Swimming With Sharks

When I first finished Spirit Camp, I was in a panic... "I've got this great film, now what do I do with it?" You may have read the other blog posts about producer's reps... if not, check it out... but let me tell you, I am so glad I didn't sign on with a producer's rep. I have been able to consistently bring deals to the table without one... and it saves me ten percent.

I'll tell you how I do it later, but I'm very excited to have several offers, both domestic and foreign, to sort through... and I've only approached a handful of companies. The blood is in the water, and the sharks are starting to circle (and I mean shark in the nicest possible way, because I know you guys read this blog, lol). I decided to start with a small push allowing myself to adjust my approach if need be. There are pros and cons to this technique... the deals tend to stagger in, instead of all at the same time - and it seems everyone is in a hurry to lockup rights. Fortunately, I don't have investors to pay back, and I can take my time and negotiate a good deal - or walk completely.

Part of my plan from the beginning was to have a self distribution option, and even a hybrid type situation with traditional distribution. Fortunately today, self distribution is a viable option, provided you have a reasonable marketing budget to support a small DVD release.

It is a very interesting time, to say the least, and an incredible learning experience. I have talked to hundreds of filmmakers lately, researching the companies who have made offers, and I definitely recommend doing that before signing a deal. I have found that most directors and producers are very supportive and willing to give their time. Many thanks to all of you who were kind enough to take my calls and emails.

Win, lose, or draw, this whole experience has given me valuable insights regarding the qualities that make a film marketable, but that is the subject of another article...

Stay tuned...

Script Clearance Report – Why You Need One!

I can’t tell you the number of filmmakers I run into who have put their life savings into their film, only to find they can’t sell it. Not because it isn’t any good… but because they didn’t get the proper clearances before they shot.

I’ve talked a little about clearance before, but it boils down to this:

You can’t put anything in your film that you don’t own, or control the rights to. Period!

That painting that hangs in the background of a scene, the family portrait that sits atop a desk, the product that one of your actors is holding… all of these need to be cleared.

The artist who painted the painting likely owns the rights, and you could be guilty of copyright infringement by using it without permission. Same with the photographer who took the family portrait (yes, even if it is your relatives in the photo, the photographer likely owns the rights.)! And to be really thorough, you will need releases from each person featured in the family photo… that means uncle Bob needs to sign off on it.

You will also need to clear the usage of any products in your film, and context is often a very important consideration. If your film depicts something negative happening in, around, or as a direct result of, a recognizable product, you are likely to run into clearance issues.

And it doesn’t stop there… character names are equally as important. A filmmaker can open themselves up to all kinds of lawsuits, including defamation of character and invasion of privacy, etc. Say you name the villain in your story “John Doe,” and he does unsavory things… and there just happens to be a person of the same name, in the same area that your film takes place in, with the same profession… you might be at risk for a lawsuit.

I know, what are the odds of that… but it happens more often than you think.

So, what does all this mean? Well, if you are not careful, your risk of a lawsuit may be high, in which case you may not qualify for E&O insurance, or your rates may be exorbanant. It’s like trying to get health insurance with a pre-existing condition.

What is E&O, you ask? Errors and Omissions… it’s basically a media liability policy, so if someone does bring a lawsuit, the insurance company will pay for they defense and any settlement.

No distributor or broadcaster will touch your film without it. Let me say that again… NO DISTRIBUTOR or BROADCASTER will touch your film without it. It will usually be requested as part of your “deliverables.” (I will talk more about deliverables in an upcoming article – but in short, it’s all your master versions of the film that the distributor will use to make DVDs, etc.)

It is possible to negotiate that the distributor pays for E&O, but your film still needs to meet the clearance requirements. Enter the script clearance report…

There are a handful of approved clearance agencies that will go through your script and point out clearance issues, and make suggestions that can save you thousands of dollars later. They will check every character name against a national database, and let you know if there are any conflicts.

But it’s not cheap! Script clearance can run anywhere from $1000 to $1500… and it usually takes a week or two. Once you have a final shooting script, get the report done BEFORE you shoot. Have your attorney look over the report to make any final suggestions, and give you the go ahead.

Look for my upcoming book, where I go over all this in detail, list several clearance agencies, and tell you simple things you can do to improve your odds of staying in the clear, so to speak. Keep in mind, I am not an attorney, and this is not legal advice, so always consult with an experienced entertainment attorney first.

So, save yourself some heartache, and clear your script!

BUY SPIRIT CAMP STUFF!

The official online store for Spirit Camp is now open for business. T-shirts, tank tops, posters, calendars, and more... I will be continually adding new products. It's a great way to show support and get the word out with a Spirit Camp T-shirt. Sexy, funny, and totally irreverent. Shop NOW!

Spirit Camp Store.

IS YOUR MOVIE'S TITLE SAFE?

I have to admit, I was a little nervous... I've been calling my film "Spirit Camp" ever since the first draft - but I hadn't bothered to clear the title. Actually, I didn't really know the process. I mean, I did as much research on my own as possible to make sure there wasn't a conflicting title already out there, but that was about it. At this point, my key art, DVD cover, and marketing materials are all geared toward "Spirit Camp." It would be a total bitch to have to change the name now.

One of the requirements to get E&O insurance (Errors & Omissions) is a title clearance report. I paid a research company, Thomson Compumark, $1100 to run my title through every conceivable database for any conflicts. The US Patent & Trademark Office, The Copyright Office, along with every entertainment title, book, video game, ever created. They even searched user generated content on the web, on sites like Youtube and Myspace. What I got for my money was a 366 page booklet containing everything that referenced the name "Spirit" or "Camp" in any combination. They even printed out every web page titled with those terms as well.

I sent this "War & Peace" sized report to my attorney for her to issue an opinion, cringing on the billable hours it would induce. I anxiously awaited our conference for the results.

Everyone asks me, "When is the movie coming out... what's taking so long?" and most importantly "When's the wrap party?" But it's these little details of post production, that most people are unaware of, that can hold up a release. I certainly couldn't press 10,000 DVDs before I cleared the title.

Fortunately, my attorney says we are in great shape legally, and the title is clear for my use. I still need to get a script clearance report (which is something I should have done before filming). This is another requirement for E&O, and of course, the subject of a future post.

So, "Spirit Camp" WILL be coming soon!

PRODUCER'S REPS vs. SALES AGENTS???

Your film is finished, now what? Well, in the good old days, you submitted to festivals, got some good press, and hopefully a distributor picked your film up in a bidding war. Unfortunately, those days are long gone, and they really only existed for a select few anyway. Besides, you have to "know" someone to get into Sundance, don't you?

Hopefully by the time you've finished your film, you've been contacted by a producer's rep, or sales agent wanting to take a look. But it's really confusing... what is the difference? And sometimes sales agents are also "distributors," so it makes it even more confusing. So, who are these people?

A producer's rep is like an agent for a filmmaker... they will, supposedly, use their "relationships" with distributors to help sell your film. I talked with dozens of reps, and as one rep I spoke with put it, "our services would include developing and implementing a strategy for film festivals, consulting on your marketing materials (trailer, press kit, etc), cajoling distributors and festivals to watch your film, counseling on the various offers that you receive, and then advising on your agreements."

All for the low, low price of $7,500 plus 10% of all sales. What a bargain... of course that was after his initial offer of $5000. Hmm... I've been in this business for a long time, and I know better than to pay an agent an up front fee to represent me. If they believe in me, 10% commission is enough. This rep did come down to $3750, but still didn't answer any of my questions regarding how many films he actively represented, or any of the minor amendments I wanted to make to our contract. If he signs 10 new filmmakers a month at that fee, that's a pretty good living. Maybe I should become a producer's rep.

All of his emails were cut and paste responses, and I have multiple emails with the same identical phrases pasted in... I don't think he even watched my film, as he only ever discussed it in general terms. And to top it off, he was just going to place it with a sales agent anyway. At this point I already had a dozen sales agents contact me regarding the film. I figure I didn't need the middle man. Though I will say, I talked with several filmmakers who this rep had sold films for, and they were all happy. Just didn't feel right for me...

So, what is a sales agent, you ask? A sales agent represents your film, along with a slate of other films, at the film markets. Their primary goal is foreign sales, although some do have domestic distribution divisions or relationships with domestic distributors.

Sales agents do not charge an upfront fee, but will ask for a hefty commission and a marketing expense. Everything is negotiable. This is where the attorney comes in... you need competent legal advice when negotiating these contracts. Typically they will settle for 25% of sales, plus a recoupable marketing expense that you should cap at no more that $50,000, preferably less. Film markets are expensive, and you need to give them some room to work, but you also need to make sure that the marketing expense you are being charged for was actually spent on your film.

When a sale is made, the sales agent will take their cut plus everything up to the marketing cap... so, say your film sold for $50,000 to Germany - the sales agent would take $12500 (25% commission), plus the marketing expense of $37,500, leaving you with, you guessed it, ZERO. Now, the next sale of $50,000 to the UK, they would take $12,500 (25%), plus the remain allowable marketing expense of $12,500 (for a total marketing expense of $50,000) and you would get $25,000. After that it's a straight 25/75 split. But it may take a year to actually get the money from the foreign country.

BTW, those sales numbers are high... you aren't going to get that amount without a star in your film. I hope you didn't spend a million dollars on your film without a recognizable name. My preference is to do a 30/70 first dollar split with no marketing expense. That way you are getting 70% out of every sale.

I didn't "know" anybody when I made my first film. I submitted to 30 film festivals, all of them turned me down - except for the last one... Slamdance. The first of the alternative Sundance festivals in Park City, Slamdance is now one of the top 5 film festivals in the world. My short "Bad Habits" won the Anarchy Film Showcase, and subsequently got offers from every distributor that had previously turned the film down. Imagine that.

But the work didn't stop once I had a distributor. I kept marketing the film, took it to Cannes, and sold it myself again to the largest distributor of films in the UK, and had them do the deal with my domestic distributor. The distributors made money - I've never seen a dime past my advance.

Lesson learned... I can sell my own movie, and keep more of the profits. It todays market, it is more and more economically viable to self distribute, provided you can stomach the upfront marketing and replication expenses. There are pros and cons to everything, and there are some great producer's reps, and sales agents out there, and it just depends on your film and your goals as to which is the right path for you. Take your time, trust your instincts and read the fine print. Better yet, have your attorney read the fine print.

I will keep you posted on how this little adventure all pans out.

WHAT YOU NEED TO KNOW BEFORE YOU MAKE YOUR MOVIE!

I met a filmmaker last night that had a panicked look on her face... you know the one where you've just committed all of your resources and years of your life to a project, and you've just discovered you didn't get all of the necessary clearances for your film?

She had verbal agreements with several bands that contributed to the soundtrack... but she just realized she can't get E&O insurance, or a distributor, without all the proper clearances. What's "clearance" you ask?

"Clearance" is obtaining the legal right to use other people's name, likeness, or intellectual property in your film. It ranges from talent releases for your actors, to music synchronization rights from a composer or band. Unfortunately, in most cases, verbal agreements don't cut it. The exception to this is if you have a verbal agreement on film, and it can be determined that all the parties have a full understanding of the potential uses and compensation of the intellectual property in question. Though not ideal, that is better than nothing. Now, I'm not an attorney, and this is not legal advice, so, if you plan on making a film that you intend to sell to the public, I highly recommend getting the counsel of an experienced entertainment attorney to help you navigate the often confusing and highly detailed area of "Clearance."

But before you drop $5000 on a retainer fee, you can drop $20 and get a amazing book that will help you familiarize yourself with this tricky area. This book will save you a TON of money and heartache! And it will better prepare you to find the appropriate attorney, and communicate your needs effectively with them, saving you valuable attorney time - (time = money.)

The book is "Clearance & Copyright" by attorney Michael Donaldson. I can't recommend this book highly enough, and not just because my attorney wrote it. Getting all the paperwork sorted out before hand is not exactly fun and creative, but if you intend to be a filmmaker, you also have to be a business person. Don't get stuck with a film that a distributor wants, but can't touch because you didn't get your clearances! Good luck in your projects!

DO YOU NEED AN MPAA RATING?

I'm not gonna tell you what my budget is for Spirit Camp, but I will tell you it's under $5 million. Of course no amount of money is going to get back the blood, sweat and tears... but $5 million is the cutoff for the MPAA in regards to their pricing structure. Seriously, there is a huge gap in their pricing...

I just got off the phone with them, and they are sweet as pie... but I couldn't talk'em down. Anything under $5 million costs $3000 to get rated. Okay, 3 grand isn't much compared to what I spent to get Spirit Camp to the screen, but still... that's the cost of a new Macbook Pro, or a helluva time in strip club.  Add that to my attorney's retainer fee, E&O insurance (if I choose to get it), and national advertising... it adds up!

What's worse... if you didn't have anything to do with the production or financing, it would only be $2500... but because I put my own money up, and directed it, I get hit with an arbitrary extra $500. Makes no sense.

And the kicker... I sure as hell don't want to pay 3K for an NC-17... not that my film's rated NC-17, mind you... it's a hard R. I've got boobs and blood, but nothing excessive. Still, it makes me nervous. Lets face it... there shouldn't be any rating beyond R. NC-17 just puts you in that category of film that papers won't run ads for, and some retailers won't stock. 

I love the MPAA, don't get me wrong... parents should be able to judge the content of films their kids see, but an "R" rating is clear enough that it is for adults - but that it is not porn...

Moving on... I don't think I will rate the film. Lord knows I always opt for the unrated version anyway... bring on the gratuity. It's not like Walmart is going to carry this title anyway...

Make art without compromises! Woohoo!