EDWARD ALLEN BERNERO SPEAKS TO THE FANS OF CRIMINAL MINDS ABOUT THE WRITERS STRIKE:

Criminal Minds: The following is an exclusive letter from Edward Allen Bernero, Executive Producer of Criminal Minds, to the fans of Criminal Minds:

Dearest Criminal Minds Fanatics –

Well, here I am, forced to reach out to
you all at another trying time. I wish I could have
contacted you sooner but things here in Hollywood
went pretty crazy, pretty fast. Taking care of crew
and support staff had to come first. You, ladies and
gentlemen, were next. I haven’t made any other
statement outside the show. In that respect, you will
always be first.

Now, just what the hell happened? We,
the writers of Criminal Minds went on strike at 12:01
AM on Monday. We started picketing at the Alameda
Gate in front of Disney (for which “Criminal Minds” is
primarily produced under ABC Television) on Monday
afternoon. Criminal Minds will run out of new
episodes soon, affecting you all. This you already
know. But I think you deserve a little of the story
of how we got here. I am going to try and be as
objective as possible in this description of the
situation but, I am a writer which puts me on one side
of the dispute so, if I veer a bit, I’m sorry.

Okay, the two sides in this dispute are
the WGA (Writer’s Guild of America - there is both an
East and a West division, both of which are striking
and are unified), and the AMPTP (Alliance of Motion
Picture and Television Producers). One point of
confusion for some people in this is the term
“Producers” at the end of that name. I am not only a
writer but also the Executive Producer of “Criminal
Minds” but I’m not on-strike against myself. Producer
is a tough to define, catch-all word. The AMPTP
doesn’t actually produce shows, they are the
corporations who essentially buy the shows or pay
Writers/Directors/Actors to make them which they then
distribute.

Members of the WGA work under a contract
with the AMPTP. It’s called the Minimum Basic
Agreement (MBA) and it covers everything from minimum
script payments to Health and Pension benefits. There
are a number of things (profit points, development,
royalties) that individual Writer-Producers (also
known in the industry as ‘hyphenates’) can negotiate
into their personal contracts, but none of that is
covered under the MBA. These are higher level writers
who also run, or help run, shows.

The MBA also covers something called ‘Residuals’ which
are residual payments owed to the writer (there are
residuals paid to other guilds and unions but we’ll
limit the discussion here to the WGA) of a piece of
material, payable if the material makes additional
profit. It’s a deferred payment. Many people have
misunderstood this term of late (especially people
within the industry, which surprises me). Residuals
are not ‘extra’ money or a bonus. They reflect a
reduction in the original payment (leaving a residual
amount) which the writer recoups later.

Years ago, in long fought over gains by writers, the
Companies agreed that there is a possibility that
something we write or create might have long lasting
extra financial benefit to the Companies (and, by the
way, the capitalization is the way the Companies refer
to themselves in the AMPTP, it’s not meant to be a
pejorative). For example, “I Love Lucy” is, I think,
on television almost every moment of the day somewhere
in the world. The writers/actors/directors of those
shows got nothing beyond their original payments.
Ever. And the Companies involved have generated
untold profits from that single asset. Even these
massive corporations could admit that something like
that seems patently unfair and so, they agreed to this
thing called Residuals.

What original Guild members and the Companies (I
think) agreed to was the idea that, no one really
knows if a particular show will be profitable but
that, if it is, there would be some sharing of the
pie. That there will be a set ‘minimum’ portion of
the payment for the first run of something, then
graduating payment of the rest of the fee (or the
‘residual’ portion) should the episode or movie be
rerun or repurposed and more money generated (for
example, as you all know, a rerun of CM still has
commercials in it – revenue for the Companies). There
is a sliding scale to those residuals and they
eventually run out, reflecting the fact that, at some
point, the Companies have fully paid the script fee.

One real world example is a remodeling project. When
the contractor starts the work, you might pay, say,
half the total up front. Then you pay the residual
portion of the contract as the work gets done,
sometimes in a lump sum, sometimes in a number of
smaller payments.

Does this make sense? I hope so because, Residuals,
in a number of ways, is what this whole work stoppage
is about.

The MBA expired on November 1st. There is no longer a
contract covering our work. Negotiations between the
Companies and the Guild broke off Sunday night when
the Companies walked out of the negotiations because
the Guild would not ‘stop the clock’ on the looming
strike (the WGAEast strike started three hours before
the West). They are not talking at all now. Though
the Guild says they are ready and willing, the
Companies say they won’t even talk again unless the
strike ends.

There are a number of important issues on the table,
things like Health Contributions and Pension
Contributions and Minimum payments and so on. I’m not
involved in the negotiations but most of these issues
can probably be settled at some point . However,
there is one issue that the Companies have publicly
stated (repeatedly) is not even open for discussion.
Hands off.

The Internet.

It’s also referred to here as ‘New Media’ which covers
not only actual downloads to a computer but ring tones
and cell phones and any of the coming ways content can
be received by a consumer (you). Among the proposals
in the AMPTP’s ‘offer’ to the WGA was this pair of
sentences under something called ‘Promotional Uses’:

Promotional Uses (P-3)

(A) Notwithstanding anything to the contrary in the
MBA, the Company shall have to right to promote,
without restriction or payment, any motion picture for
which literary material has been written or acquired
under the MBA.
(B) Confirm that a use may be promotional even if
the entire motion picture is exhibited and even if the
use generates revenue for the Company.

Now, read that again. In the first sentence “…without
restriction or payment…” , and, in the second
sentence, “…even if the entire motion picture is
exhibited and even if the use generates revenues…”.
So, what they are saying is, at their discretion, they
can run an entire episode of a show, with commercials
generating revenue and call it promotional. Friends,
there is already a name for running an entire episode
of “Criminal Minds” with commercials in it. It’s
called television. And this single proposal guts
every agreement we’ve ever made with the AMPTP.

Now, why have I taken this long winded approach to
explaining to you what is essentially a simple
problem? Because I want you to know, as fans of our
show, that we are not making a greedy ‘choice’ here.
Residuals aren’t about greed, they’re about receiving
the rest of the money the Companies agreed to pay us
in the first place. They are about the Contractor
getting the rest of the contract when the room
addition is finished. And, if we accept this offer,
there will never be another residual payment to
anyone, because they will call everything
‘promotional’.

By the way, the Companies claim that the Internet is
too new to know whether it will ultimately be
profitable (despite shareholders reports projecting
billions of dollars in future profit – editorial
comment alert). Okay. Let’s say the Internet is a
passing fad. What the WGA is asking for is a
percentage of any revenue. If the Companies don’t
make money from downloads, we don’t. If they do, we
do. We would get an additional piece of residual
profit because, if they move things to the internet,
they won’t be rerunning them on networks. What they
would be doing is changing how they got the additional
profits (for which we agreed to defer payment), but
still getting them.

The Criminal Minds writers all want to work. We love
this show as much as you do and we feel a huge
obligation to all of you to keep making it. Other
showrunners love their fans and their shows. None of
us want this. Not one of us. But, understand, we
simply CAN NOT accept this proposal. It kills our
industry now and for the future.

So, if Criminal Minds runs out of new episodes, we’re
sorry. Extremely sorry. We already miss the writing
room, already miss playing with the characters,
already miss working with the most amazing crew in
television. We will miss reading your comments on this
site and the others all over the web. We will miss
the real feeling of community we have with you all.

But being sorry to all of you doesn’t mean a lack of
resolve. This choice was made for us but we will see
it through.

Ed Bernero