Determining Separated Rights on a Television Series

1. "Created by" Credit Determination.

The WGA-determined "Created by" credit also determines the writer's eligibility for separated rights in a series. The "Created by" credit on a series is not determined until there is a series order. There are two ways a writer becomes eligible to seek "Created by" credit on an original series:

a. a writer writes a format for the series; or

b. a writer receives "Story by" or "Written by" credit on the pilot episode of the series.

To determine the "Created by" credit on an original episodic series, there must first be a final determination of credits on the pilot episode of the series.

Generally, if no format has been written for the series, the "Created by" credit will go to the writer(s) who received the "Story by" or "Written by" credit on the pilot. If a format has been written, a Separation of Rights arbitration may be required following the final credit determination on the pilot.

A Separation of Rights arbitration is triggered by a timely protest by an eligible writer of the proposed "Created by" credit on the Notice of Tentative Writing Credits.18

Generally, a Separation of Rights arbitration is conducted in the same manner as all credit arbitrations. Three independent arbiters19 are asked to review and compare the relevant literary material, analyzing the following elements to determine if the second writer(s) have made significant changes from the original material in one or more of the following:

- The framework in which the central running characters will operate and which will be repeated in each episode;

- the setting;

- the theme or point of view;

- the premise or general story line;

- the central running characters;

- the interplay among the characters; and

- the flavor, style or attitude.

A significant change is defined as "a change or additional element that contributes 'significantly' to the series' distinctiveness or viability." The arbiters may award "Created by" credit to the format writer, the pilot writer, or both. The arbiters also determine the percentages in which the writers will share in the Separated Rights. The complete rules for the determination of the "Created by" credit are set forth in the Separation of Rights Manual.

2. WHAT HAPPENS ON SPIN-OFFS?

In the case of a "spin-off" series (a new and different series using one or more of the characters of an established series), a writer is eligible to seek "Created by" credit and Separated Rights in the spin-off series if the writer:

a. Receives the "Story by" or "Written by" credit on the pilot of the spin-off series (this is true even if that pilot is produced and exhibited as part of the original series) or,

b. Receives the "Story by" or "Written by" credit on the first episode written for the spin-off series in the event there is no pilot, or

c. Writes a format leading up to that pilot or first episode.

The MBA does not distinguish between a "planted spin-off" and a "generic spin-off." These terms are generally defined as follows:

a. A "generic spin-off" is commonly understood to be a new series using continuing characters from the first series. For example, "Frasier" is a generic spin-off of "Cheers," as the character of Frasier was a regular character on the earlier series.

b. A "planted spin-off" is commonly understood to be a new series in which the main character(s) of the new series is not a regular character in the first series, but is introduced in the original series for the specific purpose of creating a new series with that character. For example, "Melrose Place" is a planted spin-off of "Beverly Hills, 90210," as the characters in the new series were introduced in the original series specifically to spin-off into a new series.

The final "Created by" credit for the spin-off determines the writer's rights under the MBA.

3. "Developed by" Credit Determination.

Under the MBA, no specific rights attach to the "Developed by" credit. The writer who receives "Developed by" credit does not share in the Separated Rights. Consequently, it is incumbent upon the writer not only to negotiate to be proposed for the "Developed by" credit, but also to negotiate for any royalty or other available right which the parties agree will flow from the credit.

In the case of an original episodic series, a writer who has performed writing services on the program may be eligible for "Developed by" credit under the following circumstances:

a. The writer is eligible for, but does not receive "Created by" credit on the series; or

b. The writer receives "Teleplay by" credit on the pilot (but not "Story by" or "Written by" credit); or

c. The writer has otherwise contributed to the "distinctiveness and viability" of the series.

The Company must agree to propose the writer for "Developed by" credit; neither a writer nor the WGA may independently request the credit if the Company does not propose it. Consequently, it is up to the writer to negotiate with the Company to be proposed for "Developed by" credit in the event the writer does not receive "Created by" credit.

Once the Company has agreed to propose a writer for "Developed by" credit on an original episodic series, it is subject to the automatic arbitration provisions of the MBA.20 Only the writer(s) entitled to "Created by" credit and the writer(s) proposed for "Developed by" credit participate in the "Developed by" arbitration.

The rules for determination of the "Developed by" credit are set forth in the Separation of Rights Manual. Three independent arbiters are asked to review and compare the relevant literary material to determine whether the writer proposed for "Developed by" credit has "contributed significantly to the series' distinctiveness and viability, [though] not enough to warrant a 'Created by' credit." The "Developed by" credit should only be granted "when the use of a 'Created by' credit alone would substantially misrepresent the writer(s) responsible for the series' distinctiveness or viability."


18 The writer of the format or the writer with "Story by" or "Written by" credit on the pilot.

19 In the case of Separated Rights arbitrations, the Guild seeks arbiters who have participated in prior "Created by" determinations.

20 The automatic arbitration provisions of the MBA do not apply if the Company proposes "Developed by" credit when there are no separated rights in a series.

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