It should be made clear that the possessory credit is in no way tied to issues of ownership and does not legally equate to copyright. As Catherine Fisk lays clear in her work on the possessory credit, neither writers nor directors can lay claim to authorship; rarely, in fact, do producers even hold the copyright under their own names. Fisk explains: “Because of copyright’s work for hire doctrine, legal authorship of a motion picture is not factual authorship and is often a legal fiction in every sense of the term.”7 Neither the WGA nor the Directors Guild has cited intellectual property law—or any civil doctrines, for that matter—in their disputes over this credit. There is zero wiggle room under the work-for-hire provision. Other credits help to determine minimums for residuals for the employees on a production, and most challenges to credits revolve around compensation. In contrast, possessory credit is the one designation that does not directly translate to remuneration.
The possessory credit was first appropriated in 1915 by D. W. Griffith for The Birth of a Nation, the epic film he directed and co-scripted with Frank E. Woods. In the decades that followed, the possessory credit was used sparingly, sometimes by producers and then by directors. Virginia Wright Wexman contends that the guiding principle of the DGA’s creative rights agenda is contained in the “one man, one film” catchphrase; first used by Frank Capra and his publicist in the 1920s, it became an unofficial trademark for films that had a signature aesthetic or style distinct to their director. The idea was that great directors could elevate the caliber of their films from mass entertainment to art.8 Some producers (independents, in particular) would use a presentation credit; for example, “David O. Selznick Presents” precedes the titles of Gone with the Wind and Spellbound. Others used the credit outright: “Samuel Goldwyn’s The Best Years of Our Lives.” Daniel Taradash, who was the WGA’s president from 1977 to 1979, recalls, “At that point, and I’m talking about the late thirties, forties, into the fifties, the producer was much more important, particularly at some studios, than the director. The writer, of course, except occasionally, was not as important as either of them.”9 The first directors to use the credit regularly were Frank Capra and Alfred Hitchcock. They believed that their names would not only sell a film but also guarantee a level of quality that audiences could trust. Soon, other directors began to see the credit as the best method to improve the quality and cultural stature of their films. This notion was reinforced by the rise of auteur theory, first promoted in France in the 1950s and then in the United States by film critic Andrew Sarris.10 On the other hand, between 1968 and 2000, by terms negotiated by their guild, film directors could withdraw their names from the credits of any film or series and use the pseudonym “Alan Smithee.”
Since 1948, the SWG and the WGA have allowed writers to avoid using their real names on particular films so long as they have registered their pseudonyms and earned less than $200,000 for each script. The $200,000 cap was set with the understanding that a larger payment purchased both the script and the identity of the author. Although many writers used unregistered pseudonyms during the blacklist, writers generally were obligated to comply with rules of attribution. Since 1948, writers have not been allowed to reject outright authorship of a script without a registered pseudonym. The first television credits manual in 1956 stipulated that only when a writer’s original material was dramatically altered could that writer remove his or her name, and even in that situation the case would go through arbitration by the Guild. Today, if film or television writers are paid more than three times the contractual minimum, they cannot—under terms agreed to by the WGA—use a pseudonym.11 One could argue, then, that screenwriters, in particular those who are well paid and cannot remove their names from a film, take on more risk to their names and reputations than directors do. And yet, if a film is a potential success, the director may simply claim primary, and seemingly solitary, credit with “a film by.”
In 1963, the WGA secured a critical agreement with the Alliance of Motion Picture and Television Producers (AMPTP). Charles Boren, the Alliance’s executive vice president, agreed that only a director who had also been the writer of a film or of the original source material could procure the possessory credit.12 In December 1966, the AMPTP ratified the rule in its contract with the WGA. Only weeks later, in January 1967, the DGA sued the WGA, the AMPTP, and its signatories, claiming that the rule violated the rights and traditions of directors.13 In analyzing this moment, James Crawford claims that, given the precariousness of the film industry at the time, control of authorship was critical to assuring reputation in an industry facing financial turmoil: “In light of this uncertainty, we can see writers and directors attempting to secure their futures through rights to credits, one of the few realms of negotiation they could control.”14 Although the Los Angeles Superior Court denied the DGA’s request for a temporary injunction, the guild succeeded in convincing AMPTP members that they did not want to be pitted against directors. Just weeks before the directors were set to strike, the AMPTP reached an agreement with the DGA. The AMPTP saw the DGA as a reliable ally and focused its attention on appeasing directors, even if industry peace came at the expense of writers.
Upon the expiration of the 1967 contract with the WGA, Lew Wasserman, chairman of the Music Corporation of American (MCA) and an experienced negotiator, argued to the Guild that exemplary directors such as Alfred Hitchcock were marquee names that could lure audiences and assure big box office numbers on particular films. The possessory credit was described in these discussions as a vanity credit that would be used primarily in outdoor advertising if the billboard included at least six credits; an individual director would have to negotiate for the credit to be used on screen or in other advertising. The writers acquiesced, knowing that Wasserman was a man of his word and had been a fair negotiator in times past. But in this instance, the promise did not stick. In 1968, the AMPTP sided with the DGA and inserted into its minimum basic agreement a provision that any director could negotiate for the possessory credit regardless of potential box office draw. Soon after, directors began regularly signing contracts with studios that included exclusive rights to the “film by” credit. Wasserman declared that the AMPTP’s earlier agreement with the WGA had been a mistaken offer of rights. It was not, in fact, a mistake; rather, the AMPTP realized that the issue was far more complex. In 1970, the AMPTP included in the negotiations a statement that it could no longer provide a guarantee that only writer-directors would get the possessory credit within the rules of collective bargaining.15
Whatever trust had developed during the 1960s between writers and the studios began to erode as the now-wary writers returned to the negotiating table. This new friction was only intensified by the fact that the Directors Guild was clearly now an adversary—at least on this issue—and that the AMPTP would never take the side of the writers over the directors. In turn, the directors were eager to work with the companies rather than against them in negotiations. As a result of this moment, the relationship between the WGA and the AMPTP became more strained, and the relationship between writers and directors suffered for many decades to come. Frank Pierson explained how Wasserman’s gentleman’s agreement had been a terrible blow for the Guild. “Unfortunately we took [Wasserman] at his word. Now . . . we make [an] enormous effort to really pin down what it is that was agreed to. Then afterward Nick Counter and his people—Nick Counter being a negotiator—they sit down and begin to rewrite that. And the next few weeks and months are consumed with arguing over whether or not this was actually agreed to and exactly how it will be applied.”16 Moving forward, the AMPTP would demand in writing all details of negotiations between the studios and the WGA.
Since 1970, the battle over the possessory credit has played out primarily between the writers and directors guilds rather than between the guilds and the AMPTP. In 1977, the writers realized they could not win back what they had lost and prepared for that year’s negotiations with the studios and networks with a plan to claim that no party should be
allowed the possessory credit on a film. To use a solitary name was misleading, the WGA argued, given that motion picture production was a collaborative enterprise.17 The DGA replied in the trades with an attack against the WGA that was so vitriolic that the WGA took the possessory credit off the bargaining table during the next round of negotiations. Pierson explained how the studios let the two guilds battle the issue: “The producers finally threw up their hands and said, ‘We can’t do anything with the directors; you work out a plan with them.’ So we tried. But there was nothing forthcoming on their side. It was like Obama and the Republicans. We had nobody to negotiate with.”18 Many writers felt stymied by the weak position they now occupied. A number of them told of the frustrations they felt working with untested directors who demanded the possessory credit. Herb Meadow played up the drama of the situation: “The directors are our sworn enemies. They are the ones who are always demanding the possessory credit.”19 Many writers adopted this defensive position of being misunderstood by collaborators, studios, and fellow unions.
With the rise of independent voices in media production in the late 1960s and 1970s, studios developed a growing interest in filmmakers who offered both a singularity of vision and a willingness to come in under budget. Many more writers than in any era before had the opportunity to steer their own projects to completion, often serving not just as writer and director, but also as producer or actor. Dennis Hopper (Easy Rider), Roman Polanski (Macbeth, The Tenant, and Rosemary’s Baby), Martin Scorsese (Mean Streets and Goodfellas), and later Oliver Stone (Platoon, Wall Street, and JFK) and David Lynch all found ways to play multiple hyphenate roles. These hyphenates, once lauded by the WGA, were now a source of frustration in the Guild’s efforts to limit use of the possessory credit. At the same time, the Guild placed restrictions on credits that aggravated hyphenates who felt that they had played enough roles in the making of a film that they deserved the singular credit. Mel Brooks pointed to the film posters in his office and asked, “Can you see my name? You can’t see it. You can only see it as an actor. Right? First billing is as an actor. But right above it, they limited the possessory credit. Now that was crazy. . . . If it’s a Mel Brooks film, like a Billy Wilder or Lubitsch, it’s going to bring in more money and it’s going to mean more to the public and to the studio. And yet, the Writers Guild in their old-fashioned circle-the-building and get up the signs, are still stupid about possessory credits.”20 Whereas, in 1963, the Writers Guild had gone out of its way to ensure the possessory credit for writer-directors, in the 1970s and 1980s the Guild tried in as many ways as possible to limit the possessory credit—even if it ended up hurting some of its members.
While Brooks was incensed by the Guild’s choice to abandon the rights of the hyphenate, he was absolutely clear in his belief that a director who is not also a writer should not be given a possessory credit. The hyphenate was someone that both guilds should value.
The directors, they can’t do anything without the script. . . . I’m a director and a member of the Directors Guild, and a big director. Directors feel—incorrectly so—that they are the author of the movie or the author of the television piece. They’re not. . . . And without the writer, they are not even the director. They’re a guy looking for a job. . . . The writer gives birth. The writer has always been the true genius of everything that happens in our business. . . . They should bow to hyphenates! . . . The Writers Guild has to bow to it. . . . You’re angry about it? Become a hyphenate! Become a director. Become a producer. Just don’t stay in your little cocoon and expect the same excitement.21
There are far more writers who would love to become hyphenates on successful projects than ever get the chance do so. Not everyone possesses the sheer talent, longevity, and luck that Brooks has had in his career, and competition for such coveted roles within studio productions has only become more difficult. Still, Brooks’s point is compelling: by placing writers and directors in adversarial roles, the two guilds have denied rights to some of their most celebrated members. Other hyphenates have either refused the possessory credit or felt ambivalent about it. When asked about his use of this credit, Carl Reiner was easy: “Oh, . . . I guess my agent figured that one out. They just asked me [if I wanted the credit] and I said sure.”22 With the credit, hyphenates can brand themselves and secure a particular level of remuneration, not just for one project but for all subsequent ones.
Feuds about the possessory credit have played out for decades between the two guilds. The DGA states clearly that it has never tried to obtain sole rights to credit and that “everyone involved in a motion picture is eligible” to negotiate for credits above the compulsory minimum.23 There have even been rare examples of a possessory credit given to novelists—Margaret Mitchell for Gone with the Wind or Alex Haley for Roots—when their work is adapted. But most seekers of the credit are directors.24 Ownership is rarely if ever at play, given that legal authorship is always in the hands of a production company. Not even a producer has sole authorial rights.
The history of determining credits is rife with battles over ego, branding, and notions of agency within production. After its failed attempt to control the possessory credit in the 1960s, the WGA has argued that the “film by” credit obscures the collaborative nature of production. Some hyphenates refuse the credit out of support for their fellow WGA members and their antipathy for the auteurist notion of cinema. Woody Allen, for example, has called the credit “pretentious and unnecessary.”25 But if many film hyphenates felt frustrated and abandoned by the Guild during the 1970s, the situation was even more contentious for television hyphenates.
The Television Hyphenate
My dad’s joke was always that he used to come into my bedroom when I was an infant and lean over my crib and say, “Produce! It’s the only way to protect your words!” And he was right.
—Chris Levinson (writer and producer on Law & Order and Those Who Kill) talking about her father, writer-producer Richard Levinson, interview 14 August 2013
By the 1960s, the writer-producer hyphenate was securely in place as an essential and unique voice within American television production. Studios and networks realized that writers who created a series and who became producers were economically desirable because they would have the determination to ensure that the final product was a success.26 Herb Meadow clarified, though, that his work as a producer would not give him ownership of series he created: “This is not really so much a question of control of your material, because in the end you don’t really have control of your material. It’s some jerk executives somewhere up on the fourteenth or fifteenth floor of some building that have control of your material.”27 Only the rare hyphenate—for example, Aaron Spelling in his early career, or Stirling Silliphant, or Norman Lear—would own a series outright. But the power was exciting, as collaborators William Link and Richard Levinson recalled:
[M]any writers, who would not otherwise commit themselves to the brutal treadmill of series production could be seduced by a greater salary and the title of ‘Producer.’ . . . He can write not only with words, but with wardrobe, with music, with editing, and especially with casting. . . . The television writer has at the very least a chance to become the auteur of the finished film, be it a segment of a series or a television movie or a mini-series. The terrain is scattered with booby traps, and the networks have absolute veto power, but the writer, if he is lucky, need no longer be an impotent outsider, provided he’s willing (or able) to move back and forth between the typewriter and the producer’s desk.28
From the 1960s to the 1980s, a television writers’ room generally included a hyphenate writer-producer, who was often also the creator of the series, a small team of two to four writers, and a story editor. In addition, freelancers might be hired piecemeal to write a couple of episodes. Freelance writers were a majority in the Guild, and many jumped from series to series for their entire careers. Levinson and Link found freelance work to be drudgery: “Writers were tailors, cutting bolts of cloth to a
rigid set of expectations. They would be provided with an existing group of characters and a format, and any flexibility within these parameters was severely limited.”29 David Isaacs, who wrote on M*A*S*H and Frasier, recalled audio taping an episode of The Mary Tyler Moore Show to pick up the rhythms and style of the series before writing a spec script.30 When freelancers were hired, they would be given access to a show bible and scripts. Cheri Steinkellner explained, “It’s very valuable to read [a script], especially if you’re creating new work, because that’s how your work is first going to be seen. So it’s apples to apples. You read it and then you write what you read. As opposed to, you watch it and then you’re writing to what you see, it’s been through a very different process.”31 Steinkellner said a script is a blueprint for a series episode rather than something final in its own right. Sometimes freelance writers would be hired as staff writers, and sometimes a staff writer would take over for a hyphenate if the hyphenate left the show to work on another series.
Each episode of a series would be assigned to a writer by the hyphenate or the head writer. Once the episode was drafted, the head writer or hyphenate would edit or rework the episode to make sure that the writing was consistent with the series style. Ron Clark, writer on The Smothers Brothers Comedy Hour and of High Anxiety, described the work of a hyphenate: “You not only wrote, but you got other people’s material and rewrote that. Or asked them to rewrite it. Or showed them how to rewrite it.”32 Frank Pierson concurred: “That’s true of any really successful television series. And anything that [the hyphenate’s] going to be working on, he’s going to wind up doing the bulk of the writing himself.”33 Even if they did substantial rewrites, hyphenates would generally leave the original writer’s name on an episode and solely take a producer or executive producer credit. Because the writing credit was tied to residuals, sharing credit would mean that only half of any payment would go to the writer. George Eckstein, writer on The Fugitive and three Perry Mason television movies, described the relationship: “The writer’s primary goal in most cases is to preserve his material as he wrote it. The producer’s primary goal is to put the best possible show in front of the camera and on the air.”34 In a perfect world, those outcomes would be one in the same; but the reality was that hyphenates regularly reworked scripts, and some were troubled by the Guild tradition that the original writer should receive sole credit. Ernest Kinoy, a hyphenate himself, did not envy the Guild leadership: “The whole problem of the merging of the managerial ranks with writers is a terrible problem.”35
The Writers: A History of American Screenwriters and Their Guild Page 21
