On The Road To Indian Writers’ Rights

When the Writers’ Guild of America (WGA) called “Pens Down” this time last year, few would have bet Hollywood would come to a stop the way it did. The Screen Actors Guild joined the WGA soon enough, repeating a historic labour strike that last took place in the 1960s. In some ways, this one was even more devastating; the theatre business was only just figuring out a post-pandemic reality, and the billions of dollars on the line this time belonged to Big Tech, not just Hollywood moguls.

The strike was successful. WGA writers have minimum guarantees for the work they do for streaming companies, and actors have extensive protection from the use of generative AI. These changes will have far-reaching consequences for the future of entertainment.

Good news for writers worldwide. Just not in India. 

When Vaibhav Suman first applied for a Screenwriters’ Association (SWA) membership in 2011, he had already co-written the now cult film Pyaar Ka Punchnama. He had also had a disagreement with the film’s director Luv Ranjan over the credit he should get for his work. At that time, he wasn’t an SWA member yet. He was finally credited for additional screenplay and dialogue only.

Even since then, Suman has worked on several projects in the Hindi and the Punjabi film industry, apart from streaming originals. Even so, he hasn’t found much cause to fight over writers’ primary woes: credit, money, or contracts.

“You don’t want to fight with people because you are doing fine,” Suman told The Impression. “Yes, sometimes the credit you are getting may be less than what you should get. But you don’t fight because you are working with people who are talented, you are getting paid well, and ultimately, you have to work with people.”

Both the WGA and its Indian counterpart, the SWA, were founded in 1954. Yet, seven decades later, the fortunes of the writers they represent could not be more divergent. The WGA, along with the SAG-AFTRA, led a historic strike against not just Hollywood’s biggest studios (as it had in the 1960s) but also Big Tech firms such as Netflix and Amazon Prime Video, which have become increasingly more important to the business of entertainment in the US.

India’s Screenwriters’ Association, a registered trade union, has similar ambitions. The nature of India’s many film industries, traditionally dominated by family-run production companies, has held the SWA’s ambitions back. The result: writers have accepted exploitative terms of employment that run counter to all international norms of payments, contracts, and credit in film, TV, and now streaming originals. What’s worse, nothing seems to have changed with the arrival of Big Tech streaming platforms such as Netflix and Amazon Prime.

What is going wrong?

Money, Contracts, Credits

Many film and entertainment writers’ problems aren’t new. Writers are usually paid poorly, given little importance in the execution of their project, and almost never offered a share in the intellectual property rights of profits from a film or show they wrote. Across film industries in India, writers work for a fixed fee and sign off copyright claims to the producers bankrolling the project.

That’s not the case in the West. In the US, for example, writers and creators continue to earn from TV shows they may have written years, or even decades ago. Every time a TV show like Friends or How I Met Your Mother is licensed, syndicated, dubbed, or broadcast in a new territory, everyone who had worked on the project receives a share of the proceeds by law. In that sense, consider a TV show or film as a co-operative: everyone earns, not just the producer or the people who bankrolled the project.

One of the Hollywood strike’s demands was to extend these copyright protections and payouts to the work writers do for streaming platforms as well. In India, though, that conversation hasn’t even started.

The West has a robust system of royalties that is recognised and accepted by all stakeholders in the industry,” Sanchi Sehgal, senior associate of business and legal affairs at talent management firm Tulsea, told The Impression. “This is not the case in India; with the film industry, it exists somewhat usually at the studio’s discretion, but there is no such recognised structure in the series business. There are no royalties in series, even for senior talent.” Mumbai-based Tulsea is best known for managing a roster of top writers and directors and negotiating contracts at par with international norms.

In various Indian film industries, writers are expected to relinquish any rights or share in profits to their work in exchange for a fee. The result: unlike in the US, they do not earn a share of the long-term earnings of a project.

“There is no defined waterfall of royalties either,” Sehgal said. “The way it works in the West is that there is a predetermined industry-wide structure jointly agreed upon by the unions for producers, actors, directors, and writers that captures the percentage of profits that all key stakeholders on a project, including writers, will receive and in what order. This does not exist in India which prolongs negotiations because every producer has their own preferences and mandates.”

For example, agencies like Tulsea often agree to a lesser upfront fee for their top talent when a production house is still figuring out a budget. This can be adjusted against a future share of profits or other bonus structures. “However, the conversation on how those profits will be calculated, or whether such conversations will even be rationally entertained, differs with each production house,” Sehgal says.

Then there is the problem of getting money on time. Film and TV writers are unique in that they largely tend to work freelance, signing up for individual projects rather than getting full-time employment with a production company. These contracts tend to be exploitative, forcing problematic clauses and including payment terms that favour the big guy. One such set of terms is the practice of ‘approval based tranches’, where writers are paid a tranche of money only when their work is approved by a producer, not when it is submitted on time.

“Legacy production houses are often adamant on approval-based tranches and will not entertain submission-based tranches,” Tulsea’s Sehgal says. “We always fight for submission-based tranches simply because there is a significant gap between the kickoff point when the producer commissions the writer, the point when the writer submits the first draft of a screenplay and when the producer finally reads and approves the draft after asking for changes.” This gap in time can go up to 45-90 days or even more in some instances. The nature of freelance work makes writing an already precarious profession. Payment terms like these make it that much harder for young writers to make a sustainable living.

Precarious earnings was the subject of a prolonged debate in an event held by the Screenwriters’ Association in Mumbai called ‘Sab Khairiyat?” (translation: All Okay?), inviting writers to discuss their mental health struggles as they balance the high cost of living in Mumbai with the uncertainty of freelance work, along with the burnout and loneliness of the creative process.

Apart from infrequent pay and unfair contracts, writers are also struggling with getting credited correctly, or in some cases, getting credits at all.

On its part, the SWA is working on minimum basic contracts (MBCs) for writers of films, TV shows, and web originals. These MBCs are meant to set industry-wide standards on how fair contracts should be drawn up to safeguard the rights of writers and ensure they are adequately compensated and correctly credited.

Suman, who has worked in the even less organised Punjabi film industry, says writers often negotiate credits right until the end. “A basic contract does not even exist even when you’re working with the best OTT platforms and production houses,” he says. “You may not even be sure what credit you will get for the work you do [on a script]. That often gets negotiated just as the film or show is about to be released.”

Suman cites a quote from fellow writer Varun Grover and his own experience on film sets. “No director or producer who has made a suggestion on set asks for credit as an art director or a cinematographer,” he says. “But when they offer feedback on a script, they will often ask to share credit for writing. Why is that?”

Who Runs The Show?

“We often see producers offer untenable options for credits,” Tulsea’s chief operating officer Raghvendra Kumar told The Impression. “That drove us to write a Tulsea Insights memo on how credits should ideally be accorded as per the role and contribution across different aspects of the project’s life cycle.”

One bone of contention is the idea of the showrunner, a role borne out of the streaming era where Big Tech platforms commission long, episodic entertainment, being unlike the traditional film and TV formats.

In the West, it is common practice that the creator of the show will be the head-writer, and will also serve as the showrunner,” Radhika Gopal, Tulsea’s head of writers and directors, told The Impression. “They move up the writers’ room ladder over years, sometimes decades, to arrive at the position of being the creator. This is not the case in India yet, but we are hoping we will get there with concerted efforts.”

“The credits of 'series created by' and 'executive producer' goes to the writer,” Gopal adds. “This is an established practice, but it is not the case in India.”

Gopal points out, as do other writers in the business, that India’s film and TV executives are used to seeing the director as the ‘captain of the ship’ who takes creative control. Most top executives in India’s streaming industry come from years of traditional film and TV experience.

“We have received pushback from certain producers or platforms executives when we have positioned a seasoned writer as the showrunner or asked for ‘Created By’ credit,” Gopal says. “They may insist that the director should get that credit because they are ‘the captain of the ship’ and rationalise Executive Producer credits to be reserved for executives from the production house only.”

The idea of a showrunner isn’t new, but the title is unique to India. In most other markets, including Hollywood, the creator and writer of a streaming show is credited as an executive producer, a title that is both misunderstood and considered ‘too high’ for a mere writer.

“We have had producers ask us, ‘what does a showrunner even do?’” Nisarg Malde, senior manager for business and legal affairs at Tulsea, told The Impression. “We have seen examples of shows where the production company has taken the credit for ‘created by’ and refuse to give it to the writer because they believe the ‘written by’ credit suffices.”

A rare example of a writer successfully getting credited per international norms is Sudip Sharma, creator of Amazon Prime Video’s hit Hindi web series Paatal Lok. Sharma carried on the project: writer, creator, and executive producer aka showrunner.

However, most streaming platforms and production houses continue to offer showrunner credits to directors or producers of their projects, not the writers. It is yet another way in which writers are blocked from getting greater creative and monetary ownership to their work.

Fighting Back

For most writers, including experienced ones, the only way to claim a profit share or copyright on their work is to transition to being directors and producers of their films and shows.

That should not be the case, given the existence of the SWA. Yet, writers say being a member of the SWA does not guarantee an equal seat at the table or the ability to fight back against exploitative producers. One Mumbai-based film, TV, and web series writer says his SWA membership has only helped him register scripts and story ideas to prevent copyright violations. “If your script is SWA-registered, that is something everyone still respects in Bollywood,” he told The Impression on condition of anonymity. “But apart from that, I have not used the SWA’s services for anything else.” He has been a member for just under a decade.

Writer Saiwyn Qadras, a member of the SWA’s executive committee, agreed that many members tend to under-utilise what the union had to offer. “When I became a writer back in 2008, I also thought the SWA was only a place to register your scripts,” he told The Impression. “But we have a lot more. We have to show writers that there is a desire to safeguard their rights.”

What is the SWA doing to level the playing field for writers? More importantly, as films, TV, and streaming suffer a slowdown and shift in audience preferences at the same time, will they be able to make an impact against producers’ stranglehold over the entertainment industry? More on that in part two.