The Ten Commandments of Independent Film Production

Alongside our producer clients, Rudolph and Beer, LLP attorneys have weathered numerous campaigns in the trenches of independent film production. On Slingblade, Sunday, Tumbleweeds, Star Maps, Desert Blue, and many other films, we served as troubleshooters seeking to prevent problems that could devastate production. Through our experiences, we have had the vantage point to observe common oversights and mis-cues. The excitement of principal photography frequently seduces less experienced producers to commence production prematurely, leaving too many logistical, legal, and creative issues to be resolved on the spot or after the fact. Without the benefit of experience or a crystal ball, it is very hard to foresee certain problems in production before they arise. This article identifies some of these problems and offers practical insights about how and when to best address these matters. It is our hope that by identifying these problems before they present themselves, producers can avoid much of the stress they might otherwise endure.

Have a "Tested" Shooting Script

As a mother regards her child, recognize that you cannot be objective about your own script or any screenplay on which you have worked for extended periods. Your script must be extraordinary by every standard to succeed in today’s competitive marketplace. Similar to a musical composition that simply does not work, where all of the vocal or production support can’t mask the flawed product, a poorly written script cannot succeed no matter how much money is spent on talent, special effects, or other production elements. You can always benefit greatly from having a more experienced writer, producer, or other industry professional with whom you have a relationship read your screenplay and make suggestions. Also, avoid writing a script that will lock you in to a cast-dependent situation, so that your project financing is not doomed where a particular actor falls out or cannot be scheduled.

Tip: Never send your script to potential financiers or talent until it is in A+ condition. You may never get a second chance to make a great impression.

The Budget Must Be Flexible

Frequently, a proposed budget doesn’t leave sufficient room for unforeseen contingencies, such as adverse weather conditions, illness, or scheduling mishaps. In reference to monetary issues, the main goal is always to make the film as inexpensively as possible. Less experienced producers aren’t always realistic and can overlook certain postproduction expenses, such as those incurred to meet a prospective distributor’s delivery requirements, clear music rights, or successfully market a film and enter it in festivals. In addition, particular locations require a higher budgetary allowance (i.e. New York City). Typically, a 10% contingency should be included when preparing a budget to protect against unforeseen costs that will inevitably arise during production. Increasing the budget during production or after it has been presented to financiers presents many challenges and risks credibility.

Tip: Hire a veteran line producer and production manager experienced on projects of similar scale, budget, and location. Rely on their relationships with local vendors, unions, and municipal officials to help smooth the logistical process.

Don’t Skimp on Key Personnel

Producers frequently cut corners by limiting the number and quality of technical crew members, particularly sound and camera personnel. While minimizing production costs is sensible, this is a typical area where you can be penny-wise but pound-foolish. The end result may severely impair the quality of the film. Simply by protecting against diminished sound or visual quality you can greatly enhance the audience’s perception of the overall film. In addition, by neglecting to hire a qualified crew, technical difficulties due to inexperience may arise which can actually slow down the production process and greatly increase costs. The crew expense should be a fixed cost within the original budget and should not be looked upon as an opportunity to cut down and reduce costs.

Tip: Spend more if you must to hire an experienced director of photography, unit production manager, or other key crew person when your director is still learning the ropes. They will serve as valuable insurance policies against cost overruns.

Always Hire a Still Photographer

Hiring a still photographer during production is frequently overlooked. Not doing so can be a big mistake, since you will need stills to market the film to distributors and then to audiences once the film has been acquired. Invariably, the distributor will require still photographs from the film for promotional purposes. If suitable stills are not available, you will need to secure the return of talent, who may not be available, and then require them to look exactly as they did during filming (haircuts, apparel, locations, etc.), all of which is extremely difficult. It is also essential to make sure that the producer or the production company owns the copyright for the photos taken during production. Again, the reason for many of these mistakes is that producers are so anxious to actually complete the project that they don’t think about what will happen afterward.

Tip: Do not use friends or relatives for this important task unless they are qualified. Use only experienced production still photographers who will not interfere during production and who will deliver high-quality marketing-ready slides.

Formulate a Detailed Marketing Plan Right from the Outset

Like a compass to a hiker, a detailed plan can be a great tool. From the outset, you should determine what type of film you intend to make and what target audience you seek to deliver. These are crucial decisions when seeking financing for the project or even when trying to sell the finished film to a distributor. That said, don’t get so stuck in the mind-set that your film is only a particular type aimed only at a particular market. If you do, you may lose sight of the fact that your project no longer succeeds at its main objective—to successfully tell a good story. If your objective is to obtain a first-class theatrical release, you may need to work with an industry-recognized director or a cast with a profile. Therefore, these key elements should resonate with your target audience. But remember—if your film tells a great story in a compelling way, it may appeal to a wider demographic than originally anticipated, which may require a new marketing plan.

Tip: Consider which prospective distributors may be appropriate and keep them posted on your status, apprising them of your project’s progress at various milestones.

Do Not Send Sloppy Cuts of Your Project to Film Festivals

Producers often impose pressure upon themselves to satisfy certain festival deadlines. In their effort to complete postproduction, they frequently submit something less than the finished product. Surprisingly, many festivals will only take a video print of the film. Inherently this means that those viewing will be watching a copy that has already lost some quality. Hence it is not a good idea to send anything less than a fully completed version of the film to a festival because these are very competitive and you will rarely succeed in overcoming a bad first impression.

Tip: Finish with your best foot forward. There is always another festival. Hold the film until you have accomplished what you set out to do in all respects.

Do Not Succumb to Friendly Distribution Scouts

Once apprised of your project, distribution scouts and executives will respond enthusiastically to news about your production and request to see production dailies. Don’t be flattered. They are merely seeking a competitive edge. You must resist this seduction at all costs, since it almost always reduces your leverage. As a general rule, do not show distributors anything until your film is completed. Once finished, you should show it to as many distributors as possible at the same time, either at an industry screening or at a festival. You should not show them anything until it is finished. If the film screens well, you may entertain competing bids for your film, increasing the likelihood of financial success. While there are cases where sending out dailies can generate a buzz or create hype about a project depending upon their strength and quality, there are other ways to achieve this result, such as having a good publicity campaign.

Tip: Keep distributors excited about your project without revealing too much until you are ready to show your finished film to the industry.

Do Not Include Expensive Music in the Film to which You Have Not Licensed the Rights

Music is always a creative and strategic choice. Do not assume that a distributor will give you money to pay for expensive and unnecessary music rights. Often the music used in the film will be too costly to deliver to a distributor. This could inhibit their desire to acquire the film. While you can use the music to exhibit the film at a festival by obtaining a festival-only license, you may want to change the music if licensing the rights will cost almost as much as a distributor is willing to pay for the entire film. This will depend on the nature of the picture and how much of the sale value is based upon the music. Often minor changes can be made without a negative impact on the film. If you feel the music is essential, remember that the publishing companies owning the music rights don’t have to negotiate because they have all of the bargaining power. If you can’t afford to pay their price, they won’t let you use their music.

Tip: Where possible, negotiate your licenses in advance so that you understand what your future music licensing costs will be.

Do Not Allow Creative Personnel to Perform Services without Executing a Formal Agreement

A producer should never allow anyone to participate in the production of the film without some form of written agreement setting forth the basic terms of their employment. You must obtain fully executed formal agreements, including work for hire rights acquisition and assignment language from everybody, before they first take part in the project. These agreements will eliminate any confusion later on as to what was expected of them in terms of performance and what they expected in terms of compensation. From a leverage standpoint, it is much more difficult to get services agreements executed after you have paid the talent or crew member. Your inability to deliver a crucial agreement can severely delay a distributor’s willingness to compensate you. Expectations and relationships frequently change as the production progresses, so it is always best to know where everyone stands from day one.

Tip: Approve and use a standard crew memo with the requisite work for hire and assignment language before you pay anyone.

Address Budgetary Issues with the Appropriate Guilds and Unions

The size of your budget will impact your guild and union obligations. We suggest that you promptly address these issues since they can determine the extent of your obligations and affect your budget. Moreover, the failure to address SAG and local union issues promptly and honestly can eventually result in costly production interruptions when the guild or union eventually catches up to you. Many of the agreements may depend upon where the film is shooting and its budget. These issues must be carefully considered because, if after production has begun you determine that you will be above your stated SAG budget level (i.e. Modified Low Budget or Low Budget), you or the distributor will pay a penalty. SAG collects double residuals when you bump up to the next level after the fact. In addition, money for the SAG bond should be taken into consideration when preparing the budget of your film because this money must be paid at the onset and will freeze a large portion of your capital for the length of the entire production. This bond serves to protect the actors in case there is not enough money left to pay them in the end.

It is also a good idea to meet with the local unions up front to apprise them about your production, what your budget is, and acknowledging whether or not their personnel will be required. If you are candid with them, this will generate good will that could extend to flexibility about rates charged, in the event you are working with union labor. While unions do have certain parameters and limitations, candid discussions often lead to advantageous deals and constructive relationships. Remember to keep written records of every conversation with the unions to avoid confusion as to rates and conditions later on. Do not fudge budgetary or other numbers when reporting the budget levels to the unions. They have the ability to walk on to a set and almost immediately assess how much money is being spent. If you have misinformed them, this could lead to severe production difficulties, often holding up the project or forcing you to another location based upon your budget.

Tip: Carefully consider your budget before production. Approach the various unions and candidly advise them of your situation and anything you may need from them. Being forthright with them can only help you if subsequently your needs change.

Finally, hiring a solid core of experienced and professional personnel is the best tool to ensure success. You can always benefit from their experiences derived from prior campaigns within the trenches of independent film production. Good luck, keep your eyes and ears open, and your head down.

About :

Steven C. Beer, Esq. is a founding partner of Rudolph & Beer, LLP who has served as legal counsel for such award-winning films as Slingblade, Three Seasons, and Tumbleweeds. Jesse Rosenblatt was a Summer Associate at Rudolph & Beer, LLP who is in his third year at Fordham Law School. The authors would like to thank Adam Abraham, Jana Edelbaum, David Marcellino, and Greg O’Connor for their assistance with this article.