Credit You Don't Want: How "Free" is this Rewrite?

(July 1999)

Your client is working on a project; you've negotiated substantially above minimum. During the life of the project, your client is asked to do a little "extra" work on the script.

Perhaps the writer agrees with the suggestions, perhaps the producer engages in a little persuasion. Perhaps both occur.

As everyone knows, the WGA MBA provides that Companies may not request the writer to perform unpaid services. Notwithstanding that rule, recent surveys indicate most writers have done uncompensated work at one time or another in their careers.

[The WGA has taken to calling them "uncompensated rewrites" instead of "free rewrites" as "free" is akin to a prize in a Cracker Jacks box -- fun and an extra-special bonus.]

The WGA has adopted several approaches to dealing with this troubling issue. Among these is a review of all available information on randomly chosen projects, and requests to the Company for additional information to pinpoint the areas of abuse.

In reviewing writer's individual contracts, the WGA has learned that some contracts have a provision that states, in effect, "To the extent that any payments exceed MBA minimums, then such excess shall be credited against any additional payment required by the MBA, and shall be deemed payment for any additional services, to the extent not prohibited by the MBA."

What does this mean? It is open to debate, depending on the intention of the parties, but this implies that amounts paid above the minimums may be applied against WGA minimums (where that is not otherwise prohibited in the MBA, as in theatrical residuals).

So, while the writer and the agent have negotiated a specific amount for each step, that amount may be reduced by minimum amounts that would otherwise be due under the MBA if the contract contains that provision.

An example: Writer is hired to write 2 rewrites for $150,000 (current minimum is approximately $23,000 per rewrite, $46,000 for two). That means the writer is being paid more than three times minimum. If the writer performs four additional drafts, the minimum for all six of those drafts together is approximately $138,000. If the writer's contract contains the crediting provision, the Company can argue additional monies are not due for those four additional drafts, even if the Guild or the writer were to assert such a claim for additional monies. By that argument, however, the writer has actually been paid only a little over minimum for each of the actual drafts delivered.

What seemed like an outstanding overscale deal can be construed as a deal that is barely over minimum.

In addition, the Company can claim that bonuses also reduce minimum payments due for otherwise compensable revisions. Provisions which state that bonuses are a certain amount, "less all sums previously paid," or that the payments are inclusive of any minimum payments due under the MBA, could be used to assert that a claim for uncompensated rewrites has been precluded by such bonus if the writer has been paid above MBA minimums overall.

While some writers believe they are working significantly above scale, a Company may attempt to include language in their contracts that leaves how much a writer is due for services open to argument.

The WGA strongly suggests that such crediting of overscale or bonuses be removed from writer's contracts, or that, if there is such crediting, it is done at a negotiated rate for each such rewrite, above WGA minimum.

Please call the Contracts Department at 323/782-4501 if you have any questions.