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Lessons from the Sundance ShortsLab NY 2013

Justin Ferrato — Thu, 18 Jul 2013 15:32:04 +0000

After attending the Sundance Shorts Lab at BAM this past Sunday, I couldn’t help but feel overwhelmed by the sheer number of people wanting to write, direct, or produce a short and submit it to the Sundance Film Fest. For 8,000 submissions, there are only 80 films that are actually accepted into the program. That’s a slim margin for success, and daunting for any filmmaker angling to elevate themselves to the next level. I was reminded throughout the day that just because you don’t get a short into the Sundance Film Fest, it doesn’t mean you aren’t a good filmmaker. Maybe there was a similar film that edged your film out by a fraction, maybe it was simply the luck of the draw. For whatever reason, I stopped thinking about the day as ‘ways to get into Sundance’ and started thinking about it as ‘unique ways to tell an authentic story really well’. Here are a few observations from the day and lessons I learned from the various panels:

Programming Tips

The programmers had a Q&A on how they select projects for Sundance (and a rough outline of how other festivals select films). Ultimately, it comes down to how they can group films together: theme, genre, etc. They look for similarities that help them assess what type of slate they have overall. From there, they choose films based on how they’re grouped. Even if someone else has made a short film similar to yours, was the story told as “interestingly” as yours? At the end of the day, the programmers themselves always ask the same question: How did the short film affect the viewer? Regardless of production value, concept, plot, theme, or acting, they will always think back to how the film affected them emotionally. I thought this was a valuable lesson for filmmakers, since they should consider their audience pragmatically throughout the writing/production process. Before spending time and money in production, it might be a good idea to think about how an audience would react to your film while it’s still in the early story development stages.

Story Development

Both filmmakers Craig Zobel (Compliance) and Howard Gertler (How to Survive a Plague) had refreshing perspectives on story development that most screenwriting books don’t really offer. Craig explained how he discovered his story for� Compliance and The Great World of Sound. When writing, he taped one crucial question to his keyboard and referred to it constantly to keep himself focused:“What bigger question are you asking with the film?” He said that this was his biggest guiding principle. He said that this question should supersede plot and link more directly to theme, but never be stated outright. Rather, it’s best dramatized throughout the story.

Another interesting nugget Craig shared: while researching for a story, he noticed that he would often have a very specific reaction to something he found. He would then evaluate how he reacted and analyze why he reacted that way. When Craig was researching for Compliance, he noticed he shrugged off the victims of a fast food restaurant for sexual assault as ‘naïve’ and that most people wouldn’t do something like that. After reflecting, he wondered why he responded so defensively and why his initial response was to dismiss these people. He began to think about how any person might get caught up in a situation like that and suddenly he was on his way.

Working with Actors

Craig Zobel explained that actors always need to have a purpose in their scene, otherwise things slow down or the actor loses focus in the scene. This is a bit of a textbook point but still important- always give actors a specific goal to reach in the scene to help them focus and stay in the moment. It gives them a purpose beyond stating the lines.

Also, it’s always helpful to give actors a couple different goals to vary performances. Sure, you could get 8-10 takes of the same performance, but that won’t give you much to work with in the edit room. It’s refreshing for the actors and helpful for you to have different emotional ranges from the actors to color your story.

In the ‘Working with Actors’ panel, Alex Karpovsky shared that as both an actor and director, the most alienating thing a director can do is to just leave the actor hanging after a take, or fail to provide any context for the actor in the headspace of the scene. As a director, Karpovsky always has a conversation at the top of the scene with each actor to ‘dial in’ to the context of the scene: What’s at stake? What are the beats of the scene? Where does the scene fall within the greater story? What does each character know? What do they think they know? What have been the dynamics of each of the characters with respect to one another? The more context you can give an actor, the more they can use in each take.

Collaboration

In a panel with Producer Mike Ryan (Old Joy, Palindromes, The Comedy), DP Jody Lee-Lipes (Wild Combination, Tiny Furniture, Martha Marcy May Marlene) and Editor Melody London (Down By Lawy, Mystery Train, New York I Love You) they all echoed the same sentiment- when working with collaborators it’s important to set up a code or manifesto for the project that gets everyone on the same page right away. It’s essential that you identify what film you’re trying to make, and then establish that all your key collaborators are on board. If your editor is trying to turn your campy horror Zombie film into an ironic statement of post-recession malaise, it might be good to discuss before collaborating with them. Talking to your collaborators about your goals and purposes for the film, even if they are emotional, is a good way to help your collaborators relate to the story.

In the panel with filmmakers Cutter Hodierne (Fishing Without Nets), Rashaad Ernesto Green (Gun Hill Road), and Eliza Hittman (It Felt Like Love), the topic of discussion was ‘navigating the business end of your film from short to feature’. One point that all the filmmakers made was how important it is that you not wait to get your film made. Set a date, and then tell collaborators, investors, distributors, etc that you’re making a movie on this date, and that they should either get on board or get out of the way. They all stated that if they had had discussions with potential investors and said something along the lines of ‘I have a script, but I’m just waiting on financing’, they likely wouldn’t have gotten the same enthusiasm.

If you do end up being one of the lucky ones getting accepted into Sundance, be prepared to have an upcoming project. It’s a total waste if you get to the fest, get meetings with a powerful distributor and have nothing on slate.

Of course, this is a top line digest of some of the points discussed at the Sundance Shorts Lab. Hopefully it proved a little useful information about the day. For a full day event, there’s just too much to fit into one blog post. As always, any workshop or conference is always a fantastic way to learn from filmmakers who have been lucky enough to find their film a place in the world. Sign up for IFP’s newsletter for a weekly digest on upcoming events in the film world and how you can stay connected.

Trouble from People Portrayed in Your Work, Part II

Mark Litwak — Tue, 25 Jun 2013 16:19:49 +0000

The right of publicity is the right of individuals to control the use of their name and likeness in a commercial setting. You cannot place an image of another person on your brand of pickles without their permission. Celebrities can earn large fees from this right by endorsing products. Some celebrities earn more money from licensing their name or image than they can earn from their career. According to Forbes magazine, Tiger Woods made in excess of “$100 million in annual off-the-course earnings” in 2009, compared to $21 million on the golf course.

The right of publicity is similar to the appropriation form of invasion of privacy. The principal difference is that the right of publicity seeks to ensure that a person is compensated for the commercial value of his name or likeness, while the right of privacy seeks to remedy any hurt feelings or embarrassment that a person may suffer from such publicity.

Celebrities may have difficulty making an invasion of their privacy claim because they necessarily sacrifice some solitude and privacy by virtue of their fame. How can a celebrity claim that the unauthorized use of his likeness on a product embarrassed and humiliated him while at the same time that person willingly appears in television commercials? By thrusting themselves into the public eye, celebrities waive much of their right of privacy. On the other hand, celebrities have an especially valuable property right in their names and likenesses. Most courts have held that the Right of Publicity extends to everyone, not just celebrities. But clearly the right is most valuable for celebrities because they can license their rights for large sums.

Under either a publicity or privacy theory, subjects can recover for some unauthorized uses of their names and likenesses. A problem arises, however, when one person’s publicity/privacy rights come in conflict with another person’s rights under the First Amendment. Suppose a newspaper publisher wants to place a picture of Cher on the front page of its paper because she has done something newsworthy. Is her permission needed? The answer is no.

Although Cher’s name and likeness is portrayed in the newspaper, this “product” is also a form of “protected expression.” Products such as books, movies and plays are modes of expression protected under the United States constitution. The First Amendment allows journalists to write about others without their consent. Otherwise, subjects could prevent any critical reporting of their activities. When one person’s right of publicity conflicts with another person’s rights of free speech under the First Amendment, the latter often but not always prevails.

However, when the likeness of Elvis Presley is used on an ashtray, there is no expression deserving protection. The seller of this product is not making a statement or expressing an opinion or view about Elvis. He is simply trying to make money by exploiting the name and likeness of Elvis. Since there are no competing First Amendment concerns, the right of publicity in this instance might well preclude the unauthorized use of Elvis’s likeness. In summary, the law draws a distinction between products that contain protected expression and those that do not.

The right of publicity is derived from state law and these laws vary significantly. In some states the legislature has enacted statutes that specifically address the scope and duration of the right. Other states rely on the common law, also known the law of precedent that arises from case decisions made by judges.

Courts have struggled with the issue of whether the right of publicity descends to a person’s heirs. In other words, when a celebrity dies, does his estate inherit his right of publicity? Can the estate continue to control the use of the celebrity’s name or likeness, or can anyone use it without permission?

Some courts have held that the right of publicity is a personal right that does not descend. These courts consider this right similar to the right of privacy and the right to protect one’s reputation (defamation). When a person dies, heirs don’t inherit these rights. Suppose, for instance, that you were a direct descendent of Abraham Lincoln. An unscrupulous writer publishes a biography falsely claiming that Abe Lincoln was a child molester. You couldn’t sue for defamation or invasion of privacy because you did not inherit these rights from your ancestor. Perhaps this is why many scandalous biographies are not published until the subject dies.

In California prior to 1984, courts held that the right of publicity was personal and was not inherited by one’s heirs. In 1984, however, the California legislature changed the law. Civil Code Section 3344.1 provides that the right of publicity descends for products, merchandise and goods, but does not descend for books, plays, television and movies. The statute was recently amended to extend protection so that heirs can enforce this right for up to 70 years after the death of a celebrity. In California, a form available on the Secretary of State’s website is required to register a claim as successor-in-interest for the right of publicity. Code Section 3344.1 requires any person claiming to be successor-in-interest to the rights of a deceased personality register their claim with the Secretary of State’s Office. Other states have their own registration requirements.

A similar statute, California Civil Code Section 3344 prohibits the unauthorized use of the name and likeness of living individuals. Both statutes provide exceptions for uses in the news and public affairs arenas in an attempt to balance First Amendment rights against rights of publicity and privacy.

An interesting case is Hicks v. Casablanca Records, which concerned a movie made by Casablanca Records called “Agatha.” The movie was about the well-known mystery writer Agatha Christie. The story was a fictionalized account of the 11-day disappearance of Christie in 1926. The film portrayed her as an emotionally unstable woman engaged in a sinister plot to murder her husband’s mistress. An heir to Christie’s estate brought suit to enjoin Casablanca from distributing the movie, alleging infringement of Agatha Christie’s right of publicity.

The Christie estate lost the suit. The court found that Casablanca’s First Amendment rights outweighed the estate’s right to control the name and likeness of Christie. Because of this case and other similar rulings, we can conclude that a person’s right of publicity does not prevent others from including a person’s name, features or biography in a book, motion picture, news story.

However, the First Amendment rights of journalists and filmmakers don’t always prevail. The United States Supreme Court weighed the Right of Publicity against first amendment rights in the case of Zacchini v. Scripps-Howard Broadcasting. Zacchini also known as the “human cannonball,” was shot from cannon into a net 200 feet away at a county fair. At one performance, a local news reporter videotaped his entire act and broadcast it as part of the local news without his consent. He objected and filed suit. The court held in his favor explaining that the value of his act depended on the public’s desire to witness the event, so televising it detracted from the demand of people willing to pay to see his act.

The Court recognized Zacchini’s Right of Publicity and rejected the news broadcaster’s First and Fourteenth Amendment defenses. In so doing, the Court noted that the decision was not merely to ensure compensation for the performer; rather, it was to provide “an economic incentive for him to make the investment required to produce a performance of interest to the public.” So it cannot be said that the First Amendment rights of journalists are always paramount to subjects right of publicity.

UNFAIR COMPETITION

The law of unfair competition prevents a person, for instance, from establishing a movie studio and calling it “Paramount Pictures” if he/she is not affiliated with the well-known company. A person would also be barred from displaying the Paramount logo or using any other mark that might mislead or confuse consumers by leading them to believe that films are genuine Paramount movies when they are not.

The names of persons and businesses may become associated in the public mind with a supplier of products or services. The name can thus acquire a secondary meaning, and the supplier can acquire trademark rights even if he does not register the name as a trademark. In Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., the defendant exhibited a pornographic movie, “Debbie Does Dallas,” which portrayed a “Texas Cowgirl” engaged in sex acts. The character wears a uniform strikingly similar to that worn by the Dallas Cowboys Cheerleaders. Ads for the movie showed the character in the uniform and included such captions as “Starring Ex-Dallas Cowgirl Cheerleader Bambi Woods.”

The Dallas Cowboy Cheerleaders brought suit alleging that they had a trademark in the particular combination of colors and the design of their uniforms. The court agreed and issued an injunction against further distribution of the film. Filmmakers should take note that if they portray people or products in a way that is likely to confuse the public as to the origin of a product, they may be liable for unfair competition.

Transmedia: A Filmmakers Foe or Ally?

Julian Cheevers — Thu, 20 Jun 2013 17:43:54 +0000

There’s increasingly a lot of talk about Transmedia storytelling; the idea of taking pieces of a story and systematically putting them across different media touch points for the purposes of creating a unified and coordinated entertainment experience. But why is Transmedia storytelling important for independent filmmakers in particular?

The digital revolution has helped shift the power of decision when it comes to what content people get to consume. No longer do you have to leave your seat and walk to the shops to choose from the latest big release Hollywood DVDs, you can now access over a 100 million videos online through any number of devices from the comfort of your toilet. And I think probably a fair few of us do.

Any niche idea can find its way to any niche audience. The Internet means a storyteller and story consumer can have a direct relationship. This is the essence of independence and it’s a major shift for any independent artist.

But there’s a catch, of course. What you get for free in terms of digital platforms, is available to all; so you have to work hard to earn your audience’s attention. Your story is not just competing with other independent films, it’s competing with an Internet full of distractions. And with small promotional budgets to support your independent film, you need to make everything work harder.

Transmedia storytelling is a valuable approach because it wraps your story around the shoulders of your audience and hooks them in whenever and wherever you come into contact with them. But to do this means broadening your role from maker of film to Transmedia storyteller, to think of your story as something living beyond a locked screen and a single timeframe.

A GREAT STORY IS ALWAYS THE ROOT CAUSE
The good news: The most important factor to success starts with a great story. A strong emotional narrative, whether it induces laughter, tears or fears, is at the heart of any connection, conversation or share—so nothing changes there.

TRANSMEDIA SHOULDN’T FEEL LIKE MARKETING, IT SHOULD FEEL LIKE GOOD STORYTELLING
Transmedia has an element of marketing to it at times, but when done well it’s simply good storytelling, an extension of the film experience. The more it’s thought about as integral to the film, the less it will feel like a promotional afterthought. And as the creative force behind their film, the filmmaker is the best person to create it.

But using Transmedia storytelling to extend your reach doesn’t need to be complex or expensive necessarily. You could do something as simple as The Blair Witch Project, starting the story the moment your audience comes into contact with it.

THERE ARE OPPORTUNITIES WITH YOUR AUDIENCE BEYOND THE THEATER
Re-consider the whole notion of your film as having to just be watched at the theater or TV, to one that can be experienced on your computer.

It gives you the opportunity to make your film more personal. To make it feel like you’re talking directly to your audience one on one.

Maybe even think about allowing your audience to collaborate with part of your project. Understandably, the thought of a stranger touching your craft is often met with dread, but it’s up to your creativity to do it in a way that is powerful. It might not be so bad, the audience that falls in love with your project probably aligns with your tastes…

You could experiment with interactions to enable your audience to “insomnia” live through your story first hand.

Or even a location-based experience that stirs the imagination so much that everyone can’t help but talk about it.

Transmedia is still in it’s infancy, but the definition of it that I’d like to go with is that it takes your story beyond the confinements of the traditional film to earn a relationship and build an audience that has a million options. Depending on what you do, you may need to collaborate with people with different skill sets to make it happen, but it starts with a shift in mindset about what your creative canvas is. I believe that the independent filmmakers who do so will find the most rewarding creative freedom.

Section 409A and Deferred Compensation Paid to Independent Filmmakers

Moulton Moore — Fri, 31 May 2013 16:25:18 +0000

Legal issues may be the most remote worry that keeps independent filmmakers up at night. There are often more tangible and immediate stresses: finding financing, getting film festival screenings, building positive publicity and momentum for a film, and securing distribution arrangements. For filmmakers who have a few minutes to polish their legal acumen, however, Section 409A of the Internal Revenue Code provides plenty to talk about.

What is Section 409A and Why Does it Matter to Filmmakers? Section 409A provides strict rules regarding the timing of payment of “deferred compensation,” which is often (and at times unknowingly) granted or provided to filmmakers and other talent in the filmmaking world in contracts with studios, networks and other content distributors. If violated, Section 409A imposes draconian tax liabilities on filmmakers who are cash-basis taxpayers, ranging from 20% to over 40% of the compensation at issue, depending on the state of residence of the filmmaker-taxpayer.

Background to Section 409A. Congress enacted Section 409A in 2004 primarily to penalize abusive tax-deferral practices employed by companies and their executives with respect to deferred compensation plans and funding arrangements. Such tax-deferral practices were publicly scrutinized in the wake of the Enron scandal. As implemented by the Treasury Department, however, Section 409A has an extremely broad reach and applies not only to corporate America’s compensation practices but also to compensation arrangements that are prevalent in the entertainment industry, including for filmmakers.

Section 409A Applies to Deferred Compensation. Section 409A’s strict payment-timing rules apply only to “deferred compensation.” What is deferred compensation? Deferred compensation generally means any taxable amount to which a filmmaker has a legally binding (i.e., contractual) right in a taxable year and that could be paid to the filmmaker in a later taxable year. As a simple example, if a filmmaker enters into a distribution contract in 2013 that provides for a back-end contingent payment right that could materialize in 2014 or later, the filmmaker’s contingent payment right could constitute deferred compensation under Section 409A.

Importantly, however, compensation is generally not considered deferred compensation if the legally binding right to the compensation first “vests” in a taxable year and the compensation must be paid no later than two and one-half (2½) months after the end of such taxable year (i.e., generally by March 15 of the following year). This type of compensation is commonly referred to as a “short-term deferral.” Continuing the above example, if the filmmaker’s back-end contingent payment right must contractually be paid to the filmmaker under all circumstances by no later than March 15, 2014, the filmmaker’s contingent payment right would constitute a short-term deferral under Section 409A and would therefore be exempt from Section 409A’s complicated payment-timing rules, which apply only to deferred compensation.

So, if compensation vests in one year and is paid by March 15 of the following year, it is a short-term deferral and does not constitute deferred compensation under Section 409A. When is compensation deemed to have “vested” under Section 409A? Compensation vests when it is no longer subject to a “substantial risk of forfeiture.” In layman’s terms, this means that compensation remains unvested so long as the following is true: (1) the filmmaker has to continue to provide substantial services through a future date to earn the compensation, or the filmmaker’s right to receive the compensation is subject to the attainment of a performance-based vesting condition; and (2) there is a substantial probability that the compensation will in fact not be earned by the filmmaker.

Let’s take a real-life example to consider whether compensation is “vested” and whether the compensation could be subject to Section 409A. An in-demand independent filmmaker’s agent successfully negotiates for the filmmaker an “adjusted gross receipts” contingent payment right with respect to a film produced and directed by the filmmaker and picked up by a major distributor. Given that the filmmaker has the right to a percentage of revenues generated by the film (as adjusted to deduct certain expenses specified in the filmmaker’s contract with the distributor), when is the filmmaker deemed to have vested in the right to payment? When the contract with the distributor is signed, when the film’s negative is produced, when the film is released theatrically (or in another window), or when all expenses that can contractually be deducted from revenues before the filmmaker’s participation begins are in fact deducted against revenues? And, in the much more common situation of a filmmaker whose agent negotiates a “net profits” participation contingent payment right, is the payment right vested only when net profits are in fact generated under the contract with the distributor (if not earlier upon one of the events listed above)? Further, if net profits are in fact generated in a particular year, triggering a payment right under the contract, can the payment right suddenly become unvested again if distribution and other costs for the film in a later year are greater than ancillary and other revenues generated by the film in such year, given that expenses and costs in the real world are dynamic?

Answering many of the above questions is difficult given the scant guidance from the Treasury Department and the differing views among practitioners. The answers to the above questions are critical, however: once a payment right vests, if the payment is not structured as a “short-term deferral” (i.e., if it not contractually provided to be paid by March 15 of the year following the year in which the payment right vests), the payment generally constitutes deferred compensation under Section 409A.

What does this mean for filmmakers? Significant tax penalties can be imposed against a filmmaker if Section 409A’s payment-timing rules are violated on the face of the contract or in operation based on when payment is actually made. Such penalty taxes include (1) 20% of all deferred compensation payable to the filmmaker, (2) premium interest penalties and (3) for filmmakers subject to California income taxes, an additional 20% of all deferred compensation payable to the filmmaker.

To illustrate further, here is another example. An independent filmmaker who is a California tax resident enters into a service contract with a studio affiliate in 2013 to develop and direct a film. Pursuant to the contract, the filmmaker has a legally binding right to a director fee paid in installments (perhaps under a 20/60/10/10 formula) plus a percentage of the “net profits” (if any) generated by the film. Under the contract, net profits are accounted for annually and are payable “as soon as reasonably practicable” after the end of the calendar year in which net profits are generated. The film is released in 2014, performs better than expected in the theatrical exhibition window and generates net profits in each of 2014 and 2015 primarily because of revenues generated in subsequent distribution windows (e.g., video/DVD, pay-per-view, VOD, SVOD and cable). The filmmaker’s share of net profits for 2015 ($1,000,000) is calculated after the studio’s 2015 financial books are closed and the filmmaker’s business manager exercises an accounting right provided under the contract. The filmmaker is paid $1,000,000 in April 2016. Under these facts, the following penalty taxes – in addition to federal and California income taxes – could be levied against the filmmaker for violating Section 409A: (1) a federal Section 409A tax of 20% ($200,000); (2) a California Section 409A tax of 20% ($200,000); and (3) additional premium interest penalties. Out of the $1,000,000 earned by the filmmaker, and assuming federal and California income taxes equal $300,000, the filmmaker would take home less than $300,000—just enough to pay her agent, manager, lawyers and accountants!

Navigating Section 409A. As the above examples illustrate, violations of Section 409A can have real financial consequences for filmmakers. In many compensation negotiations outside the entertainment industry, companies can more easily structure compensation arrangements to be exempt from Section 409A and avoid Section 409A’s tax penalties. In the entertainment industry, however, structuring compensation packages for talent to be exempt from or to comply with Section 409A is more difficult because of the underlying business goals of studios, networks and other content distributors, as well as because of the nature of traditional entertainment industry compensation arrangements and the service relationship between talent and studios, networks and other content distributors. With the assistance of experienced compensation attorneys, many entertainment industry compensation arrangements can be structured to be exempt from or to comply with Section 409A. However, for filmmakers (and their agents and managers), navigating a compensation negotiation without thoughtful analysis and planning by an experienced compensation attorney could ultimately prove costly.

Written by the Partners of Moulton | Moore LLC:

Tim Moore

Tim Moore’s practice concentrates on entertainment and appurtenant corporate and executive compensation matters, including the representation of entertainment industry and creative professionals, media- and entertainment-related businesses and corporate executives.

Prior to founding Moulton | Moore _LLP in February 2013, Tim practiced executive compensation law at Wachtell, Lipton, Rosen & Katz in New York, New York and at Skadden, Arps, Slate, Meagher & Flom LLP in Los Angeles, California, with a particular emphasis on structuring compensation arrangements for executives and companies in transactional contexts.

Tim has represented film producers, animators, sports and media agencies, owners of start-ups and entertainment-related businesses, creative professionals in the entertainment industry and,in various merger-and-acquisition transactions,target and acquiring companies and their executives.

Mike Moulton

Mike Moulton’s practice concentrates on entertainment and appurtenant corporate matters, including the representation of entertainment industry and creative professionals, media- and entertainment-related businesses and corporate executives.

Prior to founding Moulton | Moore LLP in February 2013, Mike practiced corporate law at Skadden, Arps, Slate, Meagher & Flom LLP, with a particular emphasis on mergers, acquisitions and corporate governance issues.

Mike has represented film producers, animators, sports and media agencies,owners of start-ups and entertainment-related businesses, creative professionals in the entertainment industryand both target and acquiring companies in various merger-and-acquisition transactions. Mike has also represented studios, event arenas and individual investors in connection with joint ventures, mergers and acquisitions and assessments of corporate strategic alternatives.

IFP DOC LAB BROKE MY EYES OPEN

Sara Dosa — Wed, 29 May 2013 15:23:42 +0000

In early February, my small edit team and I relocated from my base in San Francisco to the fog-bound woods along the Mendocino coast. We were tasked with bringing our loose assembly of my doc-in-progress – which, at the time, clocked in at a dense and daunting 11-hours– down to a digestible rough cut. It was a challenge I had dreamed about for years. And, in my mind, there was no better place to accomplish this than isolated in the idyllic Northern California wilderness. I had hoped to remove ourselves from the world, to insulate us from all distractions, immersing ourselves fully within our footage. Our doc (tentatively titled ROOTS AND WEBS), which is about two former soldiers who find a new life and family in Oregon’s wild mushroom hunting trade, is grounded in the forest as a place of refuge. So, I had also hoped that the natural majesty around us would work its way into the film. After two months of laboriously editing from our own woodland haven, we proved successful: we had a cut just under two hours.

But then, came the point when we had to actually show it to people.

After my protected little post-production bubble, the prospect of others watching it was terrifying. I have worked in documentary film for eight years now and seen many a rough cut. However, this was my first time directing. Anxiety welled up inside me each time I thought about new eyes on our film – no matter how much I loved our characters, themes and storylines. I found myself zealously telling filmmaker friends offering to give feedback, “I’ll show you the next cut. Not this one. Give me one week. Or five.” I never thought I would feel ready.

My team and I, though, had the good fortune of being accepted to IFP’s Doc Lab. This meant that there was a firm deadline when we had to show the film. So, last week, I found myself in the throngs of New York City, worlds away from Mendocino. I was nervous – no one else outside of our internal team still had seen the cut. And, true to form, I was editing away until the very last second, attempting to sneak our most updated version into IFP’s queue. The day came when we had to watch it.

So we watched it. And it was over. And all sorts of realizations rushed forth.

Years ago, I heard the phrase “break your eyes open” in regard to the creative process. I don’t remember specifically where it came from (a quick Google search reveals it’s the song title by Blue Angel. This song was not my initial source of inspiration…), though those words always stuck with me. To me, the phrase referenced the ability to shatter a vision that first appeared salient and cohesive to instead give way to a clearer means of seeing one’s own art. This was a practice I had myself hoped to implement, especially after two months of working within relative isolation. However, the concrete steps towards this seemed elusive at best.

But, at the IFP Lab, I felt as though this had actually happened: my eyes got broken open and I began to comprehend my film in a new light.Through the feedback sessions and mentorship the Lab provided, I was dislodged out of my protective bubble and forced to wrestle with the essential questions that lay outside of our internal team.

See, the world of my film – like many documentaries – is composed of culturally specific codes, shifting meanings, esoteric rules, histories and storied landscapes. In my rough cut, I had at once tried to portray this mess of complexity but simultaneously neglected the most basic of information. I attempted to illustrate: the economy of the mushroom trade, the political history of Southeast Asia (where the majority of our mushroom hunters come from), the racial politics of the Oregon woods, the life cycle of the matsutake mushroom, and more, all the while pretending to be a “character-driven” film with a narrative arc. But, I had left out the key context that would actually orient viewers in the Mushroom Camp world. I had wanted to tell it all, yet withheld so much. I was so inside of my own head (which, I know is essential for a period of time) that I had not yet effectively considered how to make the film intelligible to outsiders.

The IFP team, as well as the seasoned producers and editor mentors they recruit, helped me see to this massive issue (and, of course many other things) at exactly the right point in time. And, they did so within a supportive, creatively nurturing environment. They pulled me out of my self-imposed isolation and introduced me to a community of experts, as well as my own first-time director peers. The Labs helped build pathways out of my little haven in the woods – and out of my own mind – towards new comrades all over the country. I now feel much better equipped to distill the film down to its most potent stories and essential meanings; to find the ways to communicate both complexity and clarity of narrative, all the while sticking to my proverbial artistic guns. We have challenges ahead of us as we continue post, but I am armed with a reinvigorated means to see the film –with new eyes now broken open.

The trouble from people portrayed in your work

Mark Litwak — Mon, 20 May 2013 19:16:49 +0000

As an entertainment attorney, I am often called upon to assist writers who have gotten themselves into trouble because they do not understand how their work may infringe the rights of others. A writer who learns the fine points of the law through trial and error is receiving an expensive education. Here is a brief explanation of how to protect yourself.

I. FICTIONAL CHARACTERS

If your script or film contains fictional characters — characters from your imagination — you generally do not need to obtain any permissions or releases. However, if there is a chance that the public could mistake your imaginary characters for real people, you could be liable if you have thereby infringed their rights.

You can protect yourself by making sure your fictional characters cannot be mistaken for real people. Give characters unusual names that no living individual would have. Check the phone book to see if any people with your character’s name reside at the location portrayed in your story. If there is a person in that community with the same name or a similar one, consider changing the locale or setting the story in a fictional locale. Add a disclaimer at the beginning of the film stating that any resemblance to persons living or dead is purely coincidental.

If fictional characters are drawn from another’s literary work, you might be infringing that author’s copyright unless the work has gone into the public domain, or your use is considered a fair use. You may borrow personality traits, so long as you do not infringe another’s copyright. The first author to create a hard-boiled private eye, for example, cannot prevent other authors from creating their own hard-boiled private eyes.

Characters that have a visual component, such as comic book characters, are more likely to be protected under copyright law. Moreover, if you borrow the name of someone else’s character you may be infringing trademark rights they have in the character, and engaging in unfair competition.

As explained later, in some circumstances you may have the right to portray real-life individuals without their permission, especially if those persons are public figures or public officials.

II. FICTIONAL CHARACTERS BASED ON REAL INDIVIDUALS

A writer’s imagination necessarily draws upon one’s life experiences and people the writer has met. A writer can freely borrow ideas, historical facts, personality traits of characters, and themes from other copyrighted work without liability. These items are not copyrightable.

If a fictional character is loosely based on a real-life individual, and the public cannot identify the real-life individual from the context in which the fictional character is portrayed, there is little risk of liability. On the other hand, suppose you wrote a novel about the widow of a former American president assassinated in Dallas, and the widow character later marries a Greek shipping tycoon. Although, you have labeled the book a “novel,” said that it is a work of fiction, and given the characters fictitious names, readers may nevertheless believe you are writing about Jackie Kennedy. If you defame her, or otherwise invade her rights, she may have a good cause of action against you. You can be liable for defaming an individual even if you do not name her.

An interesting case is Leopold v. Levin. The plaintiff, Nathan Leopold, pled guilty in 1924 to kidnapping and murdering a young boy. Because of the sensational nature of the crime, the case attracted international notoriety, which did not wane over time.

In 1956, Levin, the defendant, wrote a novel entitled Compulsion. The framework for the novel was the Leopold case, although Leopold’s name did not appear in it. The book was described as a fictionalized account of the Leopold murder case. A motion picture based on the book was released with fictitious characters who resembled the actual persons from the case. The promotional materials referred to the crime but made it clear that the story was a work of fiction suggested by real-life events. Leopold sued for invasion of privacy. After the novel was published, but before the movie was released, Leopold published his own autobiography.
The court was faced with the issue of whether Leopold, who had fostered continued public attention after having engaged in an activity placing him in the public eye, had a right of privacy in a fictitious account of that activity, or in the use of his name in promoting such an account. The court found against Leopold, stating that books, magazines, and motion pictures are forms of public expression protected by the First Amendment. The court noted that while the book and movie were “suggested” by Leopold’s crime, they were evidently fictional works. The novel and film depicted portions of Leopold’s life that he had caused to be placed in public view. The court did not consider the fictionalized aspects highly offensive, which is the standard for determining invasion of privacy.

The court noted that a documentary account of the Leopold case would be constitutionally protected. Also, an entirely fictional work inspired by the case would be protected if matters such as locale were changed and the plaintiff was not identified.

III. PORTRAYING IDENTIFIABLE PERSONS

A person’s right to privacy has to be balanced against other people’s rights under the First Amendment. If Kitty Kelly wants to write an unauthorized biography about Frank Sinatra, she can do so without his permission. Likewise, Mike Wallace and his “60 Minutes” camera crew can film others without their permission. However, journalists’ rights are not absolute. If Mike Wallace placed a hidden camera in a department store dressing room, he would be liable for damages for invading the privacy of customers.

Determining whether a filmmaker has infringed upon the rights of a subject who has not consented to be portrayed can be a complex matter. The status of the subject — whether he is a public figure or public official, and whether he is alive or deceased — may be important. Whether the activities portrayed are newsworthy may also be decisive. And, the manner in which a person’s likeness is used — whether in a film or on a coffee cup — is relevant as well.
The most likely grounds upon which to sue for an unauthorized portrayal are defamation, invasion of privacy, right of publicity, and unfair competition. Let us consider each in turn.

A. DEFAMATION

Defamation is a communication that harms the reputation of another so as to lower him in the opinion of the community or to deter third persons from associating or dealing with him. For example, those communications that expose another to hatred, ridicule, or contempt, or reflect unfavorably upon one’s personal morality or integrity are defamatory. One who is defamed may suffer embarrassment and humiliation, as well as economic damages, such as the loss of a job or the ability to earn a living.

The law of defamation can be very confusing because the common law rules that have developed over the centuries are subject to constitutional limitations. To determine the current law, one must read a state’s defamation laws in light of various constitutional principles. For example, recent United States Supreme Court decisions have imposed significant limitations on the ability of public officials and public figures to win defamation actions. If a state’s law is inconsistent with a constitutional principle, the law is invalid.

There are a number of defenses and privileges in defamation law. Therefore, in some circumstances a person can publish an otherwise defamatory remark with impunity. Why? Protecting a person’s reputation is not the only value we cherish in a democratic society. When the right to protect a reputation conflicts with a more important right, the defamed person may be denied a recovery for the harm suffered.

The most important privilege, from a filmmaker’s point of view, is truth. If your remarks hurt someone’s reputation, but your remarks are true, you are absolutely privileged. An absolute privilege cannot be lost through bad faith or abuse. So, even if you maliciously defame another person, you will be privileged if the statement is true. Truth is an absolute privilege because our society values truth more than a person’s reputation.

Keep in mind that while truth is an absolute defense, the burden of proving the truth may sometimes fall on you. Thus,if you make a defamatory statement, you should be prepared to prove that it is true — which may not be an easy task.

Another privilege is the conditional common law privilege of fair comment and criticism. This privilege applies to communications about a newsworthy person or event. Conditional privileges may be lost through bad faith or abuse. However, this privilege has been largely superseded by a constitutional privilege applied in the context of statements about public officials or public figures.

Public figures, such as celebrities, or public officials, such as senators, have a much higher burden in order to prevail in a defamation action. They must prove that the defendant acted with “actual malice.” Actual malice is a term of art meaning that the defendant intentionally defamed another or acted with reckless disregard for the truth.

Plaintiffs often find it difficult to prove that a defendant acted with actual malice. That is why few celebrities sue the National Enquirer. To successfully defend itself, the magazine need only show that it acted without actual malice. In other words, the newspaper can come into court and concede that its report was false, defamatory, and the result of sloppy and careless research. But, unless the celebrity can prove that the National Enquirer acted with actual malice, the court must dismiss the case. Mere negligence is not enough to create liability when the subject is a public figure or a public official.

B. INVASION OF PRIVACY

The right of privacy has been defined as the right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity. In other words, it is the right to be left alone.
Similar to defamation, the right of privacy is subject to constitutional restrictions. The news media, for example, is not liable for newsworthy statements that portray another in a false light unless the statements are made with actual malice. Unlike defamation, a cause of action for invasion of privacy does not require an injury to one’s reputation.

Many defenses to defamation also apply to invasion of privacy. Truth, however, is not a defense. Likewise, revealing matters of public record cannot be the basis for an invasion of privacy action. Express and implied consent are valid defenses. If you voluntarily reveal private facts to others you cannot recover for invasion of your privacy.

Privacy actions typically fall into four factual patterns:

1. Intrusion into One’s Private Affairs

This category includes such activities as wiretapping and unreasonable surveillance. The intrusion must be highly offensive. Whether an intrusion is highly offensive depends on the circumstances. Most people would find it offensive to discover a voyeur peering through their bedroom window. On the other hand, a salesman knocking on your front door at dinner time may be obnoxious but his actions would not constitute an invasion of privacy.

2. Public Disclosure of Embarrassing Private Facts

One who gives publicity to a matter concerning the private life of another is subject to liability for invasion of privacy if the matter publicized is highly offensive to a reasonable person, and if the matter is not of legitimate concern to the public, i.e., if the information is not newsworthy.

This type of invasion of privacy occurs, for example, where someone digs up some dirt on another person and publicizes it, but the information is not of legitimate interest to the public.

3. Appropriation

An action for appropriation of another’s name or likeness is similar to an action for invasion of one’s right of publicity. An invasion of privacy action seeks to compensate the plaintiff for the emotional distress, embarrassment, and hurt feelings that may arise from the use of his or her name or likeness. A right of publicity action, on the other hand, seeks to compensate the plaintiff for the commercial value of exploiting his or her name or likeness.

As with the right of publicity, a person cannot always control another’s use of his name or likeness. While you can prevent someone from putting your face on a pancake mix box, you cannot stop Time magazine from putting your face on its cover if you have been involved in something newsworthy.

4. False Light

Publicity that places a plaintiff in a false light will be actionable if the portrayal is highly offensive. This type of invasion of privacy is similar to defamation, but harm to a reputation is not required. For example, false light invasion of privacy could entail a political dirty trick such as placing the name of a prominent Republican on a list of Democratic contributors. Although, this person’s reputation may not be harmed, he has been shown in a false light.

An interesting false light case is Spahn v. Julian Messner, Inc. Here, Warren Spahn, a well-known baseball player, sued over the publication of an unauthorized biography, alleging that his rights under New York’s misappropriation (privacy) statute had been invaded. In the purported biography, the author took great literary license, dramatizing incidents, inventing conversations, manipulating chronologies, attributing thoughts and feelings to Spahn, and fictionalizing events. The invented material depicted the plaintiff’s childhood, his relationship with his father, the courtship of his wife and important events in their marriage, and his military experience.

The defendant argued that the literary techniques he used were customary for books aimed at young people. The defendant never interviewed Spahn, any members of his family, or any baseball player who knew him. The author’s research was comprised of newspaper and magazine clippings, the veracity of which he rarely confirmed.

The court concluded that the defendant invaded Spahn’s privacy. The New York privacy statute protects a public person from fictionalized publication if the work was published with actual malice. Since the defendant writer invented large portions of the book, he obviously knew his statements were untrue. While Spahn could not prevent publication of an unflattering biography simply because he did not like its contents, this fictitious report masquerading as fact was not protected.

Next blog: THE RIGHT OF PUBLICITY

Self Defense Seminar:
Date: May 21, 2013, New York

This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights, and encouraging the other party to live up to agreements by adding performance milestones, default penalties, and arbitration clauses. This seminar is an all-day class with Mark Litwak. Attorneys may earn CLE credit. Excerpts from Mark’s last seminar in New York on financing films can be viewed at: http://www.ifp.org/resources/dealing-with-the-legal-woes-advice-from-entertainment-attorney-mark-litwak/

Volunteer Lawyers for the Arts presents Mark Litwak’s Self Defense Seminar: http://www.vlany.org/education/self_defense_writers_filmmakers_art_law.php

Mark Litwak is a veteran entertainment attorney and Producer’s Rep based in Beverly Hills, California. He is the author of six books including: Reel Power: The Struggle for Influence and Success in the New Hollywood; Dealmaking in the Film and Television Industry; Contracts for the Film and Television Industry; and Risky Business: Financing and Distributing Independent Film. He is an Adjunct Professor at the USC School of Law and the creator of Entertainment Law Resources website. www.marklitwak.com

Better Film Panels Now

Mynette Louie — Thu, 16 May 2013 15:47:30 +0000

Producer Peter Phok and I speaking on a panel at IFP’s Filmmaker Conference.

In the year and a half since Brian Newman wrote his very apt and memorable post, “Killing the Film Fest Panel,” panels haven’t improved much. In that time, I’ve spoken on or moderated over a dozen panels, and it seems that panel organizers haven’t really taken Brian’s suggestions to heart. The majority of film panels remain as excruciatingly boring and useless as ever.

So, let’s try a different tack: I propose that we panelists and moderators step up our game and give the (sometimes paying) audiences a better panel. Here’s how:

1. Be succint. This is the golden rule of panel-speaking. Way too often, I feel like I’m being held hostage by a long-winded moderator or panelist. I see the eyelids of audience members flitting with sleep as the Run-D.M.C. lyrics, “You talk too much, you never shut up,” loop in my head. Speakers (and everyone else for that matter) should learn how to say more with less words. Time on panels and time in life is limited, so please stop wasting it.

2. Stay on topic. It’s OK to go off on a tangent once in a while if it’s relevant and instructive, but people came to hear you based on the topic that was advertised. So do your best to keep reminding yourself what your panel is about, and what key questions the audience expects you to answer.

3. Know your audience. Tailor what you say to who’s in the audience–directors vs. producers vs. press vs. laypeople, etc.–and the level of their film knowledge. I always like to poll the audience at the start of each panel to find out who’s in it. Also, ask the panel organizer or festival programmer about the audience composition.

4. Be specific & universal at the same time. Your expertise is based primarily on your own particular experiences, so it’s good to offer specific anecdotes, but only if they can be applied broadly. Don’t be an obvious shill for your specific agenda and interests–always frame them in terms of how the audience might apply them to their own experiences. However, be careful not to go to the other extreme and start speaking in vague platitudes. It’s alarming how many mantra-like tweets emerge from panels–it’s just a stupid panel, not an evangelical mass. And remember: nobody knows anything anyway.

5. Be conversational. Don’t talk at people, talk with people. The most interesting panels are interactive. I love engaging in genuine conversations with my co-panelists or audience members. To me, dialogues are almost always more compelling and instructive than monologues.

6. Be flexible & organic. This relates to the preceding point. If you are too stubborn about making certain points, or too rigid in your delivery, people will get bored. Like in a film production, you must allow for “happy accidents,” so listen to what your co-panelists are saying and react to them.

7. Be honest & real. Audiences aren’t stupid; they can tell when you’re being phony. Also, share as much insider info and data as you can without violating your confidentiality clauses or threatening your own livelihood.

8. Don’t be boring. You are on a stage with a mic in front of a captive audience. Say something provocative or crack a joke every now and then!

9. Moderators: Don’t be afraid to cut people off. This one is just for the moderators. Don’t be afraid of reminding panelists how much time they have left or cutting them off and bringing them back down to earth. You guys are the “ADs” of panels. It’s your job to keep things moving and on track!

10. Audiences: Don’t pitch your own projects in the Q&A. OK, this one’s a postscript, but I gotta say it because this is such a common problem. I’m sure your project is very interesting, but no one came to that panel to hear about it. So please keep it to yourself, and just ask your question–which will be broadly applicable and succinct, of course!

2013 Doc Labs is Now!

Rose Vincelli Gustine — Wed, 15 May 2013 18:18:11 +0000

I’m writing to you now from a screening room in TriBeCa, where we are in the throes of the 2013 Documentary Labs! The Labs are easily my favorite thing to do at IFP, so even though I haven’t seen the sun in hours, hiding here, its a good place to be. Monday, we shared the titles with you (press release here) and we watched samples of each as a Labs group. What a joy to see a bit of all the films together! As programmers, we choose films somewhat individually. Instead of filling slots for an audience, as a festival does, we tend to answer ‘which filmmakers and projects do we think can best gain from the Labs?’

Such talent in this year’s class! And best of all, unique perspective. Each filmmaker seems to be taking a topic we thought we knew – food, family, crime, war, identity, youth, the arts – and giving it a very personal spin, reinvigorating the discussion.

So, in this, our 9th year of the Labs, it is really exciting to see this class work together, and to help them scheme on launching their films in the best way. I always say this is the ‘I have a great film, wtf do I do with it?!’ program. Yes, we can, and should, dream for the A-list festival premiere, the mini-major distributor and national television broadcast – not to mention the advance that’s large enough to cover deliverables *and* go out to dinner. But barring that rare Golden Ticket, what else is there? Luckily, the answer is LOTS! And we’re lucky to have incredible Lab Leaders in producers Lori Cheatle and Maureen A. Ryan, and direct distribution guru Jon Reiss, and a whole host of savvy industry to help guide our filmmakers thru the minefields – and hopefully a few fields of clover – that independent documentary can be.

Today, we are neck deep in examining all the elements of filmmaking, aside from actually making the film: marketing, distribution, festivals, audience engagement. Generally, what is the state of independent documentary distribution today, and how do these specific films fit into that?

While we’re working hard to fill Lab Fellows’ brains to bursting with all the info, abbreviations (I just learned AVOD and SVOD*), rights, terms, goals and guidelines, I’m grateful for these filmmakers who are continuing to inspire us IFPers with their incredible work, and bold enough to challenge themselves to get it out into the world so you can see it, too.

So, to that, give them some love in return and seek them out! Festival programmers and heads of acquisition, I’m looking at you! Fresh documentary, ripe for the picking, ready for you in 6-12months!

Here are some titles, to whet the appetite– check out the press release for more detail on each.

Approaching the Elephant

Fellows: Amanda Wilder (Director/DP), Jay Craven (Producer). Brooklyn, NY

Bringing Tibet Home

Fellows: Tenzin Tsetan Choklay (Director/ Producer /Writer/DP/Editor); Milica Zec (Editor). Queens, NY

Do I Sound Gay?

Fellows: David Thorpe (Director/Writer); Howard Gertler (Producer). Brooklyn, NY.

Evolution of a Criminal

Fellows: Darius Clark Monroe (Director); Jen Gatien (Producer); Doug Lenox (Editor). Brooklyn, NY.

Farmer Veteran

Fellows: D.L. Anderson (Director/Producer/Editor); Alix Blair (Director/DP); Mikel Barton (Editor). Durham, NC.

In Country

Fellows: Meghan O’Hara (Director/Producer); Mike Attie ((Director/Producer/DP); Lindsay Utz (Editor). San Francisco, CA; Seattle, WA.

Kasamayaki (Made in Kasama)

Fellow: Yuki Kokubo (Director/ Producer/DP/Editor). Brooklyn, NY

The Life and Mind of Mark DeFriest

Fellows: Gabriel London (Director/Writer/DP); Daniel Chalfen (Producer); Nick Clark (Editor). New York, NY

Mateo

Fellows: Aaron Naar (Director/Writer/Producer/DP/Editor); Nicole Vaskell (Editor). Los Angeles, CA

Roots and Webs

Fellows: Sara Dosa (Director); Josh Penn (Producer). Berkeley, CA.

*AVOD – Ad-supported Video on Demand. A la Hulu or You Tube
*SVOD – Subscription Video On Demand. (Netflix, Amazon Prime, HBO Go)

Spring In All Its Various Colors

Robert Profusek — Thu, 09 May 2013 18:48:54 +0000

As the weather turns from a chilly gray to a warm yellow, spring in New York makes me think about a few things – picnics along the High Line, the start of weekend excursions with my dog AND the Tribeca Film Festival. I’ve always loved Tribeca for its documentary films, the identity that it provides downtown New York City, its year-round initiatives that support filmmakers of all styles and its new foray into digital. Tribeca has been in NYC for nearly the same amount of time that I have, and to a degree, I think that its evolution somewhat tracks my own as a creative professional (of course, mine on a much smaller scale).

I am lucky to have Executive Produced two films that premiered this year at Tribeca. Rob Meyer’s BIRDERS GUIDE TO EVERYTHING and Neil Labute’s SOME VELVET MORNING. Previously, I also participated in Tribeca All Access in 2010, and for the first time last year, as an audience member, I was influenced and motivated by many personal anecdotes and insider histories from participants on various panel discussions during the newly christened Interactive Day.

You might ask, great, but what does this all mean?

- The traditional differences between being a film or television or digital producer versus a creative content creator are dissolving. Instead, I see myself more as an entrepreneur and product manager within the creative arts (commercial and otherwise). While sticking to its film festival-centric core, TFI has worked to ensure its relevance within a quickly changing entertainment landscape through programs that include grants and labs, newly developed distribution vehicles as well as an embrace of technology and a dialogue around interactive. Holding on to an old model seems shortsighted and may eventually lead to obsolescence.

- You are your own brand. It’s not just the creatives but also the producers and other supporters who can and should be instrumental in helping guarantee a successful Kickstarter raise, an engaging and growing social media presence or a hybrid distribution program that seeks to engage its core audience … and beyond. To guarantee success in any capacity, I believe it is necessary to build off of current and past platforms, helping redirect audiences and open them up to new creative exploration as opposed to starting anew each and every time at bat.

- I feel one of the most important lessons from this convergence of media type is a democratic philosophy among all creatives and content providers to support each other while navigating the sometimes turbulent waters of creation. Whether formally championing a new project or screenplay or lending a hand with free equipment donations or other services, more now than ever projects can only be successful through a community of supportive and giving individuals who are committed to a greater ideal than their own resume. Nobody can do this on their own and as they say, it takes a village!

Today, I’m engaged in both the traditional film world and the evolving digital entertainment landscape. Based on some of my thoughts above, the similarities and differences between all types of content in terms of how it’s developed, produced, marketed and distributed seem to be more obvious. In my own experience, I’ve seen this reflected in the four recent film projects I’ve produced, the documentary WITHOUT SHEPHERDS (which premiered this year at Slamdance and is currently represented internationally by ro*co), the Tribeca Film Festival premiers of both BIRDERS GUIDE TO EVERYTHING and SOME VELVET MORNING and the IFP Narrative Lab graduate BASTARDS OF YOUNG (still currently in post-production). On the other end of the spectrum, the web-series THE 3 BITS (currently distributed independently),TWENTY FIVE (currently in production) and I AM ECO WARRIOR (currently in post-production) along with two mobile applications (in development) have illuminated the challenges (and again, the similarities) between film and other forms of digital entertainment.

On the similarities front, I’ve noticed the following:

- Good content is where it always begins; story and character development is always king. If you start with a broken screenplay or script, you’re bound for disaster from day one.
- Finding a passionate crew trumps in many cases the accolades of somebody’s resume. Passion, fearlessness and commitment can guarantee success.
- There never is enough money, period. I know, I know.
- You always have to be resourceful with everything from in-kind services, favors and other out-of-the-box thinking that ensures you will reach the finish line.
- Even at 6:00 AM, you never have as much fun professionally as you do when you’re on a set for the first day or even on the 18^th day.
- Don’t be afraid in the edit to let the footage speak to you, regardless of what the written word says. Having a trusting team around you will hopefully guide you in this direction, as well.

On the flip side, some of the differences include:

- Within the short-form digital world, it appears that one is able to pivot creatively or even distribution/marketing wise more easily than on a feature film. While this is not an absolute point, the window for success within the feature world is somewhat more limited, especially when using a festival-based premier strategy.
- Within the new media world, you might be able to get away with a smaller budget and crew, but the experience on set (or in studio) might be more frenetic.
- Even if you decide to distribute on a DIY basis, don’t ignore more traditional distribution avenues, especially as you reach a critical mass.
- There’s arguably more forgiveness within a feature film for a slower start or initial audience apathy than within short-form serial content when capturing the audience’s attention from the get-go is crucial.

So I ask again, what does this mean? I think it means certain truths remain consistent regardless of whatever medium you choose. It also means that the lines between content types and audience viewership are blurring. Television that streams exclusively on the web, films told in episodic formats, mobile applications that emulate game shows but demand live audience engagement all are part of today’s entertainment zeitgeist.

by Robert Profusek

Dealing With the Legal Woes: Advice from Entertainment Attorney Mark Litwak

Justin Ferrato — Wed, 24 Apr 2013 19:05:55 +0000

Veteran Entertainment Attorney Mark Litwak gives valuable legal insight for every filmmaker in a new series of legal videos on IFP’s YouTube Channel and we wanted to share the a few videos to get onto your radar. Litwak has a no nonsense approach to important legal subjects such as intellectual property, copyright, contracts and the big one, distribution.

Here are three must see videos from our Legal Advice playlist on YouTube:

Importance of E&O Insurance:

Litwak briefly speaks of the importance of E&O insurance, what it is, and the significant role it plays in independent film distribution.

Film Markets:

Entertainment Attorney, Litwak describes the atmosphere at AFM (American Film Market), and gives a peek into the mind of a sales agent.

Why Festivals are Important:

Getting your film shown at a notable festival can be a thing of politics, Litwak describes the typical film festival audience and top 3 reasons why, for most independent filmmakers, festivals are important.

For the entire YouTube playlist, you can check them out here.

Gut Renovation: Gentrification in Williamsburg

Hannah Bae — Fri, 19 Apr 2013 17:30:59 +0000

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Gut Renovation premieres at the reRun Gastropub Theater in DUMBO Brooklyn Friday April 19th- Thursday April 25th. For information on tickets, click here.

Su Friedrich’s Gut Renovation focuses on something all New Yorkers can relate to one way or another: gentrification. After living in Williamsburg, Brooklyn for two decades, Su Friedrich and her partner Cathy Quinlan saw their neighborhood turn into a constant stream of condos and construction as their friends, neighbors and small business were pushed out by rent hikes and rezoning plans. Through her anger and curiosity about Williamsburg’s rapid shift, Friedrich filmed the gentrification process for years (since 2005), documenting affluent newcomers as well as residents with roots in the area.

In a Filmmaker Magazine interview, Friedrich discusses audience reactions to her personal ode and requiem to Brooklyn. “I think that if you’re going to speak very strongly on a subject and from a particular vantage point, there are bound to be people who will disagree with you.” A hot topic such as gentrification will undoubtedly get viewers thinking about their own roles in “Condoburg”-type neighborhoods. But Friedrich isn’t the only filmmaker strongly opposing plans that end up hurting residents that built lives in Brooklyn. In this hour-long radio show with Bill DeFasio, Su Friedrich is joined by Kelly Anderson, director of My Brooklyn, a film with similar themes to Gut Renovation. Friedrich and Anderson take different approaches to showing their objections to luxury housing and destruction of communities, but both agree there needs to be solutions to keep small businesses and residents safe from being pushed out.

The filmmaker stated in an interview with The Brooklyn Rail, “I think I recognize my limitations; my concerns as a filmmaker are different than my concerns as a citizen. Though I have been involved in a lot of different activist groups, I never feel like my films are part of that process.” Although Friedrich is well informed about rapid changes Williamsburg has gone through and is still going through, this documentary is meant to be a personal observation on what it means to be a Brooklyn waterfront resident then and now. In an ArtInfo video interview with Friedrich, she delves into business and redevelopment plans in the ‘90s that created the Brooklyn we see now, but what really stands out is her longing for a place where artists and communities can come together without fearing their neighborhood will become unnoticeable. Watch the interview below: