In the upcoming “The Mask of Zorro,” Antonio Banderas and Anthony Hopkins defend the weak and free the oppressed with daring duels and the mark of the “Z.”
But behind the scenes of the swashbuckling action film, which TriStar Pictures will release this summer, another drama was playing out over which screenwriters would be included in the credits.
Looking back, said director Martin Campbell, he believed that the credits should include David Ward, a veteran screenwriter who won an Oscar for best screenplay in 1973 for “The Sting” and has also directed films such as “Major League” and “King Ralph.”
“I think he damn near rewrote every single line of dialogue in the script,” Campbell said of Ward, who produced two different “Zorro” scripts and worked with the director during a physically demanding 98-day location shoot last year in Mexico.
Yet as it now stands, Ward’s name will not appear on screen.
A committee of his peers from the Writers Guild of America, after studying the evidence, determined that three other writers should share the credit: John Eskow, whose script prompted the studio to green light the film, and the team of Ted Elliott and Terry Rossio, who created the original screenplay.
What happened to David Ward is not uncommon in Hollywood.
Between 1993 and 1997, the credits on 415 films--over one-third of the number submitted for credits--were decided through arbitration conducted by the Writers Guild. Of these, about 40% involved disputes pitting writer against writer in a contest over money, fame and prestige.
“Arbitrations are so common, I believe every single picture that I’ve ever been involved with, whether I got credit or not . . . has had some arbitration,” said Daniel Petrie Jr., president of the Writers Guild of America, west.
As any casual moviegoer knows, movies today are overflowing with credits. From gaffers and best-boy grips to seamstresses and even caterers, nearly anyone who works on a film gets listed in the end credits.
Yet, the odd fact remains, writing credits don’t often tell the full story.
“No one can trust the writing credit,” complained screenwriter Phil Alden Robinson. “Nobody knows who really wrote the film. I think that’s a shame.”
Attorney Linda Lichter, who advises many writers going to arbitration, said she has seen clients who spent months working on a film--from long before pre-production through principal photography--end up without a screen credit.
“I think it’s offensive that writers can spend six months working on a film and their names do not appear anywhere on the credits, where someone who worked as an A.D. [assistant director] for a month or two gets credit,” added screenwriter Nicholas Kazan.
And who is responsible for this predicament? Why, the Writers Guild of America.
A Storied History
Since the 1940s, the guild has been empowered through its contracts with studios and production companies to be the final arbiter of writing credits in movies. The guild also determines writing credits in television.
The 8,500-member union jealously guards this power, believing it is far better to have writers make the decisions than producers, because Hollywood lore is filled with tales of unscrupulous producers who put their mothers, girlfriends and even bookies on the credits.
But as studios increasingly rely on multiple writers to craft a script--particularly on big-budget action films--the task of determining who should get screen credits has become a tension-filled, high-stakes endeavor that has placed the guild’s arbitration process under a spotlight.
Critics complain that the arbitration process--in which each case is decided by a three-member committee chosen at random--is so shrouded in secrecy that it prevents accountability, scrutiny and review. The guild maintains that the confidentiality is a keystone of a fair and impartial system.
“We have rules in place to ensure [arbitrations] are unbiased,” Petrie said.
The guild president points out that as recently as 1995, no less than 82% of his membership voted down efforts to make changes in the manual governing screen credits.
Still, frustration abounds.
Director Barry Levinson threatened to withdraw his guild membership after an arbitration panel denied playwright and screenwriter David Mamet a first-position writing credit on Levinson’s recent political satire “Wag the Dog.”
Another controversy was sparked last year when Steven Zaillian, the 1993 Oscar winner for best screenplay adaptation on “Schindler’s List,” failed to receive a credit for his rewrite on director Steven Spielberg’s historical slavery drama “Amistad.”
In 1996, two of the summer’s most hyped films--"The Rock” and “The Cable Guy"--were involved in very public skirmishes over their writing credits. In the case of “The Rock,” an arbitration committee’s ruling leaving a screenwriter’s name off the credits so infuriated director Michael Bay that he called the guild’s process of determining credits “a sham, a travesty.”
More recently, director Campbell said it “horrifies me” that an arbitration committee left Ward’s name off the credits on “The Mask of Zorro.”
“I have no idea on what they base these arbitrations, but all I can say as the director is, David’s contributions were invaluable and probably had more influence on the characters and on the final movie than any other writers,” Campbell said by phone from his home in France.
Spielberg’s production company, Amblin Entertainment, initially recommended another screenwriter--Zak Penn--to share in the credits, but Penn asked that his name be withdrawn.
“Even though they were kind enough to offer me credit, I knew I wouldn’t get credit because I didn’t deserve it,” said Penn, who added, “I felt a little bit embarrassed. I thought maybe they were trying to be nice to me, which was unnecessary.”
Penn knows how painful arbitration can be. He and Adam Leff wrote the original screenplay for the 1993 Arnold Schwarzenegger film “Last Action Hero.” But when the dust settled, the credits read: screenplay by Shane Black and David Arnott, based on a story by Zak Penn and Adam Leff.
“I don’t know of any other original screenplay where the original writer lost, but I was the one,” Penn said, still bristling at the outcome.
Eskow, who is set to receive a screen credit on “The Mask of Zorro,” called the guild’s decision “painstakingly crafted” and termed the arbitration process “fair.”
“I live in New York and I observe the process at some distance,” Eskow said. “I’m aware that the three independent judges who don’t know any of us weighed all of the evidence impartially. That’s all I can expect as a union member and as a writer.”
Ward, however, came away frustrated.
“I was stunned that I didn’t get credit on it,” said Ward.
“One of the things that is frustrating for writers who have been denied credit is they don’t know who the arbiters are and don’t know the reasons they have been denied credit,” Ward said. “They will give you some general answers like, ‘Well, you didn’t fit the criteria as stated in the Writers Guild rules,’ but everyone knows those rules are subject to a wide range of interpretation.”
Equally frustrating, he added, “is that you never know how the standards were applied in your particular case.”
“You don’t know the specific logic by which the arbiters arrived at their decision,” Ward said. “Therefore, the appeals process is a real sham, because you can’t debate it on the merits because you don’t know what the merits are.”
Ward stressed that even if he won on appeal, he would only have accepted a credit if it meant none of the other writers would see their names removed.
Writers do not have to accept a credit. Indeed, Penn noted that he recently declined to take a screen credit on “Mighty Joe Young,” a film Disney plans to release later in the year, because he felt other writers contributed more.
“Had I been added, it would have been worth $150,000 to me,” Ward said. “To some people, that may not be a lot of money, but to me that means something.”
In appealing his case, Ward had turned to Campbell to buttress his arguments, but the director said the guild doesn’t give much credence to directors’ opinions on such matters.
“I’m convinced that writers have had a tough time with certain directors over the years who have claimed writing credits and, quite frankly, don’t deserve them,” Campbell said. “I wouldn’t, for a second, accept a writing credit on ‘Zorro.”’
Guild President Petrie said he is well aware of the agony screenwriters endure in arbitrations.
“Even though a writer might know intellectually that the system is good and there are three individual arbiters who will read the material and call it the way they see it, you cannot help but feel . . . your word is being questioned, perhaps, or your contributions to a film are in dispute and somehow the guild is your adversary,” Petrie said.
One reason writers squabble over screen credits is because their paychecks are tied to them. Not only does a credit help them land their next job, it also enables them to share in lucrative back-end production bonuses and residuals like videocassette sales and television rights.
With studios needing the credits firmed up in order to strike prints and print ads, the guild is always under a tight time-frame to determine credits.
As films wind their way to completion, production companies are required to send the guild a notice tentatively listing the writing credits. Once a writer protests, he is asked to attend a pre-arbitration hearing with members of the guild’s screen credits committee to explain the nature of the dispute and present information or documents that support his claim.
Each writer may scrutinize the list of fellow guild members who volunteer as arbiters and remove a reasonable number for any reason. Then the guild randomly selects three arbiters, whose names are kept confidential.
They settle down separately to read the various scripts and supporting letters and make their judgments independent of one another. There is no testimony taken. Because the arbiters work alone and in secret, behind-the-scenes politicking is virtually impossible.
In reaching a decision, the arbiters are instructed to follow a formula the guild has devised to determine which writers deserve a credit.
Under that formula, a writer must contribute more than 33% to the final screenplay to be eligible for a screen credit. In the case of an original screenplay, any subsequent writer or team of writers must contribute 50% to the final script to be eligible for a credit.
Directors and producers have it harder. If a production executive rewrites an original screenplay, for example, he has to contribute more than 50% to receive a credit. If he is part of a writing team, his share must be more than 60%.
These percentages are not determined by counting lines or the number of pages in a script. Indeed, there have been instances in which every line of dialogue has been changed and still arbiters have found no significant change in the screenplay as a whole.
Although arbiters submit memos to the guild outlining their reasons for rendering a decision, those memos are not shown to the parties involved in the dispute.
“You don’t know whether to have directors send in letters of support for you, because sometimes that can backfire on you,” one screenwriter said. “Depending on the arbiter, they may take the director’s viewpoint into account or say, ‘This writer is obviously the director’s friend and therefore is immediately suspect.’
“You’re also wondering, who are these people who have enough time in their lives to read 12 scripts?” the writer added. “Are these working writers? Are these people retired?”
Decisions can be appealed to the guild’s Policy Review Board, but only on technicalities. It is rare, however, that writers win on appeal.
At the heart of every arbitration is an ongoing debate that has raged for years in Hollywood: how many hands does it take to write a screenplay?
Role of ‘Script Doctors’
While screenwriters will say that great films evolve from one person’s imagination, studios executives like insurance, so they often hire multiple writers to rework the scripts from development through principal photography. These skilled rewrite specialists are known as “script doctors” in the industry, and they can earn hundreds of thousands of dollars for only a week’s work.
“I think there should be one writer and one writer only,” complained guild board member Charles Edward Pogue. “If a guy wants to come on as a script doctor, he should take whatever fee he can get and not take any credit. Personally, I think any time a writer comes on and rewrites another writer without his permission, he’s a carrion eater.”
Two screenwriters who recently won separate arbitration cases--David Franzoni on “Amistad” and Hilary Henkin on “Wag the Dog"--say that, in general, the process works, but the experience left them unsettled.
“Amistad” created headlines late last year when author Barbara Chase-Reboud filed a $10-million claim in federal court alleging that DreamWorks SKG, the studio that financed the film, plagiarized portions of her 1989 novel, “Echo of Lions.” The author and DreamWorks settled the suit last February.
Although the suit was a separate matter, the case drew attention to the arbitration hearing involving Franzoni and Steven Zaillian, who was brought in to do the rewrite.
In a recent interview, Franzoni said he agonized before deciding to seek sole screen credit on the film.
“It was an arbitration that wasn’t pleasant,” Franzoni recalled. “There was a misunderstanding about who wrote the script. The Writers Guild decision that I should receive sole credit, in my opinion, was completely justified. This was not a lame decision.”
Franzoni said he spent a year researching the subject, creating seven screenplay drafts along the way, and even conferred with Zaillian. But after comparing scripts, Franzoni said, he came away convinced that much of what Spielberg put on the screen came from his material.
“Steve Zaillian and I had a good relationship on the set,” Franzoni recalled. “That’s the problem with [arbitration]. Writers are being pitted against each other. But I would have felt like a complete idiot if I didn’t do what I had done, which is take credit for creating this movie.”
Zaillian did not respond to interview requests.
In the case of “Wag the Dog,” Henkin said it wasn’t the arbitration she found stressful, it was what happened afterward.
In publicizing his film, director Barry Levinson had said in press interviews that David Mamet deserved a first-position writing credit over Henkin. In a recent interview, Levinson still believes Mamet was shortchanged, saying “99-and-nine-tenths” of the film came from Mamet’s script, not Henkin’s, and that Henkin’s contribution to the story essentially involved “a war being faked.”
“This film, ‘Wag the Dog,’ would never have been made based on the draft that was written [by Henkin],” the director said.
Not only did Mamet rework dialogue, Levinson said, but he added characters and changed sequences.
For example, Levinson said, it was Mamet who created the flamboyant Hollywood producer played in the movie by Dustin Hoffman, as well as a convict portrayed by Woody Harrelson. Levinson also credited Mamet with a plane crash scene, a meeting at the producer’s house at which a scheme was hatched to fake a war with Albania, and another scene in which an actress on a sound stage is digitally inserted into an Albanian combat zone.
Henkin, who adapted her screenplay from the Larry Beinhart novel “American Hero,” said there was no question that Mamet “made good contributions to the piece.” However, she strongly disagrees with Levinson’s assertion that the movie would never have been made based on her script.
“Is he the studio?” Henkin asked. “The fact is that both he and [Robert] De Niro and [Dustin] Hoffman came in on the basis of my script. There was no Mamet script when those guys became attached [to the project].”
Henkin said the only thing she really took from Beinhart’s book was the concept of faking a war, and added that many scenes in the film are simply variations on her script. She noted, for example, that in her script the war is located in Turkey--not Albania--while in her script a crazy director masterminds the war, not a crazy producer.
Mamet, through his agent, declined to comment.
“The arbitration process is about establishing authorship,” said screenwriter Michael Schiffer, adding, “If a writer winds up with sole credit on a screenplay or shared credit on a screenplay, I think the industry should stop second-guessing the damned thing. It’s absurd. It’s sort of a game in town to say, ‘Who really did it?’ The guild determines who really did it and that should be honored.”