Suitcase Tales - All we need is love… and a bit of paperwork
Posted on 3 October, 2016 by Team Wishberry
Image Source: Pixabay
Dave: But movies cost millions of dollars to make.
Robert K. Bowfinger: That's after gross net deduction profit percentage deferment ten percent of the nut. Cash, every movie cost $2,184.
The line might come out of a comedy about the spirit of filmmaking but Bowfinger is absolutely right. You can make movies with $2000.
Except that that’s not the total cost of the movie because you haven’t budgeted for the guy who’s getting it done at that cost and compensating the people who helped it get made.
The crux of the conflict we had with Drishyam Films, the co-producers of X – Past is Present, was that 11 of us got the film done on $1000 dollar – with credit, deferment of payments, favours pulled in and goodwill – only because of the experimental nature of the film. Except that the co-producers decided to omit the experimental context and spent four times the production budget on marketing to misrepresent the film without approval or consultation with any of the 11 equal stakeholders on the project and later disappeared when it was time to honour the verbal commitment of paying filmmakers on recovery of the production cost.
The paperwork wasn’t executed because the co-producers dropped the bomb on the total spends only on the Monday of the release despite frequent reminders, and threatened to pull the film out of theatres if we insisted on written assurance of direction fees.
So, all we had was co-producer Manish Mundra’s respectable word that we would be compensated on recovery of production cost. And the legal proceedings we initiated would cost both parties a lot more money than we have already spent on an experimental film. Add to that the negativity and time.
In the eagerness to get a film green-lit or financed, we either agree to exploitative industry standard clauses in contracts or worse, postpone signing the contract till differences surface, as the case was with X – Past is Present. Why rock the boat when everything’s smooth, the producers are polite and sweet and the film’s getting made, right? Wrong.
It’s important to cover a few bases no matter how fiercely independent, low budget or no-budget the film is. Contracts apply more to independent films than big budget films because unfair industry practices and standard contracts always rob the indie filmmaker and cast and crew members of everything – intellectual property, compensation and/or share in profits.
Long story short, Drishyam films did not pay us a buck and I went from a two-bedroom apartment in Veera Desai Road, Andheri to living out of a suitcase.
So take it from the guy who has trusted verbal assurances to written word.
Get it all on paper.
In most such cases, co-producers try to appropriate the intellectual property just because they financed the film by using “standard” terms like “Work for Hire” and “Principal-Agency” to ensure that they own the content once you have signed the contract.
Hence, always put your foot down and insist on your right to own the intellectual property especially if it wasn’t Work for Hire. Thanks to timely advice from our lawyers, we insisted and changed all “Principal-Agency” clauses to “Principal-Principal” clauses (except that the 13-party agreement wasn’t executed because of last minute differences on marketing costs apart from the logistical issues of getting 13 parties from different corners of the world together to sit across the table).
With X – Past is Present, we had also protected our work with the Copyright Office of India, by signing up online and sending the material across to the office by mail. The Film Writers Association of India offers its members services to register scripts for a nominal fee.
Once registered, it becomes easier for authors to establish who the material belongs to in the court of law.
Next, the memorandum of understanding.
You don’t necessarily need to get the terms of contract typed and signed on stamp paper (though it helps to formalize the agreement and make it doubly binding). Just a simple single sheet of paper detailing the parties and the specifics of the arrangement - be it profit sharing or compensation with timelines of deferment or schedule of payments – would help to avoid confusion and misunderstanding.
Even for Side A Side B, the film we shot with an eight people unit, we drew up a MoU with every cast and crew member, no matter how close we were as friends, to avoid confusion.
I modified agreements from Rick Schmidt’s Feature Filmmaking at Used Car Prices and got them vetted by a lawyer friend before sending them out. Alternatively, sample contracts online are just a search engine away.
But for those of you who are really lazy and can’t bother researching beyond this, here’s the simplest possible template you can use. (At your own risk. Consult your lawyer friend before sending this out for project related specifics and issues you might want to include in the agreement. )
Re: Motion Picture currently entitled “________________”
This Memorandum describes how deferred payments, if any, resulting from the exploitation of the motion picture currently entitled “__________” (hereinafter referred to as the “Film”) will be paid.
___________ hereinafter referred to as the “___________”) residing at ____________________________ will be required to __________________________ of the Film.
_________________ (hereinafter referred to as the “Producer”) representing ________________ located at ____________________________________ is the writer, director and executive producer of the Film.
“Deferred compensation” will be payable from all gross receipts received by the Producer from the exploitation of the Film after repayment of all production costs, including financial costs and payment of all distribution costs incurred by the Producer not exceeding ___________________, hereafter referred to as “Total Investment”.
The Producer reserves the right to distribute the Film himself, in which event his distribution fee will be at market rates.
The Deferred Compensation for services provided as the _______________ for the completion of the film will be:
__ per cent share in net profits within ______ after recoupment of Total Investment.
The Producer retains full copyright to the Film and reserves the right to make all marketing, financial and artistic decisions for the Film.
_____________________ will be provided a complete statement of accounts within _____ months of release and a statement of receipts every ______ months after release of the film.
Producer (Cast/Crew Member)
Hope you find this useful!
About Sudhish Kamath:
Sudhish is a film critic turned filmmaker. He’s worked on 3 films so far, along with the critically acclaimed - Good Night|Good Morning. Currently Sudhish is set off on a journey to breathe life into all the films he penned down, while living out of his backpack.