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Two For The Show: Producing Veterans and First-Time Collaborators, Todd Black and Jennifer Fox Join Forces for Roman J. Israel, Esq.

Posted By Spike Friedman, Tuesday, January 16, 2018

Roman j. Israel esq., at Its heart is a cinematic collaboration between its writer/director Dan Gilroy and its star/producer Denzel Washington. Gilroy wrote the film with only Washington in mind, saying publicly that if Washington had not accepted the role he would not have proceeded with making the movie. Washington, who plays the title role, is in nearly every shot of Gilroy’s film, realizing the intricately layered character of roman with a meticulously crafted performance. The film is an undeniably unusual, deeply affecting, character piece. It’s that rare studio film that surprises in both form and content, filled to the brim with the sort of moments that can only arise when two artists are working with each other at the top of their respective games.

Behind the scenes, the film was just as much a collaboration between two producers, PGA members Jennifer Fox and Todd Black. Fox effectively came with Gilroy, with whom she produced his debut directorial effort Nightcrawler in 2014. She has a long history working with both Dan and his brother Tony, and a deep trust forged through years of collaboration to bring truly sophisticated mainstream cinema to the screen. Black meanwhile has a personal relationship with Washington that goes back 27 years and has been working with him since producing Washington’s directorial debut Antwone Fisher in 2002. It was Black who first gave Washington the opportunity to work behind the camera and with whom he has forged a de facto partnership that has extended deep into each others’ careers.

Having two producers with that much power, experience and history with the artists involved could have led to any number of issues. Instead what arose was a true partnership, without which one of the year’s most idiosyncratic and affecting films never would have been made. Like Gilroy and Washington, their styles meshed effortlessly in bringing Roman J. Israel, Esq. to life.

The partnership between Fox and Black on the film started inadvertently at Gilroy and Washington’s first meeting. As Fox tells it, “There was a scheduling mix-up, and Dan was in a lobby in a hotel waiting for [Washington], calling me every 15 minutes, saying, ‘He’s still not here, what should I do?’ And I said, ‘Keep waiting. Just keep waiting.’ I couldn’t reach Denzel’s agent because it was a Saturday, and I didn’t have his cell phone, so I called Dan’s agent and his answer was that we have to call Todd Black. And so we got Todd on the phone.”

Black jumps in, confirming that he remembers the moment vividly: “I was in my backyard. I had just cleaned up some dogshit.”

 And in that moment, the producorial partnership was forged. “Within a minute, the problem was solved,” says Fox. “The meeting happened. All was well. But it was at that point I knew, ‘We really need Todd on this.’”

Jennifer Fox on location in Los Angeles with writer/director Dan Gilroy

Neither Gilroy nor Washington started of directing their own work. For Gilroy the process was a matter of gaining the confidence to do that work, something Fox brought out of him. “Dan gave me an unproduced script that was great, called Free,” Fox recalls. “It was about a runaway slave. It had this very commercial bent to it, but it dealt with very serious, tragic, historical situations, and he did it with such grace and elegance. As we started interviewing directors, I listened to Dan talk and at the end of one of these meetings, I said, ‘Dan, you need to direct this.’”

For Gilroy, this was a breakthrough. And while Free did not end up going into production, Fox and Gilroy teamed up to develop the script that became his directorial debut, Nightcrawler. It was a project that was able to get a star attached in Jake Gyllenhaal, and with Dan’s brother Tony onboard  as a producer, financing came into place. The film was an immense success critically and financially, more than tripling its budget at the domestic box office alone, while earning Gilroy a Best Original Screenplay nomination.

On the heels of his frst feature, Gilroy had the opportunity to direct a number of different projects. But he was set on telling the story of Roman J. Israel. Fox explains, “Coming of of Nightcrawler, he had a moment, people were looking forward to what he’d do next. He turned down a lot of things that were offered to him where he could have been paid more money, and he stuck with this. We talked about it at length, and I’d say ‘It’s a risk,’ and he’d say ‘I’m a gambler, and I believe in this.’”

For Washington, the opportunity to work behind the camera was brought to him by Black. “I bought the rights to my friend Antwone Fisher’s life,” Black recounts, “and I paid him out of my honeymoon money, $10,000, which was a lot of money to me then, to write a screenplay. I was dealing with Washington’s then agent, to get him to read it. It took years, because at that point Denzel was doing movie after movie after movie. Finally he read it. His agent said he wanted to meet but that he wasn’t interested in starring in it—he was interested in directing it. And I considered and decided I was open to that, and in fact, it was interesting to me.”

Todd Black relaxes on set with cast member and
fellow producer Denzel Washington

“Everyone wanted him as an actor in that moment,” says Black. “He had never directed anything. But I was interested because oftentimes you find certain actors make brilliant directors. And that’s how it started for us. It was his predilection to go down that road, and it was my openness and interest to hear what he wanted to do.”

From there a partnership emerged based in a mutual sensibility. “As a producer, it’s about the specifics,” says Black. “It’s about the details. That’s what Denzel expects. As an actor that’s the world he lives in: the details. He applies the same principles to producing. And he expects you as a producer to be that exact same way.” Black has produced all three features that Washington has directed, along with a host of others in which he has starred, because Washington recognizes that the producer’s approach is sufficiently detail-oriented to match the rigor that Washington brings to the entire creative process.

In fact, the similarities between the ways that Fox and Black work made their efforts on the film thoroughly complementary. As Fox says of her colleague, “He could not have been more respectful. I’ve told him, ‘I could not be more lucky to have you!’ It’s so great to have someone who does what you do, who understands the struggle of it.”

“We’re both super hands-on producers,” testifies Black. “We don’t phone it in. We’re there. There are a lot of producers that are great producers, but they only go to the set to do a photo op or two. That’s fne. That’s a way of producing. That’s not a condemnation of it.”

Roman J. Israel, Esq., is, like Gilroy’s previous scripts, a challenging and complex story. As Fox remarks, “With Dan’s work, there are layers and layers of depth. It’s material you can interpret and reinterpret.” That depth requires immense specificity in all aspects of production. But it’s also the sort of work that attracts the talent needed to realize that vision. “It’s such rich material,” Fox adds, “it attracts great actors and artists and great crew.”

The setting of the film is crucial, as the story it tells is as much about a gentrifying Los Angeles as it is the intricate legal plotting that exists in the foreground of the story. “From the beginning,” Fox explains, “Dan had this concept that Roman’s apartment was a place being overtaken by this brand new shiny building coming up next-door. As we started scouting and picking locations, we found that there was this constant motif of construction cranes all over our city. It feels like there’s a crane in practically every scene. And we didn’t need to create that.”

The film’s real-life locations are crucial to its success. On top of which, getting to work in Los Angeles was something that both Fox and Black relished. “I hadn’t shot in Los Angeles in more than 10 years,” says Black, “so it was fantastic!” Despite Los Angeles being the locus for so much of the entertainment industry, it does not play itself on film very often. “It hasn’t been overshot,” says Fox, “so you can find incredible locations that are not overly familiar. I find it fascinating, and you get to look at places that you would never have an opportunity to walk into.”

One particular incident stood out for Fox as exemplary of the process of shooting in LA. “We’re shooting a scene where Roman puts money in a dumpster in the rain,” recalls Fox. “There are supposed to be rats running by. And it was actually raining that day. And we were actually standing in the rain, watching actual rats run by our feet. And my thought was just, ‘We’re so lucky to get to do what we do.’ And then the next morning I realized, ‘Wow, last night I was totally psyched to be in a freezing cold alley in the pouring rain, with rats.’”

When it came to working in tandem, Gilroy and Washington meshed beautifully. “It worked very organically,” says Black of the process of collaborating on set. “We didn’t really have any hiccups, because Dan was so clear with his script going in.”

That clarity allowed Washington to do what he does best, which is think like the producer he is. “He also thinks like an audience,” adds Black. “He has taught me to always see the big picture. Always. You gotta make sure you’re seeing how something is going to feel for the audience.”

Fox notes how unusual that approach is for an actor to take with their work. “There’s a tendency for a lot of actors to think about the work for their role, their part.” With Washington, the process is different. She adds, “Sometimes there’s such nuance to [Denzel’s] work that in the moment, you don’t quite understand why something is happening. Then when it comes together later you realize, ‘Oh, he knew exactly why he was doing that,’ that it was part of a whole. It almost feels instinctive, like it’s this sort of innate, incredible cinematic IQ.”

This led to an organic working environment where the planning involved allowed both Gilroy and Washington to flourish as creators. They were able to bandy about choices as small and specific as Roman’s taste in music, because everything was set up for them to be able to dig further and further into the specificity of the character. And so the unusual and idiosyncratic path the character takes through the film is matched with the true depth of humanity that is necessary to tell that story. 

 As Black puts it, “You don’t get to tell human stories as producers anymore. You have to have special effects and visual effects. As a producer, you rarely get to tell stories about human frailty. Human drama. The stuff we’re all around, every day. Pure humanity. To get to put that on the screen in 2017, released by a big studio? That’s pretty rare. “

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DAVID HOBERMAN & TODD LIEBERMAN - After Two Decades as Hollywood Workhorses, The Mandeville Films Partners Hit The Jackpot in 2017

Posted By Chris Green, Monday, January 8, 2018

There are all kinds of ways to create a wildly successful creative partnership. Plenty of people cherish the romantic image of partners as joined at the hip … one-mind/two-bodies collaborations between lifetime colleagues who came up through the trenches together. But the truth is, the essential commonalities in a great partnership aren’t the biographical details, but the bonds that come from a shared sensibility, work ethic and passion for storytelling.

No one is going to mistake David Hoberman and Todd Lieberman for brothers; your first appraisal is more likely to be uncle and nephew. Hoberman is older by 19 years, the son of an ABC radio executive, who got his start in the ABC mailroom, delivering mail to fast-rising execs like Michael Eisner and Barry Diller. After a career that wound from Norman Lear’s Tandem Entertainment to the early days of ICM, Hoberman found himself once again in Eisner’s orbit. Working under Eisner and Jefrey Katzenberg at Disney, he was a key part of the executive team that led the studio to its late 1980s/early 1990s resurgence. After a decade at the studio, which saw him rise to become President of the Disney Motion Picture Group, he moved to the other side of the production divide, creating Mandeville Films and setting up shop with an overall deal on the lot. The company’s office remains housed there to this day.

The same year that Hoberman moved into that office, Lieberman arrived in Los Angeles, a theater kid with a degree from UPenn and hustle to burn. He quickly found a home in distribution at Summit Entertainment, where he earned a reputation for shrewd instincts, championing the company’s acquisition of hits like Memento and American Pie. Only four years after moving to Hollywood, Lieberman joined Mandeville, first on a temporary basis and soon thereafter as a kind of junior partner. After a mostly successful decade of producing mid-budget studio comedies, the duo took a left turn, teaming with independent filmmaker David O. Russell for the boxing-themed family drama The Fighter. The movie was a watershed for all concerned, rehabilitating the director’s reputation and earning Mandeville a new measure of critical acclaim and industry respect, as well as the producers’ first Oscar nominations.

Hoberman and Lieberman pivoted back towards Disney, breathing new cinematic life into The Muppets franchise, the success of which allowed the studio to trust them with the live-action reboot of its animated classic Beauty and the Beast. The result is 2017’s biggest hit to date, a film whose domestic box office take currently sits at No. 8 of all time, and which has grossed over a billion dollars worldwide. Mandeville saved its second act for the fall, releasing the Jake Gyllenhaal Boston bombing recovery drama Stronger and the modern classic kid-lit adaptation Wonder; the two films have earned the producers some of the best reviews of their careers, with Wonder establishing itself as the sleeper hit of the season.

What began as a mentor/protégé relationship has long since become a partnership of equals. Produced By grabbed the chance to meet up with Hoberman and Lieberman on the Disney lot this fall, in the middle of their company’s biggest-ever year.


IN THE EARLY STAGES OF MANDEVILLE, HOW DID YOU GUYS DEVELOP A WORKING RELATIONSHIP? DAVID, DID YOU HAVE ANY INKLING THAT THIS GUY WAS GOING TO BE YOUR PARTNER FOR 20 YEARS?

DAVID: I was thinking about that as we were sitting here—what would my professional life be like had I not hired Todd? Obviously, it’s impossible to know. But Todd was just a really good executive and I could count on him. If I asked him to do something, I knew it would get done. And then it just became what it became. It’s like one of those stories; you look around and it’s been 17 years. When you’re in a relationship for 17 years, you’ve been through everything with that person. I’ve been through his midlife crisis, he’s been through my divorce, we’ve shared our lives with each other.

TODD: Yeah, we trusted each other. Certainly for the first many years I was kind of drafting of David … learning, absorbing and figuring out what the business was. And I think I was providing something different for him. But then at a certain point you become contemporaries more than mentor/protégé, and it just naturally evolved. It’s a job, right? And then the job turns into something and so you end up figuring out a different relationship. So the success on the business side has equalled the success on the personal, emotional side, and those two things together make up something that’s really hard to force.

DAVID: I think if you look at Hollywood, there are very few partnerships that last. There was no way to foresee that this particular relationship would do so, particularly given that he was in every way my junior, you know? A lot of people become partners because they grow up in the business together. So this one, I think, is particularly unusual.

YEAH. IT DOESN’T HAVE A LOT OF OBVIOUS MODELS OR PROGENITORS. SO HAVING BEEN AN EXECUTIVE AT DISNEY AND THEN MOVING INTO A PRODUCTION ROLE, HOW DID YOU LEVERAGE THAT KNOWLEDGE OF THE STUDIO TO GET THE COMPANY OFF THE GROUND IN THE EARLY STAGES?

DAVID: I knew the formula. Basically, our group started the Touchstone comedy tradition. I loved Disney movies and I knew how to do that. So that’s just what I naturally did. The thing that was interesting about Disney at the time is that our slate was so varied that we didn’t have the same identity as Warner Bros. or even Paramount in those days. We never really worked with the biggest movie stars because the studio didn’t want to pay them. We did a lot of movies with DeVito, we did a lot of movies with Bette Midler and Goldie Hawn … we had this sort of regular troupe and it was just a lot of fun. It was an easy transition for me because I knew how to do what the studio did at that time.

YOU CAME INTO YOUR OWN WORKING FOR MICHAEL EISNER AND JEFFREY KATZENBERG… WHAT LESSONS DID YOU DRAW FROM THEM THAT HAVE STAYED WITH YOU?

DAVID: Jefrey was all about the work. It wasn’t about dining out or having fun, even though we had fun. It was about doing the work and it taught me a work ethic that I’ve lived with since then. We used to be infamous for our script notes; sometimes they were as long as the script. That kind of rigorous approach gave us the ability to develop scripts that people wanted to make. That started with my training under Jefrey and Michael. We worked as hard as anybody could work. I mean there was that famous quote, “If you didn’t show up on Sunday, don’t bother coming in on Monday.” We’d arrive at work with our car headlights on and we’d leave with the headlights on. So it was a very rigorous but fun environment.

SO TODD, IN THE SAME SENSE THAT DAVID LEARNED AT THE FEET OF KATZENBERG AND EISNER, YOU VERY MUCH LEARNED AT DAVID’S FEET. WHAT WAS DIFFERENT ABOUT WORKING WITH DAVID?

TODD: I’d never worked in development. When I was at Summit, I was reading scripts but generally scripts that were already in production. Going to film festivals and watching movies, I was able to start articulating what I liked and didn’t like about finished film. But I had no skill set in what a three-act structure was or breaking down a script. So the idea of sitting in a room with a writer for three or four hours at a time was very foreign to me. It took me a while to understand that process and, frankly, get the patience to be able to do it well and be very granular about certain things. You can look back at my old school report cards and they all say the same thing: if I don’t like something or I’m not interested, I don’t apply myself. So I have to love it in order to sit in a room with a writer for three or four hours at a time. I have to love it.

SO MAYBE THE QUESTION IS ABOUT EVOLVING YOUR OWN INSTINCTS AND YOUR OWN TASTE. HOW DID YOU LEARN TO RECOGNIZE WHAT YOU LOVED AND BRING THOSE INSTINCTS TO BEAR IN A PROFESSIONAL CONTEXT?

TODD: I remember how when I was a kid, the movies that I would really respond to were the ones where I was moved emotionally, even if it was a comedy. I think back to some of the early John Hughes films or some of the early Amblin movies, that you had this feeling like the story was entertaining, but there was also something more … you came away from the experience with something that followed you out of the theater. I wasn’t able to articulate that until much later in life, but when I started looking for material and finding writers and things that I thought would be valuable for the company, that’s what I was looking for. We started doing comedies, and the first thing that I brought to the table here was a movie that ended up becoming Bringing Down the HouseIt started of as a spec called Jailbabe.com, and it was kind of a raunchy comedy with some funny set pieces. And through the course of development with all kinds of different executives, obviously David as well as Todd Garner at the studio, it evolved into something very different. But that movie, as much as it is kind of a broad comedy, has a heart and soul to it at the center, and it connected with audiences.

So over the course of years I was trying to figure out what that all meant, and I came to kind of a revelation at a certain point—people in our position have an ability to tell stories that compel behavior or move people in a certain way. So I started focusing in on what that meant and started personally looking for things that just, frankly, moved me emotionally. And if you look at a lot of the things that we involve ourselves in—not all of them but a lot of them—there’s an inspirational uplift, something at the end that leaves you feeling a little better than when you went in to the movie. I think that’s always been my personal taste, but over the course of checks and balances and trial and error, those are the things that I personally zero in on and I think both of us share that philosophy.

DAVID: Right. I remember when we had Pretty Woman in test previews, watching the audience react to that, or Beaches where you could literally hear the crying and the sobbing and people taking out their handkerchiefs. Or Dead Poets Society; the silence when that character committed suicide. I realized then what an impact the movie business has on people and has on their lives, and what it means to be entertained and emotionally moved and all that. And that’s like a drug. You just want to keep doing that.

SO HOW DO YOU PURSUE THAT OUTCOME? HOW DO YOU WORK TO ORIENT YOURSELVES DURING THE DEVELOPMENT PROCESS TO POINT YOURSELVES IN THAT DIRECTION?

TODD: That was part of the revelation to me, how significantly you can alter the shape of a story just by sitting and brainstorming and talking. Sometimes you don’t come in with the idea that’s going to do it, but through the course of discussion with your partner or a writer or something, in that room, something generates. I remember when we were sitting and developing The Proposal, which we developed for ages. I can’t remember who was exactly in that room, but an idea came up about changing the structure of the story by changing how many days the story took. And we realized that by adding one day over the course of that story, it would change the entire dynamic of the film. And I remember, similarly, when we were developing The Fighter. It was maybe because of a budgetary constraint, but [writer/director] David Russell said, “Let’s just take out the entire first act.”

DAVID: I remember that. It was a budgetary thing.

TODD: Yeah, it was budgetary. But in a way, the development process triggered by that budget constraint completely changed the movie. I remember thinking, ‘Well, how’s that going to work?’ And then you talk about it and realize that it kind of works.

DAVID RUSSELL DOESN’T WORK IN THE KIND OF DISNEY FORMULA MODE THAT YOU GUYS MAY HAVE MADE YOUR REPUTATION IN. IT SEEMS LIKE AN UNLIKELY PARTNERSHIP.

DAVID: Yeah, it was an unlikely pairing. David had a reputation at that time. But I’ve got to tell you, I don’t know why or what or how, but it was probably one of the best collaborations we’ve had in working with a director. He was open to every suggestion and inspired everybody to want to make the best movie that we could make. He works very differently than most directors that I’ve worked with.

TODD: He does.

DAVID: Particularly on set. He’ll interrupt in the middle of a take and give notes, “Try this … try that.” The Fighter wasn’t a big-budget film, so we had to move quickly. We were sort of scrappy in how we made that film. But David turned out to be a great collaborator and great director and that movie got him back on his feet. It was a blast, that whole experience. It really was.

TODD: Deciding to move forward with a movie like that was a very conscious decision. You mentioned some of the comedies we’d done before, and I thought of this as the evolution of a company, expressing a desire to grow and get into different things. So it was a conscious decision to pivot into a different realm that we’d never been into before. It turned out really well and allowed for movies from there to happen. Frankly, The Fighter is what allowed for movies like Wonder and Stronger.

HOW DID DAVID COME INTO YOUR ORBIT? DID YOU PURSUE HIM? DID HE PURSUE YOU?

DAVID: We were interviewing a lot of directors and we came down to a few. David had a relationship with [Mark] Wahlberg and I think Wahlberg asked us to meet with him. We liked him. And I remember in that meeting we said, “Well, what would you do to the script?” and he said, “Like, nothing. It’s great.” And of course, we ended up completely rewriting the script. [laughs] I always say producing is about making choices, and the biggest choice you make is the director choice. And that one turned out okay.

TODD: He became like a close friend, too, to both of us. There have been lots of times where he’s asked us to come and help produce another one of his films, and there was always a schedule conflict. But we love the guy.

SO GIVEN THAT THE PRODUCER’S JOB OVER THE COURSE OF PRODUCTION IS TO SUPPORT THE DIRECTOR AND GIVE THE DIRECTOR THE TOOLS THEY NEED, WHAT WAS IT LIKE TO WORK WITH A GUY LIKE DAVID, WHO HAS A VERY UNIQUE STYLE?

TODD: I think you have to earn that person’s trust so that when they have—and he does—thousands of ideas, you can be a sounding board to filter ones that might be valuable or allow for a different perspective that might be valuable. I mean it was David who said, “This script needs humor in it.” That tone came from him. His approach is almost like jazz music, where there’s no linear approach to it, you just kind of hear your way through it. To a certain extent, you can control that as much as you can control that.

SOMETIMES YOU DON’T WANT TO CONTROL IT.

TODD: That’s right. I think part of producing is knowing when to step in and knowing when to step back. It’s as much knowing when not to do something as it is when to do something.

DAVID: True in life, as well. [laughs]

SO IN TERMS OF THE STUFF THAT THE FIGHTER ALLOWED YOU TO DO, YOU MENTIONED WONDER AND STRONGERHOW DID YOU GO ABOUT EXPLOITING THE LEVERAGE YOU GOT?

TODD: One thing we’ve heard a lot is, “We don’t know where to kind of categorize you guys. Your movies, The ProposalThe MuppetsWarm BodiesBeauty and the Beast—they’re literally all over the place.” And we say, well, that’s reflective of our taste; we don’t want to just focus on just one thing. So I think what The Fighter allowed us to do is focus more on things that we just loved as opposed to finding things because they were going to get made.

DAVID: I think, also, people accept you as more serious filmmakers. We’ve had a few of those kinds of successes. Beauty and the Beast is the first all-out blockbuster. As my dad said, “Never peak too early.” So it was rewarding to have that at this time, because we hadn’t had one. We’d had a lot of success, but not that big, billion-dollar movie. I think that changes peoples’ perception of you. So you just keep doing what you do. I do think that the diversity of our slate comes from the diversity of being at a studio. I just looked at it like a studio executive. If you look at the movies we’ve made over the course of years, it would resemble the slate of a studio. So I think that was a big influence on the direction that we took.

WITH BOTH BEAUTY AND THE BEAST AND THE MUPPETS, YOU GUYS FOUND YOURSELVES PRODUCING STORIES AND CHARACTERS THAT WIDE SWATHS OF THE PUBLIC ARE DEEPLY ATTACHED TO. THAT WOULD SEEM TO CREATE A DIFFERENT KIND OF PRESSURE ON THE PROCESS. HOW DID YOU BOTH NEGOTIATE THAT?

TODD: I think, as a creative person, you kind of have to go in a little bit with blinders on and not let that stuf in. For both of those, I realized how revered they were, certainly, but you don’t actually absorb—or at least I didn’t absorb the pressure until after the fact. Because if you absorb the pressure during the course of it, you’re second-guessing decisions and saying, “Well, is this the right thing because of something the fans said?” Then you lose a little bit of the creative plan.

Hoberman on the set of Traitor with cast Don Cheadle
Hoberman & Lieberman (center) on the set of The Proposal with cast
Sandra Bullock and Ryan Reynolds (left) and director Anne Fletcher (right)

DAVID: I never look at it that way. You can’t look at that big of a picture. You can’t let yourself go, “Oh my god, we’re taking this crown jewel of the studio and we’d better not mess it up.” You have to put all that aside—which I do; I’m able to compartmentalize—and just do what you always do on every movie, which is to service that film. Because if you let all that stuff come in to your thinking, you’re not going to take chances, you’re not going to allow your creativity to flow and you’re not going to succeed.

TODD: It’s easy enough to say you shouldn’t make decisions out of fear—easier said than done, for sure—but in circumstances like these, it’s almost essential, I think.

GIVEN THE IMPORTANCE OF THE “DIRECTOR CHOICE,” HOW DID YOU ARRIVE AT BILL CONDON AS THE GUY TO HAND BEAUTY AND THE BEAST OFF TO?

DAVID: Actually it was a pretty easy choice because he loves theater. He wrote Chicago, he wrote and directed DreamgirlsHe had done the Twilight films at Lionsgate, so he’d worked with visual effects. He had the whole package, really. He was familiar with all the Beauty and the Beastthat were in theaters going around the country. He was a true aficionado and truly loved the story. And he came in with some really good ideas as a writer. So it was actually kind of a no-brainer for us.

SO IN TERMS OF CREATING A WORLD AND REIMAGINING THIS ANIMATED CLASSIC AS LIVE ACTION, IT’S ONLY RECENTLY THAT THE INDUSTRY HAS EMBRACED THIS KIND OF REBOOT. OBVIOUSLY AFTER BEAUTY AND THE BEAST’S SUCCESS, WE’RE GOING TO BE SEEING A LOT MORE OF IT. HOW DID YOU GUYS APPROACH THAT CHALLENGE? WHAT WOULD YOU SAY TO THOSE PRODUCERS WHO ARE NOW LOOKING AT REMAKING ANIMATED MEDIA ANIMATION AS LIVE ACTION?

DAVID: Well, I would say that if you’re doing it just to fill the coffers, then that’s not the way to approach it. I think Bill and we were really looking to figure out how to make it our own. There are things you can get away with in animation that you can’t get away with in live action.

JUST AS AN EXAMPLE, LIKE WHAT?

DAVID: Like, who was Belle’s mother and what happened to her? [laughs] Who was the prince’s father, the king, and what happened to him? How’d he get this way?

WE NATURALLY ASK DIFFERENT SETS OF QUESTIONS WHEN WE’RE LOOKING AT LIVE ACTION VERSUS ANIMATION.

DAVID: Yeah. You’re held to a more realistic way of approaching a story. Another one: Gaston can’t be as broad as he was in the animated film. So I think that was the challenge. Bill had come up with this idea about the role of the staff—that they were going to become inanimate objects if the curse wasn’t lifted. So they had their own story. But our mantra was always: Let’s do something that we can be proud of, where we’ve made a contribution to a classic, as opposed to just copying that classic.

TODD: Exactly. You have to add something to it to justify it being a live action theatrical release above and beyond the fact that we’re just updating the technology. This would be another element to it, so again, going back to the idea of moving audiences: I think it was important to accentuate some of the dramatic storylines, back stories and things like that, that added to the emotional experience. I vividly remember seeing the animated film with my girlfriend in 1991 and leaving that theater feeling totally romantic and emotional. I approached it from the desire to replicate that feeling without specifically copying the movie. I think that was the goal and I think we accomplished it. Obviously the box office speaks for itself, but there were so many people calling, just saying, “Thank you so much. I took my daughter” or “I took my kids” or “I took my Mom.” It seemed to have that generational feeling, the same way that the movie did back 20-some years ago. And that’s really gratifying. 

YEAH, I’VE GOT TO THINK THAT HAS TO JUST MAKE YOUR DAY. OBVIOUSLY YOU GUYS GOT TO BE ON TOP OF THE WORLD FOR A SEASON, BUT HOW ARE YOU LOOKING TO CAPITALIZE OFF OF THAT AND WHERE DO YOU GO FROM THERE?

DAVID: You want to do it all over again! [laughs] It’s such a great experience that you do want to repeat it in some way, shape or form. Not that we weren’t always looking for stories that can do that kind of business, and people are maybe more likely now to approach us for those kinds of films.

TODD: The Fighter started it, and then Beauty and the Beast has moved it to a different level. What it does is allow you to narrow the focus and pick projects you want to do. But it also makes you push yourself to strive for excellence. Once you’ve gone out there with something that was so well received, both critically and commercially, you want to top it. So you have to scrutinize the projects you have and scrutinize the development and scrutinize the filmmakers even more and just making sure that every time we’re going after something we’re trying to do the very best version of it.

THAT MIGHT BE A GOOD SEGUE TO TALK ABOUT WONDER, WHICH IS OBVIOUSLY A VERY DIFFERENT KIND OF MOVIE AND ONE THAT’S NOT NECESSARILY AN EASY STORY TO TELL. THERE ARE ALL SORTS OF WAYS YOU CAN TELL THAT KIND OF STORY WRONG.

TODD: Yeah. That was a book that David and I both read right as it was being published, and we fell in love with it. We both read it overnight, we called each other and said, “I don’t know how we’re going to get this movie done, but we have to get this movie done.” It was a message we had to get out in the world. We had no idea if the book was going to become big or not, but this was a movie we had to make. Thankfully, the book became gigantic and allowed for that momentum to push through and got the movie made. But we heard an extraordinary number of takes from writers and filmmakers. And most of them were, frankly, “Let’s not show his face,” or “Let’s wait til the end to show his face.” “Let’s get rid of the multiple perspectives.” “Let’s tell it linearly.” 

 But we kept thinking that the best asset we had here was the book. As hard as it’s going to be and with as many people telling us that we were crazy—and they did—that this movie that would never get made because of this kid’s facial difference, we just kept thinking the only way to make this movie is to do it in the way that the book’s doing it and honor these kids who have this facial difference. The book at this point is a modern-day classic, and I think now, if we had changed the book to a significant degree, we would have gotten throttled.

DAVID: The surprise of that experience was that it seemed like a pretty simple kids book. It’s a pretty simple message, a pretty simple story about a kid going through one year of fifth grade, but it turned into a very difficult adaptation. Like Todd said, people had all different kinds of ideas of how to do it. What we ended up deciding was that all we have to do is tell the story in the book. If we do that, we’ll be in good shape. And that turned out to be the right decision.

TODD: Sometimes—and this is where it becomes really challenging—you’re going to have writers and directors come in who want to put their own stamp on something. And so we needed someone to come in there and basically take what was so brilliant about that piece of writing and translate it from the written medium into the visual medium, as opposed to changing things to a degree to have ownership of that story. Thankfully, between [writer] Jack Thorne and [writer/director] Steve Chbosky, those guys revered that book. But we had so many people coming in saying “Here’s why you need to do it differently” or “Here’s the imprint we need to put on it.” That sometimes is an alluring proposition. But maybe the less cool idea is just take what’s written and put it up on the screen. In this case, it was the better version.

JUST TO BRING IT BACK AROUND TO THE BIG PICTURE, WHAT WOULD YOU TELL A YOUNG OR EMERGING PRODUCER WHO’S LOOKING TO GET THEIR FIRST FILMS MADE OR GET THEIR FIRST STORY DEVELOPED OR FIND THEIR FIRST DEAL SOMEWHERE? WHAT SHOULD BE THEIR TOP PRIORITY AS A STORYTELLER, AS A PRODUCER, IF THEY’RE GOING TO BUILD A CAREER?

TODD: Building along the theme of what I’ve been saying this whole time, don’t be scared of your own taste. Really understand what you love, because the only thing that’s going to move things forward is passion and fight. People say “no” all the time, but what I like to say is I can’t be the only person in the world who feels this way about this particular story. So there are other people who love it too, and you just have to find those people. Don’t pretend and don’t try to figure out what other people’s tastes are; know what your own is. I’m still learning, frankly. Every day, there’s a new experience and a new challenge.

DAVID: Because this is Produced By magazine, I wanted to share this experience. I learned how to produce a movie on a film I did called The Negotiator. Prior to that, I may have been involved in a couple of movies, but I really didn’t know how to produce until that movie, and I always give that movie credit. F. Gary Gray, who had done Friday and Set It Of was the director. Gary is a peculiar director. Sometimes you don’t know where he’s coming from or what he’s doing or why he’s doing it, and I remember we used to come in in the morning and Gary’d say, “Okay, I want to do this, this, this, this, this.”

And then he would leave and we’d look at each other and say, “Well, we can’t do this, this, this, this and this, so what are we going to do?” And the DP, AD and I would sit around and figure out what the day would be, how we were going to shoot it, what we were going to tackle. And then we’d come back and tell Gary, “Here’s what we’re going to do to try to accomplish what we think you want.” We did that on a daily basis, and that’s when I learned what the job is. I was with those key people, and we all gathered to structure and create what the movie was going to be, and then it was up to Gary to shoot it. That was an extraordinary revelation for me, working on that movie, and it helped that it turned out pretty good. It wasn’t a huge hit at the box office, but there are other reasons for that. But the movie turned out good and I could be proud that I contributed ideas. That’s the movie where I learned what the power of a producer is, what the job of a producer is and how a producer can affect a film.

 - feature photography by Kremer Johnson Photography

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2018 Producers Guild Awards Honorees

Posted By Administration, Thursday, December 21, 2017

One of the awards season’s marquee events, the Producers Guild Awards celebrates the finest producing work of the year, and gives the Guild an opportunity to honor some of the living legends who have shaped our profession. 

Held in January, the Producers Guild Awards is a must-attend event for the industry, and represents a unique chance for PGA members to extend their network, support their Guild, and pay tribute to the best of their profession.  The 29th Annual Producers Guild Awards will be held January, 20th at The Beverly Hilton hotel in Los Angeles.

- For ticket information, please contact Lauran Huff at 310-201-5033 or lauran@lpaevents.com 

- To see all nominees for Theatrical Motion Pictures and Television, click here.



MILESTONE AWARD
Donna Langley

The Milestone Award is the PGA’s most prestigious honor, recognizing an individual or team who has made historic contributions to the entertainment industry.  In the past, the Guild has paid tribute to such industry leaders as Clint Eastwood, Jeffrey Katzenberg, Steven Spielberg, Sherry Lansing, Ron Meyer, Alan Horn, Bob Iger, Jim Gianopulos, and 2017 recipient Tom Rothman, among others.

“The Producers Guild of America champions what is lifeblood to so many of us—visionary storytelling, fearless creativity and global filmmaking,” said Langley.  “On behalf of the brilliant team at Universal, I want to thank its members for recognizing our work with this prestigious honor.”


DAVID O. SELZNICK ACHIEVEMENT AWARD IN MOTION PICTURES
Charles Roven

The 2017 recipient of the David O. Selznick Achievement Award in Motion Pictures was Irwin Winkler. Previous recipients include David Heyman, Stanley Kramer, Billy Wilder, Clint Eastwood, Jerry Bruckheimer, Brian Grazer, Laura Ziskin, Kathleen Kennedy & Frank Marshall, Scott Rudin, and Steven Spielberg.

“I am grateful to my peers and colleagues at the PGA for recognizing me with this award named after true industry legend David O. Selznick,” said Roven.  “It is an incredible honor to be included among such an illustrious and inspiring group of filmmakers.”


NORMAN LEAR ACHIEVEMENT AWARD IN TELEVISION
Ryan Murphy

James L. Brooks was the 2017 recipient of the PGA’s Norman Lear Achievement Award in Television. Previous honorees include Shonda Rhimes, Mark Gordon, Chuck Lorre, J.J. Abrams, Dick Wolf, Jerry Bruckheimer, Lorne Michaels, David L. Wolper, Aaron Spelling, Carsey/Werner/Mandabach, Steven Bochco, David E. Kelley, Mark Burnett, and Norman Lear, himself.

Producers Guild Awards Chairs Donald De Line and Amy Pascal stated, “Being a prolific producer is itself an achievement.  But it takes a truly unique talent like Ryan Murphy to forge a producing career that touches so many different genres—from horror, to comedy, to musicals, to fact-based drama—and infuse them all with such distinctive voice and passion.  In addition to his many other credits, Ryan is even a former producer of the Producers Guild Awards itself, which makes the opportunity to honor him this year even more special.”



VISIONARY AWARD
Ava DuVernay

The Producers Guild Visionary Award recognizes television, film, or new media producers for their unique or uplifting contributions to our culture through inspiring storytelling or performance. The Producers Guild 2018 Visionary Award is sponsored by Delta Air Lines. Previous honorees include: Oscar-nominated producer and founder of Annapurna Pictures Megan Ellison; Brad Pitt, Dede Gardner, and Jeremy Kleiner’s Plan B Entertainment; producer and founder of Illumination Entertainment Chis Meledandri; producer Laura Ziskin; and Participant Media’s Jeff Skoll.

Producers Guild Awards Chairs Donald De Line and Amy Pascal stated, “The emergence of Ava DuVernay as a producer and filmmaker has been one of the great developments of the past several years. Whether in scripted features, television or documentaries, her unique voice, skill and passion have inspired countless audiences throughout our country and around the world.  She is, by any standard, a visionary storyteller, and we are excited to be honoring her as such in 2018.”


STANLEY KRAMER AWARD
GET OUT

The Stanley Kramer Award was established in 2002 to honor a production, producer or other individuals whose achievement or contribution illuminates and raises public awareness of important social issues. Previous recipients of the Stanley Kramer Award include: “The Hunting Ground,” “An Inconvenient Truth,” “Hotel Rwanda,” “In America,” “Antwone Fisher,” “Precious,” “In the Land of Blood and Honey,” “Bully,” “Fruitvale Station,” “The Normal Heart,” and the 2017 honoree, “Loving.” 

Producers Guild Awards Chairs Donald De Line and Amy Pascal stated, “The electrifying response to ‘Get Out’ demonstrates that the power of motion pictures to crystallize and reflect our collective social anxieties remains stronger than ever.  It’s hard to imagine two more different sensibilities approaching the problem of race in America than Stanley Kramer and Jordan Peele, but despite the different paths their stories take, their power springs from the same outrage, fearlessness and passion.”


- You can view all of the full Awards press releases here.

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SELLING SHORT - The Market For Digital Storytelling Has Never Been More Robust... Or More Confusing

Posted By Chris Thomes, Tuesday, November 21, 2017

The wave of original programming targeted at digital and social platforms continues to gain steam. Social networks like Twitter, Snapchat, Facebook and even Google’s YouTube Red subscription service are diving headfirst into exclusive original streaming video content. And they aren’t the only buyers. The list of potential backers of shows and movies in the digital space has grown exponentially over the last few years. The list includes telecommunications giants such as AT&T and Verizon, traditional linear TV networks that are looking to broaden their offerings to include digital series, legacy and digital publishers such as Time Inc. and Refinery29 and, of course, streaming services from the 800- pound-gorilla Netflix to smaller operators such as Fullscreen and its in-house wiseacres Rooster Teeth.

Funding in this digital space comes from an ever-shifting crowd of buyers, but one new player bringing lots of poker chips to the table has some serious reach—Facebook. The social networking giant is talking to Hollywood studios and agencies about producing TV-quality shows. In meetings with major talent agencies including Creative Artists Agency, United Talent Agency and William Morris Endeavor, as well as with major networks, Facebook has indicated it is willing to commit to production budgets as high as $3 million per episode, people familiar with the situation say.

While that’s the price range of high-end cable TV shows, Facebook is also interested in more moderate-cost scripted shows in the mid- to high-six-figure per episode range. And you can bet the company will be aggressive about trying to own as much of that content as possible.

The push for TV shows is part of a two-track effort at Facebook to up its game in video and target the tens of billions of ad dollars spent on television.

Snapchat is also playing in this space. Last year, Snap introduced “Shows” to its Discover platform. These premium, original, TV-like series are produced exclusively for mobile by leading TV networks and entertainment studios. These shows can be based on existing IP, giving networks the chance to reimagine classic TV franchises for a whole new audience, or they can be original new concepts, built directly for mobile. NBC, ABC, CBS, Discovery Networks, Turner, Scripps Networks, Vertical Networks, VICE, and MGM Television are among the networks and studios working to develop and produce Shows for Snapchat.

Even Apple is getting into the game and is reportedly investing $1 billion in original content efforts next year. They recently plucked Sony TV veterans Jamie Erlicht and Zack Van Amburg away from the studio in June and have taken over video production responsibilities from the Apple Music team. The execs have already held meetings around town to find shows to acquire.

With all of these buyers getting out their checkbooks, several companies are looking to cash in on that market demand. New Form Entertainment, a company backed by Discovery and filmmakers Ron Howard and Brian Grazer, is looking to do just that, aggressively developing and selling a variety of programs. They know the space is highly competitive, with everyone from independent digital studios to legacy print outlets to distributed-media publishers furiously jockeying for position.

Another new player, helmed by digital entertainment veteran Larry Shapiro, is Ensemble Studios, a next-generation digital management production company, focusing on emerging artists. Shapiro’s mandate is to capitalize on the wave of funding to champion writers, directors and artists who have successfully built audience and created original IP.

Shapiro explains, “The filmmakers that I work with are native to the platforms that they are being distributed on. Every medium creates its own stars, so the filmmakers who grew up on digital are the ones I like working with.“

To that end, Ensemble only looks to produce projects they are passionate about and where they feel a strong affinity for the subject matter. As far as funding, they look for independent financing or buyers who give the most freedom to the producer.

All this competition between producers really requires compelling marketplace differentiations in order to gain an upper hand. New Form’s Chief Creative Officer, Kathleen Grace, explains, “What sets New Form apart is the quality of our storytelling and the fact that our content is guided by data-driven audience insights. Through measuring the potential of specific audiences and taking chances on emerging talent of all backgrounds, New Form is able to develop narratives that millennials want to watch and won’t find on TV. In addition, our ability to create for specific platforms, including digital-first platforms [e.g., YouTube Red and Fullscreen], brands, premium SVODs and linear television networks, allows us to experiment with new formats and find the best venue for our shows.”

While that approach may be giving scripted programming a leg up, most of the short form currently in the market still consists of talk shows or other non-scripted lifestyle programming. To really hold on to an audience and build a loyal base of viewers, the content will have to be more than commoditized social material. A lot of buyers want premium quality storytelling, which means that skills like putting together a writer’s room, locking in showrunners, and generating season-long arcs are becoming as important in the short-form space as they have been in traditional TV production.

Snapchat has a very different value proposition to partners in this competitive landscape. Their shows are an extension of traditional TV, not a replacement for it. Snap believes their programming can help traditional TV networks reach new audiences who many not be watching their linear programs. The company has decided that building a core, loyal audience for their TV partners is critical to building their own IP brand equity and a long-term, sustainable model for producing mobile TV.

Similarly, New Form is also helping traditional players find new audiences. As these players look to reach younger, mobile audiences, Grace’s team may be the secret weapon they need. “Currently,” she states, “New Form is focused on making original content for existing franchises (like MGM’s Stargate Origins) and new IP (almost all series released to date), not generating ancillary content to network shows. But that doesn’t mean we won’t start looking into these kinds of partnerships in the future.”

That may be good news for traditional media companies, who have seen consumers shift their media time away from live TV, opting for services that allow them to watch what they want, when they want. This includes a massive migration toward original digital video such as YouTube Originals, SVOD services such as Netflix, and now originals on social platforms like Facebook.

But for the producer, wading through this complex marketplace requires more than simply understanding the funding model. The work approach with the buyer is also complicated. Facebook has been described as being “hands off” with the short-form content it’s buying, although the social platform is more involved with longer-form shows. Snapchat, on the other hand, tends to be much more closely involved, including piloting shows before approving them for a full season. They are also known to weigh in at all stages of production, from brainstorming ideas to graphics. Facebook, contrarily, may order full seasons of short-form shows without ever piloting them and may leave producers entirely to their own devices during the show’s development. Ensemble has its own approach, focusing on a leaner production model that is closer to the filmmaker, de-emphasizing development/executive teams that they fear can dilute the creative process.

With all this demand for video, it would appear that there has never been a better time to be a digital entertainment producer. But while the market for digital entertainment content is healthy now, it’s also volatile. There are no guarantees that some of the social platforms currently seeking shows will be willing to pay for them in a few years’ time and there are no guarantees that some of the streaming platforms commissioning or licensing series will even stick around. In fact, in the three years since New Form’s launch, the digital ecosystem has changed dramatically. Platforms that were once hungry for short and mid-length series are now looking for projects that can help them compete in an increasingly competitive streaming environment. That means more traditional-length series with established stars and creative talent attached. YouTube Red, for example, recently tapped Naya Rivera and Ne-Yo to star in a Step Up revival executive produced by Channing Tatum. Cable networks, meanwhile, have also begun to look to digital to mine projects for linear distribution, with TBS recently ordering a first season of the New Form-produced animated series Final Space.

Despite the challenges inherent in the space, some producers maintain that even if one major video buyer drops out—Yahoo, for instance, made a lot of bets in entertainment shows before scaling back, while NBC Universal’s Seeso went big before it announced its demise in August—there is always a new buyer to take its place. New Form acknowledges the churn but believes they have a smart approach that can help them weather market shifts.

“Audiences are moving and will continue to move to digital platforms,” Grace asserts. “New Form breaks through the clutter with performance-based marketing and premium storytelling driven by data. Our production and development process allows us to be incredibly agile in this rapidly changing media landscape, taking advantage of trends and ideas in real time—meaning we are making content that has never been made before. And lastly, we give our creators storytelling freedom to ensure the content is authentic, thought-provoking and diverse.”

Ultimately these new buyer/distributors are looking for shows that will help attract audiences over time, and the challenge of staying on top of what audiences are looking for is nothing new for producers. It is an age-old problem, regardless of format or platform. But as Grace suggests, one new tool may hold a critical key to success in this new market—data. It’s the key to understanding one’s audience, and now more than ever, there is an abundance of data at the producer’s fingertips. Depending on the platform, that information may be unique. Snapchat, for example, is a closed system within an application. They do share data with their partners, but it’s proprietary and their viewers’ behaviors are unique. Facebook is completely different, trying to reach everyone, everywhere. But between daily active users, daily unique users and video views, the metrics are starting to have some standards everyone can rely on, even if context around usage is different.

Shapiro agrees and contextualizes the value of data all under the banner of engagement: “The use of influencers with big audiences will only get you so far. You can’t have one-offs if you are working with creators who have a footprint, and it will be hard to change the entertainment behavior of their audience. One thing will never change—we as a species like to be storytellers. Since cave drawings, it has been part of our culture. But we sometimes forget that it is a two-way exchange. Today’s content is about stories that create conversation. Some say content is king, others say distribution is king. I’m a fan of the idea that engagement is king.”

This data-driven, engagement-above-all approach for content development may be the producer’s best tool yet. If they are lucky enough to land funding from one of the new exhibitors, readiness to listen to and act on the viewing data may help guarantee another season because the ultimate test of longevity may not rest solely on great programming. As Netflix has proved, you also need to have a great discovery platform and tons of data insights. With so much competition, getting a viewer to find your content may be the biggest challenge producers face today. But armed with data-driven, high-quality programming, producers can be ready to engage viewers as fully as possible, whenever—and wherever—they show up.


 

 
 

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NAVIGATING THE PITCH MINEFIELD - Sometimes There's Nothing More Dangerous Than A Good Idea

Posted By Neville Johnson & Douglas Johnson, Wednesday, November 15, 2017

Theft of idea and copyright litigation keep lawyers very busy, as dishonesty involving literary property is very real. Hollywood’s true currency is good and valuable ideas. A creative executive who has no ideas can find him or herself without a job. Protectable intellectual property can be as simple as an expression of an idea or as complex as a completed screenplay or book. The starting point in idea theft is whether the idea is protectable. The fundamental belief is that ideas, on their own, are not legally protected.

Some ideas are so commonplace and ordinary that they are excluded from copyright law protection under the scenes a faire doctrine. The most common example of this doctrine is the plot from Shakespeare’s “Romeo and Juliet,” the story of two young people from warring families who fall in love with tragic results. A Wikipedia page currently lists 88 film and television adaptations of “Romeo and Juliet.”

The most important method of selling ideas in the film and television industry is the pitch. So how does the intellectual property exchanged in a pitch meeting secure legal protection? Ordinarily before the pitch, there is no written contract between the two parties to buy and sell the idea. What is to stop the recipient from appropriating every good idea that comes his or her way? One legal protection for ideas is known as the “implied-in-fact” contract. California courts have held that an implied contractual right to compensation may arise when a creative submits material to a producer with the understanding that the creator will be paid if the producer uses that idea.

Given the possibility of an implied-in-fact contract, the recurring question asked by clients on both sides of the pitch is how to avoid claims of idea theft. How can the writers submitting intellectual property protect their rights in their submissions? And conversely, how can recipients of submitted scripts protect themselves from accusations of idea theft?

 

Development of the Implied-In-Fact Contract in California

California’s courts began wrestling with these questions in 1956 in the seminal case Desny v. Wilder. In that case, Victor Desny called director Billy Wilder at Paramount Pictures, with a “great idea” for a movie. The central idea of the movie was the life story of Floyd Collins, a boy who became trapped in a cave 80 feet deep. Desny could not get past Wilder’s secretary, who told him the 65-page treatment was too long for Wilder to read.

Three days later, Desny called back with a three-page outline. Wilder’s secretary asked Desny to read the outline over the phone so she could take it down in shorthand, and he did. The secretary told Desny she liked the story, would talk it over with Wilder and “let him know” what happened. Desny told the secretary that Paramount and Wilder could only use the story if they paid him. To Desny’s surprise, Wilder and Paramount made a movie concerning the life and death of Floyd Collins, Ace in the Hole, which closely paralleled Desny’s synopsis, as well as the historical material on Floyd Collins. However, the film also included fictional material unique to Desny’s synopsis. Desny sued, claiming that Wilder and Paramount breached an implied contract.

The California Supreme Court agreed with Desny, recognizing that even when an unsolicited idea submission is made, the circumstances of the disclosure may support the finding of an implied-in fact-contract.

Usually the parties will expressly contract for the performance of and payment for such services, but in the absence of an express contract, when the service is requested and rendered, the law does not hesitate to infer or imply a promise to compensate for it. In other words, the recovery may be based on a contract either express or implied. The person who can and does convey a valuable idea to a producer who commercially solicits the service or who voluntarily accepts it knowing that it is tendered for a price should likewise be entitled to recover.

A plaintiff suing for breach of implied-in-fact contract relating to an idea submission must prove that (1) she conditioned her offer to disclose the idea to the defendant on the defendant’s express promise to pay for the idea if the defendant used it, (2) the defendant, knowing the condition before the idea was disclosed to him, voluntarily accepted its disclosure, and (3) the defendant found the idea valuable and used it.

For an implied-in-fact contract to form, the recipient must understand the conditions under which the idea is being disclosed. If, for example, the creator blurts out the idea to a Hollywood producer she just met at a bar, there is no contract. The recipient must be given the opportunity to reject the submission before it is conveyed. Unsolicited pitches rarely have legal protection!

Therefore, the eager creative should not tell anyone and everyone in town about their idea, because the likelihood is that it will be stolen unless the disclosure is made under circumstances where the recipient either requested the idea or it was understood from the circumstances that there is an expectation of payment, e.g., a pitch meeting at a studio.

Two elements are required to raise the inference of use: that the defendant had access to the plaintiff’s idea, and that he copied it. Copying can be demonstrated by showing that the defendant’s work is substantially similar to plaintiff’s idea.

Where a writer or producer conveys an idea to a potential purchaser, and the defendant produces a product similar to that idea, an inference arises that recipient used the idea. Moreover, less similarity is required when the evidence of access is stronger, but the similarity must be to a material element or qualitatively important part of the idea, and could range from a mere basic theme up to an extensively elaborated premise.

Access to the idea is proven if one is able to demonstrate that the person creating the movie had an opportunity to view or copy the plaintiff’s work. Access can also be established is the recipient of the idea is an individual in a position to provide suggestions or comment to a supervisory employee, or is an employee within the unit from which the defendant’s work was developed. However, there is a recent example in which a court dismissed a caseon the grounds of its being too speculativewherein a project had been submitted to an agent at a major agency and the plantiff argued that a different agent at that agency could have had access to it.

The “substantial similarity” standard in a Desny claim is much lower than in a copyright case. “Substantial similarity” in Ninth Circuit copyright cases is complicated and it is generally thought that the studios and recipients fare better in copyright cases.

New York also recognizes Desny-type claims, but adds an extra element: An idea must be novel to the buyer for an implied-in-fact contract to exist.

 

Advantages and Disadvantages of Desny Claims versus Copyright Claims

A Desny claim and a copyright claim may be brought together in the same lawsuit. Both types of claims will revolve around the timing of the idea theft. The same evidence will be used to establish the case, i.e., emails, computer hard drive searches, witness depositions. While a Desny claim and a copyright claim may be brought simultaneously, each type of claim has advantages and disadvantages.

Damages: The winner of a copyright infringement case is entitled to his or her actual damages, as well as all profits the infringer made from the project. A prevailing plaintiff in a Desny claim, however, must prove the reasonable value of the ideas used by the defendant. If a submitter has no proven track record of having his or her work produced, the defendant will assert that damages are limited by the writer’s stature. Whereas if a producer has previously earned fees and backend participation in the past, damages will likely be greater.

However, some courts have held that damages should be based on the value of the idea to the defendant. Damages are problematic for rookie writers and producers in Desny claims, and a case may not be worth pursuing for this reason.

State court advantage: The Desny claim can be filed in state court, while copyright claims are limited to federal court. In California state court, a plaintiff may prevail if he convinces 9 out of 12 jurors. Federal courts require a unanimous jury verdict for a plaintiff to prevail.

Attorney fees: The prevailing party in a copyright case may be able to recover his or her attorney fees and costs incurred in the litigation. This could be in the hundreds of thousands of dollars. However, this award cuts both ways—an unsuccessful plaintiff could find himself bankrupted by these fees and costs. Attorney fees are not automatically given to the winning party, but are subject to the court’s discretion. The court must give substantial weight to the objective reasonableness of the losing party’s position before making such an award.

For example, in two recent trials involving songs by Marvin Gaye and Led Zeppelin, the courts used their discretion in denying the attorney fees award, finding that the case presented novel issues and the outcome of those issues was far from clear during the litigation.

Because of this issue, we commonly recommend that a plaintiff file only a Desny claim in state court, rather than filing an additional federal copyright claim.

Copyright claims require registration: A copyright claim is predicated on registration of the idea with the U.S. Copyright Office. An owner of intellectual property can’t recover statutory damages (minimum damages) or attorney fees unless the idea was registered with the copyright office three months before the disclosure or publication of the work. Copyright registration opens the door to these damages, which can be a valuable tool in obtaining a settlement.

Independent creation defense to Desny claim: The independent creation defense is the primary defense against a Desny claim. This defense allows the defendant to overcome a claim by affirmatively proving that any similarity is purely coincidental and that no use of the plaintiff’s idea occurred because the defendant’s project was independently created.

 

Making Submissions – Best Practices

The easiest way to protect ideas when making a pitch is to create a clear paper trail long before that meeting with a potential producing partner. Creating a paper trail begins with registering the idea. We recommend all treatments and scripts be registered with the U.S. Copyright Office immediately upon creation. The Writers Guild of America provides a registration service for use by the general public, as well as its members. The purpose of this registration is to establish the completion dates of material written for film and television. The registration provides a dated record of the idea, a date that will be the crux of any infringement or breach of contract action. In our opinion, registration with the Copyright Office is the way to go.

A “leave behind,” the written pitch, is and should usually be left with the person(s) being pitched.

The paper trail should continue after the pitch. Send a follow-up email to the recipient of the idea thanking the person who took the pitch. Again, this will help prove the timing of the submission.

Protection of the idea with this paper trail implicates more than payment for the idea. It also protects a potential writing credit. The importance of receiving a writing credit goes far beyond immediate monetary compensation. In the film and television world, the writing credit is particularly valuable and can be career-defining, as it performs a marketing function in that it helps to obtain work and helps set the writer’s “quote”, assists in negotiating for a higher rate of compensation once a job opportunity has been offered and can assist in obtaining additional compensation based on a substantial contribution to a project as reflected by the credit received.

 

Receiving Submissions – Best Practices

The recipient of ideas should also be concerned about possible claims of idea theft and should take steps to avoid such claims. The obvious first step is to refuse to accept unsolicited submissions of ideas. The second line of defense is use of a submission agreement, which should be fully executed before the contents of the submitted work are disclosed. These agreements will commonly include a provision stating that the person submitting the idea understands that the recipient may have a similar idea in progress. The submission agreement may also include a provision for mandatory mediation or binding arbitration in the event of a dispute, and a provision giving attorney fees to the prevailing party.

The downside of demanding mandatory arbitration is the cost. Another downside with commonly used arbitrators like JAMS, is the issue of potential institutional bias. (See Johnson & Johnson, “Hollywood Docket: One Sided World,” 27 New York State Bar Assn, Entertainment, Art and Sports Law Journal 23 (2016).) This article points out that the major studios love mandatory arbitration, and there is a perceived bias by arbitrators who are suspected of being more lenient in the hopes of garnering repeat business.

The submission agreement often is not required when the writer is established and represented by a reputable agent or attorney.

In conclusion, theft of ideas is commonplace, as are meritless lawsuits. Beware and do your best to protect yourself. Courtrooms are not the theatre in which you want your ideas to be played out.

 

Neville Johnson and Douglas Johnson are partners at Johnson & Johnson LLP, in Beverly Hills, CA, which specializes in entertainment litigation and transactions. Associate Ron Funnell assisted in writing the article.

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