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3.
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How do deliverables impact distribution?
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Digital video cameras and video editing applications such as Final Cut Pro make it possible to perform such minor technological miracles as creating entire feature-length "films" without ever leaving one's home.
Watching a film on VHS is about as satisfying as looking at a photocopy of an oil painting, so for the past few months I've been keeping my eye on the new generation of DVD-authoring software and disk recorders with the hope that I might soon be able to put my old VHS deck to rest in a New York landfill.
Until very recently, burning your own DVDs at home was prohibitively expensive. A DVD burner could cost thousands of dollars, and recordable DVD disks sold for about $30 apiece. Fortunately all this is changing. DVD burners that can create home-player-compatible video DVDs are selling today for well under $1,000. Recordable disks now sell for about $6 each, and these prices will continue to drop. Authoring software is getting cheaper and more plentiful as well.
This past month I tested two excellent new tools that enable filmmakers to author and burn their own movies onto DVD disks: The Que! DVD burner (approx $750) and Apple's DVD Studio Pro DVD authoring software ($999 SRP).
The limitation of most currently available DVD drives for personal computers is that they can't create disks compatible with home DVD players. These drives play video DVDs, but they can only write to DVD-RAM disks. DVD-RAM is a good storage format, but you can't play the disks on home DVD players. (Apple's DVD Superdrive was an exception, but you could only get it by buying one of their higher-end G4 computers.) The point is, don't run out and buy a DVD burner assuming you'll be recording video DVDs. You have to know the format it's capable of recording before you buy it.
The Que! is one of the first recorders available in the U.S. that will write to DVD-R format disks, a disk format compatible with almost any home DVD player. The Que! is actually a Pioneer DVD drive packaged in an external housing, and it connects to your Mac or Windows computer via a FireWire cable.
Here's the good news: video files burned on DVD-R disks and played back on my home DVD player were markedly superior to VHS copies of the same material. If you see your work on DVD you'll never want to send out another VHS tape again. Visit the QPS Web site - www.qps-inc.com - for a full list of compatible formats.
Another strength of the Que! is that it's compatible with a myriad of DVD and CD formats. In addition to DVD-R disks, I was able to write to DVD-RW disks, which manufacturers claim can be rerecorded up to 1,000 times. DVD-RW disks will generally only play on home-DVD players manufactured in the last year, however, so they are not yet an ideal way of distributing your movies. The disks are reusable, though, and can store almost 5 gigs of data, so they make good backup media. I was able to burn CD-R and CD-RW disks as well. This is useful because it means you can burn both DVDs and CDs without needing to keep two different drives around.
The Que! ships with a case that holds the drive, power supply, FireWire cable and disks. This is a reasonably portable, well-designed unit that would make an excellent addition to a DV editing system. Basic DVD authoring software for Windows computers is included. For Mac users, Que! includes a program for burning CDs, but not for authoring DVDs.
For DVD authoring on a Mac you'll need to get a third-party software application, and Apple's DVD Studio Pro DVD authoring package would be an excellent choice. Though the $999 price tag seems high, it's quite reasonable considering that hardware-based authoring systems can cost thousands of dollars more.
This test of DVD Studio Pro was my first experience with DVD authoring. Though the application is quite complex, it is well designed and within a few hours I was able to master it sufficiently to create a professional looking DVD that would play back three of my DV shorts. A useful preview function allowed me to constantly check my progress and watch for mistakes while I was working. My finished DVD included custom menus that I created in Photoshop that allowed viewers to select which short to play, and to view slideshows of production stills from each short. I was able to label each movie with chapter markers and encode the audio to the Dolby Digital standard.
The application is quite powerful, and in my trial I only had enough time to scratch the surface of its capabilities. Each DVD track can have up to nine video streams (or angles, as they're known in DVD jargon), eight audio streams, 32 subtitle streams, and 99 chapter breaks. Language settings allow the construction of multi-language DVDs - each disk can hold up to 16 languages. DVDs can be regionalized to play back only in designated geographical areas, and they can be copy protected with industry standard CSS (Contents Scrambling System) and Macrovision. When you've finished designing a DVD, you can either burn it directly to a DVD-R disk for immediate playback, or you can save the data to an external storage device so your video DVDs can be burned by a DVD replication service. An extremely comprehensive application, DVD Studio Pro is likely to do just about anything indie filmmakers will need to build a high quality DVD showcase for their work.
But don't throw away your VHS recorder just yet - the cost of burning disks at home is still a bit too high to replace tape entirely. But the enormous quality advantage of DVD and dropping prices spell the inevitable demise of VHS. Good riddance.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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4.
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How do I go about creating a realistic budget for my project?
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Creating A Budget
If you're a regular watcher of independent cinema, you've probably experienced them: the glaring errors, the awkward glitches, and the low-budget blunders that characterize a film as, in the worst sense of the word, independent. When they make their awkward appearance on the screen, we roll our eyes heavenward, struggling to understand how filmmakers could let such monstrous gaffes slip under the radar.
While studios can underwrite lengthy reshoots, artful editing, and enough F/X explosions to distract an audience from almost anything, indie filmmakers are often forced to cross their fingers and hope no one notices the boom in the shot, the hole in the plot, or the day the lead actress was having an allergic reaction to her cough suppressant. And while some flubs can actually lend a low-budget charm to the film, others are serious enough to send viewers streaming out of the theater. For beginning low-budget filmmakers, the trick is knowing which indie cliches are merely annoying and which are truly deadly.
Sound Advice
"Technical flaws in the picture don't bother me as much, whether the film is grainy or dark, but I think people don't put enough thought into their sound" says Ryan Kent, producer of the documentary Another Paradise. "If the sound sucks the uninformed person will attribute that to the actual quality of the filmmaking."
The informed viewer will also have a reason to condemn the film - especially when it comes to coughing up distribution dollars. "The absolute benchmark of a cheap film, and the reason a lot of them don't get distribution, is because they have such terrible, lousy sound," explains Mary Hillard, the producer and director of the nationwide film and video showcase TV Bounty. "It really will shoot down an independent production because you have to spend so much money to fix it."
Strong sound is especially important for filmmakers traveling the festival circuit. "There's no guarantee you'll screen in a studio theater," says Hillard. "A lot of festivals have screening in gymnasiums, for example. So if you're coming in with bad sound and then screening in a theater that may not have great sound, you've got two counts against you."
One reason for bad location recording cited by sound editors is that inexperienced producers have a tendency to hire novices for important sound work. "Often you have someone who's just learning as the boom operator," says Adam Livingstone, president of Video Post and as well as an editor and supervising sound editor. "People don't think about sound until the last minute - the image is afforded much more importance," he continues. "The best-sounding films are [the ones in which] the producer cared enough to get the DP and sound department rehearsing ahead of time."
Low-budget locations can prove to be problematic sound-wise; often locations are chosen because they're cheap and without a thought given to background noise. he advises, "The director should be designing all his shots to get good audio. Sometimes a great-looking location is just too noisy to mike well." Short schedules also contribute to poor sound. When there's a problem, inevitably someone in production will say, "We'll just loop it later." However, low-budget productions unable to afford a lengthy mix with a top-notch mixer may discover that cheaply recorded and hastily mixed ADR sounds just as bad as a muddy location track.
Sound problems not anticipated and corrected in production end up costing the filmmakers a lot of money in post. The filmmaker ends up relying on the post process to correct for conditions such as improper sample rates, no pulldown, using video speed instead of film speed, improperly referencing decks so that there end up being drifts, and times codes that are off. "The computer age can save you money," says Livingstone, "but only if you plan ahead. [Before you start shooting] you should know who's doing your audio post, get their specs, determine the most effective way to sync dailies, decide whether you'll use simuldats or have someone else provide you with flexfiles."
Bad Booming
Booms that make it into the final print are often the first sign of a limited budget. Because the 35mm film exposed inside the camera contains a frame significantly larger than both the 1.85 aspect ratio picture that usually shows in theaters and the taller picture that plays on TV, the boom will appear within the d.p.'s eyepiece, but it shouldn't dip below the frameline. On complicated dolly moves or scenes in which actors stand up and move around, this can be harder than it sounds. The boom gets in the shot when, as location mixer Dan Ludwig says, "The boom operator thought he knew the boundaries but didn't; the camera operator should have noticed but didn't...."
And, as Livingstone adds, "Not only don't independent filmmakers have the resources to shoot again, but a lot of first-time indie filmmakers don't use video monitors. They may not even be getting dailies, so they don't see the mistakes until they're in post."
Almost as common as the boom in the shot is the boom shadow in the shot. Boom shadows are often a result of limitations in the lighting package. Cheaper packages often contain smaller instruments with harsher light sources which create harder, more visible shadows. And of course, raising the boom higher in the frame to keep a shadow from falling means sacrificing sound quality. Lack of communication on set is also often responsible. "The better the relationship the sound department has with the d.p. and the lighting people, the better the film will be," Ludwig explains. "It's important that everyone knows what the other departments' needs and limitations are. Too often, however, you'll have a d.p. who works very quickly and isn't sound-friendly, who doesn't communicate or doesn't even know what the frame is. Or you'll find a lighting department that isn't keeping sound and shadows in mind. Sloppy communication leads to sloppy errors."
You've Got to Focus
A sharply focused picture would seem to be the minimum requirement of any motion picture. That said, it's surprising how many films - mostly independent but also a startlingly high number of studio releases - contain soft and sometimes out of focus scenes.
Inexperienced focus pullers, combined with d.p.s working with extremely shallow depth of fields, are the main reasons scenes go soft. Also, many indie filmmakers, especially those who cut on video, opt to forgo workprinting because it's an extra expense. "In cases where the filmmaker doesn't print right away, there are shots out of focus that get into the film if the performance is good," notes Livingstone. The video transfer process often tightens up a shot or corrects exposure problems, making it impossible to determine how soft, light, or dark a shot is until it's finally printed on film. When the first answer print arrives, "filmmakers are often so wedded to the performance that they'll let mistakes slide for the sake of keeping the take."
Soundtrack Shortcomings
While an occasional soft shot isn't a tragedy, an inappropriate soundtrack, even on the festival circuit, is. Mentioned repeatedly as a pet peeve by everyone from producers to screenwriters to grips, a jarring tune or cheesy score can irretrievably taint a viewer's perception of the entire film.
"Lounge-lizard-type music, even though I like that kind of music, is the cliche of independent films," explains Johan Goldberg, the director of the feature Camp Commanders. Besides investing the film with a perhaps unwanted ironic sensibility, a familiar or over-amped soundtrack can simply distract. And overuse of expensive source cues may work for films like Forrest Gump but are distracting when used in low-budget indies. One of the most difficult problems for a new filmmaker is the temporary soundtrack that grows to be "perfect." "A lot of first-time directors get very attached to their temp tracks and this is dangerous," says composer Chris Ramirez, who recently scored Hotel California II. "Inevitably the songs will be well beyond the scope of the budget, so their next recourse is to ask the composer to copy it. You end up with a weak imitation rather than allowing the composer to come up with something fresh and innovative." Ramirez says that another habit is to not even consider scoring. "A lot of directors will use the Quentin Tarantino route - instead of taking advantage of the emotional richness and impact that a score can add, they try to use songs, many of which just won't work as well."
Yet another scoring error is putting it off. "Scoring comes last, usually just after the budget has been all used up," says Ramirez. "Instead of waiting, hire your composer before you start shooting. Find out how much it will cost and how long it will take. Then you'll know to reserve that in the budget." Ramirez adds, "It's amazing what a well-crafted score can bring back to a film."
Handheld Hell
Thanks to the trendiness of handheld camera-work, most filmmakers assume they have some leeway when it comes to cinematography. "Fashion aside, it's probably a good idea to spring for a tripod. I've seen some incredibly bad camerawork, and I feel sometimes it's done on purpose, like handheld stuff that makes you want to vomit," complains Ramirez. And Blush comments, "Handheld is a big staple. It's like, 'My film is very cinema verite,' when you know that the filmmaker couldn't afford a tripod. It's all about motivation. Is there a reason why this film has lots of shaky cinematography? If so, great, but if not, you've got to make the time to lock your shot down. Not everything can be justified as art."
So how do you get good handheld camerawork? According to Mary Pate, director of the upcoming Joyhill as well as Laws of Understanding, the film that boasts perhaps the best use of handheld camerawork in recent years (and which may be responsible for the technique's continued popularity), the key is getting the right cinematographer. Pate explains: "I knew that our film would be handheld, so I put out the word that I needed a good handheld d.p. Owen Frans name kept coming up. While he didn't have a lot of dramatic experience he did have experience in documentary filmmaking."
Pate notes that there's a common misapprehension regarding the skills to shoot handheld. "d.p.s are very macho about handheld cinematography - they all want to put the cameras on their shoulders and prove that they can do it. But some can't. It takes a special kind of skill, and either you have that sense of composition and grace or you don't."
Editing Evils
On a film constrained by budget, fancy camerawork should be of secondary concern; usually it's difficult enough to provide adequate footage. The indie director who avoids coverage - multiple camera setups covering the same action from different positions and with different kinds of shots - risks cutting off his nose to spite his face. Too many directors decide to shoot just masters, considering it a stylistic choice. Jan Nelson, film editor of Nowhere to Go, "With one of the films I'm now working on, it's all shot in masters - and sometimes with only a single take - so what can I do? There are huge story holes I can't fill." With a little bit of coverage, editors can better performances, fix narrative gaffes, and improve pacing, yet many first-time filmmakers are unable to anticipate their editing needs while on the set.
Without adequate coverage, editors are often left with few options; budget permitting, the editor can hand the director a long list of insert shots or resort to using stock footage, which won't always work. Plus, as Nelson cautions, stock footage is very expensive: "If you're relying heavily on [stock footage], you're already offsetting any savings of not shooting it in the first place." Nelson recommends bringing the editor on early to discuss the shot list, especially if there's a low shooting ratio. There are many issues an editor, working with the director and d.p., can resolve before the shooting starts. "Anyone using a master-shot style, with long tracking shots and what not, is wise to back it up with additional coverage," Nelson affirms.
Continuity mistakes are another production problem editors are commonly called upon to remedy. Laura-Anne Williams, who edited several features, laughs, "One of the most difficult problems to fix is missing the shot that gets the actors from one end of the room to the other." "[This isn't to say] continuity mistakes aren't in big budgets too," She adds, "but without coverage they are really hard to cover up." One editing trick is cutting from frame during action so the eye is distracted by movement and won't notice a gaffe.
Stale Sets
A few of the other common low-budget, first-timer gaffes don't require inborn talent and can thus be more easily remedied. Williams lists a few: "If you watch carefully, sometimes you'll see the reflection of the crew in a close-up of a car, or you'll see a lightstand or a cable trailing off into the void." The reflection of the camera and crew off of glass can be avoided. "Using polarizing filters can lessen the reflections," says cinematographer Bill Vogt. "Or you can try to black out the camera. It depends on how much of the window and the reflection you want versus what's on the other side of the window."
Vogt also notes that shifting the angle of your shot might also work, as does making sure that the subject being photographed is brighter than the light around the camera.
Inappropriate set design is another indie staple. "Some cliches work for characters, but there's often another way to create a character without sticking to a cliche," explains Vogt. "For instance, you can have a nice bohemian pad without jalapeno lights." Capturing the boho essence is often tricky, yet its importance cannot be underestimated - a false note can raise eyebrows in a style-conscious indie crowd. But there can be too much of a good thing. "I think there's a tendency to make everything look like the East Village in New York. Everything has to have this avant-garde feel to it," says Vogt.
White walls are a commonly cited critique of low-budget production design. "They just look bad," comments production designer Beatrice Jonson. "Darker walls show off the skin tones of your characters. And it's easier to light when you don't have to keep the lights away from the walls. When lights hit the white paint, the wall looks flat," she explains. Block says that she often will use thin wood covered with wallpaper as a way to cover walls that can't be painted. "Or I'll put up foamcore covered with fabric. Then you don't have to spend the time restoring the wall when you're finished."
Familiar Faces
Indie filmmakers are just as capable as their studio brethren of casting cliches. "I'm getting a little tired of seeing all the same familiar old faces in independent films" says Scream screenwriter Kevin Williamson. "Some actors are just getting known as independent film actors, and it's just like seeing a big name actor in the same old role." Comments UCLA screenwriting instructor Frank Deese, "People go to movies to see stars because they're getting the same familiar persona from movie to movie, and that's not what you want in a good independent film."
Narrative Nuisances
While many of these cliches are ones that are only discovered after the camera is already rolling, there is at least one that can, if caught in time, be fixed before anyone's on the payroll. Mike Conway, comments, "Scripts don't necessarily need to be plot-driven, but they need to be well-structured. Many independent films are personal or autobiographical, and this leads writers to make assumptions about their characters. The writer knows him or herself well, but may not know how to develop that character onscreen. There's a loss of clarity."
For Conway, however, the chief error she encounters in indie scripts is a lack of focus. "The writer often hasn't come to terms with what the story is about, and this contributes to basic structural problems in storytelling."
Often the scripts aren't gold - and filmmakers look for other hooks to lure distributors. "There are a lot of art films that feature nudity that tries to apologize for itself," says Blush. "Usually it's not necessarily erotic nudity, it's the nudity of somebody who's being horribly abused or the nudity of someone who is trapped in a difficult situation." Post-Tarantino excessive violence has become an indie staple and not always to great effect. "I'm not against an ear getting lopped off if it's done for a reason, but there seems to be a need in independent films for some especially gory, violent thing that pushes it into another realm," says Conway. Screenwriter Rick Little agrees. "You need to find the thing that's unique in your story," he says. "A lot of times people end up imitating other films, or they use the same kinds of references that seem currently hip. Right now it's '70s pop culture and sudden violence. But you know when people are trying too hard to be hip or wacky. It doesn't work."
While the studio system may frequently churn out tired material, it usually conforms to the tried-and-true three-act structure - a device that more indie filmmakers may want to look into according to Littlr. "Another cliche would be a lack of resolution - abrupt endings. I tend to jump a little when the credits roll on an independent movie. It's over already? That was the ending?" says Little. "I don't want a message, but the movie needs to be complete unto itself in some way. Some filmmakers don't think they have to follow the rules of dramatic structure because artists don't follow the rules."
Of course, there are films that break every one of these rules and succeed because of, not in spite of, their disobedience. The great film auteurs do break the rules, but they break them brilliantly. "All the hacks break them horribly," says Little. Fledgling filmmakers plagued by memories of chili-pepper lights and shopping-cart dolly shots can comfort themselves by placing themselves in the former category - and perhaps next time learn from their mistakes.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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6.
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Question: A couple of rights questions: You said earlier "Authors of non-fiction books do not have any rights to the facts and historical information in their books." My understanding was that if the facts were publicly known and published you are correct, but that if the facts are taken from a privileged source the rights must be obtained from that source. For example, copyrighted scandal sheet reports that the private diaries of Jane Smith reveal Doe had an affair with her and that he secretly actually walked on water when he was once high on LSD and 1000 other unknown facts. I thought you would have to obtain rights from Jane Doe or the copyright holder of her book (since the facts appear no where else) to use these facts. No?
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Answer: Historical facts and information are not copyrightable under any circumstances. Of course, the way a particular author tells history can be protected as an expression of that author. Moreover, publishing privileged or private information could expose you to liability for breach of a confidentiality agreement or for unlawfully exposing a trade secret. But, facts are not copyrightable.
In regard to pitching to a studio and having your story ripped off, while you might not have a copyright infringement case, because all that was taken was an idea, you could well have a case for breach of implied or oral contract. There are a number of cases that have found liability in such a situation. The key question is whether or not there was an understanding by the parties that you would receive compensation for your contribution or whether your pitch was a gift.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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8.
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Question: A friend and I want to do an adaptation of a book we know to be in the public domain (let's say it was Moby Dick). However, a relative of the author says that they have copyrighted the author's name. We take this to mean we could say "Moby Dick, based on the novel by Herman Melville," but we could not say "Herman Melville's Moby Dick." Does this sound like the correct read to you? The relative was imprecise about the implications of the copyrighting. We do not want to burden the project with additional participants unless we need to, so we want to see if we can proceed without the relative's participation.
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Answer: Names and titles are not copyrightable; only expressions of an author are. Names can sometimes be protected under trademark law, however, even if the book is in the public domain. I do not see a problem in the realm of copyright law attributing it to the real author. Public domain material is available to anyone in the public to use. However, if you significantly change the story, it may be a form of misrepresentation and/or unfair competition to represent that your material is from the original author when it is not.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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9.
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Question: A rather interesting tactic has come to my attention through another screenwriting message board. The poster suggested writing your screenplay as a novel first, as a means of securing more comprehensive rights to your story. Even if the novel isn't yet published, you would own the rights to other adaptations of your story, even if you sold the "film rights" in the form of your screenplay. Does this sound like something worth the tremendous effort involved?
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Answer: No. Whether you create a novel or a screenplay, assuming you are not in the employ of someone else, you would own the copyright to the work and any derivative works. If you wrote a screenplay, you would control any derivative works, such as a book. Conversely, if you wrote a book first, you would control any derivative works, such as a screenplay.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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10.
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Question: A relative of an author of a book in the public domain said that they copyrighted the author's name. Now we hear that the relative actually trademarked the name, not copyrighted it. Could you tell me the implications of this? Can I write a screenplay and use this trademarked name, say like "Herman Melville's Moby Dick"?
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Answer: Trademarks, unlike copyrights, can last indefinitely (e.g. Coca Cola) provided the mark is used to designate and distinguish one product from another. If the mark is abandoned, the trademark is lost. My question is this, is the estate actively marketing a series of books under this author's name? Also, I would question whether this is a valid mark because it appears to be a descriptive term. If the estate is claiming the name as a mark, conduct a trademark search or ask the estate to show you a copy of their trademark certificate to see if the Trademark Office thought this was a valid mark. Of course, that doesn't mean it can't be contested. And, I agree with you that you could say "Moby Dick, based on the novel by Herman Melville."
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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12.
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Question: After copyrighting a script, I submitted it to a famous person's manager, who opened, read, and returned the material. A year later a movie was released with the exact plot line, characters, and verbatim dialogue. The only thing changed was the female lead was switched for the male star that directed the film. With no money to litigate, what can a person do?
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Answer: If your case is as strong as you claim, you may be able to obtain an attorney to take the case on a contingent fee basis. The key here is the verbatim dialog. If they closely followed your dialog at length, then it is unlikely they created it on their own. In this case, I think you may have a strong suit for copyright infringement, and perhaps breach of contract.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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14.
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Question: Are contracts signed in the United States valid in other countries?
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Answer: They may be valid but difficult to enforce against the party that is a foreign company or individual, especially if the defendant's assets are abroad. Parties that sign an agreement made under U.S. law are obliged to abide by the terms of that agreement. However, American courts cannot directly enforce their judgments in other lands. The United States has entered into international treaties that may permit a plaintiff with an American award to ask a foreign government to enforce it, but the process of doing so may be expensive and time-consuming.
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16.
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Question: Can you either post a sample "deal memo" for optioning a work or refer a website that would have that information? I'm interested in optioning some material and want to get the legal verbiage correct. Thanks for your time and advice.
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Answer: It can be dangerous to use someone else's deal memo if you do not understand the terms. Borrowing someone else's contract is like going into a pharmacy and asking a pharmacist for a blue pill because the last time you were sick, that's what worked. There is no such thing as a standard contract, although there are boilerplate clauses that can be borrowed from one agreement to another, if the use is appropriate. When you hire a lawyer, what you are paying for is his/her expertise to select a form appropriate for you and then customize it to your needs. Rarely do lawyers draft an entire contract from a blank piece of paper. Before you use a contract, you should make sure you understand the terms and how it should be modified to meet your needs. In my book, Dealmaking in the Film & Television Industry, 2nd Ed., (Silman-James Press), there are some sample contracts and explanations as to what all the legalese means. It can be obtained at most bookstores.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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20.
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Question: How can writers without residency in the U.S. protect their scripts when trying to sell them in the US?
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Answer: A script can be protected by contract or under copyright law. To protect by contract, you need to have the party you are submitting the work to sign an agreement providing that they will compensate the author if they want to use the work. Moreover, the agreement should include a confidentiality clause, which would provide that the recipient not disclose the work to other parties.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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21.
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Question: I am about to embark on the first page of a rewrite of another author's material. It will be collaboration. I will be doing the bulk of the writing. We are currently hammering out an agreement but can you please explain what I need to make it a viable, legal document? Do I need to sign with a notary, or self register mail it to myself, or is our simply signing and dating it sufficient for legal purposes?
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Answer: A binding contract requires an offer, acceptance, and some consideration, which is usually money or something of value that is changing hands, but could be mutual promises. Notarizing the documents simply ensures that the person who is signing it is the person they say they are. Mailing a script to yourself is proof that on a certain date you mailed the script to yourself, as evidenced by the postmark. This is not great evidence, by the way—you would be better off registering the script with the Copyright Office. Contracts do not always have to be in writing but it is almost always advisable to have your agreement in writing so that you can prove the terms. For a contract to be enforceable, it should be clear and leave no uncertainty or ambiguity as to any of the material (i.e. important) terms.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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22.
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Question: I am currently releasing a pilot for a new television show to all of the major sports networks in North America. One has demanded a signed "idea submission form" which states that the network may have in the past or future received similar or exactly the same idea as mine, and that they may use that similar or exact idea with no compensation to me. The form however warrants that I am the sole "owner" of the idea. Is this something to be concerned about and if so, how can I protect my idea from being stolen from this or any network?
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Answer: This is a submission release often used when studios, and television networks accept material from people "outside the industry." Generally, it is not required if your material is submitted through an agent, or an entertainment attorney, or if you have a personal relationship with the person to whom you are submitting it. Essentially, the network is concerned that you might be setting them up for a potential lawsuit for plagiarism. They are concerned that if you submit to them a project that is similar to one they are already developing, you may then have a claim against them. By signing this form, they make it more difficult for you to go after them because you are acknowledging that there is no implied agreement between the parties for you to be compensated. The form also attempts to limit your damages. This form will make it difficult for you to win a case in the event that the network negligently infringes your work. However, it will not be enforceable against you if they intentionally infringe your work. That is because such disclaimers, as a matter of public policy, are not enforceable to protect fraudulent or intentionally wrongful behavior.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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23.
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Question: I am hoping you can help with an issue that seems to be a little different from those listed above. We are interested in using three two-minute clips from different films to gauge subject reaction in a research project. This is in an academic setting and does not have any profit motive whatsoever. Since the clips are being used for educational/research purposes, do we need to contact someone about using the clips, or would we be exempt from this. Journal articles, for example, can be copied once if they are being used for educational purposes. If we do need to contact someone, who do we contact, writers, film company, both, neither? Thanks for your help on this.
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Answer: This may well be a fair use under copyright law. Certainly the fact that it is being done in an educational setting would weigh in its favor. The fact that your use is not competing against the owners of the clips would also weigh in your favor. The problem with the fair use doctrine is that it is a big gray area. Photocopying a Newsweek article for school use on one occasion would clearly be a fair use. But if a schoolteacher photocopied an entire textbook and handed it out to her students, it would not be a fair use. Unfortunately, many situations fall in between these extremes, and it can be hard to predict how the court will perceive the facts and weigh the factors in determining fair use. The best that you can hope for is to see if there are any precedents with facts similar to yours. Of course, if you are in a different jurisdiction, that precedent may not apply.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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24.
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Question: I am in the process of creating an animated short to be entered into many film festivals and also pitched as a TV series. How would I go about protecting the name and look of my main character before my short is released? Are characters trademarkable or will a copyright of an image of the character protect well enough?
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Answer: After you complete your script, and again after you complete your film, you should register each with the Copyright Office, using Form PA. This will register your copyright to your work. Copyright Law can, to some extent, protect characters that are sufficiently defined. However, this does not prevent others from creating characters with similar personality traits. Just because you wrote a detective story featuring Detective Sam Spade, it does not mean that you can thereafter prevent other people from writing stories that feature a hard-boiled private eye. As far as trade marking characters, if the character is used as a mark to identify the source of a product, then trademark and unfair competition law may apply. A trademark or service mark is a logo or name used to distinguish one source of product from another. Trademarks such as McDonalds, Apple, and Xerox distinguish the source of a product from those of other manufacturers. A character, which is represented visually, such as a cartoon character, will receive greater protection under Copyright law because of its visual representation.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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25.
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Question: I am interested in constructing a database product for the entertainment industry. I have developed an automated process for constructing the database, however, it requires copyrighted material as input. If I purchase a copy of the copyrighted material, may I use it to construct the database? I should note that entries in the database will be only keywords or short phrase-like elements, nothing larger. Will this process infringe on the copyrights? Also, if I can legally construct this database, may I then copyright it? Finally, do you think I could patent the database construction process?
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Answer: Facts, data, ideas, and concepts are not copyrightable. It is the organization or arrangement of this material that can entitle someone to a copyright. Words and short phrases are also not copyrightable. You are free to take from copyrighted materials elements that are not copyrightable. In other words, from a newspaper, you can withdraw facts. This would not infringe the copyright that the journalist would have in his or her article. In regard to processes, these are not copyrightable but can be patented.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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26.
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Question: I am negotiating with multimedia designers to produce several versions of an interactive CD-ROM for use in initial test marketing. Is a broadly drafted non-compete clause in the designers' contracts sufficient to protect my product from falling into competitors' hands, or should I secure rights not only to the tangible artwork and computer coding but to all concepts and developmental strategies as well? If the latter, how exclusive should my company's rights be versus those of the designers?
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Answer: It's difficult to answer your question on the basis of the facts you've supplied. On non-compete clauses, they are only binding on parties who signed them, not necessarily other potential competitors. If you want to prevent the information from being shared with anyone else, you need a confidentiality agreement. Non-compete clauses are not always enforceable. In California they usually are not enforceable, as a matter of public policy. Other states, such as New York, will enforce such clauses. Even where they are enforceable, they may need to be reasonable in scope.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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27.
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Question: I am planning to make a computer-animated movie in the next few months. I have all of the character designs, and the script is being completed. What steps do I need to take to protect myself from lawsuits for having characters that are similar to existing characters? To my knowledge, all of my characters are original, but I may be unaware of previous productions.
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Answer: If the characters are original to you, not copied from another person's work, either consciously or inadvertently, you own the copyright to them even if you were not the first to create them. Moreover, the fact that one author invents Superman does not prevent another author from creating Spiderman. But if your character is very similar to an existing character, you may be vulnerable to a suit for copyright infringement. Consult a lawyer before you go into production.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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30.
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Question: I found master recording tapes in my garage recently, untouched since 1977. The tapes are a live music performance at a state college, by a band that I belonged to. The bandleader no longer lives in the USA, the music was all his compositions, he taught all of us in the band how to play the instruments (African) and he put the band together. I do not remember how I ended up with the tapes but I have had them since the performance. I doubt he or any of the band members remember the performance was recorded. The band did not pay for the recording—college recording students did it. The band was very popular in the northwest for 4-5 years, then broke-up. The band was never under any contract and I do not believe any of the songs were copyrighted. I can reach the bandleader if I want to, he is a fairly well known musician in the USA and internationally. I had the tapes transferred to master CD's; the quality is excellent and worthy of a commercial release. My questions: Who owns the tapes? Can I (should I) copyright the performance? What should be considered with regards to a possible commercial release?
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Answer: When the music was created, a copyright came into existence. You are confused between the difference between registering a copyright, and creating a copyright. Registration is optional although it is advisable because it gives you extra protection. So your music was copyrighted when it was created. Presumably the band owns the copyright. It does not matter where the band members now live. It does not matter that no one paid for the recording, nor that college students did it. It does not matter that the band was not under contract to a third party.
Copyright law in the United States was changed in 1976, effective 1978. Assuming the prior law applies, the copyright would last for 28 years, and could then be renewed for an additional 28-year term (plus 19 more years if the work was in the second term when the law changed). If the copyright came into existence in 1977, it would last at least until 2005, at which time it would expire if not renewed. For works created since 1978, copyright lasts for the lifetime of the author, plus 70 years.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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31.
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Question: I have a problem; I pitched my screenplay on the net and got an answer from someone in Canada. He told me he was interested and that he works for an independent production company. Could he see the script? I replied and sent it along, asking to e-mail some production credits of his production company as well. The guy didn't do that. But the script was already on its way. It is registered with the WGA, sure, but yet I fear he's playing foul, for he didn't send a "Thanks-I-got-it" message or anything else. Could he cheat me? How? Am I paranoid? All I got from this man is an email address, an anonymous P.O. Box and his first name.
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Answer: By registering your work with the Writers Guild, you have created some great evidence in the event of a plagiarism dispute. If the recipient of your screenplay attempts to rip you off without obtaining the rights to your screenplay, you will be able to get a declaration from the Writers Guild stating that on a certain date you sent in this screenplay. That's very persuasive evidence in the event of a plagiarism dispute. Alternatively, you could have registered the work with the Copyright Office, which accomplishes the same thing and also entitles you to additional benefits, such as reimbursement of attorney fees. Since it only costs $30 to register your work with the copyright office, and filling out a simple two-page form, I recommend that you do it.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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34.
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Question: I have submitted a written idea for a show to a producer who is now shopping it to a network. We have no up-front agreement on compensation for the pitch because I had assumed that copyright law would be protective. Is that correct?
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Answer: Copyright law does not protect ideas. Ideas are inherently not copyrightable, nor can themes, premises, concepts or words be copyrighted. In order to be protected, you need to create a work of authorship. This is the embellishment upon the idea. The more you embellish, the more you can protect your work under copyright law. While you cannot be protected under copyright law for theft of ideas, you can be protected under of contract law. For an in depth discussion of how to protect your interests by contract, see the article I have written on this topic.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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35.
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Question: I have written jingles to portions of published songs. How do I find out if I can submit these to advertisers? Where and how would I get information for public domain?
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Answer: If you are the author of jingles, then presumably you own the copyright to them. You can submit these to advertisers or to anyone else you like. I don't understand why you need information about what is in the public domain.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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37.
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Question: I recently completed a very loose adaptation of a non-fiction book and discovered the rights to that book were bought by a major studio last year. Could you please tell me how long they own these rights? Can I approach them with my screenplay, to see if they are interested, without getting into legal trouble? What do you suggest? Thanks for your help on this.
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Answer: Authors of non-fiction books do not have any rights to the facts and historical information in their books. Consequently, if your screenplay is simply about a historical incident and you've drawn facts from this book but you haven't used the author's approach, organization or any verbatim text, you have probably not infringed his copyright. If you have used his expression in your screenplay, you will need to obtain a license from him or whoever owns the rights. If the rights were bought outright by the major studio, then they may own them in perpetuity. If they took an option, then the option would last one to three years, in general, and if they don't exercise it, the rights would remain with the author.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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39.
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Question: I was about 1/3 of the way through my current screenplay when I decided I needed some additional research to add that extra touch of realism to my characters. To my surprise, one of my earlier scenes is eerily similar to a scene in the book (non-fiction) I purchased for the research. The setting is similar, the events surrounding the characters are similar and one of the characters is very similar, though has a different name. My question is, do I need to change my scene? If so to what extent?
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Answer: Assuming you came up with your material independently from the non-fiction book that you purchased, there would not be any legal grounds against you. There are certain requirements for copyright such as originality, and that the work is in a tangible medium of expression, but there is no requirement for you to be the first person to create it. In other words, if two people independently conceive the same story, each would own a copyright to their own work. The person who created the story first would be presumed to be the copyright author, but if it can be shown that the person who came up with the subsequent work did not rely on, or have access to the original, then the second work would not infringe the first. However, if the two works are very similar or identical, it would be suspicious, to say the least.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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40.
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Question: I'm a Pepperdine University business student and I am beginning research for my business law term paper. My topic is "The Deal Memo - A Sufficient Memorandum for an Enforceable Contract?" Since this is my first foray into this type of research, I would greatly appreciate any pointers you could provide on (1) any past or current cases involving the enforceability of a deal memo; (2) how common is their use as a prelude to the contract; (3) are they generally as enforceable as a "real" contract? Thanks in advance for your help and for this website, it is a valuable resource for this community.
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Answer: A Deal memo is simply a short contract. The shorter the contract, the less specifics, thus more room for ambiguity. If the essential terms of a contract are not stated, the contract may be unenforceable. If a judge cannot determine all the important terms that the parties have agreed to, the court may simply refuse to enforce the contract. It makes no difference whether a contract is characterized as a deal memo, contract, or agreement. The use of deal memos is quite common in the movie business. Sometimes they are followed by long-form agreements. Other times they are not. They are enforceable as a real contract because in most instances, they are real contracts. However, both parties are less protected because a short-form deal memo often leaves many issues unaddressed. Thus, if there is a dispute, there may not be any language in the contract that addresses the respective rights and obligations of the party in regard to that issue. I always recommend using a long-form agreement to avoid any disputes in the future.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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42.
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Question: In 1977, my husband recorded an album of 10 songs. The album was self-titled and only 500 were pressed. To his knowledge all of the songs were registered with the U.S. Copyright Office, however, he is unable to find any of the paperwork. It has recently come to our attention that the album is now a collectors' item worth several hundred dollars for an original, "original" being the key word. We have also found out via friends and an online catalog that there is a "reissue" being sold. Needless to say, he has never been contacted by anyone or given permission to anyone to reissue this album. It seems to us that there has been an infringement of the Copyright Law, and that he should be receiving some sort of compensation for the sales of this "reissued" album. I e-mailed one of the catalogs in question and asked for a list of the song titles to be sure it was his album they had listed in the catalog, and received a reply listing all of his song titles along with the following: 1976-1977 Reissue. Guinn Records K.C. MO ///180 Gram Vinyl. All of this information confirmed that it is his material being sold. Is there anything we can do or is there any way for him to collect what we feel is due him?
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Answer: You can do a copyright search to determine whether, in fact, you did register the copyright. Then you can order a copy of your registration from the copyright office to replace the copy you may have lost. Assuming you registered your copyright in a timely manner, you may be entitled to statutory damages, injunctive relief and reimbursement of attorney fees from anyone who has infringed your copyright.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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43.
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Question: I've been asked to co-write 13 one-hour episodes for an internationally syndicated TV show (yet to be sold—but they have money to produce them). It is non-union, work for hire, no residuals. I think I might be able to get a few points, whatever that means. Because I am co-writing, I'll get $10,000 per episode. Any suggestions? Do I need an attorney? Are there any sample contracts for such things in your book or other places? Thanks.
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Answer: If someone is willing to pay you $10,000 per episode, you certainly should consider having an attorney to spend a few hours to go over the contract with you. Each point is one percent of net profits. Depending upon how net profits are defined, it may amount to a great deal, or nothing. There are a number of different sample contracts in my book, Contracts for the Film & Television Industry,2nd Ed., published by Silman-James Press. None of those contracts, however, are specifically designed for your particular situation although many of the provisions in the writer employment contract are relevant.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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47.
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Question: My writing partner and I have recently submitted several scripts of a television series we created to a high power entertainment producer. Before this submission, we talked with a local producer and friend about a possibility of him doing this show. We have only discussed the "what ifs" about selling it, there is nothing in writing. We have been asking for something in writing to lock this guy in, but he has just blown us off. So when we told him that someone else was interested in the show, he wrote up a confidentiality agreement for us because we were working. The confidentiality agreement that he created was between him and the other person, our names were nowhere on it. We own the copyright and the scripts, however he believes that he does. If we get offered a deal from this Hollywood producer can this other producer take legal action claiming that we have to involve him because we had talked to him about doing the project? Also, what constitutes a verbal implied agreement in this case? Is it possible that we entered one without knowing it?
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Answer: All contracts can be enforceable, and in some circumstances contracts can be implied from the behavior of the parties. Most states have legislation called a Statute of Frauds, which requires that certain contracts be in writing. For instance, contracts that involve large sums of money, or require performance over more than one year, are often required to be in writing. A contract to transfer exclusive copyright interest needs to be in writing. Non-exclusive rights under a copyright can be transferred orally. Whether or not the producer you spoke to has any rights in your projects depends upon what was said and agreed upon by the parties.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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48.
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Question: Obviously, no one wants to put any dates on a script so it remains current. If I choose to copyright a script, must the copyright symbol and date of copyright appear on the script or can a script be copyrighted but no date be printed? Obviously I would like protection afforded by a copyright as well as Guild registration, but I want no dates on my screenplays. Your advice would be greatly appreciated.
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Answer: As of 1978, copyright begins from the moment of creation. You are no longer required to put a copyright notice on your work or the date of the copyright. You are also not required to register your copyright. However, it is a good idea to put a copyright notice on your work because it puts everyone on notice that this is copyrighted material and prevents someone from claiming that they innocently infringed your work. A willful infringer is liable for greater damages than an innocent infringer. Whenever you make a revision or a change to your script, you could re-register it and your new copyright would cover the new material. In the event of a plagiarism dispute, it may be in your interest to have a copyright date as early as possible. That's because when two people claim copyright to the same work, the person who can prove he created the work first will be presumed to be the copyright author. Thus, if you created the work in 1965 but put on your script that you had created it in 1995, in the event of litigation, you might find that incorrect information used against you.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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50.
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Question: Once one has a script registered with the WGA and the U.S. Copyright Office and later makes a title change, is it then necessary to resubmit the revised script? Although I understand you can't get copyright on a title, only under rare circumstances—like the remake of "The Jackal".
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Answer: It is not necessary to re-register a script if the only change is the title. The copyright office will accept an application for Supplementary Registration, which will accomplish this purpose. The form for supplementary registration is Form CA. The information in the Supplementary Registration does not replace that contained in the original registration, but rather augments it. As you noted, Copyright Law does not protect titles. Titles can sometimes be protected under the law of unfair competition and trademark infringement. Moreover, there is limited protection by registering a title at the Motion Picture Association of America Title Registration Bureau. The MPAA registration bureau can be reached at: (818) 995-6600.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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51.
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Question: Should I sign a screenplay Purchase Agreement at the same time I sign an Option Agreement? The indie producer wants a 6-month free option. As an un-produced writer, what leverage do I have?
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Answer: Usually the way these deals are structured is that there is an option contract that runs two or three pages, and attached to it as an exhibit is a purchase agreement that automatically kicks in if the option is exercised. If the option is not exercised, then all the purchaser's rights expire. Whether you should give an indie producer a free six-month option depends upon your assessment of whether or not this producer has the ability to get your screenplay into production, and whether you have other opportunities that you would have to forego if you grant the option.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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52.
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Question: Suppose, if you will, that a protagonist in a book was subjected to a specific illness and from that weakness he became needful or dependent upon a drug that both strengthened him but made him evil. I am not the author of that book but have considered penning a screenplay based upon it. My attempts to contact the author have been unsuccessful. If I was to markedly change the plot and characters and their likeness but retained the two fundamental, combined elements, that is, the weak protagonist and his drug, how do you think the courts would rule if an infringement suit was introduced? As well, what are the legal considerations and qualifications for "inspired by"?
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Answer: Copyright protects the expression of the author, but does not protect underlying concepts, ideas, facts, or historical incidents. If you are simply borrowing facts from another copyrighted work, then you are probably not infringing the source's copyright. In other words, what copyright law protects is the embellishment upon the basic concept or idea. It is how a particular author tells the story. Ten authors could write biographies about George Washington, but this would not prevent an eleventh author from using the facts in the previous volumes as long as he expresses the story in his own words. It is sometimes difficult, however, to determine whether one has borrowed fact or concept or more. Only after your work is complete, can an experienced entertainment lawyer give you his/her opinion. Even then you might fall in a gray area.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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53.
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Question: Thanks for your time in answering these questions. I've learned a lot here. But haven't seen an answer to this: I am interested in producing a biopic of someone who lived in the 1800's. There are several biographies in print about the subject. My question is - do I have to acquire rights to each of them in order to adapt the story to a screenplay. If I choose the bio I like best, obtain the rights and use that slant, how can I protect myself from the other authors claiming I used their material?
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Answer: It is not important when the subject lived, but whether the biographies about him are still protected under copyright law. An author in 1996 could write a biography about a person from the Eighteenth Century. Such a biography would be protected under the copyright laws. Current American copyright law provides for a copyright for the lifetime of an author plus 50 years. The law was changed effective 1978. Generally, a work more than 75 years old should be in the public domain, and some newer works may also be in the public domain. Of course, if all you borrow from the works are historical facts, ideas and other uncopyrightable matter, you don't need to obtain any rights. You will only need the author's permission if you use his expression (his approach to the material), the way he tells the story.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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56.
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Question: When registering an idea for a motion picture with the WGA, how much of the plot needs to be revealed to assure the writer protection?
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Answer: Ideas are not protectable under copyright law. It is only the embellishment upon the idea that is protected. Registering with the Writers Guild has no effect on copyright protection; it merely creates some evidence that on a certain date the writer wrote certain material. This is very beneficial if there is a plagiarism dispute because it's good evidence as to who came up with the material first. To get copyright protection, you need to embellish upon the idea, and the more you embellish upon the idea, the more protection you'll get. You should write out at least a treatment, if not a screenplay, and register it with the Copyright Office before you show it to third parties. See my article on "Protecting Your Stories" on my website for additional insight.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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57.
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Question: Will contracts negotiated for regular broadcast TV also apply to interactive TV or closed-circuit (non-broadcast) TV?
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Answer: Whether contracts for regular broadcasting would encompass interactive TV or closed-circuit TV would depend upon the terms of the contract. The language used is critical. If the language confers a broad grant of rights then it may include these media. Otherwise, it may not.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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58.
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What Film Incentives can I find in the United States?
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Domestic Incentive Programs
DISCLAIMER: Before relying on any of the incentive programs listed here, please consult with an attorney knowledgeable about the applicable laws and make sure to check that the provisions have not changed.
ALABAMA:
Incentive information: http://alabamafilm.org/filmakerincentives.htm
Film office: http://www.alabamafilm.org
Brenda Hobbie, Film Office Coordinator
Alabama Center for Commerce
401 Adams Avenue
Suite 630
Montgomery, AL 36104
Phone: 334-242-4195 or 1-800-633-5898
Fax: 334-242-2077
Email: hobbieb@ado.state.al.us
Incentives:
Alabama offers sales tax and lodging tax exemptions to qualified productions.
ALASKA:
Film office: http://www.dced.state.ak.us/trade/film/film.htm
Alaska Film Program
P.O. Box 110804
Juneau, AK 99811-0804
Phone: 907-269-8112
Email: Alaskafilm@dced.state.ak.us
Incentives:
There is no sales tax in Alaska and there are no fees for shoots on city, borough, and state-owned property.
ARIZONA:
Incentive information: http://www.commerce.state.az.us/Film/Incentives.htm
Film office: http://www.commerce.state.az.us/Film/default.asp
Robert Detweiler, Director
Arizona Film Commission
3800 N. Central Ave. Bldg. D
Phoenix, AZ 85012
Phone: 602-280-1380 or 1-800-523-6695
Fax: 602-280-1384
Email: film@azcommerce.com
Incentives:
Sales Tax Rebate
Arizona offers a 50% state sales tax rebate to motion picture and television/video production companies spending at least $1 million in qualified expenditures over a consecutive 12-month period. The rebate is also available to commercial advertising production companies spending at least $250,000 in qualified expenditures over a consecutive 12-month period. The productions must be filmed in Arizona. State sales tax is 5%. Call Christi Comanita at (602) 542-4672 early in production for more information about the rebate program.
Use Fuel Tax Exemption
Production vehicles entering Arizona for the purpose of motion picture production on location are exempt from the Use Fuel Tax. Call George Collaco, Port of Entry Supervisor, at (520) 927-6652 for more information about qualifying.
ARKANSAS:
Incentive information: http://www.1800arkansas.com/Incentives
Film office: http://www.1800arkansas.com/Film/
Joe Glass, Film Unit Leader
One Capitol Mall
Little Rock, AR 72201.
Phone: 501-682-7676
Fax: 501-682-FILM
Email: jglass@1800ARKANSAS.com
Incentives:
Arkansas offers a sales and use tax refund program rebating 5 cents for every dollar spent on qualifying motion picture production. Qualifying motion picture production businesses spending more than $500,000 within six months, or $1 million within 12 months, in conjunction with the filming or producing of one feature film, telefilm, music video, documentary, episodic television show, or commercial advertisement may receive a refund of state sales and use taxes paid on qualified expenditures incurred in conjunction with the project.
CALIFORNIA:
Incentive information: http://www.filmcafirst.com
Film office: http://www.film.ca.gov
California Film Commission
7080 Hollywood Blvd., Suite 900
Hollywood, CA 90028
Phone: 800-858-4PIX (4749)
323-860-2960
Fax: 323-860-2972
Incentives:
Refunds:
Under the Film California First program filmmakers can receive reimbursement of up to $300,000 to qualified productions that film on public property in California. Rebates are given for public labor and location fees for use of public properties. The program will also reimburse the cost of local law enforcement, up to $750 per day, with a maximum cap of $3,000 per production. See http://ww.film.ca.gov and http://www.filmcafirst.com. Reimbursements from the fund are on a first-come, first-served basis. The funds available fluctuate annually depending on what is allocated to it in the state’s budget. A production company needs to complete production before applying.
The State Theatrical Arts Resources (STAR) program provides filmmakers with the use of State-owned surplus, such as vacant buildings, at little or no charge. The properties available can be viewed on-line by use of the CinemaScout (http://www.cinemascout.org).
Tax Breaks:
California also offers some tax incentives. There is no state hotel occupancy tax. There is no sales or use tax on production or postproduction services on motion pictures or TV films. There is a 5% sales tax exemption on the purchase or lease of post-production equipment for qualified persons.
COLORADO:
Film commission: http://www.coloradofilm.org
Colorado Film Commission
1625 Broadway, Suite 1700
Denver, CO 80202
Phone: 303-620-4500
Fax: 303-720-4545
Email: Coloradofilm@state.co.us
Incentives:
Colorado hotels may offer a sales tax rebate for stays of 31 days or longer. As the rebate is discretionary, ask before booking your stay. Colorado offers no other incentive programs.
CONNECTICUT:
Incentive information: http://www.ctfilm.com/pdf/tax_exemptions.pdf
Film, Video & Media Office: http://www.ctfilm.com/
Guy Ortoleva, Director
Connecticut Film, Video & Media Office
805 Brook Street, Building 4
Rocky Hill, CT 06067
Phone: 800-392-2122 or 860-571-7130
Fax: 680-721-7088
Email: info@Ctfilm.com
Incentives:
Connecticut generally does not levy sales/use tax or property tax on machinery, equipment and services leading up to the production of a film, video or sound master recording. Once the master has been created, duplication or 'non-creative' functions remain taxable.
DELAWARE:
Film office: http://www.ci.wilmington.de.us/departments/cultural.htm
Tina Betz, Director
Wilmington Film Office
Louis L. Redding City/County Building
800 N. French Street, 9th Floor Floor
Wilmington, DE 19801
Phone: 302-576-2136
Incentives:
Delaware has no sales tax. Permit fees are low and generally negotiable. The state has no other incentives directly targeted toward filmmaking.
FLORIDA:
Incentive information: http://www.filminflorida.com/incentives/index.htm
Film office: http://www.filminflorida.com
Ally Hugg-Fields
Production Manager
Governor's Office of Film and Entertainment
Executive Office of the Governor
The Capitol
Tallahassee, FL 32399-0001
Phone: 877-FLA-FILM (toll-free) or 850-410-4765
Fax: 850-410-4770
Email: Ally.Hugg@myflorida.com
Susan Simms, Los Angeles Liaison
Governor's Office of Film & Entertainment
5426 Simpson Avenue
North Hollywood, CA 91607
Phone: 818-508-7772
Fax: 818-508-7747
Email: filmflorida@earthlink.net
Incentives:
Florida Entertainment Industry Tax Exemption
Qualified motion picture, TV motion picture, TV series, commercial advertising or music video production and sound recording companies engaged in Florida may be eligible for a sales and use tax exemption on the purchase or lease of certain items used exclusively as an integral part of the production activities in Florida. An application is available on the Florida Film Office website at http://ww.filminflorida.com
Qualified Target Industry Refund
Companies creating jobs in motion picture production in Florida, excluding location filming, are eligible for a Qualified Target Industry (QTI) Tax Refund. Pre-approved applicants who create jobs in Florida receive tax refunds of $3000 per new job created, and $6000 in an Enterprise Zone or Rural County. For businesses paying 150% of the average annual wage, add $1000 per job; for businesses paying 200% of the average annual salary, add $2000 per job. For more information about this program, call Enterprise Florida at 850.488.6300.
Rural & Urban Job Tax Credit Programs
Companies creating jobs in any of Florida’s 17 designated rural counties and 13 designated urban areas can qualify for tax credits from $500 to $2000 per qualified job. For more information contact the Office of Tourism, Trade & Economic Development at 850.487.2568.
Enterprise Zones
Business that create jobs within an enterprise zone may be eligible for additional tax credits, including a sales and use tax credit, tax refund for business machinery and equipment used in an enterprise zone, sales tax refund for building materials used in an enterprise zone, and a sales tax exemption for electrical energy used in an enterprise zone. For more information contact the Office of Tourism, Trade & Economic Development at 850.487.2568.
GEORGIA:
Film office: http://www.filmgeorgia.org
Greg Torre, Director
Georgia Film, Video & Music Office
285 Peachtree Center Ave., Suite 1000
Atlanta, GA 30303
Phone: 404-656-3591
Fax: 404-656-3565
Email: Film@georgia.org
Incentives:
Qualified film producers and qualified film production companies in George are exempt from sales and use tax on most below-the-line equipment rentals/purchases. Most below-the-line materials and service purchases are included in the exemption. Georgia state sales tax is 7%.
Qualified productions include: feature films, television movies and series, commercials, music videos and documentaries that will be distributed to areas outside of the State of Georgia.
For more information or to obtain an Application for a Certificate of Exemption, visit http://www.filmgeorgia.org.
HAWAII:
Incentive information: http://www.hawaiifilmoffice.com/incentives_credits.htm
Film office: http://www.hawaiifilmoffice.com
Hawaii Film Office
No. 1 Capitol District Building
250 South Hotel St., 5th Floor
Honolulu, HI 96813
Phone: 808-586-2570
Fax: 808-586-2572
Email: info@hawaiifilmoffice.com
Incentives:
Hawaii recently enacted some very impressive and generous tax incentives. Hawaii’s high tech investment tax credit provides a 100% return on cash investments in a qualified high tech business (QHTB) on a front-loaded basis over 5 years (35% credit in the year of investment, 25% in the following year, 20% in the second year following, then 10% each in the third and fourth year following). Qualified research activities include performing arts products such as motion pictures. The credit is designed to give a 100% return for investments up to $2 million per year per QHTB. The credit applies against Hawaii income tax liability only. The credit can be taken by individuals and corporations paying Hawaii income tax, and by banks and insurance companies against their franchise and insurance premium tax.
Moreover, if money from outside Hawaii is invested, the tax benefits can be allocated to the Hawaiian investors so they can obtain more than 100% return. So for example, if a Hawaii investor put up $500,000 and an Arkansas investor put up $500,000, the parties could agree to allocate all the tax credits to the Hawaii investor (since the Arkansas investor doesn't pay taxes in Hawaii they are worthless to him anyway). So the Hawaii investors gets back 200% return over 5 years. In return, the Arkansas investor could be given a greater share of the back end, or preferred recoupment.
The production entity would be required to employ or own capital or property or maintain an office in Hawaii, to have more than 50% of its total business activities in performing arts products and to conduct more than 75% of those activities in Hawaii. In other words, 75% of the budget needs to be spent in Hawaii. I currently represent a Hawaiian company that can serve as the production entity that has received a comfort ruling from the Department of Taxation indicating that the company qualifies.
In order to qualify, companies need to stay in business in Hawaii for at least five years, and should have some copyright ownership of the picture. There are many more details but those are the basics. For additional information about Hawaii’s tax incentives, go to http://www.state.hi.us/tax/hi_tech.html.
IDAHO:
Incentive information: http://www.filmidaho.org/permits/index.html
Film office: http://www.filmidaho.org/
Idaho Film Bureau
700 W. State Street
Box 83720
Boise, Idaho 83720-0093
Phone: 800-942-8338 or 208-334-2470
Fax: 208-334-2631
Email: powens@idoc.state.id.us
Incentives:
Idaho offers an exemption from sales or hotel taxes on lodging stays of 30 or more days. The state offers no other incentive programs.
ILLINOIS:
Film office: http://www.commerce.state.il.us/film/
Illinois Film Office
100 W. Randolph St., 3rd Floor
Chicago, IL 60601
Phone: 312-814-7179
TDD: 800-419-0667
Springfield Office
620 E. Adams
Springfield, IL 62701
Phone: 217-782-7500
TDD: 800-785-6055
Incentives:
Illinois does not levy sales tax on 35mm film development for film productions.
Hotel stays of 30 consecutive days or more are exempt from the 14.9% Illinois hotel occupancy tax. After 30 days, all taxes are waived and the occupant is credited for the first month’s tax.
INDIANA:
Film commission: http://www.state.in.us/film/
Indiana Film Commission
Indiana Department of Commerce
One North Capitol Avenue -- Suite 700
Indianapolis, IN 46204-2288
Phone: 317-232-8829
Fax: 317-233-6887
Email: filminfo@commerce.state.in.us
Incentives:
Indiana had no incentive information available at the time of printing.
IOWA:
Film office: http://www.state.ia.us/film/
Iowa Film Office
Phone: 515-242-4726
Fax: 515-242-4809
Email: filmiowa@ided.state.ia.us
Incentives:
Iowa has no incentive program.
KANSAS:
Film office: http://www.filmkansas.com
Peter S. Jasso
Kansas Film Commission Manager
1000 S.W. Jackson Street, Suite 100
Topeka, Kansas 66612-1354
Phone: 785-296-2178
Fax: 785-296-3490
E-mail: pjasso@kansascommerce.com
Incentives:
Louisiana does not levy hotel occupancy tax for stays of 28 days or longer.
LOUISIANA:
Incentive information: http://www.lafilm.org/info/index.html
Film office: http://www.lafilm.org
Incentives:
Sales and Use Tax Exclusion
Production companies based in Louisiana that have anticipated expenditures of $250,000 or more are excluded from the state’s 4% sales and use tax. This exclusion is effective until January 1, 2007. To receive the exclusion, production companies must report the expenditures from a Louisiana checking account established in connection with the filming or production of one or more nationally distributed motion pictures, videos, television series, or commercials in the state of Louisiana within any consecutive 12-month period.
Labor Tax Credit
Motion picture production companies filming a nationally distributed motion picture in Louisiana are eligible for a labor tax credit if they create jobs for Louisiana residents in connection with filming a motion picture, video, television series or commercial in state.
For projects with production costs in Louisiana of at least $300,000 but less than $1 million during the taxable year, the labor tax credit is equal to 10% of the total aggregate payroll for residents employed in the production.
For projects with production costs in Louisiana of at least $1 million during the taxable year, the credit is equal to 20% of the total aggregate payroll for residents employed in the production.
In both cases, total aggregate payroll does not include the salary of any employee whose salary is equal to or greater than $1 million.
The credit can be applied to any income tax or corporation franchise tax liability applicable to the motion picture production company. If the motion picture production company is not subject to income or franchise tax, the credit flows through its partners or members.
Any unused credit may be carried forward no more than 10 years from the date the credit was earned.
Investor Tax Credit
Investors who are taxpayers domiciled and headquartered in Louisiana can claim an investor tax credit if they invest in a nationally distributed feature-length film, video, television program or commercial made in Louisiana in whole or in part. The credit is earned at the time of investment.
If the total base investment is greater than $300,000 and less or equal to $1 million, each taxpayer can take a tax credit of 10% of the actual investment made by that taxpayer.
If the total base investment is greater than $1 million, each taxpayer shall be allowed a tax credit of 15% of the investment made by that taxpayer.
In the event that the entire credit cannot be used in the year earned, any remaining credit may be carried forward and applied against income tax liabilities for the subsequent 10 years.
MAINE:
Incentives: http://www.filminmaine.org/filmnew/frames.html
Film office: http://www.state.me.us/decd/film/
Maine Film Office
59 State House Station
Augusta, ME 04333
Phone: 207-624-7631
Fax: 207-287-8070
Email: filmme@earthlink.net
Incentives:
Sales Tax Exemption
Maine-based production companies and to out-of-state production companies working in Maine can apply for sales tax exemptions for equipment and machinery purchases, and fuel and electricity costs.
Lodging Tax Reimbursement
Production companies staying in hotels for more than 28 consecutive days can apply for a lodging tax reimbursement.
Production companies must contact the Maine Revenue Service early in production to apply for these incentives. Contact the Maine Revenue Service at: Maine Revenue Services, Sales/Excise Tax Division, P.O. Box 1065, Augusta, ME 04332-1065;
Taxpayer assistance line: (207) 287-2336; e-mail address: sales_tax@state.me.us
MARYLAND:
Incentive information: http://www.mdfilm.state.md.us/salestax
Film office: http://www.mdfilm.state.md.us/
Incentives:
Maryland offers an exemption from the 5% state sales tax for goods and services used in filmmaking. For most localities, hotel stays longer than 30 days are not charged local or state sales tax.
MASSACHUSETTS:
The Massachusetts Film office has been closed due to lack of funding.
MICHIGAN:
Film office: http://www.michigan.gov/hal/0,1607,7-160-17445_19275---,00.html
Michigan Film Office
702 West Kalamazoo Street
Lansing MI 48915
Phone: 800-477-3456 or 517-373-0638
Fax: 517-241-2930.
Email: jlockwood@michigan.gov
Incentives:
Michigan offers a hotel tax rebate after a stay of 30 days or more.
MINNESOTA:
Incentive information: http://www.mnfilm.org/board/incentives.asp
Film Office: http://www.mnfilm.org
Nicole Hinrichs-Bideau
Minnesota Film and TV Board
Phone: 612-332-6493
Fax: 612-332-3735
Email: nicole@mnfilm.org
Incentives:
Minnesota offers a 10% rebate on all Minnesota expenditures, free scouting, free permits, no sales tax on commercials, no lodging tax on hotel stays of 30 days or more, and free production office space, depending on location.
MISSISSIPPI:
Film office: http://www.visitmississippi.org/film/
Mississippi Division of Tourism
Woolfolk State Office Building
501 West St.
Jackson, MS 39201
Post Office Box 849
Jackson, MS 39205
Phone: 601.359.3297
Hot Line: 601.359.2112
Fax: 601.359.5048
Ward Emling, Manager
Phone: 601.359.3422
Email: wemling@mississippi.org
Incentives:
Mississippi tax codes classify filmmaking as a manufacturing process. Raw materials such as film and videotape are not taxed. Some equipment used in production is taxed at 1 1&Mac218;2 % rather than 6%. In July 2003, the Mississippi legislature will also consider additional production incentives, including job tax credits, and credits for film funding and investment.
MISSOURI:
Incentive information: http://www.ded.state.mo.us/business/filmcommission/html/incentives.htm
Film commission: http://www.ded.state.mo.us/business/filmcommission/
Missouri Film Commission
301 West High, Room 720
P.O. Box 118
Jefferson City, MO 65102
Phone: 573.751.9050
Fax: 573.522.1719
Email: mofilm@ded.state.mo.us
Incentives:
Qualified film production companies can receive a state income tax credit of up to 50% of the company’s expenditures in Missouri necessary for the making of a film, not to exceed $500,000 in tax credits per project. The tax credit is fully assignable, that is, the entity earning the credits may apply them against state income taxes or corporate franchise taxes, or they can be sold or transferred to another state taxpayer who may then apply them to their Missouri income tax liability. The credits can be applied when earned or carried forward for up to five additional tax periods.
To qualify, the production company must spend $300,000 or more in state on expenditures necessary for the production of the film. Qualifying expenses include costs for labor, services, materials, equipment rental, lodging, food, location fees and property rental.
Note that Missouri will only grant $1 million in these tax credits per year. Companies must therefore apply as early in production as possible, and must apply before they have selected Missouri as the project’s location.
MONTANA:
Incentive information: http://montanafilm.com/faqs.htm#anchorFAQ4
Film office: http://montanafilm.com/
Montana Film Office
301 S Park Avenue, Helena MT 59620
Phone: 800-553-4563 (outside MT only) or 406-841-2876
Fax: 406-841-2877
Info Hotline: 406-444-3960
Email: montanafilm@visitmt.com
Incentives:
Montana has no sales tax. No room tax is charged for stays longer than 30 days. Out of state equipment used exclusively in the production of motion pictures, television, or commercials is exempt from property tax for 180 consecutive days. Out-of-state commercial vehicles used exclusively in the production of motion pictures, television, or commercials are exempt from licensing requirements for 180 consecutive days.
NEBRASKA:
Film office: http://www.filmnebraska.org/
Laurie Richards
Nebraska Film Officer
Nebraska Film Office
301 Centennial Mall South, 4th Fl.
Lincoln, NE 68509-4666
Phone: 800-426-6505 or 402-471-3680
Fax: 402-471-3365
Email: laurier@filmnebraska.org
Incentives:
Nebraska has no lodging tax after a 30-day or longer stay at the same facility.
NEVADA:
Film office: http://www.nevadafilm.com
Nevada Film Office, Las Vegas Office
555 E. Washington Ave., Suite 5400
Las Vegas, NV 89101
Phone: 877-NEV-FILM (877-638-3456) or 702-486-2711
Hotline: 702-486-2727
Fax: 702-486-2712
Email: lvnfo@bizopp.state.nv.us
Nevada Film Office, Reno/Tahoe Office
108 East Proctor Street,
Carson City, NV 89701-4240
Phone: 800-336-1600 or 775-687-1814
Hotline: 775-687-4901
Fax: 775-687-4497
E-mail: ccnfo@bizopp.state.nv.us
NEW HAMPSHIRE:
http://www.filmnh.org/laws.html
Film office: http://www.filmnh.org/
The New Hampshire Film Office
172 Pembroke Road
P.O. Box 1856
Concord, NH 03302-1856
Phone: 800-262-6600 or 603-271-2665
Fax: 603-271-6870
Email: filmnh@dred.state.nh.us
Incentives:
New Hampshire does not levy sales tax, personal income tax, use tax, property tax on machinery or equipment, or capital gains tax.
NEW JERSEY:
Incentive information: Click on “Filming Regulations & Guidelines” on the Commission home page.
Film Commission: http://www.njfilm.org/
Joseph Friedman, Executive Director
New Jersey Motion Picture & Film Commission
153 Halsey Street - 5th Floor
P.O. Box 47023
Newark, New Jersey 07101
Phone: 973-648-6279
Fax: 973-648-7350
Email: NJFILM@njfilm.org
Incentives:
Productions that rent hotel rooms for 14 or more consecutive days during production are eligible for a refund of room taxes.
New Jersey offers a Sales & Use Tax exemption for tangible property and services purchased or rented for and directly used in the production of a motion picture or video. Food and drink brought onto or made on the location or set for cast, crew and employees is eligible for a sales tax rebate.
Companies must fill out an Exempt Use Certificate to be eligible for the sales tax exemption.
NEW MEXICO:
Incentive information: http://www.edd.state.nm.us/FILM/RESOURCES/resource.htm
Film office: http://www.edd.state.nm.us/FILM/
New Mexico Film Office
P.O. Box 20003
Santa Fe, NM 87504-5003
Phone: 800-545-9871 or 505-827-9810
Fax: 505-827-9799
Email: film@nmfilm.com
Incentives:
Gross Receipts Tax Deduction
Production companies filming in New Mexico can apply for an exemption certificate. The tax deduction is given on many production costs at the point of sale. For complete information on the point-of-purchase gross receipts deduction, contact the New Mexico Taxation and Revenue board and ask for Publication FYI 280: Sales to Qualified Film Production Companies.
15% Film Production Tax Credit
This is a fully refundable credit of 15% of eligible direct production costs against the filmmaker’s New Mexico income tax.
To qualify for either incentive, production companies must register with the New Mexico Film Office. Qualifying companies may choose one incentive per expenditure, however the state recommends that production companies shooting features, television programs, documentaries, shorts and national advertisements shown in theatres should apply for both incentives as early in production as possible. Feature-length films must include an on-screen credit for the State of New Mexico.
No Location Fees for State Owned Buildings
Filmmakers looking to shoot at any of almost 800 state-owned buildings can now shoot without paying location fees. In addition, the closed NM State Penitentiary property known as “Old Main”, a 1940s era maximum security prison facility with large open cellblocks, hospital wing, tunnels, and a vast array of office and open spaces, is also available for fee-free filming.
NORTH CAROLINA:
Incentive information: http://www.ncfilm.com/information/#tax
Film office: http://www.ncfilm.com/
Bill Arnold, Director
North Carolina Film Office
301 North Wilmington St.
Raleigh, NC 27601
Phone: 919-733-9900
Fax: 919-715-0151
Production Hotline: 800-232-9227
Email: barnold@nccommerce.com
Incentives:
Tax and Fee Incentives
North Carolina offers fee-free use of state property and a 1% cap on sales and use tax. State sales tax for hotel room occupancy in excess of 90 consecutive days is refunded.
Filming Development Account
North Carolina is now offering grants through its Film Development Account. These grants are given to filmmakers who engage in production activities in-state with expenditures in-state of at least $1 million. The grant cannot be used for political or issue advertising and may not exceed 15% of the total spent in-state in one calendar year for goods and services. The grant will not exceed $200,000 per production.
All expenditure claims must be accompanied by a receipt or bill of sale and are subject to verification and approval by the NC Department of Commerce Finance Center, and reimbursements are subject to the availability of funds.
For more information about the Film Development Account, contact the North Carolina Film Office at either 310 246-0076 (Los Angeles), or 919 733-9900 (Raleigh, NC).
NORTH DAKOTA:
Film commission: http://www.ndtourism.com/
Mark Zimmerman, Director
North Dakota Film Commission
604 East Boulevard, 2nd Floor
Bismarck, ND 58505 USA
Phone: 800-328-2871 or 701-328-2525
Fax: 701-328-4878
E-mail: mzimmerman@state.nd.us
Incentives:
The Bank of North Dakota will consider co-financing motion pictures shot primarily in North Dakota if the production company has retained a domestic distributor or sales agent, has an experienced lead lender on board, has a completion bond in place, and has sold one territory large enough to validate the pre-sale estimates (this will be determined by the bank). The territory must be sold to a reputable and financially solvent distributor.
The Basic Bank can provide up to 50% of the film budget less any equity investment and any pre-sold territories. All revenue proceeds except sales commissions, financing costs and collection account fees shall be applied to debt reduction. For more details, contact the Bank of North Dakota at 800-472-2166 and ask about the Motion Picture Financing.
OHIO:
Film commission: http://www.ohiofilm.com/
Amir Eylon
Interim State Tourism Director
Division of Travel and Tourism
Ohio Film Commission
Phone: 614-466-8844
Email: aeylon@odod.state.oh.us
Incentives:
Ohio has no incentive program.
OKLAHOMA:
Incentive information: http://www.otrd.state.ok.us/filmcommission/taxincintives.htm
Film office: http://www.otrd.state.ok.us/filmcommission/
Oklahoma Film Commission
Oklahoma City Office
15 N. Robinson Suite 802
Oklahoma City, OK 73102
Phone: 1-800-766-3456
In Oklahoma City: 405-522-6760
Fax: 405-522-0656
Incentives:
Oklahoma Film Enhancement Rebate Program
Oklahoma offers a 15% rebate on production money spent in state. Qualifying expenses include costs attributable to production, post-production and reproduction of long-form narrative film or television production. Expenditures must be documented. The rebate is refunded to the producers.
Sales Tax Rebate
As an alternative, production companies shooting in Oklahoma can apply for a refund of state and local sales taxes. The rebate is applicable to all goods and services used or consumed on almost any project shot in-state. The state’s current sales tax is 4.5%. Local taxes, which vary from city to city, average between 1% and 4%.
OREGON:
Film office: http://www.oregonfilm.org/
Incentives:
Oregon has no sales tax.
The Portland/Multnomah County area has a parking fee rebate program that can save productions up to $3500 on public parking area fees, depending on hotel room usage.
No hotel/motel tax on rooms held longer than 30 days.
TENNESSEE:
Incentive information: http://www.state.tn.us/revenue/taxguides/index.htm
Film office: http://www.state.tn.us/film/
Tennessee Film & Music Commission
312 8th Avenue North
Tennessee Tower, 9th Floor
Nashville, Tennessee 37243
Direct: 615-741-FILM
Toll free: 1-877-818-3456
Fax: 615-741-5554
Hotline: 615-532-2770
Email: tn.film@state.tn.us
Incentives:
Sales & Use Tax Refund:
Tennessee offers a refund on sales and use tax to production companies shooting in-state. Companies must first register with the Tennessee Film & Music Commission and the Tennessee Department of Revenue, and they must spend over $500,000 in connection with filming in Tennessee. Filming must be completed in less than 12 months and the rebate must be claimed no later than six months after the last day of production.
TEXAS:
Incentive information: http://www.governor.state.tx.us/film/salestax.htm
Film office: http://www.governor.state.tx.us/film/
Incentives:
Sales Tax Exemption:
Texas offers production companies an exemption from sales tax on goods and services purchased, rented or leased for the production’s direct and exclusive use. This exemption applies to goods and services used in the production or post-production of the film or video master. Texas state sales tax is 6.25%, local sales taxes range from 0.25% to 2%.
Productions eligible to qualify for this exemption include features, television projects, commercials, corporate films, infomercials or other projects for which the producer or production company will be compensated, and which are intended for commercial distribution.
VERMONT:
Film Commission: http://www.filmvermont.com/
Danis Regal, Executive Director
P.O. Box 129
10 Baldwin Street
Montpelier, VT 05601-0129
Hot Line: 802-828-3680
Telephone: 802-828-3618
Fax: 802-828-2221
Email Address: vtfilm@state.vt.us
Incentives:
Vermont offers Sales & Use Tax Exemptions on the purchase or rental of goods and services used in the making of a motion picture. The goods and services must appear in the film or be used directly in making the print. State sales tax is 5%. Companies that book in advance and stay in a hotel for 31 days or more are exempt from hotel tax. For the time that non-resident performers are working in-state, income taxes are assessed at whichever rate is lower, i.e., if the performer is a resident of a state that does not charge income tax, then they will owe no Vermont income tax. If the performer is a resident of a state that assesses a higher income tax than Vermont, they will owe the lower Vermont income tax on their wages earned.
VIRGINIA:
Incentive information: http://www.film.virginia.org/the-basics/savings-incentive.htm
Film office: http://www.film.virginia.org
Virginia Film Office
901 East Byrd Street
Richmond, VA 23219-4048
Phone: 800-854-6233 or 804-371-8204
Fax: 804-371-8177
Hotline: 800-641-0810
Email:vafilm@virginia.org
Incentives:
Virginia offers Sales & Use Tax Exemptions that are offered at the point of sale (rather than as a rebate). Production items exempted include production facilities, cameras and related equipment, and editing, dubbing and sound equipment. Tangible personal property and some production and crew services are also exempted. Companies that stay in a hotel for more than 90 consecutive days are eligible for a 3.5% lodging tax rebate. Filming in most state-owned buildings can be done free of charge.
WASHINGTON:
Incentive information: http://www.oted.wa.gov/ed/filmoffice/incentives/index.html
Film office: http://www.filmwashington.com
Washington State Film Office
2001 6th Ave., Suite 2600
Seattle, WA 98121
Phone: 206-256-6151
Fax: 206-256-6154
Email: wafilm@cted.wa.gov
Incentives:
Tax breaks:
Washington offers a state sales tax exemption on rental equipment and the purchase of services. There is no state income tax. Production companies can receive a refund on local, state, and special use taxes on rental vehicles used in production. There is also a lodging tax exemption available for stays of 30 or more consecutive days. The production must contract the stay before arrival.
WASHINGTON, D.C.
Film office: http://www.film.dc.gov
Office of Motion Picture and Television Development
410 8th St., NW
6th Floor
Washington, D.C. 20004
Phone: 202-727-6608
Fax: 202-727-3787
Incentives:
Washington D.C. has no incentive program.
WISCONSIN:
Film office: http://www.filmwisconsin.org/
Mary Idso
Film Office Coordinator
Wisconsin Film Office
201 W Washington Ave
2nd Floor
Madison WI 53703
Phone: 800-345-6947
Fax: 608-266-3403
Email: midso@filmwisconsin.org
Incentives:
Wisconsin has no incentive program.
WYOMING:
Incentive information: http://www.filmincasper.net/incentive.htm
Film office: http://www.wyomingfilm.org
Wyoming Film Office
214 West 15th St.
Cheyenne, WY 82002-0240
Phone: 307-777-3400
Toll Free: 800-458-6657
FAX: 307-777-2838
E-mail: info@wyomingfilm.org
Incentives:
The Wyoming Film Office and the Casper Area Film Commission have asked Wyoming businesses to offer production companies filming in Wyoming a 10% discount on production related services.
A list of statewide businesses participating in the program including hotels/motels, restaurants, caterers, etc., can be found at http://www.filmincasper.net/incentive.htm. To receive the discount, production companies must first request a Wyoming Production Incentive Program card from the film office.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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59.
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What has to be considered in terms of looking for film funding and financing a project?
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There comes a turning point for every filmmaker when they must make a decision about whether or not they wish to make a career out of film or if it is simply a hobby. Like it or not, this decision usually hinges on the filmmaker's ability (or inability) to finance his/her own projects. However, most filmmakers don't look past the initial financing, if that far. For any filmmaker to have a realistic grasp of working in the industry as a professional, some elementary film investing concepts must be understood.
Although a common sense warning, every producer should be aware that there are plenty of "consultants" who are looking to take advantage of your ignorance. They are aware that you are not knowledgeable about the industry and will seek to part you from the money you have set aside for your project. There are plenty of legitimate organizations that will provide you with invaluable script evaluations and business plans but there are more who will take your money without bringing you any closer to your goal. On the same token, no legitimate organization will guarantee you access to potential investors. If they do, keep a tight grip on your checkbook. The merit of your project will determine if it should be presented to "the right people," not your amazing good fortune at stumbling onto the right consultant.
Legitimate organizations understand that there is no real money to be made in the seven or eight hundred dollars most producers can afford for their services. There is enough to fuel a scam artist, but not an industry. Even taking a percentage of funds placed with your project isn't enough to interest a serious film finance organization. Although they will surely charge you fees for both services, their ultimate goal is the same as yours: to see your project find distribution. This is where the real payoff is for them and for you. If your retainer is not planning for distribution, it is a telltale sign that they are simply looking to make a quick buck from your personal savings. As tedious as it sounds, you want your consultant to be thinking in terms of accumulated interest on money borrowed over the time of production and other financials.
The difficult part of this equation is convincing a legitimate producer's rep or financial consultant to get on board in the first place. The key to this is the investor, the ever-elusive financier who is willing to sink money into a high-risk film project. Once you begin dealing with these investors, it is critical that you understand the game from their perspective. The following are some basics of film investing, courtesy of Michael Harpster, an experienced consultant and producer's rep.
An experienced film investor will never put up more than 50% in equity; if the producer cannot come up with the rest, the picture is not likely to go anywhere. They should also use leverage: 30%-40% in equity should get most films made if other end users will buy into the premise. There will also be desire on the part of the investor to keep budgets low, a rule of thumb being that foreign sales should cover at least 50%, and 70% is better. Smart financiers also distribute their risk across multiple pictures. A $5 million investment will buy participation in several films-- not just one. Fortunately for the independent producer, these investors will also understand that indies are not majors and will not look at results garnered by the majors in their financial modeling.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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60.
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What Myths exist in terms of film distribution?
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If you're like most low-budget filmmakers, the word "deliverables" probably ranks somewhere at the very bottom of your List of Major Concerns, below "Outline my next film" and above "Pay back Uncle Mort's $1,000 loan." And rightly so; when you're consumed with worries about scraping together cash to buy stock or about getting through the mix before the festival screening, what's the point of worrying about abstract future concerns like E&O Insurance, Chain of Title documentation, and internegative checkprints?
But unlike Uncle Mort, deliverables will come back to haunt the unsuspecting independent filmmaker like a hidden line item threatening to dwarf the rest of the production budget. As producer James Schamus says, "When you've finished your film, you're just about halfway through." In other words, after the rude awakening of deliverables, you might find yourself crawling back to Uncle Mort to beg him for another $30,000 to $80,000 to provide you with the means to actually sell and jrelease what used to be your miraculously produced no-budget film.
Creation of deliverables is a huge and consuming process that accompanies any film lucky enough to get any level of sales or distribution. From the distributor's perspective, a timely and high-quality delivery is the backbone of a film's release. But from the producer's perspective, delivery can make the difference between a film's profitability and further debt. And for the low and no-budget filmmaker who has already plumbed the depths of fundraising and charity, the creation of deliverables can be a desperate struggle.
"The filmmaker always expects the distributor to pay for all the delivery items, and it becomes the biggest area of friction," says Marcus Hu from Strand Releasing, which has released the low-budget art house films Crush and Grief. "But on a borderline film, if the filmmaker balks at creating necessary delivery materials, we may decide not to distribute the film at all."
Unfortunately, there's no way around delivery, no El Mariachi-no-budget shortcut, but there are a few hints about how to cash flow the process and juggle the elements so that a producer can ensure that the film does get delivered, and maybe with a few bucks left over afterwards.
Deliverables Defined
Simply put, deliverables are the materials that a distributor needs in order to release a film. Without a negative of some sort, the distributor can't create theatrical release prints. Without a color-corrected video version, the distributor can't broadcast it on TV or release it to your local video chain. Without a legal trail proving that the producer in fact owns the film and all its elements, the distributor won't undertake the legal risk of releasing it. And without a good many color slides, black-and- white prints and quirky anecdotes about the shoot, the distributor won't have the means to publicize the film's release. Deliverables fall into those three categories: print materials, legal documents, and publicity materials, and the bulk of the expense for the deliverables process lies in the first of them.
Print Materials
Print materials are the means for the distributor to create theatrical release prints, the trailer, television and video versions, soundtracks, and other methods for people to view and listen to the film. Exactly which and how many print materials are needed will depend on the scope of the film's release, but at the very least, print delivery will include access to the original cut negative and optical negative, a number of release prints, and a color-corrected video transfer of the film. For release in a foreign country where dubbing is required, print materials will probably also include M&E tracks, which have cleanly separated music, effects and dialogue tracks. Keep in mind that the most efficient way to accomplish this is to record each character's dialogue and location effect separately, otherwise, you will have to re-record every effect that tramples on dialogue and re-record each character separately when their dialogue tramples on the others in the production track. And for a release involving more than a small number of prints, a producer will probably choose not to endanger the original negative and will create an internegative which can travel more freely and which can strike large numbers of release prints safely. But the creation of an internegative calls for the creation of an intermediary element, the interpositive, as well as a checkprint (combined cost for the three is typically $25-30,000), and the creation of acceptable M&E tracks can involve an extra sound edit and mix which can easily run $5,000 or more. Since pretty much any territory sale will include video and television rights, a filmmaker will be required to create a D1 or D2 color corrected video transfer, which for a typical feature can take from eight to 30 hours of transfer time at anywhere from $300-800 an hour.
A filmmaker may also have to provide what's known as a spotted dialogue list. This form lists the film's action and dialogue in feet and frames for dubbing and subtitling purposes. Professionally done, it can cost in the thousands of dollars. Some smaller distributors without in-house editors might require the filmmaker to come up with the trailer, but for the most part this would be the limit of the major print delivery expenses. The remaining print deliverables merely involve giving the distributor access to already existing materials the filmmaker utilized to make the film: from original location sound and erstwhile useless negative cutouts, to sound mix cue sheets and copies of the original score, to the optical overlays of the credit sequences and the negative of the textless credits sequences. Everything you thought you'd never need again might return to your attention as the crucial linchpin of your distributor's deliverables list.
Legal Materials
Like print deliverables, the amount of legal paperwork required to release a film will vary from distributor to distributor. In general, though, legal deliverables are less expensive and less complicated than print deliverables, so long as the process has been anticipated from the very beginning of the film shoot. Well-conducted production legal work will include signed releases and contracts for every cast and crew member who worked on the film, for every poster and labeled bottle appearing in the frame, and for every song played on the soundtrack, and copies of all of these licenses and deal memos and releases must eventually be delivered to the distributor.
Additionally, filmmakers should expect to provide the distributor with a Chain of Title, which is a set of documents that trace each step of ownership of the film from the original screenplay through the producer and sales agent right up to the distributor, and which include copyright certificates, title searches, and certificates of origin. Though Chain of Title documentation can be complicated enough on its own, expect it to vary from territory to territory as each country's bureaucracy grapples with its own idea of authenticity.
However, there are two additional legal deliverables which are invariably expensive though not always required, especially by the smaller distributors. The first of these is an MPAA ratings certificate, the cost of which is pegged into the annual sales of the company submitting the film. As such, it is invariably cheaper for a small producer to submit the film for the rating than it would be for a larger distributor with sales in the millions. The cost of an MPAA screening, even if the rating is not ultimately accepted or used by the distributor, will be upwards of $2,500.
Errors & Omissions Insurance, another costly legal deliverable, is an insurance policy which protects the distributor from any potential lawsuits looming in the future. Smaller distributors may not require this until they make a video sale. but larger distributors will want this immediately. A standard policy is $3 million worth of insurance for 3 years, and this can run between $8,500 and $10,000. Most of the remaining legal deliverables are relatively simple and straightforward - short form transfers of rights, access letters for lab materials, statements of dubbing or editing restrictions, etc.
Publicity Materials
If you've already prepared for a festival, you probably have a good base for all the publicity materials you need: photos, slides, pressbooks, synopses, biographies of key talent and creative crew, and sometimes poster ideas and electronic press kits. Most important on this list is the photos and slides: a filmmaker should be prepared to hand over all production slides and color transparencies to the film's largest distributor (which probably means the film's U.S. distributor), but should remain cautious because the smaller distributors will also require a smaller, but complete selection of these materials. Generally, the best scenario is to give your U.S. distributor a chance to see everything you have, and then ask them to duplicate the materials they prefer. From their selects (60-200 color slides, 15-100 black and white photos), you choose a smaller batch for selects for all the other territories (20 color slides and 10 black-and-white photos). No matter how astute and intelligent you are when selecting slides, all the distributors will latch onto one single image that they love. Because most of your European distributors will want to follow the U.S. campaign, they will often choose the same image. The point is, don't make 300 copies of your favorite slide; trust your distributors to know their market and your film, and supply enough materials for them to do their job.
Other publicity materials include biographies of all key crew and cast, a summary of the film, and a few pages of material about production. Any information that can help your distributor fashion a "hook" to entice publicity is helpful. If the entire process was a miserable one, invent something. Often, press will not have seen your movie before interviews and will ask questions solely based on the notes you or your distributor have provided, so make sure your notes open up platforms to speak from and address issues that are enticing and marketable. Keep in mind that the El Mariachi hook of how low the production budget was is no longer interesting. Most independent films are made on a shoestring, and moviegoers don't plunk down $8 to see how thrifty and ingenius you are anymore.
Delivery Shortcuts
The best shortcut to inexpensive and efficient delivery is anticipating the process from the very start of the production. While some of delivery expenses are unavoidable, many of the horror stories from the front lines of delivery involve inadequate preparation during the shoot and postproduction. Other shortcuts involve ways to handle the deliverable process itself. Following are a few basic mantras:
Never use anything you haven't cleared. The cost of reshooting a scene with a different extra or in front of a different billboard, in the few instances where it's even possible, can be enormous. More common, but no less damaging, is the inclusion of musical tracks in the mix before obtaining proper clearances. Clearing only the right to exhibit the film at festivals could be a great way to gain a bargaining chip with the record companies, but it can also be the producer's worst nightmare. In the best cases, having a certain song in the film may attract the distributors' attention, and the possibility of having the band's music in a motion picture with a committed P&A budget may appeal to the record company, too. But an easy worst-case scenario is when the distributor loves the music, the director loves the music, but the music is only cleared for the festivals and the record companies will not negotiate a rate low enough to clear all media for the distributor. The moral is anything that isn't cleared before exhibition is a gamble.
Pay attention to what's happening on set. Careful attention on set will save a lot of headaches when time comes to obtain an errors and omissions policy. Be wary during production of any recognizable name, and keep in mind that recognizable doesn't always mean famous. In one case, a producer needed to track down residents of a suburban western town who had the same name as the character in a movie. The producer's lawyer asked them to make sure that the real people could not claim harmful similarities if their story was similar to the fictional character's story. (The irony was the writer had crafted a name hoping to be completely generic.) Other things to be wary of: casting aspersions on trademarks by associating them with unpleasant activities. For example, don't have your serial killer eat a McDonald's Big Mac before a killing spree or your E&O carrier may exclude that from the coverage. Remember, what you don't notice on set, a hungry lawyer will notice at a movie theater.
Hold onto everything you can. Never throw away anything. Never lose anything. Unused shots, failed foleys, recordings of the musicians rehearsing, letters from disgruntled caterers, keep 'em all. The most unlikely materials may eventually be required by a weird and rapacious distributor. And in such a case, the cost of recreating materials will most certainly outstrip the cost of a storage facility.
Hire a professional, reliable stills photographer. Unfortunately most producers learn the hard way just how important it is for a professional still photographer to be on set. "At Strand, we ask now before the deal is signed to see the selection of stills. It's the single most important publicity item distributors need. Creating stills after the fact is usually impossible and pulling from a frame of the film is disastrous." Oftentimes, unit publicists working on big-budget Hollywood films will read the script before production and identify major scenes where a good still will be an evocative selling tool. The unit publicist will then identify those scenes to the producer and unit photographer. Planning, professionalism, and attentive logging and care of the materials are all incredibly important during production. Make sure your key scenes, lead actors, and shots of the director on set are all covered.
Juggle the deliverables. Plan international releases carefully so that not all items will be needed everywhere at the same time. Very often, distributors around the world will release a film around the same time; that being the case, it's very important to coordinate the international journeys of the film's elements so that it doesn't become necessary to create multiple internegatives or M&E tracks. The interpositive of a film will be used to create the trailer, the video transfer (unless you make a low-con print, which some transfer houses prefer), and the film's internegatives; these activities must therefore be spaced out well in advance. A key to successful delivery is in evaluating everyone's needs and concerns and crafting a solution everyone can live with
Use the organic deliverable - the Director. It may not appear in any contract, but the time demands made on the director will be enormous. After you sell the film, it will take your distributor at least three to six months to prepare for release. Many independent films are platformed, meaning they open in a few major markets and then expand to a wider audience. The European markets will generally follow the American release by a few months. This means that from selling the film to putting the film to bed can take about twelve to 24 months to get the film out to all territories. The primary selling tool for an independent film is the director. Interviews, by phone and in person, will continually occur. Most distributors will want the film to participate in a festival in their territory and will want the director to attend and do press. The director should be ready, prepared, professional and pleased, even though they are being asked the same questions day after day for months on end. Distributors remember who works a film and who can't be bothered. You'll never know how much your visit boosted ticket sales, but when you come knocking on the distributor's door with your next film, they will remember. It's good for the film, and good for the director.
Be wary of distributors creating the deliverables. Larger distributors might offer to create the materials themselves, often at lower base prices than you can because of the relationship they have with their own labs. On the other hand, they will add a service fee of 20-40% to the cost, which will be subtracted from the income the distributor makes on your film. On the third hand, if your film has only been sold for a modest advance, you may want the distributor to create as many of the materials as they are willing to, the logic being that you may never see any overages beyond your minimum guarantee, anyway. On the fourth hand, if your North American distributor (who generally needs the most delivery items) creates all the materials, who will service your international distributors? Will they charge a fee to the foreign distributors for access to the interpositive and internegatives they create?
Go for a Gross Corridor deal. If your distributor can't offer you an advance to help defray the costs of delivery, ask for a gross corrider deal with your distributor, which essentially means that a portion of money received from the box office and ancillary markets will revert directly to the filmmaker. This allows money to come back to you more quickly in order to pay for materials. The downside is that less money is going to your distributor, who may need it to publicize and distribute your film.
And if you're feeling lucky... Smaller distributors may only want an initial run of four to seven prints, which is a number that seems high to run off your original negative, but not large enough to warrant the expense of an internegative. An intermediate solution would be to create an interpositive of the film and then run prints off the original cut negative. If damage occurs, the interpositive can be used to create an internegative, and additional prints can be struck. The drawback of this method is that it's still a tremendous gamble: Without creating an internegative and a checkprint, there's no way to make sure that the interpositive is any good.
The Myth of the Seven-Thousand-Dollar Film
"A film without delivery items isn't quite a film yet," says Samuel Goldwyn's Tom Rothman, which leads one to wonder whether deliverables should be a part of every film's production budget, just as essential to a film's creation as actor fees, equipment costs and music licensing. While deliverables are not strictly part of the script-to-answer-print process, they are definitely a part of the equation of how and whether a film breaks even or makes a profit, and their exclusion from a production budget can be somewhat misleading to a potential investor. On the other hand, it's wildly inaccurate to predict the extent of a film's release at the time of budgeting, so it would be difficult to anticipate how many of which deliverables a film might need. It would probably be safest to include one full set of deliverables in a production budget, but it's even more important for producers to be aware of the cost necessary to create delivery items and weigh those costs during production. It is, for example, crucial to recognize early on that a 16mm film is virtually impossible to release theatrically anywhere outside the United States, and as such will probably have to be blown up to 35mm (a process which involves interpositives and internegatives as well as a substantial blow-up charge). It will also keep you from cutting corners by letting your cousin Sara, who takes pictures for the high school yearbook, from being your part-time, afterschool unit photographer. It will make you insist that production sound tracks be as clean as possible. And it will make you track down that charming street musician who sold your director a homemade tape in the subway, one of whose tracks has somehow worked its way into the production track.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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61.
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What paths are production companies taking today in terms of distribution?
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As one of the newest names on the British distribution circuit, Going New Pictures has set itself some challenging goals: to bring high-quality foreign language films to a UK audience, and to convince the notoriously foreign film-shy British public to get out and see them. Kevin Miller discusses the company's aims and aspirations with Liam Melveux, director of Going New Pictures.
How did the idea of Going New Pictures come about?
It came from a genuine passion for film, and the desire to bring UK audience good films.
What are the main problems you see in the current UK distribution setup, especially with regard to foreign language and arthouse cinema?
There are many problems, but one of the main ones is that unfortunately what is shown and where it's shown is regulated by very, very few people. If to that you add that these few people have been working very comfortably with the same people for years, you can imagine how difficult it is to try to find a little gap to squeeze in.
There are a number of independent distribution houses - notably Tartan, Artificial Eye and to a lesser extent the BFI - who are already distributing foreign language films in the UK. How does Dogwoof aim to be different?
We aim at being very good distributors, as I'm sure the ones you mention are, but we are different because we are different people, and come from different backgrounds. We are fresh and new and still have that touch of naivety that I guess gets lost somewhere in the way to success.
What's the main market you're seeking to tap with Dogwoof's releases? Foreign language films notoriously struggle with mainstream UK and US audiences, partly because of the language barrier and partly because of a popular aversion to "unfamiliar" styles of filmmaking.
The main market is already there; it's a similar audience to the one for independent films, I'd say. We believe a universal story marketed the right way does crossover. We just have to find the right film, which is the hardest part.
Why are English-speaking audiences so averse to foreign content? One of the main reasons other nations are so amenable to English-language cinema is, fundamentally, because they've got no choice if they want to watch the latest Hollywood film - but UK and US audiences don't grow up with that culture, so are far less receptive to foreign films. How do you plan to go about changing that?
This is mainly because languages are a very small unimportant part of British early education; it's a logical consequence of not learning other languages and hence not being familar with them. There is a significant foreign film audience in the UK, and there's an "in between" audience that would not usually go to see foreign films, but would if the film is appealing enough and marketed properly (i.e. Amélie, Amores Perros...) We aim to target these audiences by finding universal stories with characters with whom anybody could identify, and to market these films by focusing on their universal appeal, rather than the language in which they are spoken. We're also very interested in English-language independent films.
You had recent success with Don't Move, an Italian language film starring Penelope Cruz, and your distribution network is currently geared towards Germany, France, Italy, Spain. Was this a conscious decision or a commercial necessity? Are you looking to open up to other national markets?
Absolutely. We are looking for good stories with a sensible commercial appeal, regardless of where they come from. We are also establishing very good relationships with Asian and South American sales agents/producers.
With all the exciting world cinema around at the moment, it makes the domestic UK film industry look even more depressing. Why do you think the British film industry can't get on its feet? Is it a funding issue, a lack of homegrown talent, an over-competitive marketplace, or something else?
Personally, I don't think there's lack of talent at all. I've met so many talented British people in the film industry, most of them at the very bottom of the unreachable UK film industry ladder. When a country's film industry has not been successful for a while, it may mean that there's something wrong with the actual system, in other words, that either the people giving the money or the people receiving it are the wrong ones, or both. It seems to me that unfortunately the system is ruled by power/money, rather than a genuine interest for good story telling and the art of cinema itself.
One of Dogwoof's ideas to promote foreign-language film in the UK is the "Fête de Cinema". Can you explain how the idea came about, and what you hope to achieve with it?
Fête de Cinema has the aim of getting as many people as possible to the cinemas.For that over 3000 cinemas across the UK will participate in the cut-rate ticket scheme, which allow audiences to see films for £1 following the purchase of one full price entry. The ultimate objective is to promote independent world cinema to the general public. It's hard to resist £1 cinema entry, even if it's not the film you'd ideally want to watch, don't you think? Maybe we'll even get "don't-do-foreign" people to see some foreign films...who knows?
You've set yourself up as a distribution company, but do you ever see Dogwoof moving into the production side of the film business?
Yes, if we come across a very interesting project, a brilliant piece of story telling, we'll do our best to back it as much as possible, whether it is distribution or getting involved in production.
What else have you got lined up for UK release in the near future?
A Spanish comedy, Football Days, a kind of Spanish Full Monty, and a brilliant Danish political thriller, King's Game.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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What should I know about alternative distribution?
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Let's get real. Theatrical distribution, in its current form, is no longer a realistic possibility for the vast majority of independent, specialized, cult, underground or art films produced today.
Specialized theatrical distribution as we know it only reaches the standard art-film audience, which is graying by the day, and the "urban sophisticates" who follow like lemmings the popular wisdom of today's newspaper critics and television tastemakers. It takes serious ad dollars to reach these folk and put their butts into gear. And because spending this kind of money requires hopes of large returns, standard distribution is predicated upon crossover dreams.
Unless the means are created to reach new, untapped film-going niches and supply them with cinematic satisfaction on a regular basis, audiences had better resign themselves to a pretty bland diet. And if we, the independent film community, remain loyal to antiquated distribution systems, we are digging our own graves.
How many indie films were submitted to Sundance this year? One thousand? Up from 750 in 1996. How many do they screen? Seventy-five? How many of these actually find broad-scale distribution by one of the larger specialized distributors? Five or six? And maybe another six get more limited distribution from the smaller specialty distributors. These numbers remain more or less the same year in and year out.
Relatively few theaters in this country are devoted to indie fare. The rumored new Angelika and Sundance chains have yet to appear. Most multiplex bookers would rather add additional shows of the latest blockbuster than take a chance on an indie gem. Meanwhile, the studios continue to increase production, reportedly by as much as 40% this year, making it even more difficult for small indies to find a screen. Theatrical exhibition is fast becoming the impossible dream.
And this dismal situation is not restricted to the Amerindie scene either. How many foreign -language films find theatrical distribution in the U.S.? How many even screen in a major U.S. festival? How many make it to cable?
So why do we filmmakers continue to make these celluloid trophies? Apparently just to put "filmmaker" on our business cards or tax forms because we certainly aren't getting our work seen. The "indie boom" has doomed us. Over the last few years, we've made a surplus of features for an industry ill-prepared or unwilling to exploit them.
If we want to continue making films touched by "independent spirit," we must think hard about how to get these movies to the audiences that will respond to them. We've got to find distribution methods that align themselves with the content of the films we want to make. And if those distribution systems don't yet exist, let's create them before we make our next films.
When I look at the diversity of the music- buying public with all their eclectic tastes, I see hope for independent filmmakers. In film too there's a core of folks who want the hardest, loudest, most shocking stuff available yet don't know how to get it. Likewise, there are others out there who want quality films, regardless of the language they're spoken in, but can't find the time to get to them during the one week they play at the local arthouse. Will any of these folks remember these films once they hit video - that is, if their video store stocks them?
My answer and cry to all of this: Bring The Films To The People!
Over the last few years, there have been two films that aligned their content with their method of distribution. Not surprisingly these two films reached a more diverse audience than any other indie films I know of. These tapes were on every gift list. No dinner party was complete without a critique of these works. Of course I'm speaking of The Motley Baywatch Honeymoon/Vacation Boat Cruise Shag Session (better known as the "Pamela and Tommy Lee Tape") and Trey Parker and Matt Stone's The Spirit of Christmas. These two videos offer lessons for each and every one of us (and I'm not just talking about how to steer a boat when...).
In case you were stuck in some darkened edit suite dreaming of Sundance and a three-picture deal with the Big Brothers and somehow missed these video wake-up calls, the tapes I'm referring to are Pamela Lee and her Mayhem-inscribed, soon-to-be-ex-husband Tommy Lee's home recording of their nuptials, honeymoon, and various shag sessions in moving vehicles, and the five-minute holiday corporate gift that introduced the film industry to the "South Park" cartoon kids. If you haven't seen these tapes, ask your friends for them now!
When it comes to distribution, here was real innovation at work. Both tapes were initially distributed on the clandestine back-channel swap circuit (similar to the way Deadheads swap bootlegs), where possession signifies "coolness" and also serves the social purpose of cementing new friendships. (In fact, you're not a bona fide member of the entertainment industry if you don't already possess one of these classics.) Their predecessors are equally informative, be they Todd Haynes' Barbie-doll, Super-8 melodrama Superstar or Robert Frank's illicit Rolling Stones doc, Cocksucker Blues.
While countless more people have seen Pam and Tommy Lee's shag session than Parker and Stone's hilariously crude animation, The Spirit of Christmas has nonetheless redefined an important indie genre - the "calling card" film. A gag video Christmas gift commissioned by a studio executive, the film's initial distribution was limited to the executive's close friends. But the tape's blend of blasphemy and cute cartoon kids generated the word of mouth that made everyone want a copy. As the tape got repeatedly dubbed, its calling card value grew. Clocking in at five minutes, the short easily fit within the framework of an executive's leisure time. Skipping the festival circuit altogether, it wasn't competing with the ski slopes. And, by carrying with it the mystique of contraband, it avoided the doomed fate of a "To Watch" pile. It made for perfect lunch-time screening for the whole office. And since it was made as a gag gift, it also carried with it a declaration of budget consciousness: it would be cheap to turn this into a series. It had to be, or else how could someone have afforded to make this their Xmas card?
The Pam & Tommy Lee tape, however, has redefined the release window pattern and marketing methods for the independent feature (even if the project itself didn't ultimately ensure happiness for its stars). Built around a claim of mythic weight (Did their house painters actually steal this private work from their home?), its origins are almost as interesting as the footage. Granted this folkloric marketing angle has worked for many a distributor (the p.a. who worked weekends on his feature and went on to win Sundance, the bartender who got Harvey to buy the bar as part of the development deal, the 18-year-old ghetto kid who raised his budget by pleading for funds on the radio), but the marketing power of contraband - stolen goods - intrigues like no other.
In fact, the tape hit pay dirt only on its second try; it initially surfaced over a year ago but soon vanished. It was then put up on the Web by an enterprising internet marketer, Seattle's Internet Entertainment Group (IEG), and was downloadable for a fee of $200. It was in this second wave that home dubbers took hold of the footage and the Lees made it across this great land. It's one thing to view a celeb's naughty bits, but to get something with a hefty price tag for free - even the most chaste among us can't resist the temptation. And when it comes to the complex interplay between desire and marketing, the Lees grasped the lesson of Japanese pornography's fabled blue digital dot (people want most what they can't see or have) and added the critical suffix for these days of late capitalism: "or can't afford."
Publicity escalated when Pamela Lee went on the Howard Stern Show to denounce the theft of the tape. This Stern appearance was then cited by a judge who threw out Pamela and Tommy Lee's attempted injunction against the Internet marketer; the judge claimed that the couple diminished their right to privacy by commenting on the contents of the tape on the radio. The Lees then reportedly reached some unspecified settlement with IEG, which now continues to sell the tapes, advertising them as "The Only Legal Version."
The truly mind-blowing thing is the story of Pam & Tommy Lee didn't stop there. Once hepcat bootlegging hit the saturation point, IEG announced a series of sequels and "director's cuts." In the coming months, the curious can first trade ducats for a 60-minute highlight tape (carefully programmed to include 15 minutes of never-seen-before footage), enhanced both visually and aurally from the original 45-minute "trailer". A month later, the artists' uncut three-hour version will hit the streets. There's also talk of a "prequel," documenting Pam's passion for her previous lover, Brett Michaels from the band Poison, as well as a threesome tape featuring two babes and another member of Motley Crue. From Pamela Lee's initial dance in the buff comes long-term boffo box-office.
Check out this marketing strategy. The initial bootleg window led first to a Web broadcast followed by a wider bootleg proliferation which initiated a press frenzy used to sell a video premiere which advertises a collectors' edition "director's cut" which leads into a series of sequels. Why can't art film distributors be this innovative?
The distribution of Shag Session and The Spirit of Christmas achieved the five objectives that any filmmaker could hope for from the theatrical release of a specialized film:
1) The releases created want-to-see-desire on a mass scale.
2) The releases generated considerable newspaper, television, and radio publicity for the products and their creators.
3) The releases lead to new deals for the filmmakers.
4) The ancillary market value of the films were increased.
5) Critical praise - and general awe for the filmmakers' unique attributes - were created.
You don't have to be a Playboy centerfold model or a well-endowed rock star to reap these kind of rewards from independent distribution. Filmmakers must simply rethink their fetishistic lust for theatrical distribution.
What new ways can be created to release and publicize films? What about cable premieres? Face it, only precious filmmakers and short-sighted exhibitors care if a film was on TV before it shows up in theaters. The fact is, the cable audience barely intersects with the art-film audience. This fetish for antiquated systems is mirrored in the creative community's reluctance to embrace video - digital or analog - as a format for cost-conscious production. Faced with a limited audience, filmmakers must adopt a production ethos of limited means.
And why do filmmakers and distributors rely on Sundance and other festivals to generate buzz on their films? Aren't there other ways? The illicit quality of the Pam & Tommy Lee extravaganza gave an urgency to the viewing that most films can only covet. The real story behind Bean, The Full Monty, and Trainspotting wasn't how well they did here but how well they did on their home turf before they hit our fair shores. The fact that they conquered elsewhere first gave them a notoriety here that other films lacked.
Perhaps it' s time to take another look at distribution release patterns. Just when popular wisdom says the platform release pattern - in which a film opens on a small number of theaters and slowly "platforms" to larger numbers of screens - is dead, The Full Monty proves otherwise. When the Fuel Tour films showed in small towns and cities, audiences flocked to see what this traveling film festival and their filmmakers had to say; outside of the top media markets, people are always looking for something new to do and see, and it doesn't require massive ad dollars to draw them in if you've got a unique product.
How can the Internet be used more effectively by indie filmmakers? Or at least as well as Pam & Tommy Lee's team utilized it? We have to find and link together people of similar tastes. We have to actively champion the work we believe in and make sure as many people as possible not only hear of this work, but have access to it.
Where is the indie filmmaking community's equivalent to Factsheet Five (a fanzine dedicated to reviewing all indie music releases), something that champions and critiques the 1,000 indie films a year that are made but never seen? Viewers are still relying on festivals to bring them their daily serving, yet the aforementioned tapes prove there are stronger ways to feed the public's appetite.
Filmmakers are doing new things out there. Yet we won't see them or know about them until we abandon our reliance on doing things the same old ways.
Change or die.
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
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