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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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THE ARRIVAL OF 21 LAPS - Can A One-Time Family Movie Impresario And His Hardworking Team Change The Storytelling Model? Stranger Things Have Happened.

Posted By Spike Friedman, Thursday, November 2, 2017

While I was binging the first season of Stranger Things last year, along with the rest of America, I had a moment. Maybe you had it too. During the show’s credits, a producer’s name jumped out at me. “Shawn Levy? The guy who directed Night at the Museum and Real Steel?” A quick IMDB search revealed that yes, not only did Levy produce Stranger Things, a sci-fi phenomenon that is getting people to rethink how television series are structured, but he was also a producer of last year’s Best Picture nominee Arrival, and his production company 21 Laps is shepherding an ambitious slate of projects through development. 

So in sitting down with him and his 21 Laps producing partners, Dan Levine and Dan Cohen, I wanted to know how a guy went from making big, mainstream family features to being a standard bearer for the disappearing, artist-driven studio feature and event miniseries. What I found was a trio of producers who don’t just love movies (boy, do they ever) but also love the work it takes to get great movies to the screen. From finding compelling material, to assembling the right team, to lining up finance and distribution, 21 Laps blew me away with their ability to do the hard work required to bring challenging material to big audiences. But it didn’t start that way.

21 Laps started almost 12 years ago, in the aftermath of the success of Levy’s Night at the Museum. The idea initially from Fox, still 21 Laps’ home studio, was for it to be a standard filmmaker-driven production company; they’d get first dibs on Levy’s work going forward, and he’d have a space on their lot. The company operated like this for a couple of years, supporting Levy’s work but not yet finding its larger creative groove. That changed when Levy brought in Dan Cohen and Dan Levine, now inevitably referred to around 21 Laps HQ as The Dans.

Producer Dan Levine (center) on the set of Arrival with fellow producer
Aaron Ryder (left) and director Denis Villenueve. Photo by Jan Thijs

The trio coalesced in a matter of weeks. Levine came on first, meeting in the narrow slot between a Real Steel motion capture session and Levy’s daughter’s school play. “[Levine’s] was the most cursory interview for literally the president position at a company,” says Levy, “but I had an instant good vibe.” Cohen came on just a week later. At the time, “I was focused in the genre world, working on indie horror films, and at first, looking at 21 Laps, there was really no overlap,” Cohen recalls. “But I’d heard such great things about Shawn and when I met him, I just wanted to work here.” The Dans themselves immediately bonded over their idiosyncratic taste in classic films. “That eclecticism was the key,” Levy says, looking back. “That range of tonality was the key to what we three aspire towards.”

Unlike many of the other production companies that have had success making filmmaker-driven films over the past decade, 21 Laps has done so with medium- to large-scale movies. Films like Arrival and the upcoming Kin and The Darkest Minds live in a space that’s bigger than indies but smaller than tentpoles; these films used to represent the bulk of what Hollywood produced, but it’s a space that has been increasingly squeezed across the industry. Even something like Stranger Things has an old-school, mini-series vibe, sharing more DNA with classic long-form events like 1984’s V than with most modern sci-fi TV series. Levine admits, “They’re hard. You look at Arrival or Stranger Things, they all had their disbelievers, people who passed.” But he credits the team’s relentlessness for getting them across the finish line. “It was our sheer conviction and passion for what our filmmakers were doing.”

Walk it like you own it; Levine, Levy and Cohen on the Fox Studios Lot.

“There were two things I realized early on when we started working together,” says Levy. “We all were truly passionate about movies, and we all are grinders. We work really hard. It’s a deep passion and belief, and the discipline is there to back it up with persistent, gritty hard work. That’s the culture of this company.”

 “And we can take a punch,” Levine adds. “You rarely get a good incoming phone call, or a good incoming email. Every time you pick up the phone there’s some hammer dropping. You gotta be able to get your heads together and go, ‘Okay we had this setback. How are we gonna go forward?’”

In describing the process that it took for Arrival to go from a critically renowned short story to a commercially successful Best Picture nominee, directed by the heir to the Blade Runner franchise, the grittiness of the trio comes through. “We pitched it,” Cohen smiles, “and it was amazing. The screenwriter, Eric Heisserer, pitched it with note cards, each with pictures that he laid out in a circle. It was a truly awesome pitch. Of course, no one bought it.”

“There were years when Arrival didn’t look like it had a path to production,” Levy remembers. “So you’d better love it. Because it’s gonna knock you down everyday.”

Since Heisserer’s passion for the project was every bit equal to 21 Laps’, the team continued working together, getting the script right on spec. “That was the moment,” Levine declares. “We had a suspicion it might not get set up as a pitch. We might need a script. It was a huge moment when Eric stepped up and said, ‘I’ll write it on spec.’” Levy points out this is not unique at 21 Laps. They have a number of projects that are sufficiently execution-dependent that they’re unlikely to be sold as ideas. But they readily keep the development work going in-house, gambling with their time and energy that partners will bite on a final product. 

Shawn Levy (left) on the set of Stranger Things with
showrunners  and creators Matt and Ross Duffer.
Photo by Jackson Lee Davis/Netflix.

The recruitment of Denis Villeneuve to direct was another signal moment for the group. As Cohen explains, “We were just in the process of getting [author Ted] Chiang to say ‘okay’ [to giving us the rights]. Ted, to his credit, had this beloved short story and looked at our credits at the time and he goes, ‘Convince me.’ After all, Eric had written only horror. We as a company had almost only made family films. And one of the key factors was that we said, ‘We’re gonna send you a movie. This is the guy we want to direct it.’ And we sent him (Villeneuve’s 2011 feature) Incendies. This is four years before Denis directed our movie.” 

Levy lays it out: “When we gave Incendies to Ted, we didn’t have Denis committed. When we gave Denis the short story, we didn’t have the rights. It really was that crazy producorial juggling act. You have to act like it’s real to have any chance of making it real. That’s what we do. Bet on the come.” Once they got the package together and everyone onboard, the financing fell into place, and there was effectively a bidding war for the distribution rights on the project. 

“The work had to be done internally for the lion’s share of the process,” Levy explains, “so that it could become so self-evident that studios wanted to acquire it.” Cohen’s even more sanguine on the journey that led to the film’s production. “What if we did sell that fantastic pitch? It probably would never have even gotten made. It was such a specific story and process that it had to stay singular in its vision.”  

What comes through in talking to Levy, Cohen and Levine is that 21 Laps’ ability to make filmmaker-driven, midsized features and culture-bending television comes from bringing the best of the indie film model to bear with studio-sized resources. “I get asked often now, ‘What is the 21 Laps brand?’” Levy admits. “I’m way less concerned with that answer than ‘What is the 21 Laps culture?’ And the culture of 21 Laps is ‘do the work.’ That is an indie model. You believe in the idea. You do the work to turn it into a movie. And you trust that the financing will arrive as a result of that hard work.”

Even with Arrival’s success, which culminated in a Best Picture nomination, Stranger Things is the project that definitively changed the company’s perception in Hollywood. “It started with Dan Cohen coming in and saying, ‘stop and read,’” recalls Levy. “He said it was possibly the best spec pilot he’d ever read. I read it, agreed, and we brought in the [Duffer] brothers. And at that point I had no idea whether anyone would want to make Stranger Things, but I knew it was awesome. And I knew we wanted to help. So I told the brothers straight up, ‘Let’s link arms, let me help, let us help bring this into the world.’” Cohen lovingly recalls another set of pitch materials. “We had the pilot obviously,” he says, “but the Duffers had a lookbook that looked like an old, faded Stephen King paperback, which ultimately became the basis for our one-sheet. And they did a mood reel that was very cool, and it used Survive, who they ended up hiring to do their amazing score. You would sit with them and in 20 minutes, they pitched you exactly what you’ve seen.”

For the group, the strength of the Duffer Brothers’ vision on the show made pitching it a dream even if sometimes it was a tough sell. “They had the show in their soul from the get go,” says Levy, “but they were these unknown brothers, so it was a long shot. Unknown showrunner/directors with kid leads on a show that isn’t for kids? Conventional wisdom says that’s poison.” The producers didn’t fault the instincts of the many potential backers who passed on the project. But they held out hope.

“We always believed Netflix was the perfect platform,” says Levy, “because the brothers from day one said, ‘We don’t want this to be a typical series. We want this to be an eight-hour movie.’ So then we went with the Duffers and we pitched Netflix. And the next morning, they bought the whole season. It’s worth saying that there are very few buyers who are ready to bet to this extent on brand new television creators the way Netflix has on the Duffers.”

Producers Shawn Levy and Dan Cohen at the Stranger Things Premiere. Photo by Eric Charbonneau/Invision

Truthfully, when it came to putting together Stranger Things, things sometimes felt appropriately strange. There was no studio. The showrunners were inexperienced, but had Levy, a successful studio director, shooting episodes alongside them. The room in general was kept very small. “This ride with Stranger Things has been truly gratifying because of the creative team,” Levy says. “Those of us who actually make the show are an inordinately small group, so everyone does the work.”

This small team allows Stranger Things to maintain a unique feel. “It’s almost like a book,” says Cohen. “Each episode is a chapter and it feels like these paperback books these guys read as kids.” Levy puts it another way: “The Duffer Brothers’ instincts are the law of Stranger Things. They want to do what they feel is right. And as a result we’ve got this, now, quite singular show. I think season 2 will be equally renegade in its refusal to follow rules.” That respect goes both ways. “Making Stranger Things with Shawn and Dan [Levine] has been a dream,” the Duffers told Produced By. “From day one—long before the show was a hit—they believed in our vision. What we love about the company is that Shawn is a director first, so he’s extraordinarily protective of a director’s vision. He’s both our shield and our collaborator.”

The success of Stranger Things has been enormous. The October debut of season 2 is a tentpole by any other name, with some movies even moving off of the release date to accommodate it. But again, like Arrival, it’s a midsized production. It wasn’t initially a massive investment for Netflix like Adam Sandler’s slate of films or David Ayer’s upcoming feature, Bright. It’s filmmaker-driven, a throwback, and it hit huge because it was shepherded by a production company that cares first and foremost about the visions of its artists.

Now that they have redefined themselves as a producer of filmmaker-driven work, a place where artists can come to expand how they are perceived by the industry and the audience alike, 21 Laps has hit its stride. While I was surprised to see Levy’s name on Stranger Things and Arrival, going forward it’s no surprise that he’s connected to a wide range of interesting projects in the pipeline, from the aforementioned Kin to Kodachrome with Ed Harris. In speaking to the future of the company, Cohen puts it best: “Stranger Things came out of nowhere. That was new terrain for us. So we have to keep that hunger.” He pauses a moment, then clarifies, smiling, “I think we want to keep doing whatever we want with whomever we want.”

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LYDIA TENAGLIA - When It Comes To Embracing New Frontiers In Nonfiction TV, The Producer and PGA Member Has No Reservations

Posted By Chris Green, Wednesday, October 25, 2017

First things first: the G is silent. “Te-NAL-ya,” she corrects me, proudly rolling the word around the L like a Calabrian street vendor. “It means ‘pliers’ in Italian, which I somehow think is very fitting,” she smiles. ”It feels like a good match for my personality—tenacious. Tenaglia.”

Having tenacity as a birthright seems like a pretty good starting place for a producing career, particularly one that’s based in the highly competitive and ever-shifting world of nonfiction television. A post-college, entry-level stint at legendary documentary company Maysles Films provided the next step, schooling her in the finer points of the classic verité style. She put that education into practice out in the field while still employed at Maysles, serving as camera assistant on the acclaimed 1992 doc Brother’s Keeper.

After graduating from NYU’s graduate film program, Tenaglia started to hone her producing chops at the late and lamented New York Times Television, graduating from the edit bay to story development and field producing. Along with creative partner (and later husband) Chris Collins, Tenaglia began to look for material the duo could expand into larger work. She struck gold when she picked up Kitchen Confidential, the charged, abrasive, intensely readable memoir of then-chef Anthony Bourdain, which pulled the curtain back—way back—on the New York restaurant world. Upon learning that Bourdain was proposing an Innocents Abroad-style travel journal as his follow-up, Tenaglia saw the rich narrative possibilities of the idea and picked up the phone. The ultimate result of that cold call was A Cook’s Tour, which aired on The Cooking Channel for two seasons before hitting its stride as No Reservations following its pickup by the Travel Channel. Today Tenaglia, Collins and Bourdain’s flagship show lives at CNN, under its third title, Parts Unknown.

While Bourdain’s ongoing gastronomic exploration remains the mainstay of Tenaglia and Collins’ production company, Zero Point Zero, the enduring appeal of the series has allowed its producer to refine her style and expand her own creative horizons. Shows like Meat Eater and The Hunt with John Walsh showcase Tenaglia’s skill at building innovative, culturally engaging series around fiercely distinctive voices, while feature work such as Jeremiah Tower: The Last Magnificent and Fermented leans into the culinary cachet she’s earned through her championing of Bourdain. We’ll learn even more when she and Bourdain take the stage as two of the headliners for the Producers Guild conference Produced By: New York, on October 28.

So, very few producers start out with the idea that they would be producers of either TV or movies. What was the original plan for you?

I’d say early on I was always interested in the field, but I took a circuitous route. I went to undergraduate at Smith College, and then I took two years off and worked at Maysles Fims. There I became interested in cameras and editing and got my first real sense of unscripted production.

Had you done any scripted stuff? Theater stuff, even?

No. When I was at Smith, I had started to dabble in producing short videos for friends who were doing thesis projects and who wanted a video component. I realized that I really liked being behind the camera and trying to tell a story in that way, through a visual medium. So that was my very first intro to producing, all self-taught. And then I had my Maysles experience.  Six months into my job there, I met some documentary filmmakers, Joe Berlinger and Bruce Sinofsky, and serendipitously ended up on their film called Brother’s Keeper, as a camera assistant. So I got a chance to explore camera. Bruce was also a great editor, so I would go into the edit room and watch him as he did his thing. So I kind of created my own internship that way.

After Maysles and the Brother’s Keeper experience, I wanted to deepen my knowledge of film production, so I went to grad school, NYU Film and Television, and started making my own short films. I found work as an editor around the time production companies were pushing the model of “preditors,” editors who could also produce their own material.

Right, yep.

Do you remember that?

Some folks still use that word.

Yes, it’s still used! There were “preditors” and then there were preditors who coud also shoot, so it was really the trifecta of fun, there! I did producing-shooting-editing at New York Times Television for a while and really got my footing producing stories. I rose up the ranks and started series producing and then executive producing. And then at one point my husband Chris Collins—we worked together as a producing team, as friends, before we were married—and I had this crazy thought, as many people do, “Hey, maybe we should try to go pitch our own stuff.”

And very fortuitously, our paths crossed with Anthony Bourdain, almost 18 years ago. I had read Kitchen Confidential and thought it was a great read, and heard that Bourdain wanted to do a follow-up book called The Cook’s Tour, where he was going to travel around the world. So I went and I met him. Cold called him. He was still working in a restaurant at the time. And I pitched the idea of trying to make A Cook’s Tour into a television show.

He’s like, “Whatever. What the hell. I’m just a writer who happened into a book that made a splash. I’m still working in a kitchen, for God’s sake.”

Chris and I ended up shooting a 10-minute demo at Les Halles, the restaurant where he was working at the time. I edited it together and we pitched that, and that went forward as a series. That was the start of our production company, of our relationship with Bourdain. We formally created Zero Point Zero Production in 2003, and the Bourdain series really became our flagship show. It started at Food Network, where it was called A Cook’s Tour, and then moved  to Travel Channel for eight years as Anthony Bourdain: No Reservations, and now we’re on CNN for the last few years as Anthony Bourdain: Parts Unknown.

Many producers don’t have the luxury of that kind of steady anchor series.  Its consistency and longevity is a  production company’s dream, allowing it to grow and evolve. But we had that good fortune. We have about 150 people working at Zero Point Zero now, working on different series for a variety of networks. We continue to have a fantastic partnership with CNN and are working on a few new series for them right now; two are in production and will be announced next year. So that’s that!  My career in a nutshell. [laughs]

Producer Lydia Tenaglia and Anthony Bourdain, en route to the next exotic location and revelatory meal. (photo: Chris Collins)

Can I skip back and visit some points?

Yeah! Of course.

So just going back to Brother’s Keeper, what was that first documentary experience in the field like? What was it about that gig that made you feel like, okay, I’m in my element. This works for me?

Well, even getting on that film was very fortuitous. I was working at Maysles at a really low-level, entry position. But I had become good friends with the guy who managed the equipment there, Marcel Dumont. He taught me a lot about film cameras—how to film load and focus pull, a lot of good AC stuff. Bruce and Joe were also both employees at Maysles at the time; Joe was heading up the sales and marketing department and Bruce was an editor. They happened upon this murder mystery story up in Munnsville, New York and drove up there on their own to check it out.  The quickly realized that they had a good story on theor hands.

So they very quietly gathered a small crew, as cheaply and economically as possible. The DP, Doug Cooper, was incredibly gifted but young at the time and willing to commit to the long hours and low budget.  And so was I. Having been at Maysles for over a year, and watching their verité style of filmmaking secondhand (from my desk chair!) I really wanted the experience of being in the field. So I threw myself into the project. For 10 months, every weekend, the four of us—Joe, Bruce, Dough and I—would load up the van and drive five hours to Munnsville. We’d spend the weekend there, gathering the material for Brother’s Keeper. I was just plunged into that whole world, feeling like: This is really cool. I felt viscerally connected to that kind of storytelling, that kind of camaraderie with a group. That was very eye-opening for me. It was what made me apply to grad film school. I think back on film school now, and honestly? I probably could have done a year of that and gotten the same amount out of it. I don’t regret going. But it’s really an apprenticeship industry. You learn by connecting yourself with people in the industry, a good editor or a good DP or a good producer, and just saying, “I’ll get your frickin’ coffee. I will do whatever it takes. I just really want to learn.” The industry has always been based on that apprenticeship style of learning.

It’s a craft.

It’s a craft. Exactly. It’s a craft and you learn by connecting yourself with the craftsperson. What I learned most by being involved in Brother’s Keeper and observing Joe and Bruce in the field is how, as a filmmaker, you walk the very fine line of connecting with a subject, but then pulling back quietly into an observational role. Working on both sides of that line, you come to understand something very deep about people.  That was unbelievably fascinating. That kind of verité storytelling can be so powerful, so compelling, so riveting. I think my personal producing style probably walks its own line between Maysles-style verité and something more produced. I definitely lean toward wanting pieces of the story to have a more constructed beauty via recreations... but damn, Brother’s Keeper was a masterpiece.

Lydia Tenaglia with iconoclastic chef Jeremiah Tower
on location in Mexico (photo: Lydia Tenaglia)

Being able to integrate that in a way that feels coherent and organic is a real skill and a real challenge. In terms of bringing Anthony into the picture, what was it that sparked for you, that made you pick up the phone and make that cold call?

His writing was very funny, very sardonic. It was brash, almost punk. Kitchen Confidential was flung out there with no sense that it would have any consequences or ramifications. It was very unfiltered but also so smart. Clearly there were lots of references to books and films. So when I heard that he wanted to write A Cook’s Tour, where he was going to travel the world despite having virtually no travel experience, I was intrigued. Bourdain’s entire career up to that point was 25 years in various kitchens of New York. And suddenly he’s asking, “How does the rest of the world eat? What do they think about food?” I thought maybe there’s a series here, where we follow this guy around as he sort of stumbles through the world. And that in fact is exactly what the show became. We found Bourdain at a point in his life where he was really traveling for the first time. Everything was new, everything was different and strange and outside of his comfort zone.

I think we were able to capture that. At the same time, the show would not have worked quite the same way if Bourdain didn’t already have an encyclopedic knowledge of films, of literature and history... he was able to draw from all those references. As producers, Chris and I were feeding off of those creative references. We found that rhythm with Bourdain pretty early on.

By the second location of A Cook’s Tour, Vietnam, we had hit our stride...The minute we landed and exited into that airport—an airport that we’d seen all through images of the Vietnam War—there was an immediate connection to that location for him. He’s a very avid reader of Vietnam history, especially the war period. He had a strong connection to works like Apocalypse Now and Graham Greene’s The Quiet American. He had all these references that he started to pull from, and from there, he came alive—and the show really came alive at that point. We ended up doing two seasons of A Cook’s Tour. Then the Food Network’s mandate shifted, and they asked Tony, “Could you try to do more domestic shows? Maybe a barbecue show?”

How did he take that idea?

He … politely pushed away from the table. [laughs] God love them, that stuff has worked very well for Food Network. Nothing against barbecue shows! Because hey, we did a barbecue show. But Tony’s like, no, I’m really enjoying this international thing. Fortunately, we were able to continue making the show with other networks.

After doing the series for so many seasons, how do you work to keep the format fresh?

The format for the show actually forces us to keep it fresh. For each location we travel to, we ask: Is there a reference that we want to tap into for this particular place? Several years ago, we did an episode of No Reservations set in Rome. We did it all in black and white, very much fashioned after that Italian neo-realist style. That was the starting point. How do we shoot a Rome episode using Italian neo-realism as our reference point? That’s the starting point, I think, for every episode. Is there a film reference, a book reference, an historical reference we can use as inspiration? Is there a filmmaker we really like? Bourdain a fan of Wong Kar-wai, for example, so our Hong Kong episode became an homage to Wong Kar-wai films. Darren Aronofsky, the director, wanted to accompany Tony to Madagascar so that episode had its own texture and tone.

Hit Madagascar with Darren Aronofsky. Cool, cross that off the bucket list.

[laughs] Exactly. I mean, the only real format to the show is: It’s Bourdain and we go to a country. That’s it. The rest is asking the questions: What’s the story here? Who are the characters in that place who can tell that story? The show has moved way beyond just sitting down to eat food at the table. We did an L.A. episode where we concentrated the entire show in a three-block radius of Koreatown. We just made the entire show about that world of characters who live there.

Yeah, that neighborhood is a real crossroads. In terms of prep, how far out are you planning these shoots? Obviously you need to have some control over your shooting environment, but so much of the best nonfiction work comes out of spontaneity and improvisation.

Prep can be anywhere from five to seven weeks, depending on the location and how difficult it is to access. It’s important to find good fixers on the ground who can help get that inside access, and find characters who can tell the story of that location in a unique way. If we have a strong visual conceit, like in the Wong Kar-wai episode, that will inform the kind of cameras and lenses we use, along with the color palette and style of shooting. That part gets carefully thought out. When shooting each individual scene, there is a tremendous amount of improvisation, but there is also a lot of structure in the way a particular story is going to be told.

Can you talk a little more about that? What are some times on location when you had to scramble, where you wound up somewhere unexpected?

I can answer that question pretty literally, in fact. [laughs] But I have to first note that I’m not physically producing that particular series anymore. It’s produced in the field by an incredibly skilled team of directors, producers and cinematographers, led by executive producer Sandy Zweig, who are putting their own personal and very unique aesthetics into each episode. But very early on when we were doing A Cook’s Tour, it was just me and Chris and Tony in the field. For one episode, we were in Cambodia and suddenly had this opportunity to fling ourselves into the unknown—the fixer said, “If you want, you can take a boat ride up this river and it’ll take you to this interesting little town in the jungle on the border of Cambodia and Thailand.” Now, this trip was not included in any of our preproduction research, but we thought, sure, let’s see where this goes. We made our way down to the shoreline in a very remote location and suddenly this man pulls up … in full military fatigues. That was our boat. The three of us got on with him. He spoke no English. And we made our way up this river, deeper and deeper—it went on for a long time, hours and hours. The sun started to drop. The boat suddenly stopped. In the middle of nowhere, we picked up another passenger, a male passenger, also in miliraty fatigues. And at that point, we looked at each other and we were all a bit freaked out.

Now as producers, you can either sit there and be completely freaked out—and we were—or you can be freaked out and then try to make a scene out of that. Up until that point, we had been mostly shooting the scenery along the way, but then  we decided to tap into what was actually happening there, tap into our fear and trepidation in that moment, and make that a piece of the story. We started prompting Tony, trying to shoot him in a way that hovered between fear and fascination with the situation and what we were all feeling. That became one of the strongest scenes in the episode.

That was nothing we ever could have pre-produced. It was not on any outline. I think that is the strength of the Bourdain series, the way it walks that tightrope of improvisation.

So if as you’ve said, Bourdain has provided the foundation for Zero Point Zero’s work, how have you tried to build on that?

Across most of our work, we definitely lean in the direction of character-driven stories. The characters have a really strong personal voice. Eight out of 10 times they’re actually very good writers; they’ve either written books or they’re accomplished journalists. So from the start, there is a strong editorial point of view and a strong writing style. We’ve done a series called Meat Eater, a hunting show, for six years now with a guy named Steven Rinella. That was a subject that I thought I had no affinity for and certainly had my own preconceived notions about. He walked in the door of our office that frst day and I was like, Oh, here comes the hunter guy. I already know what this is going to be. But I started to read his work. He’s written several incredible books about the ethos and philosophy of the hunter. He’s probably got a more honest relationship with food than any of us does, and he was able to articulate the world of hunting in a way that really attracted us to the subject matter.

He surprised us, just like Tony did with food and the table. Food and the table was just an entry point to talk about something bigger. It isn’t just about that banh mi you’re eating in Vietnam, it’s about what is contextually happening around it. It’s sociopolitical, it’s cultural. Steven Rinella was able to articulate the story of the hunter to us in a very similar way. Hunting is just the way in to talk about a particular philosophy, about a personal ethos.

We’ve done The Hunt with John Walsh about the search for criminal fugitives. John, of course, did years of America’s Most Wanted, and I had had my preconceived notions of who John was. But he came in and really started to articulate his world in a powerful way. He made us all understand deeply the importance of his work for the last 25 years, And we realized that there’s a way to redefine this subject matter from a new and very particular point of view.

How so?

What you realize when you speak to John is that his strong passion to capture criminals emanates from a very personal tragedy, and he has an ability to articulate that experience from the point of view of the victim and the victim’s family, So The Hunt is really about the internal life of the victim and of those left behind after something tragic has transpired.

We don’t put John in the field like in America’s Most Wanted. Instead, we inteview him in this very gritty, raw space, where he’s able to comment on particular cases in a way that cuts straight through to the audience: This victim was a living, breathing person with feelings and dreams and a family... and this is the aftermath when a person’s life is tragically cut short. The people around them are left in a state of internal chaos and despair.  The criminal who perpetrated this crime ran away from what they did. They must be found and must face what they have done.

The series is very powerful and very effective.  The audience becomes invested in the hunt and engaged in the process of calling the tip line.  In the three seasons we’ve been on, the show has been directly responsible for the capture of many criminal fugitives.

Tenaglia (second left) and Anthony Bourdain (second right) celebrate a delicious Vietnamese meal at Com Niue Saigon with hosts Dinh Hoang Linh (left) and Madame Ngoc (center), and producer Chris Collins (right). (photo: Diane Schutz)

That kind of material requires a really delicate touch.

Yes. I really credit the two showrunners, Shawn Cuddy and Ted Schillinger, for the way they crewed up the series.  The teams they hired are highly skilled at riding that delicate line between caring for the victims while also getting the material they needed to tell their story.  Not easy.

So, having done this for 17, 18 years, you’ve been able to watch whatever we call “reality television” cycle around a bit.

Yeah, we’ve watched a pretty big cycle go around.

How have you guys adapted to those cycles?

I think it’s more like we purposely haven’t adapted. During the years where everyone was perhaps hovering around a certain kind of reality television, I think we held our own, in large part because we’ve never been any good at pitching to the mandates. We just don’t. We can’t. A network will send out their signals, ‘This is what we’re focused on,’ but we can only pitch in a way that we truly can get excited about, that we find interesting, and that we feel like we could produce in our own Zero Point Zero style. Of course, that doesn’t always work out for us. Networks certainly have their own brands of storytelling. If our style meshes—great. If it doesn’t, we move on. But we’re not going to re-imagine the show in a way that’s less interesting to us just to fit a network’s brand identity. I’m sure a lot of production companies can relate to this.

That can be tricky when trends dictate that “food programming” means cooking competitions and recipe shows.

Yeah, in general, I would say most of the networks that we deal with here in the U.S., aside from CNN, do feel more comfortable with domestic-type programming. It doesn’t preclude them doing things that are international, but there’s an emphasis on trying to keep stuff closer to home. Whereas partners like Netflix, for example, who are inherently global by the nature of their platform, are looking for programming that can appeal to audiences all over the world. So I think they like what we do and know that we can do it well, and they believe that the material we create can be re-versioned for their different global markets. So that’s why we like working with them. The same is true of CNN. I mean, CNN’s a news organization. They’re not going to say, “Make another barbecue show.” They’re telling us, “Yes! Go to Myanmar. Go to the Congo.” Other networks more likely say—with complete justification, since they know their own brand—you know what? Our audience is not really interested in the Congo or Myanmar or what’s happening there.

What would you say to other producers who are looking to expand the boundaries of the form – geographically or in whatever other way?

Don’t be afraid to defy convention. Don’t be afraid to break the mold. You see a lot of networks decide, “Oh, that’s working,” and then everyone falls in line. “Let’s try to repeat that.”

TV is very good at that.

[laughs] It’s very good at that. I’m not trying to sound arrogant or whatever, but if you believe in trying to push the ball forward, then push the ball forward. Don’t be afraid to put your inimitable stamp on something. If someone pitches me an idea and they’re like, “Hey, this is the next Deadliest Catch” or whatever … Well, I don’t want to do the next Deadliest Catch. Because they already did Deadliest Catch, and they did it really fuckin’ well. Why do you want to do the next Deadliest Catch? Move forward. Find somebody who can tell you a story that only that person can tell, then build a world around them and push the damn ball forward.


- photography by Noah Fecks

Tags:  cover  fea 

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Statement From The PGA Presidents

Posted By Administration, Monday, October 16, 2017

From Gary Lucchesi and Lori McCreary, Presidents of the Producers Guild of America, on behalf of the PGA National Board of Directors and Officers:

"This morning, the PGA's National Board of Directors and Officers decided by unanimous vote to institute termination proceedings concerning Harvey Weinstein's membership.

As required by the PGA's Constitution, Mr. Weinstein will be given the opportunity to respond before the Guild makes its final determination on November 6, 2017. 

Sexual Harassment of any type is completely unacceptable.  This is a systemic and pervasive problem requiring immediate industry-wide action.  Today, the PGA's National Board and Officers -- composed of 20 women and 18 men -- created the Anti-Sexual Harassment Task Force specifically charged with researching and proposing substantive and effective solutions to sexual harassment in the entertainment industry.

The PGA calls on leaders throughout the entertainment community to work together to ensure that sexual abuse and harassment are eradicated from the industry."

Tags:  Harvey Weinstein  pga 

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PGA Dodger Day 2017

Posted By Michael Q. Martin, Tuesday, September 26, 2017
Updated: Tuesday, September 26, 2017

On Saturday, August 26th, 101 PGA Members attended our annual PGA Dodger Day, as the Los Angeles Dodgers hosted the Milwaukee Brewers.  The Dodgers planned a “bullpen game” as starting pitcher Ross Stripling was filling in as the 5th starter, and has bounced between starter and bullpen all season.  Stripling pitched 3 scoreless innings before the bullpen took over.  In the 5th inning Dodger reliever Josh Raven gave up a two run home run to Orlando Arcia.  In the 8th, Dodger reliever Luis Avilon gave up a double to Neil Walker, which plated Herman Perez.  The Dodger bats could not unravel Brewers starter Zach Davies and ended up losing 3-0.  PGA members still had a good time in the Coca-Cola All You Can Eat Right Field Pavilion and feasted on unlimited Dodger Dogs, Nachos, Popcorn, Peanuts and Soda.  The first 40,000 fans also received a Great Dodger Moments Coin (#7) featuring Rick Monday Saving the American Flag from being burnt.  Hope to see you next year at Dodger Stadium.   

PGA 2017 Dodger Day by Michael Q. Martin On Saturday, August 26th, 101 PGA Members attended our annual PGA Dodger Day,...

Posted by The Producers Guild of America on Tuesday, September 26, 2017

Tags:  dodger day 

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