Guild's sole authority over arbitration process at stake

HOLLYWOOD — Having just reached a deal with studios and networks, the Writers Guild now has a headache awaiting it in court.

It’s facing a Dec. 14 trial in Los Angeles over how it awards screenwriter credits. Largely unknown screenwriter Michael Alan Eddy is suing the WGA West over its refusal to allow him to participate in the credits arbitration for “The Last Samurai.”

At stake is how the Writers Guild conducts one of its crucial functions. For the past six decades, the guild has retained sole authority over how credits are determined — an arbitration process in which three anonymous members compare the final shooting script with the drafts that the writers seeking credit want considered plus supporting statements.

Eddy’s case centers on his exclusion by guild staff from the arbitration due to the WGA’s internal administrative process, called a “participating writer’s investigation.”

The suit alleges the guild’s policies aren’t legal with regard to its method of investigating whether someone is entitled to be listed as a “participating writer” and compete at a guild arbitration for a credit. The WGA West, which has denied the allegations in the suit, contends it uses expert readers to investigate whether it should seek outside arbitration on the studio’s submission of tentative credits.

In Eddy’s case, two of the three “expert readers” found there wasn’t enough similarity between Eddy’s script and the shooting script to merit a credit.

Policy questioned

Initially, one of the readers wanted to find for Eddy if there had been “business continuity” — meaning the scripts weren’t developed independently of each other — but changed his ruling after being informed that guild policies require the readers to consider only the actual content of the scripts and nothing else. Eddy also is questioning that policy in his suit, alleging it was never approved by the WGA West board.

Eddy’s suit was filed after Marshall Herskovitz, Ed Zwick and John Logan received screenplay credit and Logan received sole story credit on “The Last Samurai.” Zwick and Herskovitz were among the producers, and Zwick directed the film. Worldwide gross for “The Last Samurai” has topped $450 million.

Herskovitz testified in a deposition that Zwick had seen the original screenplay that Eddy and two other writers worked on from 1992-95, but threw it out and started over.

Eddy has asserted “Last Samurai” is based on Interscope’s “West of the Rising Sun” project, initiated in 1992 with him as the original writer of a script about an American in Japan in the 1870s who winds up fighting with samurai. Garner Simmons and Robert Schenkkan, who won the Pulitzer Prize for his play “The Kentucky Cycle,” wrote subsequent drafts on the project for Interscope before it was abandoned.

The lawsuit notes director Vincent Ward became involved in the project in the mid-’90s, gave a copy of “West of the Rising Sun” to Zwick and eventually became an exec producer on “Samurai.”

U.S. District Court Judge John F. Walter is expected to rule soon on the WGA’s motion for summary judgment, seeking to dismiss the case without a trial.

As part of the opposition to that motion, Eddy’s attorneys have included a letter from Ward in 2002 to Radar Pictures exec Scott Kroopf in which Ward sought payment as exec producer, noting he had read the “West of the Rising Sun” and “Samurai” scripts and found the similarities were “obvious.”

The WGA contended, in a recent filing, that it fulfilled its duty of fair representation when it investigated the claims by Eddy and Simmons.

No ‘bad faith’

“There is simply no credible evidence of discrimination or bad faith,” it said, noting its investigation took four months and many staff employee hours. “Ultimately, the decisive factor was the content analysis performed by the expert readers.”

The guild also argued that such disputes are inherent in the credit-determination system. “It is, in most instances, a zero-sum game — someone is always unhappy with the result,” it noted.

“Given the contentiousness of the subject, it is crucial to recognize the guild’s institutional right to establish rules and exercise judgment in applying them,” the guild said. “Eddy tried but failed to convince the guild’s elected leadership to intercede on his behalf. He should not be allowed to use litigation as an end run around the system established to make those judgments.”

After being excluded from the credit arbitration, Eddy and Simmons took the matter up with the WGA West board in October 2003, but the panel decided only to appoint a committee to look into the general issue of credits administration. Eddy then filed the suit in January over the WGA’s alleged failure to properly represent him as a member.

Eddy also sued Zwick, Herskovitz, their Bedford Falls shingle, Radar, Interscope and Warner Bros. for fraud as part of the suit. Walter dismissed those claims in March and Eddy has re-filed against Warner, Radar and Interscope, alleging breach of the WGA basic agreement.

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