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November 01, 2007
Bye, Bye T.V. and Movies, Hello Strike
For those who don’t know, the Writer’s Guild of America (WGA) is poised to go on strike. The deadline was midnight on Halloween. Reality T.V. shows will again overrun the airwaves and films that might have gone straight to video will have a better chance to be in a theater. The labor law here may become interesting. The WGA has indicated that any member must “submit to the WGA all unproduced material that's been written for struck companies, plus the status of each project.” The studios are taking the position that the writer contracts negate the labor contracts. As Variety reports Universal’s letter states:
"Pursuant to the agreement between you and Universal, you may not provide or discuss with the WGA any information concerning scripts owned by Universal, including the status of such scripts, the identity of the author thereof, whether or not a rewrite or other writing services are being performed and, if so, by whom, nor supply copies of any such scripts (including spec or sample scripts) to the WGA," Universal's letter read. "The supplying of such information would be considered an unauthorized disclosure of Universal's confidential information, and the supplying of scripts would be considered a misappropriation of corporate property," the letter continued.
So there it is. I am not sure how labor law interacts with this position. Nonetheless, the language is familiar. The studios claim that writing is property. They own the property and that allows them to control everything related to it. In addition, the confidential information aspect of the claim gives studios another way to claim that the strike interferes with a valuable asset. As the article notes several possible claims could be brought including, “inducement of breach of contract, interference with prospective economic advantage, misappropriation, conversion and unfair competition.” The WGA argues that the rules are part of enforcing its labor rights and so that it can have information to determine whether “strike-breaking or scab writing” claims have merit. In fact similar rules were in place in 1988 as part of a previous strike.
If labor lawyers have perspectives on this issue, I would love to know what they are. It seems to me that the public policy behind labor law would allow the guild to ask it members to provide this information. Still given the recent practice of the entertainment industry when it perceives something to be property, this strike could turn into another round in the property rights fights.
(Image source: Wikicommons)
Cross-posted at Madisonian.
Posted by Deven Desai at November 1, 2007 01:30 AM
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Comments
Who has time to watch TV?
If American TV writers went on strike, who would notice?
Posted by: Margaret at November 1, 2007 08:41 AM
I'm not a labor lawyer, but the answer likely depends on whether the writer is an employee or contractor.
Copyright laws aside, Cal. Labor Code 2860 says:
"Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment."
I have no idea whether a collective bargaining agreement can modify that basic rule, but that seems a good place to start.
Posted by: Michael Risch at November 1, 2007 12:58 PM
Michael,
Great to hear from you. Interesting idea but how would the status of a project belong to the employer? It may be a trade secret I guess, but I believe that much of this information is not really treated as such. Hollywood shares lists of project status (but maybe with some sort of NDA though I am not sure on that). In addition acquire seems an open-ended term. I wonder whether the law around non-competes in CA would shed light on the topic. Still the Code could play an interesting role in the argument. Thanks.
Posted by: Deven at November 1, 2007 01:12 PM
Deven - glad to see the comment showed up. If the writer is an employee, the statute has been construed to include all employer specific information, including trade secrets and arguably non trade secrets.
If, of course, status lists are shared as a matter of practice then that would also affect the analysis, but the default rule is that the employer owns the trade secret information generated by employees, and some cases extend it to confidential but not trade secret information.
Also, the scripts in progress if done by an employee or under a typical film/tv contract will be a work for hire, and owned by whoever commissioned the work. Sending a copy to the WGA seems like a pretty clear case of copyright infringement, though again I have no idea how collective bargaining agreements or labor laws would affect matters. I suppose one could claim fair use, but it seems to me that would be a tough sell where the script is as of yet unpublished.
Posted by: Michael Risch at November 1, 2007 02:41 PM
I don't have any special insight into this particular issue, but here's my general impression from a labor law perspective:
First, on the question of the writers' status, there wouldn't seem to be any real dispute that they are employees. If they were not, it would be illegal for them to engage in collective bargaining in the first place.
Second, the fact that the employer has some, or even all, property rights in the scripts wouldn't be the end of the discussion. Employers' property right do sometimes give way to employee/union rights under labor law. The union's position in this case appears to be that they need the scripts to fulfill their statutory duty as the writers' bargaining representative. That seems plausible, though I haven't researched the point.
Posted by: eric at November 1, 2007 09:15 PM
