Film and Television

“But I’m not a lawyer. I’m an agent.”

Just over a quarter century ago, when I was a young scribbler traipsing around the metro desk of the Baltimore Sun, I had an early opportunity to learn a lesson about money, about ethics, about capitalism and, in particular, about the American entertainment industry. And Dorothy Simon, she raised no fools. I only needed to learn it once.

I learned about something called “packaging.”

And now, finally, my apostasy from newspapering having delivered me from Baltimore realities to film-set make-believe, I am suprised and delighted that many of the fellow scribblers with whom I share a labor union have at last acquired the same hard, ugly lesson:

Packaging is a lie. It is theft. It is fraud. In the hands of the right U.S. Attorney, it might even be prima facie evidence of decades of racketeering. It’s that fucking ugly.

For those of you not in the film and television world, there is no shame in tuning out right now because at its core, the argument over packaging now ongoing between film and television writers and their agents is effectively an argument over an embarrassment of riches. The American entertainment industry is seemingly recession-proof and television writing, specifically, is such a growth industry nowadays that even good and great novelists must be ordered back to their prose manuscripts by book editors for whom the term “showrunner” has become an affront. A lot of people are making good money writing television drama. And so, this fresh argument is about who is making more of that money, and above all, where the greatest benefits accrue.  If you have no skin in the game, I think it reasonable, even prudent, to deliver a no-fucks-to-give exhale and proceed elsewhere.

If, on the other hand, you are my brother or sister in the Writers Guild of America — East or West, it matters not when we stand in solitarity — or conversely, if you are a grasping, fuckfailing greedhead with the Association of Talent Agents, then you might wanna hang around for this:

Here is the story of how as a novice to this industry, I was grifted by my agents and how I learned everything I ever needed to know about packaging.  And here is why I am a solid yes-vote on anything my union puts before me that attacks the incredible ethical affront of this paradigm. Packaging is a racket. It’s corrupt. It is without any basis in either integrity or honor. This little narrative will make that clear. And because I still have a reportorial soul and a journalistic God resides in the details, I will name a name wherever I can.

*           *           *

To begin, I wrote a book. It was a non-fiction account of a year I spent with a shift of homicide detectives in Baltimore, a city ripe with violence and miscalculation. Published in 1991, “Homicide: A Year on the Killing Streets” was repped by my literary agent at the time, an independent attorney who I found because his other clients included some other ink-stained newspaper reporters. Late in 1987, the Baltimore Police Department agreed to let me into its homicide unit for a year beginning that January, so I needed to quickly acquire an agent to sell the project to a publishing house and secure an advance on which to live while I took a leave-of-absence from my newspaper. This agent — and damn, I wish I could name the goniff, but I later signed a cash settlement that said I wouldn’t — was the first name that came to me. I did not shop around; I was in a hurry.  My bad.

Three years later, with the book ready to publish, this shyster suggested to me that he was entirely capable of going to Hollywood with it for a sale of the dramatic rights. And knowing less than a bag of taters about Hollywood, I was ready to agree until my book editor, the worthy John Sterling, then helming the Houghton Mifflin publishing house, told me in no uncertain terms that this was a mistake.

It was customary, John explained, for even the best literary agents to pair with a colleague at one of the bigger entertainment agencies and split the commission.  My literary agent would give up half of his 15 percent to the other agency, but he would gain the expertise of an organization with the connections to move the property around and find the right eyeballs in the film and television industry. So I called my agent back and insisted.

With some initial reluctance, he eventually chose to go with Creative Artists Agency — one of the Big Four, as they call the largest entertainment entities repping talent, and an agent in CAA’s literary division by the name of Matt Snyder.  After making the deal with CAA, my literary agent called me back and said it was customary for me to give up a larger percentage commission as I now had two agents working on my behalf.  How much more? He suggested that he should keep his 15 percent and I should pay CAA an additional 10 percent. So a quarter of the profits from the sale of book would now be siphoned to agency commissions.

I called back John Sterling and asked:  Is this right?

John nearly dropped the phone. No, that is not how it works. Again, he explained that my literary agent was supposed to split the existing 15 percent commission on the book with CAA. The literary agent was supposed to keep 7.5 percent and give the other half to CAA, which in no way was entitled to any cash above and beyond that split.

I called my agent back. No, you split the existing 15 points, I told him. He threw a few chunks of pouty guilt at me, but I shrugged him off. This first attempt at a grift should have warned me, but hey, I was young.

Advance the story a couple months later:

CAA has sent the book to about a dozen A-list film directors, where it lays in their offices like a stale bagel, unloved and unsold. No one can figure out how to transform a year in the professional lives of a half dozen Baltimore death investigators into a feature film. Matt Snyder is bereft of a next idea. He does have one small-option offer from a small indy company. I get on the phone with a producer there and ask for his credits and it’s pretty clear, even to me, that it’s short money for a project that probably goes nowhere.

I call Snyder back.

Hey, I wonder aloud, how about Barry Levinson? He’s from Baltimore. He makes movies. Maybe he’ll like it. Did I mention he’s from Baltimore? Have you seen Diner? Tin Men?  I sure do love me some Diner.

This is the sum of my contribution to the initial sale of Homicide to Levinson and NBC, but let’s at least note that it’s the only salient action that would matter, because when CAA sent the book to Levinson, it turned out he was in negotiations with NBC to deliver a television series.  Gail Mutrux in his office read the book and put it in front of her boss; Homicide: Life on the Street was born.

So, great.

Then the contract comes back from Baltimore Pictures and while it’s all found money for a police reporter and rewrite man who’s working for union scale at The Sun, I check with some other authors who have sold stuff to Hollywood and they all acknowledge it’s on the low-end of where such offers usually reside.  Fine for the option money, a little light on the contingent pilot, pick-up and episodic payments and, of course, farce on the definition of net profits.  So I call Matt Snyder back and say so: This seems a little light and it’s a first offer. Let’s go back to Levinson with a counter.

And Matt Snyder of CAA acts as if his client, me, has just thrown a dead, rancid dog on the table. This is my first book sale to Hollywood and Barry Levinson is an A-lister; I should be grateful for this offer and worried that if I nickel-and-dime, Levinson may develop something else for his first television series. Reluctantly, as if he is being asked to traverse a vale of danger and uncertainty, Snyder eventually agrees to go back and see if he can’t get, maybe, a bump in the per-episode royalty, maybe $250 an hour. He’ll fight for me. He’ll see what gives. And sure enough, the per-episode fee goes up by 10 percent after Snyder, relentless carnivore that he is, returns to his client with pride and some pocket change.

And now, here’s where the real fun starts:

We push forward a decade to 2002 when I have sold my own dramatic television series to HBO. The Wire pilot turned out well enough that the project is set to get a first-season order from HBO and my television agent, Jeff Jacobs of CAA, suggests to me that this thing might really have legs.

“We want to package you,” he offers.

“Package me?”

“Yeah, we’ll take a package on this project and you get your ten-percent commission back.  Like with Homicide?

Hanh? “Jake, what the fuck are you talking about.”

Homicide was packaged and we’ll do the same thing with The Wire.

“Jake, slow down, what the hell does ‘packaged’ mean?”

And for the first time, Jacobs explains it to me: In order that my agents — the folks who held an absolute fiduciary responsibility to negotiate in good faith on my behalf and on behalf of my book — could be players in the creation of the TV project from that book, in order that they could own a chunk of the project itself and profit by millions of dollars from the work I had asked them to sell, they were willing to return my 7.5 percent commission and the commissions of any other talent they represented, packaging all of us together in a happy bundle for the network. Yes, incredibly, to avoid the most overt and untenable conflict-of-interest, they were willing to heroically give back to me a few thousand dollars in exchange for millions of dollars in points on a piece of NBC’s Homicide: Life on the Street which ran for seven years.

Oh.

“Jake, no one told me. No one said anything to me. Ever.”

There was a quiet on the phone.  Until I asked a second question: “What other talent did you package with me?”

“Barry Levinson.”

At which point, there was no more quiet.

“Jake, do you mean to say that you represented me, a pissant police reporter from Baltimore in a head-on negotiation with one of Hollywood’s A-list directors and you also represented the director?  You represented both sides in the sale of my book and when the low-ball offer came to me, Matt fucking Snyder acted like it was the only offer I might ever get? Is that what you motherfuckers did?”

“I thought you knew.”

“I did not know.”

“Didn’t Matt inform you?”

He did not. Not in any of our conversations.

“Did your book agent tell you?”

He did not.

Then I asked another question: “Jake, do you have any written consent from me on file in which I authorize you to rep both sides of the sale of my book? I will answer that for you: You do not. I never authorized this. Not to CAA. Not to my book agent. I never gave informed consent. I couldn’t. Because I was never informed.”

Had CAA, in fact, returned the 7.5 percent of my commission?

They had — to my book agent, who pocketed it. Quietly. I immediately wrote a letter to that grasping bastard: Dear thief, you will remit all of that 7.5 percent to me by week’s end or I will write up what happened here and have it posted on every Newspaper Guild bulletin board in every newsroom on the Mid-Atlantic seaboard and you will be known for what you are.  Further, I might also contact a U.S. Attorney about a failure of fiduciary responsibility so fundamental that it effectively constitutes the sharing of a bribe in exchange for an agreement to reduce the sale price of my book. Suffice to say, a check to me for the full 7.5 percent arrived within days.

Then I turned to CAA, a Big Four agency that was once fully content to screw me over when I was a stumblefuck newspaper reporter who to their thinking could only provide them with a book or two for sale. Years later, I was now a client about to become a showrunner on a premiere cable network. I had a little more leverage.

“Jake, I’m firing you and I’m taking The Wire and everything else with me.”

“Look,” he pleaded, “I know you’re mad. I don’t blame you. But personally, I didn’t do any of this. I’ve been straight up with you. I wasn’t your agent then. I wasn’t involved in packaging your book.”

No, I explained, but your agency was. And the profits from that are fungible. You’ve been good, Jake. You’ve been fair. But on a lie of omission, CAA — your agency — made millions and millions of dollars and did so by undercutting my negotiation with Levinson and failing to inform me of an absolute conflict of interest. I gotta go.

“What can we do to make this right?”

I thought about that because unlike the fucksquib in CAA’s literary department who should die of venereal boils, I actually liked my TV agent. He had, in fact, been forthright and fair in all of my subsequent years in television. So I explained that the agency had made millions off the conflict of interest and that for a reasonable “taste of their taste” of Homicide, whatever that was, I would remain as his client.

He ran that back up the ladder and came back a few days later: “We can’t do that. If we agree to give you a percentage of our packaging fees, it would set a bad precedent for all of our other packages.”

“Motherfucker, you’re talking about bad precedents? CAA repped both sides of a negotiation without informing me so that your taste of the profits would dwarf mine, your client.  How much money did CAA actually make on Homicide?”

Jake wasn’t allowed to say. Transparency was not an option. Instead, he suggested another path:

“What about a one-time lump sum payment that isn’t officially tied to our package?”

Eventually, frustrated but willing to compromise to keep Jake as my agent, I agreed to allow CAA to write a check for the same “penalty” that I had exacted from my literary agent. Another 7.5 percent of my original commission came back and  yes, Jeff Jacobs has remained my agent to this moment. Oh, I also asked Jake to make his CAA colleague get on the phone. I had some things to say.

I said them, and incredibly, the fiduciary pratfall and ethical void known as Matt Snyder stayed on the other end of that call insisting — after admitting he had no record whatsoever of me being informed of the conflict-of-interest between myself and the buyer of my book, or any claimed recollection of having informed me of such in all of our conversations — that he had done nothing improper, that my literary agent should have explained it all to me.

“Matt — absent any evidence of informed consent by me — that you and CAA proceeded to negotiate with Barry Levinson, whom you also represented, is a prima facie conflict-of-interest and a breach of fiduciary duty. If you were a realtor secretly representing both sides of a house sale, your license would be torn up. If you were a lawyer, you’d be disbarred.”

There was only a small pause before he explained himself:

“But I’m not a lawyer. I’m an agent.”

Yes you are.  Yes you fucking are.

*             *            *

So much of television and film is packaged by the Big Four agencies — CAA, ICM, WME and UTA — that it is now said to be the lion’s share of their income, so much in fact that they are running to Wall Street for equity investment in their producerial role. Fuck repping actors or directors or writers to earn a living. What rube would settle for 10 percent of anything when you can play for 100 percent of your larger stake in a film or a movie?

But of course, the astounding conflict-of-interest that underlies the corruption of packaging doesn’t simply end with the fact that agents no longer have any incentive to properly service the smaller and less advantaged client when they are repping both sides of a negotiation. Never mind the relentless obscenity of telling a seller that you can also rep the buyer and claim to still fight for top dollar.

The greater offense is that packaging has now artificially reduced the salaries of all screenwriters over decades, so much so that entry-level salaries for staffwriters and story editors in television, for example, are exactly where they were a decade ago save for the cost-of-living increases that the writer’s union achieved on its own. For junior producers, it’s even worse: The salaries for co-executive producers are about 16 percent less than where they were two contracts ago.

The agencies themselves like to claim that this is because shows now order fewer episodes and shorter broadcast seasons than in the past and that this structural change has more to do with the stagnation than packaging. But of course, that also begs a question: Where the fuck have the agents been to argue on behalf of their clients for a different pay structure, one that acknowledges the changing reality of fewer episodes and more work in the production of each episode?

I’ll tell you where they’ve been. They’ve been in another room, counting cash. Again, the problem with packaging is not merely that clients are poorly repped in negotiations with other clients. No, it’s bigger than that. The problem is that the agency incentive to package shows and provide larger payments to themselves has obliterated any serious thought about aggressively negotiating on behalf of any writer, or actor, or director, large or small.

Why bother to fight for 10 percent of a few dollars more for this story editor or that co-executive producer of some actor or director when to NOT do so means less freight on the operating budgets of the projects that you yourself hope to profit from?  Why serve your clients as representatives with a fiduciary responsibility and get the last possible dollar for them, when you stand to profit by splitting the proceeds of a production not with labor, but with management — the studios who are cutting you in on the back end?  Why put your client’s interest in direct opposition to your own?

No reason at all.

Perhaps the ugliest tell in the current negotiations between the WGA and the agencies is the incredible, self-oblivious claim by the ATA that writers are naive to think that any of the vast packaging fees, if denied to talent agencies by studios, would ever find their way into the pockets of the writers themselves. No, they insist, the studios will just pocket that money and writers themselves will be no better off.

You grifting, soulless fuckbonnets. You are so divorced from your fundamental ethos that you have actually just made this argument: You as agents are capable of achieving millions in benefits FOR YOURSELVES; you can leverage these profits FOR YOURSELVES if you are permitted to do so.  However, you are claiming in the next lying, mendacious breath that you couldn’t possible achieve any such outcome if you had to do it merely on behalf of YOUR CLIENTS.

In the face of that incredible self-own, I can only respond with a singular question that I would ask of any rank parasite: If you can only leverage profit for yourself, but not for me, what the fuck do I need you for? Why are you on this ride at all? At the point that he can only achieve benefit for himself and not for his client, what the fuck good is an agent?

Years ago, when I first learned about packaging, I asked Jeff Jacobs that same question. He had no good reply then. He has none now. He is still my agent because his agency wrote me a check for some of the damage done in secret and because he promised in no uncertain terms that I would never be packaged again. Nor would my projects be packaged; even though as a showrunner, I could now benefit from lopsided negotiations with others, I won’t do that to fellow writers, actors and directors. This has been the case for nearly two decades now; at the end of every business year, I write a check for 10 percent to CAA and with this client at least, Jake has no incentive to do anything but chase the last dollar for both of us. That’s what an honest agent does. That is ALL an honest agent does.

Has it helped the writers on my shows to never be packaged?  Not as much as it ought. Why not? Because, quite obviously, the entire universe of screenwriters has had salaries and work-quotes depressed for decades by agents who have failed to do their fundamental duty and negotiate for better. I know this because I see the comparable quotes that come into HBO business affairs and how closely they hew to WGA minimums; as a showrunner, it’s not possible to demand that a network spend more of its money to hire writers above their quotes and the quotes of colleagues.  Packaging has, over decades, crippled and circumvented the market for entertainment writers. And every negotiation by every writer with every studio or production entity begins with that fundamental reality. Only the end of packaging will restore a market in which writers are paid competitively for writing.  And only an agent whose priority is having his client paid competitively is a means to achieving that result.

That this corruption has been allowed to go on this long is testament to the greed of the agencies themselves, to the inertia of the talent unions to this point, and to the anecdotal claims of some independent moviemakers that certain film projects only get made because of packaging by talent agencies. But hey, I’m calling bullshit on that, too. For one thing, this simply constitutes a failure to imagine a world that never had a chance to come to be, a world in which agents  work aggressively for a film project not because they have a larger cut of the product, but because the 10 percent commissions on every sold project is the only true currency on which they can rely.  And secondly, it’s fair to suggest that as many movies failed to get made because the packaging limited the negotiation only to writers, directors and actors at a given agency. That’s right: Why get the best talent for the best possible iteration of a story when it doesn’t maximize profit for the agency involved? The tail is wagging the fuck out of the entire dog, often to the great detriment of the work itself.

All in all, I’m delighted that the WGA has finally caught up to this malignant thievery and if indeed, the membership of my union is overwhelmingly convinced of the need to carry this fight forward, then I am certainly a good vote for such. I’ve been a good vote for such since anyone bothered to explain this horror show to me, however belatedly.

I’m for implementing a new code of conduct that requires any agency to abandon packaging before it can be permitted to negotiate with signatories to the WGA contract. And if that means I’ll have to depart from CAA and Jeff Jacobs, then that’s what it means. Bless you, Jake, but right is right and wrong is wrong.

Hell, I’m for more than that.  Personally, I’m for filing a civil suit against the ATA and the Big Four for an overt and organized breach of fiduciary duty in which they have effectively pretended to represent clients while taking bribes from studios to keep those clients’ salaries and benefits lowered across the board. Looking not merely at civil law, but at the federal statutes against extortion and bribery, a curious and ambitious U.S. Attorney might enjoy a deeper dive into the realm of racketeering, because for the life of me, I can’t see a difference between packaging and any prosecutable case of bid-rigging or bribery I ever covered as a reporter in federal or state courts.

For that matter, I’m for riding around Bel Air and Westwood and Santa Monica in a rental car, running up in the driveways of these grifting motherfuckers and slashing tires. I’ve got that much contempt for this level of organized theft and for the tone-deaf defense of it by the ATA. But that’s me as an ex-reporter and a showrunner and a generally pissed-off writer talking. That guy is all in. As a WGAE council member, I’ll eschew the vandalism and listen to the members and support the will of the union as a whole. I just hope, after all these years of being robbed, that my colleagues are as united and as angry as they ought to be.

 

 

 

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