Hear Ye! Hear Ye!

Recently I’ve come across some interesting developments in the industry.  For one, Stacey Parks of Film Specific noted from her travels around Europe that many investors say they are having a hard time finding the ‘right’ projects to invest in. Her report further indicates that, “there’s more money than we know what to do with floating around out there looking to finance ‘Hollywood Independents.’  Quite a differing perspective from the myth that funds are scarce and thinly spread across the ever-increasing numbers of “in development” films.    The problem lies not with funds availability, but in successfully securing them.  The apparent problem I’ve, and many others have observed, is that filmmakers do not treat their projects as a business nor do they conduct themselves in a business-like manner.  I’ve said this in previous posts: your film is a product that needs to be positioned as an object to monetize.  The investors and financiers you are looking for have money, but they do not cater to panhandlers looking for a handout.  I want to apologize for my bluntness, but I won’t.  There is really no excuse for not finding money to “get the job done.”

Even without investors and bank lending (which is next to impossible, given the historically low or non-existent return on investment), indie filmmakers have plenty of options for generating their own funds: IndieGoGo, Kickstarter, and other Crowd Funding platforms.  This is no big secret.  All it takes is a seriously positioned campaign worth paying attention to.  With passion and determination, this can be achieved by anyone.  Even still, there are always new options in development.  Let’s say you create a teaser to use as advertisement on Vimeo.  Well now Vimeo has the option of using something call the Tip Jar.  Here viewers can show their appreciation and support for a video by contributing tips towards whatever objective the filmmaker has. I see this as another useful tool in campaigning for feature length financing.  And after the film is completed, Vimeo now, as Kyle Rupprecht of MovieMaker.com writes,  “enable(s) aspiring moviemakers to earn money from the films and videos they share on Vimeo.” through another new feature called Pay-to-View.  This is on Vimeo.

“Hear ye, Hear ye! 

The courts are now closed to griping!”  

A Watched Pot Never Boils

No doubt every filmmaker wants their film projected to the big screen in front of a large audience.  We dream about it every time we sit watching someone else’s film, thinking, “Surely if they could do it, then so could I.”  That is 100% true.  You can and should.  Your film deserves it.  Every film does.  The big screen is where it’s meant to be.  But it may not happen in your time frame or in your way. It may take years for your film to reach even one theater, and often at a financial loss rather than gain.  The ‘screen’ may not even be the screen you envisioned.  The odds for a marketed film in the U.S. to generate financial gain is roughly 3%.  “Wow.  Thanks for being such a Debbie Downer,” you may say.  “Why don’t we tuck our tails between our legs and call it a day.”  But let’s get real: The San Diego Padres have roughly a 0.0% chance of making it to the playoffs, and the Colorado Rockies are close behind.  Odds say they should hang up their cleats and shut the team down.  The Padres haven’t entered the World Series since 1984.  Then again, the Padres went to the World Series in 1984.  So did the Rockies in 2007.  Who’s to say they won’t again?  But besides that, what keeps a ball player playing when the odds seem stacked against them and the years between keep stacking up?  The love of the game.  And even if they never made it to the World Series again, the teams keep playing games because, for one, their fans keep paying. 

So how does baseball have anything to do with filmmaking?  Nothing.  And everything.

"A League of Their Own"

We live in a magnificent time of opportunity and versatility with regards to exhibition and distribution.  Your film’s ‘premiere’ doesn’t have to wait for funding or the opportunity to theatrically release.  Instead, outlets like IndieFlix, Distribber, and Distrify provide platforms for streaming play and instant download, equating sometimes to instant revenue.  Aggregators such as these branch out to major players like Hulu, iTunes, Amazon VOD and other streaming services, delivering your content to a wide spread audience.  You could approach the outlets individually, of course, but that's your preference - your prerogative. This isn’t a new revelation, but a reminder that the resources exist to, quite frankly, eliminate excuses.  Men all over the country, including Major League ball players, were called away during WWII.  Did that mean baseball stopped? No. The league worked with what they had to “get done what they had to get doing.”  It was about the game - not about the player.  Here, it’s about the film – not the venue.   Some day you’ll have your theatrical release.  It’ll be amazing.  Your twenty-dollar tub of popcorn will have never tasted so… buttery.  But in the meantime, “get to doing what you gotta get done:” show your film.  Because, “There’s no crying in baseball.” (Columbia, 1992)

Whose Permission Is It, Anyway?

It appears that everyone who has a camera can be or thinks he or she is a filmmaker.  The resources are such that make this realistically feasible for the financially deprived.  As digital distribution options grow plentifully on a global scale, getting your movie out and bringing money in becomes less of a pipe dream and more of a possible reality.  Micro-budgets and crowdfunding avenues make upfront costs shrink to a fraction of what it takes to make a Hollywood-level film, and the evolution of acceptable formats satisfy consumer pallets sometimes in 4 minutes or less (i.e. ‘webisodes’).  The rules have changed and the processes have simplified.  Truly, anyone who has even a cellphone camera can make the next Blair Witch Project or Clerks 4.0 – the reboot.  Still, as options increase so do legal complications.  New ‘Acts,’ policies and laws regularly crop up to ‘protect’ artists while conversely deterring them from producing.  What often deters artists from making a living with their craft is the multitude of legal hurdles to hike under and over.  I may be speaking blasphemy to the independent, rogue creative, but thank goodness for lawyers.  Without them, our ignorance may make the difference, as Ana-Klara H. Anderson of the law firm of Thomas & LoCicero PL says, between bank or bust for an artist’s labor of love.  Without legal protection front-loading, she says, “You invest a lot of time, money and creativity only to be stopped in your tracks.  All that hard work would be for nothing.  It could bankrupt the work.”

So what types of IP protection should a filmmaker consider before a film captures first light?  According to Dr. Anderson, the producer should own every piece of intellectual property associated with their project.  This includes the copyright to the creation itself as well as the right to use the idea, concept or work for post-production purposes (i.e. distribution and exhibition).  It is similar in the music business to the difference between an artist’s musical work and the sound recording of that work itself.  Permissions are required for both.  Other assets that need protection are sound, script, music and the right to use the title.  Yes: the title.  The film’s title becomes its trademark, captured in a catch phrase as its identifier.  Also, if a filmmaker desires to place specific products within the film for funding, permission needs to be secured before – not after the fact.  These points seem obvious, but they wouldn’t need articulation if filmmakers practiced them.  Obviously. 

Smokey Says...

One of Dr. Anderson’s points stood out poignantly in its obviousness: Filmmakers contract with actors to employ their ‘product.’  An actor’s performance secured in a tangible medium, i.e. film, is a copyrighted product.  As such, permissions required are dependent on variables, variables Dorothy Fadiman, a social change documentarian considers based on the situation.  In an interview with Tony Levelle of MicroFilmmaker Magazine, Dorothy says there are two releases she acquires for each shoot. “’The first is a “model release” or “signed permission form” from each [talent].”  She says the two are important for both the film itself and for publicity afterwards.  All permissions, Fadiman says, are designed not only to protect the artist but also the filmmaker.  Dr. Anderson concurred.  She stressed the importance of “memorializing things in writing.”  Word as bond holds no water in court and, from history, intellectual property disputes are diverse in their frequency.  This is why seeking legal council for permission review and advisement is an essential investment.  Tony Leville echoes this in his MicroFilmmaker article by saying, “the money and time you spent finding and talking to an entertainment lawyer could very well turn out to be the best money you spent on the entire production.”  I’m a fan, Tony.  I’m a fan.  Glossing over the legalities associated with filmmaking, out of complacency, is a dangerous tightrope to dance on. 

My interview with Dr. Anderson was both informative and reassuring.  Reassuring in the sense that all the textbook warnings and formal education I’ve received are true.  We, as artists, pour our heart and soul into our craft.  It takes tremendous self-investment to turn a vision into reality.  It may be true that all capable thought and effort is spent on its creation, but that is no excuse for disregarding legal formalities and laws.  The hassle is no hassle if viewed as a shield and protection for both you and the work itself.  In the immortal words of Smokey the Bear, “Only YOU Can Prevent Forest Fires!”  Boy I hope using that tagline passes the “fair use” test.  I might need to consult my lawyer on that one.

Ana-Klara H. Anderson, Ph.D, Esq.

In 2009, Ana-Klara earned her law degree from the University of Florida Levin College of Law and her Ph.D. in Media Law and Policy from UF's College of Journalism and Communications.  Ana-Klara has authored numerous articles for media law publications and has been a frequent guest lecturer throughout the southeast on First Amendment and media law issues.  In her commercial litigation practice, Ana-Klara litigates commercial disputes for corporate clients, including contract disputes, class action defense, business torts and related areas. She also prepares and reviews contracts and other documents related to business operations and management, with a particular emphasis on the arts, entertainment, and publishing industries.

Areas of Practice:

Media/First Amendment Law

Contests & Sweepstakes

Corporate Litigation

Arts & Entertainment Law