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.

fair_userecent 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.

Happy distribution!

Orly & Jessica

Letter to Filmmakers of the World: What Do You Want Next?

Dear Filmmakers of the World,

I write to you to ask: what do you need, what do you want?

For five years The Film Collaborative has been excelling in the film festival distribution arena and education of filmmakers about distribution generally and specifically as to options and deals. TFC also handles some digital distribution directly and through partners. And we have done sales though more on a boutique level and occasionally with partners there too, though never for an extra commission. You know how we hate extra middlemen! We even do theatrical, making more out of a dollar in “P&A” than anyone and we do a really nice job TFC has a fantastic fiscal sponsorship program giving the best rates out there.

TFC published two books in the Selling Your Film Without Selling Your Soul series and we are probably due to write a third, detailing more contemporary distribution case-studies. I got a law degree and am committed to providing affordable legal services to filmmakers and artists, which I’ve started doing.

We have never taken filmmakers rights and find that most filmmakers are honorable and do not take advantage of that. We trust our community of filmmakers and only occasionally get burned. And we have accounted without fail and paid every dollar due. No one has ever said otherwise. We do what we say we’re going to do and I am so proud of that and so proud of the films we work with and the filmmakers in our community.

So, now what? What do you, filmmakers of the world, want more of? What don’t you need anymore?

Personally, I find it staggering and sad how much information is still hidden and not widely known and how many fundamental mistakes are made all the time. Yet, on the other hand, more information is out there than ever before and for those who take the time to find and process it, they should be in good shape. But it’s hard keeping up and connecting-the-dots. It’s also hard knowing whom to trust.

TFC continues to grow and improve on what it excels at, e.g. especially festival/non-theatrical distribution. We’ve got big growth plans in that space already. My question to you is, do you want us to do more Theatrical? Digital? Sales? All of it? More books? What on the legal side? Please let us know. Send us an email, tweet, Facebook comment, a photo that captures your thought on Instagram, or a GoT raven. I don’t care how the message comes but please send it. We want to know. TFC will listen and it will follow the filmmakers’ call.

We’re delighted to have been of service for these last 5 years and look forward to many more. The best is yet to come.

Very truly yours,

Orly Ravid, Founder

p.s. our next new content-blog is coming soon and will cover educational distribution and copyright issues.

8 Legal Tips for Documentary Filmmakers

This article was originally posted on Indiewire on July 6, 2015.

From life rights to fair use, here’s what you need to know about legal issues before you make your documentary.

Over the course of my career, as both the founder of The Film Collaborative and an attorney in private practice at Early Sullivan, I have noticed a lack of understanding by filmmakers regarding the law and documentary film distribution. I hope to provide some clarity in the following blog post. But keep in mind that this post does not replace legal advice tailored to a specific film, filmmaker and distribution options/deals. Feel free to contact me with specific inquiries (contact info at the end of this post).

1. Life rights

Recently at the Edinburgh Pitch / Film Festival a filmmaker asked me a very interesting question about “life rights.” He asked whether he could prevent a media outlet from covering a story about a person or persons in a way that competed with his forthcoming documentary. He wanted to know if his having life rights to a person’s or persons’ story would make a difference. The short answer is “no;” there really is no legal protection of “life rights.”
A life rights agreement obligates the subject selling his/her life rights to cooperate with the buyer. The subject/seller is committing to helping the buyer obtain information about the subject’s life and releasing the buyer from any claims by the subject against the eventual filmmaker, and ideally also to promoting the project. These agreements, however, cannot stop a third-party from taking an interest in the story facts and covering them.

Factual information is not copyrightable. That is not to say there are no copyright theories to protect a documentary from being overtly copied. But there is no legal way to prevent a third-party from using the same true facts and expressing those facts in another work. So, one might want to keep exposure of the story under wraps, if possible, until the documentary is out, and proceed with making an excellent documentary that demands to be seen and won’t be trumped by news segments or other content.

If this issue is coming up for you and you have a concern about being overtly copied beyond the facts, then you may want to discuss with an attorney. Chances are the other party will not copy too much beyond the non-copyrightable facts for there to be legal recourse. And many jurisdictions are not so copyright-friendly to begin with. This would be especially true for documentaries where the content is non-fiction and akin to journalism.

2. Worldwide rights deals

This issue combines legal and business issues I have encountered as both an executive and an attorney. These days, with platforms such as Netflix providing international opportunities to documentary filmmakers, one should be wary of committing to international sales agents to make the “worldwide” deal. An adept U.S. sales agent or lawyer could procure and handle a great worldwide Netflix or CNN deal. A U.S. agent or lawyer might have a better shot at the worldwide deal, hence it makes sense to exhaust that option before committing to an international sales strategy. This may be of interest because often the U.S. agents’ and lawyers’ commissions and recoupable expenses are sometimes lower than an international sales companies’ (and there is often good reason for that given the breadth of territories and markets to cover on the international front).

In my experience, many American documentaries do not do well overseas and, even when they sell, they sell small. Of course there are exceptions. Point being; evaluate the potential of one big U.S. deal with lower commissions versus using international sales agents, who typically charge more. Have an experienced lawyer or producer help you carve out rights based on these possibilities (if applicable) or perhaps to help you know if and when it is appropriate to bring an international sales agent on board. Being realistic about your film’s potential based on market conditions and appropriate comparisons is critical to effective distribution and the avoidance of mistakes.

3. Educational rights vs. digital distribution

At The Film Collaborative we often notice that the more successful a film is via educational distribution and festival/non-theatrical distribution the less successful it is via traditional television and digital distribution. In short, certain less-commercial content is appealing to film festival programmers, universities, museums and other educational/non-theatrical outlets. There are, of course, exceptions to that rule and some documentaries do well across all rights and categories of distribution. These days, educational distribution involves streaming (in addition to digital master exhibition or DVD sales) but for a higher price-point than retail streaming.

Some education institutions are savvy enough not to use commercial retail copies of your film for a classroom or campus exhibition, but some do, without realizing there is a potential legal issue. If your film could do especially well on the festival circuit and through educational distribution, then you might want to delay your regular home entertainment digital and television distribution. It is also true that many film festivals will not show your film if it’s commercially available via consumer-facing platforms such as iTunes and Netflix. Most all-rights distributors do not handle educational rights either at all or as well as certain specializing educational rights distributors. Therefore, you might want to save those rights for a company specializing in “exploiting” them. The key will then be coordinating rights and windows between distributors in any given territory. Note that splitting rights is generally not an option with the majors but it is with many others and I have personally done as many as seven deals in a single territory.

4. Rights for the future

Protecting your rights for the future while satisfying the licensee (buyer/distributor) for the term of an ongoing deal can be challenging. Most deals of the past didn’t anticipate the digital age, including the Internet and streaming. There have been scores of legal battles over contracts that didn’t explicitly address digital distribution, causing parties to a deal to fight over digital rights (for example squabbling over what is included in “all technologies now known or hereinafter invented,” home video or “videogram” rights). Another even more common battle would be over whether digital rights falls into the video (VHS and then DVD) royalty or TV/broadcast.

The reason for the fight was, of course, the fact that the royalty to licensor (producers/filmmakers) or distribution percentages to distributor differ based on rights category (classification of rights). I think the degree to which one raises this as an issue should be based on the overall potential of the film in the present and the degree to which it may be evergreen or experience an uptick based on cast name recognition or genre. I like to do deals that are not only rights class/category-oriented (e.g. broadcast rights, theatrical rights), but that are broken down by revenue, and anticipate the future. You may not always have leverage to do this but if you do, it’s worth analyzing so that you do not risk having a category of rights or type of distribution that you once took for granted all of a sudden emerges as very significant and the terms are simply not in your favor and now you are locked in for 20 years. Also, you would have other protections for such a long license term if it cannot be avoided.

5. Fair use

A quick note to enlighten filmmakers about the doctrine of Fair Use, which affords one an exception to copyright protection for content used that would otherwise be protected by copyright, but only if certain factors are met. Factors include an analysis of how much of the copyrighted content at issue is used in the work; the nature and purpose of the work (for e.g. is it educational); and the effect of the use of the copyrighted work on the marketplace (e.g. will its use likely effect the potential market for the copyrighted work). This comes into play in documentaries all the time. Documentaries use new footage, photography, movie clips, archival content, etc. Fair Use is a copyright principle that allows certain otherwise copyright protected content to be used for commentary, criticism and educational purposes.

Fair Use is a legal theory and an exception to copyright that one can use a defense. It is not a license. This means that the holder of the copyright may still sue you even if you have a fair use letter from the attorney who helped you to obtain E&O insurance. So, for example, you and your attorney may believe that your use of 15-minutes of “Magic Mike XXL” in your documentary about contemporary feminism in the least expected place is “fair use,” but Warner Brothers might think otherwise. Or, maybe they’ll love it and even offer you a distribution deal. But if the copyright owner of the content perceives they lost money because of your work or is offended by how your work portrayed their work, you may be more at risk.

Of course, my example is a tad silly but the point is that when you use someone else’s copyrighted content, the degree to which you can is not always crystal clear at the outset as a matter of law. All this to say, just remember that fair use opinions are just that, opinions. A copyright holder can still sue your distributor and/or the production company entity that made the film if they feel their content has been infringed. [This assumes that you know better than to make a film under your own personal name that could expose you to significant risk of legal liability risk.] Be sure to consult an attorney BEFORE you edit your film to final cut so that you can minimize your risk of including content that might trigger a lawsuit. Lawsuits are costly and can impede distribution.

6. Price lock for licensing rights not actually licensed ahead of premiering

Well before your premiere, resolve the price for any music, footage, etc. that you are not licensing for worldwide rights in perpetuity. For example, your production budget may not allow for worldwide licensing in all rights and you may never have good reason to pay for that. So at first you license more limitedly. But it is best practice to resolve the price for any remaining rights (and for any remaining territories) so you don’t have to worry about the price being higher once the film is finished and distribution is underway. The price most often would only go up based on any success you have, and it’s better to have your licensing details resolved before you show the film and prepare it for distribution, whether DIY or via distributors.

7. Contracts are for honest people

This one is for ALL filmmakers, not just documentaries. I have seen countless disputes between people who verbally agreed to or thought they agreed to something and then argued about the agreement. It is also much more difficult to enforce an agreement not on paper. Contracts help people clarify and establish on paper what they mean (note that I have seen many convoluted contracts seemingly designed to confuse). With proper thinking, planning and good lawyering, contracts can help clarify exactly what people intend and mean by certain terms or phrases.

Contracts help force parties to think things through. Unfortunately, people fear entering into a contract or bringing up the idea of a formal agreement because they think it’s insulting or offensive. “What, you don’t think I’m honest?” Yet if one establishes from the outset that contracts are for honest people, then the other party will likely not be offended. A clear and well-drafted contract will help avoid litigation, not create it. I have seen way too many people wronged by trusting things will work out. Friends turn to frenemies over credit, money and vision issues that weren’t explicitly laid out on paper. Someone worth having on your team will not object to having a formal, non-onerous agreement. If they do, you want to analyze why.

8. Lawyer who knows distribution

Do not have your uncle, friend or family attorney who knows nothing about distribution do your legal work for your film. That is irresponsible and will harm you in the long run. Handling distribution and film licensing contracts requires a strong knowledge of the business and supporting law. Even issues around how to enforce rights via international deals and whether or not to have an arbitration provision are specific and require industry knowledge, specifically distribution knowledge. Of course, this is especially true for rights issues.

I have been asked other questions pertaining to chain-of-title, project control, financing, etc. that are beyond the scope of this post. Please feel free to reach out if you would like me to address something specifically.

Disclaimer: This article does not constitute legal advice and you should consult a lawyer about your specific situation. Also note that the images which accompany the story represent examples of films that TFC is handling for festival distribution. They are not involved in the legal concerns mentioned in the article.

How to Win at Film Festival Roulette: Stacking Your Odds at the Top Fests

This article was originally posted on indiewire on June 26, 2015.

Be smart in organizing your priorities, do your homework and prepare for the emotional roller coaster of festivals. To help you, we’ve asked an experienced distributor to run down the numbers, so you can determine your odds.

Bryan Glick is the director of theatrical distribution for The Film Collaborative. Some of his notable releases include "I Am Divine," "Manos Sucias" and "1971". He has also worked for LAFF, AFI Fest and Sundance. Below is his take on the top festivals.

We at The Film Collaborative frequently hear from filmmakers after the fact that they regretted premiering at festival "A" and wish they had opted for festival "B." Similarly, when we ask a filmmaker why they want to premiere at a particular film festival, we rarely get an answer grounded in research.

The truth is that all the top festivals have certain types of films they gravitate towards, and all attract certain kinds of buyers looking for a particular type of product. With Sundance, Berlin, SXSW, Tribeca and Cannes behind us (and many filmmakers going into production to meet their Sundance deadline or wrapping up to apply for TIFF), we thought that now would be the perfect time to step back and look at the bigger picture of the 2015 festival landscape (including TIFF 2014).

We chose to define this list based on the number of films that screened at each festival and had not publicly stated they were being distributed before the festival lineup was announced.

The number of films listed as being acquired is to the best of our knowledge. This includes many films that have yet to go public with their distribution deals but that we can confirm from filmmakers, distributors and/or sales agents.

While we focused on a small list of top festivals, please note that major deals can come from any of a variety of festival. All that said, the following is the look at the major premiere festivals most filmmakers we meet with are pursuing.

2015 Sundance Film Festival

By the numbers:

  • 74 Sundance acquisitions (including 19 for over $1 million)
  • 74 of 104 films acquired
  • 18 of 25 award winners acquired

Buyers: A24, Alchemy, Broad Green Pictures, Film Arcade, Fox Searchlight, Gravitas, HBO, IFC, Kino Lorber, Lionsgate, Magnolia, Netflix, Showtime, Sony Pictures Classics and The Orchard.

The lowdown: Sundance is perhaps the Holy Grail as far as buyers are concerned. Sundance is a popular stomping ground for Netflix and the all rights deals that
are much harder to come by at Cannes or TIFF. The fest is especially effective for highlighting documentaries and top notch narrative films.

The only catch is that Sundance simply isn’t an international festival. If you don’t take the all rights deal it can be much more work selling the film abroad. Since Sundance is the first big festival stop of the year, many distributors jockey for position. But if your film is not American, this might not be the festival for you. Half of the world doc/world dramatic films have yet to secure North American distribution; all but four films in the U.S . Dramatic and Documentary section have secured distribution and almost all were in six or seven figures.

As far as getting into the festival, the festival is notoriously insular. A strong majority of U.S. Competition films are backed by the Sundance Institute and/or come from Sundance alumni. Also, Sundance tends to stick to theatrical length films. You will rarely see 50-70 minute films accepted. They show a particular interest in politically-oriented documentaries. 

SXSW 2015

By the numbers:

  • 37 SXSW Acquisitions
  • including 3 for over $1 million 
  • 37 of 100 films acquired
  • 11 of 17 award winners acquired

Buyers: Netflix, Drafthouse Films, Roadside Attractions, Gravitas, FilmBuff, Alchemy, Vertical Films, Ignite Channel and IFC

The lowdown: SXSW is always a tricky proposition. With 145 films (20+% more than Sundance or Tribeca) presented over nine days instead of 11-12, there’s simply a lot going on. This means it is much easier to fall through the cracks. Since the festival doesn’t sell tickets ahead of time, it’s very possible nobody will show up to your screening.

However, the fact that the slate skews younger and is more adventurous often means that films have large built-in fan bases, and that there are bold discoveries that distributors can sometimes get at bargain prices. There is a reason FilmBuff and Gravitas nabbed at least eight films combined. Throw in Netflix and you have 11 titles that we can confirm going a targeted digital route.

This is the one top festival where your film is guaranteed to get screened by a festival programmer when you submit. They go out of their way to find filmmakers who are not as connected to the industry. If you don’t have industry contacts, this might be your best bet. The festival primarily programs American films and is a popular follow up to TIFF and Sundance. They also shine a light on local Texas talent.

2015 Tribeca Film Festival

By the numbers:

  • 22 Tribeca acquisitions including 3 for over $1 Million
  • 22 of 79 acquired
  • 3 of 15 award winners sold

Buyers: A24, IFC, Saban Films, Paramount and Strand Releasing all took multiple titles

The lowdown: Tribeca screens fewer films than the other top North American fests and has a reduced schedule during the regular workweek. As the only top festival in a major U.S. industry hub, things tend to follow a more traditional trajectory.

However, we find films at Tribeca often don’t think about the long game. With summer being a slow period, many films will simply stop pursuing festivals while waiting for a deal—a strategy that tends to backfire, as more often than not they wind up forgotten.

While the narrative quality is growing, the star-driven fare tends to dominate. Some based on their star brand can get big deals, but at its heart, the fest is really about documentaries. They have a lot of character profile and political documentaries that fall under the awards bait category and frequently appeal to a more traditional indie film crowd.

As Sundance continues to narrowly define their documentary programming, Tribeca is proving to be an industry asset. This is also a great fest to go to as a North
American premiere. Frequently films that fall through the cracks at Berlin, IDFA and Rotterdam get more attention here, and also tend to be the winners on awards night. Accordingly, if you’re an American filmmaker and awards are important to you, recent history suggests that you might want to bypass this fest. Additionally (unlike SXSW), they embrace their local filmmakers far less, preferring to focus on the international power.

2015 Cannes Film Festival

By the numbers:

  • 21 of 81 acquired
  • 9 of 25 award winners acquired

Buyers: Alchemy, Cohen Media Group, IFC, Kino Lorber, Radius-TWC, Strand Releasing, Film Movement, IFC and Sony Pictures Classics

The lowdown: Cannes is the international behemoth and certainly being in competition is the best place to launch a film as a foreign language contender. The festival skews much more international in its programming and deal opportunities. While the U.S. distribution picture is bleaker, the rest of the world rapidly snatches up everything they can from the festival.

This is perhaps the most insider-y of the festivals. Only one film in competition was from a first-time director. Cannes frequently pulls from their own rank and file. They also show the fewest number of documentaries of any festival on the list and those are almost solely films about film/filmmakers/actors.

There are similarly few slots for genre fare. Films in the other sidebars like Directors Fortnight and Un Certain Regard are far less likely to get North American distribution when the dust settles, but can usually count on a long festival life.

Cannes, of course, is committed to films from France. However, the festival has continued to struggle in highlighting female directors.

This festival is easily the worst of the bunch for thinking outside-the-box when it comes to distribution. DIY is basically a dirty word and very few crowdfunded films get in. Distributors are also less likely to tout how much they paid for a film in press releases, which is why we do not list the amount of seven-figure deals.

2015 Toronto Film Festival

By the numbers:

  • 99 TIFF films acquired (including 16 for over $1 million)
  • 99 of 214 acquired

Buyers: A24, Alchemy, Bleecker, Broad Green, Image Entertainment, Lionsgate, Magnolia, Roadside Attractions, Paramount, Radius-TWC, Relativity, Saban Films, Sony Pictures Classics, Breaking Glass Pictures, China Lion, Focus World, Cinema Guild, Cohen Media Group, Film Movement, IFC, Lionsgate, Magnolia, Monterey Media, Drafthouse Films, Oscilloscope, Strand Releasing, Music Box Films, Screen Media, Saban Films, Kino Lorber and The Orchard

Now, keep in mind that TIFF was a full nine months ago. So why the relatively low numbers when compared to Sundance or even SXSW?

The truth is that TIFF has too much product and is largely geared toward star-driven fare. It can be a place to snatch up leftovers from Cannes and Locarno, but non-star driven English language fare (including several Canadian films), documentaries and any of the films in the Discovery, Contemporary World Cinema and Wavelength sections are  unlikely to generate much attention.

The nice thing about TIFF is they take films from more countries than anywhere else. The fest also has never been too concerned with length, with many films over two and a half hours and others not even reaching 70 minutes.

With such a wide variety of films TIFF is the most eclectic and hardest to define programming-wise. They take a lot more genre fare than the other fests and their docs tend to reflect an international worldview. The seven figure deals almost exclusively come from star-driven fare. If a film is in English and Oscar bait, but lacks distribution this is the place to be. Keep in mind that documentaries account for less than 15% of the festival’s lineup.

Of course, keep in mind that many more films from these festivals will ultimately secure some form of domestic distribution. It took TFC’s "Gore
Vidal: The United States of Amnesia" nine months after its Tribeca premiere to secure its IFC deal and it ultimately went on to become the second highest grossing film from Tribeca 2013.

So be smart in organizing your priorities, do your homework and prepare for the emotional roller coaster of festivals.

New York Times Limits Film Reviews: A Response

After reading this article from the New York Times regarding a change in their film review policy, TFC staff would like to offer their take on the decision and whether it will affect many independent films.

Bryan Glick (Film Submissions & Theatrical Support):

Last year the New York Times reviewed over 900 movies! While the announcement did not say how many films they will/won’t review, it’s reasonable to assume that this will work to deter some of the gluttony of Oscar Qualifying Docs and what otherwise would be straight to digital genre fare.

These films rarely get positive reviews anyway and I would argue there are better ways for them to generate exposure.

The business most impacted by this are companies like Cinemaflix (Formerly Quadflix) that have been profiting immensely from Oscar Qualifying runs, in part, by guaranteeing a NYT review.

Because of the major advertising $$ the NYT still will review the majority of films opening and certainly just about anything from the top festivals.”

Sheri Candler (Social Network & Digital Marketing Advisor) :

I think this has been in the works for a while, starting with this Manohla Dargis Times article in 2014  There ARE too many films being made with no thought to who is going to know about them or view them.

Does a Times review, on its own, help a film’s financial success all that much? Probably not. A good review probably did help with getting other cinema bookings, though. It is also something the industry read and measured the worth of a film by, even if consumer interest in watching independent films in the cinema is waning.

Newspapers themselves are in a waning industry and staff cuts, especially in arts criticism, are inevitable…so I can understand that is just impossible for every film playing in a New York cinema to get a written review from a dwindling newspaper staff.

Ultimately, I believe people go to see a film based on what their friends and colleagues recommend, so it is time to consider how to reach a passionate audience directly, without having to rely on media entities to reach them for you. Word of mouth has always been stronger than a critic’s voice, so concentrate on making something that excites rather than mourning that a New York Times critic won’t help you.”

David Averbach (Creative Director and Director of Digital Distribution Initiatives):

These reviews have always served a dual purpose. On the one hand, they inform New Yorkers as to what is going on in the city in any given week. On the other hand, they are an arbiter of taste that will, for better or worse, live on in digital archives until the end of time.

It’s hard to imagine, however, that the New York Times would divest its influence in either of these arenas, which is why I think that for films that have something to say, things will probably stay the same.

If we see some attrition in the number of films released theatrically because of this, perhaps the NY Times will still be able to remain completely current while at the same time cutting the corners it needs to cut.

Jeffrey Winter (Co-Executive Director):

“Since last week, I’ve already had an actual experience regarding this.

On Thursday (the day the article was published), I met with members who were raising money for the standard DIY four-wall in NYC/LA and who were counting on a NY Times review to help the digital. Then I got home and found that article and showed it to them. They immediately decided they didn’t want to raise the money if they couldn’t get a NY Times review.

Of course we all know that these NYTimes reviews can’t make enough of a difference to make their digital work, but filmmakers have a hard time hearing that absolutely nothing is going to make their digital work because their film is too mediocre that nothing will make it stand out.

So I think this will discourage the admittedly tired DIY standard, and theaters that have come to rely on that revenue will lose some business.

But I agree with the New York Times’ decision. Most of those film had no business being in the NY Times anyway.”

Orly Ravid (Founder and Co-Executive Director):

“On the one hand, this suggests what we already know, which is that media and information dissemination and influence is increasingly decentralized, giving more voice to non-traditional speakers.

But, on the other hand, this puts a lot of pressure on one’s ability to captivate people without a centralized or very widely consumed platform.

A great New York Times review still makes a difference in ticket sales and digital distribution success (DVD, too, of course, for now). It also helps get financing. It’s a stamp of approval—it’s good for ego, yours and your investors’.

Will that ever change?

Only if the folks not relying on NYT because they cannot actually manage to influence audiences en masse some other way. There’s still the issue of stamp of approval—I think many in the industry and many audiences still want to rely on known critics—but it’s true that many of us see a film because someone we know personally and trust told us to.”

The times they are a-changin’.

Thoughts on the EU Digital Single Market

Some of you may have heard that about a week ago the European Film Commission announced the Digital Single Market Plan (which may also apply to TV licensing). Variety covered the story HERE and HERE.

You can read for yourself what the fuss is all about but essentially, the EU Film Commission’s plan is to combine the 28 European territories into a common market for digital goods, which would eliminate “geo-blocking,” which currently bars viewers from accessing content across borders – and yet purportedly, the plan would preserve the territory by territory sales model. Filmmakers, distributors, the guilds, et al argue that this proposal would only help global players / platforms such Netflix, Amazon and Google, which would benefit from a simpler way to distribute content across Europe.

The IFTA (International Film and Television Alliance) expressed concerns that this would enable only a few multinational companies to control film/tv financing.  Variety noted that although politicians insist the idea of multi-territory licenses won’t be part of the plan, those in the content industry remain concerned about passive sales and portability and the impact on windows and marketing.

In the US, digital distribution is just hitting its stride and is also finally getting anchored properly in Europe.  Now this idea would be one step closer to one-stop-digital shopping, or selling.  Though allegedly that’s not in the plan – but it would sure be a step in that direction.

Cannes Marche du Film

photo credit: movantia

Some are railing against it and warning against eliminating territory sales and windowing, hurting financing, and truncating important local marketing. Well, maybe and maybe not.  I think it depends on the type of film or film industry player involved.  A blockbuster studio hit or indie wide release sensation with international appeal may very likely be big enough to sell many territories, be big enough to warrant spending significant marketing money in each territory’s release, and be culturally malleable enough to lend itself to new marketing vision, materials, and strategies per market. On a related note, I remember hits such as Clueless being translated into different languages not just literally, but also culturally – modified for local appeal.  That’s great, and possible, for some films.

But for most of the films we distribute at TFC and for the great majority on the festival circuit, they’ll be lucky to sell even 10 territories and many won’t sell even half that.  Some sales in Europe are no minimum guarantee or a tiny minimum guarantee, just like it is State-side. Some films are financed per EU territory (government funding often) but that’s on the decline too.

The dilemma here about a digital single market in the  EU recalls another common dilemma about whether to hold out for a worldwide Netflix sale or try to sell European TV or just EU period, one territory at a time. I’m not forgetting Asia or Africa but focusing on the more regular sales for American art house (not that selling Europe is an easy task for most American indies in any case).  Sure, if you can sell the main Western European countries and a few Eastern ones that’s worthwhile taking into account. However, so often one does not sell those territories, or if one does, it’s for a pittance.  Some sales can be for less than 5,000 Euros, or half that, or zero up front and not much more later. It’s not like the release then is career building either or a loss leader.  It’s just buried or a drop in a big bucket.

In cases such as these, it makes little sense to hold off for a day that never comes or a day that really won’t do much for you.  All this to say, I don’t think this proposal is one-size-fits all but I do think it’s worth trying on especially if you are in the petite section of the cinema aisle.  If you are not sure how you measure up, ask around, comparison shop – see what films like yours (genre, style, topic, cast, festival premiere, budget, other names involved and other aspects) have done lately.  Sometimes a worldwide Netflix deal may be the best thing that ever happened and I reckon that similarly, sometimes a plug and play EU digital deal (if this vision comes into fruition) will give you all that you could get in terms of accessing European audiences, while saving you money (in delivery and fees etc.). And then, get this, you can focus on direct-to-audience marketing – something few agents or distributors do much of anyway.

I kept this blog entry short as I stand by for more information out of Cannes and beyond and also await our TFC resident EU digital distribution guru Wendy Bernfeld (Advisory Board Member and co-author of the Selling Your Film Outside the U.S. case study book) to weigh in. In the meantime, I think it would be swell if one Cannes do digital in the EU all at once.

Please email me your thoughts to contactus [at] thefilmcollaborative.org or post them on our Facebook page so we can update this blog. We turned off comments here only because of the amount of spam we received in the past.

Spotlight on IndieFlix: a subscription-based streaming service for independent film

As part of TFC’s ongoing mission to help filmmakers find the right audience and the right distribution strategy for their specfic project, this month, we sat down with Scilla Andreen, CEO & Co-Founder of INDIEFLIX to talk about the service, what’s new, and what’s ahead.

1) How does IndieFlix work? Would you consider it a service or a platform?

Variety calls IndieFlix the Netflix of independent film. Based in Seattle and founded by filmmakers, Carlo Scandiuzzi and Scilla Andreen, IndieFlix launched with 36 titles as a DVD on-demand service in October 2005. In 2013 the model evolved into a subscription based streaming service for movie enthusiasts. IndieFlix helps you find great independent films from around the world and makes them available for $5 per month. We like to think that we entertain and enrich people’s lives by connecting them to more than 8,000 films selected from over 2500 film festivals and 85 countries. Our library includes shorts, features, documentaries and web-series. We have worldwide rights to over 85% or our library so members can watch our films from anywhere in the world on a variety of platforms including Amazon’s Fire TV, Kindle Fire, Xbox 360, Sony, Apple’s iPad, iPhone and Roku—basically any internet connected device.

2) Why should filmmakers work with IndieFlix?

If there is anything we have learned it’s that teamwork and transparency are essential to the future of independent film. Distribution costs a lot of money, and studios spare no expense with their blockbusters. But because of this the filmmaker is often the last person to ever get paid and they have no idea who their audience is or where they originate. We have created a model of efficiency, transparency and data that literally turns the old model of distribution on its head with our unique royalty payment system called (RPM) Royalty Pool Minutes model. In this model, filmmakers are paid for every minute their film is watched. We are currently building out the filmmaker dashboard to include analytics, and data on where the audience lives and on what device (such as Roku, Xbox, iOS etc.) they watch the film on. We will also be adding data on the point in the film at which a user exits a film. This is possible of course because technology allows filmmakers to be their own gatekeepers. My job is to grow the subscriber base and curate a library with a user experience that makes finding films to watch not only fun and entertaining but also meaningful. I want our audience to love finding and watching films on IndieFlix because the more they watch the more the filmmaker gets paid.

3) What are some of your favorite creative marketing solutions and/or partnerships that you have high expectations of?

Our most successful campaigns are with our device partners Roku and FireTV. We haven’t yet done a campaign with the others. As far as creative campaigns, we have no shortage, but those are more brand awareness campaigns like the time we had biking billboards ride up and down Main Street in Park city during the Sundance Film Festival. We were giving away cold hard cash to demonstrate to people what IndieFlix does…We pay filmmakers that’s why we created the company.

Another favorite campaign was handing out printed matches that said, “Strike a Revolution: IndieFlix is the perfect match.” I handed those out at the Cannes film Festival and actually met one of my investors there…Talk about a good match.

We also really enjoy marketing campaigns that we do with the filmmakers. When the filmmaker participates and we market together there is always a great return. Like our collaboration with filmmaker Kurt Kuenne. We met Kurt through Oscilloscope. We now offer three of his films on IndieFlix including: Dear Zachary, The Legend of Dear Zachary: A Journey to Change Law and Drive-In Movie Memories. We will also be releasing a rare black and white director’s cut of his film Shuffle in coming months. We will be highlighting his work through an exclusive branded director’s channel and an interview we conducted with him about the process of making Dear Zachary.

Of course Chris Temple and Zach Ingrasci the directors of Living on One Dollar, Lauren Paul and Molly Thompson of Finding Kind and Sarah Moshman and Dana Michele Cook of The Empowerment Project: Ordinary Women Doing Extraordinary Things are all exemplary filmmakers of the new order. They have mastered the art of making great movies and marketing their story globally.

4) Can you share any data? Revenues? Users? Number of films you have?

We are a privately held company and do not typically share numbers. However I am excited to say that we currently have low six figures of total users, and our library has grown to 8000 titles. A large portion of those titles we have worldwide rights.

It is exciting to have a growing user base but it is important to us that these users are watching. We want filmmakers to look at their dashboard and see their films being watched and minutes tallying up.

indieflix-film-library

5) Any success stories? And can you share details?

To be honest our greatest success stories started with the films in the IndieFlix Distribution Lab where we put the entire weight of the company behind these films to market them in schools and communities off-line as well as strategic windows online. Of course IndieFlix is the first window and then we roll out onto iTunes, Comcast and Netflix.

We’ve also found great success with short films. The Indieflix “QuickPick” allows users to sample movies as they would music. You can sort through shorts based on running time, genre and rating. It’s a quick and easy way to sample movies.

Films about zombies, include nudity, tattooing, and music docs also do very well on IndieFlix. Social justice films are equally successful.

I’ll leave you with a quick story about a German filmmaker that had a hard time finding broad distribution due to some of the challenging nature of his film and the title. We picked up the movie changed the title (with his permission) and the film is now thriving.

6) What type of content is and is not a good fit for IndieFlix?

We have learned that our audience is really a lifestyle connoisseur. They enjoy wine, art, books and travel. They like to discover and they care about how they spend their time and money. We have found that content that is entertaining high production value and covers a wide variety of topics here in the US and abroad including fashion, art and music is very popular. In the same breath I will add that zombies, horror, mystery and documentaries are very popular. And just like in Hollywood comedies are always a favorite.

What I have learned is that marketing content gets watched. The best movie can sit in our library but if we don’t bring it to the users attention no one will watch it no matter how good it is. I guess to answer the question the best movies are the ones that start great conversations and people feel compelled to write a review, leave a comment and share it.

7) What are common misconceptions about IndieFlix?

The most common misconception is that Indieflix will take anything. It’s true that when we first started the company back in 2005 our policy was if you had played at a film festival you could submit and be accepted at IndieFlix. We quickly learned that the film festivals are not the most reliable way to curate content. We started our own curation process, which has evolved over time. We now accept 5-10% of all submissions.

8) What are some key selling points?

There are many selling points to being on IndieFlix.com, but here are a few:

  • Zero fees
  • Quick Turn Around
  • Global Reach (with the ability to geo-block)
  • Exceptional Customer Service
  • A hungry audience

9) What’s the future of IndieFlix?

Part of what makes the entertainment industry so exciting right now is that the future is unknown and everything is moving very fast. The digital landscape is ever-evolving and we are always looking for what works best for our filmmakers to generate meaningful revenue. We balance this with providing our subscribers with an exceptional catalog of films they may not have access to elsewhere. IndieFlix has survived 3 technologies and remained a thriving player in the marketplace. We are bold in that we know who we are and who we want to be, and we are confident in evolving our focus and approach with the changing marketplace. At the end of the day, we want to be a household name, we have an excellent product in our catalog and we want to share our passion for it with the world.

10) Feel free to share any other predictions, analysis, data, and/or case studies or anecdotes. If you want to share about capital you have raised etc.

I’m just now starting a capital raise for IndieFlix. We have boot strapped for years. We have an amazing team of 21 people who are incredibly dedicated to the filmmakers, the audience, the film festivals and the entire industry.

I’m clear on what I want to build and I know exactly how I’m going to spend the money. There has never been a more exciting time to be a filmmaker. I am excited. We are looking forward to being a true change agent in our industry.

For more information, check out the website or follow them on Twitter: @indieflix and @indieflixCEO.

Sundance distribution wrap up

The deals were flying fast and furious at Sundance with no fewer than 19 films getting bought for seven figures. Though those deals were far from being distributed evenly. 7 came from the US Dramatic section and 9 from the Premiere section.

So why I am not ready to pull out the champagne just yet?

While certainly low budget films like “Dope”, “The Witch”, and “Tangerine” were profitable, even with $1-2M deals, many of these films will be losing out. Worse, because these are often all-rights deals (for the narrative films at least), it is unlikely they will see anything beyond the MG.

Similarly, on the distributor side, there were more films that sold for seven figures this year than generated over $500K in theatrical revenue from last year’s Sundance. Of course, digital has to be factored in, but it does seem to suggest many distributors are likely to regret their spending spree in the coming months.

Currently, I can confirm deals for 58 of the 117 premieres in the festival. Here’s how they break down by section:

US DRAMATIC (10/16)
US DOCUMENTARY (11/16)
WORLD DOCUMENTARY (5/12)
WORLD DRAMATIC (3/12)
NEXT (1/10)
PREMIERE (13/18)
DOC PREMIERE (7/13)
MIDNIGHT (5/8)
NEW FRONTIER (1/6)
KIDS (0/3)
SPECIAL EVENT (3/4)

So who are the winners and losers in this? Let’s start with the sales agents.

WME is by far the biggest victor of the bunch. Their sales deals generated over $30M in MG’s. I am sure there are bonuses to be paid out. Though they still have not sold all of their lineup.

ICM, UTA, and CAA all generated over $10M in deals but still have a large chunk of their slate yet to get bought. It is also worth noting that CAA is behind the two biggest deals at EFM that combined to be worth more than $10M.

In the middle of the pack is Submarine. While they sold their narrative film and generated the three biggest doc deals, the majority of the US docs yet to be bought are also Submarine titles. Personally, I have a hunch this has more to do with them having too many films and too high an asking price than anything else.

Cinetic, meanwhile clearly has some explaining to do. While none of the independent sales agents can claim a seven figure deal on their own, most can at least say about half their product has been bought. Cinetic left with not even 1/3 of their films announcing deals. It is safe to assume that even with a dozen films combined this was far from a profitable festival for them.

The Films

Some none star driven fare generated bigger buys including “Dope”, “The Witch”, “The Hallow”, and “Tangerine”. “The Witch” and “The Hallow” were also seven figure US rights only deals which means there should be quite a bit more to come for these two genre pics. On the documentary side “Best of Enemies” and “The Wolfpack” both sold to Magnolia for high six figures.

While most docs still opted for a piecemeal distribution strategy there were two that went for the ease of an all rights deal. “Racing Extinction” basically sold off worldwide TV to Discover Network and “Hot Girls Wanted” opted for Netflix. Frequently we are seeing more and more docs focus on TV and with small Oscar qualifying runs being provided. While theatrical releasing for docs is getting harder and the audience for TV/Netflix growing this makes sense. Almost half of the doc deals are specifically geared towards TV in a trend I don’t see letting up anytime soon.

Meanwhile on the narrative side films like The D Train ($3M) and “The End of the Tour” ($1-2M) saw major deals, they likely still are not profitable. Talent like Jack Black and Jesse Eisenberg are unlikely to have worked for scale. In most cases I cannot verify budgets but from prior experiences can make informed guesses. For example, there is a film that has yet to be bought from Sundance 2015 that has an eight figure budget. It would have to generate a festival record to be profitable. At this point it’s simply not possible and there is no doubt that investors will lose millions.

Distributors

There is no way of covering these deals without addressing the new (or reenergized) players in the room. Alchemy (formerly Millennium) spent big for “Strangerland” and “Zipper” with each costing them between $1-2 Mil. Reviews were mixed on the titles but with stars like Nicole Kidman and Patrick Wilson they are likely pushing for digital $.

Bleeker Street took “I’ll See You in my Dreams” starring Blythe Danner and managed to keep the acquisitions price under $1M.

And Broad Green Pictures snagged the Robert Redford starrer “A Walk in the Woods” for high seven figures. At this point none of the companies have yet to release a film. History suggests there could be trouble for the filmmakers (just look at the tragic situation that was “Gun Hill Road”).

While these new distributors ultimately left with mid-level product, what they managed to do was drive up the price of the most desired fare. In this arena it was the seasoned players and semi-new all-stars that was against dominated the field. A24 spent about $5M combined for “The End of the Tour”, “The Witch”, “Mississippi Grind”, and “Slow West”.

Far and away the bidding champ though was Fox Searchlight. With over $20M combined for Audience/grand jury winner “Me And Earl And the Dying Girl,” “Brooklyn,” “True Story,” and “Mistress America.” Obviously Fox Searchlight badly needed titles, the real question is how much they overpaid and what will ultimately recoup?

What is interesting is two different films opted to turn down higher up front deals. “The Bronze” rejected a $5M offer from Netflix to go with a $3M deal from Relativity. And “Me and Earl and the Dying Girl” saw its bidding war go into 8 figures but went for a participatory arrangement that could see them make millions more if it’s a success. It came with a base MG of $4.7M.

Waiting in the Wings

There will continue you to be a large number of deals announced all the way through SXSW. Distributors that have yet to strike include Strand Releasing, Drafthouse Films, CNN Films, Amazon, Bond/360, Amplify, Radius-TWC etc.

I fully expect ¾ + of the Sundance lineup to have some form of US distribution by mid-March. While there have been some big deals at EFM it is much harder to say if the high prices will continue for SXSW and Tribeca. I maintain (especially in the documentary and horror space) that patience can be a virtue. In fact TFC has frequently seen our biggest bookers came from one of the Sundance backups (“Weekend”, “I Am Divine”, “Regarding Susan Sontag”, etc).

So what about the films that haven’t sold yet? On the narrative side they appear to be in two camps. Star driven but with difficult subject matter (“Stockholm, Pennsylvania”) or no names at all. In fact at this point only one film in the entire Next section has distribution. This despite the solid success of “Obvious Child” and “A Girl Walks Home Alone at Night” last year.

Meanwhile, there were big deals aplenty to be had. More intellectual films (“The Stanford Prison Experiment”, “Advantageous”, “Experimenter”) are all still looking for buyers. The films that sold big are either thought to have crossover appeal or high digital $ potential. All of the above mentioned films yet to be bought are certainly set to be money losers. The question is, how much? And if it would be beneficial to pursue some form of DIY distribution.

There is also a widening divide between what wins and what gets bought. ½ of the award winners still lack distribution deals. With 5-7 films in each category getting something there is minimal value to a prize unless it is the Audience or Grand Jury Award. Even then, we’ve seen that for the World Dramatic section they help with festival bookings but rarely in the theatrical space.

This brings me to my final point. All is not lost for the films that have yet to be bought. Some of the bigger deals this year went to LGBT themed films like “Grandma” and “The D Train”. Their distributors will almost certainly pull the films from the fest circuit making titles like “Take Me to The River”, “Tig”, and “The Summer of Sangaille” far more popular on the quite vast LGBT festival circuit.

There is space for all the films in the festival to find an audience. The more big players pursue wider releases, the easier it is for these smaller titles to maximize revenue through ancillaries like festivals and special screenings. Of course for star driven fare that fails to get bought this may seem quite disappointing, but I’d rather make $50K from festivals than not exploit the revenue source at all.

Below are the list of all the films with distributors. Highlighted films were bought before the festival announced their lineup and cannot be considered festival acquisitions.

Sundance Films with Distribution

  • A24: The End of the Tour, The Witch, Mississippi Grind, Slow West
  • Alchemy: Strangerland, Zipper
  • Bleeker Street: I’ll See You In My Dreams
  • Broad Green: A Walk in the Woods
  • Discover Channel: Racing Extinction
  • Film Arcade: Unexpected
  • Focus: Cop Car
  • Fox Searchlight: Mistress America, Me, Earl And The Dying Girl, Brooklyn, True Story
  • Gravitas Ventures: Being Evel
  • HBO: 3 1/2 Minutes, How To Dance in Ohio, Larry Kramer in Love and Anger, Going Clear, The Jinx, Kurt Cobain: Montage of Heck
  • IFC Films, IFC Midnight and Sundance Selects: The D Train, Sleeping With Other People, Reversal, The Hallow, City of Gold
  • Kino Lorber: The Forbidden Room
  • Lionsgate: Don Verdean, Knock Knock
  • Magnolia: Results, Tangerine, Best of Enemies, The Wolfpack
  • Netflix: Hot Girls Wanted, What Happened Miss Simone?
  • Open Road: Dope
  • Orchard: The Overnight, Digging for Fire, Finders Keepers, Cartel Land
  • Oscilloscope: The Second Mother
  • Radius-TWC : The Hunting Ground (CNN has TV), It Follows
  • Relativity: The Bronze
  • Relativity Sports: In Football We Trust
  • Samuel Goldwyn Films: Fresh Dressed (with StyleHaul; CNN has TV)
  • Screen Media Films: Ten Thousand Saints
  • Showtime: Dreamcatcher, Listen to Me Marlon, Prophet’s Prey
  • Sony Pictures Classics: The Diary of a Teenage Girl, Grandma, Dark Horse
  • Tribeca Film: Misery Loves Comedy
  • Vimeo: Going Clear (Exclusive digital after HBO window expires).

Orly chimes in with her 2¢:

I ask myself what does this mean? Is it irrational exuberance? Or rather, will this trigger such a continued reaction? It’s not as if digital distribution creates audiences that did not exist before. As always, there are new players in the market, which always drives a market because everyone needs “product” or else they have to close their doors. That’s the neat and scary thing about film—it’s sexy and people with money are always attracted to it, even if more often than not, on a per film basis more is spent than earned (A-list talent vehicles, tentpoles, and certain genre blockbusters excluded). It’s always great for the directors whose careers may be made. Hopefully enough money trickles back to producers and investors—and that’s what we will aim to track going forward, doing our best to estimate spending and suss out from filmmakers if they made their money back from MGs and royalties, etc. We encourage you to share so that when filmmakers approach us asking what budget ranges they should be constrained by if they want to recoup, we can better assist then to determine that. Knowledge is power people, so please don’t hold back, even if anonymously. And for all those filmmakers who did not close distribution deals, don’t worry, there’s nothing they distributors can do that you cannot do, if you have the money and the time.

Filmmakers-Direct-to-Platform

We thought we’d start off 2015 with a bit about digital platforms that filmmakers can utilize directly, without giving rights to a distributor and without necessarily having to go through an aggregator. When I say “platform,” what I mean is a place on the Internet that film viewers would go to consume cinema. While filmmakers are always encouraged to distribute off their own websites and social media pages, that is not the subject of this blog. To accomplish DIY off the film’s site and social media pages, filmmakers are encouraged to work with Distrify or VHX, for example. For now we cover the following distinct platforms that filmmakers can directly access: MUBI, FANDOR, VIMEO, WOLFE ON DEMAND, and DOCURAMA (just a tad, and more will be discussed in a few weeks).

MUBI

mubi.com

mubi

MUBI is a curated video-on-demand subscription service.

MUBI describes its offering as a hand-picked selection of the best cult, classic and award-winning films from around the globe. “Every day MUBI’s in-house film experts select a great new film and you have 30 days to watch it. So there’s always 30 brilliant films to enjoy. We have a huge audience of passionate cinephiles from every corner of the planet who watch, rate, review and share great cinema.” See more at mubi.com/about.

Q: How film viewers can access it?

The service is the only subscription service available worldwide (193 territories). So whether you are in Venezuela or Vancouver you’ll be able to experience a beautiful collection of 30 hand-picked films. MUBI works on the web, mobile devices, internet-connected TVs and games consoles. On MUBI’s mobile apps you can download films and watch offline.

Financial model of platform How audiences pay (if at all) and how do filmmakers make money:

MUBI brings one new film to the platform every single day. Each film plays on the platform for a 30-day window. Revenue is split 50/50 with the filmmaker (or whomever is the rights holder) based on views over the 30-day run. A MUBI membership costs around $4.99 USD in most countries for a month or £2.99 in the UK or €4.99 in the EU.

Deals Offered to Filmmakers:

MUBI typically licenses films for a 2-year period, non-exclusive. They license by territory, but also do global deals or groups of territories.

How Films Get Onto MUBI:

MUBI takes films directly from filmmakers and also from studios, distributors and aggregators.

Q: What does your company do to drive audiences / consumers to this platform?

“Beyond the normal channels (digital, social, offline) we work in partnership with festivals and organisations [organizations] like Cannes, Berlinale, MoMa, AFI, Lomokino, Picturehouse Cinemas, we curate seasons and retrospectives, host screenings, run events… the list goes on! Also, in the UK (one of our focus countries) we have a mutli-level advertising campaign launching in 2015.”

Revenue ranges:

[This question is almost never answered by any businesses so don’t hold it against MUBI for not answering.]

Speaking from experience, however, we at TFC have enjoyed seeing hundred of dollars that eventually added up to some small version of thousands for a film that did not do better business anywhere else. In fact, I would say MUBI was a source of revenue that was particularly useful for a smaller art house film that would not be sought out on the more commercial platforms such as iTunes.]

What MUBI does to market films:

“We have huge communication channels offline and off. When a title is selected as the ‘film of the day’ all these channels are directed towards promoting that film. The difference with MUBI, for the filmmaker, is that instead of your film sitting in a library of a thousand films, your film is one of just thirty. Every day we send out a dedicated ‘Film of the Day’ email to hundreds of thousands of people globally, the email features “Our Take” – the reasons why we selected the film and why it’s worth watching. We build editorial context around films rather than leaving them fighting alone. We run one of the most respected online sources for film criticism, Notebook. So if your film is on MUBI it’s less about creating a long-term revenue stream and more about exposure for the film in a targeted, well-contextualised burst which can be a great complement to (or continuation of) a theatrical or DVD release. A film is on MUBI for 30 days but for those 30 it is the centre of our attention. It works for the audiences and filmmakers alike, great films can find people that want to watch them.”

Special initiatives MUBI has brewing (this is from December 2014):

“In the UK we’re currently showing a Godard retrospective, and right now in the US we have a Joe Swanberg double bill.”

New from MUBI: iPad and iPhone App

Follow MUBI on Facebook: facebook.com/mubi
Follow MUBI on Twitter: twitter.com/mubi

FANDOR

fandor.com

fandor

Fandor can be accessed via apps available through iTunes (iPhone, iPad) and Google Play (Android phones and tablets including Kindle Fire), and as a channel on Roku.

Fandor offers an extensive and rich library of over 6000 films, from around the world, in over 500 genres, and of all lengths, handpicked for people who love the transforming experience of great cinema. Fandor fulfills the promise of an online cinematic experience, marrying curation with contextual information for a global community of film lovers and filmmakers.

Fandor Availability / Accessibility:

Fandor is available in the US and Canada, accessible anytime to subscribers.

Financial model of platform—How do audiences pay (if at all) and how do filmmakers make money:

Fandor members subscribe on an annual ($90) or a monthly ($10) basis. Both subscription types offer a 2-week free trial. Subscription revenue is shared, with 50% going to the film rights holders, divided based on availability and audience viewership.

Deals Given to Filmmakers:

Because our model is a revenue share, the amount that filmmakers earn will vary based on viewership. 20% of the shared revenue is split among all films on the platform; the remaining 80% is allocated based on seconds of viewing to individual films.

Fandor Gets Films Direct From Filmmakers And Distributors:

Fandor has partnerships with hundreds of distributors and approximately 125 filmmakers (direct).

What Fandor does to drive audiences / consumers to its platform:

“We have an extensive marketing program that includes advertising, social outreach to over 160K fans, public relations, personalized email and integrated promotional campaigns. We also have a network of 4 blogs that addresses Fandor customers (The Fandorian), film aficionados (Keyframe), the film industry (Hope for Film), and filmmaker-to-filmmaker (Hammer to Nail).”

Fandor’s response to our request to share revenue ranges for films on its platform:

“We’re a private company and typically don’t share our financials and membership data.”

Special initiatives Fandor has brewing:

“We have two initiatives currently targeted to film festivals (Fandor|Festival Alliance) and to filmmakers (FIX). These initiatives are part of a larger effort to build relationships across the film world as part of a larger mission to advance and preserve film art and culture.”

See the release explaining these…

An example of a Fandor marketing campaign:

“Probably the best example is the Shocktober campaign we did for October. We showcased a different horror film each day through the month of October. The campaign was integrated across our ads, our website, our social networks, and email. We also did two video trailers. I’ve attached a .gif we used for social and email, and following are links to the videos. The campaign culminated in a day/date release of the remastered THE CABINET OF DR CALIGARI on Halloween.”

fandor_gif

The Sin Within
Stranger Danger

VIMEO ON DEMAND

Browse available films and shows at vimeo.com/ondemand
Sign up vimeo.com/creatorservices/ondemand

vimeo

Vimeo allows one to distribute films, series, and videos with all the power of Vimeo, its community, and its legendary

HD player. Anyone can use Vimeo On Demand – from established and first-time filmmakers to creators of video tutorials or video performances. “Vimeo On Demand helps creators distribute feature films, documentaries, series, episodes, TV shows, instructional videos, and more. It puts all the control in the hands of creators, who can choose to offer buy and rent options at their own prices, sell on Vimeo and their own website, worldwide or in select countries.”

Accessibility:

Vimeo On Demand is available worldwide and allows viewers to watch films on pretty much any screen, from computers and tablets to connected TVs, all in full HD (even 4K!). Vimeo On Demand is a global, open platform where any filmmaker can sign up and start selling their videos.

Financial model of platform:

Vimeo On Demand offers creators the ability to sell their movies to rent or own. “Viewers pay by credit card or PayPal. Creators earn 90% of the net revenue from every sale—which is the best deal in the film business!”

Direct-to-Filmmaker Distribution:

Vimeo accepts films first-time filmmakers and distributors.

Q: What does your company do to drive audiences / consumers to Vimeo?:

“Vimeo has 170 million monthly visitors and more than 30 million registered users. We regularly promote curated selections of movies from Vimeo On Demand to this massive audience on-site, via email and on social media. We also have ongoing paid marketing campaigns and publisher partners working to bring viewers to Vimeo On Demand.”

Revenue:

“Vimeo On Demand has been proud to power some of the most successful direct distribution releases ever. We are not allowed to share our users’ revenue data.”

What Vimeo does on marketing front for its films:

“Our Audience Development team is actively working to market films via our own platform as well as through digital advertising, social media marketing, and a growing list of publisher partners. Vimeo On Demand is the only direct distribution platform that brings a built-in audience and markets films on the platform.”

[NOTE: My colleague David Averbach has informed me that there is a way, for filmmakers who are allowed to offer VOD off their film’s website, but not other external sites, to hide Vimeo On Demand videos from vimeo.com.]

WOLFE ON DEMAND

WolfeOnDemand.com

wolfe_on_demand

The worldwide LGBT digital movie-watching platform!

Accessibility / Availability:

The platform showcases more than 150 films, more than 100 of which are available worldwide.

Financial model:

TVOD (Transactional Video on Demand via Internet) and Streaming (rental)
$3.99 streaming and $14.99 download for features.
$2.99 streaming and $9.99 download for docs.

Revenue to Filmmakers:

WOD split is 50/50. Wolfe have also entered into a strategic relationship with Vimeo and WOD will soon live on their platform. Wolfe’s site is powered, in part, by Distrify which takes a cut of revenues, as will Vimeo. Wolfe also notes that the partnering with Vimeo will also involve additional marketing opportunities.

Direct with Filmmakers and Distributors:

“We work with all kinds of filmmakers directly as well as distributors.”

Q: What does your company do to drive audiences / consumers to this platform?:

“Wolfe has been in the business of releasing LGBT films since 1985. With 30 years in the business we have the experience, relationships community good will and connections to help connect films with the audiences who want to see them. We utilize our mailing lists, social media, advertising, PR, community outreach and creative marketing as well as a wide array of other marketing tools and strategies. Wolfe’s strength is in consumer marketing. We dedicate considerable resources to unique programs domestically and abroad to drive traffic to WolfeOnDemand.com.”

Revenue Ranges:

[Like the others, Wolfe did not disclose.]

Special initiatives Wolfe has brewing:

Yes, stay tuned for some exciting news to be announced in late January 2015.

DOCURAMA

docurama.com

docurama

We’ll be covering this one in a few weeks as information is being updated…

As the name suggests, this platform focuses on documentaries.

The channel is available on iOS, Roku, XBox, Amazon Fire, Western Digital, Opera, to name a few.

We will send proper information about Docurama in a few weeks. For now, TFC recommends working directly with these platforms when they are a fit for your film. We will update about other platforms as we learn of them, if we think they are worthy of focus.

Happy direct digital distribution,

The Film Collaborative

TFC’s Film Distribution Takeaways of 2014

As 2014 draws to a close TFC reflects on five (5) film distribution lessons from 2014 in anticipation of our 5th Anniversary at Sundance 2015.

1) DIGITAL TECHNOLOGY POSITIVELY IMPACTING FESTIVAL & OTHER PUBLIC EXHIBITION DISTRIBUTION BY REDUCING COST AND HEADACHE:

As we have seen every year for several years now, we are experiencing additional technological revolution that will change our business forever. In 2014, we said adieu to the preview DVD (for festivals, distributors, exhibitors, press etc.) in favor of the online screener link. We said goodbye to the HDCAM and the final nail in the coffin of the Digibeta. We struggled with the problems of the DCP and all its imperfections and inevitability (at least for a few more years). And we are RIGHT ON THE VERGE of the greatest evolution we will experience in recent years, which will be full delivery of films for exhibition via the Internet…whether it turns out to be Vimeo or Drop Box or iCloud or other. If we can remove the SHIPPING part of the independent film business, filmmaker (and distributor) profits may greatly increase without that part of the equation. We are almost there now…

2) THE HARD-TO-ACCEPT REALITY OF MARKETING SMALL FILMS:

As much as all of us at TFC have talked about the need to identify and target niche audiences, the ones who would be the most interested and excited to see a project because it speaks to a belief or lifestyle or cause, most indie filmmakers still aren’t heeding this advice. Of the consultations I had this year, most were with filmmakers who made micro-budget dramas with no notable names and were without prestigious festival accolades. They still believed a distributor would be willing to take on their project and give it a full release. Even those who realized this wasn’t going to happen found the financial burden associated with the kind of release they envisioned too difficult to bear, especially because they were likely to never see that money again (hence why distributors weren’t willing to take on the burden).

If you’re going to work small, you need to think small, but deep. You NEED a small, but highly passionate audience that you can reach given the resources and assets you have. Their enthusiasm will help you if you can harness their attention early on. I won’t say this is easy, but before you embark on a project that could take thousands of dollars and years of your life, first think about how you will approach the audience for your work and how you will maintain it on a consistent basis. If you think someone else is going to take care of that for you, you haven’t been paying attention to the shifts in the indie film marketplace.

If you think someone else is going to [attract and maintain a niche audience] for you, you haven’t been paying attention to the shifts in the indie film marketplace.

3) WHEN BROADCASTERS WANT STREAMING RIGHTS – WHAT TO DO?:

Increasingly, broadcasters are seeking streaming rights along with traditional TV broadcast rights and they have holdbacks on streaming and SVOD at a minimum, and often on transactional digital (DTO/DTR) too. For sure they limit / prohibit cable VOD. As a filmmaker, you only have leverage to demand a higher licensing fee if your film is a hot commodity. Otherwise, while online (or in-app) streaming will possibly gut your transactional VOD sales, you can’t beat the reach a broadcaster can give to your film. Think very hard about turning down a broadcast deal that includes online streaming. Will your iTunes/Amazon/Google Play sales really be so much if very few people have heard of your film? iTunes and Amazon are not going to promote your film like a broadcaster would.

Then again, which broadcaster is it? How big is its reach? How much publicity and marketing will you get? How much digital distribution are you barred from and for how long? Not all types of films make the same money on all types of platforms so does your film demand-to-be-owned? or is a renter, at best. Not all platforms will even accept all films (e.g. all Cable VOD, Sony Playstation, Netflix). Is yours one that will digitally succeed broadly or narrowly, or at all? Will Netflix pay 6-figures like in the good ole days or a lot less, or anything? Do you have a direct-to-fan distribution strategy that you can employ in tandem so as to not need to rely on other digital platforms in the first place?

Or if you want to try it all, still, your strategy would privilege the direct sales anyway. Which is better for your goals, a film that gets national broadcast airings or a film that turns down that opportunity only to be buried in the iTunes store? Or would it not be buried? Only you can answer this as not everyone’s goals are the same and not everyone’s opportunities / potentials are the same. As we have always said, knowing your film’s ACTUAL potential and combining that with your HIERARCHY OF GOALS will help you answer these questions and decide your distribution strategy.

And while it may feel like you are giving up revenue by allowing your film to be streamed (hopefully for a limited time!) through a broadcaster’s portal, you may find this is a good career move for your next feature because people will be familiar with your work having had the opportunity to see it.

4) THE HEAVY BURDEN OF THE NARRATIVE WITH NO NAMES:

Several of us opined about the challenges facing narratives with no names.

The emerging mega strength of incredible television series available everywhere threatens narrative film even more than before, and of course, especially the smaller indie fare.

We have seen time and again how narrative dramas or comedies almost always fall flat in sales unless they have very strong names and not just C-list or B-list names. Of course there are exceptions to this rule and Sundance can be part of that, or a hot director, or simply just an exceptional break out film. But too many filmmakers look to those as the model when they are the anomaly. The pattern we, at TFC, see repeated too often is the making of a decent or good but not exceptional narrative with names that are okay but not great and then wasting time trying to make a big or even medium sale. It just does not happen. Money and time are lost and careers often not made. Again, there are exceptions, and of course certain niches such as LGBT may be one of them, but we advise discerning between passionate optimism and sheer folly.

5) TRANSPARENCY—The Kale of Film Distribution:

The big takeaway from 2014 about TRANSPARENCY is that, on the one hand, it has become a sort of new, hip standard—something cool and good, like eating kale—that more honest distributors practice and/or shadier ones pretend to because it’s more expected. On the other hand, however, we were surprised at how many filmmakers still resist it—resist sharing their data, even anonymously. And to that, all we can ask is, what are you afraid of? It’s meant to be good for the filmmaking community as a whole but maybe individually folks are scared about what the truth will bring. And some folks just want to eat bacon. We get it. Still, we encourage sharing the real data for the greater good and we will keep on working to inspire and facilitate more TRANSPARENCY.

We at TFC wish you and yours a delightful new year and we are looking forward to being even more of service to filmmakers in 2015!


© 2013 The Film Collaborative. All rights reserved.