Who is a “Film by?” The Writers Guild vs The Directors Guild

The Preamble: The WGA on Possessive Credits

The
Writers Guild of America’s 2017 Theatrical and Television Minimum
Basic Agreement (MBA) begins with a preamble focusing on an oddly
specific topic: “Possessive Credits.” The agreement as a whole is sprawling and
broad, and clocks in at nearly 700 pages. This places it somewhere between Crime and Punishment and War and Peace in terms of sheer length.
That being the case, it is striking that the parties chose not to start with
definitions, or more central labor issues like wages or working conditions, and
instead dedicated page one to what is sometimes derisively known as the “Vanity
Credit.”

The
MBA is a collectively bargained, industry-wide labor agreement negotiated by
two parties which are themselves affiliations of multiple players in the
entertainment industry. The first party is the Writers Guild of America (WGA).
The WGA is actually two separate, though closely affiliated, labor unions, the WGA
East and
the WGA West,
which coordinate and operate as one body for collective bargaining and other
purposes. The other party is the Alliance of Motion Picture and Television
Producers (AMPTP),
which represents most of the traditional major film and television producers
and is “the trade association responsible for negotiating virtually all
industry-wide guild and union contracts.” The current MBA runs until 2020, and
each agreement typically lasts for three years. The preamble on possessive
credits refers to negotiations which took place in 1995, and has been a
consistent part of the WGA’s MBA since at least 2001.

“Possessive
credits” are defined in the agreement
as credits “in the film and television industry … which attribute, impute
and/or which could be reasonably construed to credit a person with authorship
of a film.” The agreement lists three examples of such credits, “A Film By
______,” “Pat Brown’s [title of film],” and “A Robin Smith Film.” The WGA
objects to the use of such credits to refer to a person “who has not both
written and directed” a film. The WGA alleges “[t]he
widespread use of the credit denigrates the creative contributions of others.”
Further, the WGA says this denigration of contribution extends to all artists
contributing to the film, not just the writers.

This author understands the WGA’s argument to be straight-forward and based on a fundamental idea that credit and credits should be allotted fairly, plainly, and consistently based on actual contribution. While not directly addressed in the preamble, another issue is that possessive credits have become so commonplace and normalized that individuals will ask for and receive possessive credits in cases where their contribution to the film does not deserve a higher credit. Therefore, a collectively bargained agreement setting restrictions may be the only way to curb the widespread practice, and better ensure accurate and fair distribution of credit.

The reason the MBA addresses possessive credits on page one via preamble, instead of alongside other agreements pertaining to credits, is that there is no agreement on possessive credits. Instead, the preamble serves to memorialize the failure to reach a workable compromise on this issue during the negotiation of the 1995 basic agreement, and emphasize the desire of the WGA to reach an agreement restricting possessive credits in the future. The continuing weight the WGA places on the subject is reflected in the decision to include the preamble in each of its MBAs since at least 2001. For their part, the companies represented by the AMPTP say in the MBA that they would be willing to negotiate further on this issue. However, the companies acknowledge that meaningful negotiations on this issue would require the presence of a 3rd major player in the industry, the Directors Guild of America (DGA).

The Dispute: The DGA on Possessive Credits

The WGA’s preamble refers only to a failure in 1995 to reach an agreement on the restriction. What it fails to mention is a more successful, though nearly disastrous, negotiation between the WGA and the AMPTP in the 60s. After news that the WGA’s 1968 MBA was to impose a number of restrictions on the issuance of possessive credits, the DGA responded swiftly and forcefully.

In
a telegram
to the AMPTP, the DGA’s President said the guild would not “accept or
abide by your attempt to bargain away, in private council to which we were not
a party, credit rights of motion picture directors which have been long
established by industry custom and practice.” The DGA then threatened to
strike, advising its members to withhold services from any producer enforcing
the new restrictions. The AMPTP quickly acquiesced to the DGA’s demands to not
enforce the new provisions. The AMPTP’s actions prevented the strike, but also
effectively left the fate of possessive credits firmly in the hands of the
directors.

It makes sense that the DGA would react strongly to restrictions on possessive credits and consider itself a necessary party to any negotiations on the subject. In most instances, directors are the ones who receive such credits. An agreement between the WGA and the AMPTP restricting a company’s ability to issue possessive credits would remove much of the freedom directors have so far had to negotiate for possessive credits.

The DGA defends the use of possessive credits on at least three separate grounds. First, the DGA argues that possessive credits serve as “artistic recognition for exemplary work.” As to this point, the DGA notes that possessive credits have been a part of the film industry since 1915, when D.W. Griffith first received the credit. Further, the DGA notes that possessive credits have been awarded to individuals other than directors, including both screenwriters and the authors of the original source material. One recent example was Tyler Perry’s Diary of a Mad Black Woman, in which Perry, who wrote the source material and the screen play, and also starred in the film, was given a possessive credit despite not being the director. However, Perry does often both write and direct his movies, and, in these instances, he typifies the type of writer/director that the WGA thinks possessive credits should be limited to.

The second defense of possessive credit the DGA puts forth is economic. The DGA says possessive credits are “branding and marketing tools that are individually negotiated by the director with the company producing the film.” This theory posits that audiences may be attracted to certain films specifically because of possessive credits. The idea is that audiences will be attracted to movies they think are closely associated with an artist, regardless of what role that individual actually filled during production.

Finally, the DGA’s most compelling argument is simply that while the entertainment industry’s labor agreements set important base standards, and help ensure that all contributors get at least the minimum amount of credit they should, these agreements nevertheless should not limit the freedom for any artist to negotiate a higher credit. The reasoning goes that artists should be able to negotiate higher credits over the minimum the same way they are free to negotiate for higher wages than the minimums established in the agreements. While this freedom is most frequently exercised by directors, the DGA notes that it “has never sought exclusive rights to possessory credits, and everyone involved in a motion picture is eligible to seek such a credit.”

Room for Compromise?

While the DGA has taken a firm stance against the WGA’s desire for restricting possessive credits to someone with sole author and director status, the DGA agrees with the WGA that possessive credit is often awarded too freely. In 2001, a meeting between the WGA, the DGA, and entertainment companies took place to discuss possible compromises on the issue. In a letter to guild members, the DGA’s President wrote that the DGA’s leadership “put forward proposals that we believe would have been a major step toward enhancing the value and meaning of this credit… The DGA will continue to explore possible solutions to the proliferation of possessory credits and protective measures for the historic value of the credit.”

 The DGA lines out this position on its website:

“The
basic principle regarding possessive credits should be freedom of Director and
Employer to negotiate for them freely, in accordance with 8-104 of the DGA
Basic Agreement. However, practices in the industry have served to lessen the
significance of the possessory credit by according it to Directors without
discrimination or determination of merit.”

Acknowledging
the overuse of possessive credit, the DGA has taken action attempting to curb
the practice without entirely restricting the freedom to negotiate for them. In
2004, the DGA implemented a
side-letter to its MBA that set some restrictions on awarding
possessive credits to a first-time director and deleted a provision of the MBA
which in some instances mandated possessive credit on billboards.

Further
the DGA has offered non-binding recommendations
that possessive credits “only be accorded to directors who:

• Have established their names as marketable with audiences or are acclaimed by critics
• or have established a signature style of filmmaking
• or have a substantial body of work as a Director consisting of not less than three feature-length theatrical motion pictures
• or have had a possessory credit on a previous film.”

Ultimately, this author suspects that the visibility of the WGA’s preamble on possessive credits played a role in bringing the DGA to the table. However, as of 2017, the preamble on possessive credits has retained the same language and same prominent position in the WGA’s MBA it had in 2001. This indicates that despite the DGA’s attempts, both formal and informal, to curb the use of possessive credits, the WGA stands by its position that possessive credit should be restricted to limited circumstances by industry-wide agreement. Given this, and the larger contentious history, it is unlikely that a compromise that satisfies both guilds will be coming any day soon.

Daniel Paxton is a JD candidate, 2020, at NYU School of Law.