In a down to the wire bargaining session, the Writers Guild of America negotiating committee reached agreement with the studios on a new three-year deal. This was unanimously approved by the governing boards of the WGA West and East and will go to the membership for likely ratification later this month. The pact averts what was widely seen pre-COVID as the very real possibility of a writers strike.

The terms track gains previously won by the Directors Guild and the Screen Actors Guild, including substantial increases in residuals for high-budget streaming programs on subscription services like Netflix. The union negotiators were also able to obtain concessions that are of special concern to writers facing a world in which a typical series season is more likely to be eight or ten episodes than 22. The new contract will set limits on the length of time that a writer can be held under off the market under an exclusive option after completing work on a short season. It also sets a threshold minimum that writers must earn over the course of a season when they are paid on an episodic basis.

Hollywood is breathing a sigh of relief that these rocky negotiations are concluded. The town faces many challenges ahead as productions struggle to restart in the face of the pandemic.  Labor unrest is one less obstacle on that path.

 

A planned Netflix movie about Sherlock Holmes’s sister is the target of a lawsuit from the estate of Arthur Conan Doyle, the creator of the legendary detective. The estate has asserted both copyright and trademark claims.

The estate will have to walk a narrow path to prevail on its copyright claims. All but the last ten Sherlock Holmes stories have fallen into the public domain.  A 2014 Federal Circuit Court decision ruled that the attributes of the character had done so as well. The estate’s claim is that those ten stories still under copyright include “significant new character traits” that Netflix is using in its “Enola Holmes” spinoff. It cites as one example the “warm friendship” between Sherlock Holmes and Dr. Watson that it says was portrayed for the first time in the final Holmes stories.

The complaint also raises trademark claims. From the estate’s standpoint, a trademark has the benefit of never expiring as long as it remains in use. In order to prevail on this claim, the Conan Doyle estate will need to make the typical factual showings for trademark infringement: that the Holmes character signifies a source or origin of goods or services and that the Netflix movie would be likely to cause consumers to be confused as to its source or origin.

The performers union, SAG-AFTRA, has reached a deal with the studios for a new three-year contract covering theatrical, television and new media production. The proposal will still need to be approved by the national board and the membership before taking effect.

The proposed contract is patterned on the agreement struck by the Directors Guild earlier this year. It includes wage increases and increased pension and health contributions. The most critical improvement, however, is improved residuals for high-budget streaming productions on services such as Amazon and Hulu.

This leaves only the Writers Guild of America without a deal among the above-the-line unions.  The WGA Agreement was schedule to expire on April 30, but the parties agreed to extend until June 30 in light of the COVID pandemic. There was widespread apprehension of a writers’ strike at the beginning of the year, and the negotiations have not been smooth. At one point, the WGA called the studios group “despicable.” The WGA is also engaged in a battle, in and out of court, with the major talent agencies over package commissions. The pandemic has dampened strike talk somewhat. Attention has turned to establishing protocols for reopening production as writers  look forward to an uncertain job market.

Another blow was struck in the litigation between the Writers Guild of America (WGA) and the top three talent agencies.

In April, the agencies prevailed in their motion to dismiss eight of the nine claims asserted against them by the WGA in the pending US District Court case.  They have now moved to dismiss the remaining claim.

The underlying issue in the case has been the WGA’s contention that the agencies’ practice of collecting packaging commissions is an illegal conflict of interest. Packages are commissions collected directly from networks or studios out of production budgets rather than directly from the clients of the agencies. In April, 2019, it directed its members to fire their agents unless they renounced the practice. This prompted WME, CAA and UTA, the three biggest agencies, to sue the WGA.

The WGA promptly counterclaimed, alleging violations of federal antitrust and racketeering law, of the California antitrust statute (Cartwright Act), fraud and breach of fiduciary duty. Individual writers also joined in each one of these claims. The April ruling by Judge  Andre Birotte dismissed the federal price fixing and racketeering claims for lack of standing, because the alleged harm suffered by the union and its members does not fall under the statute. The court also held that the Guild lacked standing to assert fraud and fiduciary duty claims on behalf of its members.

The agencies have now moved to dismiss the WGA’s Cartwright Act claim. Judge Birotte had let this claim stand because that statute has more expansive standing requirements than the federal statutes. The agencies are asking the judge to reconsider that conclusion. They argue that if writers are given standing to sue, it would open a floodgate of potential plaintiffs resulting in duplicative recoveries and impossible problems of allocation and proof of damages. If the alleged harm of a package commission is that by being paid out of production budgets, the agents are pocketing money that would otherwise be going to writers, the same would apply to directors and performers, and not only them but also to cinematographers, make-up artists and everyone else involved in a production. “The risk of exponential and duplicative claims,” they say, “is precisely why the Cartwright Act does not permit standing in this case.”

The US Copyright Office issued a lengthy report concluding that the Digital Millennium Copyright Act (DMCA) has “tilted askew” in favor of tech companies.  It called on Congress to make changes in the act that will favor copyright owners.

Background

Congress passed the DMCA in 1998. One goal of the Act was to accommodate the growth of websites and internet service providers that host user-generated content. Some of this content infringes third-party copyrights, which presented Congress with the question of allocating the risk of liability for such infringements.

Under the law as it then stood, websites that publish infringing content could be held liable under a theory of contributory infringement. The tech companies argued successfully at the time that they could not realistically be expected to police each one of the millions of posts on their sites. The DMCA resolved this by means of a safe harbor provision. This shifted the burden to copyright owners to police the internet for infringements and send takedown notices in each particular case.

Studios and music companies, the chief victims of online infringement, have long complained about this solution. They say it is expensive and time-consuming to have to send an individual notice for each infringing upload. With no reliable mechanism to shut down repeat infringers, they compare the entire process  to a game of “whack-a-mole.”

Knowledge Requirements

The Copyright Office report recommends that Congress modify the DMCA to strengthen the hands of copyright owners in several respects. Court decisions based on the current statute had made it too easy for websites to deny “knowledge” of infringing content. The report called for changes to make it harder for them to turn a blind eye to systemic infringements.

Repeat Infringers

The Copyright Office also addressed the issue of repeat infringers. The DMCA currently permits providers to terminate the accounts of repeat infringers but does not set clear standards. The report offered two proposals.

First, the report recommended that the statute codify a Fourth Circuit ruling that it is not necessary for a repeat infringer to have been found liable in court. As the Copyright Office put it: “If only those infringers who had repeatedly been adjudged by a court to be liable for copyright infringement — and thereby were already potentially liable for monetary damages — had to worry about having their access … terminated, it is unlikely that such a threat would serve as a deterrent where monetary damages already had not.” It recommended that the appropriate standard should be repeat alleged infringement instead.

The Copyright Office also asked Congress to require all content providers to have a written policy governing repeat infringement. This would effectively overturn a recent Ninth Circuit decision upholding an unwritten policy. The office’s position is that an unwritten policy is an inadequate deterrent to online infringement, saying, “What benefit is it to users if they know only that a policy exists, but are not informed of the code of conduct by which they are expected to govern themselves?”

A Timely New Look

The DMCA went a long way to facilitate the growth of the web that is so much a part of our lives. It reflected a particular balance of interests at the time. As the web has evolved and the statute has been interpreted by the courts, a second look at that balance of interests is certainly timely. The Copyright Office has been issuing a series of reports suggesting updates to copyright law, one of which led to the Music Modernization Act, which was widely praised. Congress should give serious consideration to the recommendations in this latest report.

After something of a war of words, the Writers Guild of America (WGA) and Association of Motion Picture and Television Producers (AMPTP) have resumed negotiations for a new collective bargaining agreement. This agreement will cover writers for film, TV and digital productions.

Residuals for series and feature-length productions made for streaming services are expected to be among the most critical issues under negotiation. The Directors Guild was able to reach agreement with the studios including an increase of up to 50% on residuals for such shows. The DGA is traditionally the first of the above-the-line guilds to complete its three-year deal with the studios. Most of the time, the DGA terms serve as a benchmark in negotiations for the WGA and for SAG-AFTRA, the performers union, both of whose agreements also expire in the same year. COVID-19 has disrupted business as usual, however, and that precedent may not apply this year.

The parties will also be discussing another issue, unique to the pandemic. The WGA asked the AMPTP to agree to extend the period during which union members could earn the threshold amount to qualify for health coverage, since many were out of work. It appeared for a moment that this might derail negotiations entirely. When AMPTP President Carol Lombardini responded to the WGA’s request that she would need to take it back to the AMPTP member studios, chief WGA negotiator David Young fired back with an email saying, “You people are despicable.”

Fortunately for labor peace, both sides have expressed a willingness to address the extension as part of the overall contract negotiations. Lombardini has asked the WGA to tell her how many writers have actually been affected by shutdowns due to the pandemic. Many writers are working in remote writers rooms, while pilot development and screenwriting has always been solitary work well suited to sheltering in place.

The current expiration date of the WGA Agreement is June 30. An objective observer might say that this is not an opportune moment for either writers or studios to want a writers strike. Before the lockdown, there was widespread speculation that a strike was coming; less so now. I will not predict but I can hope.

The organizers of a Salt Lake City comic convention suffered another blow in their long-running trademark battle with the organizers of the San Diego Comic-Con.

The Salt Lake event styled itself as “Salt Lake Comic Con.” The owners of the registered trademark “San Diego Comic-Con” sued for infringement. Nearly six years of litigation culminated in a jury verdict in favor of the San Diego plaintiff.

The defendant appealed to the Ninth Circuit on the ground that “Comic Con” had always been used as an abbreviated term for comic conventions. It was therefore “generic ab initio” and never entitled to trademark protection.  The Circuit Court brushed this argument aside. It simply affirmed the trial court’s findings that there were insufficient facts to support an argument that the mark was generic. It also upheld an award of $3.7 million in attorney’s fees to San Diego Comic-Con’s attorneys, saying that the litigation conduct of the defendant’s attorneys met the standard of an “exceptional” case warranting such a remedy.

Although the coronavirus pandemic has brought production to a virtual standstill, writers, unlike directors and performers, are still able to work on development. While they shelter in place quietly plying their trade, their union has continued to make news.

Agency Litigation

The breaking story is a ruling in the California District Court case between the Writers Guild of America (WGA) and the major talent agencies William Morris Endeavor (WME), Creative Artists Agency (CAA) and United Talent Agency (UTA).

The bone of contention in this litigation  was the agencies’ practice of collecting packaging fees on television series. These are fees paid directly to the agencies by networks rather than by the agency’s clients. The union’s belief was that this created a conflict of interest.  The Guild was also alarmed that agencies were becoming producers and thus potentially hiring their own clients. The Guild directed its members to fire their agents unless they agreed to discontinue these practices, and the agencies sued, alleging an illegal group boycott.

The WGA asserted multiple counterclaims against the agencies, including federal and state price fixing, racketeering and breach of fiduciary duty. In a ruling on April 27, District Judge Andre Birotte, Jr. dismissed eight of the nine claims asserted by the WGA against the agencies.   What remains in the case from the writers’ side are state price fixing claims and the claims of individual writers for breach of fiduciary duty and unfair competition. The agencies’ claims are also still standing.

Packaging Dispute

Things haven’t been all bad for the WGA, however. The union has had surprising success in getting most of the important agencies other than WME, CAA, UTA and ICM Partners to agree to give up producing immediately and to give up packaging in 2021 if the big four have given it up by then. As a result, those agencies are back in business with their writer clients.

Collective Bargaining Agreement

The collective bargaining agreements of all three above the line guilds are up this year as well and once again the WGA is making headlines. The DGA, in typical fashion, had a orderly negotiation and closed a deal on April 2 that included an increase of nearly 50% in directors’ residuals for made-for-streaming programs.  SAG-AFTRA, the performers’ union, began its negotiations on April 27.

Things were not so simple with the WGA.

After some back and forth, the employers’ bargaining unit, the AMPTP, announced that the parties had agreed to extend the current contract from May 1 to June 30. Negotiations for the new agreement would begin on May 11.

What complicated this arrangement was that the WGA lead negotiator, David Young, also proposed as a virus relief effort to extend eligibility for the WGA health plan through the end of the year for writers who would not otherwise qualify. Carol Lombardini, the AMPTP lead negotiator, responded that she would need to discuss that proposal with the studios she represents, not least because the WGA Health Fund is an independent entity jointly managed by labor and management. Young responded to Lombardini in a letter that said in part, “There will be an agreement  when both sides agree there’s one. You people are despicable.”

It is not certain as of today the effect that this will have on the timely commencement of negotiations between the WGA and the AMPTP.

The closure of Broadway theatres amidst the Corona pandemic came as a gut punch. It was swift, sharp and immediately changed the fate of the forty-one theatres that make New York City the center of the global theatrical market. It is a devastating and crippling event for our industry and the world at large, but there are ways in which we can mobilize to address its impact on the theatrical market – and the answer lies, at least in part, in the power of a ticketing pre-sale.

A very quick summary on theatrical ticketing: when patrons purchase tickets to a show, the monies are held in an escrow account until the performance has actually occurred. On a weekly basis (one week in arrears), ticketing agencies remit gross receipts to the theatres and producers, which amounts are thereafter used to cover weekly operating expenses and (hopefully), recoupment/payment of profits. This accounting structure enables theatres and ticketing agencies the ability to issue refunds directly to consumers, should a performance be cancelled.

While producers do not have access to gross receipts until after each performance, the escrow balance (i.e. prospective gross receipts) is a powerful metric when it comes to Broadway budgeting. For instance, if the escrow balance looks low for November, a strong pre-sale for the period commencing on or about Thanksgiving and leading into the holidays will likely protect a show from early closure. Simple (and like any business), the metrics allow producers to amortize the losses of low-grossing periods against higher grossing weeks.

So what does this mean for us now? It means we need to prepare the public to come back to Broadway – and if we start on April 13, 2020 (the currently scheduled re-commencement date), it will likely be too late for shows with less than Hamiltonian numbers. Importantly, refunds for show cancellation will always protect ticket-buyers if further shows are cancelled, so there is little downside to committing to show dates even in light of uncertain times.

Call your parents, circulate emails to your co-workers and make group bookings with your friends. You should be seeing West Side and Company and Jagged Little Pill and How I learned to Drive and of course, the Lehman Trilogy. Six and Doubtfire and Whose Afraid of Virginia Wolf. And Plaza Suite because Bradshaw is back on Broadway and Sing Street because we love an OG musical.

A gut punch hurts, but it’s not a knock out. I won’t give up on this season, and neither should you.

Minute Maid Park
“Minute Maid Park” by clockwerks is licensed under CC BY-SA 2.0

After winning the 2017 World Series, its first in franchise history, the Houston Astros were the envy of the baseball world.  After serving as the league’s doormat with the worst record in baseball in 2011, 2012, and 2013, the Astros rose from the ashes, and in 2017 had perfected one of the most lethal offenses the sport had ever seen, mercilessly embarrassing opposing pitchers at an alarming rate.  One of those pitchers is Mike Bolsinger, a right-handed journeyman who pitched for the Toronto Blue Jays in a 16-7 shellacking against the Astros on their home field, Minute Maid Park, on August 4, 2017.  Bolsinger entered the fourth inning of that game in relief to record the final out of the frame.  He did, but not before he surrendered four runs off four hits and a home run.  At the time, it appeared Bolsinger simply lacked the talent to effectively face Major League hitters and he was demoted to the minor leagues never to play in the Majors again.  Of course, appearances can be deceiving.

Fast forward to January 13, 2020 when Major League Baseball released a ground-shaking report confirming the Astros engaged in an elaborate and longstanding sign-stealing scheme throughout the 2017 regular season, 2017 postseason, and a portion of the 2018 regular season.  The Astros were found to have used a camera positioned in center field to record the signs from an opposing catcher.  Team personnel would then watch the feed in a hallway between the clubhouse and dugout and would relay the signs to the Astros batters by banging a trash can.  This operation was deployed in the majority of Houston’s home games in 2017 with the most bangs heard during the game in which Bolsinger pitched, according to the complaint.

Bolsinger has now sued the Astros in Los Angeles Superior Court for unfair competition, negligence, and tortious interference with contractual and prospective economic relations.  Bolsinger claims his disastrous outing in Houston on August 4, 2017 doomed his baseball career and seeks consequential damages he alleges he incurred as a result of being bounced from the league.  Bolsinger also seeks disgorgement of the Astros’ $31 million in bonuses from the 2017 postseason and requests that these funds be paid to Los Angeles-based charities.  This week, Bolsinger added Astros’ owner, Jim Crane, to the suit as well as Derek Vigoa, the Astros’ current senior manager of team operations who reportedly developed the sign-stealing scheme when Vigoa was an intern with the team in 2016.

There are a few strikes against Bolsinger’s case.  As a procedural matter, Bolsinger chose to sue the Astros in Los Angeles, perhaps to obtain a more favorable jury, and claims venue is proper because member-investors of the team (a limited liability company) reside in Los Angeles.  However, the game in question occurred in Houston and both Bolsinger and the Astros’ organization reside in Texas.  Additionally, Bolsinger may be required to arbitrate his claims as a member of the Major League Baseball Players Association pursuant to the association’s collective bargaining agreement, though Bolsinger may argue his case involves intentional fraud and deceit that transcend an ordinary contractual dispute.  Plus, at least to date, Bolsinger is not suing MLB.

Turning to the substantive merit of Bolsinger’s claims, the fact that the Astros engaged in fraudulent behavior and unfair competition during the 2017 season, as well as in the game in which Bolsinger pitched, is well-documented and not reasonably subject to dispute.  However, whether the Astros caused Bolsinger’s demotion and inability to return to the Majors is up for debate.  Pitching for the Diamondbacks, Dodgers, and Blue Jays, Bolsinger had a career 4.92 ERA and an overall win-loss record of 8-19.  Only two of these games were against the Astros.  Additionally, Houston touched up Bolsinger on his home turf in Toronto earlier in the 2017 season for four runs off six hits and two home runs, so sign-stealing scandal or not, the Astros could argue they had Bolsinger’s number anyway.

How this case proceeds may determine whether other pitchers who suffered adverse career moves after struggling against the Astros in 2017 and 2018 will seek to settle their score in court.  The Astros’ are expected to file a response to Bolsinger’s complaint next month.