I read once, years ago, that the circular nature of the experience at the Berlin International Film Festival…plodding from meetings at the European Film Market (EFM) at the Martin-Gropius-Bau (MGB), to meetings at the EFM offices at the Marriot Hotel, to festival screenings at the Cinestar Sony Center, to market screenings at the CinemaxX, and back to meetings at the MGB tend to remind Industry professionals of the cyclical nature of their lives…stretched across years and years of travelling from market to market all over the world. It’s a plodding cycle that’s compounded by the relentless gray and cold of Berlin in February, and a reminder that as “glamorous” as this Industry seems to some…it is also quite a difficult and often bewildering business filled with precipitous highs and even lower lows.

As I negotiate these circles myself, I have the visceral audio/visual experience that Berlin is the most “international” of all festivals (Sundance being distinctly American, Cannes being dominated by the French). The Berlinale is a dizzying array of languages and cultures from everywhere, which makes particular sense since if you imagine the world as a traditional flat map, Berlin is roughly in the center of it. It makes a lot more sense for film business folks from many countries to travel to the Berlinale rather than say, the snowy mountains in Utah for Sundance (and a lot less expensive). As a result of this glorious diversity, I often find it a lot more difficult in Berlin to figure out the overall climate of what is going on business wise, as folks are chatting around you in a myriad of languages I can’t understand, and it is a lot harder than most places to gauge what they are talking about and experiencing.

It is precisely the uber-international nature of the Berlinale that also seems to contribute, year after year, to the uneven nature of the programming, i.e. the quality of the films. As the name of the most independent section of the festival implies, the Berlin Panorama, it is a wide-angle view of world cinema from far-flung countries not often known for the strength of their film industries. Although no-one would ever say so in public, one has the distinct feeling that some of the best films from countries that produce the majority of films (especially English and French languages), are not being selected in favor of films from countries not often represented on the international stage…especially those from Eastern Europe and the like. As a result, programming at the Berlinale is notoriously hit and miss.

There are certainly gems to be found, often from the unexpected corners of the world. Take for example, Una mujer fantasica (A Fantastic Woman), a Chilean transgender narrative bought by Sony for North America, Australia, and New Zealand. Or the Teddy special jury award Karera ga honki de amu toki wa (Close Knit), another trans-themed film from Japan. Prolific and world-famous director Agnieska Holland dropped her latest Spoor, a murder mystery deemed as a sort of Polish Fargo. Or happily for us at TFC, the Teddy Award winner for Best Documentary which went to Ri chang dui hua (Small Talk), a slow burn gem from Taiwan that is happily a Film Collaborative film. Or Chavela, a luminous bio-doc from director Catherine Gund about legendary Mexican singer Chavela Vargas (also happily a Film Collaborative film). These are all films that pushed the boundaries in ways that are typically Berlin….so called “exotic” stories from locales usually outside of the international spotlight.

Disappointingly this year, it seemed at least to me and those who I spoke to, that the most talked about films at the Berlinale had already premiered a few weeks ago at Sundance. Without going into names, it seemed that the festival lacked a great number of distinct break-out hits world premiering in Berlinale as a whole. There was a heavier reliance of Sundance hits than usual, and as someone who had attended Sundance just a couple of weeks before, this was underwhelming.

Of course, as most of us know by now, the 2017 Sundance Festival was distinguished by a flood of sales mostly buoyed by the tremendous influx of new money from digital platforms and the bizarrely strong U.S. Dollar. While not nearly as profoundly buoyant, the 2017 Berlinale was still marked by the same trends. From what I could tell, the Hollywood majors drove the market, with MGM setting a new Berlin market record with a $17.5 million pick-up for a Dwayne Johnson wresting pic called Fighting With My Family and U.S. mini-majors like Sony Classics and Lionsgate being unusually active. All in all, the business seemed to continually improve over recent years for the market in general.

However, at least it seems to me, that conditions are getting harder and harder for small independents…and by that I mean both the small indie films and the small indie distributors in particular. As price pressure rises from the incredibly deep pocketed digital platforms like Netflix and Amazon, it seems that there is more uncertainty than ever. Price pressure is rising for small distributors…who can no longer afford to bid with big guys on the block (I heard tell that Amazon now stands to be the most deep pocketed film buyer in the history of the world…which makes sense as they can draw from all their other revenue to fuel their film buying).

Films that once might have been safely projected in terms of revenue potential are now more confusing as a product than ever….as they might sell for some astronomical fee backed by a worldwide deal, or maybe not at all…depending on market whims that seem hard to predict. And the strong dollar is making international buyers increasingly conservative…as the price in euros and all other currencies just seems to be more and more prohibitive for the international players. I heard one Turkish buyer say to a U.S. seller that if they offered USD $10,000 for a film…the buyer needed to understand that that was the equivalent of the Turkish buyer offering $40,000 in their own currency….as the exchange rate is that bad. And as a result, although the buyer planned to make offers to said U.S. seller, they would need to be much lower than in recent years.

As such, from high to low, I submit that the Berlin 2017 experience lived in shades of gray. From the weather, to the programming, to the business, to the overall experience…it goes up and down…and exists mostly in between.

February 22nd, 2017

Posted In: Film Festivals

By Mark Hiraide, who is a partner at Mitchell Silberberg & Knupp LLP. He defends directors and officers in securities litigation and counsels companies in corporate financing transactions.

The final tremor of a monumental shift in federal securities laws took place in May 2016, and when the shaking stopped, entrepreneurs had gained unprecedented access to capital. For the first time in the history of federal securities regulation in the United States, emerging businesses may raise capital from the general public without registering a securities offering with the Securities and Exchange Commission. This expansion of the funding universe is the heart and soul of the Jumpstart Our Business Startups (JOBS) Act of 2012. The JOBS Act removed restrictions making it easier for entrepreneurial clients to fund their ventures using OPM (other people’s money).

The JOBS Act legalized equity crowdfunding, fostered private peer-to-peer lending, created a new regime for regulating “mini-IPOs,” and paved the way for the SEC to create new sources of liquidity for early-stage investors through secondary “venture markets.” The law already has spawned new and innovative financial intermediaries dispensing capital to startup and growing businesses. It has been heralded as “democratizing” access to capital by “disintermediating” Wall Street from the process of selling securities. Many hail the JOBS Act, in particular its provisions for equity crowdfunding, as allowing everyday people to invest in an asset class previously reserved for venture capitalists—crowds of small investors now may directly fund startup businesses that pique their interest. Yet others are skeptical. There is concern that the new regime for raising capital from unsophisticated investors lacks sufficient investor protections.

Prior to the JOBS Act, companies could not publicly solicit any investor unless they registered and subjected the offering to scrutiny by the SEC and/or state securities regulators. The JOBS Act’s elimination of the regulatory burdens on private offerings, and the associated reduction in cost, will make public capital markets attractive to many. No longer will early-stage financing be reserved for those few with the resources to attract and engage Wall Street investment bankers and lawyers. This “uberization” of capital markets will make capital more readily accessible to every budding entrepreneur.

The strict federal securities laws that regulate raising investment capital—well-intentioned in the aftermath of The Stock Market Crash of 1929 and the Great Depression—made the ambition of successfully raising capital for startups unattainable for most people. It relegated entrepreneurs to raising seed capital from friends and family and others with whom the entrepreneur had the requisite relationship.

The term “crowdfunding” generally describes campaigns that accept relatively small amounts of money from large numbers of people. Modern crowdfunding started with campaigns soliciting donations for social causes or new business ventures; in exchange for a donation, individuals typically received a token of appreciation for their donation, a t-shirt, a first opportunity to purchase a product, or a movie-production credit. A stark example of the difference between non-equity and equity crowdfunding is illustrated by the crowdfunding campaign of virtual-reality pioneer Oculus VR. Many of the 9,522 people who contributed to Oculus’s non-equity crowdfunding campaign on Kickstarter may have been surprised to learn that they would not share in Oculus’ gains two years later when Facebook announced in March 2014 that it was acquiring Oculus for $2 billion.

Promulgated under Title III of the JOBS Act is the new Regulation CF, commonly known as the “equity crowdfunding” exemption. Effective last May 26, this regulation enables entrepreneurs to raise up to $1 million during any 12-month period from anyone who wants to invest, subject to certain dollar limits on the amount of the individual investment. There is no requirement that the investor be accredited or sophisticated. If the investor’s net worth or income is below $100,000, he or she is subject to an investment cap of the greater of $2,000 or 5 percent of the lesser of the investor’s annual income or net worth. If both net worth and annual income are at least $100,000, the investment cap is 10 percent of the lesser of the investor’s annual income or net worth, not to exceed an amount sold of $100,000. These caps reflect the aggregate amount an investor may invest in all offerings under Regulation CF in a 12-month period across all issuers.

An offering statement is required, which must include general information about the issuer, officers and directors and significant shareholders, the intended use of proceeds, the company’s ownership and capital structure and financial statements for the two most recently completed fiscal years. If the offering amount is greater than $100,000 but less than $500,000, the financial statements must be reviewed by an independent accountant. If the offering amount is greater than $500,000, the financial statements must be audited, unless the company is conducting its first Regulation CF offering, in which case the financial statements need only be reviewed. For offerings less than $100,000, the financial statements need only be certified by the issuer’s principal officer. The offering statement must be filed with the SEC, but it is not reviewed by the agency. Once the offering statement is filed with the SEC, the offering may immediately commence and the company may accept investor subscriptions. The issuer is required to set forth a minimum or target offering amount, and proceeds must be deposited in a third-party escrow account until the minimum is reached.

A significant limitation under Regulation CF is that all offerings must be conducted through a single Internet portal, which must either be registered with the SEC as a broker-dealer or as a new form of regulated entity, a “financing portal.” There are limits to advertising an offering and, given the potential liabilities, consultation with good legal counsel is a must.
In theory, Regulation CF enables anyone to reach out to capital sources and raise seed levels of money. No doubt, without the benefit of professional financial intermediaries, such as investment bankers, entrepreneurs on their own will face challenges raising capital. What the JOBS Act offers, however, is a pathway for companies to access capital previously available only to the most privileged few. Fasten your seatbelts, it’s going to be a bumpy night.

February 2nd, 2017

Posted In: crowdfunding, Legal, Uncategorized




© 2017 The Film Collaborative. All rights reserved.