5-14-04
BY KRISTEN FLIGEL
How many producers does it take to make an independent film? Producer titles include "creative producer," "line producer," "associate producer," "executive producer," "co-producer" and just plain "producer." Sometimes a producer is the originator or founder of a film. Sometimes she is a visionary who procures the rights to literary properties that are the basis of a film. Sometimes she is an investor or financier. Sometimes she is a technical on-location logistics manager or even a special assistant to a director or talent. In fact, sometimes people called "producers" don't perform any customary producer function.
As you consider how to divide and conquer producer functions for your independent film, consider the value that a good executive producer, whose functions might intersect all of the above, can be bring to your production. A few questions and answers regarding executive production services:
First, why should you hire an executive producer for your film?
An executive producer is most often hired to arrange for financing and distribution of your independent film. Because the details of financing and distributing your independent film are—or should be—intertwined throughout the entire filmmaking process and because almost all details of filmmaking can impact both financing and distribution, the person who supervises these two details is crucial. In fact, a really good executive producer can help you through certain aspects of each stage of filmmaking—from pre-production through post-production.
Pre-production
A really good executive producer can help establish a budget, develop your script, select a good producer's rep, prepare the production schedule, work with legal counsel to provide information for the prospectus or private placement memorandum for the film, write the film's business plan or marketing materials, obtain the best available talent at reasonable prices, assemble and manage a complete crew and staff, negotiate with unions and guilds, scout for shooting locations and approach potential investors.
Production
During production, your executive producer could assist you in supervising principal photography, maintaining and amending the production schedule and managing location and shooting details.
Post-Production
In post-production, a quality executive producer could assist you in supervising editing and sound mixing; supervising music and acquiring music and other intellectual property rights; delivering the final answer print; contracting and negotiating with distribution companies and foreign sales companies to distribute the film in all media throughout the world; and even work on a soundtrack album, and merchandising or other specified ancillary distribution.
What will it cost you to hire an executive producer?
Executive producer deals vary a lot depending upon the skills, sophistication, leverage and experience of the parties and the desire of the executive producer to work on a specific film for non-monetary reasons. A comprehensive executive producer compensation package includes an initial fee, some form of profit participation (2-15 percent), an executive producer credit in the main titles, and reimbursement for actual out-of-pocket expenses such as phone calls, courier fees, postage, copies, faxes, parking fees, festival entrance fees, screening rooms, print shipping and travel expenses. In some cases, an executive producer will require a lien on revenues received from distribution of the film and proceeds from any contracts related to the film.
How long will it take an executive producer to complete his or her services?
Executive producer deals will vary a great deal in length and will often depend upon the agreed executive producer services, the budget for your film, the availability of funds for production, the number of investors and the amount of the total budget each investor contributes. The term of an agreement could be one to two years, depending upon the parties and the particular film.
What should you require of your executive producer?
First, you should require a time commitment to your film during which she'll provide "exclusive services" for you. Second, you should require services that closely correlate to the executive producer's past training and experience, since some executive producers will not be experienced in all of the above services—which means that your selection process should be thorough and you should ask tough questions. Finally, you should hire an executive producer for fundraising purposes only if she expresses knowledge about the process and past experience in doing so, and if she has a healthy respect for securities laws and agrees to consult with appropriately trained legal counsel before approaching potential investors.
What producer credits can you offer?
Producer credit is a unique animal. The Producers Guild of America is not recognized as a union or a guild by studios, so they've not entered into collective bargaining agreements that restrict how credit can be allocated. As a result, whether you are working with a studio or not, producer credit, including executive producer credit, can be freely given without restriction. (This is why people who get producer credit sometimes have served no actual production function.) But this also means that you can be creative in your award of credits, and that your executive producer can be creative in her requests for credit. Nevertheless, credit should be given intentionally and with great consideration, and remember that whatever credit you provide must be backed up by appropriate written documentation. Your distributor and your insurer will request documents regarding each individual who receives credit in your film.
Finally, find your executive producer based upon recommendations from talented people you know and trust. Do your homework on potential candidates. Interview them thoroughly. Ask for (and check) additional references. Be certain that your work and communication styles are compatible. Finally, before you proceed, decide upon services, term, compensation and credit for your executive producer and document these and all other terms of your arrangement in a written agreement.
©2004 Kristen E. Fligel. This column is provided as a source of information and is not to be construed as legal advice or opinion. You may contact me via e-mail at kristen.fligel@hklaw.com or via mail to Kristen Fligel at Holland & Knight LLP, 131 South Dearborn Street, Suite 3000, Chicago, Illinois 60603, 312/263-3600.