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

The Puritanical Debate: Film versus Digital

Since its inception, digital image capturing has faced serious resistance from film professionals - both in still and motion.  The argument being film tangibly preserves an image while digital is a simple rearrangement of ones and zeros. Yet digital is heralded as the next evolution of the art form.  My point of view is that shooting films on film is the highest form of the art because it requires a higher degree of professional expertise.  But when a top director, Martin Scorsese, not only shoots digitally but also in three-dimension (something many pass off as gimmicky), it makes me think twice.  Part of me wants to scream, “Sell Out!”  While the other part, the side that reveres Scorsese, gives him a pass.  There must be something to it if Scorsese, director of the gritty film Raging Bull, takes a leap towards it.

gizmodo.com

 Even so I still prefer film to digital.  Never mind that I own three digital cameras (DLSR, HDV and iPhone 4s).  Don’t judge me.  I have what I have because of production and post-production costs.  In managing a motion media product, I am constrained to my budget – or the lack thereof.  Had I the choice –and the means - I would choose film.  Is it more complicated? Yes.  Is it more costly and time consuming?  Yes.  But I’m a purist in my opinion that images captured on film are real.  Images captured on digital are not.  You catch a crappy image on film – it is what it is.  Honesty.  You catch a crappy shot on digital?  Just hit delete and no one will know.  Janusz Kaminksi, one of Steven Spielberg’s regular cinematographers interviewed with the LA Times, saying that digital makes for a lazy photographer.  I concur – from experience.  “When I was your age….” (and I’m only 30, mind you), I learned to shoot photography with a film camera.  My training took me from black and white, to color and then to slide film, working each in the darkroom and on the light table for hours.  The smell… the feel…. The frustration of seeing my mistakes slowly reveal themselves under the chemicals… It was a process to process. But that time spent made me a better photographer by motivating me to ensure I wouldn’t make the same mistake again.  Importantly, if not more in this context, is the fact that film capturing was a very organic experience. You could literally capture a piece of life, recording it into the emulsion of the film.  Photography and filmmaking are much different now.  

photo.net

Instead of perfecting exposure and camera control, shooters “Chimp.”   ‘Chimping’ is when a photographer shoots a shot, look at the LCD screen or monitor, shoot the shot, look at the screen… adjust settings (or just leave it on auto)… shoot.  Look at screen…. Etc.  It’s why Kaminski laments digital as “the death of the cinematographer,” and creates a co-dependent relationship between the photographer and the review button.  Kaminski continues, “If you see the image on the digital screen I think people become lazy, they get satisfied with just seeing the image, they’re not going for visual panache, not getting the story through metaphors… With film there is still mystery.”  Gone is the confidence that comes with knowing what, why and how a shot is captured.  I won’t lie and say it hasn’t happened to me.   My discipline died when I drank the ‘chimping’ punch.  A ‘sin’ I will never forgive myself of.

But you can’t ignore the fact that digital is here to stay, and professionals like Scorsese and Cameron are on board.  It would not be prudent to push against a bullish trend, but maybe converge the two artfully.  Newer digital cameras are capturing on 4K sensors and projecting “as-is” onto the screen.  Examining the process of traditional 35mm filmmaking and distribution, multiple duplications and projections actually downgrade the film to 1K by the time it reaches the screen.  Audiences have never really “seen” a 4K film in the theater.  Even so, there is still something organic about seeing a movie made from film.  But according to Filmmaker Magazine (Spring 2012 Issue), there is a new generation of filmmakers who hate the texture of film grain.  They are annoyed by small imperfections or the act of looking into a separate world rather than participating in it.  I don’t see that as a bad thing.  We often watch a movie to escape… to see and feel something not akin to real life.  Digital… just makes it too real.  Maybe it’s the way we “old-timers” (again… I’m 30 years old) grew up.  The story of film-making may soon be relegated to rocking chair conversations being reminisced from the front porch.

Pro8mm.com

Fortunately there are companies still trying to preserve the art of ‘real’ filmmaking, while at the same time marrying film and digital for more efficient post-production workflows. Pro8mm out of Burbank, California is a full-service procurement, rental and processing house for 8mm and 16mm film.  They stock a self-invented Super 8 negative film (16X9) along with Super 8 and Super 16 cameras re-engineered for practical use.  Pro8mm creates digital masters of the film while preserving the look and feel of its original capture.  No I do not work for Pro8mm and no I do not get a cut for ‘selling’ them.  More or less, I am selling the idea that film is not dead.   But Super 8?  Whoa.  Who talks about Super 8 anymore?  Apparently  J.J. Abrams and Steven Spielberg do. It may take a bit more effort to proselytize its enduring viability, but making films with film is still a valid and valuable medium to work with – a resource professionals persist in using when managing the product of their film.

Links:

http://articles.latimes.com/2012/feb/19/entertainment/la-ca-oscars-cinematography-20120219

http://www.filmmakermagazine.com/news/2012/04/good-things-in-smaller-packages-large-sensor-motion-picture-cameras-a-year-later/http://www.pro8mm.com/our-mission.php

Filmmaking as a Contact Sport

Website for this image

When I think of contact sports, I think of activities like football, boxing… and sumo wrestling.  But how do I equate contact sports with filmmaking?  They are synonymous on various levels.  Throughout my life I’ve analyzed and intellectualized why one movie reaches me but another does not.  How does a film “reach out and touch someone?”  On three levels: the mind; the heart; and the wallet.  This applies to both the audience and the filmmaker, but for this discussion I’ll focus on the latter.

           

The mind: 

Someone once said that filmmaking is the only blue-collar art form.  When we think of art, one may think of passionate flashes of inspiration out of the nothingness and struggle of life.  That may be true for the initial idea of a story materialized into a film, but the work that goes into its production takes persistent thought coupled with manual labor.  It is multi-faceted, laborious and dynamic.  To make the film work, a filmmaker has to think on specific, yet complex concepts simultaneously.  Because of its complexity, a film takes many hands to keep the machine moving.  Yet each requires timely thinking and attention detail.  What’s interesting is that even the smallest, seemingly lazy thought manifests itself, even by association, in the film.  Something to chew on: if the craft service sucks (i.e. stale bagels and cream cheese that are not complementary… like blueberry and chive spread), then actors and crew are not properly fed, resulting in lethargy and/or grumpiness, which then affects performance and proper tracking of details – like follow focus.  It takes a great deal of present thought to make a film.

The heart:

Filmmaking requires long hours of contribution.  Sometimes those hours are not equally spaced in a healthy way.  Sometimes things don’t go as planned.  Sometimes the crews you have to work with are difficult.  Whatever the challenge, a heart for the art and a belief in the project are what carries filmmakers through to completion. 

The wallet:

Filmmaking is an expensive hobby and/or marginally profitable career, at best.  It’s expensive.  Plain and simple.  (See above for motivation)

But never mind what it takes to contribute.  The outcropping from successful completion reaps rewards regardless of what profit it generates.  I turn my attention back to contact sporting.  Training for any sport is hard an often painful.  The muscles stretch, the mind fatigues and the heart tests.  What keeps an athlete going? A number of factors: satisfaction of completion; the winning catch; or knocking the thoughts out of someone’s brains.  Whatever the reason, there is a reason.  And whether the athlete wins or not, they still come out on top.  Why? Because their mind and heart have been expanded.  I submit that the same occurs in filmmaking.  You are challenged and tested beyond the ability you had at the outset.  You overcome fears and doubt.  You test your resolve.  You learn about yourself, others and about humanity by examining the human condition.  We are not on this earth merely to exist or to be acted upon – but to act; to grow; and to multiply what portion we have received.  Filmmaking touches a person.  For better or for worse, it touches them – leaving its mark.  To me, that’s worth every penny spent. 

So I venture to say the responsibility lies with the filmmaker in choosing what film to make, because it will inevitably affect the person they are and become.  You may not agree nor see value in this argument, but I have an intimate relationship with how affective the moving image can be on a person.  For a few years I was a combat photographer and videographer.  I spent six months documenting infantry life and operations in Iraq.  It was hard work living, breathing and acting as if I was one of them.  But I did what I had to do to get my shot.  I did what was necessary to tell the story.  As a result, shooting that footage made a profound impact on me – for good and for bad.  I am forever changed because of that experience.  And for that I am grateful, because my abilities, heart and resolve wouldn’t have uniquely grown without it.

Making pictures move is definitely a contact sport.

"It's Not About You"

Negotiations occur every day.  Sometimes we negotiate with ourselves over simple tasks like going the gym in the morning, in the evening or not at all.  Cost-benefit analysis of each decision is usually based on preset goals and commitments.  When two parties negotiate, they ideally work towards mutual gain within a proposed project.  Knowing yourself and knowing your project from the outset sets the tone by determining direction and focus. When interviewed, Jenna Edwards, Producer of the film, “April Showers,” and Producing Advisor for The Film Method podcast, spoke about the importance of also knowing with whom you are negotiating. “Know your investor.  What do they want out of this project?  Are they the right fit for the project?  Look at it from their point of view.  What is their ultimate goal?”  Still, clearly defining what the project is and where it is going takes precedence.  But if either party does not understand or see the project’s vision, an end decision cannot be effectively met. 

5th Element scene: Negotiation

Film productions often involve heightened emotions.  Many of the projects are personal in nature, and new filmmakers have a strong desire to land their “big break.”  But these elements have a tendency to cloud deal-making discussions.  You may have a well-known industry talent sitting in front of you, but if they aren’t the right fit for the project, it’s better to walk away than succumb to the emotions of the moment.  Instead, focus should rest on the interests of the project rather than the positions of parties involved.  Jenna advises filmmakers to follow their gut. “It’s not worth it if the deal doesn’t benefit the project.  You want to build on integrity first.  Trust your instinct.” Roger Fisher writes in Beyond Reason, “The difference between having a core concern ignored or met can be as important as having your nose underwater or above it.”  Building the wrong team on the wrong terms not only creates future hassles, but also increases the likelihood for conflict down the road.  Each party comes to the table with individual roles, goals and expectations, which should be respected with equality and autonomy, but deciding what is best for the project is paramount.  It can make the difference between the success and the failure of a film.

Film Tax Incentives: Roll the Credits!

State tax incentives and credits are a hot topic on the minds of all filmmakers these days.  A war wages between two perspectives: entitlement and excess, with each side arguing their views on incongruent grounds.  One side argues the tax credit is a waste of resources, calling for the elimination of film incentives all together.  The other side says without state incentives, film production would move out of state or out of the country – taking jobs with them.  Films take flight elsewhere for two reasons: artistic and economic.  Nobody can help the artistic factor of flight.  But if the states were to eliminate film incentives all together, the production would go to where the benefits are: other countries.  There is definitely an unhealthy “race to the bottom” between states vying for the filmmakers’ attention.  But because tax incentives are prevalent throughout the world, it would behoove the United States to create programs that encourage homegrown films.  After all, according to Select USA, the U.S. leads the world in film and music recording revenue.

 However, there are some sustainable truths to the arguments against film tax incentives.  Mark Robyn, Staff Economist for the Tax Foundation wrote that, in some states, a film tax credit is an excess expense.  “Though there are embarrassingly few of them, the studies that use more realistic assumptions and take into account more economic effects have always showed that states lose money on film tax credits. “   One of the main arguments for incentives is that they draw production business to states that would otherwise never see a film crew.  Robyn argues that whether there is a credit or not, films will still be made - especially in places like California.  Therefore, California should not be spending state funds on film incentives – especially in the economic position the state is in.  Another argument states that film productions should receive credits based on their being an economic multiplier.  This is a one-sided argument, seeing how economic stimulation from new business is not unique to the film industry.  So why shouldn’t new companies, based on this comparison, receive similar credit?

I argue that they do.  From the Small Business Development Center’s website:

“America’s entrepreneurs and small business owners continue to grow their businesses and create jobs due to unprecedented tax cuts that have been signed into law over the past two years. This includes billions of dollars in tax relief from laws such as the Recovery Act, the Small Business Jobs Act, the HIRE Act, the Affordable Care Act, and the Tax Relief and Job Creation Act.

Zero Capital Gains Taxes on Key Investments in Small Businesses

•   Capital gains taxes have been fully eliminated on certain small business stock – providing an incentive for key investments in small businesses.

The Recovery Act excluded 75 percent of capital gains from the sale of certain small business investments held more than five years. The Small Business Jobs Act went one step further – excluding all capital gains from these investments in 2010 after the passage of the Small Business Jobs Act from taxes.” (SBDC.gov)

http://www.enloop.com/blog/small_business_spotlight_davidson_films

The site page continues in listing nine other tax break or credit benefits as part of its “Fact Sheet: Tax Breaks for Small Businesses.”  So what’s the correlation?  Filmmaking is a business.  Each new film is, in essence, a brand new start-up small business, with the producer acting as lead entrepreneur.  Both take risk, and both suffer from a high rate of failure.  According to statistics, 96% of small business start-ups fail within the first year.  Only half of the left over 4% survive more than four years.  Alexander Malyshev, Former editor of Media Law & Policy wrote, “Put simply, most films lose money, but nevertheless hundreds of films are produced each year – almost in defiance of the laws of supply and demand.”  He’s referring to the roughly 600 films of which only a handful generates big-ticket success.  A little over 500,000 small businesses are registered every year.  96% of that is… 480,000, leaving a ‘handful’ still in existence.  Wisconsin Commerce Deputy Secretary Aaron Oliver says the number of jobs generated by film production is finite. “[It is the] ‘least effective’ economic tool… if we had to choose, we could get one full-time job on a film for one year or we could get twenty factory jobs that might last for 20 years.”  Our present economic reality says different.  To argue that the opportunity cost for government spending on film tax credits is a non-productive use can be applied just the same to small business ventures, given the rate of failure.  When 96% of start-ups fail after the first year, why shouldn’t the same employees of those failed businesses join up with a film crew that comes into town?  Their ‘job security’ will be about the same. 

Still… there are more accountability measures that keep small businesses responsible than there are for film productions.  I agree with Robyn in that the budgetary treatments of film incentives should be more transparent. However, I do not agree with Robyn that film credits should be lumped into education and public health spending categories.   Instead, registrations and answerability measures should be emplaced if filmmakers are to seek tax breaks.  I think a major factor in film revenue failures is that filmmakers do not treat the production as a business.  They do not value it enough as a product by which money is made.  A major factor of success in business includes not only money and crew, but also education, experience and a reason – or purpose.  Filmmakers would do well to learn something about business and how to plan for long term revenue goals ­in addition to cinematography, casting and craft service.  But how do you measure the intangible, or as OCU’s economist Kyle Dean says, “an inexact science?”  Implement tax liabilities and assign risk premiums based on track records of producers and production companies.  Then maybe filmmakers will think twice about pouring state money into a love-child film. 

There is nothing wrong with taking risk when creating art, just like there is nothing wrong with giving your best shot at starting your own business.  It’s the American Dream.  But there is something wrong with misusing taxpayers’ dollars.  That I can agree on.  It doesn’t help anybody to fuel the growing assumption that all film producers are solely interested in chasing the biggest and most lucrative tax incentive.  It also doesn’t help to argue predominantly on the ‘glamour’ factor that films bring to varying states.  In my opinion, that comes from a weak and condescending attitude.  Argue instead that you, as a filmmaker, are an entrepreneur.  Therein lies the entitlement to state and government support – just like a small business.  The clout and respect will come – only if you treat it like a business.