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E. Barry Haldeman

Breaking up is hard to do …

Last Friday night, as I was walking into the Century City Intercontinental Hotel for a staff party, I recognized several participants in the Writer’s Guild-Producer negotiations rushing out. They didn’t look happy, lugging their large notebooks and brief cases. On the two-minute drive from my office I’d heard on the radio that the talks, which had taken place at a “secret hotel location” all week, had just broken down. So I knew why people had long faces.

The writer’s strike is in its sixth week. Negotiations started before the strike, broke up, started again and broke up again Friday. The primary issue remains writer participation in revenues from Web, cell phone, Internet and other downloads, but there are others, like jurisdiction over reality shows and feature animation (the writers want only their members to be writing in those areas).

Downloads could be a big part of the future of the business. Neither side wants to make a mistake about this new media but no one is sure of the economics. Whatever the producers give to the writers, they will then have to give to the actors and directors when their agreements expire next year. A miscalculation could be economically disastrous for producers and studios.

Likewise, the writers don’t want to make the same mistake they made years ago when they agreed to an economic deal covering home video, which was then the “new media.” Writers could never get the producers to improve that deal which, in hindsight, was not so good.

During the last six weeks much has happened. Movie studios are rushing into production a batch of movies with “finished” scripts and postponing others with incomplete ones. TV is hurting. Production of more than 50 television series has been shut down and most others will be out of scripts in the next week or so.

And there is another twist. Besides all of the collateral damage from the strike, (i.e., hundreds of crew members, writers, actors and support people thrown out of work), we’re about to enter the awards season, a great promotional tool for movies and TV shows. Between now and Feb. 24 we’ve got the Golden Globes, Grammys, Screen Actors Guild Awards, Independent Spirit Awards and the Oscars, all televised, and all written by writers. Without writers, the ceremonies (already often agony to watch) run the risk of looking like a High School Graduation. And will actors and others cross the picket lines for such events?

The public relations war has been intriguing; the writers have been winning. Actors, Teamsters and others have respected the picket lines, writers have met with politicos in Washington, foreign screenwriters have staged sympathy demonstrations in other countries and the writers’ cause has received favorable press treatment. The producers started out taking a tough stand in the press. They announced there would be no negotiations while the writers were on strike, and then had to back off that position and meet. Just before the strike, they stated that they had given writers the last, best offer. When that didn’t work they sounded a more conciliatory note, announcing that their proposal was not a “take it or leave it offer.”

Then came Friday night when, by most accounts, the producers walked out. Now statements from both sides are getting mean.

So where are the directors?

Unlike the actors, who have clearly aligned with the writers publicly, the directors have been remarkably quiet even though they have many of the same issues (like downloads) as the writers and actors. The directors’ agreement is up June 30 and they have historically started their negotiations with producers six to eight months before their agreement expires. That’s now. But in deference to the writers, the directors have quietly stayed in the wings giving the writers room to work out their own deal.

Time, however, is running out. With this latest break-up of the producer-writer talks, the directors may be forced to step in to protect their own interests. And that may not be bad. The writers have been masterful at mobilizing the strike, causing immediate and significant effects. Producers have been forced to pay attention.

But the best warriors are not always the best at negotiating a peace. The directors are a much more practical bunch. Almost always well prepared, the directors are used to taking the writer’s concepts, the actor’s passion and the studio’s need for fiscal responsibility and putting it all on the screen. They have to make a project work. Given that the writers have carpet-bombed the producers, maybe it’s time for a precision strike by the directors. And if the producers and directors work out something on downloads, that will be the standard for the industry.

E. Barry Haldeman is an experienced entertainment lawyer with the firm of Jeffer Mangels, Butler and Marmaro LLP in Century City. He previously served as Executive Vice President of Business and Legal Affairs for Paramount Pictures.