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December 16 2010
Saskia’s Guide to Producing: Getting Your Ducks in a Row
This is a series of posts delving into the gory details of what it takes to produce an independent film. Covering the entire process — from development to fundraising, production, distribution, online strategies and beyond — they will be written in real time, from first hand experience, as I go through the process of producing the tentatively titled ‘Ambergris’, a feature-length documentary about perfume, to be directed by the inimitable David Casey.
STEP 2: GETTING YOUR DUCKS IN A ROW
LEGAL & PAPERWORK
This three-part post will consist of a step-by-step plan to get you ready to start further development and pre-production on your film.
Today I am posting about production development, specifically, about the legal issues and paperwork you should have as you start development. This is a phase I like to call ‘production development’, and for a producer, it is almost as important as the creative development process.
The first goal of the production development phase is to be sure you are all set from a legal standpoint to start fundraising. This phase, of course, would be happening concurrently or perhaps slightly after the creative development phase, as there is no point in creating the paperwork for a film with no story.
Thus, step one, of course, is to obtain the services of a lawyer. Ideally, the lawyer will be open to working pro-bono until you have your first round of funding in, but if not, pay for one. It is worth it – at this stage – and will save you headaches later on.
I. LLC:
An LLC for your film, through which you can take money and pay money out, and locking in the core production partners in an operating agreement (which will elucidate who is primarily responsible for what, and who is contributing what- this can include intellectual property such as a script or an idea, money, time).
An LLC will also provide you with an EIN (Employee Identification Number) and allow you to track your expenses for the IRS.
Please note that there are potential issues with an LLC if you intend to crowdsource some of your funds. It is too complicated to try to explain here, but be sure to mention this potential fundraising strategy to your lawyer, and she can look into it for you.
II. CONTRACTS:
Contracts or deal memos for your existing partners, elucidating deal points and revenue share, as well as intended title in credits. This includes the core team of people and any peripheral people you have milling around the idea – including yourself!
If you do not have time to create these contracts or deal memos, and your partners are chomping at the bit to start hustling, either tell them they have to wait, or BE SURE to — at the very least– write out the deal points in the interim. It also helps acknowledge at this point what they have brought to the film thus far, as well as to set expectations for what you hope they will bring to the film in the future.
Below are some examples of some deal points you may or may not want to include, that I have come up with. Please remember that I am not a lawyer, and it is a WAY better idea to consult your lawyer than just to copy these. I, for one, am consulting mine.
In the meantime, these are some things you can look into offering.
Commission: X% of monies raised
It is important to note that – in most cases – this should not include a percentage of in-kind donations or services that do not result in cash in your bank account. This is because it will be impossible, for instance, to pay off X% of a free camera rig valued at $20,000 if you have $0 in the bank.
Equity: X points in film (thereby X% of profit made as a result of distribution and merchandising, just distribution, just online distribution, or however you want to divvy it up)
Points are typically percentages of NET profit of the film AFTER everyone has recouped their costs. Read here for more information: http://forums.creativecow.net/thread/17/867840 or http://www.indietalk.com/showthread.php?t=10545
Payment: Salary of $XX,000.00 contingent upon the production receiving its full budget of $XXX,000.00
Be sure to note what happens if the production doesn’t meet the full budget. For instance you could offer a percentage deal: If the production brings in 70% of the full budget, the production will pay out 70% of the salary amount, and so on.
Title/Credit: For example, an ‘Associate Producer’ Credit in the titles
Be sure to note that this title will be contingent on the meeting of an expectation, so you don’t get into the typical indie trap of people claiming titles they’ve done nothing for. Conversely, you can set higher expectations with the potential of a ‘better’ title, so if the individual over-performs, they are duly recognized.
For instance, you could specify that a given title is contingent on such things as:
- Successful raising of a certain amount of money
- Providing goods and services equivalent to a certain amount of money, such as equipment, core team members, facilities, etc.
- Staying with the project for a duration of XX months, with an expected contribution of (name contribution here, typically goods, money or services)
Acknowledging existing and future contributions:
As part of this process, be sure to take the time to set expectations for the people whose involvement you are considering for the film. These can be anything from art direction to distribution consulting. But, be specific – and yet remain open to things shifting as people’s involvements shift. It’s good to have a escape clause, too, something that gives you an out if they do not lift a finger, or gives them an out if they hate the direction the film is taking.
As part of this expectations-setting process, it could also be helpful to craft a little email in anticipation of the contracting process—if only to clarify what someone has felt that they have already given to the production. It saves people feeling unacknowledged, and saves you – as the producer – from any lack of clarity as to what people are thinking.
In other words, better to discuss it now than to suffer acrimony, later.
Here’s a little exercise that you can do with everybody involved in the film to make sure you are all on the same page. It feels corporate as hell, but it’s helpful nonetheless.
Have them all fill out the following three sections:
- What you have contributed thus far
- What you intend to contribute later
- What you expect from the production.
For instance, for my role in Ambergris, some things that I feel that I have given thus far include:
- Expertise in the form of strategies, specifically: Marketing, distribution and fundraising
- Expertise in the form of authored documents, specifically: Film package and budget, grant applications and related authored documents
- Story genesis and co-development, with David Casey
- Providing human contacts (list here) that have led to these successes and developments (list here).
- Etc (list as appropriate)
Things I intend to contribute further include:
- Fundraising (raise target amount of $XX through grants applications, private sponsorship etc)
- Overseeing all facets of the film including: Scheduling, staff, financial, locations, etc etc etc
- Overseeing marketing and distribution strategies for the finished film
- Etc (list as appropriate)
My expectations from the film are:
- Profit share through a percentage of the total net income (points), as a result of merchandising, distribution, etc.
- ‘Producer’ title
- ‘Story By’ title (with David Casey)
- Creative control as per a 49/51% split with my colleague and the film’s director David Casey
- Marketing and Distribution control as per a 51/49% split with my colleague and the film’s director David Casey
- Etc. (list as appropriate)
III. NON-DISCLOSURE AGREEMENTS
In this time of intellectual property, and if you are at all attached to making the idea you have developed, this is crucial. The signed NDAs will serve as a record of who has heard the idea, and can help you track its dissemination in the world. Make sure your partners also understand this, and provide them with copies to have the people they pitch the film to sign.
And of course, use your common sense. Don’t be draconian, but be vigilant.
Next week I will post PRODUCTION DEVELOPMENT PART 2: CREATING YOUR INITIAL BUDGET AND CONSTRUCTING THE FILM PACKAGE
September 27 2010
SASKIA’S GUIDE TO PRODUCING: DEFINING ROLES
This is a series of posts delving into the gory details of what it takes to produce an independent film. Covering the entire process — from development to fundraising, production, distribution, online strategies and beyond — they will be written in real time, from first hand experience, as I go through the process of producing the tentatively titled ‘Ambergris’, a feature-length documentary about perfume, to be directed by the inimitable David Casey.
STEP ONE: DEFINING THE ROLE OF A PRODUCER
Producing is one of those jobs that has seeped into our collective unconscious while simultaneously lacking any by-the-book definition. Everyone who hasn’t done it yet thinks they know exactly what it means. Then, one day, they find themselves staring blankly at an email containing the germ of an idea expressed through incoherent but promising snatches of a story. “Hey you should produce this”, someone says, and the expectation is set. They are to, you know, ‘make it happen’.
But what exactly they’re meant to ‘make happen’ next is just not all that clear. They see the finished product in their mind’s eye, they feel the enthusiasm of what partners they already have, but the progression from now to premiere is a muddy gray area of questions: What is a producer responsible for, exactly? What is their primary function? How much creative say do they have? At which point do they need to start raising money? What documents do they need? Should they start an LLC for the project right away? Do they need a PMD? What about co-production? How do they get distribution? And what the hell is the difference between a ‘creative producer’ and a regular producer, anyways? The list of questions goes on and on and on, and it goes without saying that this process is incredibly intimidating when it’s your first or second project and you only have a cursory understanding of what producers are meant to do, in the first place.
To help define how to begin a project, and to begin attacking these questions, I’ve found it helpful, thus, to define the role. To better do this, I’ve gone out and asked a few producers I admire for their insight on their job. First up is Katie Holly of Blinder Films in Dublin Ireland, most recently producer of the indie darling One Hundred Mornings (dir. by Conor Horgan).
1. What in your experience are the producer’s primary responsibilities with regards to a project?
This can be a hard one to answer as so often the primary role can vary, depending on the nature of the project and the needs of the film and the director.
But above all in my view the job of the producer is to bring coherence, and have clarity which is communicated to the whole creative team, financiers, and other partners such as sales agents etc about what the film is, and frequently, how best to market/sell it.
The producer has an overview on all aspects of the film, from the script, to the finance, schedule, casting, crewing up, and all across the post production process and they need to ensure that the needs of project are being met all across the board, albeit also on budget and on schedule. On a practical level they also raise the finance, negotiate agreements and handle the legal process of closing finance in conjunction with their lawyer. They work closely with the line producer, production accountant and first assistant director to ensure that the budget and schedule are not only achievable but being properly managed, as well as keeping a creative eye on the project, via the writer and director. During prep, production and post they are also the person responsible for handling any issues as they arise across all departments.
2. How does the producer relate to the creative process (for instance, in film direction)?
Again this can vary as there are different types of producers out there. Coming from a background in script development and story editing as a producer I’m extremely focussed on the creative side of the process, not in terms of the actual direction of the film which I would leave entirely in the hands of a trusted director (who the producer would generally hire). Very often producers can be the originator of a feature idea that they then seek to place a writer or writer/director team on. Other times a script or idea might be pitched which the producer undertakes to develop and produce.
Again, I would say that the producers responsibility is to bring coherence – now that I’m pretty busy on production I tend to spend less time with the writers and directors actually working out the story (though I still love this and on certain projects it’s crucial that I’m a part of that process).
But often not being ‘in the room’ so to speak can work well: When a draft is delivered you have a certain ‘distance’ and are able to critically engage in a way that you might be less enabled to if you were part of the process of why certain character or story choices were made. On every treatment and draft that is delivered, I would read a number of times, give detailed written notes and do meetings before we all collectively agree on an approach for the next pass. But as I said the level of creative input can vary hugely – on One Hundred Mornings, I didn’t collaborate with Conor during the scripting process, though during prep and even during the shoot we developed a very good dynamic in terms of doing rewrites, merging or cutting scenes as required by our demanding schedule. On my next feature, SENSATION, which recently premiered in Toronto, I came on board from treatment stage and worked closely with Tom all through the process. On The Savage Eye, the scripted comedy show we currently have in production, during prep I spent the majority of time in the writers room, as that’s what that particular show demands.
In terms of film direction – that I would absolutely leave in the hands of the director. Of course you will have had discussions about the creative approach during development and prep so there is clarity and agreement on how the film will be handled, and casting would generally be done in collaboration. Beyond that it’s the directors gig.
I would [also] of course watch rushes and discuss them with the director and the editor during the shoot [staying] very involved in the editing from rough cut onwards. You would give the director space to work on a first cut, and from there on give detailed notes and do meetings until the shape of the film emerges and is agreed on by all.
3. How has a producer’s role changed with the advent of new media/new crowd-sourcing or social media technologies?
One advantageous thing with new media and technologies is that there are very cost effective ways of actually getting a film made and there are also many fast and cheap ways to find and build your audience. Simply put it’s certainly easier now to make a feature film (albeit a micro budget one) than it was back in the days when film was your only option…
This also creates a challenge however in that there are so many more films getting made the market is incredibly crowded and distribution is extremely difficult to secure.
As a result the producer’s role on a film has extended far beyond the traditional model of handing it over to a distributor and sales agent and letting them take it from there. This has both advantages and drawbacks – you keep control of your films rights, or assign them for much shorter terms, and you, the filmmaker, are part of the process of selling and releasing the film. On the downside this process can take a very long time, and on a film that was made for a very low budget it can be hard to make ends meet or get back to your primary job of producing.
We’re still very much in a time of flux and I am hopeful that in the next five years new models of distribution will have emerged that will allow producers of low budget films to recoup their costs, (provided the films are good, of course!). New festivals that share revenue with the filmmakers are a recent interesting proposition as are recent experiments to use your festival premiere as a release – capitalising on the attention the festival affords you to sell DVDS, from VOD and also book other theatrical dates.
In Ireland we don’t really have things like Kickstarter and Indiegogo up and running yet but I’m also really excited about those kinds of crowd sourcing tools and have no doubt they will also continue to mushroom over the coming years.
Further posts detailing the role of the independent producer are forthcoming, to be followed by a whole lot of nuts and bolts about what it takes to produce a film.
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