This week we see a significant arbitration take place for members of The Writers Guild of America. One revolving around the thorny issue of a feature film writer’s rights to require an unproduced script. Brandon Blake, entertainment lawyer and industry expert from Blake & Wang P.A, unpacks the new ruling and its future potential.
Echoing the Recent Netflix Ruling
We recently saw (and covered) a landmark ‘self-dealing’ arbitration against Netflix. This case will see over 100 of Netflix’s theatrical releases return over $42M in underpaid residuals to the writers working on them. We have also recently seen another arbitration, this time against Amazon, again dealing with underpaid residuals and interest due on films both produced by Amazon and acquired through other deals.
In the latest arbitration, we see precedent set for a writer to reacquire the rights to an (obviously unproduced) original script. While there are some existing procedures for requisition already contained within the guild’s Minimum Basic Agreement, there’s a lot of muddiness around what constitutes ‘active development’, the critical cornerstone to a studio or production entity avoiding a reacquisition attempt.
Existing precedent states that reacquisition can be attempted in the two years following the lapse of an entity’s five-year window for active development. Any intent to reacquire needs to be stated in writing to the original studio.
Allowing New Development
Obviously, this allows the writer to potentially sell on a ‘dead’ script to a new entity- but it hinges on that reacquisition taking place. This latest win for the WGA saw screenwriter Eric Warren Singer attempting to reacquire his screenplay God Bless the Damned from Indian Paintbrush Productions. An attempt blocked by their claims that it was still in active development.
This claim was based on their stance that another writer would be rewriting the material for them. However, this rewrite was first engaged over two years previously, with no timeline for delivery. Other than this, only ‘agent lunches’ and ‘creative meetings’ could be claimed to show it as in development. There’s also little other evidence that the production company intended to put anything regarding the production in motion.
The WGA’s MBA states that a company should be able to demonstrate applying ‘substantial resources’ to a project, with a firm intent to move it to production. This was the core argument for arbitration. The arbitrator agreed with the WGA that there was insufficient evidence of real commitment to the project, citing that there should be ‘a significant and ongoing financial commitment made by the company to develop the project.’ Singer was thus granted the right to reacquire his original script to shop elsewhere.
While the arbitration decision doesn’t particularly break new ground, it does add considerable clarity to the sticky stance of defining ‘active development’, and will prove very useful over time to other writers who feel that ‘active development’ has become a game played to stop writers acquiring material that there’s no real intention to develop, which is simply being withheld from other entities who would have more serious intent to move it forward actively. As such, it will no doubt provide a fertile field for future issues like Singer’s, and is well worth keeping on the radar as a writer looking to put a piece into the production pipeline.