Q: I’m not a WGA member. I’m writing a script for a company that’s also non-WGA. I hope that at some point the project gains some traction and gets set up at a studio or other WGA signatory company. I’ve been told that if I am classified in my agreement (with the non-WGA company) as a “professional writer,” I’ll be able to get the WGA benefits if the project eventually winds up with a signatory. Is that true?

A: One of my biggest problems with people is that they tell you things. Take my parents. They told me that Santa Claus was a real, semi-obese man living in the North Pole. They also told me that the mall Santas are really Santa’s elves that have dressed up like him so that they can gather information and bring it back to the real Santa. And I believed them. Then one night after I lost a tooth and put it under my pillow for the Tooth Fairy to pick up, I woke up to find not Dwayne “The Rock” Johnson in a tutu, but my dad crawling on my floor with a dollar bill in his hand. After initially thinking he may have just gotten lost on the way to Jumbos Clown Room, I realized that the whole darn thing was a sham; Santa, the Tooth Fairy, and probably even Cal Worthington.

What you’ve been told about being deemed a “professional writer” unfortunately just isn’t accurate. Unlike Santa, however, it is at least grounded in some reality because the designation “professional writer” does have significance under the WGA Basic Agreement. It is defined differently for motion pictures (Article 1.B.1.b) and television (Article 1.C.1.b) but is in essence someone who has been employed for a total of 13 weeks as a writer for films or television or who has received certain credits.

As for the significance of the designation, if you decide to read the WGA Basic Agreement because you want to know the feeling of having a Star Trek 2 earworm eat your brain, you’ll see that the benefits/protections under the Agreement only extend to writers of literary materials that were (a) written under the employment of a WGA signatory, or (b) acquired by a WGA signatory from a professional writer. In fact, the very beginning of the Agreement (paragraph 12 of Article 1.A.) goes out of its way to state that the Agreement does not apply to contracts to purchase literary material from someone who is not a professional writer.

In your case, being designated a professional writer doesn’t do anything for you for two reasons. The first is that you have been employed to write the script. As noted above, the designation of professional writer only matters in the case of a script acquisition (i.e., of a spec script). If the facts were different and you were selling an existing script, if you don’t qualify as a professional writer, you wouldn’t receive the benefits/protections of the WGA Agreement, even if you were selling it to a WGA signatory company.

All this is moot, however, for the most important reason the professional writer designation doesn’t matter in your case: your writing agreement is with a non-WGA signatory company. Therefore, the WGA has absolutely no jurisdiction over your writing agreement and, thus, none of the benefits/protections in the WGA Agreement will apply to you regardless of your designation.

This is true even if the project is eventually set up with a WGA signatory company. Because your agreement does not fall under the WGA jurisdiction at its inception, its eventual transfer to a WGA signatory company won’t cause it to fall under the jurisdiction of the WGA. Therefore, if the signatory company eventually hires another writer to do a rewrite, that writer will get the benefits of the WGA Agreement but you won’t. You could label yourself Supreme Commander Professor McProfessional and it won’t do you any good unless your agreement falls under the WGA Agreement’s jurisdiction.

The only way to cause your agreement to fall under the scope of the WGA is to have the WGA signatory company that assumes your agreement amend it so that the signatory becomes a party to the agreement. If signatory company does this, your agreement will magically fall into the WGA’s hands and you’ll benefit from all the goodies in the WGA Agreement. The problem is figuring out a way to get that signatory company to amend your agreement. Will they do it out of the kindness of their heart? Yeah, that sounds like a true Hollywood story. Could you require the non-WGA signatory that’s hiring you to obligate any WGA signatory assignees to amend your agreement? You can try but the non-WGA signatory is probably going to balk because such a requirement may make it harder to set the project up. In sum, it’s going to be an uphill battle, but such is the risk when dealing with non-WGA signatories.

Please note that if the project is set up with a WGA signatory and that company were to hire you to do a rewrite, it would be a different story. Once you were hired by the WGA signatory, at least that agreement would be covered by the WGA Agreement. In addition, in your negotiations to do the rewrite, you may have a much better shot at convincing the signatory to amend your original agreement since you actually have a little bargaining power (because the signatory wants your services).

The convoluted lesson here is to not always trust everything that people tell you, especially when it’s about the guild agreements since they are as easy to figure out as the plot ofInception (I mean, why are there snow colored tanks and so many guns in peoples’ subconscious?). As a postscript to my Santa story, I was first told Santa was real. I believed it. I was then told he wasn’t real. I believed it. Now apparently, I’m being told he is real, but he’s been imprisoned deep within a mountain in Finland because he’s actually a terrifying murderer. I can’t wait to pass that on to my kids.

This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.

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