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.

 

 

 

218 Comments

  • What a glorious call to arms. Today is my birthday, and this letter is a gift that has me grinning from ear to ear. I’m a guy who didn’t grow up with much and didn’t find financial success until well into my thirties. So as a “big four” client now working as an “upper-level” writer, it’s hard for me to bitch about money. I’m currently enjoying far more of it than I ever imagined having. That said, next year I’ll be an Executive Producer on a network show earning $22.5K/ep. Now, if you’re not in the industry, that may sound like a lot of cash… and it is. But if you are in the industry, it might sound like the quote of a writer who’s been on six packaged shows and had his quote surprised throughout his entire career. It doesn’t matter how hard your individual agent(s) fight for you, when the fight itself is rigged.

  • What’s that sound? Thunder” The roar of a lion? No, it’s the sound of clapping by your friend and my friend David Mills, up in heaven reading your words. I still miss him. But, I hear his heart of justice in your words.

  • Thanks for sharing your experience and thoughts, David. I think your industry will benefit from your effort — here, on Twitter and etc. — on this topic. I’m not part of the industry, but I know that writing involves a lot of effort, anguish and soul-searching. The idea of “packaging” people’s blood, sweat and tears and ripping them off is offensive. Thanks again, and I enjoy everything you do.

  • Amazing stuff. When anyone voluntarily returns fees they’re rightfully owed you should probably wonder why. Guess you found out. Let’s hope this becomes packaging’s Norma Rae moment.

  • I have no skin in the game, but DAM IT you are a professional writer so I read it anyways. VERY FUN read and justifiable outrage! Thank you

  • Reckoning day in Hollywood. Why is it that only dysfunctional, greedy people seem to get through the pearly gates? Are these agents the same people who write checks to support liberal causes and fight against Trump? Thank you for your courage and balls. Something many more people need.

  • This blog was shared with me by a member of our east coast group Harvard Square Script Writers, which I direct. I had been following the whole “Bones” situation and also knew about litigation around the show “The Mick” which involved a former member of our organization – https://deadline.com/2017/11/the-mick-fox-lawsuit-the-godmother-wyndham-lewis-1202208584/. In that case, it could be argued that conflicts of interest led to the writer/creator simply being locked out of anything (if what he alleges is true) – a far worse outcome than you experienced.
    The toughest dilemma for most emerging writers is how on earth to stand their ground when they lack your level of clout. Most would kill to be repped by one of the big 4. But new contract requirements would go a long way toward protecting the innocent. Your story is an important cautionary tale. And YES there is strength in numbers. Thanks for writing!

  • This is the clearest explanation of the issues to date. A field guide to fuckbonnet identification… Thanks, David!

  • Wow. Strictly books here–no TV/movie experience or dealings whatsoever. I’ve read for years about Hollywood’s lack of respect for writers, but didn’t realize it extended to other creative talent/front line folks as well.

    Thank you for posting this. I hope your side prevails.

  • Hey David,

    I’m a labor/employment reporter and lawyer at Bloomberg Law, and I focus on the federal labor board and unions, generally. I’ve pitched to my editors a piece on this issue that takes a close look at the legal implications here, and the issue of fiduciary duty, generally, and in its historical application at the agencies. Obviously this story has been broadly covered by the entertainment press, but I think an in-the-weeds, long-form piece about the actual legal arguments and bargaining positions here would be quite useful to the public and various interested parties.

    It’d be great to chat for the planned piece, given that you’re one of the high-profile folks involved who’s actually willing to state his positions on-the-record. Hoping to hear from you!

  • Great piece.

    Thought you might like to know that in the paragraph following the first set of asterisks, “quickly” is misspelled. In the paragraph after that, in the sentence, “And me, knowing less than a bag of taters about Hollywood, was ready…,” “me” should be “I.”

    Not trying to be a dick. Just figured that, given your history with newspapers, you might not be offended by a little copy editing (which, sadly, is all that happens these days: just a little copy editing).

  • David,

    It even goes beyond this. A spouse of a friend once worked at a “production company” in Century City. They “produced” some pretty big film and television shows. The staff there was made up of ex-WME agents who knew fuck all about producing anything more than a double latte from the Coffee Bean across the street. They only produced projects made up of WME clients: actors, directors, writers. If they repped grips, they would have been WME clients, too. The collusion was so rampant the company’s HR department was WME’s HR department. They didn’t hide this blatantly illegal act. They didn’t care.

  • My hero. I’m an autistic writer/filmmaker. I have no ability to discern intent and, like a child, I always believe people who pretend to be working in my interest. Imagine how almost impossible it is to deal with the barracudas in the industry.

    I truly hope I will meet people like you to work with.

    Thank you for fighting for what’s right.

  • David, as a long-time screenwriter and Big Four client, I can only thank you on behalf of myself and many other writers who feel the same way. You’ve articulated this in the perfect way, and it should mandatory reading for anyone who is trying to understand this conflict. Agents have profited off creative talent for way too long and beyond all proportion, and it’s heartening that important voices like yourself are fearlessly exposing their shenanigans. This feels like a watershed moment though, with the ATA running scared and seemingly a huge percentage of writers and producers in solidarity with the Guild’s position.

  • As a former MP Lit agency at two of the four major agencies listed above, I was aware of how packaging never served my writer clients. Indeed, I knew my days were numbered when I refused to “sell” a script I represented to one of our major acting clients with a “vanity deal,” knowing it would never get made. The film eventually got made with outside “elements.” It wasn’t “packaged” with agency clients – but I was persona non grata and it wasn’t long before I was asked to leave. Why on earth would I purposefully “sell” my writers script to one of our acting clients, knowing it would sit on a shelf? It was infuriating.

  • This is likely a significant reason why entertainment lawyers pay such high malpractice insurance premiums. In most jurisdictions, a lawyer would need the informed consent of the client to be in such an inherent position of conflict of interest. Ethics violations can be addressed in a disciplinary complaint. Every state has such a process.

  • It’s the sheer brazenness that shocks. Middlemen enriching themselves at the expense of the system is nothing new in the annals of American business, but how many on being confronted are one part confrontational about the facts, one part insulted the issue is even being brought up? Are they so confident that the legislators have given up enforcing the rules? It’s as if one were to return home to find robbers affronted to find you’d come back so early. There’s no need for conspiracies in today’s America – delusions enabling daylight robbery are a better option for the unethical.

  • Thank you for this, David. It’s great to feel entitled to some righteous anger rather than cowering in fear of losing even more leverage. You’ve fully firmed up my yes vote.

    One question…

    You write that “as a showrunner, it’s not possible to demand that a network spend more of its money to hire writers above their quotes.” While I certainly understand from my own experiences writing for TV that this would run up against a mountain of resistance from producers, studios, networks, my hope would be that someone of your stature and influence — along with the Vince Gilligans, Matthew Weiners, Shonda Rhimeses of the world — would in fact be able to fight for better rates for their writers. Can you explain why it’s not possible?

    Thanks again for the jeremiad…

  • Producers are shaken down too. We often actually do ‘put the package together’ (which is our job) but that money goes to the agency who deems to work with us. If the packaging money isn’t up for grabs they’re out. There is conflict of interest baked into nearly every interaction in the system. Look at the LA law firms. I was briefly repped by a lawyer who negotiated my deal as an exec at an indie studio. He never disclosed that his firm was doing the legal for the studio nor that said studio was giving back end to other execs. When I found out (after I signed), I met with some litigators. Three out of three told me I had a case … but cautioned, did I want to work again?

  • I’m honestly surprised that the WGA hasn’t stomped on this before now. This is fucking TERRIBLE. The very foundation, in fact the genesis of all that is created in Hollywood comes from the creativity of writers, and they get the lowest cut?! WTF happened to ethics?! Thanks for sharing your story (Felicia Day tweeted). I’m not a writer but I am a self proclaimed “story junkie” and am mortified that the people who create our literary works are being scammed like this. I abhor cheaters, and believe they deserve an especially high priority on the torture list in hell.

  • Ignorant me just got turned on to your website by a fellow book scribbler (Thanks, Donna Andrews.) Yours is the career I wanted as a cops-and-courts reporter in Virginia three decades ago. HOMICIDE showed me what reportorial talent I lacked, and by then I’d ended up on the other side of the yellow tape. My 28-year stint as a cop ended with two heart attacks – died, actually – and so finally I had the time and the dislodged fury to write my novel. It comes out in June. This tale of your gantlet of criminal agents, malignant agencies and secret contracts is shocking, especially to a hungry baby writer crawling toward the gold. Thanks for the warning.

    • I’m so happy your book is coming out in June, Mark Bergin. (I clicked on your name, see your earnest sharing about how you got to that point, and am looking forward to some stolen moments so I can read more.)

    • Thank you for using the proper term “gantlet.” I’m kind of tired of visualizing protagonists struggling their way along a line of…..gloves.

  • Why were the studios on board with this? Obviously they have no great desire to pay writers more but it sounds like they were paying the agencies for basically nothing but limiting the talent pool available for their shows and movies.

    • The gain to the studios is that they have artificially reduced the salaries of much of the talent — not just writers, but directors and actors who were packaged. Yes, they paid a fee for that, but much of it is on the back end in profit-sharing with the agencies.

      • As the current poster boy for getting fucked by CAA – my partner Rich Eustis and I created Head of the Class – unknown to us CAA negotiated a gross back end deal for themselves and a net deal for us – in addition to their ‘packaging fees’ they made $12 million and we didn’t get any profits, nor will we. And, at one point we naively asked Bill Haber if we could renegotiate our deal, try to get a gross deal for us. “We’ll do our best,” he said. He reported back that WB wouldn’t do it – of course, they had already given it to CAA! We lost our lawsuit on the statute of limitations. By the way, the Guild offered us no support, I guess we were premature anti-agents.*

        • Michael,

          This T.E. Russell – “Bobby Pace”. I had a blast working with you, Rich and the rest of the staff, cast and crew on Head of the Class. I’m sorry to hear about your getting screwed out of what is rightfully yours. I hope there is a day of reckoning for such egregious behavior.

          All the best,
          T.E.

    • Also, because the agencies threaten to not bring their best talent and properties to any network or studio that bars packages. Although I have never seen that happen entirely, any network who does refuse to “pay packages” is relegated to the second tier of pitch targets when making the round.

    • Important question.

      Three possibilities occur to me, none mutually exclusive, all ethically dubious and against the interests of writers and other talent:

      1. Packaging fees are bad for studios but good for studio executives who want agents to help their careers.

      2. Packaging fees are bad for studios but necessary to get access to agency talent (i.e., extortion by agencies breaching fiduciary duty to clients)

      3. Packaging fees are good for studios: a bribe to agencies to lower talent costs. Dishonest, but economically rational for studio.

  • Great article David! Fun Fact CAA film packaging helped birth the “Direct to Video” VHS market of the late 1980’s -90s. Packaging with just CAA clients led to a lot of bad film the studios deemed unreleasbale. There are a lot of them. Judge Reinhold starred in a bunch.

  • David: Incredible piece. I’m a Yale Law grad litigation partner at King & Spalding in Los Angeles with some relevant background (3 years in house at a studio), and absolutely no loyalties to any agency, studio or anyone in the industry. I’ve been getting forwarded the WGA notices about packaging from my sister in law, who is a member (writer/producer on Handmaids Tale and lots of other shows before that). I’m very interested in being part of this effort to right these wrongs through federal litigation on an ambitious scale and would love to discuss with you further.

  • Jesus. Even here. I thought writers surely were making money, hand over fist, for envisioning and then churning out such exceptional programming in this new era of TV drama.

    But, even here, in what seems like should be a fairly straightforward “transaction,” the little guy gets screwed. Is there no business in this whole fucking country where workers get PAID FOR THEIR WORK?!? Seems not. Workers get their hourly wage and the higher-ups, who contribute NOT A WHIT, walk off with the loot. Vultures. Fucking vultures.

  • As a former prosecutor, and current Co-EP (on everything from Law & Order to Man in the High Castle), the history of packaging looks to me a lot like a text book account of a long-term RICO violation. And, as Simon says, if some smart, ambitious Asst US Atty or even a NY or LA Ass’t DA (as I once was, in NY COUNTY under the legendary Robert Morgenthau) wants to pursue the matter, all I can say is that careers have been made on far less. Mendacity and breach of fiduciary duty is a terrible thing, and the civil actions such behavior may or may not give rise to are all well and good, but the power of the prosecutor is just so much more, well, powerful.

    But to take Simon’s position a step further: it seems to me it is not enough merely to undo the decades of corrupt practices (the C in RICO, btw, stands for “Corrupt”) by civil and/or criminal actions. Should the members of the WGA vote yes to prohibit packaging, terrific; I am certainly voting YES. But going forward we should maybe think about some form of reparations, and the form that comes to mind to this recovering attorney (and no matter what any of the other Law & Order writers say, and they are all friends and sometimes colleagues, I coined that term) is a 20-year reduction of commissions, from 10% to 5%. Think about it: the WGA gets rid of the Rotten Crass Indigestible Oppression (not what RICO stands for, by the way; Racketeer Influenced and Corrupt Organization is the real acronymic) of packaging, and then sticks the knife in deeper by unilaterally dropping the commission rate five points. No packaging fees! No ten per cent!

    And if the agents at the big four kick and scream, let them. There are a lot of young, hungry entertainment attorneys and agents out there who will work their butts off for that 5 per cent, especially if it is 5 per cent of a FUCK WAD LOT MORE MONEY.

    PS – If Simon wants somebody to go with along with him to slash tires, well, I’m from Brooklyn, and it won’t be the first tires I’ve slashed.

    • As a currently inactive (out of state, have been too busy doing dementia care for a parent to bother with practice) member of the Texas State Bar, a jurisdiction whose ethical bar is low enough to be the only jurisdiction to allow attorneys to fee split with non-attorneys for referrals, I am surprised the Big 4 did not require you all to have legal representation based in Texas (i.e. the ATA missed some cash here).
      That said, the #2 complaint about attorneys in any & all jurisdictions is they have no idea who their clients are and/or try to represent too many sides of transactions that foreseeably have interests adverse to one another (#1 is not being timely in either pursuing legal matters for clients and/or in communicating with them).

      I fail to understand how those without bar admissions can do what those with bar admissions cannot ethically do.

      Best of luck to the WGA & in the meantime consider managers and/or attorneys for representation but be sure to demand to know who their other clients are to avoid this conflict of interest mess yet again.

  • Hell yeah. I’m still a newer writer, hoping to be staffed on my first show, but I’ve been following all of this closely. Thank you for calling it out and naming names.

  • This should be required reading in every film and television writing course, so fresh-faced scribblers who have never suffered through contract negotiations or dealt with agents can start to realistically understand the business they hope to enter.

  • Great story David; it’d make an interesting series; has it all, power, greed, deception, innocence.
    Hope all is well – I’ve so enjoyed your work; the “Big Man” sends his love!

  • This needs to be pushed through the judicial system on a class-action basis. Another example of capitalism at it’s worst. I would not surprised if the US Treasury gets a windfall from those tax-evading perps- if they have the nads to follow through on it.

  • Oh, David, I have no skin in this game except being an ex trial lawyer with PTS who has become a vulnerable migrant in Australia. Thank you for cogently explaining a problem that is worthy of the union negotiations, civil, and even criminal matters required to set this right. Hearing your voice has been a welcome respite to the domestic terror grief filling both sides of the Tasman these days. Your example of how to call a fuckbonnet a fuckbonnet whilst eschewing vandalism (and worse) will undoubtedly help many others besides me to stand up and fight the good fight when the fuckbonnets seem to think no one is still paying attention. Mazel tov my brother.

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