WGA strike could be ending, but Hollywood isn't out of the woods yet

While hopes are high that the writers strike is in its final throes, there's still a long haul ahead. Speculation has been mounting this week that the Writers Guild of America will meet with members on Saturday to present terms of a potential deal as a sort of taste testing (check in with EW.com this weekend for updates). If that presentation goes over well, the WGA board will most likely recommend the deal’s ratification next week and ask members to vote on it.

But then, just when you thought you were out of TV purgatory, the Screen Actors Guild and its bargaining partner, the American Federation of Television and Radio Artists (AFTRA), will begin negotiating their contracts with the Alliance of Motion Picture & Television Producers. The thorny issues at stake? New media (of course), DVD residuals, and SAG's volatile relationship with AFTRA. We're going to go out on a limb and say it's not going to be pretty. To break things down, we spoke to Jonathan Handel, an entertainment attorney for TroyGould and a former associate counsel for the WGA, about what’s come to pass and what’s yet to be.

ENTERTAINMENT WEEKLY: Do you think there will be any problems with ratifying the contract once the WGA board gives its stamp of approval?
JONATHAN HANDEL: It depends on whether there's a sharply split board or not. If you do get a sharp split, then you may see a less-than-overwhelming ratification. I would think, given the details that are emerging, that this contract will get ratified.

How do you think this is going to affect the way the TV networks do business, if at all, in comparison to the ’88 strike?
I think that there will be some permanent loss of audience, just as there was in '88. [The strike has] driven people more to the Internet, and I’ve had civilians spontaneously say to me, "These companies seem to be assuming that I’m just going to pick up my viewing habits where they left off, and that’s not the case." Sort of unsolicited comments... so in terms of the way the industry does business, I do think that pilot season will be a reduced phenomenon for a number of years. You do have to wonder whether they’ll be backsliding and people will start spending money like it’s water again. But for the next several years, particularly with where the economy is and reduced viewership, I think there will be few pilots, and I think they’ll be less expensive. And the upfronts will change similarly. I think there will definitely be fewer housekeeping and overall deals. They’re not going to restore everyone on force majeure by a long shot.

I would imagine that a lot of writers are scared that they won’t be coming back, especially since reality TV has been dominating airwaves for the last several weeks.
I think people are scared and resentful. It’s going to take a while for some of it to dissipate and some of it’s going to linger for quite some time. The interesting question is: To what extent are writers going to start to engage the Internet more assertively? Are writers becoming informal directors because they’re picking up cameras and doing YouTube videos? That’s got to be transformative for some of them. You have reportedly about a half-dozen separate groups of writers seeking funding to create mini production companies with an Internet orientation. Quarterlife certainly weighs on people’s minds [as] kind of a signal to people that there may be a way of getting TV deals that involve back-dooring through the Internet.

Do you think the approaching Oscars was a big force in getting both sides to the table last weekend?
Absolutely. I think that and the desire to partially salvage this television season, to get more original episodes on the air before the season ended. The writers really struck a strategic blow with the Globes. I mean, they turned the Globes into a cut-rate press conference. The Oscars would turn into either a press conference or a clip show, and neither one of those is particularly romantic.

But we still have the SAG negotiations to look forward to. Traditionally, SAG and AFTRA have been partners and negotiated their contract with the AMPTP together. But there’s been a lot of infighting within SAG’s East and West coasts and with AFTRA, right?
Right -- the East is really more aligned with AFTRA. In fact, reportedly everywhere except the Hollywood branch is more aligned with AFTRA. [AFTRA is] more moderate.

SAG has aggressive leadership, with national executive director Doug Allen and those guys.
And [national president Alan] Rosenberg. And that was maybe [about] three years ago. There was really this rumbling, and now you see that bearing fruit in the whole SAG-AFTRA dispute. And SAG has said that they’re not necessarily going to the Writers Guild deal as an unaltered template, just as the writers said about the Directors Guild deal. So this story is not going to end with the settling of the Writers Guild strike.

SAG actually wanted to negotiate on its own, is that right?
That’s exactly right. SAG moved to schedule a vote for the next month [on] joint bargaining relationships, which is called the Phase 1 agreement. The reason SAG brought that up was because there’s 50/50 representation on the bargaining committee, even though most of the earnings come through the SAG agreement. SAG didn’t want to be dragged into a more moderate position by having 50 percent of the negotiating committee be AFTRA.

And to one-up SAG, in a sense, AFTRA said it will go into negotiations early.
AFTRA says they’ll start negotiating March 1 and try to preempt SAG from trying to do a more assertive deal. It undercuts SAG’s leverage, particularly if AFTRA tries to gain more assertive jurisdiction. So we’re not out of the woods. This has got to be the bumpiest negotiating cycle for Hollywood labor in several decades.

Who has control over what?
Historically, AFTRA had jurisdiction over taped shows, and SAG over film. What that meant was taped shows — in addition to late-night and stuff like that — would be half-hour, multi-camera comedies. But as this stuff gets shot on HD... you get AFTRA trying to push for additional SAG jurisdiction. If a movie is shot on HD, is AFTRA going to push for jurisdiction? They might. And if you have overlapping jurisdiction, it gives the producer the opportunity to pick and choose which union has a more management-friendly deal. And that’s going to be AFTRA.

How will this affect motion pictures?
Unless [SAG] pre-negotiates a deal and gets that done, which doesn’t sound like it’s happening, you’re going to get a de facto strike. People aren’t going to greenlight features that would start beyond mid-March or so because they’d be scared that it might fall into a situation where they couldn’t complete principal photography because of a potential strike.

What other issues are there?
The writers had wanted an increase in the home video residual [DVDs] and they took that off the table in November. SAG has said they don’t consider it off the table for themselves. They want an increase in what talent gets paid on home video, and that’s going to be a really contentious issue. There are so many moving parts here, in terms of all these unions with their splits and the conflicts between unions. The reality and the animation thing is a conflict between the writers and the [International Alliance of Theatrical Stage Employees].

Jurisdiction over reality and animation TV has been a conflict, too. Who ultimately has say in the matter?
There are two ways you get jurisdiction over a particular show: One is on a show-by-show basis. For example, most Fox primetime animation actually is covered by the Writers Guild. But what the writers wanted was blanket jurisdiction for those areas, and the International Alliance of Theatrical Stage Employees covers more animation and has had more success in reality. The AMPTP definitely has a concern over it [but] they don’t want to step in the middle of it. If the Writers Guild could control reality as well, they could bring the television industry quickly to its knees and that would give them so much leverage for the next negotiating cycle because the networks wouldn’t have anything to substitute for the loss of programming. So pigs can get wings and fly down Wilshire Boulevard in black Armani, and the studios would still never give the writers jurisdiction over reality. It was a complete non-starter from day one.

Visit Handel's blog at digitalmedialaw.blogspot.com.