BY ROBERT LABATE
Last month, I suggested that there are four essential phases of independent film production (that is, Formation, Financing, Implementation and Distribution) and provided examples of significant producer concerns with respect to Formation and Financing. Now it’s time to review the "Implementation" phase of film production and to discuss a few issues which can make or break your project.
A reminder: As discussed last month, film production requires as much engineering skill as artistic talent and, like any well-run construction project, you must plan for each phase of production long before you arrive there. For example, the intended distribution of your film will (or should) affect your decisions regarding what actors, screenwriters and other film professionals you use, how long your film will be, whether you use 35mm film stock or digital video, and what waivers and clearances you need to obtain.
Each entertainment market (such as domestic theatrical release, documentary, foreign theatrical release, video release, commercial broadcast television, cable and internet, to name a few) has its own set of norms which you violate at your own risk. You don’t want to take the time or incur the expense of producing a film suitable for domestic theatrical release, if your likely market is home video. If you didn’t plan correctly, your distributor will require you to reshoot, add a new sound track or substantially re-edit your film before releasing it to your target market. So either plan ahead or be prepared to go back onto the set or into the mixing room before you receive your first advance.
Implementation
Creative issues aside, this element includes a wide array of talent, crew, underlying story, screen writing and composer contracts as well as clearance of intellectual property rights for any copyrighted or trademarked material used in your film. For example, a typical independent film will involve many of the following agreements: literary option/purchase agreement, screenplay option and rewrite agreement, copyright assignment for copyrighted works, location releases and waivers, original music composer deal memo, materials release agreement (for embedded copyrighted materials), performer attachment agreements (if applicable), lead performer deal memos, performer standard terms and conditions, line producer agreement, production assistant agreement, crew deal memo and releases, director deal memo and full agreement, independent contractor releases, extra performer release and waiver, music synch licenses, artwork use agreements (if applicable), special effects agreements, life right acquisition deal memo (if applicable), master recording licenses, insurance agreements, location permission agreements with governmental entities, equipment rental agreements, studio/stage rental agreements and film laboratory agreements.
This is not an exhaustive list, but it illustrates the large number of issues that will demand your time and attention. It is very important that you have a signed contract, waiver or release from everyone who touches your film, before that person works on your film, whether that person is the key grip or a lead actor. And since everything takes longer and costs more than you expect, allow for ample time to negotiate.
Your budget, SAG requirements and the proposed market for your film will (or should) determine how much you spend "up-front" for your actors, writers, material and music. You should understand that every "above the line" professional (whether writer, director or actor) will ask for a percentage of your profits (either gross or net depending upon their leverage).
If you have high aspirations and a budget to match, you will be negotiating lead performer agreements with East Coast and West Coast agents who will seek to improve their client’s position. Once you reach agreement with respect to the major issues such as up-front payment, back-end payment and credit, the rest should fall into place. But expect challenges with respect to guaranteed production periods, transportation, expense allowances, accommodations, publicity rights, credit, merchandising, dubbing and additional services such as pre-release publicity. These are not simple or short negotiations and anticipate that you will receive calls from agents if the lead actor is not satisfied with his or her treatment.
Music is an essential element of most films, but it is frequently addressed only in post-production when there is little money and almost no time to negotiate. The other problem is that a music synch license for use of well-known songs in a feature film can cost hundreds of thousands of dollars (or more), well beyond the budget of most independent producers. On the other hand, music supplied by a friend or a local group may contain portions of other people’s music (called sampling) and it can cost a bundle to "clear" the rights for such musical snippets and your low-cost music could end up costing you money.
One solution is to consult with (and possibly retain) a music supervisor early in the production planning process. The supervisor’s task is to find the music you want at a price you can afford and to make sure that the rights to use such music are cleared in a manner acceptable to your distributor. Finding the right music takes time, so start early.
During the next three months, I and two other lawyers (Tim Kelley and Nancy Fallon-Houle) will conduct a three-part seminar entitled "From Concept to Film Festival–A Series on The Business of Film Production" co-sponsored by the Independent Feature Project and by the Chicago Academy of Visual Arts. More information is available at CAVA’s Web site or you can contact the Independent Feature Project at 312/435-1825.
The last aspects of independent film production, distribution, will be discussed in my next column.
© 2000 Robert J. Labate. This column is provided as a source of information and is not to be construed as legal advice or opinion. You may contact me through my firm's Web site (www.defrees.com), via e-mail at rjlabate@defrees.com or, via mail, to Robert J. Labate, Defrees & Fiske, 200 South Michigan Ave, Suite 1100, Chicago, Illinois, 60604. 312/ 372-4000. All individuals depicted or described are fictional.