The Writers: A History of American Screenwriters and Their Guild (29 page)

The Possessory Credit

In the first minimum basic agreement with studios and producers in 1941, the Screen Writers Guild ensured that writers themselves, via the SWG, would be the ultimate arbiters of writing credits. When screenwriters began working outside the long-term contract system and selling scripts directly to studios or producers, credit stood for more than just an acknowledgment of script authorship. If a film was successful, the writer was in a better position to negotiate compensation for subsequent screenplays. Credit determinations have always been critical to verifying a writer’s reputation, clout, and pay. In earlier eras successful screenwriters might have forty credits to their names (as contract employees they were constantly churning out scripts that regularly were filmed); it was the rare screenwriter in the 1970s and 1980s who could claim more than thirty film credits over the course of a career.
⁵

Most credits have been controlled by clearly defined rules within contractual agreements, both above and below the line. But one credit has caused more battles in arbitration and more inter-Guild hostility than any other. The possessory credit, or “film by” credit, is clear in its attribution, giving credit with a possessive
s
, but is ambiguous because it leaves open questions about what part of the film was made by this particular person and how he or she contributed relative to others. For example, though few may recognize the name of screenwriter John Michael Hayes, he wrote the
screenplays for “Alfred Hitchcock’s
Rear Window
,” “Alfred Hitchcock’s
To Catch a Thief
,” “Alfred Hitchcock’s
The Trouble with Harry
,” and the 1956 version of “Alfred Hitchcock’s
The Man Who Knew Too Much
.” A movie poster or an opening credit in a film may delineate the key contributors by name, but the scope of the job titles is often unclear to the viewer. In contrast, the “film by” credit or apostrophe
s
signals to audiences that the person named has possession or authorship over the final film. The possessory credit, especially when used by a person who did not serve in a hyphenate role, under-cuts the notion of film as a collaborative art. The continued use of this credit only further reinforces popular designations of directors as auteurs, the primary authors of the films that they direct. James Crawford argues, “Because the possessory credit’s significance circulated within the relatively hermetic confines of the film industry’s production culture, it escaped the general public’s understanding.”
⁶

It should be made clear that the possessory credit is in no way tied to issues of ownership and does not legally equate to copyright. As Catherine Fisk lays clear in her work on the possessory credit, neither writers nor directors can lay claim to authorship; rarely, in fact, do producers even hold the copyright under their own names. Fisk explains: “Because of copyright’s work for hire doctrine, legal authorship of a motion picture is not factual authorship and is often a legal fiction in every sense of the term.”
⁷
Neither the WGA nor the Directors Guild has cited intellectual property law—or any civil doctrines, for that matter—in their disputes over this credit. There is zero wiggle room under the work-for-hire provision. Other credits help to determine minimums for residuals for the employees on a production, and most challenges to credits revolve around compensation. In contrast, possessory credit is the one designation that does not directly translate to remuneration.

The possessory credit was first appropriated in 1915 by D. W. Griffith for
The Birth of a Nation
, the epic film he directed and co-scripted with Frank E. Woods. In the decades that followed, the possessory credit was used sparingly, sometimes by producers and then by directors. Virginia Wright Wexman contends that the guiding principle of the DGA’s creative rights agenda is contained in the “one man, one film” catchphrase; first used by Frank Capra and his publicist in the 1920s, it became an unofficial trademark for films that had a signature aesthetic or style distinct to their director. The idea was that great directors could elevate the caliber of their films
from mass entertainment to art.
⁸
Some producers (independents, in particular) would use a presentation credit; for example, “David O. Selznick Presents” precedes the titles of
Gone with the Wind
and
Spellbound
. Others used the credit outright: “Samuel Goldwyn’s
The Best Years of Our Lives
.” Daniel Taradash, who was the WGA’s president from 1977 to 1979, recalls, “At that point, and I’m talking about the late thirties, forties, into the fifties, the producer was much more important, particularly at some studios, than the director. The writer, of course, except occasionally, was not as important as either of them.”
⁹
The first directors to use the credit regularly were Frank Capra and Alfred Hitchcock. They believed that their names would not only sell a film but also guarantee a level of quality that audiences could trust. Soon, other directors began to see the credit as the best method to improve the quality and cultural stature of their films. This notion was reinforced by the rise of auteur theory, first promoted in France in the 1950s and then in the United States by film critic Andrew Sarris.
¹⁰
On the other hand, between 1968 and 2000, by terms negotiated by their guild, film directors could withdraw their names from the credits of any film or series and use the pseudonym “Alan Smithee.”

Since 1948, the SWG and the WGA have allowed writers to avoid using their real names on particular films so long as they have registered their pseudonyms and earned less than $200,000 for each script. The $200,000 cap was set with the understanding that a larger payment purchased both the script and the identity of the author. Although many writers used unregistered pseudonyms during the blacklist, writers generally were obligated to comply with rules of attribution. Since 1948, writers have not been allowed to reject outright authorship of a script without a registered pseudonym. The first television credits manual in 1956 stipulated that only when a writer’s original material was dramatically altered could that writer remove his or her name, and even in that situation the case would go through arbitration by the Guild. Today, if film or television writers are paid more than three times the contractual minimum, they cannot—under terms agreed to by the WGA—use a pseudonym.
¹¹
One could argue, then, that screenwriters, in particular those who are well paid and cannot remove their names from a film, take on more risk to their names and reputations than directors do. And yet, if a film is a potential success, the director may simply claim primary, and seemingly solitary, credit with “a film by.”

In 1963, the WGA secured a critical agreement with the Alliance of Motion Picture and Television Producers (AMPTP). Charles Boren, the
Alliance’s executive vice president, agreed that only a director who had also been the writer of a film or of the original source material could procure the possessory credit.
¹²
In December 1966, the AMPTP ratified the rule in its contract with the WGA. Only weeks later, in January 1967, the DGA sued the WGA, the AMPTP, and its signatories, claiming that the rule violated the rights and traditions of directors.
¹³
In analyzing this moment, James Crawford claims that, given the precariousness of the film industry at the time, control of authorship was critical to assuring reputation in an industry facing financial turmoil: “In light of this uncertainty, we can see writers and directors attempting to secure their futures through rights to credits, one of the few realms of negotiation they could control.”
¹⁴
Although the Los Angeles Superior Court denied the DGA’s request for a temporary injunction, the guild succeeded in convincing AMPTP members that they did not want to be pitted against directors. Just weeks before the directors were set to strike, the AMPTP reached an agreement with the DGA. The AMPTP saw the DGA as a reliable ally and focused its attention on appeasing directors, even if industry peace came at the expense of writers.

Upon the expiration of the 1967 contract with the WGA, Lew Wasserman, chairman of the Music Corporation of American (MCA) and an experienced negotiator, argued to the Guild that exemplary directors such as Alfred Hitchcock were marquee names that could lure audiences and assure big box office numbers on particular films. The possessory credit was described in these discussions as a vanity credit that would be used primarily in outdoor advertising if the billboard included at least six credits; an individual director would have to negotiate for the credit to be used on screen or in other advertising. The writers acquiesced, knowing that Wasserman was a man of his word and had been a fair negotiator in times past. But in this instance, the promise did not stick. In 1968, the AMPTP sided with the DGA and inserted into its minimum basic agreement a provision that any director could negotiate for the possessory credit regardless of potential box office draw. Soon after, directors began regularly signing contracts with studios that included exclusive rights to the “film by” credit. Wasserman declared that the AMPTP’s earlier agreement with the WGA had been a mistaken offer of rights. It was not, in fact, a mistake; rather, the AMPTP realized that the issue was far more complex. In 1970, the AMPTP included in the negotiations a statement that it could no longer provide a guarantee that only writer-directors would get the possessory credit within the rules of collective bargaining.
¹⁵

Whatever trust had developed during the 1960s between writers and the studios began to erode as the now-wary writers returned to the negotiating table. This new friction was only intensified by the fact that the Directors Guild was clearly now an adversary—at least on this issue—and that the AMPTP would never take the side of the writers over the directors. In turn, the directors were eager to work with the companies rather than against them in negotiations. As a result of this moment, the relationship between the WGA and the AMPTP became more strained, and the relationship between writers and directors suffered for many decades to come. Frank Pierson explained how Wasserman’s gentleman’s agreement had been a terrible blow for the Guild. “Unfortunately we took [Wasserman] at his word. Now . . . we make [an] enormous effort to really pin down what it is that was agreed to. Then afterward Nick Counter and his people—Nick Counter being a negotiator—they sit down and begin to rewrite that. And the next few weeks and months are consumed with arguing over whether or not this was actually agreed to and exactly how it will be applied.”
¹⁶
Moving forward, the AMPTP would demand in writing all details of negotiations between the studios and the WGA.

Since 1970, the battle over the possessory credit has played out primarily between the writers and directors guilds rather than between the guilds and the AMPTP. In 1977, the writers realized they could not win back what they had lost and prepared for that year’s negotiations with the studios and networks with a plan to claim that no party should be allowed the possessory credit on a film. To use a solitary name was misleading, the WGA argued, given that motion picture production was a collaborative enterprise.
¹⁷
The DGA replied in the trades with an attack against the WGA that was so vitriolic that the WGA took the possessory credit off the bargaining table during the next round of negotiations. Pierson explained how the studios let the two guilds battle the issue: “The producers finally threw up their hands and said, ‘We can’t do anything with the directors; you work out a plan with them.’ So we tried. But there was nothing forthcoming on their side. It was like Obama and the Republicans. We had nobody to negotiate with.”
¹⁸
Many writers felt stymied by the weak position they now occupied. A number of them told of the frustrations they felt working with untested directors who demanded the possessory credit. Herb Meadow played up the drama of the situation: “The directors are our sworn enemies. They are the ones who are always demanding the possessory credit.”
¹⁹
Many writers
adopted this defensive position of being misunderstood by collaborators, studios, and fellow unions.

With the rise of independent voices in media production in the late 1960s and 1970s, studios developed a growing interest in filmmakers who offered both a singularity of vision and a willingness to come in under budget. Many more writers than in any era before had the opportunity to steer their own projects to completion, often serving not just as writer and director, but also as producer or actor. Dennis Hopper (
Easy Rider
), Roman Polanski (
Macbeth, The Tenant
, and
Rosemary’s Baby
), Martin Scorsese (
Mean Streets
and
Goodfellas
), and later Oliver Stone (
Platoon, Wall Street
, and
JFK
) and David Lynch all found ways to play multiple hyphenate roles. These hyphenates, once lauded by the WGA, were now a source of frustration in the Guild’s efforts to limit use of the possessory credit. At the same time, the Guild placed restrictions on credits that aggravated hyphenates who felt that they had played enough roles in the making of a film that they deserved the singular credit. Mel Brooks pointed to the film posters in his office and asked, “Can you see my name? You can’t see it. You can only see it as an actor. Right? First billing is as an actor. But right above it, they limited the possessory credit. Now that was crazy. . . . If it’s a Mel Brooks film, like a Billy Wilder or Lubitsch, it’s going to bring in more money and it’s going to mean more to the public and to the studio. And yet, the Writers Guild in their old-fashioned circle-the-building and get up the signs, are still stupid about possessory credits.”
²⁰
Whereas, in 1963, the Writers Guild had gone out of its way to ensure the possessory credit for writer-directors, in the 1970s and 1980s the Guild tried in as many ways as possible to limit the possessory credit—even if it ended up hurting some of its members.