Hollywood Writers and the Gig Economy

University of Chicago Legal Forum

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177

Hollywood Writers and the Gig Economy

Catherine L. Fisk

†

I. INTRODUCTION

The notion that large numbers of workers are independent contrac-

tors not entitled to unionize or to the protections of employment law is

a product of twentieth-century legal categories that are a poor fit for

twenty-first-century companies and labor markets. But it is an error to

assume that the free market cultural ethos of worker entrepreneurial-

ism in the high-skill sector of the gig economy—by which I mean short-

term jobs, often with little supervision except as to results—is at odds

with the basic framework and assumptions of labor and employment

law.

In my view, it is both feasible and normatively desirable to extend

to gig economy workers the protections of labor and employment law.

Though some scholars sympathetic to protective labor legislation assert

that some ( but not all) Progressive and New Deal Era statutes must be

amended to cover short-term, decentralized work of the gig economy,

†

Chancellor’s Professor of Law, University of California, Irvine School of Law. I am grateful

for research assistance from John Sirjord. Part II of this article draws on CATHERINE L. FISK,

WRITING FOR HIRE: UNIONS, HOLLYWOOD, AND MADISON AVENUE (Harvard Univ. Press 2016). Part

III draws on interviews I conducted with thirty-two writers and three executives in Los Angeles

from August 2013 to February 2016, research described in more length in Catherine L. Fisk &

Michael Szalay, Story Work: Non-Proprietary Autonomy and Contemporary Television Writing,

TELEVISION & NEW MEDIA (2016).

JEAN-CLAUDE VINEL, THE EMPLOYEE: A POLITICAL HISTORY (2014); KATHERINE V.W.

STONE, FROM WIDGETS TO DIGITS: EMPLOYMENT REGULATION FOR THE CHANGING WORKPLACE

(2004); DAVID WEIL, THE FISSURED ECONOMY: WHY WORK BECAME SO BAD FOR SO MANY AND

WHAT CAN BE DONE TO IMPROVE IT (2014); Guy Davidov, Who Is a Worker? 34 INDUS. L.J. 57

(2006); Noah D. Zatz, Beyond Misclassification: Tackling the Independent Contractor Problem

Without Redefining Employment, 26 ABA J. LAB. & EMP. L. 279 (2011); Veena Dubal, Wage Slave

or Entrepreneur? Contesting the Dualism of Legal Worker Identities, 105 CAL. L. REV. 65 (2017).

See Seth D. Harris & Alan B. Krueger, A Proposal for Modernizing Labor Laws for Twenty-

First-Century Work: The “Independent Worker, THE HAMILTON PROJECT DISCUSSION PAPER (Dec.

2015) (“[C]ourts do not have sufficient authority to ensure a fully efficient solution to the problems

created by the emergence of independent workers,” a category of workers who “provide[ ] personal

services only when [they] choose[ ] to do so” and whose work relationship “can be fleeting, occa-

sional, or constant, at the discretion of the independent worker” and who differ from employees for

the crucial reasons that “they do not make themselves economically dependent on any single em-

ployer, they do not have an indefinite relationship with any employer, and they do not relinquish

control over their work hours or the opportunity for profit or loss.”).

08 FISK PROOF G.DOCX (DO NOT DELETE) 12/17/17 8:28 PM

178 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

contend that the experience of writers shows that current law can easily

accommodate bargaining by gig economy workers. Independent, entre-

preneurial, short-term workers have bargained collectively for eighty

years to the significant benefit of themselves and the industry in which

they work, and neither labor law nor antitrust law should be seen as

precluding collective bargaining in the gig economy.

Hollywood writers since the advent of the movie industry in the

first decade of the twentieth century have worked in a gig economy.

Embracing twin roles as labor and entrepreneurs, writers in the 1930s

formed a union and created an administratively complex but functional

system for regulating wages, conditions of employment, and intellectual

property rights in an industry characterized by short-term, episodic, in-

dependent, and erratically supervised work in geographically dispersed

locations. Their union, the Writers Guild of America, bargains on a sec-

toral, multi-employer basis on behalf of writers at the low end and the

very high end of pay, power, and responsibility. The Writers Guild rep-

resents workers who employers in other industries might deem inde-

pendent contractors or supervisors ineligible for unionization. In a

sense, to quote Kate Andrias’s important new work, the “new labor

law”

has been working in Hollywood for eighty years.

Part II of this Article describes the history of the Writers Guild in

Hollywood and shows how studios and production companies tried un-

successfully to exploit the employee–independent contractor dichotomy

to block writer unionization in the 1930s and 1940s. The companies

eventually abandoned the fight to deem writers to be independent con-

tractors and have been bargaining collectively with writers ever since.

Then, as now, employers deployed the independent contractor notion

strategically against protective labor legislation and, especially, to ena-

ble enforcement of antitrust law to thwart worker collective action.

Then, as now, deployment of antitrust law to block worker collective

action was an illegitimate strategic exploitation of legal ambiguity in

labor and antitrust law.

This history shows that the contemporary use

Kate Andrias, The New Labor Law, 126 YALE L.J. 2 (2016). The power of talent unions in

Hollywood stems, in part, from the breadth of their membership and bargaining on a sectoral,

multiemployer basis. Multiemployer bargaining has long been crucial in the construction trades

because of the short-term, gig economy nature of that labor market as well. Id. at 19 n.79.

On antitrust law and gig economy workers, see Sanjukta Paul, The Enduring Ambiguities

of Antitrust Liability for Worker Collective Action, 47 LOYOLA U. CHI. L.J. 969, 988–90 (2016) [here-

inafter Paul, The Enduring Ambiguities]; Sanjukta Paul, Uber as a For-Profit Hiring Hall: A Price-

Fixing Paradox and Its Implications, 38 BERK. J. EMP. & LAB. L. – (forthcoming 2017), https://ssrn.

com/abstract=2817653 [hereinafter Paul, Uber as a For-Profit Hiring Hall]. On antitrust and col-

lective action against independent contractors in the high-skill sector, see Federal Trade Comm’n

v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (1990) (agreement among court-appointed

counsel for indigent criminal defendants not to accept new clients until government increased fees

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 179

of the independent contractor label has historical antecedents, and it

also suggests that neither labor law nor antitrust law should bar collec-

tive negotiation by independent workers.

Part III turns from history to ethnography, showing that writers in

Hollywood today do not see the demands of entrepreneurial self-promo-

tion to be inconsistent with their status as labor. I interviewed thirty-

two working television writers and three executives from 2013 to 2016.

From senior writers and showrunners

down to entry-level and staff

writers, every writer in my sample described unionization as being cru-

cial to his or her standard of living and to the high quality of contempo-

rary TV. Thus, collective bargaining by independent workers today is

an important and effective way of accommodating employer flexibility

with employee protection. My study also shows that collective bargain-

ing works in part because the Writers Guild represents all writers at

every level of pay and authority, from showrunners down to assistants.

Even though some Hollywood writers work under conditions that re-

semble those of independent contractors or supervisors—categories of

worker who are not entitled to unionize or bargain collectively—writers

insist on their status as employees and union members. The problems

that are said to arise from independent contractor and supervisor un-

ionization have never materialized.

For all their many faults and stresses, talent union-management

relations in Hollywood appear to be relatively stable precisely because

“talent” (writers, actors, and directors) understand they benefit from

paid to appointed counsel constituted a conspiracy in restraint of trade in violation of federal an-

titrust law and was not immunized by First Amendment).

This Article is based on semi-structured in-person interviews with thirty-two writers and

three network or studio executives currently working in U.S. film and scripted TV. The sample

was not random nor representative of all working TV writers. It was a snowball sample, and I

oversampled women (nine of thirty-two), showrunners (twelve of thirty-two), and people working

on so-called quality shows. Most worked in drama, though a few worked in comedy. The vast

majority worked primarily in TV, most in both cable and broadcast. Two worked primarily in film,

and two making webisodes for internet-only distribution platforms. All but two are or appeared to

be white (I did not ask about race or ethnicity). They ranged in career stage, from a few with about

five years’ experience, to a few with experiences dating to the late 1960s; most have been working

in TV for ten to twenty years. All but two of the writers were Writers Guild members, and a few

have been Writers Guild officers; one other writer was a novelist, and one was an Animation Guild

member. Each interview lasted between sixty and one hundred-forty minutes, and all occurred in

Los Angeles between August 2013 and February 2016.

Showrunner is the term used to describe the executive producer of a television show, who

is usually the head writer and is sometimes the show’s creator. The showrunner hires and super-

vises the writing staff, and oversees almost every aspect of production. See Catherine L. Fisk &

Michael Szalay, Story Work: Non-Proprietary Autonomy and Contemporary Television Writing,

TELEVISION & NEW MEDIA (2016); see generally BRETT MARTIN, DIFFICULT MEN: BEHIND THE

SCENES OF A CREATIVE REVOLUTION (2013) (describing the significance of the showrunner in con-

temporary television and profiling the showrunners of several acclaimed shows).

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180 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

unionization, and the companies understand they benefit from the part-

nership with the talent guilds. All of that turns on talent (from the high-

est to the lowest paid) being “employees” within the meaning of the Na-

tional Labor Relations Act (NLRA).

II. WRITERS’ EMPLOYMENT STATUS IN THE 1930S AND 1940S

From the beginning of the industry, Hollywood writers knew they

needed constantly to promote themselves, to switch jobs, and to en-

deavor to get their contracts renewed by proving to producers that they

were worth what they were paid. Writers may have been neoliberal en-

trepreneurs,

but they were also committed unionists. Writers call their

organization a guild, not a union, because it protects their interests as

professionals, as highly paid and often quite autonomous masters of a

craft. And whenever they have had to strike to secure protection for

their rights as authors—in 1948, 1952, 1959–60, 1973, 1981, 1985,

1988, and 2007–08, always involving compensation for re-use of their

work in new media—they expressed awkwardness about resorting to a

strike and picketing.

They take pains to distinguish themselves from

people who “work on a loading dock” (as TV writer Bob Barbash said

about picketing writers during the 1960 strike), or coal miners or farm-

workers (as writer-showrunners said to me about the 2007–08 strike).

But they still have to act like labor to protect their rights as authors.

Legal disputes over whether workers are employees arise only in

the context of particular laws creating rights or prohibitions. Three

such laws have been important in the history of film and TV writers, as

will be explained more fully below.

In the early history of the movie business, the most important law

pertaining to employee status was the Copyright Act of 1909, which

made the employer the author of any “work made for hire” created by

an employee within the scope of the employment.

When writers are

not “employees,” that is, are not subject to the direction and control of

Sociologist Tomas Marttila has argued that neoliberalism transformed an existing concept

with a specific meaning (entrepreneur as the founder of a business enterprise) into an all-purpose

aspiration for how all people should be and “a general role model for how to get things done.”

TOMAS MARTTILA, THE CULTURE OF ENTERPRISE IN NEOLIBERALISM: SPECTERS OF

ENTREPRENEURSHIP 4, 5 (2013).

See CATHERINE L. FISK, WRITING FOR HIRE: UNIONS, HOLLYWOOD, AND MADISON AVENUE

161, 246–48 (Harvard Univ. Press 2016).

MIRANDA BANKS, THE WRITERS: A HISTORY OF AMERICAN SCREENWRITERS AND THEIR GUILD

8 (2015) (quoting Bob Barbash); Interviews with Writer 1 and 12, in Los Angeles, Cal. (2013, 2014).

Henceforth writer interviews are referred to by Writer [number] to preserve writer anonymity. On

the 1981 strike, see Aljean Harmetz, Tentative Accord Reached in Strike of Screen Writers, N.Y.

TIMES, July 12, 1981.

17 U.S.C. § 201(a).

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 181

the employer in the creation of the work,

the employer can acquire the

The legal status of writers became crucial at two other points in the

history of the broadcast and screen entertainment industries. First, the

National Labor Relations Act, as amended by the Taft-Hartley Act of

1947, protects only an “employee’s” right to unionize, and excludes from

protection “any individual having the status of an independent

contractor, or any individual employed as a supervisor.”

The

significance of the employee-independent contractor distinction matters

not only for whether workers have a statutory right to unionize without

employer retaliation but also for whether their union will be exempt

from antitrust scrutiny.

Writers in film, and later radio, and still later television, initially

disclaimed being employees, both as a matter of professional dignity

and to keep intellectual property rights in their work. The studios and

networks insisted writers were employees because of the work-for-hire

rule of copyright. Being the owner at the moment of creation freed the

studios from having to demand a formal assignment of the copyright

once the script was complete, and also affected the ability of the studio

to apply for a renewal of the copyright.

Thus, studios insisted that

writers were employees, assuming a writer who was paid to write was

an employee without regard to the extent of supervision or control of his

or her work.

A. Writers as Employees in the 1930s: Employees under the Wagner

Act

Although screenwriters in the 1920s and early 1930s chafed at the

low-status connotations of the employee title and at the loss of owner-

ship of the copyrights in their scripts, they went along with the em-

ployee designation because it was the price of getting work in Holly-

wood.

But when the opportunity to negotiate collectively for more

control, advance notice of layoffs, a minimum wage, and control over

screen credit arose with the enactment of the National Labor Relations

Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1990).

17 U.S.C. § 201(a).

29 U.S.C. § 152 (3).

See infra Part II.B.

Id.

Actor’s Equity Unable to Join Art Federation—Reason that Federation of Labor Must Be

Considered, THE SCRIPT 1 (May 6, 1922); Will Hays Told About What the Guild Stands For—Mayor

Woods Writes to Him of Photoplaywrite Schools and Others, THE SCRIPT 1, 3 (June 3, 1922). Both

sources are available in the Margaret Herrick Library of the Academy of Motion Picture Arts and

Science, Beverly Hills, CA. See generally FISK, supra note 6, chapter 2.

08 FISK PROOF G.DOCX (DO NOT DELETE) 12/17/17 8:28 PM

182 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

Act of 1935, Hollywood writers saw that embracing the legal label “em-

ployee” was the key to collective action.

Writers typically were hired on short-term contracts lasting from

several weeks to six months or a year. In March 1936, for example,

screenwriter Seton Miller, a Yale graduate who had been working in

Hollywood for fifteen years and had about thirty-five screen credits,

signed a one-year employment contract with Warner Brothers Pictures

at the rate of $1250 a week (in 2014 dollars, $21,300 per week, or $1.1

million for the year).

In Miller’s contract, which was typical in all re-

spects except pay, the writer promised to “conscientiously perform the

services required of him hereunder solely and exclusively for and as re-

quested by the Producer,” to do so “whenever and wherever the Pro-

ducer may request or deem necessary or convenient,” and to “promptly

and faithfully comply with all requirements, directions, requests, rules

and regulations made by the Producer.”

The writer promised not to

write or work on “any stage, radio, dramatic, or motion picture produc-

tion” other than for his own studio, or to allow his name to be used to

promote any production except by that studio.

Writers had to agree that the copyright in anything they wrote or

dreamed up during the contract term belonged to the studio as a work

made for hire, and to execute a standard certificate of authorship stat-

ing that the studio was the author of anything they wrote for any me-

dium. The studio, for its part, had the right, with seven days’ advance

notice, to lay off its writers without pay for twelve consecutive weeks

during the contract year.

Studios usually had the right to renew the

contract several times for up to seven years, but writers did not have

the same option to renew if the studio didn’t want them.

See FISK, supra note 8, chapter 2.

Seton I. Miller Contract, March 24, 1936, item number 12631B, Warner Bros. Archive, Uni-

versity of Southern California; IAN HAMILTON, WRITERS IN HOLLYWOOD, 1915–1951, 35 (1990);

MARC NORMAN, WHAT HAPPENS NEXT: A HISTORY OF AMERICAN SCREENWRITING 95 (2007).

Seton I. Miller Contract, supra note 18.

Id.

Id. This kind of contract was used for decades in film and was adopted for writers working

in TV. For example, in 1953, John Twist, who had a career writing westerns and other B-movie

action pictures from the 1930s to the early 1960s, signed a similar year-long contract with Warner

Bros. with a one-sided option for a one-year renewal. John Twist Contract, October 28, 1953, item

number 12840A, Warner Bros. Archive, USC. On the typicality of the pay in Miller’s contract, see

CHRISTOPHER ANDERSON, HOLLYWOOD TV: THE STUDIO SYSTEM IN THE FIFTIES 237, 252 (1994);

LEO ROSTEN, HOLLYWOOD: THE MOVIE COLONY, THE MOVIE MAKERS 324 (photo. reprint 1970)

(1940) (data on 1938 salaries of writers at Warner Brothers, Twentieth Century Fox, and Columbia

showed that thirteen percent received $1000 or more a week, and six percent received $1500 or

more a week); Metro-Goldwyn-Mayer Studios, 7 N.L.R.B. 662, 689 (1938) (describing terms of

standard writers’ contracts submitted in case seeking union representation of writers).

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 183

The language in writers’ contracts was boilerplate, yet the power

the contracts gave to studios was complete. As anthropologist Hortense

Powdermaker said in her 1950 ethnography, Hollywood, the Dream

Factory, talent contracts established a feudal relation, as they bound

the worker to the studio for years if the studios chose to exercise their

renewal options, and yet studios had the power to terminate writers at

will.

Leo Rosten, who worked as a screenwriter after earning degrees

in social science at the University of Chicago and the London School of

Economics, made a similar observation in the 1940 report he made with

a team of social scientists who came to Hollywood to study the movie

business under the auspices of the Carnegie Corporation and the Rock-

efeller Foundation. As Rosten put it in that study, writers’ legal status

determined their working conditions and their self-conception. Being an

employee was “the key to many of the problems, dilemmas, and agonies

of the writer in Hollywood”:

He is handed collaborators whom he dislikes. He is ordered to

introduce a tap dancer into a story about an African safari. He

is asked to “add a few jokes” to the scene he fought to keep poign-

ant; or to “speed up the story” at precisely the point where he

wanted to develop the characters; or to invent a “smart” but un-

natural opening, or a “sock” but phony climax. He is an em-

ployee.

Or, as Powdermaker’s ethnography put it, a “bon mot in the com-

munity is that ‘writers in Hollywood do not have works but are work-

ers.’”

Because they neither owned nor controlled what they wrote, they

did not “have works.” Because of their subordinate position to studio

heads, writers were workers. And because of both of these things, writ-

ers embraced their status as labor and formed a union.

The contract terms that writers most resented and that drove them

to unionize were those that gave the studio the right to control every

aspect of what writers wrote, along with one-sided renewal options, the

work-for-hire doctrine, and the power to lay off writers without notice.

Such terms made it logical that even people as highly paid as Miller

would describe themselves as labor. Radical writers embraced the idea

of writing for a wage as a political stance because of the membership it

HORTENSE POWDERMAKER, HOLLYWOOD, THE DREAM FACTORY: AN ANTHROPOLOGIST

LOOKS AT THE MOVIE-MAKERS 85 (1950).

ROSTEN, supra note 22, at 306–07 (emphasis added).

POWDERMAKER, supra note 23, at 150.

Id.; Jill B.R. Cherneff, Dreams Are Made Like This: Hortense Powdermaker and the Holly-

wood Film Industry, 47 J. ANTHROPOLOGICAL RES. 229 (1991).

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184 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

was imagined to confer in the working class. But in embracing their

status as labor, film writers had to distance themselves from the criti-

cally lauded literary writers with whom they sometimes wished to iden-

tify. They did so in part because money was the recompense for the loss

of autonomy, and in part because film writing could be quite factory-

like. Screenwriters at Paramount in the 1930s jested about writing on

an “assembly line” run by producers “who doled out dramatis personae”

to teams of writers and who would “assemble” the dialogue “jigsaw

style, into a final script.”

Mary McCall, Jr., a successful writer of the

1930s and 1940s, said she wanted a big salary, “not because I need it,”

but because it would:

give me authority. Then when a producer says, “Look, sweet-

heart, I have a terrific angle on this opening; we fade in on a

bed,” I can say, “That’s silly,” and he will listen to me because I

will be so very expensive. I say “That’s silly” now, but he rarely

listens to me.

But still it required an attitude adjustment for writers to embrace

the legal label “employee.” However odd it seemed that the most suc-

cessful writers would form a union, writers at all levels of pay and pres-

tige realized that unionization benefitted the vast majority of writers

financially. And even those who earned huge salaries (which writers

describe as being like winning a lottery

) knew that studios would

never concede that screenwriters, like New York playwrights, were not

employees. If they were not employees they would own their scripts,

could veto changes to the script, and (they thought) could not be ban-

ished from the set during filming. The status of employee was, thus,

about more than just copyright ownership or the right to form a union.

It was about trying to reclaim some modest degree of creative power

and respect through collective bargaining.

For their part, studios also adopted contradictory positions with re-

spect to writers’ legal status as labor. While resisting giving writers cre-

ative control and insisting writers were employees for purposes of the

gain collectively by arguing to the National Labor Relations Board

HAMILTON, supra note 18, at 184.

ROSTEN, supra note 22, at 81 (quoting Mary C. McCall, Jr., Hollywood Close Up, REVIEW OF

REVIEWS, May 1937, at 44).

The metaphor that finding a job was like winning the lottery has persisted, as it was used

by more than one of my interview subjects. A staff writer (Writer 25) on an acclaimed drama said:

“Hollywood is a fucking lottery, you know? Especially for talent.” Interview with Writer 25.

Metro-Goldwyn-Mayer Studios, 7 N.L.R.B 662, 669, 686–87 (1938).

08 FISK PROOF G.DOCX (DO NOT DELETE) 12/17/17 8:28 PM

177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 185

(NLRB) that the writers were not employees eligible to unionize. Writ-

ers, the studios said, performed services that were “creative and profes-

sional in character, whereas the Act applies to the more standardized

and mechanical employments.”

Unions were for “wage earners in the

lower income brackets.”

Screenwriters were not employees because

they were not required “to observe regular office hours or to maintain

office discipline,” nor “to produce any fixed amount of work,” and they

were “free to develop screen material in accordance with their own

ideas.”

The employers renewed this same argument with respect to

radio writers in the 1940s, TV writers in the early 1950s, and freelance

film writers in 1959 when writers struck over payment for reuse of ma-

terial on TV. The argument consistently failed because studios insisted

on control over what writers wrote.

When studios in 1937 argued that writers were not employees eli-

gible to unionize, the NLRA covered “any employee”;

there were no

exclusions for highly paid or managerial workers, independent contrac-

tors, professionals, those who were not closely supervised, or those who

did mental rather than manual labor.

Indeed, during the drafting pro-

cess Congress omitted a proposed provision requiring that a worker

must be under the continuing authority of the employer to qualify as an

employee, and thus supervision was not essential to the employee defi-

nition.

So writers pointed to their individual employment contracts,

which, like Seton Miller’s, gave studios control over the time, place, and

content of their work. Writers testified that producers exercised that

control in assigning writers to particular stories or parts of stories, in

moving a writer from one project to another, and in requiring writers to

Id.

Id. The NLRB’s findings about the industrialized process of script development was drawn

from testimony of both writers and studio executives, including Benjamin Cahane, Vice President

of Columbia Pictures, who described in detail the way that the producer chose a literary property

and hired a writer to adapt it for the screen and then assigned other writers to write dialogue, to

add jokes, and so forth. My account draws on the NLRB decision; on Ronny Regev’s dissertation,

for which she read the full record of the case in the NLRB archive in the National Archive, College

Park, Maryland, Case No. XXI-R-149, Boxes 515, 516, 517, 518, Ronny Regev, “It’s a Creative Busi-

ness”: the Ideas, Practices, and Interaction that made the Hollywood Studio System, Ph.D. diss.,

Princeton University (2013), http://arks.princeton.edu/ark:/88435/dsp01jm214p26m; and on

NANCY LYNN SCHWARTZ, THE HOLLYWOOD WRITERS WARS (1982).

On this in 1959, see BANKS, supra note 9, at 142.

29 U.S.C. § 152(3).

Congress added an exclusion for independent contractors and supervisors as part of the

Taft-Hartley Act, 29 U.S.C. § 152(3), and the Supreme Court added exclusions for managerial and

confidential employees. NLRB v. Hendricks Cty. Rural Elec. Membership Corp., 454 U.S. 170

(1981); NLRB v. Yeshiva Univ., 444 U.S. 672 (1980) (holding university faculty are managerial

and therefore not employees); NLRB v. Bell Aerospace Corp., 416 U.S. 267 (1974).

ROBERT A. GORMAN & MATTHEW W. FINKIN, BASIC TEXT ON LABOR LAW 37–38 (2004).

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186 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

attend story conferences and demanding writers follow the producer’s

“very definite ideas as to the changes to be made in a script.”

The NLRB decided screenwriters were employees because produc-

ers had the power (even if it was not always exercised) to dictate the

content of writers’ work, to assign parts of stories, and to stipulate

where writers were to write.

The Board noted but found unimportant

that some writers were employed on a “free-lance basis under contracts

providing for a week-to-week continuation of the employment or for the

completion of a certain piece of work at a specified aggregate compen-

sation,” because “there is no essential difference between a free-lance

writer and a writer working under contract for a term in the manner in

which they performed their work and that the only difference between

the two is one of length and tenure of employment.”

B. Writers as Employees in the 1940s: Employees under

Taft-Hartley and Antitrust Law

The question whether writers were employees or independent con-

tractors arose for a second time when radio writers tried to unionize in

the 1940s, but the legal context was different. The hardest-fought dis-

pute over writer unionization in radio was with the ad agencies that

handled every aspect of production of radio dramas and some variety

shows. (The radio networks directly employed staff writers for some

shows, and network staff writers succeeded in unionizing earlier than

the writers employed by ad agencies and independent producers.)

Alt-

hough the Radio Writers Guild (RWG) briefly presented itself to ad

agencies as a professional association of independent contractors, it

quickly decided that freelance writers were employees and that it was

a union.

The resistance of advertising agencies to the RWG was not

about money. Most agencies, especially for prime-time shows, which

were sponsored by major advertisers, paid writers more than what the

RWG proposed as a minimum. They resisted because they refused to

accede to Guild demands for air credit or writer ownership of scripts.

To thwart the RWG’s demand for bargaining, ad agencies made two le-

gal arguments, both of which resonate with today’s gig economy work-

ers.

Metro-Goldwyn-Mayer, 7 N.L.R.B. at 688.

Id.

Id. at 687–89.

FISK, supra note 8, chapter 3.

See Bulletin 1439A, infra note 45.

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 187

First, ad agencies insisted that the writers worked for their clients

(the sponsors), not for the agencies, and the clients did not give them

authority to negotiate any agreement. Moreover, the agencies claimed,

any agreement negotiated by a committee of advertising agencies would

not be binding on the shows’ sponsors, who, the agencies stated, were

the actual employers of the people who wrote their shows.

In contem-

porary legal parlance, the agencies claimed they were not the joint em-

ployers of writers and, rather, that the sponsors were the employers.

Radio writers could not accept this argument because if they were to

get anywhere in bargaining, they needed to bargain with the entity that

effectively controlled their terms of employment—the ad agency. The

agencies’ effort to disclaim employer status quickly foundered on the

facts, as the agencies, hired, fired, paid, and supervised writers, and the

sponsors had little involvement except to approve scripts.

The agencies’ second, and more plausible, legal argument was that

writers were not employees of anybody but were, instead, independent

contractors. Therefore, the agencies argued, Radio Writers Guild and

its demands for collective bargaining were a federal crime under the

Sherman Act, rather than protected concerted activity under the Na-

tional Labor Relations Act.

As scholars of labor and antitrust have observed for decades, the

announced purpose of the antitrust law was to target corporate monop-

olies and trusts that controlled the production or sale of sugar, tobacco,

oil, and a host of other products in the Gilded Age. Whatever Congress’s

intent, the Supreme Court held labor unions and collective bargaining

agreements to fall within the statutory prohibition on conspiracies in

Memorandum from A.K. Spencer to Miss. Pederson & Mr. Colwell (June 21, 1945), Edward

G. Wilson Papers, J. Walter Thompson Archive, Hartman Center for the Study of Advertising,

Perkins Library, Duke University.

See FISK, supra note 8, chapter 3.

See, e.g., Bulletin 1439A, American Association of Advertising Agencies, Radio Writers’

Guild Seeks Minimum Basic Agreement with Agencies (June 22, 1945) (on file with author) [here-

inafter Bulletin 1439A]; Bulletin 1441A, American Association of Advertising Agencies, A.A.A.A.

Radio Committee Counter Proposal to Radio Writers Guild (July 17, 1945) (on file with author)

[hereinafter Bulletin 1441A]; Memorandum from Edward G. Wilson to John Reber (Apr. 1, 1947).

Memorandum from Edward G. Wilson, Radio Writers’ Guild (Aug. 15, 1947) (on file with the J.

Walter Thompson archive). The agencies first proposed that the RWG should go to the NLRB to

be certified as a union representing employees, hoping that the Board would decide that freelance

radio writers were not employees, or at least not employees of the ad agencies. The RWG’s lawyers

advised against going to the NLRB for a definition of freelance writers because it was too hard to

predict what the Board might do, as there “are not many precedents in literary fields on which the

NLRB can go in deciding a dispute of this sort.” Erik Barnouw to membership of RWG. May 15,

1948. Edward G. Wilson Papers. All of these documents are in the Edward G. Wilson Radio Writers

Guild Files in the J. Walter Thompson archive at the Duke University, Perkins Library, Hartmann

Center for the Study of Advertising.

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188 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

restraint of trade in Loewe v. Lawlor,

a 1908 decision arising as the

result of sustained efforts of a group of hatmakers in Danbury, Connect-

icut to improve their working conditions through unionization.

When

Congress amended the federal antitrust law in the Clayton Act of

1914,

labor secured a specific statutory exemption for labor organiza-

tions and collective bargaining; as amended, the statute provides that

“the labor of a human being is not a commodity or article of commerce”

and that “[n]othing contained in the antitrust laws shall be construed

to forbid the existence and operation of labor . . . organizations . . . or to

forbid or restrain individual members of such organizations from law-

fully carrying out the legitimate objects thereof.”

The Supreme Court

once again resisted the congressional protection for unions,

but in

1940 the Court overruled itself and read the antitrust law to allow

workers to form unions under the specific statutory exemption and un-

ions and employers to engage in collective bargaining under what the

Court termed a non-statutory exemption.

As Sanjukta Paul has observed, there is some lack of clarity about

how the statutory and non-statutory antitrust exemptions apply to

workers who work somewhat autonomously.

Part of the difficulty lies

in the dramatic overbreadth of the statutory language of section one of

the Sherman Act, which makes “[e]very contract, combination in the

form of trust or otherwise, or conspiracy, in restraint of trade” illegal.

It is simply not possible to read it literally, and the Supreme Court does

not,

because, as Justice Brandeis once noted, restraint is the very es-

sence of every contract.

The Court has held that some strikes or con-

certed action for increased compensation by some independent contrac-

tors constitute unlawful horizontal restraints of trade and possible

illegal price fixing, a per se violation of antitrust law,

“particularly if

208 U.S. 274 (1908).

Id.; DANIEL ERNST, LAWYERS AGAINST LABOR: FROM INDIVIDUAL RIGHTS TO CORPORATE

LIBERALISM (1995).

38 Stat. 730 (1914); 15 U.S.C. § 12.

Id.

Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921) (interpreting the Clayton Act as

exempting from antitrust liability only the activities of labor unions and their members that were

legal before the Clayton Act).

United States v. Hutcheson, 312 U.S. 219 (1941); Apex Hosiery Co. v. Leader, 310 U.S. 469

(1940).

Paul, The Enduring Ambiguities, supra note 4, at 969, 977.

15 U.S.C. § 1.

See Texaco Inc. v. Dagher, 547 U.S. 1 (2006).

Chicago Board of Trade v. United States, 246 U.S. 231, 238 (1918); see also Nat’l Soc’y of

Prof ’l Eng’rs v. United States, 435 U.S. 679, 687–88 (1978) (quoting Justice Brandeis positively).

Elizabeth Kennedy, Comment, Freedom from Independence: Collective Bargaining Rights

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 189

it is aimed at affecting prices or other elements of the bargain and often

even if it is not, is illegal price-fixing, unless some specific exception

applies.”

In other cases, however, the Court has found efforts of inde-

pendent workers to be outside the scope of antitrust law.

In the con-

text of civil rights boycotts aimed at forcing white-owned businesses to

hire black employees, the Supreme Court held that the First Amend-

ment protected the boycotters from state antitrust liability.

The most closely analogous antitrust case involving the efforts of

writers to protect themselves from the concerted power of producers

was a 1945 decision of the Second Circuit about the Minimum Basic

Agreement (MBA) between the Dramatists Guild and New York theatre

producers. The suit, Ring v. Spina,

was filed by a producer of a play,

Stovepipe Hat, who got into a dispute with the playwrights over alleg-

edly unauthorized changes in the play.

When the playwrights invoked

arbitration under the MBA and terminated the production contract, the

producer sued them, along with the Dramatists Guild and the Authors

League, alleging that the MBA violated the federal antitrust law. The

Dramatists Guild asserted it and its MBA were within the labor exemp-

tion from antitrust liability, just as were the Screenwriters Guild and

their agreement with the movie studios. It set the terms on which work-

ers would sell their labor in a labor market in which workers switched

jobs frequently in an industry dominated by an oligopoly of relatively

few employers. And concerted action was necessary among the workers

in order to counteract the collective power of the relatively few employ-

ers who contracted for their services.

for “Dependent Contractors”, 26 BERKELEY J. EMP. & LAB. L. 143, 168–69 (2005).

Paul, The Enduring Ambiguities, supra note 4, at 977; see also FTC v. Ind. Fed’n of Dentists,

476 U.S. 447 (1986) (collective action by independent dentists); Nat’l Soc’y of Prof ’l Eng’rs, 435

U.S. 679; Spence v. Se. Alaska Pilots’ Ass’n, 789 F. Supp. 1007, 1010 (D. Alaska 1990) (antitrust

analysis involving association representing independent contractor pilots). Social or economic ben-

efits do not constitute exceptions. FTC v. Superior Court Trial Lawyers Ass’n (SCTLA), 493 U.S.

411, 423–24, 428 (1990) (holding that attorneys’ “concerted action in refusing to accept further

CJA assignments until their fees were increased was . . . a plain violation of the antitrust laws”);

see also Northwest Wholesale Stationers, Inc. v. Pacific Stationery and Printing Co., 472 U.S. 284,

290 (1985) (“This Court has long held that certain concerted refusals to deal or group boycotts are

so likely to restrict competition without any offsetting efficiency gains that they should be con-

demned as per se violations of § 1 of the Sherman Act.”).

In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961),

the Court rejected antitrust liability for railroads and truckers (some of whom may have been self-

employed drivers and others trucking companies), in their dueling publicity and lobbying cam-

paigns seeking advantages for their respective industries in the long-haul freight business.

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).

148 F.2d 647 (2d Cir. 1945).

See generally id.

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190 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

The court of appeals did not see it that way because playwrights

sold their completed work to producers, unlike movie writers who were

mainly hired to write. The court reasoned that an “author writing a

book or play is usually not then in any contractual relation with his

producer.” And “[i]f and when he does contract, he does not continue in

the producer’s service to any appreciable or continuous extent thereaf-

ter.” The court distinguished the dramatists’ collective agreement from

the screenwriters’ on the ground that the wages in the dramatists’

agreement “are not remuneration for continued services, but are the

terms at which a finished product or certain rights therein may be

sold.”

Ring v. Spina was of intense interest to the advertising agencies

and radio networks. The agencies wanted to use the decision to argue

that radio writers were sellers of intellectual property like dramatists,

not sellers of labor like screenwriters, and therefore collective bargain-

ing would be illegal. Relying on Ring, the agencies asserted that they

were under no legal obligation to bargain and any collective agreement

about terms of employment would violate the antitrust law. As Erik

Barnouw, president of the RWG later recalled, these arguments gave

writers “a skillful runaround” for almost a decade.

It was indeed a runaround because what the agencies asserted in

negotiations differed from what at least some of their lawyers believed.

JWT’s in house counsel, Edward Wilson, concluded that JWT radio staff

writers and freelancers were employees of the agency because JWT con-

trolled what and when they wrote. On Lux Radio Theatre, for example,

Wilson privately conceded that the head writer, Sanford Barnett, had a

desk in JWT’s Hollywood office and worked with JWT staff in adapting

plays or movies for radio, and was “subject to supervision by the client,

through us.” On Kraft Music Hall, Wilson described working conditions

for writers that looked a bit like film and a lot like what quickly became

standard in TV, and that were enough to establish writers as agency

employees:

Id. at 652. Ring v. Spina did not spell the end of the Dramatists Guild. Later iterations of

the litigation avoided definitively ruling that bargaining agreements between dramatists and the-

atre producers were unlawful antitrust conspiracies, although at various points both playwrights

and producers accused each other of violating law by conspiring to set the price of labor. The Dram-

atists Guild renegotiated the MBA on the same essential terms over the decades since, and bills

to clarify the law have been introduced in Congress but never passed. Meanwhile, playwrights own

the copyrights in their scripts and have creative control of stage productions of them. Producers

pay playwrights a minimum percentage of the box office, share earnings beyond the minimum,

and split receipts from sales of film rights. Jessica Litman, The Invention of Common Law Play

Right, 25 BERKELEY TECH. L.J. 1381, 1420–22 (2010).

ERIK BARNOUW, MEDIA MARATHON 112 (1996) (on file with the J. Walter Thompson ar-

chive).

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 191

A JWT representative or director would meet with the writers

in what they refer to as a premise meeting. At this meeting the

writers would be told who the guest artist would be the following

week and our representative and the head writer would attempt

to work out the situations around which the scripts would be

written. Each writer would then go off and prepare the portions

which were assigned to him. Their efforts would be turned in and

coordinated by the head writer. If their material was okay, they

had nothing more to do. However, if the whole thing did not

shape up all the writers including the head writer would be

called in and they would work together until they completed the

script. Each writer would get [paid] the same amount each week,

no matter how much work he had to do.

In a legal memo prepared for JWT clients, Wilson concluded “the

script writers on your shows are employees,”

later adding that they

were “undoubtedly employees of the sponsor,” but because the agency

“act[s] for the sponsor in supervising them, it seems clear that we

should handle all matters relating to their work and should, therefore,

do the negotiating.”

JWT did briefly consider the possibility of restruc-

turing its relationship to its clients such that the agency would employ

the freelancers and sell or lease scripts to the clients, but ultimately

decided not to.

As a matter of legal doctrine, freelance writers did not easily fit into

a box. On the one hand, they worked independently. Many wrote at the

hours they wanted, without supervision over their work, at least until

the script was done and a producer asked for revisions. Many writers

proposed their own topics, and the structure of the finished work was

dictated more by the conventions of the medium than by the employer.

On the other hand, every media company insisted (then as now) on the

power to force the writer to rewrite. Rod Serling was forced in 1955 to

rewrite a story about the Emmet Till lynching to remove even the slight-

est hint of race. Erik Barnouw, a successful radio writer who served for

several years as president of the Radio Writers Guild in the 1940s, was

forced to remove any reference to gas chambers in a radio play about

Memorandum to Miss Pederson & Mr. Colwell from A.K. Spencer, June 21, 1945. Edward

G. Wilson Papers.

Memorandum from Edward G. Wilson, Radio Writers’ Guild, supra note 45, at 2.

Id. at 1.

Cf. Edward G. Wilson, Radio Writers’ Guild (Jan. 12, 1948) (on file with the J. Walter

Thompson archive); Edward G. Wilson, Radio Writers’ Guild (Jan. 19, 1948) (on file with the J.

Walter Thompson archive).

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192 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

the Nuremberg Trials because the program sponsor was a public util-

ity.

The agencies wanted to narrow the category of writers to which the

agreement would apply to exclude a vague category of “independent

contractors,” without being able to explain who was an employee or in-

dependent contractor. The RWG proposed that a writer would be an

employee and covered by the collective agreement if “the company has

the right by contract to require him to perform personal services in

making revisions, modifications or changes,”

and that independent

contractors were those who sell or license rights to material “without

contracting to perform personal services with respect to revision, modi-

fication or change.”

But the companies would not agree, because they

insisted on the right to demand revisions from anybody. The agencies’

inability to define the scope of their proposed exclusion ultimately

proved fatal to their negotiating position.

Since the agencies insisted

that radio writers were not their employees, and sponsors insisted that

they weren’t their employees either, but both insisted on control over

their work, the Radio Writers Guild thought the effort to exclude an ill-

defined group of writers was close to bad faith.

In the end, the definition of employee writers covered by all Writers

Guild agreements in film, radio, and TV

focused on the employer’s

power to require writers to make revisions to scripts.

Employees un-

der the MBA are those who “write literary material . . . where the Com-

pany has the right by contract to direct the performance of personal

services in writing or preparing such material or in making revisions,

SCHWARTZ, supra note 33, at 46.

See supra note 68.

Id.

See John Crosby, Radio in Review: Revision, Modification or Changes, newspaper clipping

from unidentified source, Sept. 17, 1948, in Edward G. Wilson Papers. Letter from Leonard T.

Bush, Chariman Compton Advertising, Inc., Louis N. Brockway, Young & Rubican, Walter Craig,

Benton & Bowles, Inc. to Erik Barnouw, Nat’l President & Roy Langham, Nat’l Executive Secre-

tary (Sept. 13, 1948) & attached Definition of Employee (Sept. 13, 1948) (on file with the J. Walter

Thompson archive).

Erik Barnouw to Leonard Bush, Sept. 22, 1948. Edward G. Wilson Papers.

The fight over the legal status of freelance writers as employees or independent contractors

was repeated in 1952 in television, but more briefly. As had the movie studios in 1938 and ad

agencies in the 1940s, TV producers wanted to declare that writers were employees for purposes

of copyright law, but not for purposes of labor law or for purposes of tax. The writers prevailed. See

Minutes of a regular meeting of the Executive Board of the Screen Writers’ Guild (Sept. 3, 1952,

8:00 p.m.) (on file with the Writers Guild of America, West, Los Angeles, Cal.). At the time I con-

ducted my research, they were not open to the public. They have since been digitized and may be

available to researchers through application to the Writers Guild Foundation.

Letter from David Miller to Mr. Brockway 4 (Jan. 20, 1949) (on file with the J. Walter

Thompson archive).

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 193

modifications, or changes therein.”

As Erik Barnouw later reflected,

the lack of creative control—an issue that galled many radio, film, and

TV writers—proved the key to their ability to bargain collectively for

the rights of attribution, partial ownership, compensation, and respect

that they secured in the MBAs in radio, film, and TV writing. It was the

power of the employer to force the writer to make revisions—the right

of control—that defined who was an employee.

III. WRITERS AS EMPLOYEES NOW

Turning from history to ethnography, this Part of this Article re-

veals that writers working in Hollywood television today, like writers

in the 1930s and 1940s, do not see the demands of entrepreneurial self-

promotion to be inconsistent with their status as labor. Even though

some Hollywood writers look rather like what in other fields would be

deemed independent contractors or supervisors—and, therefore, not

employees entitled to bargain collectively—writers insist on their sta-

tus as employees and union members. They position themselves as la-

bor for four main reasons. First, they recognize the importance for all

writers of maintaining solidarity. Second, even the most powerful and

successful feel vulnerable to studio cost-cutting and to being fired, and

they value the collectively bargained pension and health insurance pro-

grams. Third, they feel that unionization is necessary to preserve writ-

ers’ claims to residuals and separated rights, which are all that writers

get of the intellectual property rights in their work. Fourth, they recog-

nize that studios and networks have the real power over content, and

so they position themselves as labor to maintain a sense of artistic in-

tegrity and autonomy and to distance themselves from the bad judg-

ments made in corporate suites.

A. Solidarity

The writers and showrunners I interviewed were unanimous in de-

scribing their good fortune to be able to find work in a fiercely competi-

tive labor market. They insisted that writers’ solidarity and unioniza-

tion is what makes writing jobs good in an industry where, as one

showrunner said, “people literally would [work] for free. . . . So it’s good

that the Guild is there to make sure that there’s minimums and protect

people.”

They recognize that TV writers enjoy a degree of affluence

WRITERS GUILD OF AMERICA, 2014 THEATRICAL AND TELEVISION BASIC AGREEMENT, art.

1.B. (theatrical), art. 1.C. (television) (May 2, 2014).

BARNOUW, supra note 64, at 122.

Interview with Writer 2.

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194 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

that makes it difficult to think of themselves as labor in any traditional

sense of that word. They acknowledge a wide gulf in pay, status, and

power between writers and the below-the-line workers who are, in an

important sense, the creators of TV. Yet they attribute some of their

success to the Writers Guild collective bargaining agreement with the

Alliance of Motion Picture and Television Producers (AMPTP), which

protects writers against some downsides of short-term, episodic work.

The negotiated rules requiring minimum payments to all employed

writers, and screen credit and payment of residuals to credited writers,

are significant, even if they offer protection to relatively few and privi-

leged workers. And they all acknowledge the importance of union-nego-

tiated health and pension benefits. As a staff writer on an acclaimed

drama explained:

I never met talent that didn’t, as a general matter, think the

Writers’ Guild was fantastic. I mean, we can debate about

whether we should have had a strike and all that, but . . . I know

a lot of [writers who are] ex-lawyers and bankers and doctors

and people who are educated beyond Hollywood and I never

heard anyone express the idea that . . . there’s some irony in

their membership in a union. I feel like we benefit tremendously

[from being in the Writers’ Guild]. It’s hard to imagine how much

worse—I mean, we wouldn’t have health. I mean, just look at the

situation of reality writers [who are not unionized]. It’s terrible,

terrible.

As that writer observed, many TV writers (all in my sample) are

graduates of elite colleges and universities. Several are lawyers. Many

others worked as journalists or playwrights before working in Holly-

wood. One is a doctor. They are extremely articulate. Writing for TV is

collaborative and social, but it also requires writers to be quite aggres-

sive in finding a job and in working collaboratively so that they keep

their job and are hired for the next season and the one after that. As

one said, “[t]o succeed in the business you have to be able to sell, to

pitch—whether it’s . . . pitching a show, or pitching yourself in a hiring

meeting, or pitching to the network that the idea they want to throw

out is really worth taking a second look at.”

There was a surprising degree of unanimity among the interview

subjects in their answers to the question of why writing for TV remains

a union job, and why even showrunners—who hire and fire writers and

Interview with Writer 25.

Interview with Writer 30.

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 195

manage the production of TV shows—are union members and conceive

of themselves as labor. Almost everyone identified the minimum com-

pensation negotiated by the Guild as significant for junior writers, even

if their own compensation exceeded the contract minimum, and every-

one who mentioned the generous health insurance and pension plans

noted that writers at every pay level need health insurance and a pen-

sion.

Many explicitly linked the protections of the Minimum Basic

Agreement as being the absolute minimum of fairness given that writ-

ers sell the intellectual property rights in their work as a condition of

hire.

Many also noted the importance of Guild determination of screen

credit.

And, when asked to explain why new media companies like

Netflix and Amazon agreed to the WGA Minimum Basic Agreement, all

told the same story: talented writers insist on working under the juris-

diction of the WGA and studios and production companies want tal-

ented writers, so Amazon and Netflix agreed to recognize the Guild.

Showrunners embraced their legal status as employees who can

unionize and bargain collectively rather than as management who

cannot,

in part because solidarity between them and staff writers

makes it harder for studios and networks to divide writers by setting

the showrunners’ interests against those of other writers in WGA

negotiations. In the 2007–08 strike, showrunners lent their economic

and cultural clout to protect the economic position of all writers, from

those currently employed to write a TV show, to those who were retired

and living on a pension and residuals, and to those waiting tables and

working on a screenplay. A very successful showrunner, who at the time

of my interview was running the show he created and could not possibly

be fired because he had attained the status of auteur that is rarely at-

tained by any TV writer, emphasized the importance of solidarity in the

2007–08 writers strike. He said he shut down production of his show

during the strike, costing himself and his crew substantial money, be-

cause “I’m obsessed with fairness.” He acknowledged the unusual na-

ture of the senior writer’s position in a strike (“everyone is a writer and

a producer, so the writing part of you is on strike, but the producing

part of you is not”) but said that the strike worked because of “the power

of that collaboration, of collectivization; it was amazing.” This act of sol-

Interview with Writers 2, 7, 16, 21, 31, 32, 33.

Interview with Writers 12, 21, 31, 32.

Interview with Writer 21.

See NLRB v. Yeshiva University, 444 U.S. 672 (1980) (managerial employees do not have a

right to unionize under the NLRA); 29 U.S.C. § 152 (excluding from statutory definition of

employee protected by the NLRA “any individual employed as a supervisor”).

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196 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

idarity, the showrunner continued, which “cost about $250 million prob-

ably, for those three months” and disrupted the Golden Globe awards

and threatened to disrupt the Academy Awards, “feels like justice.”

The notion that solidarity among writers is crucial to the industry

takes many shapes. Sometimes writers frame it as their obligation to

preserve a system that was created long ago and that has made writing

a good job. A junior TV writer said, “Someone a lot smarter than me,

several years ago, felt the writers deserved residuals. Someone who had

thought this through.”

A senior film writer and Writers Guild officer

framed union solidarity as the need to preserve a historical legacy and

the benefits of a collective bargaining agreement that prior generations

of writers fought for, what he called “signature advances of the Guild.”

“So, between, you know, pension, health, residuals, credits—all of that

stuff—that was done before I got here, you know and I am the benefi-

ciary of it.” In the end, he said, he is involved with the Guild because “I

want to make sure of something that seems increasingly difficult. That

it remains possible to make one’s living as a writer. And if one does

make a lot of money for the people who are employers, he gets some-

thing approaching a fair share.

Sometimes the duty to protect the Guild’s “signature advances”

through acts of labor solidarity is framed as what is necessary for a

healthy industry. A showrunner explained, “I think that there is this

sense among showrunners that we benefit from a healthy ecosystem of

writers that are well taken care of.” Explaining that he had recently

been to Korea to speak to the television writers’ association there, “I

think that their industry is profoundly hurt by the lack of a writers’

union.” Noting that a union “professionalizes a class of people who, un-

der other circumstances, are really easy to exploit,” the showrunner ex-

plained that “if you want a healthy world of writers who can write high

quality television that can be exported, well, one the price you pay for

that, the price that corporate entertainment pays for that, is that

they’re going to pay a little bit more to sustain and train all of these

people at the lower levels with the idea that eventually they can be suc-

cessful at creating their own shows.” Without a union to sustain and

train junior writers, he concluded, a successful entertainment industry

is “very hard to sustain over long periods of time.”

Even writers who believe that their individual success means that

they no longer need the protection of the Guild identify some benefits of

Interview with Writer 31.

Interview with Writer 15.

Interview with Writer 21.

Interview with Writer 16.

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 197

unionization for writers. One showrunner said that, although “we’re not

working in mines and . . . [i]t’s a pretty wealthy life that we lead, still

without the union there would be no residuals.” “Look at the people that

did The Lucy Show. Never made a penny off The Lucy Show. And it’s on

somewhere everywhere in the world at every moment of the day and

they made nothing.”

B. Vulnerability

To make a career as a writer is a highly uncertain prospect; as a

Guild officer put it, some writers’ careers are “as short as a professional

athlete’s.”

As a staff writer on an extremely successful show explained:

“[S]ometimes your sensibility will match up with something that’s going

by, and you’ll have a good little moment. And then you’ll get spit out,

because you’re not an agent or an executive. You’ll think you’re worth-

less for five years, and then you’ll get another chance.”

Writers have

little job security as shows are cancelled and a writer who succeeded in

one genre may find himself out of a job and his work out of fashion. As

a senior writer explained, his agent will say, “This isn’t what people are

buying.”

This is true even of showrunners, who themselves do the hir-

ing and firing of staff writers, because, as one who had recently been

fired said, they know that they can be fired by the studio.

Even those

who are offered a job find they have little bargaining power at the entry

level. “Once you are a producer, you can negotiate money, but staff

writer, story editor, executive story editor, it’s pretty much: ‘This is

what you’ll get paid, like it or lump it.’”

Showrunners are, in some senses, management. They have

tremendous control over which writers are hired and the hours they

work, even though the MBA controls what writers are paid. As a staff

writer—a former playwright—explained:

[I]t depends on the showrunner how long you spend at the office.

You can’t set your own hours like you can in TV movies or fea-

tures or any of that. You can’t. You’re just not in control over

your life. They may send you to set [when your episode is being

filmed]. . . . When I was working on “Franklin & Bash,” if it was

Interview with Writer 2.

Interview with Writer 21.

Interview with Writer 25.

Interview with Writer 13.

Interview with Writer 12.

Interview with Writer 19.

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198 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

my episode, . . . I had to be there at 6:00 in the morning. My

husband was out of town. So then, it’s a whole set of . . .

She trailed off before describing the struggle to arrange childcare.

When she was working on a show on which the showrunner was a father

of five children, ages six months to eleven, “[w]e went in at 9:30 and we

were gone by 6:00, almost every single night. . . . I was home in time

for dinner, every night, which is . . . it’s absurd. [Interviewer: So it’s just

whatever the show runner wants—A:] Completely.”

Even successful showrunners often find themselves relatively pow-

erless in the face of network and studio executives. As the creator and

showrunner of a successful HBO show explained, when HBO executive

Carolyn Strauss called to say:

“You can’t have as many characters, you know, you’re getting too

expensive. You’re going to have to fire some actors, or tell them

that if they want to be on the show, they’re not going to be regu-

lars anymore.” It was like, to me, it was like, insane. . . . So I had

to make the phone calls to these three actors and say, you know,

if you want to be on this show, you’re going to make, I don’t know

how much less money—one of these guys had a family—like, a

lot less money, money that’s going to really affect your life in a

huge way. . . . And it was a really hard call to make.

Another writer described the experience of a showrunner who was

pressured by a network and studio to cut production costs because of

declining ratings. The network and studio demanded that the showrun-

ner cut $600,000 from the budget, even if it meant cutting “$50 a week

from the assistants,” but they refused even to consider cutting the

$75,000 per episode package fee paid to the talent agency even though

the agency had done nothing to earn it except introduce the showrunner

to a big-name producer several years before. What explains this? Ac-

cording to the writer, “There’s this incredibly nepotistic, back-scratch-

ing bullshit set of relationships between networks and executives and

agents, and they protect these pieces of the system, which really make

no economic sense.”

Although showrunners exercise supervisory functions in hiring and

firing staff writers and managing budgets, they feel they are labor

because they, too, are vulnerable to firing or to the decision of a network

Interview with Writer 19.

Id.

Interview with Writer 23.

Interview with Writer 25.

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 199

to cancel a show. But they also feel that they must stand with those who

are even more vulnerable. As one put it, “I got a call during the strike

from a lawyer friend of mine who was like, ‘What the fuck are you guys

doing? You’re management. Who pulled you into behaving like labor?’”

He answered his own question by saying that he had to stand with all

writers because they are all vulnerable to the decisions of studio and

network executives. Acknowledging that the strike “was a lot of really

rich people striking basically for future writers,” and that “none of the

issues of the strike had anything to do with most of us” successful

writers,

100

he nevertheless recognized that as a group writers are

vulnerable. True, said one, “[t]he amount of money that it actually

meant to [showrunners] was a rounding error, like they would never

even notice in the difference in their salary.”

101

Or, said another, “[i]f I

want two more pennies on a DVD, I can negotiate that for myself.”

102

Showrunners insisted their participation in the strike “was not just

noblesse oblige.”

103

They joined the strike, one showrunner explained,

because “everybody is aware that they benefitted from those protections

when they were coming up, and in most cases, truly in most cases, they

are aware that they probably wouldn’t be writers without that.”

104

Showrunners were keenly aware that while they placed themselves on

the labor side of the law’s labor-management divide, their pay and

social status made the iconic act of labor protest—picketing—an

embarrassment that the studios were all too happy to exploit. The

studios derided the acts of protest, one showrunner and film director

said, as “millionaires holding picket signs.”

105

Showrunners describing

the 2007–08 strike were at pains to note writers are not “coal miners,”

“not truckers,” and “not farm workers” as they variously put it.

106

In an

era in which picket lines are so unusual, and in which organized protest

over pay and working conditions is a strategy of last resort by the most

downtrodden of all workers, the networks and studios managed to

portray the strike as selfishness by the privileged few, rather than as a

determined and principled stand.

Interview with Writer 16.

100

Interview with Writer 2.

101

Interview with Writer 16.

102

Interview with Writer 2.

103

Interview with Writer 16.

104

Id.

105

Interview with Writer 11.

106

Interview with Writers 1, 2, 12.

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200 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

C. Labor and the Loss of Intellectual Property Rights

Staff writers and showrunners alike identify with labor as they

describe how they feel about being dispossessed of the copyrights in

their work. A number of writers connected unionization to the work-for-

hire doctrine of copyright law, under which the entity who hires a per-

son to write either as an employee or on commission becomes not only

the owner of the copyright but also its legal author. They see unioniza-

tion as a necessary trade-off for the loss of intellectual property rights.

A showrunner and creator of a hugely acclaimed show put the case for

writers being labor succinctly: “What’s the thing Walter Benjamin says,

that the ideal business is prostitution—the workers own the means of

production?” He continued, explaining that his show has made millions

of dollars, “What should I be getting? I can’t get caught [as a millionaire]

complaining about it, but it is not a just distribution.”

107

As the former

showrunner of another successful show explained:

So the thing is that, you are spending an incredible amount of

time to create material that then you don’t get that. . . . So, you

know, I had no ownership in [the show he ran] and that was the

number one show. I was paid a fee and, you know, and these

companies just make gazillions of dollars.

108

He described himself as labor and as someone who needs the protection

of a union because his contract says he is working for a studio and that

he does not own the rights in the show he creates.

D. Artistic Integrity

Finally, writers identify with labor because they feel that their

disavowal of the network or studio heads as management safeguards

the prestige that TV writers as a group have successfully accrued over

the last twenty years. By and large, staff writers and showrunners

unite over their shared alienation from the studio: they are labor

because they agree to resist creative input from the studio and network.

Staff writers and showrunners in my interviews described a shared

craft identity as writers that requires a united front against creative

input from network and studio executives. In this respect, to be a writer

was to resist being too responsive to, or even aware of, the desires of

employers.

107

Interview with Writer 31.

108

Interview with Writer 12.

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 201

At the same time, both showrunners and staff writers describe

creative control in distinctly legal terms when discussing ownership,

their contracts, and what it means to be an employee. As a showrunner

explained, when writers feel that “the showrunner’s just going in a, a

direction that the rest of the staff doesn’t feel is the right direction, [he

advises them] ‘it’s the showrunner’s show.’”

109

But he qualified, of

course “the showrunner has to then turn around and say, ‘It’s the

studio’s show.’”

110

A staff writer described the additional layer of

obligation: “When you’re hired as a TV writer, your job is to execute the

showrunner’s vision. Your job is not to write the best show that you

want to write.”

111

Showrunners portray themselves as labor in describing incidents

when the studio or network threatened their creative control as writers.

In my interviews, showrunners objected a bit to the legal fact of a

corporation’s ownership of their work, not all to their compensation or

working conditions, but vociferously about those who demanded

revisions to that work. A senior writer and creator of a number of shows

of the 1980s articulated a complaint from the earliest days of television:

that it is nearly unbearable to be told how to write by someone who

doesn’t write.

112

He despised “getting nitpicked on every script” by

young network executives who had “no idea what’s going on in the

world.”

113

Another writer explained that when she was working on a

critically acclaimed show of the late 1990s, they didn’t get many notes

because critics admired the offbeat and inventive quality of the show,

so “it was very hard for them to tell us what to do.”

114

But she did

recount with obvious amusement a huge battle with the network over

whether two female characters could kiss: “We finally got down to like,

they can kiss once, but not twice, because twice means they liked it. I’m

not kidding—that was the note.”

115

She compared the autonomy that

the critical acclaim earned for that show with terrible creative

experiences she had with another network and a well-known studio,

which were “enormously distrustful of my ability to write the show; it

felt like they would just hammer you with notes till the point where you

just started doing defensive writing, like ‘I’ll write anything you want

109

Id.

110

Id.

111

Interview with Writer 4.

112

Interview with Writer 3.

113

Id.

114

Interview with Writer 17.

115

Id. (The kiss is reported by many to be the first same sex romantic kiss shown on TV, and

certainly the first in a show set in a high school.)

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202 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2017

me to if you’ll stop yelling at me.’”

116

Among those we interviewed,

showrunners’ distaste at ceding creative control to network and/or

studio executives ran far in excess of their distaste at ceding their

copyrights to those who employed them.

117

IV. CONCLUSION

Hollywood was a gig economy long before the gig economy was a

thing. It has long had workers working short-term jobs with little su-

pervision who might theoretically be deemed independent contractors

even though the most important aspect of their work—its content—is

subject to control by network and studio executives. The right to dictate

revisions is what defines a writer as an employee in Hollywood, and the

ability of writers to unionize is what has made writing a good job.

Hollywood—at least in television writing—is also a workplace in

which nominal supervisors (showrunners) are employees who belong to

the same union as the employees whom they hire and fire and with

whom they work. Not a single one of the thirty-two writers interviewed

for this project identified that as a problem for the rank and file, the

studios, or the networks that exercise the real power. But almost all of

them recognize that the ability of writers to bargain effectively over

compensation and intellectual property rights depends on showrunners

being in the Writers Guild so that studios cannot break the periodic

strikes by forcing showrunners to cross writers’ picket lines.

Of course, work as a Hollywood writer is unrepresentative of many,

many other occupations. One cannot suggest it is a model for app-based

ride-hailing, or low-wage or unskilled work. But film, radio, and televi-

sion writing from the 1930s to the present bear more than passing sim-

ilarity to some forms of high-skilled work that has gig-economy quali-

ties, including software and video game development and web design.

This history suggests, even if it does not conclusively demonstrate the

truth of, three important insights about employee classifications, labor

law, and antitrust law in the gig economy.

First: Collective bargaining has enabled writers to negotiate better

compensation, health and pension benefits, recognition, and novel

forms of profit-sharing and intellectual property rights that would not

exist but for unionization.

Second: Independent workers should not uniformly be deemed to

be independent contractors whose concerted activity is unprotected by

116

Id.

117

Interview with Writers 2, 3, 12, 13, 14, 17, 23, 31, 32.

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177] HOLLYWOOD WRITERS AND THE GIG ECONOMY 203

the NLRA and prohibited by antitrust law. The definition of independ-

ent contractor could be substantially narrowed without doing violence

to the purpose or policy of labor law and antitrust law. There has been

robust competition over terms of employment and in hiring writers. Tel-

evision and film production have thrived even with talent guilds.

Third: Collective bargaining by writers who exercise supervisory

and production executive roles has contributed to the successes of the

Writers Guild. Thus, contrary to the notion that supervisors must be

excluded from the protections of bargaining to protect either the em-

ployer or the rank and file from the conflicted loyalties of the supervi-

sor, the inclusion of showrunners in the Writers Guild and its collec-

tively bargained protections is one of the things that has preserved the

ability of writers to bargain at all.

Hollywood writers are neither independent contractors nor super-

visors under current law. But if they were organizing for the first time

now, I would wager that the studios and networks would argue that

writers are either or both independent contractors and supervisors, just

exactly as the studios and production companies argued in the 1930s

for screen writers, the 1940s for radio writers, and the 1950s for TV

writers. The lesson that should be drawn from the experience of the

writers’ union in Hollywood is that the gig economy should embrace

bargaining by independent workers in order to realize the potential of

the disruptive economy of the future.