Royalties and the Independent Film Producer

'R’ is for "Royalties" today and writers, musicians, painters, graphic artists and other professionals working in a creative field can relate to royalty concerns or protocol in one way or another. For the purpose of this post however, I would like to specifically address independent films and the producers who make them (the main points in this post can still apply to other industries including the book publishing industry). A recent lawsuit filed by a few cast members of the TV show, “Happy Days” against CBS Studios and Paramount Pictures reminded me about one area that some indie film producers may ignore when making movies....this area is called merchandising.

In the lawsuit, an attorney for these “Happy Days” cast members (and the wife of actor Tom Bosley who died last year) are claiming that they were cheated out of more than $10 million in revenue generated from the sale of slot machines, drinking glasses, T-shirts, lunch boxes, greeting cards, board games and other merchandise. Of all the cast members in this lawsuit, only one is reported to have received a payment of $600 about a decade ago from the profits on “Happy Days” merchandise. This lawsuit and the claims surrounding it is one example of how important it is for filmmakers to keep in line with the contracts that are made between cast, crew and other members involved in a film. A lesson in deciding early on whether merchandising rights apply to any given project can also be learned from this “Happy Days” lawsuit.

Merchandising is a separate issue than DVDs or even the digital market including downloads and online video streaming that were covered in F--k the Cheerleader, Save the Actors last year. Independent film producers should consider whether the movie that is currently being promoted has a viable market for merchandise sales, and all of this may be best to figure out during the development and pre-production stages. Doing so could reduce the likelihood that there will be any fuss about merchandise sales after the movie is released.

Some filmmakers may think “I’m not making the next ‘Avatar,’ so I don’t have to worry about this” while other filmmakers think “My film has a little ‘Slumdog Millionaire’ mixed with some ‘Blue Valentine,’ so I don’t have to worry about merchandising rights or royalties because my audience is not interested in too many products but if I luck up and sell like 3 T-shirts at the local Fringe Festival, that still does not mean I need to pay out royalties”....and um, neither of these two positions couldn’t be any further from reality.

Now, I’m not a lawyer so what I’m about to say should not be taken as legal advice but any filmmaker who is making a movie with the intent to distribute it should not only have a contract that states whether actors or crew will receive a percentage of revenue generated from merchandise sales related to the film but should make sure that they have the rights to associate their cast members’ names with such merchandise if products that were not a part of the distribution plan are now suddenly added into the mix.

More importantly, filmmakers who enter into a merchandising agreement with cast or crew members should make good on these agreements, PAY the royalties already and refrain from playing games!

Stay Tuned for Part 2: Choosing to Sell or to Not Sell Film Related Merchandise

This post is part of my participation in the A to Z Challenge.

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What NASCAR Taught Me about Making Movies

Here, I visited the Penske Garage a few years ago.

NASCAR is pretty cool to watch if you like adventure and/or fast cars. The sport that made Jeff Gordon, Tony Stewart and Dale Earnhardt Jr. household names also has something in common with the film industry that I believe independent filmmakers and Hollywood movie producers are not taking advantage of properly. This common denominator is Product Placement and one of these two industries in entertainment and/or recreation uses it more effectively than the other.

The film industry does not hold a candle to NASCAR when it comes to the way that corporate sponsorships are handled. NASCAR heavily promotes their sponsors and corporate partners without sacrificing the main point of their business but studios and producers of Hollywood movies do not. Gone are the days where E.T. ate Reeses pieces without the audience being subjected to a less than stellar film.

Now, movie producers seem more interested in generating as much revenue as possible before their film even hits the theaters than making sure that their motion picture has all of the elements for box office success and critical acclaim. Many times, I wonder whether movies are nothing more than 2-hour long commercials dressed up to fit in the cinema category they lack the substance necessary to create a compelling storyline and characters with depth.

As a movie lover and consumer, I do not mind the product placement of Apple computers in the “Sex and the City 2” movie. It could pass as an appropriate placement since Sara Jessica Parker’s character, Carrie Bradshaw is a writer and best-selling book author. Placement of that HP TouchSmart PC in scenes with Kim Cattralls’ Samantha Jones could even convince me as an appropriate feature since Samantha’s job is getting her clients more publicity.

What I find absurd is the development of an entire storyline around Absolute Vodka. That is a ridiculous placement, even in a film like “Sex and the City 2” where the main character loves to shop. When was the last time you saw the Daytona International Speedway reconstructed to look like the VISA logo? The answer is Never! NASCAR still gets money from this credit card company without adjusting the foundation of their sport to suit the needs of a corporate brand, so it baffles me that movie producers are willing to rewrite or add pages to their screenplays for dialogue or scenes that have nothing to do with the story.

Product placement is not necessarily a bad deal, especially for the business side of movie making. As a filmmaker, I understand....it costs a lot to get A-list actors like Tom Cruise, Will Smith and Sandra Bullock in a film and then you have to feed them and the crew as well! Who wouldn’t want to make sure that they get a good ROI on their production budget? Independent filmmakers may even be able to finance their entire production using product placement because it is a lucrative fundraising resource. However, the boundaries on how far these deals go to the point where they have negative impacts on the creative elements of a movie seem to be nonexistent these days.

What I learned from the manner in which NASCAR promotes their sponsors is that product placement works when it fits within the action that is happening and the elements that are already set in place. Drivers are already using cars and wearing uniforms, so adding an M&Ms logo on the hood of a Toyota Camry is not going to distract the purpose of the race or affect Kyle Busch’s strategy to get to the finish line and obtain that checkered flag. Movies should be made like this......show actors driving a specific car if the screenplay and scene already calls for it such as Daniel Craig's use of the Aston Martin in those James Bond movies.

Do not put a character in a car just because you want to promote Aston Martin, or even Toyota Camry.....especially if that character is supposed to be walking or flying in the scene. Just imagine what “Catch Me If You Can” would look like if Leonardo DiCaprio was in a Rose Royce instead of a plane. The movie would probably not only have a different ending but would also be historically inaccurate. Kyle Busch is still going to drive, whether he is in a Toyota Camry, Ford Mustang or some motorized concoction that he built in his garage. His product placements make sense. Unfortunately, some movie producers cannot say the same about their work.

Using the “Kill the Irishman” starring Vincent D’Onofrio as an example, here are a few types of product placement that I would use based on the blatant disclosure of funding sources that is practiced at NASCAR games and their use of available resources.

1. Vincent DiGiorno: Special movie posters would be made to feature a modified title credit for Vincent D’Onofrio, which the DiGiorno company could use to advertise their new Pizza & Cookies campaign. I would provide free movie posters to Grocery stores so they could give it to customers who buy a box of DiGiorno pizza. This would not only help to encourage people to do see “Kill the Irishman,” but it also boosts sales for DiGiorno pizza, since you have to make a purchase in order to get the free movie poster.

2. Add Brand or Product Logos to the “Kill the Irishman” Movie Poster. Many film festivals are not too good to display sponsor logos on their advertising materials, so my press materials for “Kill the Irishman” should not be any different that those of film festivals if I’m getting money from product placement deals in this movie.

For those who may want to whine that this would ruin the artistic direction of the movie poster design, blah, blah, blah....well, there is a solution for this problem if I want the design to remain in tact. I would incorporate the product placements into the movie poster design. Afterward, I’d laugh if someone tried to tell me how the “Kill the Irishman” movie poster loses it’s visual appeal just because I added a Ralph Lauren logo to that scarf hanging around Christopher Walken's neck.

3. There are balloons in one of the “Kill the Irishman” movie trailer scenes. I see no reason why these balloons cannot have display advertisements on them featuring labels from wine companies, logos of the cigars the characters are smoking in this movie or promotional graphics for the booze that they are drinking in some of the scenes.

It costs like $20 million to sponsor a NASCAR team for the season and like $500,000 per race but the drivers still deliver on the action that they promote to fans of this sport, so if you’re a Hollywood or independent producer who is getting similar payments from companies to promote certain brands, your film festival screening or theatrical release or DVD better be about the movie and not about some damn car when consumers pay their hard-earned money to see it.

There are similar problems with product placement that I also plan on addressing in a future post.

“Super Size Me” director Morgan Spurlock’s new film titled "POM Wonderful Presents The Greatest Movie Ever Sold" premiered at this year’s Sundance Film Festival and is an attempt at spoofing product placement in movies.

Some critics think that his own product placement deals and advertisement of brands throughout the film overshadows the points he is trying to make or attempting to tell the audience, but hey, I don’t understand what the problem is with Spurlock’s method of moviemaking and marketing. At least someone knows how to use the NASCAR approach of product placement in a way that matches the subject matter of his film.

Much like what is supposed to be a family centered TV show being produced by beer company, product placement in movies are inappropriate when they seem out of place compared to main elements in the production.

What are YOUR views on Product Placement in movies?

Here are some disclaimers for this particular blog post on it’s subject matter and content choices, if you want to know about them and are interested in further reading material:

-I chose “Kill the Irishman” as my example because Vincent D’Onofrio, who currently sits on the Madlab Post’s King Dong throne for April 2011, is one of the actors in this movie. Therefore, this A to Z Challenge post had to kill two birds with one stone because the weekends this month are dedicated to him.

-I chose DiGiorno pizza because it sort-of rhymes with Vincent D’Onofrio’s last name so it was a fitting product for one of my product placement efforts.

-I chose DiGiorno’s “Pizza & Cookies” product line because I saw a TV commercial promoting their new offering....pizza and Nestle Toll House cookies, all in one box, while I was watching the Season Premiere for the Fifth and Final Season of “Friday Night Lights” on NBC.

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Filmmaking: Steve Balderson on the Importance of Film Festivals & Casting Actors who are Team Players

'F' is for "Filmmaking" in this addition to the A to Z challenge, which brings me to an interview with a prolific filmmaker who gets things done way outside of Hollywood.

Steve Balderson is one of the most active independent filmmakers in the country right now. He's been so busy making movies including "Stuck," "Watch Out" based on a book by Joseph Suglia and the upcoming "Casserole Club" that I wonder whether or not he does anything else....you know, like sleep, eat, watch television or go to the movies. Fortunately, I got a chance to not only find out the answers to these things but also learn about important aspects of the filmmaking process....some of which remain in constant debate within the filmmaking community.....all in this one interview.

Madlab Post: One of the “Wamego” documentaries featured a conversation held during your “Firecracker” years, in which you shared the producer's disagreement on referring to movies shot on DV as “Film,” yet you seemed to have embraced DV production in your later work. Do you still view “film” as an inaccurate classification for DV movies or has your position on the matter changed since then? Why or why not?

Steve Balderson: My position has totally changed. We made “Firecracker” in 2003, and the first “Wamego” documentary was filmed starting in 2002. At that time, HD cameras were simply not as developed, and the technology just wasn’t capable of treating the image the same way celluloid did. It was, I think, about 2005/2006, when the new HD cameras started coming out that really changed the whole field. We spent almost a year researching the best HD cameras, how each one differed in image control, audio capturing, ease of use, etc. Now, I say that there’s no reason to photograph on celluloid anymore. It’s archaic.

MP: How long did it take you to find all of the DV settings to look like film and is there a similar resource where other filmmakers can learn about doing the same or are the solutions to getting a film look the result of mere trial and error?

SB: I’m sure there are hundreds of resources out there, but for us it was just trial and error, and also it comes down to personal needs. I love to explore colors and certain saturations that are really hard to capture on HD. Most cameras make their reds look too orange, or too brown. When I found how to get my favorite red, that’s the direction we went.

MP: Since “Watch Out” was shot on DV, were there any special actions taken during post-production to help you replicate a film-like appearance for this movie? Also, was there a lot of color grading involved in this process?

SB: Yes—all of the above. But you know, we did those very same things when we were doing post on “Pep Squad” and “Firecracker,” so really, the process was exactly the same. And the end results are the same. It is much more cost effective to shoot on HD. For me at least. It gives me more control as a director and DP.

MP: Most of the scenes in “Stuck” take place in one location. Is there some truth to the notion that there are less challenges for shooting a movie in one location?

SB: It is true that from a cost-savings perspective, shooting in one location is a great idea. But it is incredibly challenging, cinematically speaking. One can only shoot a wide shot from that corner of the room so many times before the audience stops feeling any movement.

It’s easier (cinematically) to shoot in a variety of locations, with atmosphere and the background constantly changing, because there are so many extra things to look at. But when you’re in one room, and you’ve got nothing else to look at, the story has to be really compelling, and the camera has to behave in a certain way, in order for it to work. It’s really challenging.

Techincally, though, it’s great because you can lock down the sound, so it records audio perfectly, etc. However, in “Stuck!” this was not the case. Hahaha. We were shooting the jail set on the second floor of the building in Macon, Georgia, with no Air Conditioning, and it was disgustingly hot. But we pulled through.

MP: You seem to have found a magic bullet in getting stand-out performances from actors who are working for free. How are you still able to secure both unknown actors and name-actors with this method of production, especially in our SAG-drenched and AFTRA-dominated era?

SB: Well, it’s tricky… When I go about casting, I do it totally differently than most productions. I try and select people who not only are right for the roles, but who get along together. Sometimes the end results are across the board: Oscar nominees, Golden Globe winners, Grammy winners, stage actors, regional theatre people, kids off the street. As long as each person brings an ingredient to the dish, it’ll be a great recipe. Of course, I didn’t start realizing how important casting was until after I’d made “Stuck!”

MP: The ongoing debate among filmmakers regarding the necessity/advantages of film festivals, or lack thereof seems to never end. Are film festivals beneficial to all filmmakers or does it depend on the project?

SB: I think it depends on the project. For instance, I have a project in development that is a Christmas caper comedy. Something you’d have seen on TV in the 80s. Only, more cinematic and more R-rated (of course, haha). But I imagine when it’s time for me to release that movie, very few festivals will screen it because it’s so commercial. But, who knows, I might be surprised.

I do think that festivals are important because it gets the movie out there and seen by more people than it would sitting on the storage shelf. I can’t afford to rent a theatre in NYC for even a night (unless I’m charging $35 a ticket). So if a film festival there shows one of my films, I don’t spend a dime, and it’s a great experience!

MP: What can filmmakers who are attending film festivals do to make it the best experience possible for their film?

SB: I always like to go in and test the projection, make sure it looks nice, sounds nice. Usually if it’s a big festival, they’ve got great equipment that will make even a DVD look great. But sometimes they have analog cables connected to the decks which make the image look horrible.

On a personal level, I try to get an actor or two there, to introduce the film and do a Q&A after. I think people go to film festivals not just to see great movies they might not have a chance to see otherwise, but to also meet the people who make them. I say—if you can afford to go show your movie at the festival, do it!

MP: Do you find the time to watch other films in between working on your own projects?

SB: When I’m in the process of making a movie, I try not to watch anything. I’ll try and find inspiration in music, travel, or other forms of visual art. But when I’m not making a movie, I’ll watch anything. I love all different kinds of movies. My favorite ones are smart, more intellectual films. But I also liked “Avatar,” so I really never know.

I usually don’t judge a movie for what it isn’t. I try to appreciate each movie I see for what it is. Which has helped me better define my own work, and the way to communicate each story visually. I don’t go to the movie theatre, though. The last film I saw in a theatre was in 1999/2000. Can’t recall when. But the experience watching that film was so magical for me… I knew it could never be repeated. So I won’t watch another film in a theatre again. I much rather stay at home where I can control the environment, and press “pause” if I need to.

MP: Can filmmakers achieve a work-life balance or is filmmaking akin to the lives of say, corporate lawyers , military soldiers or some small business owners, where you have to forgo a social calendar to make it?

SB: I think it’s all up to each individual. If someone wants to have a “day job” and also make films, it’s possible to do that. Oftentimes, people use a lot of excuses to not do it, but they could if they really wanted to. I’d say that the closest relation would be a small business owner.

Small businesses have to adapt with the times, and sometimes morph their entire product lines (or whatever) to stay in business. Independent filmmaking is like that, too. I had to start reshaping the way I made movies in order to keep making them. As for a social calendar… I don’t have one. But I’m not such a social person, really.

MP: What would you tell filmmakers who are graduating from school this year with the desire to pursue film directing careers?

SB: Take all the knowledge, everything the professors told you, all the filmmaking rules you learned, and put them in a nice big box, close the lid, and place it up on the shelf. You can always go back and look in it later if you need to. You’ll define your own style and your own cinematic language if you forget everything and look within.

MP: What is your position on the movie piracy issue and does it differ depending on whether it's a Hollywood film or an independent film? Also, do you have a different position on movie piracy as a general American consumer?

SB: I think piracy is the death of independent filmmaking. It doesn’t hurt the studios much, because they’re so humongous. But for us little guys, it could make or break everything. Why would someone buy a DVD of “Stuck!” when they can watch it for free online? Why would a distributor in Germany buy the rights to it when people are getting it for free online? It’s awful, and I hate it. I think that people who pirate independently made music and movies deserve to be jailed. Hollywood films, however, should be pirated more often.

MP: Will filmmakers still be able to sustain themselves or build their careers if the FCC crushes net neutrality?

SB: I’m not sure. Part of me thinks people are making a bigger deal about it than it really is, but part of me doesn’t. As a filmmaker, I want my products to be made available online, and to have anyone anywhere be able to access my website. And as a consumer, I want to be able to research anything I want, and have the freedom to see any website that exists. But, I don’t know if I am currently. I mean, what I haven’t seen, I don’t know about. I only know what I’ve seen.

When asked if there were any production based trivia facts from “Watch Out” or “Stuck” that he would like movie fans to know, such as... did his film set caterer on "Watch Out" ever explain why he vanished from the set without an explanation after committing to cook for the cast and crew, Steve Balderson had the following response:

No, he didn’t. He did apologize months later, though. Yah, that was wild. LOL. I can’t think of any interesting tidbits off the top of my head.

I can tell you that we filmed them both for less than $50,000 and each took less than 2 weeks to film.

MY RESPONSE: What?!!! How are directors and producers making films in 2 weeks?!!
Seriously though, the ability to do that and succeed at making movies for less than $100,000 and in as little as two weeks is great.

Balderson's level of productivity reminds me of Reid Gershbein's Two Week Film Collective (#2wkfilm) that started in 2009 and encouraged lots of filmmakers to make feature films, putting them into action instead of waiting around for things to happen during that limbo-like stage we like to call "Development". I've been in "development" on several projects for too long, myself and that really needs to chance, so at the end of the day, filmmakers such as Steve Balderson are a prime example of the fact that if you want to make a movie, then make one. No everlasting "development". No waiting around. You either do it or you don't!

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