Although a nebulous-sounding job, a good rep combines the promotional skills of a publicist, the deal-making ability of a lawyer, and the marketing skills of a salesperson.
Until recently, the term producer’s representative or "rep" brought to mind the name of indie stalwart John Pierson. In his book Spike, Mike, Slackers and Dykes, Pierson recounts the story behind the deals he negotiated on behalf of the producers of such noted films as She’s Gotta Have It, Slacker, Clerks, and the superbowl of deals for documentaries, Warner Brothers’ reported $3 million acquisition of Roger & Me.
However, as the home video boom began to mature throughout the eighties and many independent theatrical distributors collapsed, Pierson turned his attentions to his IFC program Split Screen. For a time, nobody seemed to be out there representing filmmakers to distributors and foreign sales agents.
But judging from recent festivals, it’s apparent the void is not only filled, but overbrimming with talent agencies, publicists, other producers and, of course, attorneys, all claiming to act as a producer’s rep. So, since all of these people can do the job, just what does a producer’s representative actually do?
WHAT IS A PRODUCER’S REP?
The primary task for a rep is to sell to the sellers by securing a distribution deal. Such deals generally fall into two categories: worldwide rights in a film, or separate deals in which a domestic distributor acquires the U.S. or North American rights with one company, and a separate arrangement in which a foreign sales agent acquires the rights for the rest of the world. The foreign sales agent then enters into licensing agreements with foreign distributors and such end users as home video companies and television services within a given territory. On occasion a rep will even act as a foreign sales agent and license the rights on a territory-by-territory basis.
A good rep will establish a plan by which distributors and sales agents can be exposed to the film. In order for a filmmaker to maximize the effectiveness of any relationship with a rep, the filmmaker should be aware of the importance of such film festivals as Sundance, Toronto, Rotterdam, Berlin, South by Southwest, Seattle, the Hamptons, Los Angeles Independent Film Festival, Venice, and Cannes. These festivals are launching pads from which a rep can hopefully introduce a film to receptive distributors and sales agents.
A rep will also generally plot a film’s sales strategy which, in some cases, may be to forego the festival route and schedule a film’s screening in New York and/or Los Angeles, to which distributors and sales agents are invited. Given the current glut of films and screenings in these cities and the absence of such elements as name talent in many of these films, the festival route is the preferred one for most indies to create some "buzz".
THE LITTLE BLACK BOOK
One of the key tasks for a producer’s rep is to cajole the acquisitions staff from these distributors and sales companies to attend a film’s screening. The filmmaker should explore the extent of a rep’s contacts within the film community (i.e., who does the rep know and/or with whom does a rep have a relationship at given companies). These lists should also include contacts at the important domestic and international festivals, since acquisitions executives attend certain high profile ones, and the choice of attending one festival may prevent a film from entering another festival under its rules.
In selecting a producer’s rep, a filmmaker faces a number of choices: Do you choose the rep with the significant track record or the one who has a lesser track record but perhaps greater passion and understanding of the film itself and its marketability? Do you go with the rep who is working with several films at once or the one who may be representing only one or two films and, therefore, can devote more time and energy to your work? Was the rep interested in the film even before it was invited to a key festival? (One producer’s rep is known to have said to a filmmaker, "Give me a call if you get into Sundance.")
So just what services does a producer’s rep provide? Although a nebulous-sounding job, a good rep combines the promotional skills of a publicist, the deal-making ability of a lawyer, and the marketing skills of a salesperson. However, reps often work with the filmmaker in engaging the services of a publicist for a period of time or for particular festivals to promote the film to the media. Reps also assess a film’s assets and liabilities regarding which distributors and sales agents to approach and when. A producer’s rep will discuss and evaluate the possible and actual offers presented by a distributor or sales company, as well as the strengths and weaknesses of that company. The filmmaker and producer’s rep will examine actual offers and evaluate such factors as the size of a company’s advance, its distribution fee, the expenses the company will pay for itself or pay as a recoupable expense, its release commitment (if any) of how the film will be distributed, the minimum marketing commitment (termed prints and advertising or ‘P&A’), and perhaps, most importantly, the company’s ‘take’ on the film: Does the company understand the film and its potential audience, and how would it attract such an audience?
While there are several fine reps who are not attorneys or do not have a legal background, attorneys who serve as producer’s rep will provide legal services beyond the negotiation of major ‘deal points’ with a company. They’ll thoroughly review the agreement, including its list of items which the filmmaker must deliver. Such delivery elements include the film’s ‘chain-of-title’ or ownership records and copies of certain production contracts, such as agreements with talent, and crew, and especially documentation in the area of music.
If a producer’s rep is an attorney, then the filmmaker must address the issue of whether there will be separate compensation for legal services and rep work, or will compensation include both, often overlapping, services. Will the attorney fold the legal compensation into an advance against the producer’s rep compensation? Legal services can be charged on an hourly basis (which often can be cost prohibitive), a flat fee paid in advance, or when and if the film is licensed to a distributor and/or a sales company, since the deferred fee will come from the monies a filmmaker receives from such deals. Attorneys’ commissions for legal services are approximately 5% of the monies derived from a deal, while a rep’s fee can range anywhere from 5-10%. (Attorneys who also work as reps generally will seek commissions in the 5-10% range.) However, the filmmaker and the producer’s rep must decide whether such remuneration is based on monies paid by a company or monies actually received by the filmmaker. This is an important distinction, since a company’s advance can be decreased if that company has to spend money creating delivery elements. Reps may argue that a filmmaker’s inability to create those elements is the filmmaker’s responsibility and should not diminish the rep’s commission.
Other key issues that must be addressed in a (preferably written) agreement include the agreement’s terms. Producer’s rep agreements can have terms that range from the course of one or more festivals through several months or a year from when the agreement is signed or a festival begins. The negotiable ‘term’ provision can be a doubled-edged sword, as the rep may want a sufficient amount of time to locate distributors and sales agents and to negotiate deals, which can take weeks or even months. (Some distributors and sales agents may postpone any decision regarding a film until it has been screened at a certain festival or has had the opportunity to play at several festivals to see how it plays with different audiences.) A filmmaker, on the other hand, realizes that if there is no deal after a film has played the international festival circuit, a new crop of films will join the festival circuit and her film may be perceived as ‘old news.’
If a rep’s services are terminated or the agreement’s term has expired, what happens if a distributor or a sales agent who has been in negotiations with the rep wants to enter into a deal after the rep is no longer involved with the film? One possible solution is to offer a one- to three-month grace period after the term expires or the agreement is terminated, during which the rep either can continue to work on the deal or receive the commission even though he or she is no longer representing the film.
The last major point for a filmmaker and a producer’s rep to discuss is expenses. Producer’s reps can incur expenses such as mailing, messengers, creating additional press kits, telephone/ fax charges, and travel. The rep agreement should acknowledge who assumes which expenses and under what circumstances such expenses are reimbursable by the rep. Is there an expense cap per expense or for all expenses incurred by a rep? If a rep is going to attend a festival or a market (e.g., Cannes, AFM, MIFED) with more than one project, how are expenses to be allocated? Several reps request a one-time or periodic retainer – some reasonable, others not – against such expenses, some of which are not even considered advances against future monies from a deal that a rep may negotiate.
Filmmakers should be wary of producer’s reps who make promises or, even worse, guarantees. Above all, there must be communication between the rep and filmmaker, either verbal or in writing, on a periodic basis, indicating who has been contacted, the status of such submission or review, and the next step in placing the film into the marketplace.
Producers can approach reps – and vice versa – at any point during the filmmaking process, although most reps generally want to see the film at the rough cut stage at the earliest. Producers often want to hook up with reps prior to events such as the Independent Feature Film Market, while others may use such a venue to find a rep.
Finally, it has been my experience working with, as, and for a producer’s rep that communication and a clear understanding of expectations often makes the difference between an acrimonious finger-pointing relationship and a potentially profitable and harmonious one.