Does the WGA Arbitration Process Disfavor Writer-Directors?

While the idea of the auteur screenwriter looms throughout both film history and actual films (respectively exemplified by the myth of Aaron Sorkin and the Coen Brother’s Barton Fink), the reality of writing scripts is far messier. Take X-Men: First Class, where The Writer’s Guild of America (WGA) ultimately determined that four writers would share a screenplay credit and two other writers would receive a “story by” credit. The original two writers on that film, Jamie Moss and Josh Schwartz, were completely ignored by the decision. Sheldon Turner, who received a “story by” credit, did not contribute directly to First Class but wrote a script for a scrapped spinoff, elements of which were incorporated into the First Class script. Despite the original writer’s protests, the decision stood. If a production company signs the WGA basic agreement, they are bound by the WGA rules on writing credits. Therefore, production companies essentially must comply with the WGA rules. Often, when several writers try their hand at a story (especially one based on prior material), it becomes impossible to effectively quantify and delineate each writer’s effort.
The landscape becomes more complicated when disputes involve writers and writer-directors, as the WGA arbitration tends to favor writers over writer-directors. As Terry Gilliam said, after originally not receiving writing credit for Fear and Loathing in Las Vegas (which he also directed), “As a director, I was automatically deemed a ‘production executive’ by the guild and, by definition, discriminated against.” Sheldon Turner wrote an entire draft of the Academy Award nominated Up in the Air before Jason Reitman, the ultimate director, wrote a new script. Reitman maintained his script was separate from, and not significantly influenced by, Turner’s script. The two did not meet until after Reitman had finished shooting the film, and Reitman said that the two had similarities because they were based on the same novel. WGA arbitration ruled the two were co-writers, in line with their policy of assuming writers have access to prior scripts. After moving through WGA arbitration with Jurassic World, writer-director Colin Trevorrow (who attempted to block the credits of two other writers who had written an earlier script because the new script was not based on the earlier draft) said all of the writers who worked on the script, “share[d] a distain for the arbitration process and the ugliness it often breeds.”
WGA credit arbitration consists of three WGA members from the Screen Arbiters List. That list includes writers who have been WGA members for at least five years or who have received three screen credits. The three arbiters, who remain anonymous, read all of the disputed works (and any source materials) and determine who should receive credit. Each writer in the dispute is given a list of potential arbiters and can challenge a reasonable number of names on that list. The WGA imposes strict rules on “‘production executives’ includ[ing] individuals who receive credit as the director.” For instance, if a director does not notify the guild at the start of the collaborative writing process that she wants a writing credit on the work, she can be “preclude[d] … from claiming co-authorship of the literary material in question, and such literary material shall be attributed to the other writer.” Furthermore, a director has the burden of proving that he “contributed more than 50% of the final script to receive screenplay credit.”
In Graham v. Scissor-Tail (1981), the Supreme Court of California held that a contract could be unconscionable if it compelled arbitration with an arbitrator who was presumptively biased in favor of one party. In that case, a concert promoter (Graham) sued a company (AFM) representing artists, and AFM compelled arbitration designating AFM’s international executive board as the arbitrator. Since the arbitrator was to Graham’s detriment, the entire contract was unconscionable.
Given how the WGA arbitration process seems to disfavor writer-directors, through having writers sit on their arbitration board, one could see a similar result to Graham here. While there are differences between the cases, such as the WGA allowing each party a reasonable number of challenges, having the Writer’s Guild of America arbitrate disputes between writers and writer-directors through using writers could be seen as unconscionable through creating a bias against writer-directors in arbitration.

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