Do WGA writer-producers have to cross picket lines to keep working for the studios as producers during the strike?

May 10, 2023 by Dane Johnson

Most major studios recently informed WGA writer-producers that work done in a “producer” capacity is still required despite the ongoing writers’ strike. But is the position taken by the studios a correct interpretation of this aspect of the WGA Minimum Basic Agreement? Probably not.

WGA Basic Agreement “(a) through (h)” Services

The work at the center of this aspect of the ongoing WGA labor dispute is so-called “(a) through (h) services”, which refers to the section of the Basic Agreement in which they are listed. Recent letters to striking WGA writer-producers, showrunners, and other WGA members from Disney and Warner Bros. published by The Hollywood Reporter “state that they must perform non-writing duties and may be obligated to act against their guild’s own mandates.” The services include essential production and post-production tasks such as “Cutting for time”, “Changes necessary to obtain continuity acceptance or legal clearance”, and “Casual minor adjustments in dialogue or narration made during the period of principal photography.” Here’s the complete list:

• (a) Cutting for time
• (b) Bridging material necessitated by cutting for time
• (c) Changes in technical or stage directions
• (d) Assignment of lines to other existing characters occasioned by cast changes
• (e) Changes necessary to obtain continuity acceptance or legal clearance
• (f) Casual minor adjustments in dialogue or narration made prior to or during the period of principal photography
• (g) Such changes in the course of production as are made necessary by unforeseen contingencies (e.g., the elements, accidents to performers, etc.)
• (h) Instructions, directions, or suggestions, whether oral or written, made to writer regarding story or screenplay

As the Basic Agreement explains, “it is customary in the television industry to employ persons to render services as writers . . . , and the same persons to render services in other capacities which are not subject to this Basic Agreement. The position taken by the major studios is apparently that services in these other capacities are never “writing services.” So, all writers who render such services must continue to do so despite stopping all writing services during the strike. The WGA’s position is basically that such services are always writing services.

Are “(a) through (h)” services “writing” or “producing”?

Based on the WGA Basic Agreement, the guild’s position appears closer to the correct one. The Basic Agreement does not support the broad position that writers also employed in other capacities automatically cease acting as writers as soon as they render any of the (a) through (h) services.

In cases involving some individual contracts, freelance writers, and writers initially hired in bona fide non-writing capacities who later perform only additional (a) through (h) services, however, the studios may be right. The Basic Agreement groups such writers in two categories. Both groups include the same people: Individuals employed by studios as executive producers, producers, associate producers, or story editors. None of those positions starts off as a “writer” subject to the Basic Agreement.

The issue of interpretation may arise from the Basic Agreement’s Article 14, which covers what happens when one of these employed individuals is hired concurrently to write a television format, story, or teleplay (a TV script) as a freelancer (not a staff writer). The freelance writing assignment does not convert such an individual into a “writer also employed in additional capacities.”

If the studio later employs that same individual a staff writer (not a freelancer) on the series on which the individual is already employed as an executive producer, producer, associate producer, or story editor to perform writing services other than (a) through (h) services, then that individual does become a writer also employed in additional capacities“ (in other words, a writer-producer). In such a case, the (a) through (h) services would be treated as purely producer services. As such, they would not be affected by the strike.

The percentage of writers falling into the above categories is not known, but it is probably safe to guess that for most writers on the picket line, the (a) through (h) services will be “writing services”. Writer-producers are generally hired as writer-producers. When they perform (a) through (h) services, they don’t stop being the writers that they were when they were hired. If those services are defined as “writing services”, then as WGA members, those writer-producers are prohibited from performing those services during the strike regardless of what the studios may say about it.

The Basic Agreement repeatedly describes (a) through (h) services as writing services. For example, its Article 1.B.1.a.(h) describes performing “writing services in addition to those described in (a) through (h) above . . . ,” referring to the (a) through (h) services. Article 1.C.1.a.(2)(h) describes rendering “writing services (other than those specified in (a) through (h) above) . . . .”

Such repeated references make clear that merely saying work is being done in a “producer capacity” does not compel striking writers to continue performing it during the strike. Both sides may be guilty of characterizing the (a) through (h) services in overly broad terms. For most writers, however, the WGA interpretation is probably correct.