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Press Roundup: Produced By Conference 2017

Posted By Administration, Tuesday, June 13, 2017

EBONY / PGA’S 9th Annual Produced By Conference Was A Star-Studded Event
June 12, 2017 : Aramide Tinubu
http://www.ebony.com/entertainment-culture/pgas-9th-annual-produced-conference-star-studded-event#axzz4jqEJyi1g

 

HOLLYWOOD BLACK RENAISSANCE / Ava Du Vernay & Oprah Winfrey Trace Their Collaboration Journey & Discuss the Importance of Inclusivity
June 12, 2017 : HBR Media Team
http://hollywoodsblackrenaissance.com/ava-duvernay-oprah-winfrey-inclusivity/

 

VANITY FAIR / The Emmys Get a Russian Twist

June 12, 2017: Rebecca Keegan

http://www.vanityfair.com/hollywood/2017/06/the-emmys-get-a-russian-twist

 

DEADLINE / Weinstein Co.’s Glasser, Teams Behind ‘Making a Murderer,’ ’13th’ Size Up Fact-Based Boom – Produced By
June 11, 2017: Alex Ben Block

http://deadline.com/2017/06/fact-based-boom-produced-by-1202111415/

THE HOLLYWOOD REPORTER / Produced By: 'Stranger Things,' 'Arrival' Producers on Giving Voice to Talent
June 11, 2017: Gregg Kilday

http://www.hollywoodreporter.com/news/produced-by-stranger-things-arrival-producers-giving-voice-talent-1012354

REFINERY29 / This Is Why Every Episode of Queen Sugar Season 2 Is Directed by A Woman
June 11, 2017 Caitlin Flynn

http://www.refinery29.com/2017/06/158534/queen-sugar-season-2-woman-directors

DEADLINE / Norman Lear and Jordan Peele Share Love, Laughs & An Awkward Moment – Produced By
June 11, 2017:  David Robb

http://deadline.com/2017/06/norman-lear-jordan-peele-produced-by-conference-1202111385/ 

DEADLINE / Shawn Levy, 21 Laps Execs Detail Company’s Dramatic Evolution — Produced By
June 11, 2017: Alex Ben Block

http://deadline.com/2017/06/sean-levy-21-laps-partners-on-shingles-evolution-1202111381/

THE HOLLYWOOD REPORTER /  Produced By: Profit Participations Are a “War for the Money,” Producer Says
June 11, 2017: Jonathan Handel

http://www.hollywoodreporter.com/news/produced-by-profit-participations-are-a-war-money-producer-says-1012298

SF GATE / Jordan Peele Says He’s Always Felt like an Outsider

June 11, 2017: Staff

http://www.sfgate.com/news/media/Jordan-Peele-Says-He-s-Always-Felt-Like-An-902477.php

THE HOLLYWOOD REPORTER / Produced By: 'Get Out's' Jordan Peele Confesses, "I've Always Identified as an Outsider"
June 11, 2017 Gregg Kilday

http://www.hollywoodreporter.com/news/jordan-peele-norman-lear-discuss-get-1012285 

REFINERY29 / Netflix Tells Fans They Can Chill With Those Campaigns To Save Their Favorite Shows
June 11, 2017: Shannon Carlin.

http://www.refinery29.com/2017/06/158516/netflix-stop-campaigning-to-save-shows

VARIETY / Jordan Peele, Norman Lear Discuss Search for ‘Common Humanity’ Through Race
June 11, 2017: Joe Otterson

http://variety.com/2017/film/news/norman-lear-jordan-peele-produced-by-get-out-1202461922/

THE WRAP / Norman Lear Sings the Praises of Jordan Peele’s ‘Get Out': ‘I’ve Never Been More Touched’
June 11, 2017: Reid Nakamura

http://www.thewrap.com/norman-lear-praises-jordan-peele/ 

DEADLINE / Oprah Winfrey, Ava DuVernay Trace Roots of Their Collaboration – Produced By
June 10, 2017: Alex Ben Block
http://deadline.com/2017/06/winfrey-duvernay-produced-by-1202111145/

UPROXX / Netflix’s New Decision On Cancellations Sparks Intriguing Reactions From Competitors And A Strange Apology For ‘Sense8’
June 11, 2017: Andrew Roberts

http://uproxx.com/tv/netflix-cancellations-sense-8-apology/ 

DEADLINE / Execs Talk Peak TV and Breaking through with Savvy Viewers – Produced By
June 10, 2017: Alex Ben Block

http://deadline.com/2017/06/fox-madden-produced-by-1202111118/

THE HOLLYWOOD REPORTER / Produced By: Oprah Winfrey, Ava DuVernay Discuss How to Create a “Culture of Inclusion”
June 10, 2017: Rebecca Sun

http://www.hollywoodreporter.com/news/produced-by-oprah-winfrey-ava-duvernay-discuss-how-create-a-culture-inclusion-1012259 

THE HOLLYWOOD REPORTER / Produced By: Cast Insurance More Creative Than Writing Auto Policies, Broker Says
June 10, 2017: Jonathan Handel

http://www.hollywoodreporter.com/news/produced-by-cast-insurance-more-creative-writing-auto-policies-broker-says-1012254

VARIETY / Oprah Winfrey, Ava DuVernay Pay Tribute to Each Other at Produced By Conference
June 10, 2017: Dave McNary

http://variety.com/2017/film/news/oprah-winfrey-ava-duvernay-queen-sugar-pga-produced-by-conference-1202461741/

WE GOT THIS COVERED / Netflix Defends Sense8 Cancellation
June 10, 2017: Matt Joseph

http://wegotthiscovered.com/tv/netflix-defends-sense8-cancellation/

SCREENRANT / Netflix Boss Defends The Get Down & Sense8 Cancellations

June 10, 2017: Molly Freeman

http://screenrant.com/netflix-get-down-sense8-cancelled-explained/

 

SF GATE / ‘Queen Sugar’ Season 2 Has All Female Directors ‘Because We Can,’ Says Oprah

June 10, 2017: Staff

http://www.sfgate.com/entertainment/the-wrap/article/Queen-Sugar-Season-2-Has-All-Female-11211135.php

 

THE WRAP / ‘Queen Sugar’ Season 2 Has All Female Directors ‘Because We Can,’ Says Oprah

June 10, 2017: Linda Ge

http://www.thewrap.com/queen-sugar-season-2-female-directors-can-says-oprah/

DEADLINE / ‘La La Land’ Director Damien Chazelle on Ageism and Dumb Studio Notes – Produced By
June 10, 2017: David Robb

http://deadline.com/2017/06/damien-chazzelle-produced-by-panel-ageism-1202111085/

THE HOLLYWOOD REPORTER / Produced By: Damien Chazelle Talks the Director-Producer Relationship on 'Whiplash,' 'La La Land'
June 10, 2017: Rebecca Ford

http://www.hollywoodreporter.com/news/produced-by-damien-chazelle-talks-director-producer-relationship-whiplash-la-la-land-1012026

VARIETY / ‘La La Land’ Director Damien Chazelle Lucks Out, Channels Blanche Dubois
June 10, 2017: Dave McNary

http://variety.com/2017/film/news/la-la-land-damien-chazelle-director-blanche-dubois-1202461682/

THE WRAP / Damien Chazelle on How Producers Guided Him Through an ‘Arrogant’ Phase To Make ‘Whiplash’
June 10, 2017: Jeremy Fuster

http://www.thewrap.com/damien-chazelle-produced-by-whiplash-la-la-land/

DEADLINE / Ted Sarandos & No-Hugs Jerry Seinfeld Talk Cinemas, ‘Sense8’ & ‘The Get Down’ Cancellations – Produced By
June 10, 2017: David Robb

http://deadline.com/2017/06/jerry-seinfeld-ted-sarandos-netflix-produced-by-1202111017/

THE HOLLYWOOD REPORTER / Produced By: Hulu's Beatrice Springborn Testifies: "It's A Seller's Market"
June 10, 2017: Gregg Kilday

http://www.hollywoodreporter.com/news/produced-by-hulus-beatrice-springborn-testifies-a-sellers-market-1012243

INDIEWIRE / Ted Sarandos, Jerry Seinfeld, and 10 Ways Netflix Blew Up the Entertainment Business
June 10, 2017: Anne Thompson

http://www.indiewire.com/2017/06/ted-sarandos-jerry-seinfeld-10-ways-netflix-blew-up-entertainment-business-produced-by-conference-1201840401/ 

SF GATE / Netflix Boss On The Get Down ‘Sense8’ Cancellations

June 10, 2017: Staff
http://www.sfgate.com/news/media/Netflix-Boss-On-The-Get-Down-Sense8-902107.php

 

VARIETY / Movie Producers Feeling More Pressure: ‘Winners, Losers Are Bigger Than Ever’
June 10, 2017: Dave McNary
http://variety.com/2017/film/news/producers-pressure-winners-losers-box-office-1202461640/

VARIETY / Netflix’s Ted Sarandos Talks ‘Sense8,’ ‘The Get Down’ Cancellations
June 10, 2017: Daniel Holloway
http://variety.com/2017/tv/news/netflixs-ted-sarandos-1202461684/ 

THE WRAP / Netflix Boss on ‘The Get Down,’ ‘Sense8’ Cancellations: ‘We Couldn’t Support Those Economics’
June 10, 2017 : Linda Ge

http://www.thewrap.com/netflixs-ted-sarandos-i-am-the-opposite-of-anti-theater/ 

THE HOLLYWOOD REPORTER / Produced By: PGA President Lori McCreary Urges Formation of Industry-Wide Security Task Force
June 10, 2017: Carolyn Giardina

http://www.hollywoodreporter.com/behind-screen/produced-by-pga-president-lori-mccreary-urges-formation-industry-wide-security-task-force-1012229 

THE HOLLYWOOD REPORTER / Netflix's Ted Sarandos Talks 'Sense8' Cancellation, Cannes Film Debate: "I'm Not Anti-Theater"
June 10, 2017: Gregg Kilday

http://www.hollywoodreporter.com/news/netflixs-ted-sarandos-talks-sense8-cancellation-cannes-film-debate-im-not-anti-theater-1012224

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Top Ten Reasons I Haven't Yet Registered For Produced By Conference 2017

Posted By National Executive Director, Friday, June 2, 2017

The minutes are ticking down.  The speakers are gearing up.  Everyone at the PGA is in full-steam-ahead Produced By Conference mode.

Of course, there are a handful of you out there who haven’t yet registered for Produced By, which kicks off at 20th Century Fox next Saturday.  And it’s from that handful of people that we heard…

THE TOP 10 REASONS I HAVEN’T YET REGISTERED FOR THE PRODUCED BY CONFERENCE

10.  I'd love to see Ted Sarandos’ session, but I really need to catch up on my binge watching.

9.  I’m too busy preparing testimony for my appearance before the Senate Intelligence Committee.

8.  There's a session with Norman Lear and Jordan Peele.  Will I laugh?  Will I be scared?  It's just such a confusing time right now.

7.  I don't need to learn how to pitch better! Those executives need to learn how to listen better!

6.  The Producers Mashup sounds kind of dangerous.

5.  Actually, I just had Oprah, John Wells and Shawn Levy over for dinner last week.

4.  Heard a rumor that due to an accounting error, Damien Chazelle’s speaking slot should rightfully go to Barry Jenkins.

3.  A lot of really, really great guys from Russia said it wasn’t such a good idea.

2.  “Networking” is just so 2016.

 

And the #1 reason I haven’t registered for the Produced By Conference is…

 

1.  I’m afraid that my attending this year will attract too much covfefe.

 

 

Remember, Produced By sells out every year!  It doesn’t matter what your excuse is for not pulling the trigger yet… We’re one week out.  Time to get off the fence and register at producedbyconference.com!

 

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BRIEF ENCOUNTERS - Short-Form Content Has Come Of Age In The Mobile Era

Posted By Chris Thomes, Tuesday, May 23, 2017

Original digital short-form series have become far more prolific over the last few years. And we’re not talking about YouTube videos of kids talking to camera from their bedrooms, or mash-ups of others’ original programming. We’re talking about real, TV-level, premium content. Real shows. Real stories. Professionally produced. There’s just one difference: length.

The proliferation of mobile devices and the consumption of video on everything from tablets to phones to PCs has increased the demand for short-form, snackable programming—anything from 19 minutes down to 30 seconds. And everyone is producing short form, from Doritos and Lexus to music artists and politicians. As a result of this saturation, consumers are now starting to demand more curated, premium programming. It all comes down to the viewer’s time, or lack thereof. With so many things competing for their attention, they have grown more discerning and impatient with low quality. The true way to gain their loyalty is by making content that is simply worth their time, be it 30 seconds or 19 minutes.

Producers in this space have seen what was once the “wild west,” with no rules and few expectations, evolve into a professional community where production looks a lot more traditional, budgets are rising and talent is just as important to a show as it is in network TV or movies.

Chris Hanada of Retrofit Films acknowledges that, “digital budgets have steadily and slowly risen over the years, while at the same time filming technology has become less expensive. Visually, audiences expect that a digital production look just as good as an on-air show. From a business perspective, the standards to which we are held by studios, networks, legal, financers and guilds are just as complex as a television show at this point. The continuing convergence of digital with traditional [production] has given us the opportunity to go from being a couple of guys in a garage to producing network content relatively quickly. Since the launch of our show This Isn’t Working (ABC’s digital series created by and starring Lisa Schwartz), the meetings we’re taking now are not just for digital originals, but for television projects as well.”

Hanada’s business partner, Tanner Kling, concurs and notes that the evolution has shifted their business. “When we started Retrofit Films back in 2005, our niche was exclusively digital short-form productions, so it’s really what launched our business. Back then we were producing almost exclusively derivative series [spin-offs and side stories of broadcast TV shows, feature films, etc.] but we always knew the platform would evolve. Moving into original digital series has, of course, been more creatively rewarding and has turned out to have been a great step toward the next opportunities.”

Retrofit isn’t alone. Many producers who have been in the trenches defining transmedia content and short-form for the past several years are now growing into the grand sythesizers in this field. They are bridging the smaller-scale world of digital with the high-end production value of scripted TV.

David Tochterman and Bernie Su of Canvas Media Studio have not only been affected by the changes, they are making it their core business model. Tochterman notes, “It’s our primary focus. We launched Canvas with the intention of creating short-form scripted series that are designed for digital platforms as a first window.” Their determined focus on innovation is now merging with traditional production approaches and what is coming out the other side is a variety of short formats that all focus on high-quality storytelling. But all of these producers can agree on one thing: the art of producing remains the same as it has ever been, perhaps with the main difference being the number of hats the producer typically has to wear on smaller scale projects. 

Regarding their approach, Hanada explains, “Production is production. It’s funny to have meetings with networks or studios and explain what we did on a digital series. Then they ask us, ‘Can you handle a bigger budget?’ The truth is, we have had to wear multiple hats on these projects just to get things done – having a larger budget never intimidates us. A recent production of ours had a very high budget for digital, where it was almost comparable to an episode of television, and truthfully, it was a huge relief because we could build out a full staff to handle the nuts and bolts and we could focus on our most important job, the creative producing.”


Executive producers Tanner Kling (left) and Chris Hanada (right) of Retrofit on location in Palmdale, CA with
line producer Aaron Billet for The Off Season.

And while creative producing remains at the core of quality content, formats are changing radically, which adds another layer of complexity. Anything under 19 minutes seems to be the norm for mobile viewing.  Tochterman explains, “Episodic length and individual platform specifications vary from project to project, which is both challenging and exciting.  Every platform is designed differently, and as they refine their standards, Canvas needs to be flexible and versatile with our creative and business models.” By embracing the disruption, Tochterman and Su have become some of the top producers for premium digital short-form programming. From their scripted dramatic digital series, Vanity, to their upcoming Socio project, they are leaning into the opportunity that short form provides, focusing on creative issues, characters, and leveraging the format to their advantage by embracing short story arcs that are dramatically charged.

And that seems to be what younger, mobile-first audiences are seeking. In a Snapchat/Instagram world, millennials (and post-millennials) are finding their attention drawn to short, snappy, snackable content.  But given all the competition in the digital space, premium scripted programming is starting to stand out as a beacon for distributors looking for a way to cut through the noise and establish a beachhead with new audiences. The Television Academy saw this trend and recently created five new short-form Emmy categories specifically for scripted comedic and dramatic programs, non-scripted programs, and best actor and actress in a scripted short-form series.


Bernie Su, founder and producer,
Canvas Media Studio

David Totcherman, founder and
producer, Canvas Media Studios

Canvas certainly is taking advantage of this trend. No strangers to Emmys, Su has won two on his own for earlier digital series and Vanity was nominated last year.  This premium approach hasn’t just paid off with awards; eOne Television recently bought a stake in Canvas.  Canvas intends to use this investment to distribute, produce and finance premium scripted content for digital and traditional media, as well as emerging VOD and OTT platforms, while eOne Television will have first dibs to help produce and distribute the fare worldwide across all media. And this premium content is taking a cue from the reigning motion picture model—franchises. David Tochterman explains, “Our focus is on creating entertainment franchises.  Short-form is sometimes used purely for marketing, but that’s not our primary business.  We look at shorter form series as way to build IP value by connecting with younger, engaged audiences on digital-first platforms.”

But with all of this talk of a premium approach, keeping costs in check and managing digital productions require different thinking from traditional TV. Instead, short form tacks closer to an indie film production model, with small crews wearing multiple hats, living or dying on creative solutions to everything from production design to craft service. Retrofit’s Hanada believes that, in fact, the scale of production for digital is the essential distinction. Big crews just aren’t feasible. As quality increases, budgets will grow, but money is still very selectively targeted at key areas to increase production value. Tanner Kling explains, “Other than different guild and union rules, rates, etc., producing for this medium is just as challenging as traditional.  We still need to dot each “i” and cross each “t.”  That digital production is different or easier in some way has been one of the biggest misconceptions we’ve encountered since we started. The platform should not dictate the budget. The creative and the execution should. Often in digital, we end up backing the creative into a flat budget we’ve been given and it pains us creatively to have to cut the things that would make a show really pop. That said—I’ve yet to meet a producer that ever felt like they really had enough,” he laughs. “It’s our jobs to figure out how to maximize resources.”

Which brings us to how a short-form producer brings it all together. The producing team needs cohesion, vision and producing leadership to execute properly. Hanada notes, “The one thing that is different is that the digital projects often are more interesting creatively. You can be a bit more experimental with form and style in digital. Our cast and crew are often top-notch people and we usually can’t afford their usual rates, but they’re excited to be working on something new and fresh. It’s much easier to bring great crew on board when everyone is excited about the material. It also makes negotiating deals easier when I can tell anyone, be it in front of or behind the camera, ‘This is what I have, and it’s what everyone else is getting, so I can’t give any more. But it’ll be a good time with a good crew and we’ll make something special.’ I think everyone from the top on down sees the opportunities, and it’s a better experience and a better product when your cast and crew believe in what they’re doing and aren’t just punching the clock.”

At the end of the day, these new digital producers are excited by the new challenges and using them to their advantage in a shifting marketplace. The combination of high quality and smaller scale seems to be paying off for not just producers, but for audiences too. Making premium programming at flexible price points is the name of the game. With increasing distribution of short premium programming across mobile and OTT platforms, the investment from traditional companies into the space, and acknowledgement of the format by major industry organizations like the Television Academy, you can expect short-form to stick around for a long time.

- This article originally appeared in the April/May issue of Produced By magazine.

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BEFORE YOU SIGN THAT DEAL AT CANNES.. - Protecting Yourself Legally In The Film Industry

Posted By Neville Johnson & Douglas Johnson, Tuesday, May 16, 2017

We litigate controversies on behalf of producers, distributors, writers, actors, directors, talent, and independent film companies. We frequently sue the major studios on behalf of talent and independent producers. Here are some common sense steps you can take to protect your interests in a competitive and sometimes unscrupulous marketplace.

Get all agreements in writing. Film legend Samuel Goldwyn once said, “A verbal contract isn’t worth the paper it’s written on.” That’s not true. Oral contracts are just as enforceable; they’re just much more difficult to prove. Get it in writing as best you can, as soon as you can. We have seen many cases based on handshake agreements that could have been avoided with a simple written contract. We have seen this especially in situations where one party is raising money for another, typically investment in a film. The investor is obtained, and thereafter, details of the deal become fuzzy between or among the parties because there is no clear documentation. But the truth is, a sound recording of the parties agreeing on an iPhone constitutes a writing. Voicemail can provide salient confirmation. Always confirm details and understandings of any deal with relevant parties so there is some kind of record. Send follow-up emails and letters that state the deal agreed upon, as this might later become relevant and important evidence that there was an agreement. As soon as possible, establish what the terms of the deal are: What will be the respective roles and credits of the parties? How will decisions be made? Most importantly, create a paper trail, by email and in writing. A contract will not be found binding if the essential terms of the contract have not been agreed upon. The more evidence in writing regarding these terms, the better for the individual bringing suit, often the producer.

Establish a fiduciary duty. We have seen situations where producers worked on a project, but couldn’t get it going and ultimately stopped working on it. What happens to the underlying intellectual property? Can one producer make the project without the other and if so, does the other producer get compensated? What if there arises a similar project but brought separately and subsequently to one of the producers? Is a fiduciary duty implicated in such cases? Make clear who will have what rights in such situations.

Owing a fiduciary duty means having a relationship that requires full disclosure and no secret dealings. Attorneys, doctors, accountants owe them to their clients. For partners and those in a joint venture (such as to make a movie), whether a fiduciary duty is determined as owed is a question of fact, if it is not made clear from the paperwork or other evidence. In the event of a breach of fiduciary duty, punitive damages can be assessed, and individuals can also obtain damages for emotional distress (for example, for anger, dismay or frustration).

Under California and New York law, there is no fiduciary duty for a failure to pay net profits; the damages are purely contractual. Thus, a shrewd payee will seek to have a fiduciary duty established when monies are to be collected and paid from future sales. If the producer’s sales agent or distributor wants the deal badly enough, they may agree to this term.

Define terms and penalties. We undertake a lot of litigation with producers’ sales organizations and foreign distributors. Typically, claims are made for failure to account and pay. What are the terms/penalties in such situations? Producers should consider termination rights of the distributor who fails to comply with the contract, and the elimination of future charges and fees.

Will there be minimum guarantees in foreign territories? We’ve seen situations where the producer’s sales agent did not comply, making deals below the standard. What are the penalties? Does the film revert to the producer? Is there a cure period, say 30 days? (These are typically found in agreements.)

A common complaint of producers is that a sales agent has unfairly billed up and charged costs for attending festivals and promotions for the film. Their accounting usually does not delineate the charges in detail. Producers should require that breakdown as well as determine a cap on expenses and a mechanism to challenge the same, preferably before they are incurred.

Likewise, if a slate of films is being sold in a package, a producer will want to ensure a fair allocation of the revenues and advance being paid. Unfair allocations is a common claim in disputes. A producer should make certain to be informed, comment on and participate in negotiations if this occurs.

What happens if there is a bankruptcy? In that event, the producer should require an immediate end to any agreement. This should apply to foreign distributors as well.

Establish the venue. In the event of a dispute, the venue where the dispute will be adjudicated needs to be defined in the agreement. We suggest that the city or “home court” of the contracting party is best. Otherwise, there are travel costs associated, as well as the possibility of being “hometowned,” a state of disadvantage that exists when one side and its attorneys are more wired into the local legal process than the other. The parties need to specify where the venue will be. Otherwise it will be in one of the jurisdictions where one of the parties resides—probably the one with more leverage. In international agreements, they must consider which country the dispute will be adjudicated in. The party fighting will surely argue for its country. A savvy producer will negotiate the venue for jurisdiction, including the country and the city.

Determine the forum for dispute resolution. Will it be the courts of one of the parties, or arbitration? Many contracts provide the forum and this is becoming an increasingly controversial problem. In foreign sales agreements, the Independent Film & Television Alliance (IFTA) arbitration process is commonly required. This makes good sense for the parties because it is a relatively speedy process, inexpensive in comparison to full-blown court litigation, and its arbitrators are knowledgeable about industry practices. However in IFTA arbitration, punitive damages are not allowed. Therefore if one party defrauds another, the only claim, effectively, can be for contract damages.

Contracts frequently require disputes to be heard in a confidential, binding arbitration before one provider—Judicial Arbitration and Mediation Service (JAMS)— which has offices in the United States and London, thus preventing the establishment of precedent or publication of unfavorable information. The major movie studios currently are all requiring JAMS arbitration clauses and refusing to negotiate on this. Many attorneys for claimants have surmised that this creates at least a perception of repeat player/provider bias.

Add to the forgoing the cost of arbitration, which can be enormous. Few qualified contingency fee attorneys will take such cases, and studios habitually do not provide attorneys’ fees clauses in their agreements. This assumes such an attorney is legally allowed to work on this basis. Many lawyers outside the United States may not be able to.

Additionally, discovery is usually limited in arbitrations, sometimes with only one deposition per side permitted. This disfavors claimants, who may need to depose several witnesses from the other side to create a clear picture of events.

For these reasons, having a case in a court of law may prove to be the best scenario if there is a dispute. Public trials provide unwanted “sunshine” on nefarious business practices and can intimidate wrongdoers and warn others by such exposure. They might even be less expensive. Further, if the trial court or jury “gets it wrong” there is always the possibility of a winning appeal, which is foreclosed in a binding arbitration. If the other side insists on arbitration, document their refusal to negotiate on this issue, as some courts of law may find this to be “unconscionable” and thus allow a court trial instead.

If it is not going to be an IFTA arbitration or in a court of law, and arbitration will be the forum, we recommend a provision that provides that the arbitrator will be selected by the parties and if they cannot agree, they shall each designate a third person who shall select the arbitrator.

Finally, remember that to be enforceable, the agreement must state that the arbitration is binding, final and can be enforced by any court of competent jurisdiction.

Don’t forget foreign levy monies and music publishing. My firm brought class action suits against the WGA, DGA and SAG for their failure to pay foreign levies that had been collected and not paid out. These are monies paid pursuant to the national laws in countries such as France, Germany, Brazil and many others. Ensure that these monies will be collected. (From our suits, over $200 million has since been paid out.) A producer will want to seek to exclude these monies from any distribution deal, but it’s a point of negotiation.

Likewise, the producer will want to own the music publishing rights to the soundtrack. The “performance rights”--- monies paid for television usage and from movie theatres---can be substantial. The wise producer will have an “administration agreement” with a music publisher to collect these monies throughout the world, as they will not be collected by any foreign distributor.

Consider a collection agent. Many deals involve a neutral third party, a collection agent that will collect and disburse the funds in accordance with any deal. Consider utilizing the same to ensure proper accounting and payments.

 Allow for auditing. In any contingent compensation or distribution agreement, there must be an accounting and audit provision. Ensure the right to audit or suffer the consequences, namely, the inability to know if there has been an underpayment. Get regular accountings and the right to see all relevant documents relating to any income and costs. Producers will want the right to audit directly any licensee. Additionally, producers will want to see all relevant books of any sales agent relating to any transaction, as they may be relevant to monies due. This would include the general ledger of the producer. If an error discovered in any audit is more than, say, 10% of the amount paid, consider negotiating that the other party be responsible for the cost of the audit.

Can attorneys’ fees and costs of litigation be obtained? The general rule of the United States is that the prevailing party in litigation is not entitled to attorneys’ fees and costs unless a requirement states as much in the contract. The rule in Europe is that attorneys’ fees and costs are awarded to the prevailing party. Attorneys’ fees can sometimes dwarf the amount at stake. Some lawyers work on a contingency or partial contingency basis; they may be willing to do so when attorneys’ fees are available, warranted, and collectable. For this reason, we generally suggest that an attorneys’ fees provision awarding them to the prevailing party be made in part of the contract.

There is no substitute in deal-making for conscientiousness and awareness of the legal terrain. If the deal goes sour, as so many sadly do, you’ll be glad you looked out for your interests.

 

 

 

 

 

 

 

 

 - Illustrated by Ajay Peckham

 

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UNCOMMON SENSE - The PGA's "Protect Your Team" Workshop Debuts In Atlanta

Posted By Jennifer Haire, Monday, May 8, 2017

“No... no. We need a stunt man,” Producer/director John Boorman told actor Burt Reynolds on the set of Deliverance. Reynolds had volunteered to do the stunt himself in a scene where his character Lewis rides his canoe over a waterfall. “We’ll just use a dummy! We’ll just throw a dummy over,” Boorman insisted. A young Reynolds fought to do the stunt himself and as expected, it led to injury. Boorman was at his bedside when he woke. “How’d it look?” Reynolds asked. “It looked like a dummy falling over a waterfall” replied Boorman.

Producer Mark Shelton shared this infamous story with over 75 members of the Georgia film & television community at the inaugural Producers Guild of America “Protect Your Team” Safety Task Force event on February 11th, 2017. “What does it mean to be safe?” Addressing this question, the event was designed for producing team members to empower them with the knowledge to be leading advocates for production safety. A safe production starts at the top.

The event was hosted at Eagle Rock Studios just outside of Atlanta, thanks to PGA Member and Eagle Rock Studios VP of Studio Operations Beth Talbert. Via a discussion-based format, four production safety experts led producers through recommended practices for developing a safety plan, highlighting the producer’s role as part of the safety team, as well as how to recognize and correct hazards. The event likewise included a thorough briefing on support resources available locally. The goal: to keep producers, cast and crew safe on the set. Speakers included IATSE Safety Committee Chair Kent Jorgensen; Contract Services Vice President for Production Affairs and Safety, Matt Antonucci (along with Jorgensen, also a Co-Chair of the Industry-Wide Labor-Management Safety Committee); Margaret Burke, the Regional Director of Production Safety for 20th Century Fox; and independent producer and OSHA-authorized safety instructor Mark Shelton. Representatives from the community, including Jenny Houlroyd of the Georgia Tech Research Institute as well as Trish Taylor from the Georgia Production Partnership, contributed to the conversation.

Despite being the latest critical buzzword, safety is not a new topic for the entertainment industry. The Industry-Wide Labor-Management Safety Committee was formed in 1965 and is comprised of guild, union, and management representatives active in industry safety and health programs. They are responsible for researching, writing and making available the Safety Bulletins, seen attached to callsheets on many productions. These bulletins are recommended guidelines for safe practices on a set and cover both overarching concepts such as general safety as well as more specific high-hazard departments such as working with helicopters and airplanes.


From left: PGA Safety Task Force Co-Chair Jennifer Haire, event speaker Margaret Burke,
PGA Safety Task Force Co-Chair Melissa Friedman, PGA Atlanta Co-Chair Scott Thigpen,
event speakers Kent Jorgensen, Matt Antonucci, Mark Shelton

The Occupational Safety and Health Administration (OHSA) was established in 1971 as a result of the Occupational Safety and Health Act of 1970. A part of the US Department of Labor, OSHA is tasked with assuring safe and healthful working conditions by setting and enforcing standards for all employers and their workers, including producers of film and television. Many Safety Bulletins have OSHA standards at their core and blend entertainment industry practices with government standards for a safe workplace.

In the 1970s, Contract Services Administration Trust Fund (CSATF) was created as way to help educate filmmaking craftsmen and women through various programs for the motion picture and television industry. Around the mid 1990s, the studios of the AMPTP, as part of their collective bargaining agreement with IATSE and other entertainment craft organizations, created a voluntary safety program through CSATF. It wasn’t until the mid 2000’s that Contract Services required a mandatory safety training program for IATSE signatory productions. The Safety Pass program was created in collaboration with the Industry-Wide Labor-Management Safety Committee “as a means of addressing the OSHA requirements that employees be trained (and the training documented) in the safe use of equipment and work practices on their job.” IATSE crew employed on signatory productions are required to take these special courses before they can be employed.

However, there is a substantial knowledge gap between the trained union crews and members of the producing community. The PGA saw the need for safety education for producers and their teams, addressing the issues from the producer’s perspective. On any production, it is vital that the cast and crew know that the producer is looking out for them and their well-being. They want to trust the person they are working for and know that they will not be unknowingly put in harm’s way. Union crews have been trained to recognize hazardous situations; would you recognize one on your set? Do you know how to protect your team? Members of the PGA Atlanta chapter do.

Safety demands can seem daunting. How can you know all of the laws and proper safety measures for every possible situation all the time? In short, hire an expert, use common sense and plan for Murphy. A basic understanding of how to recognize and correct an unsafe situation is essential knowledge for a responsible producer to make reasonable decisions. Are you shooting exteriors on a hot day? Provide shade and water. Are you working on roadways? Set up lane closures and provide reflective vests. Are there local poisonous indigenous critters in abundance? Hire a removal company to clear the area you are filming. The script takes place at sea? Hire a marine coordinator to handle the logistics. Need the character to ride a canoe over a waterfall? For God’s sake, use a dummy instead. Production is a training ground for adapting to constant change. No two days are the same. Plan for everything to go right; be prepared for it all to go wrong. A typical production day goes in a direction you didn’t expect. Have a safety plan for change. Develop your eye for safety and encourage your cast and crew to bring their concerns to your attention.

The PGA Safety Task force has compiled an ongoing list of helpful resource and information links, available on the Guild’s website at producersguild.org/page/Safety.

The “Protect Your Team” seminar was additionally sponsored by MBS Equipment Co., Crazy Legs Productions and Decide Dekalb and was produced by PGA Atlanta Chapter Vice Chair Scott Thigpen as well as Melissa Friedman and Jennifer Haire, Co-Chairs of the PGA Safety Task Force.

The PGA Safety Task Force is currently developing a follow up program with an additional emphasis on doc/non-fiction/reality programming to be held second quarter 2017.


PGA ATLANTA: THE ORIGIN STORY

It was a November evening in 2009, when a handful of producers found themselves in the backroom of Manuel’s Tavern, an Atlanta institution where politicians, journalists and artists have been gathering since 1956. We came together that night at the request of our colleague, Tom Cappello, who pitched us the idea of starting a PGA chapter right here in the very heart of the South. Tom went onto say there was a fellow by the name of Vance who was coming to town who could explain things further. Soon after, we found ourselves listening, beers in hand, while Vance Van Petten expounded on the benefits of PGA membership and the virtues of becoming a part of this national organization. He explained that the PGA’s mission was to protect and promote people just like us. We ate it up, hungry for the camaraderie and professional support. Weeks later, many of us met again and filled out our PGA applications together. And by April 2010, the vetting was completed and the charter members of the PGA Atlanta chapter had been accepted into the Guild. We had become something; we just didn’t fully know what…yet. There were less than a dozen of us. The start was slow going at first, but we eventually found our way, with guidance from Mitzie Rothzied in the PGA East office, and through the encouragement of visiting members like Nelle Nugent, Gale Anne Hurd and Lydia Dean Pilcher. In the years since, we have elected chapter officers, formed committees, and organized many outstanding events, including the “Protect Your Team” safety workshop. Today, the Atlanta chapter is 100 members strong with a steady stream of networking opportunities, educational workshops and panel discussions. And like the rest of the production community in Atlanta, we see boundless opportunities ahead.  — SCOTT THIGPEN


 

- This article originally appeared in the April/May issue of Produced By magazine.

Tags:  feature  safety 

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