24 June 2011

Attribution and the film factory

'The Role of Private Intellectual Property Rights in Markets for Labor and Ideas: Screen Credit and the Writers Guild of America, 1938-2000' by Catherine Fisk in 32 Berkeley Journal of Employment and Labor Law (2011) offers a history of screen credit and the Writers Guild of America focused on "the union’s administration of private intellectual property rights to facilitate the labor market for writers and the market for ideas, scripts, and treatments for film and TV".

Fisk comments that -
Screen credit is one of the very few forms of intellectual property in the modern economy that is designed by workers for workers and without the involvement of the corporations that control most intellectual property policy. Based on research in the archives of the Writers Guild not available to the public, this article argues that the Guild survived conditions that might lead to de-unionization because of the value it provides writers and employers in managing markets for labor and ideas. In particular, the Writers Guild administers two private intellectual property rights systems – the screen credit system and the script registry – that facilitate transactions between writers and producers. The experience of the Guild suggests that under the right circumstances unions can support innovation by creative private intellectual property rights systems to address structural problems in labor markets for talented short-term workers and the start-up.
She concludes that -
The Guild is virtually unique in American letters in having a democratic and worker-controlled process for deciding the meaning of authorship and administering private intellectual property rights that turn on authorship. Hollywood writers sometimes perceive themselves caught in a squeeze between the work for hire doctrine, on the one hand, and the director-auteur theory of film, on the other. That is, corporations are deemed the legal authors of motion pictures and directors are deemed the factual authors. Film theorists have written critically, especially lately, about the ways in which the auteur theory obscures important information about the labor of production, and also about how the auteur dynamic enhanced the power of directors at the expense of other talent, especially below-the-line talent.214 Movie and television production companies have established themselves as the only legal authors of movies and television programs. They have also sought, in many ways, to be perceived as the factual authors in the wider culture, except to the extent that acknowledging individual contributions is good for business in a celebrity-obsessed culture. Through control of screen credit and the compensation that turn on it, the Writers Guild has created a system of private intellectual property rights that is as important as copyright to the operation of both labor and product markets in Hollywood. It is a unique system of private ordering that underlies a multi-billion dollar industry. And it is a system that has operated for decades with virtually no judicial or legislative intervention.

While the credit determination process had significant procedural and substantive elements from its creation in the 1940s, it has grown more elaborate both procedurally and substantively as most writers in Hollywood lost their status as employees of large, vertically-integrated studios and became (along with most other talent and craft workers) short-term, project-based employees of one-off production companies. The increase in legal complexity was a result of the increasing financial significance of credit; the more that came to be at stake in credit determinations, the more the Guild added procedural protections and substantive nuance. Legalism offers the union the shelter of procedural fairness as it decides the zero-sum question of which of its members will receive the considerable financial benefits that flow from credit. And the very limited judicial review of the Guild’s administration of the system reinforces the tendency toward legalism. Under the duty of fair representation, the Guild’s determination will be final and the Guild will not be subject to damages so long as its determinations are not arbitrary, discriminatory, or in bad faith, which is a substantial financial incentive for the Guild to use a process with all the trappings of the rule of law.

Amidst the half-century decline of labor unions, this control over valuable private intellectual property rights has enabled the Writers Guild to remain vibrant and influential. The rise of flexible production in Hollywood and the transformation of Hollywood labor and product markets could have destroyed the WGA but did not. Whereas other United States industries (manufacturing, telecommunications, and raw material extraction and processing) experienced de-unionization followed by drastic job-restructuring and labor market change, Hollywood experienced drastic job-restructuring and labor market change without the de-unionization. The Guild survived in part because its governance of the screen credit system helped it adapt to the changed employment relationship and helped it facilitate transactions between writers and studios and production companies. As motion pictures and television programs became ever more expensive to produce in the era of blockbuster films and television, the individual hiring contracts to provide writing services and contracts to acquire literary properties became more complicated and more high-stakes. Screen credit and the rights that flow from it reduced transactions costs and helped to organize a market that might otherwise have seemed hopelessly diffuse and confusing. The script registry facilitates the rapid and widespread sharing of ideas in a sector in which fears of idea theft and copyright litigation might otherwise deter sharing by writers or shopping by companies.

Although it seems clear that the WGA has done a great deal for writers and studios in the 75 years of its existence, it is not at all clear whether it will be able to negotiate the difficult times ahead. As many have remarked, content creators are in for tough times as new media have made distribution ever cheaper and easier while content creation remains slow and expensive. About half of major motion pictures and a substantial amount of television programming produced in the U.S. are done outside the WGA’s jurisdiction. The WGA is trying to organize growth sectors (video game production) but has not yet succeeded. The downward pressure on production costs generated by the war between content providers and new media distributors can be expected to increase pressure on companies to produce non-union unless the WGA is able to adapt.

The story is obviously not over. What the experience of the past suggests, however, is that private intellectual property rights regimes have played a substantial and generally constructive role in the markets for labor and for ideas and that the Guild has been able to solve the coordination problems necessary to make private IP rights systems function relatively efficiently. The Guild has both facilitated contracts and provided the institutional support to enable administration of private rights.

It may be that neither workers nor employers in other similar labor and product markets (such as video game and software development, and the development of other new media products and platforms) would be interested in establishing a union like the Guild. Path dependence is certainly a big part of the story of Hollywood. Writers unionized in an era when lots of educated (and uneducated) workers thought that unions were good. The culture of unionism that they created is easier to hand down to new generations than to create from scratch among a group of people who cannot imagine how a union could facilitate individual or collective negotiations or administer intellectual property rights. But to the extent that people think that knowledge workers never want unions and cannot benefit from them, or that unions have no role to play in the knowledge economy, the history of the Writers Guild teaches otherwise.