Still from “Brave New Wild”

And no sooner do you get used to the fact that people will watch your private work and have their public opinions about it, good or bad, than you begin the proverbial dog-and-pony show: distribution.  Despite all this internal dialogue, the IFP Distribution session left me hopeful about the process because it empowered us with smart, creative, satisfying options.  If you are about to get to distribution on a film, here are a few things that I thought were worth thinking about:

• No seriously, what is your film festival strategy?

Sure, it’s gotta be really useful if you can premiere your film at a top-tier festival because maybe this will put you on the radar of industry who might make your dreams come true.  But the honest truth is that every year, really wonderful films don’t make it in to the top tier festivals.  Some become wildly successful regardless.  Some films premiere at a top tier festival and disappear without nary a buzz.  So ‘get in to a top tier festival’ should not be the extent of your strategy.  Start considering your film festival run as a bonafide theatrical run where you get to show your film in theaters to audiences across the country (or world).  For many films, it will be the extent of your theatrical distribution, and you might want to harness the press and connections with audiences at festivals to launch your film.  Are you going to sell festival DVDs?  What’s going to be on your website during the fest that people can look at from their smartphones?  Are you going to ask for screening fees? When and how and why?

• You gotta fight for your (Split) Rights.

When you’re making your first film, the hazy distribution ‘plan’ sorta starts out as two imaginary steps: 1) get into the Film Festival of your dreams 2) next thing you know, a deus-ex-machina distributor swoops in and your film is screening nationwide at Big Shot Megaplex 2000.  But in this [rare] traditional model, one distributor gets all your rights for a long, long time.  And because it costs a lot of money for a theatrical run, cross-collateralization means unless you get money upfront, you’re not going to see any.  Not to mention, you don’t have any say in how your film is put out there.

If there’s anything that Jon Reiss (Think Outside the Box Office) won me over on during the Labs, it’s that forgetting about the traditional model and splitting up rights may be the best thing for your film.  When you split your rights up, for example, you can sell your broadcast rights to whatever TV channel you can book, sell your digital rights to a digital aggregator who can get you on iTunes, and then sell DVDs and merch off your website/ via a fulfillment company, etc.  You can tailor strategies that you think will work for your particular film and audience.  A few things to keep in mind when you actually get down to parceling these off:  don’t give rights to an entity that doesn’t have a history of making money off those rights, don’t give exclusivity unless you’re getting paid extra for it, and think about a clawback clause – where you get your rights back if a certain amount of time (6 months, 1 year) has elapsed and a minimum amount hasn’t been earned on those rights. It sounds a little daunting as a filmmaker to go in and negotiate these things, so if you don’t know if you’ll have the chops, hire a lawyer to negotiate for you.

• Consider your own damn theatrical run. 

Creating a month or two tour of one-off special event screenings can turn your film into an amazing theater-going experience.  Use the network you’ve been growing while making your film to get a full house where the audience is engaged, excited, asks questions, talks to people in the film, maybe even dances and drinks a beer with you, and thinks about it all week afterwards.  All the while, spread the word of your film, sell some DVDs, special merch, and promote for your digital release.

Map of future screenings

As Dylan Marchetti from Variance Films pointed out, if you call a theater and let them know that you sold out your last screening, and want to book their theater for a Tuesday night for your next one, odds are they will be interested.    The world is your oyster, as long as you are willing to put in the time and effort.  If you’re trying to move on to your next film as part of your goals or have a rigid work schedule, this probably won’t sound as desirable, but as for my Producer Alex and I, we’re looking forward to packing the ’76 VW van we filmed our doc in, and living the er, dream for a month with the film.  Of course, you often barely break even on a theatrical run like this – but independent film has always been a pretty lousy get-rich-quick scheme to say the least.  At least this way, you can make a film, build an audience, work on the ancillary market, and have some bargaining power when you start on your next film.

My advice: Don’t do it! You want to hire a professional composer, not just any musician and be especially careful with a friend—if it doesn’t work out, you could damage your friendship.   If you don’t know already, composing for film is a true art.  It helps you tell your film’s story. It enhances emotions you are bringing to life. When integrated correctly, this music will compliment your film so much, that you won’t be able to imagine watching it without it! The right composer will likely be your friend by the end of collaborating together, but it’s probably best that he/she is your composer first, and friend second.

Now if you don’t have enough money to call one of the top agencies, (they likely won’t take your call unless you’re offering over 60K, and that would be for one of their “small”, up-and-comers), then there are still great options to find professionals out there. I’ve noticed so many filmmakers scrounging Craigslist for a composer, and that seems like a big waste of time.  One risk-free option is try my service. I created scoreAscore as a platform to connect you with pro composers.  Post your project and say what it’s about. State the price you have budgeted for a composer, and a description of what you want musically (and even post a video of your film for composers to score) and the pool of pros will submit original scores for your consideration. There’s nothing to lose, as each composer is carefully selected.

If this doesn’t appeal to you, find other composer agents, like myself. I am happy to discuss what you’re trying to achieve with your film’s music, and what kind of composer would best compliment your creative goals.  If this doesn’t appeal to you, every composer has a website. Check them out, they put a lot of time into making them pretty, though it takes a lot of your time to find and review them! And lastly, check Craigslist

2.      Plan it out: find your composer early! If a composer is attached in beginning stages, he/she can gain a greater sense of your vision as a filmmaker from the very start of the project. By sharing this perspective from the get-go, he/she will feel as an integral member of the project, a great sense of how to compliment and share your creative vision.

For example, a composer I represent, Joachim Horsley was attached to a film in its early script stages. He noted a scene where a man sat in a church, praying while listening to an inspiring children’s choir. Joachim wrote the music for a live children’s choir to perform for this scene, before they even started shooting. Having Joachim on board before the shoot spared this filmmaker one more headache during production

3.      Set aside a budget, and don’t touch it! If you want your score to be amazing, make your composer feel amazing. Even though you don’t pay for music till the end of your production, (and you always feel like you’ve already spent it all, and you’re way over budget), it is very important to make your composer feel valued. Not only will you get an incredible project, but it makes working together that much better! Of course there will be times that you have absolutely no budget for anything or anyone (everybody on the film is doing it for backend points and you’ve been surviving on Cup O Ramen for 4 months), and in those cases, be sure to treat your composer like you do your editor, producers, etc. Your composer will just want to feel valued, and not taken advantage of! On that note, think about the tremendous amount of time and energy it takes a composer to score a film. Writing, Orchestrating, Arranging, Recording, Editing, Producing, Mixing, Mastering, etc. A composer I represent, Jacob Yoffee, says that it takes him at least 300 hours of hard work to complete a film!

Although general releases are often sufficient for a mediamaker when interviewing secondary or peripheral people in a biographical project, both fiction and non-fiction producers have begun to recognize the need for a project’s subject to sign a more detailed “Consent and Depiction Release” or a life story agreement.

These agreements serve several purposes. No matter how “newsworthy” a subject may become and how powerful a First Amendment argument may be, mediamakers have recognized that these project must be covered by “Errors & Omissions” (“E & O”) insurance. “E & O” insurance is a form of coverage which protects mediamakers against claims which third parties may bring concerning libel and/or slander (i.e., defamation), invasion of privacy, right of publicity and copyright and trademark infringement. These policies are required as a “deliverable element” when mediamakers enter into agreements with sales agents, distributors and other licensees that will demand to be named as “additional insured” parties under such policies.

Although mediamakers generally will secure such coverage which will ensure that appropriate clearance procedures were followed and releases obtained, life story agreements should include a key provision in which a subject waives his or her rights to bring such claims. Such waivers will assist mediamakers in securing such “E & O” coverage.

In addition, mediamakers who will devote often years on a biographical project should receive assurances from the subject that he or she will not do anything which might undermine the project’s progress or value in the marketplace. In these “Consent and Depiction Releases” or life story agreements, mediamakers should request that they receive exclusive non-fictional (and, in rare cases, fictional) rights to depict or utilize elements of a subject’s life in a media project, thereby taking the subject “off the market” regarding possibly competing projects. However, in the fiction arena, there have been several examples of directly competing projects such as the rival network television movies concerning Amy Fisher who was accused and convicted of shooting her lover’s wife. These competing projects demonstrate that even “exclusivity” provisions in life story rights agreements are not absolute since one network secured Fisher’s rights, a second network secured the rights to Joey and Mary Jo Buttafucco’s story (of how Fisher had an affair with Joey and shot Mary Jo) and a third network used news and magazine articles and court transcripts to tell its own version of the Fisher tabloid saga. Therefore, a mediamaker may be obligated to obtain the exclusive rights not only to a subject’s life story but also to the life stories of other figures such as a subject’s family members and friends.

These agreements should provide a “window” period of exclusivity that would be subject to a mediamaker achieving certain goals or “milestones;” otherwise, subjects would be precluded from having their story told even if a mediamaker abandons the project or puts it on the proverbial “back burner.” Typical “milestones” generally would require a mediamaker to secure some or all of the financing for a project or to commence or to conclude principal photography within a certain time period from the signing of the agreement by the parties. If a mediamaker does not achieve such “milestone” within a given time period, then he or she would lose “exclusivity” concerning the subject’s life story and the subject could work with other mediamakers on potentially directly competitive projects. Mediamakers should not agree to be obligated to complete production on or have a project exploited within a certain period of time since there are several factors, beyond a mediamaker’s control, which would affect the ability of a project to be distributed such as changing programming and audience interests. Mediamakers should also never have their rights to produce a project non-exclusively contingent upon such “milestones”; otherwise, the mediamaker’s years of hard work and expended funds will be destroyed.

Life story rights agreements also should contain a “covenant of cooperation” provision in which a subject agrees to provide the mediamaker with access to any information in the subject’s possession (e.g., newspaper and magazine articles, photographs, personal notes and writings and other memorabilia). Still mediamakers should recognize the existence of the rights of privacy of third parties who may have written, sent or been mentioned in such private papers. Another aspect of this cooperation covenant would require the subject to use reasonable or best efforts to work with the mediamaker to obtain releases from such third parties as a subject’s family members and/or friends. Although a subject generally cannot guarantee success in such efforts, a subject can assist a mediamaker in producing the project and lessening a mediamaker’s possible legal exposure.

The other key element in a cooperation covenant is a provision to limit or prevent a subject, for a certain period of time, from entering into an agreement with other mediamakers who may want to produce potentially competing fiction or non-fiction projects, thereby undermining the mediamaker’s efforts to place the project into an often narrow marketplace.

There should be a “grant of rights” provision in these agreements which would permit the mediamaker to market and exploit the project throughout the world (or even the universe, especially with the growth of direct broadcast satellite delivery), in perpetuity and in any medium, “whether now known or hereafter devised” such as by theatrical release (if applicable), home video (including DVD and other formats), television (including network, syndication, cable, satellite, etc.) and by interactive and/or on-line means.

Another feature of such a grant of rights is the right by the mediamaker to secure the rights to a subject’s life story so that a mediamaker can enter into a financing/distribution agreement with a distributor, sales agent or licensee, either before, during or after production of the project. Mediamakers also should have the right to use a subject’s name, voice, nickname or likeness not only in the project itself but also in the advertising and promotion of the project. These rights and the other provisions of the life story rights agreement should be assignable to a mediamaker’s successors and assigns such as a sales agent, distributor or licensee. These rights should be allowed to be exercised within a mediamaker’s sole discretion as much as possible; otherwise, a mediamaker may have difficulty securing a financing or a distribution agreement for the project.

One of the most important issues in the life story rights agreement concerns the extent to which a subject may have either consultation or approval rights concerning aspects of a project. This issue forces the mediamaker to balance the need to form a relationship built on trust with a subject with the mediamaker’s ability to produce a project with a minimum of interference by a subject. This concern also includes how a mediamaker shall address his or her interests with those of a subject’s family members and friends. Mediamakers, only in the rarest of cases, should grant any approval rights to a subject for the reasons addressed previously in this article; however, mediamakers can grant “meaningful consultation” rights (i.e., a subject’s right to review and comment on the project) either throughout the course of the project or just prior to when the final version of the project is available for screening. While some mediamakers will listen to a subject’s comments and alter or edit their project accordingly, other mediamakers will listen and decide not to include a subject’s comments or suggestions in a project.

Some mediamakers, such as Jennifer Fox (who produced and directed the commercially and critically successful “An American Love Story”), will take the potentially problematical and risky step of agreeing to remove any part of a project that may cause a subject significant concerns prior to the project’s distribution or release. These decisions are often based on the relationship between a mediamaker and a project’s subject.

A mediamaker’s agreement should also address the mediamaker’s right to produce and/or license others to produce such ancillary products as companion books, audio recordings and, in some cases, merchandising. These rights are often granted unconditionally to the mediamaker and, in other cases, subject to good faith negotiations by parties, especially if the parties cannot reach an agreement concerning this issue at the time of entering into the agreement.

There should be a clear understanding of whether a mediamaker has acquired solely non-fiction rights to a subject’s life story or fiction rights as well. Mediamakers should recognize that a subject may want to grant these rights to different parties, especially if one area is within a mediamaker’s expertise or experience. In addition, the agreement’s terms can vary under each scenario since the markets for fiction and non-fiction rights are different in nature and scope. Still non-fiction mediamakers may want to create “re-enactments” of certain parts of a subject’s life story. If a mediamaker wants the right to produce such re-enactments, then a provision concerning fictionalization should be included in the agreement.

One of the thorniest provisions in the life story rights agreement concerns whether and how a subject should be compensated for his or her rights as well as involvement in a mediamaker’s project. Some mediamakers will maintain that such payment or even potential payment often can compromise a project’s integrity by introducing a monetary motive, while other mediamakers would argue that compensating a subject for his or her time and participation is simply a pragmatic economic reality, especially given such factors as a subject’s time commitment during a project and the proliferation of outlets for such biographical projects on basic and pay cable as well as on home video.

Both mediamakers and subjects must recognize the economic realities concerning non-fiction projects: that for every Roger & Me or Hoop Dreams, there are many projects which lose money for the mediamaker or just break even since the revenue streams and markets for non-fiction are rather small and limited compared to those found with fiction projects.

While some subjects (and their advisors) often may request that their compensation should be at least a fee which is taken from a project’s budget, they do not recognize the fact that such projects are often funded in increments over a period of time, thereby reducing the likelihood that there will be upfront fees for subjects. Mediamakers and subjects, therefore, often enter into profit-sharing or deferment arrangements in which the subject would be paid either a fixed sum or a percentage of the monies derived from the project’s exploitation often after a project’s costs have been recouped or repaid. Since the likelihood that a project shall generate such “profits” is remote, the mediamaker’s offering of such potential profits is often a sign of good faith by the mediamaker to acknowledge the importance of a subject’s involvement in a project.

Although certain mediamakers and subjects are reluctant to enter into this type of agreement, this agreement is not only prudent from a business and legal standpoint but also can be one of the first steps for a mediamaker and a subject to establish a relationship based on openness, fairness and trust.

Tim Hethrington (director, producer, editor) discusses the difficulty of remaining apolitical while conceiving Restrepo, and expectations for the project from the Left.

From the 2010 Independent Filmmaker Conference.

Sheila Nevins, President of Documentary and Family Programming at HBO and Cinemax, on how she was able to network in the film industry without compromising her values.

From the 2010 Independent Filmmaker Conference.

Sheila Nevins, President of Documentary and Family Programming at HBO and Cinemax, on conceiving of new documentary projects, and what fuels the creative process.

From the 2010 Independent Filmmaker Conference.

Sheila Nevins, President of Documentary and Family Programming at HBO and Cinemax, gives a brief overview of HBO’s yearly documentary output, and where each film originates from.

From the 2010 Independent Filmmaker Conference.

Sheila Nevins, President of Documentary and Family Programming at HBO and Cinemax, discusses the difficulties of getting the public to engage in a documentary that airs on television.

From the 2010 Independent Filmmaker Conference.

Sheila Nevins, President of Documentary and Family Programming at HBO and Cinemax, on why she prefers to produce documentaries that are driven by characters rather than ideas.

From the 2010 Independent Filmmaker Conference.

Sheila Nevins, President of Documentary and Family Programming at HBO and Cinemax, on what she finds exciting about producing documentaries for television.

From the 2010 Independent Filmmaker Conference.

Sheila Nevins, President of Documentary and Family Programming at HBO and Cinemax, discusses the rigors of her selection process, and what she looks for in a documentary pitch.

From the 2010 Independent Filmmaker Conference.

Daniel Battsek, National Geographic Films, discusses the apolitical message of Restrepo.

From the 2010 Independent Filmmaker Conference.

Daniel Battsek, National Geography Films, on the type of audience that the film Restrepo was marketed towards.

From the 2010 Independent Filmmaker Conference.

Nick Fraser, BBC Storyville, on the roots of modern documentary’s activist focus.

From the 2010 Independent Filmmaker Conference.

Yance Ford, POV, argues that documentary film is a medium in the midst of an identity crisis.

From the 2010 Independent Filmmaker Conference.

Nick Fraser, BBC Storyville, discusses the merits of right wing vs. left wing propaganda.

From the 2010 Independent Filmmaker Conference.