Most people in film are living on a hypothetical, as in, ‘hypothetically we can make this picture and then we can hypothesise that we make some money and then we can hope to keep our shirts.’ ‘Kitchen Stink’ was a winner for the ADG audience, as Mark Poole reports.
This session of the ADG mini-conference on Directors’ Rates, Rights and Revenue, in conjunction with the Melbourne International Film Festival was moderated by Sandy George. Panelists were lawyer: Greg Duffy from Frankel Lawyers, Agent: Jane Cameron, Producer: Vincent Sheehan (Prime Mover, Little Fish, Mullet) Directors: Matt Saville (Noise), Daina Reid (I Love You Too), and Geoffrey Wright (Romper Stomper, Macbeth).
The topic was negotiating contracts and posed the situation where producer Robyn Steele is negotiating with writer/director Ms Schaden Freude for a feature film Kitchen Stink they’ve both been working on for some time.
Despite having producers and directors on the same panel discussing rights, revenue and remuneration, there was an atmosphere of politeness only occasionally broken as when Geoffrey Wright decided to name a producer he once worked with who had a serious drug problem. “I still resent the fact that he gets residuals from that film,” said Geoffrey.
It was pointed out many times during the session that forming a professional relationship on a film is much like getting married, and Geoffrey opined that if there are problems on the honeymoon, there are going to be big issues further down the track.
Responding to Sandy’s hypothetical scenario that producer Robyn Steele lobs the final director’s contract to Ms Freude a few days before Christmas with the admonition that it must be signed immediately or the finance will fall through, Geoffrey said you’d have to ask yourself whether Steele was acting out of malice or stupidity.
“If it’s malice I’d cease all dealings, and let the option lapse. Because if she’s applying these tactics now, it’s like in a marriage if things are bad in the honeymoon it will get ten times worse later.”
Questioned about if Wright would really let the project founder at that point, he replied in the affirmative, because “It’s not worth getting into any kind of relationship with someone like Steele.”
Geoffrey added that directors can panic when an offer is on the table as it’s so unusual that they will do almost anything to make it happen. For him, it’s a mistake. “If the material is good, the project will get up.”
Wright added that he didn’t believe there were good scripts out there that haven’t been made. “I don’t believe it. Good projects do get up.”
Lawyer Greg Duffy agreed. If Steele is operating out of malice then the director shouldl walk away. However Daina suggested that you won’t find out it was malice until the end of the project, especially if Steele is a seasoned operator.
Matt Saville pointed out that if Steele’s film is about to be greenlit, in the Australian context the producer and director would have had a relationship for the previous five years. He’s been in a ‘relationship’ with his producer, Trevor Blainey, for eight years now on two films (Roy Hollsdotter Live and Noise.) “I know why he is doing a certain deal, and if he’s asking me to take a deferral I know he’s taking the same one.”
Daina commented that a beginning filmmaker is more likely to say yes to Steele’s deal on the spot.
Vincent Sheehan attempted to inject some conflict into the scenario by suggesting that Steele has been working night and day for months to get the film up, and if she says that the contract must be signed to keep the deal in play, then perhaps she’s right. “There must be a reason why the agreement has shifted terms,” said Sheehan. “Perhaps it’s financing, and there are various investment parties who have hit Robyn with a situation which she has to negotiate with the director. I’d advise Robyn to go over the structure of the financing with the producer, so she is aware of why the agreement has changed.”
Matt remembered that the finance fell through on the Saul Zaentz/Anthony Minghella pic “The English Patient,” where Saul was forced to renegotiate the finance while the cast and crew were marooned in Tuscany, working for a month on no money (but I bet the catering was great!)
Agent Jane Cameron said that since both producer and director had to work together collaboratively they had t sort out their difference, and if they can’t do that then they have a problem. She also suggested that a deal memo written at the outset would have at least framed the key points as a basis for negotiation.
“No is a very powerful word, and people should get used to saying it,” said Geoffrey. “There’s a culture of getting the show on the road any way you can, and this can be a big trap.”
Greg Duffy mentioned that you don’t have to waive your moral rights, and anyone who says you do is speaking rubbish. On the other hand, retransmission rights can be more complex. “Unfortunately some producers have asked directors to assign their retransmission rights to producers. But Screen Australia is now saying they don’t have to.”
The discussion moved to whether directors could elbow their way into a share of the producer’s offset. Vincent Sheehan was very clear: “It’s called the Producer’s Offset for a reason.” He added that there is usually no way for a producer to earn any money from a feature film. “Usually your fee goes into the production. Producers cannot become stronger under this model. Finally the Producer’s offset offers a way for producers to make money. So who’s getting into production now? Distributors.”
For Geoffrey, this is one reason why all directors should become producers, or at least co-producers. Vincent agreed that’s a valid way to go, but directors should be prepared to take on the burden of all the things producers have to do for ten years after the film is completed.
Greg Duffy commented that the idea of directors turning producers is one way of ensuring that they are aware of the finance plan. “I’ve seen lots of writer/directors who are asked to sacrifice their fee on a passion project, but they are not shown the complete finance plan and therefore they don’t know who else, if anyone, is also taking a haircut.”
Greg added that a film always has two vital financial documents – the first one detailing the finance going into the film at the outset, and the second one explaining how returns are distributed at the back end.
Sandy raised the vexed issue of final cut. There was general agreement that directors should have the right to do a director’s cut unhindered by the input of the producer. On the other hand, the right to final cut has to vest in the producer, so that the investors can be reassured that even if the director goes ‘mad’ the film can still be completed on time and on budget.
There was also general agreement along the panel of the need for getting trusted collaborators to provide feedback in the editing room. “You have to ask yourself if you’re delivering on the promises you made to the investors 18 months ago,” said Geoffrey. “You’ve got to take the high ground and hold it. And that’s why you’ve got to take responsibility by becoming one of the producers.”
Test screenings are also crucial to the process. Matt Saville told how they did a test screening on Noise and the audience reaction was mixed at best. This was prior to the sound design, and the creative team decided to take three key scenes and do a sound design on them and retest the film, and suddenly it worked.
Geoffrey exhorted the audience to become represented. “You need a lawyer,” he said. “Agents can be distracted, they may have more important contracts than yours to deal with. It’s irresponsible of you to believe that your agent will do everything you need. You have to monitor it yourself, and have a lawyer to call and ask a question if you need to.”
And there was consensus that if production is like a marriage, you need to be careful who you date. As Jane Cameron concluded: “In the end it’s the relationship that makes the marriage, not the contract.”
Greg Duffy added finally that directors can always get advice from the ADG if they’re in any doubt about their creative and economic options. And that was a suitable conclusion to a great session.
ADG Conference: hypothetical for an industry of dreams
by: Mark Poole
Friday 31 July, 2009