David Averbach is Creative Director and Director of Digital Distribution Initiatives at The Film Collaborative.
When distributing your film, a lot of time is spent waiting for answers. Validation can come only intermittently, and the constant string of “no”s is an anxiety-ridden game of process of elimination. Which doors open for your film and which doors remain closed determines the trajectory of its distribution, whether it’s festival, theatrical, digital, education or home video (until that’s dead for good).
I work with filmmakers, way down-wind of this long and drawn-out process, who, after exhausting all other possibilities, have “chosen” DIY digital distribution as a last resort.
TFC’s DIY digital distribution program has helped almost 50 filmmakers go through the process of releasing their film digitally over the past 5 years and with most of them, I have often felt as though I were giving a pep-talk to the kid who got picked last for the dodgeball team. “Hang in there, just stick to it…you’ll show them all.”
Is DIY Digital Distribution anything more than a last resort? Perhaps not…
DIY vs. DOA
Since TFC was formed over six and a half years ago, we have optimistically used “DIY” as a term of empowerment, where access and transparency had finally reached a point where one could act as one’s own distributor. After all, we tell these (literally) poor, exhausted filmmakers, “no one knows your film better than you do”, so “no one can do a better job of marketing it.” With a little gumption, a few newsletters and handful of paid Facebook posts, you, too, might prove all the haters wrong and net even more earnings than Johnny next door who sold his film to what he thought was a reputable distributor but never saw a dime past the MG (minimum guarantee) in his distribution agreement. We even wrote two case study books about it.
It’s not that I’m being untruthful with these filmmakers. Nor is it the case that these films are necessarily of poor quality. What they have in common is a lack of visibility. Most had some sort of festival run, and only a handful were released theatrically, usually with one- or two-day engagements in a handful of cities. Occasionally, we’ll get a film that has four-walled in New York or Los Angeles for a week. Or sometimes ones that have played on local PBS affiliates or even on Showtime. But their films are not even close to being household brand names. So without the exposure or the marketing budget, they can do little more than to deliver their film to TVOD platforms like iTunes and hope for the best.
So what happens to these films? The news, as a whole, is not good. Based on what I’ve seen from these films in the aggregate, and all things being equal, if you DIY/dump your film onto only iTunes/Amazon/GooglePlay with moderate festival distribution but no real money left for marketing, you will be lucky to net more than $10K on TVOD platforms in your film’s digital life.
And the poorer the filmmaking quality of your film, or the less recognizable the cast, or the less “niche” your film is, the more likely it will be that you won’t even earn much more revenue than what is required to pay off the encoding and delivery fees to get your film onto these platforms in the first place (which is around $2-3K).
Which is why, as of late, I’ve been aggressively suggesting to filmmakers that holding off on high profile TVOD platforms and instead trying to drive traffic to their websites and offering sales and rentals of their film via Vimeo On Demand or VHX, two much cheaper options, might be a better use of their limited remaining funds.
But am I down on DIY? Not necessarily.
Granted, there are a lot of films out there for which The Film Collaborative can do very little for in the area of digital distribution other than hold filmmakers’ hands. But what about for films working at the “next level up” from last-resort-DIY? Films who have either gotten a no-MG or modest-MG distribution offer?
Many distributors and aggregators working at this level will informally promise some sort of marketing, but many times those marketing efforts are not specifically listed contractually in the agreement. So when filmmakers ask me whether going with a no-MG aggregator is better than doing DIY, this is my answer…
It’s important to remember that, once a film is on iTunes, no one will care how it got there. And by this I mean with no featured placement, just getting it on to the platform. So, if that’s all a distributor/aggregator is doing, this is not the kind of deal that a filmmaker can dump into someone else’s hands and move on to their next project. In fact, many aggregators will send you a welcome packet with tips and suggestions on how to market your film on social media, such as Facebook. In other words, they are literally expecting you to do your own marketing. Not just do but pay for. So, it is entirely possible that all that an aggregator or distributor is doing is fronting your encoding costs, which they will later recoup from your gross earnings, but only after they take their cut off the top. And if your distributor is offering you a modest MG, you must be prepared for the possibility that that MG may be all the earnings you are ever going to see. Certainly, we have seen many, many filmmakers in this position.
So the question remains: Is DIY still too risky for all but films that have run out of options?
It’s a hard question to answer, mostly because there is no ONE answer. Undoubtedly, some films will be helped with such an arrangement and some films will not.
A View from the Other Side…
Distributors, of course, will stick to the sunny side of the street. They will tell you that DIY is too risky for the vast majority of films, and remind you that distribution is more than getting a film on to one or two platforms.
When I asked Gravitas Ventures founder Nolan Gallagher, a veteran in distribution and whose co-execs have a combined 50+ years in distribution experience, about his feelings regarding DIY, he was quick to point out that the main difference between a proven distributor and DIY is that while much of the work in DIY happens in year 1, distributors can help in year 3 or year 5 or beyond. He believes that DIY individual filmmakers will be shut out from new revenue opportunities (i.e. the VOD platforms of the future) that will be launched by major media companies or venture capital backed entrepreneurs in the years to come because these platforms will turn to established companies with hundreds or thousands of titles on offer.
This is a fair point, in theory, but I honestly cannot recall a single instance of one of our filmmakers from 2010-2013 jumping for joy over that fact that his or her distributor had suddenly found a meaningful new VOD opportunity in years 3-5, nor have we heard of any specific efforts or successes down the line. But it’s good to know one can expect this if signing with a distributor.
He also mentioned that many of Gravitas’ documentarians receive multiple 5 figures in annual revenue over 5 years after a film first debuted.
That’s nice for those filmmakers…But what about the ones that don’t? It would be ludicrous to suggest that any decent film, with the proper marketing and industry connections, can become a respectable grosser on iTunes.
By no means am I singling out Gravitas in order to pick on them in any way. For many films, clearly they do a terrific job.
But does that mean that there aren’t a handful of filmmakers that have gone through aggregators like Gravitas or other smaller distributors that many TFC films have worked with, such as The Orchard, A24, Oscilloscope, Virgil, Wolfe, Freestyle Digital Media, Breaking Glass Pictures, Amplify, Wolfe, Zeitgeist Films, Dark Sky Films, Tribeca Films, Sundance Selects, who are not entirely convinced that they were well served by their distributor? Of course not.
The Million Dollar Question…
The question I really wanted to know was more of a hypothetical one than one that assigns blame: if these so-called “borderline films” that went through aggregators/distributors had done DIY instead, how close could they have come netting the same amount of earnings in the end? Is it possible that they could have gotten more?
This is a hard question—or, should I say, a nearly impossible question—to answer, because no one has a crystal ball. But also because of the continued lack of transparency surrounding digital earnings, despite initiatives like Sundance Institute’s The Transparency Project, and because the landscape is continually evolving.
A recent article in Filmmaker Magazine, entitled “The Digital Lowdown,” discusses how independent filmmakers struggle to survive in an overcrowded digital marketplace and “admits” that niche-less festival films will only gross in the range of $100K-$200K, and that, in fact, talks about a “six-figure goal.” But in almost the same breath, there is a caveat. Sundance Artist Services warns that “…if a filmmaker spends about $100,000 in P&A to finance a theatrical run, they’re probably going to be making that much from digital sources.”
I have heard many stories of distributors and filmmakers alike, who put “X” dollars combined into P&A for both theatrical and digital only to make a similar amount back in the end. So what’s the point? If you look at distribution from the perspective of paying back investors, are a good portion of filmmakers netting close to nothing, no matter whether they do DIY or whether they gear up for a theatrical and digital distribution via a distributor? If a film does not succeed monetarily, is the consolation prize merely visibility and exposure? (Which is not nothing, but it’s not $$ either).
A few months ago, my colleague Bryan Glick posted a terrific piece on our blog that questioned the ROI of an Oscar®-qualifying run, given the unlikelihood of being shortlisted. Bryan implies that because filmmakers like hearing “yes,” and like having their egos stroked, when publicists, publications, screening series, cinemas, and private venues all lure filmmakers with a possibility of an Oscar®, something takes over and they lose perspective at the very moment they need it most.
Could the same be true for a distribution strategy? Are filmmakers so happy to be offered a distribution deal at all that they are unable to walk away from that distribution deal, even if they suspect that it undervalues their film? And could a viable DIY option change that?
Evaluating Success with DIY
Last fall, I began to think about what a “successful” DIY digital release could look like. On the low end, we’ve heard about a magical $10K figure that I discussed above…in the context of MGs paid to Toronto official selections via Vimeo on Demand, and Netflix offers to Sundance films via Sundance Artists Services. So it would have to be at least greater than $10K. And on the high end, it would have to be at least $100K that the filmmaker gets to net over a 10-year period.
Working backwards, how can this be achieved and is it possible to recreate that strategy via DIY?
One thing that gave me hope was when my colleague Orly Ravid, acting as sales agent, negotiated a licensing low-six-figure deal with Netflix for the film Game Face, about LGBTQ athletes coming out. The film won numerous audience awards at film festivals, but had no theatrical release. Timing, as well as the sports and LGBT niche, made this film perfect for a DIY release. The only catch was the Netflix insisted on a simultaneous SVOD & TVOD window, so Netflix and iTunes releases started within one day of each other. TFC serviced the deal through our flat-fee program via Premiere Digital Services.
Lessons Learned from the DIY Release of Tab Hunter Confidential
This past Spring, TFC spearheaded the digital release of Tab Hunter Confidential, a film for which we also handled festival and theatrical distribution, as well as sales. Truth be told, this film almost went through a distributor. In the end, however, after a protracted period of negotiation, an offer was made, but knowing how much Netflix was willing to offer, Orly advised the filmmaker to walk away from the deal and try our hand at a DIY release. The filmmaker agreed, and we serviced the Netflix deal via Premiere. However, as Netflix wanted the film for June, which is Gay Pride Month, we had a limited amount of time in which to do iTunes, and I was determined to make the most of it.
So what were the goals? And how could we get there?
I had been trolling both the “Independent” and “Documentary” sections on iTunes for months in preparation for what has now become this article on DIY. I had been noticing that while it is easy to get a film into the “New & Noteworthy” section in “Documentaries,” which contains at hundreds of films, the similar section in “Independent” is limited to about 32. So how could one get there? And how could one’s film be featured in the top carousel in “Independent” or in any of the genre categories? Would it help to offer iTunes exclusivity? Would it help to do iTunes Extras? Could we contact Apple and try and schedule something? What else could be done? These are the questions that I set out figure out on my own, or to ask our aggregator, Premiere Digital Services.
How can I get my film to be one of the 30+ films in the “Independent” Section of iTunes? This section is populated at Apple’s discretion. Their iTunes division is based in L.A., not Silicon Valley, and they attend film festivals and are very up-to-date on the indie film landscape. It’s clear, however, that while they do speak with distributors and aggregators about what’s coming down the pipeline, most of the decisions about what is to receive placement in this section occur within a week or two of the release date in question, and are decided ultimately by iTunes. I informed Premiere Digital that we were very interested in being placed in Independent, and they told me that they have weekly calls with iTunes and that—closer to the date of release—they would mention the film to them. In the end—spoiler alert—we did manage to get Tab into this section. But there were no back room deals to get that to happen…so I can hereby confirm that it is possible to be featured on the iTunes store based solely on your film and the specifics of its release.
Rotten Tomatoes Score: Out of approximately 100 films that appeared from late November 2015 to early February 2016 (which I kept track of manually, so the following is not completely scientific), about 50 of those had a “fresh” rotten tomatoes score. About 40 of those 50 had RT scores over 80%, and many of those were Certified as Fresh. Of the remaining 50 films, about 20 had “rotten” RT scores, and about 30 had no score at all. Luckily, Tab Hunter Confidential has an RT score of 87%, so I knew I was safe from that perspective. But while I was investigating, I was particularly interested in those films without a score. I noticed that many of them had star power attached, and a few of them were holiday-themed. A few of them were Lionsgate titles. And a few sports-related and horror titles, which always seem to rise to the top. I glanced at the Independent section for this week (third week in August), and these numbers pretty much bear out, save the holiday ones. The takeaway here was that if your film did not have a theatrical (and therefore perhaps does not have a RT score), if it doesn’t have famous people in it, it’s not about sports or is not in the horror genre, your chances of appearing in this section as a DIY film going through an aggregator seem pretty slim.
Check in, check out dates. As many of you know, films always end up in one of Apple’s genre sections. They stay there a few weeks or even a few months until they are bumped out of that category by newer items. But those sections are very glutted. The “Independent” section is a second placement, one that is curated by Apple, of only three rows of films. One thing that I became acutely aware of was the high turnaround in this section. Films seemed to be refreshed twice a week: once on Tuesdays (release day), and then again on Fridays. This was more or less consistent, although I got the feeling that on a few occasions things were a bit early or a bit late.
At any rate, it was very clear that if films were not pulling their weight, they would be booted from the “Independent” section for something else. At least 1/3 of the films were gone after only a few days. After all, Apple is in the business of making money off these films too. What occurred to me is that if filmmakers are doing distribution deals to get placement, and their films only last 3 days in the “Independent” section, and that measly placement is what amounts to the big perk/payoff of going through a distributor, it’s a pretty sad day for either the filmmaker, the distributor, or both.
How can I get my film featured in the top carousel? It turned out to be the same answer as for the Independent section in general, but I can admit it now…I was a pest: I asked multiple people at Premiere this question. I was told over and over that Apple will make a request for layered artwork if they are interested in featuring the film. Two weeks before the release date I had not heard anything. But less than a week before, Premiere received the request for artwork from Apple. We ended up being featured in both the “Independent” and “Documentary” sections.
Why did they pick us? I am not completely sure, but here are my guesses: We had a great film festival run. The film was based on a bestselling book. We had a high RT score; we did a 40+ city theatrical; we had a lot of press, and we had a publicist; the film was apparently not doing terribly in the iTunes Pre-Order section, Tab Hunter did many interviews when the theatrical came out; Tab Hunter is freaking Tab Hunter; the film spans both LGBT genres and the genre of women of a certain age who came of age in the 1950s and still remember Tab’s poster on their bedroom walls; the artwork was classy; it was almost June; we gave them an exclusive (although I don’t think they ever advertised it as such); we did an international release on iTunes (we were told that Apple likes films to have more than one territory to be featured, which is kind of strange, because it wasn’t featured in any other iTunes store, like Canada or UK); and lastly, we did some iTunes custom artwork and iTunes Extras.
Walking the walk. Speaking of customization, one thing that I noticed about every film in the “Independent” section was that most detail pages contained customized promotion background artwork. Apple likes this. It gives the film branding, credibility. Apple has two different kinds of background art one for the iTunes store and one for AppleTV. We opted to do just the iTunes store art, which is an extra $75 conformance fee at Premiere. We also did iTunes Extras basic package, for about $700 extra, which offers a chance to include bonus features, such as outtakes and other exclusive video. Since we were planning on including bonus interviews on our DVD, we included that file, as well as 10 minutes of interviews for which iTunes is the only place that they are available. I’m not sure if Extras helped the featured placement, since we were literally down to the wire on having them appear on the store in time for the release. (At the last minute, we needed a looping background audio for iTunes, which we didn’t realize was mandatory, so if you go the Extras route, don’t forget that that audio file is needed).
Results. All in all, we did everything we could, and it paid off. We were featured in both the carousels of the “Independent” and “Documentary” genre sections, and stayed in the “Independent” carousel for a full week and in “Documentary” carousel for two weeks. We stayed in the “New & Noteworthy” part of “Independent” for several weeks. At its peak, we reached #2 in Documentaries, being surpassed only by Michael Moore’s Where to Invade Next, which months later is still in the “New & Noteworthy” part of “Independent.” We made sure Tab Hunter Confidential shows up in both the iTunes Extras section and the “LGBT Movies” Collection section. The more places to find the film, after all, the more chance of it being rented or purchased.
After over 3 months, around the third week of August, Tab Hunter Confidential was the 12th All-Time Bestselling LGBT Doc in the iTunes store. As of the date of this blog, it has dipped down the 14th. It is still in the “New & Noteworthy” part of “Documentaries,” although to be fair that section contains hundreds of films.
Regrets? Could we have stayed longer in the iTunes carousels? Two things worked against us. First, although there was a social media push when the film was released, it was pretty limited, as we had only a small P&A budget. With more of a spend, we could have gotten more attention during the second week, and perhaps sales would have warranted the film sticking around for longer. Other films, such as Gravitas’ Requiem for the American Dream, for which TFC handled the Theatrical, featuring Noam Chomsky, have done a much better job surfing this wave. Fortuitous timing with Bernie Sanders, but that is a story for another day.
Although we offered TVOD exclusivity to Apple until June, it was unclear whether they really cared about that, as they never promoted it as such, and we probably should have released on Amazon, GooglePlay and Vudu on the same day as iTunes.
(Speaking of Amazon and GooglePlay, I once asked someone who used to work at Premiere how one gets featured on those other platforms’ stores. What they told me was shocking: Amazon and GooglePlay basically copy content ideas from the iTunes store. This was about a year ago, so who knows if this is still happening, or if it was even true at all. But I was kind of blown away by this.)
Conclusion. There are undoubtedly things one could immediately try and recreate from the steps that were taken with Tab Hunter Confidential. However, who is to know if they could work a second time, with a different film and different timeframe?
I am not suggesting in this article that distribution deals are unnecessary. Many companies have a ton of industry connections and experience that one might not be able to recreate with DIY.
But in this case, the filmmaker is thrilled, and my TFC team believes that dollar for dollar, the filmmaker walked away with a guaranteed net that is more than they would have received had they taken the distribution deal that was offered to them by a distributor.
So should DIY be considered a dirty word? Only you can decide if it is right for you film. As a whole, the jury might still be out, but, at the very least, I suspect that we’re going to get more filmmakers interested in iTunes background art.
Be sure to look out for Tab Hunter Confidential, on digital platforms, and now on DVD and Blu-Ray, which have recently been released by our friends at FilmRise.
David Averbach September 6th, 2016
We are gearing up for a big article on DIY Digital Distribution, which will be posted very soon. In the meantime, we liked this No Film School case study article on DIY DVD Distribution so much that we had to link to it on our blog as well as SM. Enjoy!
Orly Ravid August 17th, 2016
by Jessica Rosner (Media Consultant) and Orly Ravid (Founder, The Film Collaborative and Attorney, Mitchell Silberberg & Knupp LLP)
This month’s blog is co-written by Jessica Rosner, who has been a film booker in the theatrical, nontheatrical and educational markets since the days of 16mm. Recent titles include Jafar Panahi’s THIS IS NOT A FILM and John Boorman’s QUEEN AND COUNTRY.
One area of film revenue that is both increasing exponentially but often neglected by rights holders is the educational streaming market, which basically allows institutions to stream films to students for classes. Old models of showing films during classes or having students watch copies in the library are being largely overtaken by instructors wanting students to watch films wherever they are from a dorm room to a Starbucks. Unfortunately, while tens of thousands of films, both feature and educational, are being legally streamed, there are others that are being illegally streamed and many thousands that rights holders are not making available. In both cases revenue is being lost. Major rights holders represented by the MPAA have been overreaching by attempting to prevent academic use of clips from DVDs. And, they are ineffectual by refusing to directly challenge claims by some academic institutions and organizations, including the American Library Association, that they can stream an entire film without a license.
Films ranging from shorts produced for the educational market to feature films from studios have been used in classes for decades, first largely in 16mm (rented or purchased from rights holders) and then in a variety of video and digital formats. When videos started in the 1970s a special provision of the copyright law known as the “face-to-face” teaching exemption was enacted that allowed any legally produced video (and later DVD) to be shown to students in physical classrooms supervised by an instructor. (U.S.C. § 110 “Limitations on exclusive rights: Exemption of certain performances and displays”). Few instructors now want to use class time to show films and few students want to go to the library to view or check out physical copy of a film so streaming has become the most popular way to use films for classes. There are many platforms and companies which are servicing this growing market, notably Swank, which handles many of the major studios, and a few that handle independent films, such as Kanopy, Alexander Street Press, Films Media Group, and, for documentaries, Docuseek2. While the vast majority of streaming films done legally through licensed platforms or contracts, there is a segment of the academic community including many influential institutions and organizations which have asserted that under “fair use” they can stream entire films without paying right holders. “Fair use”1 is a long established part of American copyright law which allows portions of copyrighted works to be used in a variety of contexts including education, satire and creating new works. (U.S.C. § 107 “Limitations on exclusive rights: Fair use.”)
In 2010, UCLA (Regents of the University of California) was caught streaming thousands of films from studio features to documentaries, they used in classes without any payment or license to rights holders. When sued by Ambrose Video Publishing (an educational video producer) and the Association for Information Media and Equipment (a consortium of educational media companies) for unlawful copying and reformatting DVDs of BBC productions Shakespeare’s plays and putting them online for students (on UCLA’s own system), the case was initially dismissed due to issues involving lack of standing (Ambrose was not the rights holder) and sovereign immunity. UCLA’s claim that streaming an entire film was acceptable under “fair use” was never actually fully litigated. See Ass’n for Info. Media & Equip. v. Regents of the Univ. of California, No. CV 10-9378 CBM MANX, 2011 WL 7447148, at *1 (C.D. Cal. Oct. 3, 2011); Ass’n for Info. Media & Equip. v. Regents of the Univ. of California, No. 2:10-CV-09378-CBM, 2012 WL 7683452, at *11 (C.D. Cal. Nov. 20, 2012). UCLA also had streamed hundreds of major studio films not included in the lawsuit. The court noted in 2012 that “no Court has considered whether steaming videos only to students enrolled in classes constitutes fair use, which reinforces the ambiguity of the law in this area.” Although no precedent was set by this case because it was dismissed, the failure of other rights holders to challenge this has left their films vulnerable to the claim that streaming an entire feature film for a class is “fair use.”
However recent decisions involving publishers rejected the legal claim that putting an entire work online for a class is “fair use.” In both the Google Books and Georgia State cases, Federal courts ruled that only portions from “snippets” to chapters could be posted online for academic use not an entire book.2
On October 27 the Library of Congress issued an update to Digital Millennium Copyright Act which is the key law on copyrights of digital materials. It allowed far broader access by the academic and non-profit community to numerous digital formats for a variety of “fair use” activities over the strong of objections of the MPAA which had not wanted to allow the breaking up encryption even for legitimate “fair use” such as clips. However, the Library of Congress flatly and clearly rejected the request of representatives of the educational community to be allowed to access entire works stating it was “declined due to lack of legal and factual support for exemption. ”
Despite the recent court rulings and the new DMCA rules, various educational institutions and organizations continue to assert that entire films can be streamed without permission or payment to rights holders. One of the more novel claims is that since feature films were made for “entertainment” and they are now being solely used for “education,” thus transforming their use to qualify as “fair use.” The latter claim is without precedent and directly contradicts numerous precedents in copyright cases that creative works are given a higher level of fair use protection than factual works. E.g. Cambridge Univ. Press, supra, 769 F.3d at1268; Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 497, 104 S. Ct. 774, 816, 78 L. Ed. 2d 574 (1984). Moreover, such a claim would then justify scanning and streaming online a swath of modern fiction books used for courses.
It is crucial for distributors and filmmakers to engage the academic community to protect their rights. It is equally important that they make their films available for legal streaming. Many colleges are frustrated because they are trying to pay and legally license the material only to find that, while a title is available on DVD and some digital platforms, they can’t license that same title for use by students in classes via streaming. Most schools would prefer to license a title directly to ensure availability and not force students pay for Netflix, Amazon, and Hulu memberships even if film is available on those services. Some substantial libraries from Sony Pictures Classics, HBO and a variety of small distributors and individual filmmakers have not allowed their films to be available for streaming by universities. Not being able to access Leviathan, Still Alice, 4 Little Girls, etc. via direct streaming is a major problem for educational institutions. While the license for an individual film to one school might only be $100-$200, there thousands of potential institutions for a wide variety of films. Streaming of feature films for educational use is only going to keep growing.
The film community, from distributors to producers, needs to work with the academic community to make sure all films are directly available to students via their school in the highest quality streaming formats, while also ensuring that rights holders are fairly compensated.
1The U.S. Copyright Office has now launched its “fair use” index—a (free) searchable database of U.S. court opinions on copyright fair use dating back to Folsom v. Marsh (1841)…
Here is their description of the database:
Welcome to the U.S. Copyright Office Fair Use Index. This Fair Use Index is a project undertaken by the Office of the Register in support of the 2013 Joint Strategic Plan on Intellectual Property Enforcement of the Office of the Intellectual Property Enforcement Coordinator (IPEC). Fair use is a longstanding and vital aspect of American copyright law. The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).
Here is the link to the Fair Use Home Page.
And here is the actual link to the Searchable Case Database—you can filter it by federal circuits and/or by types of works (literary works, films etc.).
2 See Authors Guild v. Google, Inc., No. 13-4829-CV, 2015 WL 6079426, at *20 (2d Cir. Oct. 16, 2015) (Second Circuit affirming the finding of fair use as to Google’s unauthorized digitizing of copyrighted works, creation of a search functionality and “display of snippets” because the “purpose of the copying is highly transformative, the public display of text is limited, and the revelations do not provide a significant market substitute for the protected aspects of the originals” and that Google is providing digitized copies to libraries that had the books with the understanding that the libraries will follow copyright law.) See also Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1283 (11th Cir. 2014) (three publishers sued Georgia State University for scanning and posting portions of books and journals for students to access via the university’s e-reserves; Eleventh Circuit reversed and remanded, instructing the lower court to apply the fair use factors more holistically and give more weight to the threat of market substitution). The case (still partly on appeal) is important because it maintains that only a portion of a work may be digitized for fair use.
Orly Ravid June 1st, 2016
Posted In: Legal
Guest blog post by Wendy Bernfeld
The Cannes Film Festival starts today, and any Cannes season would not be complete without an update from our dear friend and colleague Wendy Bernfeld, Founder and Managing Director of Rights Stuff and co-author of our second case study book in 2014 Selling Your Film Outside the U.S. (free on Amazon Kindle and Apple iBooks. Wendy specializes in Library and Original Content acquisition/distribution, international strategy / deal advice, for traditional media (film, TV, pay TV), digital media (Internet/IPTV, VOD, mobile, OTT/devices), and web/cross-platform/transmedia programming, and also active on various film festival / advisory boards, such as IDFA, Binger Film Institute, Seize the Night, Outdoor FilmFest, and others, including TFC! Follow her on Twitter: @wbernfeld.
What’s happened out there in the two years since TFC first published Selling Your Film Outside the U.S. (“The Book”)?
My introductory chapter to the book, entitle, “Digital Distribution in Europe” provided a snapshot of the evolving sector at that point in time. However, by now, the sector, particularly in the area of SVOD and AdVOD, has leaped even more forward, and includes more mature services as well as new niche and thematic services out there— as well as some services with an increased appetite for foreign language, art house and documentary films/series (finally).
A. Blurred Lines — Traditional vs. Digital — Hybrid Platforms
More recent trends 2015-16 include increasingly blurred dividing lines between so-called traditional vs digital players .
- Traditionals: Many traditional players, internationally, (like telecoms, cable and free tv) have now become more digital, by either 1) bysetting up their own competing, or complementary, multi-window VOD offerings such as SVOD services (e.g. Channel 9’s STAN in Australia or Liberty Global’s MyPrime in both Switzerland and Netherlands); or 2) electing to instead “sleep with the enemy” by just hosting digital channels like Netflix, Spotify, etc. on their set-top box (e.g. Orange, ComHem Sweden, Virgin UK). Some traditionals opt to distinguish the brand identity of the VOD service from the main service, (different names); while others unite both services under one brand, such as CanalPlay (C+) or Viasat’s VIAPLAY. Recent developments include BBC announcing it will start SVOD internationally, after also migrating its Channel 3 to digital-only online offering; and ITV starting CURIO, a nonfiction SVOD in the UK.
- Digitals: Correspondingly, the so-called formerly digital-only players like Netflix, Amazon (previously more complementary or second window) are now acting a great deal like the traditional players. Think: old-fashioned commissioning broadcasters who increasingly require first-window status and exclusivity, and who are funding “originals”, getting involved competitively commissioning films from development stage etc. and fashioning game-changing windows.
Despite the complexity, this is overall great news for creators/rights-holders since it allows even more opportunity to maximize revenues and audiences per successive window, platform and region, if one takes the time to do it right.
B. VODs Per Window:
Lets look at various platforms in each window today, from TVOD, DTO, through to SVOD, AdVOD, etc. Note that many deliberately offer MULTI-model consumer services – such as Orange, Canal Plus and BSKYB (TVOD/DTO, SVOD), Amazon (Instant and Prime, for TVOD/DTO and SVOD, respectively) and Wuaki – while others (Netflix and Curio) operate under just one consumer business model.
- For the Big5 (Google, Amazon, iTunes, Xbox, PS), one still generally goes through a digital aggregator, like Juice, Cinedigm, Kinonation, and Syndicado in N.America. Outside N.America, EMEA counterparts in include one of Rights Stuff clients MOMEDIA (attractive multi-platform new biz model, lower cost for more platforms and combined with social media/marketing) – and others like DoCo/ODMedia (NL), MoviePartnership, and Under the MilkyWay.
Shop around…these aggregators they have different models and price alone shouldn’t be the only indicator. Also look at their marketing/positioning: some take your IP, others (like Rights Stuff, TFC) do not.
- Going direct to the others in TVOD/DTO:
Don’t stop at one or even all of the Big5. The play is to have multiple deals , non exclusive, staggered, in all the windows, in each region. Virtually every country has an active telecom and cable or DTH competitor in the region, as well as mobile and online /consumer electronics players who offer VOD, so licensing non-exclusive TVOD to them on top of others is a good first step in the chain.Beyond the utility companies, some other examples in TVOD/DTO include premium pay tv services or platforms like CanalPlus (France and other regions) and BSkyB, (UK, Germany, Italy, New Zealand). Also theatrical chains in some countries, such as Cineplex in Canada or Pathé in Holland, have VOD arms and thus can offer complementary marketing of films in theatrical window with the subsequent TVOD/DTO window. Also check out online VOD indie film specialist FilmDoo (well-curated indie/art house focused, now in UK/EIRE and soon expanding), and as earlier written, Curzon offers day-and-date theatrical combined with VOD in UK. Wuaki announced moves into 15 countries internationally by end of 2016, most are now TVOD/DTO but the Spain HQ is an SVOD OTT platform. The NFB in Canada started TVOD/DTO in N.America and recently in 2016 an SVOD service, and they now buy docs/films from other sources and regions, too.
- Deals: TVOD/DTO continues to be typically a rev share model and sometimes only a loss leader, but can help drive critical awareness, especially when accompanied by social media marketing and audience engagement strategies. Sometimes, film dependent (for eg if a very niche film) it saves money to skip the big5 (who require costly specs) and license direct to the other international tvod/dto platforms, as then at least one participates from day one in revenues, vs having to recoup expensive deliverables.
- For the Big5 (Google, Amazon, iTunes, Xbox, PS), one still generally goes through a digital aggregator, like Juice, Cinedigm, Kinonation, and Syndicado in N.America. Outside N.America, EMEA counterparts in include one of Rights Stuff clients MOMEDIA (attractive multi-platform new biz model, lower cost for more platforms and combined with social media/marketing) – and others like DoCo/ODMedia (NL), MoviePartnership, and Under the MilkyWay.
- SVOD/PAY – whether first and second windows:
As predicted, this window has so far overall been most remunerative since it’s usually structured by a flat fee license fee (although smaller or niche thematic platforms in the larger USA market (such as Fandor or Indieflix) are still offering just a revenue share formula, which can make the returns lackluster). We generally favor licensing to platforms that pay even a modest flat fee, upfront. Or in some cases in the ‘’back end’’ i.e. rev share to start, then if the revenues at the end of a year (or the window) don’t reach, say, $1000, the platform pays the difference. That sort of model can be attractive for startup platforms who truly believe in the power of their SVOD service but are cash-strapped at the start. So one can license to a less remunerative platform, which does a great job of curation, editorial, placement, and
also license other SVOD platforms who may be more remunerative for you.
There’s been a surge of local SVOD players popping up to compete or complement as Netflix or Amazon/competitors rolls into each new region. Some present outright competition, engaging in bidding wars for similar mainstream content offerings and price points. For instance, MNET South Africa, a premium pay tv operator, launched ShowMax locally and soon after announced further expansion. Other examples include: Videoland Plus (owned by free tv RTL/& SBS channels in the Netherlands) and Maxdome (owned by Prosieben in Germany).Others are complementary SVOD services, offering older library services in general interest. And still others exist at lower price points in narrow verticals/themes, like kids, anime, arthouse, etc. Hopster (UK/USA) is a buyer of purely kids programming, recently launched also in Iceland on Vodafone platform; similar to MinBIO (Nordic kids), which buys from international producers as well as from studios or locals, and Kidoodle (Canada svod ott). Cirkus in Nordic focuses on best of British programming (SVOD OTT).Recently in 2016 there’s a raft of SVOD platforms in developing regions like the MidEast and South East Asia: such as multi-region IFLIX and ICFLIX. As before Australia has pay and svod services such as Foxtel’s Presto (Australia); Lightbox (New Zealand), and Stan (channel 9).SVOD Deals: Producers should usually seek flat fee, but some platforms perform well on rev share. Particularly if you license multiple platforms in the same window and cross-promote so consumers find you from whichever entry point. In the lucky case where you can play off one against the other (e.g. traditional pay tv vs SVOD first-run) a stronger case can be argued for the license fees, as the buyer is “not the only game in town” anymore. In other cases, non-exclusive, multiple-platforms deals in smaller amounts still add up the revenues and audience. Prices can range from €250-2000 for an indie doc of film if old library and yet also up to 5- and 6-figure sums if a higher-end indie/doc or original/first-run. Pricing is also obviously affected by volume of the films in a deal, the number of regions, the awareness (platform, audience), popularity, critical acclaim, and language and cultural portability.
- In the USA, you’ve finally seen growth since 2015 in the SVOD sector for documentaries, including the Curiosity Stream SVOD OTT platform (by former Discovery founder, John Hendricks), whose programs tend towards educational and traditional. They are usually on a rev-share only model, whereas competitor xive.tv (SVOD OTT) also buys docs features/series, but over a wider range of topics including more populist/reality content- and xive.com works on a flat fee and/or combo deal model. And a deal with well-curated xive.tv delivers an extra ‘lift’’ in reach by providing carriage on other platforms (Hulu, Roku, Amazon, etc.).
- In EMEA/beyond, some other SVOD OTT platforms for docs and arthouse have arisen such as CURIO in UK (via ITV), Filmin (Spain, Portugal, Mexico). Mobil has now transformed its model to a curated daily film+library, a lower price and is complete with hefty investment by Chinese backers/reach into China. They also started paying some flat fees, or MGs, for select higher-end indies, as opposed to the pure rev share SVOD model of earlier days.
Although TubiTV/AdRise in USA and Hulu (multi-model in AdVOD and SVOD) are strong platforms offering solid returns to producers in the AdVOD sector, there aren’t many doing the same in EMEA. Here, again, it’s worthwhile to have your films spread on other free AdVOD platforms (vs pirate sites) so the returns are cumulative and there’s cross-promotion. Sometimes a film sampled on AdVOD can help to yield revenues from DTO (e.g. if a consumer discovers a lesser known film on an AdVOD platform and decides then to buy it on iTunes, while they’d not have bought it unknown before).Some updates on the AdVOD sector in EU: Viewster.com (27 countries in EMEA) has shifted focus (since our last reference in the book) from buying arthouse/festival films, to millennial content, including edgier, fast-paced docs, some originals and anime. In 2015 they had added an SVOD anime service, but in March 2016 shut it down, as others have become more aggressive in that space. DailyMotion, EU competitor to Youtube, were sometimes paying flat fees and sometimes commissioning series, but a recent sale by Orange to Vivendi may bring changes. Channel4 (UK) recently launched WalterPresents, an AdVOD site focused specifically on dramatic series and some films strictly from outside the UK.
- HOW TO REACH THE PLATFORMS:
As before, one goes via aggregators for Big5, but your agent/representative, or distributor/sales agent, OR YOU YOURSELF can hit up the others direct.REPS: I highly recommend interviewing your potential sales agent/distributor, with new questions such as asking 1) if they’ve been active in digital lately vs just their traditional buyers; and 2) if so, then with which types of platforms—Big5-7 or also beyond to International? If not, it doesn’t have to be a barrier, if they’re willing to allow nonexclusivity in digital, and/or to allow you or digital agents to assist and collaborate alongside.
- FUNDING (including by SVODs):
Although beyond the scope of this article, note In 2015-16 there’s been increased activity in 5-6 figure prebuying/funding of originals or premieres (film, series)—not just from English regions and not only via Netflix and Amazon, but also other international and EMEA services like OneNet Poland, IcFlix, Telenet, KPNPlay, Vimeo, Vivendi/Canal+, etc.On the Amazon front, aside from bigbudget originals via Ted Hope’s division such as ChiRaq at Berlinale and Woody Allen this Cannes, they also fund weboriginals, digital series, via prototyping schemes and audience involvement/feedback. Netflix has been intensely active in funding originals, including docs and nonfiction (while a few years ago that was a rarity); more deals in arthouse, docs and foreign will be announced at or after Cannes.In Canada there is a funding for coproduction in digital programs; And in France/EU, Vivendi (owner of Canal+ and DailyMotion) just in April 2016 launched its “Studio+” initiative &,dash; funding short-form original series for mobile and telecom operators.
As before in the 2014 Book, the following have intensified:
- Act quickly and work collaboratively (filmmakers + agents/distributors) to seize timing opportunities, particularly around certain countries where (s)VOD activities and platforms or hotly competing.
- Balance traditional and digital platforms, buyers and funders carefully in order to capture the cumulative and incremental revs in the nonexclusive deal sector, while also developing a longer term platform pipeline for future.
- Don’t stop at just one deal, unless exclusivity or funding elements are in play and worth it.
- Don’t be blocked per se by rights issues. Pragmatic business deals where others are “cut in” can help make those melt away
- Hybrid distribution: We as consultants/agents, aside from working direct for producers and platforms, now increasingly are retained by sales agents, distributors and even aggregators – as although they have the IP, they don’t always know all the others to sell to after going beyond the Big 5-7; this type of collaboration with producers and other reps on distribution yields good results (although time consuming at first) with each stakeholder getting a smaller piece but of a bigger pie. At the end of the day, 100% of zero is still zero.
- If not using a middleman at all, consider teaming up (especially if only selling a single film) with other producers to co-curate a mini-package of films around specific themes (e.g. eco, female, etc). This is particularly useful where the platforms don’t know you or your films, and it also helps program the service for their platform.
- Don’t abdicate distribution entirely to third parties, as in traditional past; now it is increasingly key to be aware of (if not participating more in) distribution and marketing (e.g. via social media). Help audiences know where to find your film!
Looking forward to seeing your films over here in EMEA!
Orly Ravid May 11th, 2016
TFC commissioned this guest blog post by casting director Matthew Lessall, CSA because casting decisions have a big influence on distribution… and that we have never covered the subject before…
Matthew Lessall, CSA is a freelance casting director with credits that include the 2015 Cannes award winning film for best screenplay, “Chronic” (starring Time Roth) and the 2016 film “Miss Stevens” (starring SXSW best actress winner, Lily Rabe). Matthew is Co-President of the Casting Society of America. He is in the final stages of his “how-to guide”: “HOW TO CAST LOW BUDGET INDEPENDENT FILM – A guide for first time producers, directors and film makers.”
THE CASTING PROCESS
I think what is so unique about what I do, is that every film is different. The bones of what I do, how I do it, the pace, timing, knowledge, it is all part of the experiences I have had on previous work – but every job is different with different circumstances. Saying all of that, there are basic “actions” to tackle when casting.
Being ready to start can mean so many different things, but for the sake of pairing down what I do to basics, let’s assume that a film has a producer, line producer, attorney and director attached. Financing is in place (or at least some of it) and its now time to talk about casting. This is when I come on board.
The most important thing in my mind is that I have a firm grasp on story, characters, plot, tone and a mutual understanding about the direction the film makers want to take the film in. My number one casting philosophy is, “Everyone must be in the same film.” Meaning that all of the actors cast must feel like they are part of this universe being created. But possibly more importantly is that the crew needs to be on the same page. If the producer and director are not communicating well, if the costume designer or set designer, lighting, if everyone is not “on point” then you are going to have troubles.
From the start, what I do is flesh out who could be in the roles of the film. I create lists. I sit down and spend hours on each role trying to think about actors, the obvious ones who are box office draws, to the ones I have seen in theatre or film festivals, or met on a general a year or often years before. What I do is what I like to call, “casting director stalking,” following the careers (or the lack there of – because sometimes that’s where the gems are found) and cobble together the potential of what could make a great cast. This all takes time, because anyone can go on IMDBPro and make a list of actors, but a talented casting director gets into the mind of the writer, thinks about what an actor whom nobody else is thinking of could bring to a film and fights for those actors to illuminate the story in ways not thought of before. This concept may seem to contradict the, “everyone must be in the same film” philosophy, but if done correctly (it’s an art by the way—watch the HBO doc ‘Casting By’ and you will see what I mean) the casting process should elevate the script, enlighten the story, enhance the possibilities, and illuminate where there was no shine.
You have to remember we are talking about actors. Actors, the best ones, are artists, they are practicing a craft. When you watch great acting, you should feel transported. Your very state of being should be “out of body” you should not feel like you are watching, you should just be feeling. I know it sounds hippy-dippy, but that’s what I think I try to bring (under the best circumstances) to the job. I don’t hit it out of the park every time, it doesn’t always happen, but it was I strive to do – when I am given the freedom to do so.
Now that you have my philosophy, the basics are, I read the script, write a breakdown of all of the roles, write my own version of a synopses and log line (see if it matches what the writer has written) and then I consult with the director and producer. I bring the lists, I show my ideas, I send links of actors. I send the breakdown out to agents. I call the agents who I work with, I get the film covered by the agents. I think about who at every top agency has someone who may be right for the film. I discuss the budget with the agents so they know what the deals would look like. In general, I would say any film under $5 million dollars, the representatives have a good idea of what the standard fees and offers are going to look like. I then talk to my team and we start to figure out who we would make a direct offer to, who they would want to meet and I start auditions to introduce the director to actors and to give actors who want the chance to be seen (whom I think could be right for the role), a shot in front of the director.
Auditions are where a lot of creative work is done. It is often the first time the director has heard the words spoken out loud. It gives me a chance to see how the actors are responding to the script and to the director. And it shows me how the director communicates with the actors. I could write more on this topic, because this is a big deal: how the Director communicates – it can sometimes sabotage the casting process. But assuming everything is running smoothly, auditions are also where the characters as written can change from male to female, Caucasian to Latino, where can we see different types of actors who truly populate the world we are creating and/or reflect the world we live in.
I call the agents, set up the offers and deal points and confirm everything in writing, copy the production attorney and wait for an actor to accept the role. Once that happens, there is additional negotiation and additional deal points that need to be hammered out. Depending on various situations, I will do this work or the production attorney will take on closing the deal.
In general, anyone that is considered a scale player with no back-end or a day player, I will close that deal. Once a deal is closed, all of the paperwork is sent to production and they handle travel, housing, call times, etc…
ATTRACTING “NAME” TELENT AND HOW THIS EFFECTS DISTRIBUTION (AND CASTING GODS)
Many times I am asked to try to get a name actor into a film. This mostly has to do with the foreign distributors, because they feel more comfortable selling a film that has someone in it that they recognize. Every distributor is different, they all have different ideas and lists of who means something for their specific territory. In general, my rule is, if my Mother knows who the actor is then the distributor will be happy. It’s that simple and that lame all at the same time.
One thing I have seen time after time is that the more known names you have in your film the better chance you will have with distribution—this is true. This does not always correlate to creating a beautiful film. My second philosophy on casting is this: “Cast the best actor for the role.” You will always be happier doing this, it may mean more work from your producer or sales team to get the film in front of a distributor, but the film will be better for it and at the end of the day, that is what you want right? Not to sell out your integrity as a film maker? But so many do sell out—please travel to AFM, EMF or the Marche—where you will see film titles that make you wonder, “how is that film watchable?”
If you don’t have a ton of money to spend on an actor, then you better have a combination of the following to attract A-list talent: A director with an excellent festival history or some cool quotient like directing A-list music artists in music videos, or winning an Academy Award for a short film, or a writer/director with a script that wins a prestigious awards, like the Nicholl Fellowships in Screenwriting. A producer who has a great track record. An attorney who has worked on award winning low budget independent film. You should be able to show how amazing your cinematographer is. The vision of the film should be clear and presented in a look-book, on a website, with examples of how the film is to look. Any crew members with distinguished credits on their resume should be highlighted and touted. If you have an actor attached, who is that actor? Is your director or writer or producer represented by a major agency or manager – this can help a lot.
Try to remember that your film is not the only film that is being cast. You are competing with hundreds of films, television shows, theatre – all of them are trying to get the same 10 actors into their shows and getting an actor to read your script even with an offer (let alone getting the agent to read it) takes time. And if the casting situation is time sensitive, then you must have some combination of the above…or faith in your Casting Director to make a miracle happen.
As an example, last year, I cast a film called A POSTHUMOUS WOMAN. It was shot in Northern California and the budget for the film was under an Ultra-Low Agreement. I loved the script, and we had a well known, successful independent producer with known festival award winning credits to back up the film with a co-director/writing team that had never directed a feature film before. But the script was great, and Lena Olin’s manager liked it, so we made an offer to Lena Olin for the lead role. It took six months from the moment I offered her the role to the time she accepted the role. The only reason she even read the script is that her husband picked it up and read it randomly and told her that this was a role she had to play. I had faith that this material was going to connect with Lena Olin – I just prayed to the Casting Gods to make a miracle happen. And by the way, these are the only Gods I believe in, because let me tell you, they have come through multiple times in my career!
#iknowisoundcrazy – but it’s the truth.
There is a deep faith your casting director must have in the material in order to punch through getting A-list talent onto a low budget film. There is strategic consideration, strategic phone calls, placement of how to pitch the team, I try to make the film the coolest project ever – things like that that go into getting that talent to say yes and into getting the best cast possible.
SOME CASTING DOS & DON’TS
Do research who you want to cast your film. Look at films that you love, films that you think are similar to the one you are making and find out who cast that film. Reach out to that casting director and see if there is interest from them to cast the film. Just like actors, some casting directors will meet with you without an offer, some won’t.
Do trust your casting director: they are usually the ones who won’t bullshit you or sugar coat things. They are the ones who want this cast well too – it’s their name in the main titles – so it is in their best interest to make the best film possible.
Do have a strong opinion about actors. Know actors! If you don’t know actors, don’t poo-poo suggestions because they are not “The Ryans” (Gosling, Reynolds, Phillippe). If Joseph Gordon-Levitt or Rachel McAdams are on your list, you should probably have a back-up.
Do have a strong vision for your film. Answers like “yes” and “no” help us a lot. Casting Directors can work with “yes” and “no”, wishy-washy, not specific answers are not good. My high school acting teacher said it best, “God is in the details!”
Don’t show up late to auditions.
Don’t text during auditions. Pay attention to the actors!
Don’t ever ask how old an actor is while in the audition. You will be breaking State and Federal employment laws. Anything that you need that is personal background information on actors can be found out after the audition via the Casting Director speaking with the actor’s rep. And if you want to get to know an actor more, take them out to coffee after the audition to find out if this is the person you want to spend the next 3,4,5,6 weeks with.
Casting is about taste. It’s about knowing actors. It’s about connecting the written word to the spoken word by having a deep and meaningful understanding of the acting process and actors. Casting is about relationships. The relationships built with actors, agents, managers, producers, directors, etc… Casting well is about trusting in the process. Successful casting is not done in a vacuum. It takes a leader, a strong director with a vision, a producer who can execute that vision and great communication between all. Most of all, it should be the most rewarding part of the film making process.
Orly Ravid April 9th, 2016
Posted In: Uncategorized
by Orly Ravid, Founder, The Film Collaborative
Orly Ravid is an entertainment attorney at Mitchell Silberberg & Knupp (MSK) and the founder of The Film Collaborative with 15-years of film industry experience in acquisitions, festival programming, sales, distribution/business affairs, and blogging and advising. She also contributed to the Sundance Artist Services initiative.
Filmmakers usually think selling their film to distributors means that they will handle the whole release including theatrical, home video, and of course now digital/VOD. One category of distribution that is often overlooked, or not fully understood, however, is educational distribution. It can be a critical class of distribution for certain films, both in terms of reaching wider audiences and making additional revenue. For a certain type of film, educational distribution can be the biggest source of distribution revenue.
What is it?
When a film screens in a classroom, for campus instruction, or for any educational purpose in schools (K-university), for organizations (civic, religious, etc.), at museums or science centers or other institutions which are usually non-profits but they can be corporations too.
This is different from streaming a film via Netflix or Amazon or renting or buying a commercial DVD. Any film used for classes / campus instruction / educational purposes is a part of educational distribution and must be licensed legally. Simply exhibiting an entire film off of a consumer DVD or streaming it all from a Netflix or Amazon account to a class or group is not lawful without the licensor’s permission unless it meets certain criteria under the Copyright Act.
Initially, this was done via 16mm films, then various forms of video, and now streaming. These days, it can be selling the DVD (physical copy) to the institution/organization to keep in its library/collection, selling the streaming in perpetuity, renting out the film via DVD or streaming for a one-time screening, or exposing the content to view and at some point (certain number of views) it is deemed purchased (a/k/a the “Patron Acquisition Model”).
What type of films do well on the educational market?
In general, best selling films for educational distribution cover topics most relevant to contemporary campus life or evergreen issues such as: multiculturalism, black history, Hispanic studies, race issues, LGBTQ, World War II, women’s studies, sexual assault, and gun violence; in general films that cover social and political issues (international and national); health and disability (e.g. autism); and cinema and the arts. A great title with strong community appeal and solid perception of need in the academic community will do best (and the academic needs are different from typical consumer/commercial tastes).
At The Film Collaborative, we often notice that the films that do the best in this space sometimes do less well via commercial DVD and VOD. This is true of films with a more historic and academic and less commercial bent. Of course, sometimes films break out and do great across the board. Overall, the more exposure via film festivals, theatrical, and/or social media, the better potential for educational bookings though a film speaking directly to particular issues may also do very well in fulfilling academic needs.
Across the board the companies doing educational distribution get their content from film festivals but also simply direct from the producers. Passion River and Kanopy, for example, note that film festival exhibition, awards, and theatrical help raise awareness of the film so films doing well on that front will generally perform better and faster but that does not mean that films that do not have a good festival run won’t perform well over time. Services such as Kanopy, Alexander Press, and Films Media Group collect libraries and get their films from all rights distributors and those with more of an educational distribution focus as well as direct from producers. These services have created their own platforms allowing librarians etc. to access content directly.
Windowing & Revenue
There are about 4,000 colleges in the US and about 132,000 schools, just to give you a sense of the breadth of outlets but one is also competing with huge libraries of films. Educational distributors such as ro*co films has a database of 30,000 buyers that have acquired at least one film and ro*co reached beyond its 30,000 base for organizations, institutions, and professors that might be aligned with a film. All rights distributors often take these rights and handle them either directly, through certain educational distribution services such as Alexander Press (publisher and distributor of multimedia content to the libraries worldwide), Films Media Group / Info Base (academic streaming service), or Kanopy (a global on-demand streaming video service for educational institutions), or a combination of both. There are also companies that focus on and are particularly known for educational distribution (even if they in some cases also handle other distribution) such as: Bullfrog Films (with focus on environmental), California Newsreel (African American / Social Justice), Frameline Distribution (LGBTQ), New Day Films (a filmmaker collective), Passion River (range of independent film/documentaries and it also handles consumer VOD and some DVD), roc*co films (educational distributor of several Sundance / high profile documentaries), Third World Newsreel (people of color / social justice), Women Make Movies (cinema by and about women and also covers consumer distribution), and Swank (doing educational/non-theatrical distribution for studios and other larger film distributors). Cinema Guild, First Run Features, Kino Lober, Strand, and Zeitgeist are a few all rights distributors who also focus on educational distribution.
Not every film has the same revenue potential from the same classes of distribution (i.e. some films are bound to do better on Cable VOD (documentaries usually do not do great that way). Some films are likely to do more consumer business via sales than rentals. Some do well theatrically and some not. So it is no surprise that distributors’ windowing decisions are based on where the film’s strongest revenue potential per distribution categories. Sometimes an educational distribution window becomes long and sales in that division will determine the film’s course of marketing. But if a film has a theatrical release, distributors have certain time restrictions relative to digital opportunities, so that often determines the windowing strategy, including how soon the film goes to home video.
The film being commercially available will limit the potential for educational distribution, and at the same time, the SVOD services may pay less for those rights if too much time goes by since the premiere. Hence it is critical to properly evaluate a film’s potential for each rights category.
Revenue ranges widely. On the one hand, some films may make just $1,000 a year or just $10,000 total from the services such as Kanopy and Alexander Street. On the other hand, Kanopy notes that a good film with a lot of awareness and relevance would be offered to stream to over 1,500 institutions in the US alone (totaling over 2,500 globally), retailing at $150/year per institution, over a 3-year period, and that film should be triggering about 25% – 50% of the 1,500 institutions. Licensors get 55% of that revenue. On average, a documentary with a smaller profile and more niche would trigger about 5-10% of the institutions over 3 years.
More extreme in the range, ro*co notes that its highest grossing film reached $1,000,000, but on average ro*co aims to sell about 500 educational licenses.
If the film has global appeal then it will do additional business outside the U.S. All rights and educational distributors comment that on average, good revenue is in the 5-figures range and tops out at $100,000 +/- over the life of the film for the most successful titles. The Film Collaborative, for example, can generate lower to mid 5-figures of revenue through universities as well (not including film festival or theatrical distribution). Bullfrog notes that these days $35,000 in royalties to licensors is the higher end, going down to $10,000 and as low as $3,000. For those with volume content, Alexander Street noted that a library of 100-125 titles could earn $750,000 in 3 years with most of the revenue being attributable to 20% of the content in that library. Tugg (non-theatrical (single screenings) & educational distribution) estimates $0-$10,000 on the low end, $10,000 – $75,000 in the mid-range, and $75,000 and above (can reach and exceed $100,000) on the high end. Factors that help get to the higher end include current topicality, mounting public awareness of the film or its subject(s), and speaking to already existing academic questions and interest. Tugg emphasizes the need for windowing noting the need for at least a 6-month window if exclusivity before the digital / home video release. First Run Features (an all-rights distributor that also handles educational distribution both directly and by licensing to services) had similar revenue estimates with low at below $5,000, mid-range being $25,000 – $50,000, and high also above $75,000.
Back to windowing and its impact on revenue—Bullfrog notes it used to not worry so much about Netflix and iTunes because they “didn’t think that conscientious librarians would consider Netflix a substitute for collection building, or that instructors would require their students to buy Netflix subscriptions, but [they] have been proved wrong. Some films are just so popular that they can withstand that kind of competition, but for many others it can kill the educational market pretty much stone dead.” Yet, theatrical release is usually not a problem, rather a benefit because of the publicity and awareness it generates.
Passion River explains that filmmakers should not be blinded by the sex appeal of VOD / digital distribution—those platforms (Amazon, Hulu, iTunes, Netflix) can and will wait for hotter films on their radar. An example Passion River offers is Race to Nowhere which sold to over 6,000 educational institutions by staying out of the consumer market for at least 3 years. This type of success in the educational space requires having the right contacts lists and doing the marketing. But I would say, consider the film, its revenue potential per rights category, the offers on-hand, and then decide accordingly.
Stay tuned for Parts 2 & 3, which will go into the nitty gritty details of educational distribution.
The legal information provided in this publication is general in nature and should not be construed as advice applicable to any particular individual, entity or situation. Except as otherwise noted, the views expressed in this publication are those of the author(s). This alert may be considered a solicitation for certain purposes.
Orly Ravid February 18th, 2016
Tags: Alexander Press, Amazon, Bullfrog Films, California Newsreel, Cinema Guild, classroom films, educational distribution for films, educational market for films, film distribution, film library, Films Media Group, First Run Features, Frameline Distribution, Kanopy, Kino Lorber, Netflix, New Day Films, Orly Ravid, Passion River, ro*co, Strand Releasing, The Film Collaborative, Third World Newsreel, Women Make Movies, Zeitgeist Films
This post is part 4 of an ongoing series of posts chronicling how rapid technological change is impacting the exhibition side of independent film, and how this affects filmmakers and their post-production and delivery choices. The prior three can be found at the following links: January 2013 • August 2013 • October 2014
DCPs can be proprietary hard drives. Alternatively (not shown), then can look virtually identical to external hard drives
When I started this series back in 2013, a fairly new exhibition format called DCP was starting to significantly impact independent exhibition and distribution, and I was very afraid. I was sure that the higher costs associated with production, the higher encryption threshold, and the higher cost of shipping would significantly impact the independents, and heavily favor the studios.
Flash forward to today, and of course DCP has taken over the world. And thankfully we independents are still here. Don’t get me wrong…I still kinda hate DCP…especially for the increased shipping price and their often bulky complicated cases and how they are so easily confused with other kinds of hard drives…but they are a fact of life that we can adapt to. Prices for initial DCP creation have dropped to more manageable rates in the last two years, and creating additional DCPs off the master are downright cheap. And most importantly, they don’t fail nearly as often as they used to…apparently the technology and our understanding of it has improved to the point where the DCP fail rate is relatively similar to every other format we’ve ever used.
While DCPs rule on the elite level….at all top festivals and all major theatrical chains…filmmakers still need to recognize that a wide array of other formats are being requested by venues and distributors every day. Those include BluRays, ProRes Files on Portable Hard Drives, and, most significantly, more and more requests for downloadable files from the cloud.
To track the evolution of formats over the last two years, please refer to the booking charts of Film Collaborative films below. Of the many things that The Film Collaborative does, one of our core services is booking our clients’ films in public venues all over the world – including everything from film festivals, traditional theatrical venues, universities, art galleries, etc. October is always the busiest month of the year…as it is the month of the year with the most film festivals. By comparing the last three Octobers, we can see quite clearly how venue deliverables have changed over the last two years.
Quick observations of the above include:
- Bluray use for exhibition has remained relatively constant over the last three years in terms of total Blurays used, although its percentage rate has declined by about 23% from last year.
- DCP use for exhibition has increased from 6.1 percent in 2013 to 31% in 2014 to 39% in 2015. It should be noted that the vast majority of high-end bookings such as top festivals or top theatrical chains require DCP now, and the vast majority of Bluray bookings are at the smaller venues.
- Digital tape formats, such as HDCAM and Digibeta, have entirely disappeared to 0. As we said in our last post to this effect….stop making these entirely!
- Requests for Quicktime files on hard drive format are on the rise…and the only reason their numbers above seem so low is because we resist booking them whenever we can—because they are an additional cost. So the 8 listed for October 2015 means in those cases we determined we had no other choice. We should discuss this further in this post.
- For the first year ever, our company is now offering downloadable vimeo links to festivals to show the film from electronic files delivered over the internet. This is a radical direction that has much to be discussed, and we shall do so later in this post. To date we are only offering these in extraordinary situations….mostly for emergency purposes.
While DCP is certainly the dominant format at major venues for now and the foreseeable future, I still maintain my caution in advising filmmakers to make them before they are needed. Nowadays, I hear filmmakers talk about making their DCP master as part of their post process, well before they actually know how their film will be received by programmers and venue bookers. Lets face it, a lot of films, even a lot of TFC member films, never play major festivals or theatrical venues, and their real life is on digital platforms. Remember that DCP is a theatrical format, so if your film is never going to have life in theatrical venues, you do not need to spend the money on a DCP.
If and when you do make your DCP(s), know that DCPs still do on occasion fail. Sometimes you send it and the drive gets inexplicably wiped in transit. Sometimes there is a problem with the ingest equipment in the venue, which you can’t control. Film festivals in particular know this the hard way….even just a year ago DCP failure was happening all the time. A lot (most) festivals got spooked, so now they ask for a DCP plus a Bluray backup. That can be a significant problem for distributors such as TFC, since it can mean multiple shipments per booking which is expensive and time-consuming. However for individual filmmakers this should be quite do-able….just make a Bluray and a DVD for each DCP and stick them in the DCP case so they travel with the drive (yes I know they will probably eventually get separated…sigh). And the Golden Rule remains….that is never ever ever travel to a festival without at least a Bluray and a DVD backup on your person. It never ceases to amaze me how many (most) filmmakers will fly to a foreign country for a big screening of their film and simply trust that their film safely arrived and has been tech checked and ready to go. If your DCP fails at a screening that you are not at…well that sucks but you’ll live. If you travel to present your film at a festival and you are standing in a crowded theater and your film doesn’t play and everyone has to go home disappointed, that, in fact, is a disaster.
As mentioned previously, more and more venues that cannot afford to upgrade to DCP projection are choosing to ask for films to be delivered as an Apple ProRes 422 HQ on a hard drive. Since this is not a traditional exhibition format, a lot of filmmakers do not think they need to have this ready and are caught unawares when a venue cannot or will not accept anything else. At The Film Collaborative, we keep a hard drive of each of our films ready to go at our lab…as mentioned we do not prefer to use them because of the extra shipping cost (DCPs are trafficked from festival to festival so at no shipping cost to us, while hard drives are not used often enough to keep them moving like this). However we do find we often need them in a pinch. So do keep one handy and ready to go out. This should not be a big deal for filmmakers, since the Apple ProRes 422 HQ spec is the most important format you’ll need for nearly all types of distribution deliveries, whether it be to distributors or digital aggregators or direct to digital platforms. So, if you plan to have any kind of distribution at all, this is a format you are almost certainly going to need. Make a couple to be safe.
Is the Future in the Cloud?
As I have touched on before, the Holy Grail of independent film distribution would seem to live in the cloud, wherein we could leave physical distribution formats behind and simply make our films available electronically via the internet anywhere in the world. This would change the economics of independent film radically, if we could take the P out of Prints & Advertising and save dramatically on both format creation and format shipping. Unfortunately today’s reality is far more complicated, and is not certain to change any time soon.
I can’t begin to tell you how often…nearly every day…small festivals looking to save on time and shipping will ask me if I can send them the film via Dropbox or WeTransfer or the like. The simple answer is no, not really. So every time they ask me, I ask them back…exactly how do you think I can do that? What spec do you need? What is the exact way you think this can work? And they invariably answer back…“We don’t know…we just hoped you’d be able to.” It is utterly maddening.
Here’s the tech-heavy problem. Anyone can get a professional-sized Dropbox these days…ours is over 5,100 gigs (short for Gigabytes, or GB) and an average 90 minute Apple ProRes 422 HQ is around 150 gigs…so that doesn’t seem like a problem. Clearly our Dropbox can fit multiple films.
The current problem is in the upload/download speed. At current upload speeds, a Apple ProRes 422 HQ is going to take several days to upload, with the computer processing the upload uninterrupted all the time (running day and night). Even this upload time doesn’t seem too daunting, after all you could just upload a film once and then it would be available to download by sending your Dropbox info. However, the real problem is the download…that will also take more than a day on the download side (running day and night) and I have yet to ever come across a festival or venue even close to sophisticated enough to handle this. Not even close. Think of the computing power at current speeds that one would need to handle the many films at each festival that this would require. And to be clear, I am told that WeTransfer is even slower.
To make this (hopefully) a little clearer…I would point out four major specs that one might consider for digital delivery for exhibition.
- Uncompressed Quicktime File (90 mins). This would be approx. 500 gigs. Given the upload/download math I’ve given you above, you can see why 500 gigs is a non-starter.
- Apple ProRes 422 HQ (90 mins). Approx 150 gigs. Problematic uploaded/download math given above. Doesn’t seem currently viable with today’s technology.
- HD Vimeo File made available to download (90 mins). Approx 1.5 – 3 gigs. This format is entirely doable—and we now make all our films available this way if needed. This format looks essentially the same as Bluray on an HD TV, but not as good when projected onto a large screen. This can be instantaneously emailed to venues and they can quickly download and play from a laptop or thumb-drive or even make a disc-based format relatively inexpensively. However, there are two major problems…a) most professional venues that value excellent presentation values and have large screens find this to be sub-par projection quality and b) this is a file that is incredibly easy to pirate and make available online. For these reasons, we currently use these only for emergency purposes…when we get last minute word that a package hasn’t arrived or an exhibition format has failed. It is quite a shame…because this is incredibly easy to do, so if we could find the right balance of quality and security…we would be on this in a heart-beat.
- Blu-Ray-Quality File (Made available via Dropbox)(90 mins). This spec would be just around the same quality as a Bluray (which is quality-wise good enough for nearly all venues) and made available via Dropbox or the like. It is estimated that this file would be around 22 – 25 gigs. This would be slow, but potentially doable according to our current upload/download calculations. This is the spec we at TFC are currently looking at…but to be clear we have NOT ever done this yet. Right now it is our pipe dream…and our plan to implement in 2016. I will follow up on this in further posts!
To conclude, where we stand now, we have yet to find a spec that is reasonably made available to venues via the internet, both in terms of quality and safety protocols…but a girl can dream.
It is critical to note that the folks I am talking to recently are saying this may NOT change in the foreseeable future…because internet speeds worldwide might need to quintuple (or so) in speed to make this a more feasible proposition. Nobody that I know is necessarily projecting this right now. And that’s a sobering prospect that might leave us with physical deliverables for quite a while now. And for now, that would be the DCP with Bluray back-up. If this changes, you can be sure we will write about it here.
But hey, maybe that Quantum Computer I’ve heard about will sudden manifest itself? Gosh, that would be cool. In the meantime…how about a long-range battery that runs an affordable electric car and is easy to recharge? That would be super cool too. We can save the world and independent film at the same time.
In the meantime…if you think I am missing the point on any of the nerdy details included in this post, or you know anything about how digital delivery of exhibition materials that I might have missed, please email me. Trust me….we want to hear from you!
Jeffrey Winter November 24th, 2015
Tags: Apple Pro-res, BluRay, DCP, Digital Cinema Package, digital film delivery, DVD, film deliverables, film distribution, film exhibition, HDCam, Jeffrey Winter, Prints and Advertising, The Film Collaborative
The Face-to-Face Teaching Exemption and Fair Use in Education Distribution: Clearing up some misconceptions
Written by Orly Ravid and Guest co-Author Jessica Rosner, who has been a booker in the educational, nontheatrical and theatrical markets since the days of 16mm. Recent projects include Jafar Panahi’s This Is Not a Film and John Boorman’s Queen and Country.
A recent blog by Orly Ravid covered just a little bit about educational rights and distribution. This blog is intended to develop that in response to a comment about the “Face-to-Face” teaching exception. This exception defines what films can be shown for no license or permission by the producers or rights holders.
The Copyright Act provides for an exception to needing a copyright holder’s permission to exhibit a copyrighted such as a film. That exception, however, is only for “face-to-face teaching” activities of a nonprofit educational institution, in a classroom. That’s why it’s called the “face-to-face” exemption.
I emphasized the key words to clarify that this exception does NOT apply to social club or recreational screenings of films or any exhibition that is not in “classroom” or “similar space devoted to instruction” where there is face-to-face instruction between teacher and student and where the exhibition relates to the educational instruction. Second, not all institutions or places of learning are non-profits. All this to say, the “face-to-face” exemption is not a carte blanche free-for-all to show any copyrighted work in any context as long as there are books around within a mile radius. This is important because educators and distributors are often unclear about what can and cannot be done under this exception to proper permission to distribute or exhibit a film without permission (which often includes a fee).
Below is some key information about the state of educational distribution in 2015 and can be done lawfully without the licensor’s permission (under the Copyright Act):
Viable options for educational distribution that involves either selling physical copies, download, or licensing streaming rights or other rights and type of rights or sales, including price points, terms, limitations, etc.
It’s important to understand that “educational sales & use” is not legal term and that educational institutions have the right to purchase any film that is available from a lawful source and use it in an actual physical class under the “face-to-face” teaching section of copyright law (discussed above). Also okay is for them to keep a copy in the library and circulate as they choose.
However, if as increasingly the case, they wish to make films available via streaming or to exhibit them outside of a class they must purchase those rights. A filmmaker or distributor can charge a higher price to an institution to purchase a DVD if they control all sales but that would be a contract situation and mean the film basically has no sales to individuals. This is done but mostly with non-feature films or ones whose market is intended to be only institutions and libraries.
Streaming rights offer a real opportunity for income for filmmaker provided they are willing to sell rights to institutions in “perpetuity” (meaning, forever). They will make more money and the institution is far more willing to purchase. Many if not most universities now want to have streaming rights on films that are going to be used in classes.
Exhibition of film at universities or educational institutions that is NOT paid for (not licensed or bought from copyright holder) – when is it legitimate (lawful) and when is it not so?
It is legal to show the film in the classroom provided it is legal copy (not duped, bought from pirate site, or taped off television). Any public showings outside the classroom are illegal. Streaming entire feature films is also illegal but streaming clips of films is not.
What is the reason or rationale for the non-lawful use?
If it is a public showing (exhibition) they (and this is usually either a student group or professor, not administration) claim “they are not charging admission” and/or that “it being on a campus” makes it “educational and in extreme cases they claim that it actually IS a class. Illegal streaming is far more insidious and involves everything from claiming streaming a 2-hour film is “fair use,” (which would justify showing it without permission) or, that somehow a dorm room or the local Starbucks is really a classroom. Bottom line: not all use of film can be defended as “fair use.” Exhibiting not just clips but a whole film is usually not lawful unless the “face-to-face” teaching exemption requirements (discussed above) are met.
There is a disconnect for these educational institutions between how they treat literature vs. cinema:
All the parties involved in streaming (legal and illegal) librarians, instructors, tech people, administrators know that if they scanned an entire copyrighted book and posted on campus system for students to access it would be illegal but some of the same people claim it is “fair use” to do with a film. I actually point blank asked one of the leading proponents of this at the annual American Library Association Conference if it was legal to stream CITIZEN KANE without getting permission or license and he said yes it was “fair use” when I followed up and asked if a school could scan and post CATCHER IN THE RYE for a class he replied “that is an interesting question.” It is important to note that “fair use” has never been accepted as a justification for using an entire unaltered work of any significant length and recent cases involving printed material and universities state unequivocally that streaming an entire copyrighted book was illegal.
Remedies to unlawful exhibition of copyrighted works for distributors or licensors:
Independent filmmakers need to make their voices heard. When Ambrose Media a small educational company found out that UCLA was streaming their collection of BBC Shakespeare plays and took UCLA to court supported by many, other educational film companies, academics reacted with fury and threatened to boycott those companies (sadly the case was dismissed on technical grounds involving standing & sovereign immunity and to this day UCLA is steaming films including many independent ones without payment to filmmakers). For decades the educational community were strong supporters of independent films but financial pressures and changing technology have made this less so. (Jessica Rosner’s personal suggestion is that when instructors protest that they should not have to pay to stream a film for a class, they should be told that their class will be filmed and next year that will be streamed so their services will no longer be needed). Orly Ravid gives this a ‘thumbs up’.
Of course remedies in the courts are costly and even policing any of this is burdensome and difficult. Some films have so much educational distribution potential that a distribution plan that at first only makes a more costly copy of the film/work available would prevent any unauthorized use of a less expensive copy or getting a screener for free etc. But not all films have a big enough educational market potential that merits putting everything else on hold. And once the DVD or digital copies are out there, the use of that home entertainment copy in a more public / group audience setting arises. As discussed above, sometimes it’s lawful, and sometimes, it’s not but rationalized anyway. It is NEVER legal to show a film to a public group without rights holder’s permission. Another viable option for certain works, for example documentaries, is to offer an enhanced educational copy that comes with commentary, extra content, or just offer the filmmaker or subject to speak as a companion piece to the exhibition. This is added value that inspires purchase. Some documentary filmmakers succeed this way. It is extremely important to make sure your films are available for streaming at a reasonable price.
Parting thoughts about educational distribution and revenue:
Overall, we believe most schools do want to do the right thing but they are often stymied when they either can’t find the rights or they are not available so get the word out.
Streaming rights should be a good source of income for independent filmmakers but they need to get actively involved in challenging illegal streaming while at the same time making sure that their works are easily available at a reasonable price. It can range from $100 to allow a school to stream a film for a semester to $500 to stream in “perpetuity” (forever) (all schools use password protected systems and no downloading is allowed). TFC rents films for a range of prices but often for $300. You may choose to vary prices by the size of the institution but this can get messy. Be flexible and work with a school on their specific needs and draw up an agreement that protects your rights without being too burdensome.
Orly & Jessica
Orly Ravid August 20th, 2015