Writer's Guild of America loses South African case

In 2003/2004, the South African film production company contracted with Garrick Dowhen, a part-time writing professor at Fullerton University in California, to rewrite a script. The writer insisted on being paid upfront and in full before he started working and that everything was fully recorded in signed contracts. He agreed to a compensation package that was lower than the minimum rate of the WGA (this meant that the WGA minimums would not apply), on condition that he would receive a bonus when the film was funded as well as shares in The Lamb.

"There was no doubt that he was working for a South African company - I flew him to South Africa, all expenses paid, and he did the re-write in Hermanus," says Markgraaff. According to Dowhen, however he mainly did research while in South Africa and the actual writing was done in the US.

American arbitration

In 2007, almost four years after Dowhen's services were terminated, the WGA summonsed Charis and Markgraaff to an arbitration hearing, where Dowhen alleged that he was owed the difference between WGA minimum compensation and the contractual rate, which he was paid and for subsequent re-writes as per a verbal agreement.

"Given the fact that he insisted on all agreements in writing and payment in full before commencing work, his claims - several years after he was fired from the project - for additional compensation where there were no written agreements, had no credibility. I refused to participate in this farce.

"Clearly, the arbitrator had no jurisdiction over the matter and my lawyer and I left the room," says Markgraaff. As a result, Charis' case was never actually heard and according to Markgraaff, never determined by any court.

The film's executive producer, Frank Yablans (president of Promenade Pictures, and former president of Paramount Pictures), said, "Dowhen's attitude and performance as a writer was arrogant and unprofessional. When instructed to revise his initial version of the screenplay he simply refused and held the production hostage since he refused to return the disc needed to complete a draft. He was not a member of the WGA and he took the assignment as a writer knowing this was not a WGA project. The WGA in my mind acted as a dictator."

The WGA continued with the arbitration and awarded Dowhen US $64 000 plus WGA legal fees based on his testimony that he had done several re-writes after his services were terminated.

South African claim

The WGA brought an application in the Western Cape High Court on behalf of the writer, which was dismissed with costs. The judge refused to enforce the foreign judgment, which the WGA and the writer had obtained in California and found in favour of Charis and Markgraaff.

It is instructive to note that, according to the WGA's legal representatives, "...nothing in the WGA agreement limits its applicability on the guild's jurisdiction to guild members." The WGA will get involved in collective bargaining on behalf of all writers in the motion picture industry. A writer is defined as anyone who is employed by a company to write literary material.

"To think that a non-WGA writer can enter into a non-WGA agreement with a SA film production company that is not a signatory to the WGA, come to Cape Town to re-write a South African screenplay and get paid upfront and in full - and then try to impose his will years later, through legal manoeuvring backed by an American union, is ludicrous. After my experience with the legal system in the USA, it has been refreshing to witness justice prevailing in South Africa," concludes Markgraaff.