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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I am a fledgling film director who is preparing his first feature. I am fairly green in regards to industry practices and that is why I have an entertainment lawyer on retainer. Now, packaging from a writer’s perspective may differ from packaging a film that is already developed but throughout this blog and other articles from other sources that quote Mr. Simon and I have yet to fully grasp why packaging is so wrong.
Representing both sides is clearly wrong and an obvious conflict of interest but if an agency forgoes its commission in order to fast track a project to studios with some of its assets and take a 10% cut on the backend, how is that bad? I mean their efforts did make a project come to fruition in a timely manner, shouldn’t they deserve compensation?
If you can help me sort this out I would appreciate it, the more details the better.
Thanks
It’s because they’re foregoing a commission on 10% of writers’ fees (like 140 grand) and thereby removing their (already minimal, comparatively) motivation to get the best price for the writer, and in exchange they’re getting a percentage of the much larger (easily millions of dollars) back end. If I hire you to get the best deal for me on my script, and you sell my script for the minimum allowable by the writers’ guild instead, you’re not working in my best interests. If the reason you do it is that someone else paid you even more to screw me over, you’re a bad person.
Holy wow…dude you better be carrying a plethora of malpractice insurance & pray daily your clients never figure out how to file ethics complaints in all the jurisdictions in which you are licensed to practice.
Did you even take a legal ethics class in law school? Skip or sleep through the parts on conflicts of interest?
Also what about your jurisdiction(s) policies on legal advertising, fishing for clients & commenting online?!?
[…] If you ever dream of writing for film or television, I hope you’ve kept up with how the WGA is fighting to make sure agents avoid conflicts of interest with their “packaging”. I’ve always hated it. Michael Ovitz talks about how he came up with the idea in his memoir. Agents are supposed to represent their clients, not act like additional producers. If they want to produce and create art, then they should switch jobs. But representing both sides of a negotiation — no. We’ll never know how many mediocre projects could have been stellar if the best people for the job had been hired instead of the project “packaged.” There’s a balanced post with both sides of the argument here. I’m also sharing a post by David Simon, who created Homicide: Life on the Streets and The Wire, who has a great piece about his personal experience with the practice here. […]
[…] calls David Simon’s “But I’m not a lawyer. I’m an agent.” required […]
David,
There is a general misunderstanding with your WGA brothers & sisters and your audience on the legality of packaging that we need to address…
Here are the facts:
1948 – William Morris packages their 1st successful TV series for NBC with “Texaco Star Theater” featuring their client Milton Berle.
1948 -1962 – agencies receive 10% gross packaging fees, of both the production budget and backend profits while provided full production support including legal and accounting.
1959 – Within ten days of sending 2 letters to the State Labor Commissioner (the content of which still has not been released) William Morris, under a cloud of secrecy, receives exemption from the California Labor Commission on Packaging Agreements.
1962 – The Department of Justice held that “…the integration under common ownership of an agency, MCA Artists, and a production company, Revue Pictures, is declared to be a combination to restrain and monopolize interstate trade and commerce in violation of the Sherman and Clayton Acts.” MCA, in violation of Sherman Antitrust Act section 1 & 2, enters into a consent decree and divests itself of its agency business.
1962 – MCA antitrust consent brings an end to agency producing TV series. Agencies are forced to reduce their packaging fees from 10% of budget and profits to a 5-5-10 gross formula (5% of license fee, plus 5% of production deficit after recoupment from 1st dollar proceeds, plus 10% of gross profits). The William Morris Agency has the best packing fee definitions of all agencies.
1964 – California State Labor Commissioner, Sigmund Arywitz in a letter responds to the WGA’s Executive Director Michael Franklin’s request for intervention based on “individual artists are disadvantaged” by packaging deals. The Labor Commissioner takes the position that Labor Code Section 1700.39 which states, “No artists’ manager shall divide fees with an employer, an agent, or other employee of an employer, is interpreted to prohibit the artists’ manager from sharing his fee; the language does not lend itself to a construction of the reverse, a prohibition of the artists’ manager from obtaining a fee from the employer.” The letter goes on further to state that Paragraph 5 of the WGA Rider contains both protective and remedial language to protect the artist from any excessive commission.
Mr. wannabe/apologist,
It’s unethical (and probably illegal) to represent both sides of a transaction without informing and getting consent from both parties.
He’s right: if agents were realty agents, they’d have their licenses torn up and be subject to litigation. Just because they’ve benefited from being grandfathered, talent agents should be subject to the same professional principles of other agents. I agree: sounds like a RICO case to me to be settled with a huge disgorgement of back pay.
[…] Writer’s Guild, Agents and Packaging. Every writer and agent and editor should read this […]
David Simon, you make me miss Robert Altman. Even more.
[…] "“But I’m not a lawyer. I’m an agent.”" […]
Hahahaha i love it! Yep it is like that and then they weep like little girls. Trust me, the women are no better. Better to go indie and then shove it up their arse.
Look at what happened with Michelle Williams and Marky Mark Wahlberg in “All the Money in The World”. Represented by the same agency WME – she got a couple hundred – he got a million for a reshoot.
Thank you. This is very informative. Is there a contract you can create between the writer and whoever trying to show your work to another party preventing this kind of theivery?….very unethical.
A contract to keep everyone honest and accountable. Draw one up and pass it around all writers, potential writers and all around… make sure these f*ckers stay ethical… It would be too hot for their greedy hands unless they get a sudden change of consciousness… yeah right.
Reading about your experience for TV…. Hollywood would be as worse. Keeping this in mind… I am glad I have thought enough to know there are other options of distributing my work without losing profits and ownership and more options of different type of fundings & marketing … leveling the field against the big greedy corporate since I am a new writer and a director.
Thank you.
Bravo. Fuckbonnet. I’m using that when my kids aren’t around.
Thank you, David for your enlightening and inspiring thoughts.
Seems more of an antitrust violation than anything else. And there’s precedent for going after it: the Justice Department’s case against MCA in the 1960s.
As someone embroiled in the midst of a similar situation on the packaging front, I must say undeniably that I will #standwithsimon
Economist & Political Scientist turned screenwriter: Reasons I’m going full independent:
1. This.
2. Those currently winning at this broken system don’t understand how the WGA minimums are simultaneously entrenching the same big interests and pushing out smaller and newer players, since, again, nobody went broke trying to remake the last thing that worked… so instead of actually making writers partners in the projects they produce, first and foremost, complete with a share of the production, what instead happens is a massive class-based price-fixing scheme. Knowing how many eyeballs need to see an hour of television to make those royalties profitable means that there’s a very clear line between what can have a chance to sell and what doesn’t get a chance. These minimums assume that all creators are reasonably equally capitalized and deny those who aren’t sufficient access to talent (hate to tell you, but as you well know, working conditions are a major determinant in worker satisfaction, and thus pay.)
3. The agents, are indeed, middle-men. Returning to a system where producers marshall and work with talent is probably to the benefit of both sides… BUT:
4. There’s a tension between established players and the ‘unfair competition’ that fair competition might engender, so together WGA and SAG and the large studios work to ensure that those who are in stay in… and we conflate that small population with those working in this industry… you better believe I resent the shit out of that after having written a pilot designed to be shot on a budget of a sandwich.
The WGA has fought for protections and living wages for film and television writers for decades. What gains have been made in this industry can be singularly credited to collective bargaining.
If you want to scab, you’ll find no support here. Union, union, union.
#standwithsimon
May I ask about the similar situation with SAG? SAG pushed back on packaging 27 years ago, threatened the ATA to stop and the ATA called their bluff. It made no difference. It was business as usual. Will that happen here? And, will Guild members simply declare Financial Core?
I’m at CAA. I am one inch away from selling a show, after slogging away in this business for 15 years. I have a real ticking clock on my dire financial situation. This is agonizing.
This piece hits home for me even though I’m not a screenwriter. I’ve written comic books for the past 35 years in that field you rely on your publisher to watch out for your interests when dealing with H’wood. But with Disney and Warners owning the two largest publishers, our % of participation was negotiated away when the parent companies “redefined net receipts.” If Paramount had made Dark Knight Rises instead of Warners, I’d be a fucking multi-millionaire.
I hope this crystal clear definition of what agents are doing to writers causes enough noise to make a change.
I’m finally watching The Wire on my urging of my 40 year-old son. It’s terrific. Your post here gives me pause as I want to sell one of historical fiction novels to be seen as a series on a streaming channel. This is pretty scary.
Like you I am also watching the Wire for the first time and I concur it is terrific. This comment may seem off topic, but based on the content of The Wire it is on the mark.
[…] But I’m Not a Lawyer, I’m an Agent: Want to understand the fight between the WGA and the agencies about packaging fees? Nope, but you probably want a good read anyway? If you read one thing this week, make it David Simon’s take-down of CAA and other agents. Laugh a minute stuff here, but dead-serious as well. […]
[…] any authors who didn’t think I was serious last time, a reader provides another case study in why you need to fire your literary agent. Or better yet, never hire one in the first […]
more intel on MS https://www.facebook.com/TridentMediaGroup/posts/agent-beware-of-matthew-snyder-at-caaa-heads-up-to-all-in-the-industry-who-use-s/586230124746369/
The legacy of Mike Ovitz?
I only wish that I was successful enough to have been ripped off more.
Be that as it may, in solidarity we stand.
M. Dixon
This blog post is absolutely brilliant and so infuriating! What deception! Thank you, David Simon, for speaking out and for shining a scorching light on the greed and misdeeds of agents. The Big Four have a stranglehold on the industry and especially on writers. It’s the perfect time for all these scammers to be exposed for their lies and backroom deals.
You didn’t really define what packaging is. I gather that the main problem is that the agency gets paid additional money, a packaging fee, on top of their commission. Still, that’s an inference; you didn’t quite say it explicitly. To really ban the practice you’ll need not just to define it but to provide an airtight definition that can’t be weaseled out of — unless, as you suggest, it already falls under existing law, such as that against kickbacks. (But having recently read Popehat’s “It’s not RICO, dammit” explainer, I don’t think RICO will be of much use here.)
Anyway, newbies are taken advantage of in every field; when one sort of abuse becomes notorious, another arises to take its place. Still, playing whack-a-mole with abuses is better than ignoring them, and that was sure a thunderous whack.
I defined it quite well, in my opinion. By means of example, a whole host of people seem to understand it at this point. But you do you.
Indeed Simon. I agree you gave what i thought was a bit technical jargon but nonetheless it actually made sense.
Well, try to frame an airtight definition, and you’ll see it isn’t easy. Ban “packaging”, the word, and they’ll just change the terms of the packaging contract slightly and call it something else. (They’re probably already starting on this one.) Or ban fees paid for assembling two or more creators’ works into a package, and they’ll find some way to get paid that doesn’t nominally involve assembling. (They won’t do it immediately, of course; they’re respectable people and will wait a decent interval until your attention is elsewhere. Then one sharp guy will think of a dodge and eventually the rest will copy it.)
Or you could try going to an extreme and banning any and every sort of payment other than the normal commission. But then they’ll argue that they actually do have other legitimate sources of income and that you’re destroying their businesses. Unless you actually do manage to destroy their businesses fast, they’ll keep chiseling away at the ban until they crack it — arguing for this exception, that exception, the other exception, and eventually an exception that lets them evade the main point of the rule.
(It might sound horrid, but destroying their businesses actually seems like a reasonable tactic; representing someone as an agent is something an individual can do, so why aren’t they doing it as individuals? What’s the advantage to them of combining, other than making it easier for them to conspire to screw over authors? They are not General Motors, where the work simply can’t be done on an individual basis.)
The finance industry similarly embedded (and later uncoupled) these too: they’re called 12(b)-1 fees.
pages for the ages. thank you writer man. inside that beautiful fucking dome of yours.
And if you’ve ever sold a feature pitch or script with a producer attached, there’s a very good chance your agent also commissioned the producer for the privilege of working on your project, under threat of taking your project away from the producer. It’s protection money by any other name.
“Fucksquib”? “Fuckbonnet”? “Fuck-failing”? “Stumble-fuck”? Sir, I salute you.
Garry Shandling vs. Brad Grey.
Packaging is one lie. There are a thousand others in the world of agents—whether they sell cars, computers, real estate or TV Shows, they lie for a living. I have sooo many stories to tell about the lying scum in the world of entertainment, finance, the law, corporations, media, real estate, medicine. Shall I go on? Let’s see, my lawyer got 25 years, my accountant 18, even my gynecologist got a stiff sentence. I had a few cops suspended, one fired and one imprisoned. Thank goodness for Dorothy Simon and for Leo Regan, my Atticus Finch father who taught me right from wrong. The agencies operate like gangsters and when you deign to question their criminal acts, they put a hit on you. Thankfully David Simon has the talent, the intellect and the conviction to fight back. THANK YOU!
As a relative newcomer to writing, this piece was a real eye opener at how the industry really works. Thanks for the education. Hoping this can change.
[…] reporter on the Baltimore Sun and the creative force behind the series “The Wire,” writes on his […]
This brilliant piece shows why David is the Hank Aaron of our trade. It should be spread around everywhere. If we don’t meet this problem with strong, united, legal force, we are no better than the folks who sit around screaming about Trump and doing nothing. There’s a meeting at BMCC on March 27 in NY for the east coast writers. See you there.
Thank you.
In light of the recent college admissions scandal this seems at least to be honest services fraud and more likely RICO violations. Forty years of institutionalized theft is enough.
Props! Thanks for the education!
David, thank you for the education. I feel like I’ve just been taken in a game of Three Card Monte over and over again for the last 14 years. I’m a retired Police officer and a huge fan of your work. I’ve been working in television as a writer/producer for the last 14 years. Being unable to put original material in the hands of a person not represented by my agency, someone like you, has always been puzzling to me. Now I know why. My agents don’t represent me. They represent their agency. If you need a driver when you’re out slashing tires give me a ring.
I’m wounded, and I didn’t even suffer through your account.
I can’t imagine the amount of time and energy this total shitstorm stole from you. Time and energy that could have been used to get more writing done. You know, because you’re a writer, not a lawyer. Getting as much ink on the page before we head down River Styx should be our top priority, not this legal crap.
David – many thank for this great education from a newly published novelist. I am appalled and wondering who to trust, as we probably all are. But one thought bothers me: where was the California Attorney General’s Office all these years? As I understand it, the ten percent commission is set by California state law. Isn’t the California AG’s office bound to enforce those provisions? How was any of this ever legal? And if it is illegal as it seems, why where they asleep at the switch?
A while back I read an article about an agent, a small-time agent whose only star talent was poached from one of the big four agencies. In his lawsuit he likened the big four agencies to a cartel. I remember going to a SAG screening of the movie The Big Short. Afterwards all the star actors we’re on stage for a Q&A and they spoke of the unbound greed in the financial industry. I raised my hand to ask a question that was burning in my heart but unfortunately I wasn’t picked. I wanted to ask each one of those star actors if they would do a movie about the agencies that represented them in this film, and in other films the cartels that had such a strong hold on the whole entertainment industry. The cartels that negotiate the ridiculous salaries and what they thought about the greed in ourbown house and how the majority of the screen Actors guild makes less than $5,000 a year and can’t even get health insurance. Cartels, that’s a pretty strong word with a pretty strong connotations. Cartels that they were a part of. I always wondered what their answers would have been.
No one seems to care as long as they’re getting paid these days. As a journeyman actor of 20+ years, it’s almost impossible to get a job nowadays unless you’re somehow part of the cartels or willing to be greedy enough to play at their game. It’s something i could not do. So I don’t have a pension, I don’t have a family, I don’t have healthcare… At least I have a soul ?
I was a senior executive at major talent agencies for a long time. And I was very involved in issues related to packaging. I always felt unclean when it came to anything relating to obtaining or supporting getting package commissions; yet, I toed the company line. These should have been eliminated long ago. The unions and guilds really let down their clients. And the agencies didn’t care. On a personal level, it is so liberating to watch this unfold and not have to be a part of it. The WGA should hold fast and eliminate package commissions. And the other unions and guilds should follow suit.
Bravo, David Simon. Your piece makes me think of that old joke. “Why does a dog lick his balls”? Because he can. The system has to change and maybe, just maybe, it actually will now.
You grafting, soulless, fuck-bonnets. I’m committing this phrase to long-term memory, because agents. My last one represented me as he represented my replacement, a sort-of awkward, grafting, soulless move, and then he charged me eight percent for my “time off.” He’s likely reading the comments now, looking for the other names of friends in the fuck-bonnet industry.
I LOVE this guy!!!! I’m going to watch every show he’s every written. He’s brilliant and noble. A man out of another time
The Wire is one of the best TV shows EVER!!!
Fuck yes to Baltimore boys speaking truth to power!
I’m a retired Baltimore trial lawyer recently moved to LA for the sunshine.
Never heard such a tale of blatant fraud, theft, conflict of interest—anal rape of creative innocents. Sounds like something that would happen in the land of pleasant living.
I would love to be involved in blowing this up by legal action.
Agents are the new lead poisoning slumlords. Let’s show them they can’t fuck with Mobtown.
What Irony: an attorney deriding another industry’s greed, graft, unethical dealings. Ha!
Maybe help clean up your own industry before tackling another?
F&$k yeah, my dude.
word
Thank you.
This is simply horrible. I might not be a screenwriter, but this is important not just to screenwriters but to any writer. How many other authors have been “packaged” in such manner?
I wonder if big names such as George R. R. Martin and Andrzej Sapkoski, both of which had their works adapted to a television series, were affected by this. After all the later has been already involved in a bad deal, self inflicted, but still bad.
Hi David! I admire your work. My personal favorite being a New York civic minded woman, is “Show Me A Hero”. The final scene took me by surprise and I openly wept for all those who rage against the machine and make lasting change. Thank you.
I am an indie producer in this shallow town/county called Los Angeles and collaborate with a former The Wire writer. He is very funny, but of course, very serious. I mention this simply because as you know those two small words(and anyone who worked on that show) open any doors in this town. This summer we attempted to pitch our equity funded, finished pilot POC & five season dark comedy series, by attempting to make direct pitch meetings via phone calls or emails to folks we had met or knew. Neither of us need, want, or believe in agents.
We were both told in confidence , from people at Amazon Prime, Hulu, Paramount TV and yes, HBO, they ‘could not take meetings with un-repped talent because of prior arrangements with agencies”. In other words, get an agent – get a meeting. Netflix did not answer us at all. This blanket cowardice bullshit across the board flummoxed my partner and I and caused us to bicker with each other. Our communication is now stunted & our pilot is showing at a sub-par festival this weekend. Not even my lawyer could really help us. Que sera sera I say.
Packaging has had a crippling, exclusionary effect on this industry, and has made a chosen few absurdly wealthy.
I believe it is the brainchild of the Miserly Mister Michael Ovitz of CAA.
It’s actually the brainchild of the late Lew Wasserman.
Hey, David – please contact me: I was one of the other ink stained wretches and I think we shared an agent. Seriously.
bd@bdcolenphoto.com
A sobering, depressing and very welcome eye-opener for an aspiring newcomer to screenwriting. I’ve been an active union member and steward for my entire working life – 42 years. What you describe is worse than anything I’ve ever encountered on the shop floor. If I am ever lucky enough to have anything optioned and join the WGA, I’ll be proud to join that fight. “Once more unto the breach, dear friends, once more.”
Wow. You, sir, are amazing. Thanks for sticking up for the little guys.
I am a lawyer (long time TV business affairs exec who has to agree to packages on almost every show) and I’d like to make two comments: (1) I believe that packages are prima facie illegal under the California’s Talent Agency Act (no need to craft a RICO claim or a violation of common law breach of fiduciary duty); and (2) an assistant Labor Commissioner for the State of CA said at the 1999 UCLA Entertainment Law Symposium that, if asked to opine on the issue, the then CA Labor Commissioner would rule as such. There were gasps in the room. I have lots of package stories consistent with Mr. Simon’s recounting of his own story. We on the studio/network side feel that it’s a shakedown. It is what made agents rich. Period. End of story.
Hi Jeff:
Former lawyer and presently WGA writer.
Which specific provisions of the TAA do you believe packaging fees violate?
Thanks.
RICO action would be both more entertaining, and lucrative.
Some creative soul should write a pilot. Anyone here have any experience in that?
Jeff, I’m so glad you chimed in! I keep asking this question without getting an answer. Why aren’t the studios and networks speaking up about this practice? They would be equivalent beneficiaries if this practice were to be stopped. Are the networks and studios afraid to get involved? If so, why? How? If they joined this fight, we would win.
WGA writer