In future posts, we intend to track the progress and releases of the films that did deals at Sundance. And we also will track deals and respective progress related to other fests such as Tribeca and Cannes (which seemed to be largely a SundanceSelects play with an occasional TWC and Magnolia deal and a few others coming.). But for now, I want to address a phenomenon that I keep seeing and strongly feel needs to change.
Filmmakers are approaching us with films that had their festival run a year or even two years ago, OR, a film that did not have the benefit of an A-list festival selection, or maybe not even a B-list festival run, or is even more than two years old. I guess they assume that deals are still out there for their films and they are holding off on moving into the market until those deals are struck.
Film sales happen (when they happen) more often than not, for these reasons (I am speaking to filmmakers in America and trying to sell films in and/or from America):
- FESTIVALS & AWARDS& REVIEWS: The film has the good fortune of being an official selection of a prestigious name film festival (and attended by or at least tracked by industry). By virtue of being an official selection, the festival brand helps the film’s brand and perceived value of that film to potential buyers. Also, publicity that actually occurs as a result of being part of the festival helps the film get noticed and attain perceived value to potential buyers. Winning prizes helps (especially Audience Awards) and getting great reviews help in attracting potential buyers.
- The value (actual value of a deal that can be done) starts to go down after a festival premiere. Meaning, films that don’t sell at festivals or do not start negotiations at or close to the festival’s start or end date, go down in price. The perception in the market is the length of time between a festival premiere and settling on a distribution deal indicates the amount of value the film has. If there is a long passage of time, the price goes down accordingly and the likelihood of getting any deal fades. of course this depends to a greater or lesser degree on who is selling and who wants to buy and what their motivation is. But usually, prices go down in direct proportion with the passage of time.
- CAST: The film has cast that increases the perceived value. And if #2 is accompanied by #1, all the better. This is not a cast of unknowns or a cast of former notable talent.
- GENRE / DEMOGRAPHIC APPEAL / NICHES: Genre appeal, including horror, sci fi, western films often sell better than dramas; docs sell better than mockumentaries, often not always. Hot topic or big concept / trend topic documentaries or documentaries involving key niches or names often sell than more obscure or more personal documentaries, of course there are always rare exceptions. Best not to bank on your film being one of those. Films appealing to specific large enough demographics seem more “valuable” than those that don’t seem to have any specific appeal. Broad comedies can sell but highly depend on notable cast and when they don’t have the cast, it’s almost always the case that they need a big festival to create the buzz that gives them the commercial push. Foreign sales are not attractive for American-centric stories unless they are studio films, genre films, and/or have the cast or had/will have a big l theatrical release.
- THEATRICAL: A small US theatrical can help usually only if the reviews really were strong and the film has some commercial appeal or at least niche appeal (and there are distributors catering to that niche if it’s not more broadly commercial). Theatrical in the US can’t hurt foreign sales but a tiny US theatrical can also have no impact on foreign sales whatsoever if the film is perceived as too American and does not feel either commercial enough for other territories to compete with all the world cinema or does not fit into niches for which there are buyers (if it’s not broadly commercial enough). Or the film can fit in to the niche but the niche is also glutted so competition is stiff. For Broadcast sales, sometimes it is simply a matter of programming and timing luck; the film fits what the stations are looking for.
We all know there’s no guarantee of a sale and sometimes even when a sale occurs, it’s not necessarily a great one. Even at the top A-list fests, many films do not “sell” so even for those filmmakers a strategy of building community around your film WAY AHEAD of your first public exhibition / premiere is wise, because this way, even if you are afraid of or counseled not to start any distribution in tandem with that premiere or necessarily soon following it, and even if you think you have a shot at the big deal, or a deal and that is what you want above all things.. even then, all that community building will do is increase the perceived value of your film. And guess what? If that deal never comes, or if the offers suck (which you may be more scrutinizing of and careful about when you do the math based on your acquired ability to distribute directly to the fans), you will always have that back up plan.
Many filmmakers come to us with thousands of even tens of thousands of Facebook and Twitter fans, lots of traffic to their site, an email list started and even good reviews of their film if it played smaller fests or if their genre was reviewed by niche film sites and this has all happened months ago or even a year ago or even two, and they are waiting for a DEAL, I have to say, DON’T WAIT. * You already have a deal*, direct to the fans of the film, the ones you have been connecting with and getting the attention of for all this time. Let them see it/buy it and stop waiting! They’ve been waiting and if you make them wait too long, they will either wander off in frustration or they may feel no other alternative but to view the film via P2P networks for free or get a DVD via E-bay that a journalist or programming staffer is selling for extra lunch money.
In short, and yes this blog is short compared to the usual (whew), don’t wait for Godot. There is nothing this marketplace is signaling that merits the wait. Broadcast sales are a different matter, you have a doc, or Latino-interest film, or gay film, or genre film, or even film with some cast.. a TV deal can MAYBE be done but still, there’s all the rest YOU should be doing sooner than later, or working with people who can help you do it if you don’t know how. This includes DVD and Digital off your site, it includes all the key digital platforms and it even includes hybrid theatrical / events and other public performance of the film (educational and/or commercial). And if your films has legs, you can carve out deals and DIY and work it all out. But if you just sit on your film and wait you are risking losing everything and I have to ask you, based on what? What information are you working with? Part of your distribution plan should include how long will wait before you start distribution? What is your path to sales? Plan A, B and C and how can you plan for all of those? It is no longer enough to hope for distribution and sit and wait.
Filmmakers, don’t hate the messenger… I say this with love and as someone who embraces deal making as much as I do DIY. J You must have a plan of action early in your process.
Here’s an example of a filmmaker who we think did it right, and he worked with Peter Broderick:
And we’ll have other examples and even more details in our forthcoming digital case study book entitled SELLING YOUR MOVIE WITHOUT SELLING YOUR SOUL: Case Studies in Hybrid, DIY, P2P Independent Film Distribution (co-authored by The Film Collaborative, Jon Reiss, and Sheri Candler). Until then, stop waiting and get moving toward bringing your film to its audience.
Orly Ravid May 23rd, 2011
Posted In: Uncategorized
TEN TIPS for FILMMAKERS
Going to Market or Seeking Distribution
Going to a festival / market such as Cannes is exciting. Wine is often cheaper than water. Almost anything you eat there tastes better than almost anything you’ll eat here, even though it is a tourist trap. Somehow, no matter how many carbs one eats, one usually still loses weight either because of the hustling and bustling or the fact that the French make their food lighter even when it’s rich and they don’t use preservatives when we do…. ahh France. But, I digress.
When searching for distribution at or in preparation for, a festival or market, be clear about your goal and the amount of responsibility you have to your investors. You should be conducting a lot of research before you ever hit the market floor to identify which companies will be a good fit for your film. Depending on your knowledge, experience, willingness to take responsibility and the type of film you have, it may be advantageous to sell your film on your own, or it may be better to use a sales agent. Much is entailed with selling a film in different territories and formats and if you do not have experience in doing so, you may be better off working with someone who does. I have some tips for you to follow regardless of how your film will be sold. The Film Collaborative can help filmmakers who have decided to handle their own sales by evaluating contracts and guiding them through the process without taking the filmmakers rights, but it does depend on the filmmaker’s willingness to actively solicit buyers in the first place. Attracting suitable buyers is a time consuming and costly process (travel, marketing, sales skills), so if you have no interest in doing this, it is better to delegate that work (and your rights) to a sales agent. Before signing on the dotted line with ANYONE, (sales agent or distributor) you will need:
1. REFERENCES: Get references, and then call or email the *other* filmmakers the company has worked with. I am only partly teasing. You should be able to find a list of current clients on their website and you can research contact details for those people. It’s great to contact the references actually given, but sometimes it gives a clearer picture to contact a few at random. You’ll be shocked by how useful this can be to either comfort you that you are doing the right deal or protect you from being stuck in a deal you should not have done. The Film Collaborative has set up a Distributor ReportCard (a sort of “Yelp of Indie Film Distribution”) to help in the research of this. Check out our Distripedia™ section on our website www.TheFilmCollaborative.org
2. CAP EXPENSES: Define and cap all recoupable expenses and evaluate those based on projections. Spending $30,000 – $50,000 – $75,000 – $250,000 ++ is not inherently bad or good. It depends on the upside and the reasoning. Be clear about what the expenses are for, how much is approved, and if you and 8, 10, or 12 other people are being charged back for the exact same bill. Let’s not let that happen. Are you paying for a party in Cannes? Maybe that is what is needed to attract buyers…just make sure that you are choosing to do so and that it makes sense. If the expenses are for distribution, have an idea about P&A budgets for different types of releases, the size of the release, the realistic projection of return and how long that return might take. The bigger the release (theatrical to many cities, large advertising spend, high cost publicists), the more expense is incurred and likely the longer it will take to recoup. And one should have a clear sense of the objectives and projections of the theatrical so one can properly analyze expenses.
3. RIGHTS vs RIGHT TO SELL RIGHTS: Distinguish between the right to represent the rights (example, traditional sales agency could choose to do vs taking all rights) and vs having rights to actually directly distribute (example a sales agency that takes all rights so that it can also then directly do digital distribution or a buyer who buys multi territories but then has other companies do the distribution in most of them, or a company that does not do its own theatrical or its own digital or its own DVD. Extra middlemen mean extra fees means less $$$ to you. You may want a company to have both and take care of it all for you and maybe it’s even the most advantageous deal because of relationships and best terms. Just know what the deal terms will be instead of realizing after the fact. This is especially critical when fees and expenses come into play. You may not want or need your sales agent to directly distribute to digital platforms if you can manage this yourself or they don’t end up even doing that in unsold territories but have your rights anyway, or maybe you do. And that brings me to another point about rights, don’t give any away that won’t be “exploited” as they say in the industry (that’s meant to be a nice thing). I.e. have rights revert back to you that are not properly handled and try to not give them away in the first place without knowing why it makes sense to. And I always like to carve out digital platforms a filmmaker can get onto that a sales agent or distributor does not want or choose to (in collaboration with the distributor or sales agent of course).
4. ACCOUNTING: Make sure you know when Accounting is due and when your corresponding payment is due. Try for QUARTERLY unless you don’t like money coming in at least 3 times a year since most will pay no sooner than 30 or 60 days after the end of the quarter. Semi-annual accounting is possibly acceptable later into a term if you have no choice.
5. AUDITING & ARBITRATION: Reasonable Auditing and Arbitration provisions are key so you can have a clear way of investigating. Know where the arbitration will be conducted. “Resolving a matter via arbitration may be less expensive and more expedient than having to sue the distributor, but an arbitration provision may also be less effective at encouraging the parties to compromise prior to invoking arbitration than the threat of a lawsuit,” says TFC’s legal counsel Cherie Song, an attorney at McGuireWoods LLP. Also, “a distributor should have an obligation to maintain records of all sales and rentals of the film, and give you the right to inspect such records at reasonable hours with prior notice,” she says. “If your audit finds an underpayment, the distributor should pay you the difference within 30 days of demand, and if the difference is more than 5%, the distributor should reimburse you for your auditing costs.”
6. TERMINATION: Also set parameters by which a deal can be terminated. Not suggesting this should be random and exploitive of the sales agents or distributor’s efforts, but should they be in breach or become insolvent, one needs a remedy if it’s not cured. “If the distributor fails to fulfill a material obligation (e.g., if the distributor fails to pay the MG or your share of “Gross Receipts”, fails to provide statements or fails to market or distribute the film within a certain time period following complete delivery) or files for bankruptcy, then you should have the right to terminate the agreement with notice, with the rights to the film in unsold territories immediately reverting to you,” Cherie recommends. “The distributor should also indemnify you for claims resulting from its breach of the agreement and violation of third party rights. Furthermore, the distributor’s payment and indemnity obligations should survive the expiration or earlier termination of the agreement.” And our capitalizing of “Gross Receipts” is on purpose. All terms that have any possible key meaning and affect your deal should be capitalized and DEFINED! Many thanks to Cherie for her impeccable services to our filmmakers overall.
7. MARKETING PLAN: In order to distinguish a knowledgeable and reputable distributor from one who is less so, ask for a detailed marketing plan. For filmmakers to be in the strongest negotiating positions on this, a marketing plan should have already been developed and implemented during production and a fan base already started. The distributor will simply be adding extra muscle to this plan, both in terms of financing and staff. If there is no previous plan, ask to see exact specifics on how the title will be handled in-house and the expenses associated with it before agreeing to a contract. This is of utmost importance as the success of your title depends on these efforts. Without a clear understanding of the strategy, you may find your title simply becomes part of a catalog passed along during markets or part of a library that is rarely exploited. The more effort a filmmaker makes in gathering an identifiable audience for their work, the more leverage he/she has because the film has provable potential.
8. BUILDING AN AUDIENCE YOURSELF: Intentionally putting a fine point on this topic! More and more distributors and sales agents are researching your title just as much as you are researching them. If you haven’t made any effort to build an audience, the perception is maybe there isn’t one. You should be looking at the sales agent/distributor relationship as a partnership not as a savior. This makes your film far more attractive to those companies because they can see the money making potential and their efforts will make the title a much stronger earner. Wouldn’t you want to have an edge up on getting a better deal or not even needing one if you had already built an audience around your film well in advance of your first premiere? I know I would. (And thanks to our social network marketing guru / strategist Sheri Candler who contributed to this blog and especially #7 & #8).
9. CARVE OUT SOME DIY: Whenever possible, carve out the ability to sell off your own site and also via your own social networking pages and via other key DIY platforms & solutions. We recently did a blog (April 2011) about these so feel free to check out that info via the TFC site.
10. SPLIT RIGHTS / BE AS DIRECT AS POSSIBLE: If there is one thing I cannot stand is big fees taken out for being in the middle of revenue and not doing much to justify the fee. If a distributor is direct to key retailers and key digital platforms and is doing all or most of the release directly great. But if a distributor is licensing your rights for a not-very-huge-fee and hiring someone else to do the theatrical (and recouping an extra fee expenses) and / or not direct with libraries and institutions (if relevant) and/or not direct with key retailers or digital platforms then why bother? Go direct. Be as direct as possible. Split rights as much as possible especially when there is little investment on the MG side and/or little theatrical P&A side that help justify the rights needed for recoupment.
In closing, I will again emphasize research, research, research. Don’t be lazy and then regret later. It may have been more difficult to do this as an average filmmaker previously, but it isn’t difficult now. Take responsibility for your work and the business of it. Ask around. Ask other filmmakers, other companies, Ask us. Ask at least 3 people any given question so you can get a sense of the real answer to the extent there is one.
Orly Ravid May 6th, 2011