A few questions with a WGA arbiter

Continuing from yesterday's post, I managed to get an email interview with a screenwriter who has served as an arbiter on multiple WGA arbitrations.  I agree to grant him anonymity, but he has written several produced feature films that were released theatrically, so you can trust the guy knows what he's talking about.

1. First off, how are arbiters chosen? Is there any attempt to match arbiters to the sorts of projects they work on as writers, or is it completely random?

I don't know how arbiters are chosen. However, I believe you have to have been through an arbitration yourself to be eligible. Writers are often too busy to do arbitrations, so if you pick up the phone and volunteer, I have no doubt there would be a stack of scripts at your door within a day. It's a thankless and much needed job. And yes, I don't think there's an official rule on it or anything, but I do think they try and match project with arbiter as the three I've done have been in the genre I've worked in most often.

[Bitter Note: I looked up the official rules on selection in the Screen Credits Manual and this is the official word on how they are chosen: "The Screen Arbiters List includes writers who have been current members for at least five years or who have received three screen credits. At least two of the three arbiters on any Arbitration Committee shall have served on no less than two previous Arbitration Committees."]

2. As an arbiter, it's your job to determine the appropriate screen credit, so does this mean you have to read every single draft ever written for that project, even drafts that were completely abandoned by their producers?

If writer A wrote 10 drafts for the project, and writer B wrote 6 drafts, the arbiter does not read 16 drafts. Each participating writer picks one draft they feel best represents their work, in terms of how much of it is reflected in the final shooting script. So, in that case, the arbiter is reading 2 drafts. But if there was a writer hired for that project, and the producer "abandoned" the draft as you say, the arbiter would still read it. All participating writers are included in the arbitration, whether the producer "used" their draft or not. It is up to the Guild to determine who gets credit, not producers, not the studio, etc.

3. There are some notorious examples of films with an excessive number of writers. THE FLINTSTONES, for instance, had about 60 writers. In a case like that, does it mean the arbiter had to read at least 60 drafts? How does one keep straight what came from which writer and then somehow decide which three writers deserve the credit? And what is the largest number of drafts you personally have read for an arbitration?

In that case, then the arbiter would read 60 drafts. Each writer is assigned a letter, based on the order in which they were hired for the project. Once I read 12 screenplays for an arbitration. They arrived on my doorstep in a very large box :)

4. As I understand it, the writers' names are not put on each draft, but in most cases, I have to imagine it's impossible for the film itself to be anonymous. If I flip open the script to page 60 and see "IRON MAN pile-drives HULK while BLACK WIDOW takes aim at alien warriors," it's a pretty safe bet I'm reading AVENGERS 2.

In a fortunate coincidence, suppose I'm best friends with Joss Whedon. In fact, let's say Joss not only gave me my first job, but he saved my life with a kidney donation, performed my wedding, co-signed my first lease, and is godfather to my children. Let's also assume that some of the other writers on this project are ones whose shared contributions to a project that started with my spec led to me getting merely "Story by" credit. Is there any kind of ethics policy in place that would require me to recuse myself?

Arbiters are expected to act ethically and not give anyone preferential treatment. Anyone who has gone through an arbitration knows how important they are in the life of a writer and would act accordingly. In that case, the arbiter would probably recuse himself if he or she didn't think they could be impartial.

5. Are there administrative processes to protect the integrity of the process against the sort of cronyism I posit above?

Yes. For instance, when you enter into an arbitration as a writer, you can cross off' names of potential arbiters. So what that means is... you get a large list of potential arbiters, and you see the name of someone you don't think would be fair to you? You can alert the Guild, and that person will never be an arbiter on your scripts. The Guild takes many such steps to ensure as fair a system as possible.

6. You're arbitrating a Steven Spielberg film that originated as a spec script. Let's say it's about a bus driver on Mars. Original Writer is replaced after doing his draft. Second Writer comes in and since Tom Cruise has gone off to make COLLATERAL 2, the lead role is rewritten for Jennifer Lawrence and she's now a courier on Venus. That goes through three more writers - each bigger than the last - until finally Spielberg's "Closer" comes on and restores some order. The final draft centers on a female garbage collector on Mars. In a case like that, how likely is the assumption that the bigger names deserve the greater balance of the credit?

That assumption is unlikely. In the credits manual, there are a number of rules that take great pains to protect the writers of the original screenplay, such as in the case that you outline above.

7. It's my understanding that the process tries to protect the first writers on a project. We can look at The Descendants and see that even though it was an adaptation and that Alexander Payne threw out Nat Faxon & Jim Rash's draft and started fresh, they all eventually shared credit and an Oscar.

Yet on Edge of Tomorrow, it was Dante Harper who first adapted the project from a graphic novel. He was rewritten by subsequent writers and did not get any screen credit on the project.

With the understanding that you aren't speaking about these specific arbitrations, can you shed some light on what it falls upon the arbiters to weigh in cases like these, where there is pre-existing material?

It's hard to comment here as I don't know the specifics of the case you cite. However, when you adapt existing material, there are a different set of rules, different thresholds for credit. And if you are adapting something you don't control, things can get very tricky.

Let's say I write a script about BATMAN, a character I don't own. Let's say Warner Bros even buys the project from me. Three years later, they make a BATMAN movie sort of similar to what I wrote, but pretty far off. Should I be considered the first writer on that project? Even a participating one? It can get messy. And since you wrote something based on materials you don't control, you don't necessarily have the same kinds of protection under the Guild.

As a rule, you don't want to spec something based on materials you don't control without a contract with those who do control it beforehand. You want the Guild involved, they're protecting you as a writer. For instance, many writers do not realize that Animated movies are not covered under the WGA. That means, on animated movies, the Guild doesn't determine the credits. If you do not have specific protections within your contract, the studio can decide the final screenplay credits without any arbitration at all.

8. How does the arbitration process handle drafts done by directors? Are they treated like any other writer?

They are not. Directors are treated as production executives, and have an even HIGHER threshold in which to receive credit. Many directors feel this an unfair bias against them.

9. Do all the arbiters get together and meet to decide the credits? Is it a totally blind process? Is there any chance that younger writers on the arbitration panel might find themselves too intimidated to oppose the findings of more veteran writers on the same panel?

It is a blind process. There are three arbiters, and each determines credit independent of the other two. You write up your findings then turn it into the Guild. If the decision is not unanimous, I have heard that the Guild will get a conference call going where the arbiters can talk to each other about why they made their decisions, and hopefully come to a resolution. However, I've never experienced this. All the arbitrations I've been involved with have been unanimous at the outset. Hopefully, that means we made the right call :)