
Writers on set and in post-production. Technically, this is a function of the minimum room size aspect of the deal, but it’s huge enough to warrant its own bullet point. Under the terms of the deal, writers can now return to produce their episodes on short-order shows. And the way the provision is phrased (I won’t get into the minutiae here) creates maximum flexibility and allows for production to be covered by a writer even if the original writer of the episode is unavailable to do so themselves. Really, really great.
Pension and health parity for writing teams. In another “what do you mean this wasn’t already the case?” get, writing teams now receive pension and health contributions as though they were two (or more) people. Y’know, like the way they are two (or more) people. Previously, a writing team had to share pension and health contributions as though they were one single person. So glad that’s no longer the case.
A.I. protections. Reasonable minds can and have differed on whether the Guild should have tried to ban A.I. rather than regulate it, but that debate has long since passed. The language in the new MBA regarding A.I. goes the regulation route and does so extremely well. Great execution of a very tricky — and constantly-changing — subject.
The Guild also “agreed to disagree” with the studios on the subject of using Guild-covered scripts to train A.I. large language models (LLMs). Essentially, the Guild reserved all of its legal rights. While this may seem like a punt, I think it truly is the best — and smartest — thing the Guild could have done. Because writers don’t own the copyrights to their scripts (the studios do), we really don’t have much in the way of standing (to use a legal term) to challenge what the studios do (or don’t do) with those scripts. This is also an area where the courts really need to way in far more than they have at present. It’s smart to let the legal machinery churn for a bit so that we can gain a better idea of what we’re dealing with here from a legal perspective.
Increases in writing minimums and residuals. Who doesn’t like more money?
A new, performance-based residual tier with the smallest modicum of transparency. This is the best example of what I was talking about when I said that the deal is best when viewed through the lens of the precedents it establishes than the specific gains it makes. We got our foot in a very important door with these provisions. Prying the door open further is properly the work of future negotiations.

I’m writing all this off-the-cuff, so I’m sure that there are some deal points that I like and/or are important which I’m forgetting at the moment. But the other yardstick I’ve been using to measure the deal is the following: Could it have been improved upon had we stayed out on strike longer? Or, to put it another way: Did we leave anything on the table?

The answer to both questions, in my opinion, is “no.” Accordingly, on the deal ratification, I voted [CENSORED ON PRINCIPLE].

NEURODIVERGENT B.S.

I rarely remark publicly about Arrow co-creator, Andrew Kreisberg. (If Kreisberg is unfamiliar to you, a good primer can be found here.) The reason for this is twofold. First, commenting on Kreisberg — or even being perceived as doing so — has a tendency to bring out the Twitter trolls, so I’ve learned to remain silent. More importantly, though, talking about him dredges up memories of an experience I’d just as soon forget. (TLDR: While working with Kreisberg, I had to up my medication and go to therapy twice a week — one session with a psychologist, the other with a psychiatrist — in order to deal with depression and suicidal ideation.)

However, something was reported on earlier this week that made my blood boil to such scalding levels that I can’t let it pass without comment.

The full article in Vanity Fair can be found here, but this is the short version: In May 2022, Kreisberg attended a bar mitzvah where, according to court records, he approached a friend of his wife’s from behind, “grabbed [their] waist firmly, and thrust his fully erect penis into [their] buttocks twice.” The individual filed criminal charges.

Kreisberg’s attorney responded with a statement to Vanity Fair which said, in part, that Kreisberg “is misunderstood for being a neurodivergent individual who is socially awkward. Your article will be another event of the ableist bullying of people who are neurodivergent as they are misperceived.”

(No, you read that right.)

I worked with Kreisberg on Eli Stone from 2008 to 2009. I then worked with him on Arrow from 2012 to 2017, when he was fired for being physically and verbally inappropriate in the workplace. Apart from comics, the two fields I’ve worked in are the entertainment industry and law, neither of which is renowned for their quality of human being. But I can say without equivocation that Kreisberg is easily the worst person I’ve ever had the misfortune of working with.

I can also say with the same ironclad certainty that Kreisberg is neither neurodivergent nor socially awkward. A simple YouTube search will surface dozens of video interviews that clearly make that point.

No, what Kreisberg is — simply put — is an asshole and a bully. And the idea that he would falsely label himself as neurodivergent in an apparent attempt to cloak himself in some perversion of victimhood is offensive in the extreme — particularly to those who truly are neurodivergent and for those who truly are victims.

Bullies are always the first ones to claim that they’ve been bullied. Kreisberg is just repeating that same pathetic cycle.

PUBLICITY

Sam Chalsen (hi, Sam!) wrote in with what I thought was a very interesting question worthy of exploration here:

I've seen you quoted in quite a few different trades throughout the strike (always very astutely, I might add!). How does that end up happening and with such frequency? Are you on these reporters' go-to lists for comments? Are they reaching out to you via Twitter, through a publicist/reps, etc?

Great question, Sam. (And thank you for the kind words.) The short answer is: “Yeah, it’s weird, right?” But the longer answer is: “It depends.” For example, during the WGA strike, a lot of reporters reached out to get my thoughts about A.I. largely in response to things I wrote about A.I. in this very newsletter. (BTW, I don’t even know how they got my contact information, but I guess that’s what makes them reporters.)

In other cases, I was contacted by reporters who I’d already had pre-existing relationships with. In most cases, these are reporters I’ve known for years and our paths have just crossed from time to time in the ordinary course of business.

Sam also had an equally-good follow-up:

And beyond that if you feel comfortable sharing -- do you feel like it's been helpful for your career to be such a public presence, even if you run the risk of being misquoted or misconstrued?

That’s a tricky one.

On the one hand, like most creators/showrunners, I’ve been encouraged to cultivate an outward-facing profile in order to promote the various projects I’ve been involved with over the years. Whether the juice has been worth the squeeze in this regard is debatable, but it’s not worth testing out the counter-factual by not promoting a project.

That being said, Sam’s question was specifically focused on public comments I’ve made unrelated to projects I’m trying to promote — e.g., A.I. and the writers strike. The honest answer here is that it’s probably not worth being such a public presence particularly, as Sam points out, given the possibility of being misquoted or misconstrued.

So why do I do it?

I dunno, to be honest. In a lot of cases, it’s as simple as the reporters in question have become friends or, at least, good acquaintances and I enjoy talking to them. And while I will, when appropriate, speak off the record or on background, I know that it’s helpful to their article to be quoted on the record when I feel comfortable doing so.

I guess the most honest answer is that I do it because someone’s asking.

Thanks for the question, Sam. I love when people write in with questions. And speaking of…

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