THE DOG, a documentary telling the true story behind DOG DAY AFTERNOON, was acquired by Cinedigm and Drafthouse Films for theatrical release in 2014.

THE DOG, a documentary telling the true story behind DOG DAY AFTERNOON, was acquired by Cinedigm and Drafthouse Films for theatrical release in 2014.

 INTRODUCTION

by Thom Powers

Over the years, I’ve seen too many filmmakers become embittered by their distribution deals. Sometimes they had unrealistic expectations, sometimes they got caught in bad deals. The filmmakers who feel disgruntled range from those with niche titles all the way to the most successful directors. I remember seeing an esteemed director at the Toronto International Film Festival being greeted warmly by the head of a distribution company. “That’s funny,” the director later told me, “I’m currently suing his company for unpaid royalties.” Behind the diplomatic smiles lie many untold stories.

As we start off 2014 and head into Sundance, I want to explore how filmmakers can make better deals for themselves in all distribution channels:  theatrical, television, digital and international. Most filmmakers go into distribution negotiations for the first time, or with a gap of several years since their previous film–which might as well be their first time in this changing landscape. That puts them at a disadvantage negotiating with distributors who are regularly making deals and confident about stipulating what’s “normal.”

What filmmakers frequently lack are points of comparison. To change that I reached out to several filmmakers and other industry insiders for feedback. I’m grateful to everyone who shared their experiences. I’ve edited and condensed contributions to reduce repetition (though some points are worth repeating).

Despite the pointed criticism of distribution contracts in many of the following comments, I don’t want to disparage all distributors. Among their ranks are people who care passionately about documentary films and make a great difference in their success. But often those people are in the middle ranks. Even when a filmmaker’s main contact at a distributor is conscientious, a year later that person might be gone, or the library sold to a different company. Among active distributors in recent years who have transformed or ceased operating are THINKFilm, Palm Pictures, Wellspring, Artisan, Indomina and more.

When push comes to shove, a filmmaker’s rights come down to what’s guaranteed in the contract, and whether a filmmaker has the power to hold the distributor accountable. On the flip side, filmmakers have their own obligations to fulfill for the distributor to be effective. One key obligation is to be the chief public advocate for their film. When filmmakers can’t give the time to do press or public appearances or social media, they’re putting a great handicap on the distributor.

Happy collaborations do exist. They are usually the result of filmmakers understanding what they’re getting into. Some of the biggest debacles I’ve witnessed have occurred with upstart distribution companies with no track record (as Marshall Curry candidly describes his own experience below). If a company has never distributed a documentary before, think twice about being the first. A notable exception in 2013 is THE ACT OF KILLING released with great passion by Drafthouse Films, a company with a solid track record for exhibition.

The final section of this discussion is devoted to variations of self-releasing. Documentary film has a distinguished history of filmmakers taking charge of their theatrical release, tracing back to NANOOK OF THE NORTH in the 1920s and continuing through MONTEREY POP in the ‘60s and BROTHER’S KEEPER in the ‘90s.

In recent years, technology and independent bookers have made forms of self-releasing a more viable option. This first sunk in for me six years ago during conversations with distribution strategist Peter Broderick and WME’s Liesl Copland. I asked them to deliver speeches at the inaugural TIFF Doc Conference in 2009–when was Broderick popularized the term “hybrid distribution” in his Declaration of Independence, and Copland emphasized the rising digital potential in her address Dear Theater Owners, Fear Not… Since then, their theories gained more credence with hybrid releases such as EXIT THROUGH THE GIFT SHOP and SENNA, which earned $3.3 million and $1.6 million, respectively, at theaters, according to Box Office Mojo, not counting digital or other revenue. In 2013, only six theatrical documentaries surpassed more than $1 million at the theatrical box office. One was GIRL RISING, which operated outside traditional distribution and partnered with Gathr.

Another rising trend is filmmakers touring with their films. The most prominent example I know is Gary Hustwit as I wrote about in a case study of his film OBJECTIFIED. Below Andrew Cohn describes his recent experience with the film MEDORA.

One recurring theme in the advice is the need for advance preparation (see Ana Vicente under the section International Sales; and the makers of INDIE GAME: THE MOVIE under Hybrid Distribution). As I compiled these comments, I was corresponding with several filmmakers headed to the 2014 Sundance Film Festival and still completing their edits and sound mixes only two weeks before opening night. If filmmakers want to take full advantage of the strategies below, they need to build in more time to plan. Once your festival premiere happens, the clock starts ticking on the marketplace asset of being new.

Many comments herein reference Sundance. However, the advice can certainly be applied to TIFF or other festivals. Indeed, the biggest beneficiaries of this input may be filmmakers who are still in development or production.

So read this carefully, print it out and share with your investors, discuss it with your sales agent, highlight anything you don’t understand and turn to your peers for fresh perspectives. For more, see the latest edition of Peter Broderick’s newsletter.

YOU GOT INTO A FESTIVAL, NOW WHAT?

MORGAN NEVILLE (DIRECTOR, 20 FEET FROM STARDOM): The first question I’d ask of yourself is what is your goal in distribution? Is it to make money?  Is it to get accolades? Is it to get the film the widest possible audience? These things occasionally coincide, but I wouldn’t expect it. I’d also think about who your audience is. Is it easily identifiable (and reachable)? What are you looking for a distributor to bring to the table?

I would find another recent film that has done what you hope your film can do and look at how it was distributed. Who handled it? When was it released? Was it day and date with VOD? How many markets? Where did it air on TV? This might give you a template to follow.

ALEXANDRA JOHNES (EXECUTIVE PRODUCER, THE SQUARE): You are tired, I know, but you need reinforcement troops to manage festival release and grassroots & educational up until deals close that cover those areas. So many opportunities are lost while filmmakers wait for the bigger deals etc. Those are important but continuing your film’s footprint while you pursue those is key. Operate as if you assume a self-release and if you are relieved of that burden on terms you like, great. If you operate that way, you will be negotiating from a position of power and ultimately get better deal terms too, not to mention having a full fledged back-up plan in place.

ALEX GIBNEY (DIRECTOR, WE STEAL SECRETS: THE STORY OF WIKILEAKS): Ask every dumb question you can think of. The dumb questions are always the best ones because they tend to provoke the clearest answers.  Don’t ever pretend to know more than you do.  That is the best way to get conned.

DAN COGAN (CO-FOUNDER, IMPACT PARTNERS): Unless it is clear that the film is going to be a major theatrical success, all rights deals get increasingly less interesting to me every year. With the advent of social media, the availability of support for your own efforts via crowd-funding campaigns, the maturation of Transactional VOD, the emergence of digital self-distribution platforms like VHX and Reelhouse and the continued health of the U.S. and International TV markets, filmmakers who know their audiences and can speak directly to them have the potential to control their own distribution AND make more revenue while doing it. This is very liberating. At the same time, make sure you’re ready if you’re going to take this commitment on–it’s a at least 6 months worth of full-time work, and likely more than a year of commitment.

ROSS KAUFFMAN (DIRECTOR, BORN INTO BROTHELS): Don’t be afraid to call any filmmaker out of the blue for advice. As filmmakers, we all know how hard distribution is. It’s a constantly changing landscape, and any filmmaker worth his or her salt will take a few minutes and lend a hand to help another filmmaker make a good deal and get their film seen and sold. There are conversations that I’ve had with other filmmakers that have literally saved me tens of thousands of dollars that I never would have come close to seeing otherwise.

THE PUBLICIST

DAN COGAN (CO-FOUNDER, IMPACT PARTNERS): Make sure your publicist and your sales agent work well together. In all likelihood, your publicist will have more of an impact on the sale of the film than the sales agent will, but they also have to work together well. They must function as a team – not as independent actors.

AMY GREY (PUBLICIST, DISH COMMUNICATIONS): YES do hire a publicist and ask them how many other films they will be representing and who at their company will actually be working on their film?

LUCY WALKER (DIRECTOR, THE CRASH REEL): In last year’s STF Sundance advice piece I dissed publicists rather but wanted to add an important coda that if you get a doc specific publicist they can be invaluable allies on all fronts. I have has supremely positive and productive collaborations with Nancy Willen and David Magdael who are doc specific and classy, awesome, pleasure to work with and have helped not just with publicity.

ADAM BENZINE (JOURNALIST, REAL SCREEN): Beyond hiring a publicist for your doc, find the names of journalists at publications you want to be featured in, and ring up the journalists; speak to them on the phone. Your email is like confetti at a wedding, but phone calls stand out, and they are harder to ignore.

PETER BRODERICK (DISTRIBUTION STRATEGIST): Make sure that your publicity team focuses on social media as well as film critics and other entertainment press.

ADAM SEGAL (PUBLICIST, THE 2050 GROUP): Over and over these past two years we have seen the power of using a successful festival premiere and festival circuit run, and later even a very limited theatrical release, to help feed into and perhaps even boost prospects for a more lucrative iTunes, VOD, DVD and private screening circuit run (including universities and organizations). Publicity can create these circumstances. Films with no broadcast deals can still earn them, and at greater revenue levels, as a result of the success of a limited theatrical release and a lengthy festival run. The key is to think two, three or even four steps ahead and not assume that one has to be locked down first, or cannot benefit from another. There are multiple paths to success.

THE SALES AGENT

MARSHALL CURRY (DIRECTOR, IF A TREE FALLS): If you are hoping to sell your film, get a good sales agent on board well before the premiere. They will make sure the right people see it, and they will negotiate deals better than most filmmakers can do themselves.  But they often have an incentive to make simple all-rights deals which maximize their fees, so if you are interested in carving up rights or pursuing self-distribution, talk that over with them beforehand and make sure it’s a good fit.

ANONYMOUS FILMMAKER #1: Realize that most sales agents (not all) are basically middlemen. And as middlemen, they are not only working for you, but in essence working for the people you are selling to. The fact is that unless you are Alex Gibney and make four films a year, you only create one widget every few years to sell, which gives you very little leverage. The broadcasters and distributors that your sales agent is selling to have a much stronger relationship with your sales agent than you do. So when your sales agent says, “We should take this deal with this distributor because this is what is normally done and is the best deal you are going to get”, make sure you have done your homework and know what you are talking about when you reply, “I don’t care what’s normally done…what’s normally done is that filmmakers get screwed…so let’s try and get a better deal.”

CHRIS HORTON (SUNDANCE ARTIST SERVICES): Domestic Sales agency deals should be limited to 6 months. In this day, if you can’t sell a film within that time, filmmakers should have full ability to do what they like without involving (or having a revenue stream towards) their sales agent.

ALEXANDRA JOHNES (EXECUTIVE PRODUCER, THE SQUARE): Don’t confuse legal with business – lawyers put into legalese the terms of your deal – they are not necessarily the best ones to help you with your deal points – they can be helpful but you need business advisors – and it’s good to have a seasoned producer or EP look over your deal in addition to your sales agent – your sales agent wants to close the deal as quickly as possible – they earn a % and also have their own agendas, so they won’t necessarily push as hard as you might like.

At the same time, respect your sales agent and the producers & EPs negotiating on your behalf. They have a wealth of experience you don’t; ask lots of questions but do respectfully; it gets really tiring when first-time filmmakers assume everyone is trying to screw them.

If you are going to ask for advice from seasoned professionals, be transparent with your info. You won’t get good advice if you don’t relay the full picture, so if you don’t trust the person with the full picture, don’t ask.

MARC SIMON (ENTERTAINMENT ATTORNEY; DIRECTOR, UNRAVELED): Filmmakers should have a clear understanding of both their sales team and sales strategy well in advance of their trip to Sundance.  If filmmakers are interested in separating rights and self-releasing theatrically, then regardless of the quality of the film, a sales agent may not even be necessary for the domestic sale of the film (e.g. Shane Carruth’s UPSTREAM COLOR).  For filmmakers interested in pursuing all rights deals and/or selling the film to the highest bidder, selecting a sales agent is far more nuanced than choosing the one who is most eager to represent the film.  Filmmakers should specifically ascertain the sales agent’s strategy for selling the film (e.g. it might favor a direct sale to HBO prior to the festival’s premiere, which could compromise other platforms), speak to numerous other filmmakers about their experience with the sales agent, and negotiate the sales agency agreement itself, which is often overlooked.  Filmmakers should also seek to work with their domestic sales agent to select and hone their international sales strategy.  Filmmakers often do not run the numbers–taking into account sales agent fees and costs, legal fees, distribution delivery costs etc.– to clearly understand what amount of money the production must receive from its sales deals in order to pay back its financiers and to earn a profit. Filmmakers should be able to work in concert with their attorneys to navigate the foregoing issues and deals.

ALLISON BERG & FRANK KERAUDREN (DIRECTORS, THE DOG): Be a bit annoying. Even if you have the best team assembled for distribution, your film is not their only project and things can fall through the cracks. It’s up to you to advocate best for your film and speak up if you have concerns. Again, it can be very helpful to find a filmmaker who can share their experience because you will have many questions along the way.  Your sales agent can answer some, your lawyer and your accountant some others, but having another filmmaker to consult with is really helpful.

INTERNATIONAL SALES

ANNIE RONEY (SALES AGENT, ro*co films): Never have one person or one agency represent your rights worldwide, unless you are only seeking a digital release.  North America and the rest of the world are two different beasts. Find separate representation for each.

Listen to your gut.  If you feel like you are being sold something you probably are.  Optimally, your relationship with your agent, distributor, broadcaster, etc. should be collaborative.

PETER BRODERICK (DISTRIBUTION STRATEGIST): Select an international sales agent that specializes in TV sales and always attends MIP and MIPCOM. Only give them your international digital rights if they have a track record selling these rights successfully.

DAN COGAN (CO-FOUNDER, IMPACT PARTNERS): On international sales: cut a 55-minute version of the film offline RIGHT AWAY. Give it to your international sales agent. Don’t spend the money to master it yet, but just cut it and let it sit. You will generate many more sales if you have both a feature-length and an hour-long version available. This is not the version of your film that will live forever–it’s not what will last on DVD or in digital. The legacy of your film will be the theatrical. So just hold your nose and do it. And then, if buyers want to buy it, master this version the second that revenues from the sale (after your sales agent takes their cut) exceed the cost of the mastering. You’ll be thankful you did this.

ANA VICENTE (SALES AGENT, DOGWOOF GLOBAL): Foreign distribution is complicated, there is a market for theatrical and TV docs and you need to collaborate with specialist distributors to maximize your film’s impact and audiences.

Start early. Have early discussions on your foreign distribution planning, especially if your film has theatrical potential outside North America. The most common oversight we find are producers approaching a foreign sales agent well after Sundance, maybe because their focus was in nailing the in/outs of their US deal. Even if this is only in March or April, bear in mind many foreign buyers don’t travel to Park City but do attend EFM in Berlin or Film Art in Hong Kong just a few weeks later. Both are great opportunities to market and sell your doc in Europe and Asia. Unfortunately, deadline for market screenings, advertising space or Festival submissions are all before Sundance. Your sales agent needs to book and allocate those spaces to market your film efficiently. Initiating talks on foreign distribution post-Sundance is a lost opportunity if your doc doesn’t win or does not become the most talked about film. It also means your film will have to compete with other newer docs from other Fests: SXSW, Tribeca, Hot Docs and Cannes in the next “foreign” theatrical market opportunity. Cannes is a tough one to market docs!

Trust and delegate. Another common mistake is when a producer closes a rather small foreign TV deal directly on offers received during Sundance, before having a sales agent on board. What you may not anticipate at the time of closing such deal is the license term may be detrimental to potential deals on other platforms or even sales from neighboring European countries. Allow your sales agent to negotiate all foreign deals on your behalf. It is not just the license fee they can maximize for you, but the overall sales and distribution potential. A good sales agent knows how to orchestrate the sophisticated windowing and holdbacks among different territories and platforms in Europe and to coordinate the different release dates of countries by language as well as territory. For docs with cross platform potential (Theatrical, DVD, Digital, TV) it’s often more complicated than it appears, as some European countries are still heavily regulated and some territories have laws which force distributors to respect windows after a theatrical release and before they can exploit the DVD- digital or Television rights.

Do your Research. Make sure your sales agent is a good fit for your film. Do they do theatrical sales or mainly TV distribution? What are the markets they attend? Does your sales agent have a digital strategy for the countries where digital rights weren’t sold? Does your agent work directly with main VOD platforms, iTunes or Netflix or through an aggregator? Will they handle the Festival strategy on your behalf? Will they produce marketing assets such as film website, poster or manage the film’s social media? What other documentaries do they have in their line up, and where were they sold to. If you are lucky to have two or more agents interested in handling your film and have doubts, get feedback from filmmakers/producers of docs distributed by the agents you are considering to ask a simple question: would you work with them again? why? 

JUSTIN SZLASA (PRODUCER, SIDE BY SIDE): International Festivals: skip the screening fees until you get the subtitles you need. Why? You might get a festival fee of 3-500 euros (which you will likely split 50/50 with your sales agent). That’s nice but subtitles are worth far more to the production. First, at the festival the home audience (and critics) will have an easier time understanding your film when it screens–which is better for all kinds of obvious reasons. Second, you need subtitles to launch digitally on many international platforms (like iTunes Holland and Germany, for example). The cost to make these subtitles (as much as 4k) will be passed on to you–either directly by your sales agent or indirectly via your local distributor. So for international festivals waive the screening fee, insist the festival subtitles your film when it screens, and ask them to hand you the file including time code.

NEGOTIATING A DEAL

LIZ GARBUS (DIRECTOR, LOVE, MARILYN): If you’re lucky, your career in the (documentary) film business will be a long one.  So in some ways, the most important thing for you right now is to forge relationships and find partners who you may work with for years and years ahead. So, if you feel a real connection with a potential buyer/partner, they really love your film, your talents, and share your vision for what the film should do in the world–that may be the better partner than the one offering a bigger MG.  Likewise, if you dreamed of a theatrical release but the people who love your film the most, and strike you as the most faithful partners, are TV/Cable/Streaming buyers, consider them seriously. Theatrical documentaries that work are far and few between and what you want is your film to be SEEN and PROMOTED and LOVED by those releasing it.  And guess what, you might go ahead and get started on your next film with them too.

BRENDA COUGHLIN (PRODUCER, DIRTY WARS): Early morning bidding wars and distributors texting your sales agent 7 minutes into your premiere screening are for the 1 percent of documentary films, even for ones at prestigious festivals. So, expect that not to happen.

At Sundance, the high mountain air–combined with jitters, lack of sleep, possibly a hangover–can have a deleterious effect. At 4am, I would’ve signed my life rights away to Michael Bay.

Counter this by arriving prepared, with 1) a well-thought out distribution strategy, 2) a solid plan to carry out that strategy, and 3) a team to help you. “I want as many people to see my film as possible” and “my film belongs in theaters” doesn’t mean much – there’s no strategy there. “The distributor will take care of that” is not a plan. “How hard can it be for me to do it myself” is not assembling a team.

Expect to forget your brilliant strategy and plan, so write it down. Have a cheat sheet with key deal terms and keep it with you at all times. Look at it at 4am.

Expect that any unresolved issues within your team – disunity on goals, for example – will emerge, at inopportune moments. Stave it off as best you can by trying to get everyone who needs to be on board with the plan organized and unified, in advance.

MORGAN NEVILLE (DIRECTOR, 20 FEET FROM STARDOM): Have a detailed plan going in so that if you find yourself negotiating in a condo in the middle of the night, that the most important things are agreed upon up front. Distributors often try to dominate the details of contract negotiations after the fact (since once an announcement is made, the leverage goes to them).  Think about everything from ancillary rights, minimum number of screens, marketing minimums and maximums. The more of these you can get into your initial deal memo, the better.

ANONYMOUS FILMMAKER #2: Ask your potential distributor to give you a list of reps from four films (and their phone numbers) that will recommend the distributor and who have received “overages” (money that exceeds the initial advance) from the original distributor.

DAN COGAN (CO-FOUNDER, IMPACT PARTNERS): Do business with the buyer that is most passionate about your film – the one that really gets it. With rare exceptions, there isn’t enough upside in the doc world for even the buyers to be motivated solely by $. They have to love the film. If you sense they don’t get it, or don’t really love it, don’t sell it to them. Not only will you will end up being miserable if you do, but if they don’t see the film the right way, they won’t be able to sell it well either.

ALLISON BERG & FRANK KERAUDREN (DIRECTORS, THE DOG): Everything will take longer than you will expect. Unless you’re in the middle of a bidding war and in a hotel room at 4am (congrats if you are!), then it takes a lot of time to hammer out all the details.

Try to manage expectations. If you do think your film is a good fit for theatrical, take a look at the box office numbers for other films similar to your own to try to gauge how theatrical distributors expect your film to do. Offers are based on what they project the return to be–not how much they love your film.

Work with people who get your film. Really listen to what they want to do with your film, who they think the audience is, what ideas they have for how they want to get it out into the world, how they like to work with their filmmakers, how many films do they take on.

Don’t take it personally.

PETER BRODERICK (DISTRIBUTION STRATEGIST): No deal is better than a bad deal.

SHOLA LYNCH (DIRECTOR, FREE ANGELA AND ALL POLITICAL PRISONERS): Realize that once you sign the distribution contract, you’ve handed over your film and may not have much input from that point forward.

DEAL TERMS

PETER BRODERICK (DISTRIBUTION STRATEGIST): The most important rights to retain (whether you make a multiple rights deal or split up your rights) are:

Direct digital – the rights to sell downloads and streams directly from your website

Direct DVD – the rights to sell DVDs from your website and at screenings. This needs to be coupled with the right to buy DVDs from your DVD distributor at cost or no more than $5.00

Educational – the rights to sell educational copies to colleges and universities, high schools, libraries, nonprofits, companies, and other organizations and institutions

Semi-theatrical – the rights to rent the film for single screenings (Note: if you are making a multiple rights deal, you can share these rights non-exclusively with your distributor)

Focus on the ultimate revenue split rather than the advance. Assuming you are working with an honest company, it is often better to take a lower advance or no advance to get a better revenue split. The distributor will recoup its advance from revenues before paying you any more money. An advance gets you some money sooner, but in the end may cost you a substantial amount of money that you could have made with a better revenue split.

Request a revenue corridor so you will receive some money (e.g. 20% of revenues) while the distributor is taking its distribution fees and recouping its expenses and advance. Otherwise you may receive no share of revenues for months or years.

BRIAN NEWMAN, CO-FOUNDER, CROWD PLAY): Look at your deliverables list (from a distributor) before you make a deal, and consider which items are negotiable. There are lots of little hidden costs in there.

CHRIS HORTON (SUNDANCE ARTIST SERVICES): Filmmakers and their agents should demand faster and more transparent reporting from distributors. Distributors aren’t even obligated to let licensors know when their film gets licensed to Netflix, et al.

MARC SIMON (ENTERTAINMENT ATTORNEY; DIRECTOR, UNRAVELED): Except for the smaller percentage of banner films that clearly will receive 7 figure offers (or high six figure offers in the case of documentaries), filmmakers should consider and understand alternative split right scenarios.  In today’s changing landscape, it doesn’t necessarily make sense to license all lucrative rights in exchange for an advance that doesn’t cover all the costs of making the film.  In the last year I have seen numerous filmmakers (especially documentaries) hold onto their rights to pursue self or service releases for theatrical rights and separately license TV and/or VOD rights (including splitting VOD rights between more than one entity where Sundance Artist Services was involved).

Essentially, there are two landscapes in Indie Distribution and filmmakers should enter Sundance with a clear understanding of which they are pursuing or whether they can pursue both at the same time.  One final footnote:  For filmmakers who do license their films to one of the big boys, it is important to understand, upfront in the deal stage, the payment schedules and reporting schedules that distributors intend to follow, in an effort to ensure that payments are made as soon as possible, instead of as late as possible.

ALEXANDRA JOHNES (EXECUTIVE PRODUCER, THE SQUARE): 1) It’s not about what they are paying you (to the extent that any MGs still exist); it’s what they are committing to (spend and markets etc.) so don’t get hung up on the upfront numbers. 2) Hold onto something–some territory or market–whether it’s international or one-off theatrical (rights to Gathr etc) or educational. It’s your baby and you are going to feel better having some control over something; don’t give everything away, because as a first-timer, you won’t have the leverage to influence how the distributors handle it and it can be heartbreaking to see your film fully mishandled in all territories and all media.

HEIDI EWING (DIRECTOR, DETROPIA): When you get an offer, make sure you understand the details. In how many cities are they planning to release your film? When do they think is the best time to release the film and why?  How much (if any) P&A will they put up for the release?  What other documentaries are they releasing along with your film? Will they pay for any type of Oscar campaign if you are shortlisted? It’s not enough to just have “a deal.” Know the business, ask questions directly and in person, advocate for yourself and your film. It’s your job.

ANONYMOUS FILMMAKER #2: Ask to see a waterfall before you sign a deal.  In other words, ask your potential distributor to show exactly what happens to the revenue from your film.  Use a simple number, like $100,000.  Have the distributor break it down for you market by market.

Set limits on P&A spending.  In theatrical deals, P&A can be a secret poison, slowing killing any chance of profitability.  Here’s why: P&A can benefit grosses and help to promote films.  BUT, because of the nature of the theatrical deal, it can be in the interest of the distributor to break even, rather than to return “overages” to the filmmaker. Ask the necessary questions until you understand why P&A giveth and P&A taketh away.

BRENDA COUGHLIN (PRODUCER, DIRTY WARS): Define what “theatrical” means for your film and negotiate these rights accordingly. Do you want a lot of markets? Or a targeted, limited run that basically serves as marketing for a digital release? If you’re relying on group sales (who isn’t?), what do these groups need to make it work for them? What about focusing on festivals as the backbone of theatrical?

In short, juggling rights needs to be an outcome of your particular distribution strategy, not the driver of your strategy.

So if you haven’t had a chance to think through it already, ask and answer questions for yourself. Think hard. Ask around from other filmmakers who have had films released in the last two years. What do you want for your film and what do you need – for the film, for your life, for your next film? What are your priorities and what are you willing to give up? Whose going to do the work and do they know that? Anyone got newborns or credit card debt? Factor that in. What happens if your distributor goes bankrupt or the president, who sold you on signing with them, leaves? Does your audience watch films on DVD or on Xbox? Do people in Australia actually need to see your film?

Finally, it’s not just about rights and money. That’s what people talk about at festivals. But six months or a year later, most filmmakers I know are talking about windowing, timing of the initial release, key art, group sales, paying for deliverables, support for going on tour with the film or for awards runs. Those are the deal points worth taking a stand over.

ROSS KAUFFMAN (DIRECTOR, BORN INTO BROTHELS): Bankruptcy clauses in your contracts mean nothing. Period. Even if your distribution agreement clearly and explicitly states in the contract, “In the case of bankruptcy, all rights revert to Producer”, bankruptcy courts will not consider this clause. The words, basically, mean nothing.

One nearly incomprehensible example involves hundreds of filmmakers (myself included) who currently have their films included as assets in the bankruptcy cases connected to the dissolution of THINKFilm despite the fact that just about every one of those filmmakers has some kind of ‘reversion upon bankruptcy’ clause in their contract.

MARSHALL CURRY (DIRECTOR, IF A TREE FALLS): There are a few cases where an “all rights” deal might make sense:

1) If your film has very significant mainstream crossover appeal (like say, 20 FEET FROM STARDOM). It’s hard to self-distribute on that scale, and the potential upside of having a distributor’s machinery behind your film might be worth the cost of losing some control and ancillary rights.  An exception to this might be a film where you control a powerful marketing tool, like in EXIT THROUGH THE GIFT SHOP.  In that case, even though the release was wide, it made sense for Banksy to forgo an “all rights” deal because he already had so much marketing muscle without a traditional distributor.

or 2) If someone offers you a lot of money up front. A famous musician told me once that he thought when he was first starting out that he should not push for big advances.  He thought the record label would appreciate the team spirit of the gesture and they would have more to spend on releasing his record.  But the truth is, he said, if you get a really big advance, it means that your label has more skin in the game and is going to work harder to make sure they recoup that advance. It’s a good lesson for film too, I think.

or 3) If you really don’t want to deal with the headache of self-distribution.  It’s very time consuming and requires some expertise and some money, so don’t underestimate those.  There are a lot of success stories, but there are also a lot of failures that you don’t hear about as often.

Do your homework about the distributor.  My film RACING DREAMS was sold to a company that was new to the scene, flashed money, and made big promises.  But it turned out they were not particularly interested in film distribution and were primarily playing games with their stock price on the penny stock exchange where they traded. They didn’t advertise in most markets; theater owners told me they didn’t even receive trailers or posters; they never paid the MG; and it took years of legal wrangling before we got the rights to the film back.

In contrast, Oscilloscope, which released IF A TREE FALLS, was very straightforward about their expectations for the film and their release plan, and they did what they said they would do. They don’t have the muscle of some of the larger distributors, but they are filmmaker friendly and allowed me to be a part of the DVD design, trailer edit, release, etc.

LUCY WALKER (DIRECTOR, THE CRASH REEL): For THE CRASH REEL we loved the deal offered by one distributor, Phase4 Films. However one sticking point was that I’m a design snob and I didn’t like their posters or DVD covers or artwork. So we insisted on veto rights on all art–I actually made it a deal breaking point–and I am so, so glad we pushed for it. The distributor really worked together with the film team on our art. The leverage of our added clause was imperative to getting our input and everyone wound up happy.  It is really important to me how the film appears and I’m such a lover of posters and thumbnails and art and trailers that it breaks my heart if a film I’ve directed has ugly or misleading or exploitative art or inferior trailer. The cover of my first doc DEVIL’S PLAYGROUND which looks like a bad horror flick makes me cry every time I see it.

ANTHONY ARNOVE (PRODUCER, DIRTY WARS): One other small bit of advice, regardless of your distribution strategy: find a great post-production manager and set aside money for additional post-production costs. The film will likely have to be reformatted at least a few more times and you will have new delivery requirements after Sundance that you probably have not anticipated.

EDUCATIONAL RIGHTS

DAN COGAN (CO-FOUNDER, IMPACT PARTNERS): If you think there is a very specific audience for your film that will not go to the theaters but will buy a DVD or pay to download the film, make sure you reserve educational/non-theatrical rights for yourself. All the buyers of every stripe say they exploit these rights, but very few of them actually do. If a buyer won’t carve these out for you, be damned sure that they have a plan for generating revenue and that you aren’t left just getting scraps from it.

BRENDA COUGHLIN (PRODUCER, DIRTY WARS): Longevity is crucial, especially for documentary filmmakers – a change in the life of a subject years later or the issue coming back in the news can make a film relevant and timely again long after the initial release. Think ahead: In five years, how are people going to see your film? Distributors tend to move on quickly – in some cases, after opening weekend – so pay attention to timing and not just of the initial release. Maybe there is an intrepid filmmaker out there who can work time-delimited rights around “in perpetuity.”

In the US, there’s a market around “educational rights” and this is a promising area–but only if it is right for your film. If you’ve done the research and believe there is a university or school market for your film, by all means go for it and retain those rights. It is just not a universal fit for all documentaries.

DVDs – yeah, I said it. Despite received wisdom, some audiences in the US and in this place called the rest of the planet still watch films on DVD. Even if you sell DVD rights, you can retain the right to distribute the DVD yourself directly at, say, community screenings or other events, and even get a low wholesale rate from the distributor. Civic Bakery has done it before with a smart distributor who saw this as a boon, not competition. I raise this not to make big claims about DVDs but just to emphasize the need to match rights to platforms with audiences for your film.

DIGITAL RIGHTS

DAWN PORTER (DIRECTOR, GIDEON’S ARMY): These days having an early digital release can be really valuable. Try and keep the holdback window short. The broadcasters put a lot of effort toward the premieres. Ask if they really need a long holdback if they want more than 3 months.

ANONYMOUS SALES AGENT: Filmmakers should carve out the right for “direct to consumer” rights via their social footprint or website, and by that I mean digitally. Topspin, VHX, whatever the platform. Filmmakers used to sell DVDs via their website and companies would allow this with certain restrictions in pricing. Now filmmakers can reach audiences digitally and there are many examples of success.

LUCY WALKER (DIRECTOR, THE CRASH REEL): I’d be happy to add my name to the point from the anonymous sales agent re reserving direct to consumer rights. On THE CRASH REEL we knew we had diverse demographics and audiences and fan bases–extreme sports fans, traumatic brain injury survivors and their families, moms and families, families with Down syndrome, etc and we wanted to do special things with our #loveyourbrain outreach campaign and also with selling directly with different packages suitable for those different audiences with a really great functional website that will also operate as a sales portal to view or buy the film. We reserved the right to sell direct in all territories and made great sales to theatrical distributors in all our goal territories and it’s been a real win-win. We are working with Topspin who we love to build our audience and create different fan packages (including our DVD or film streaming) to sell direct from our website. That way we hope to beat piracy / the bit torrents by giving audiences a fan experience that includes extras like deleted scenes or stickers or brain-injury-specific videos or unique snowboarding memorabilia, etc.  Our inspiration for this was Stacy Peralta’s BONES BRIGADE so we worked with Andrew Herwitz as our sales agent (who pioneered the BONES BRIGADE model) and we’ve been really happy.

Another bonus of controlling your own direct-to-consumer sales is that you get to build your own email database. This is so important as we filmmakers move to thinking of ourselves as “brands” and having an email list of fans will be something that we all need to build for our careers. Imagine if John Waters had a mailing list, or owned his films or the right to sell them direct to fans? Instead he has no rights and no fan database and he’s unable to easily leverage his tremendous fan base to help him produce more fabulous work.

JAMES SWIRSKY & LISANNE PAJOT (DIRECTORS, INDIE GAME: THE MOVIE): Regardless of your planned distribution strategy (Self/All-rights/Hybrid), we’d strongly recommend negotiating for the right to sell off of your own website (both digital & physical).  Aside from the obvious benefit of better margins & more control, offering your film on your film’s website allows for less obvious, but we’d argue, more important advantages:

Own The Long Tail:  It allows you to own the long tail of your film and capitalize off of organic search.  Your film will have a long life well beyond your initial marketing & promotional push.  Once the marketing spend is done & sales chart momentum begins to wane, the vast majority of people will discover your film in much more organic, word-of-mouth ways – many of which end up with a Google search for your film.  And, if you’ve done things right, you should be at the top of that results page.  You want to be able to sell your film one click after that point. Roughly a third of all digital sales for Indie Game: The Movie happened on indiegamethemovie.com.

Create an Audience for this Film & the Next: In the context of a larger self-distribution strategy, but also valid within a hybrid approach, selling from your own site creates a very real connection with your audience members.  Not only can you personalize & customize the experience for those people, but you will also own your own sales & customer data. I know, the thought of collecting emails is sometimes icky, but in reality, these are people who like your work enough to buy it. Chances are, they’ll likely be interested in your next project. If you are thinking long term (and you should be), building an audience–that you can actually get in touch with–will make the next project, and everyone after that, more successful.  If you believe in the idea of “1,000 true fans,” owning your data is the key to making this happen.

Invaluable Flexibility: Offering your film on your website and retaining digital rights allows for maximum flexibility in terms of promotions and sales opportunity–especially within the online space. Opportunities such as bundling, bonus content offerings, coupons, sales, organizational partnerships–all require a certain nimble-ness that you won’t find with more traditional digital outlets. Especially within the doc space, where core audience groups are readily identifiable, easier to reach & partner with, the ability to bring the film to them rather than point them to Amazon, iTunes, etc. is exceptionally powerful.

PETER BRODERICK (DISTRIBUTION STRATEGIST): It is better to sell your retail digital rights and your retail DVD rights to the same company. If you sell your digital rights separately, it will be much harder to find a company willing to only distribute your film on DVD.

KEVIN IWASHINA (SALES AGENT, PREFERRED CONTENT): Filmmakers need to understand the variety of digital rights which are out there – the majority fall within three categories:  TVOD, SVOD and FVOD.

TVOD or Transaction Video on Demand are those rights which are monetized by a transaction.  That can be in the form of a purchase or one time rental.

SVOD or Subscription Video on Demand are those rights which are streamed through an all you can eat subscription type service (e.g. Netflix, Hulu Plus, etc)

FVOD or Free Video on Demand are those rights which are streamed for free and are monetized through advertising.

Many TV distributors are now asking for “TV Everywhere” rights or associated streaming rights.  Broadcasters are wanting to stream these rights thru apps, their own branded website, etc.  The key is to understand the limitations on their definitions and ensure that there are no holdbacks or other encroachments which would limit filmmakers to monetize their content on other digital platforms.

Additionally, filmmakers should ensure that the fees charged are “inclusive of sub distributor fees”.  In many instances, a distributor will acquire a film, but use a subdistributor to monetize the film in an area where they may not be direct.  Some examples are WB Digital handling digital for distributors who may not be direct with all platforms, a hard good distributor like Anderson handling DVD and taking it into WalMart, etc.

HYBRID DISTRIBUTION

 BRENDA COUGHLIN (PRODUCER, DIRTY WARS): Let’s send this term “self-distribution” into the dustbin of history.

Most of the documentary filmmakers I know are intimately involved in distributing their work, no matter what kind of deal they make or don’t. In that sense, all distribution is self-distribution.

Similarly, no distribution is done only by you. Any way you slice it, you’ll have partners and be working with a team of people and organizations–whether aggregators or festivals, big exhibitors or small art house cinemas, digital marketers or crowd-funding supporters. A film doesn’t get seen without the help and interests of a lot of people.

Either way: it’s work. A lot of work. So much more work than you think. To repeat: You’ll work your butt off. So the question is not whether you want to do the work, it is what kind of work do you want to be doing for the next 18 months (at a minimum)? Identify the tasks and pair them with the best possible people or institutions you can find, cajole, pay or persuade to do them.

PETER BRODERICK (DISTRIBUTION CONSULTANT): “Hybrid distribution” is the alternative to giving one company total distribution control of your film for many years. The hybrid approach enables you to retain overall distribution control of your film, choose great distribution partners, and retain the rights to sell directly to North America and the rest of the world.

LUCY WALKER (DIRECTOR, THE CRASH REEL): Consider a distribution consultant like Long Shot Factory which can mastermind a self-release. We didn’t go this route, but there are great new services out there to help filmmakers navigate. Ditto Picture Motion masterminds social media campaigns.

HEIDI EWING (DIRECTOR, DETROPIA): Do I have the stomach to self release this thing? If you hate the deals coming your way but believe your film will do well on a big screen, consider the DIY model. It worked well for DETROPIA. This choice is scary and adds yet another burden, more time and endless energy to the process–time you could be spending starting a new project. On the upside, you can keep all of your rights and sell them yourself, standing to make money on the theatrical, your Netflix, DVD, VOD etc. It’s both empowering and a pain in the ass to be in charge of your film’s destiny.  It’s many things, but not for the faint of heart.

JAMES SWIRSKY & LISANNE PAJOT (DIRECTORS, INDIE GAME: THE MOVIE): Sundance is not the place for you to start considering self-distribution. If you think self-distribution may be a good fit for you, your film and your audience (and it not always is), then you should have been thinking about it long before your first distribution meeting. Direct distribution is only as good as the audience you’ve cultivated around the film–work which, ideally, has started much earlier in the process.

If self-distribution is in play for your project, you should head into the festival circuit with your strategy relatively thought through.  Meaning you should have put real thought into costs, revenues, timelines, effort & execution. You should then use this as a relative yardstick to compare & contrast offers. It may turn out that the deals offered make more sense than self-distribution.

Overall, if you choose self-distribution, you want it to be a choice–and an educated one at that. When self-distribution is simply viewed as a last-resort, chances are things won’t work out the way you want them to.

ANDREW COHN (DIRECTOR, MEDORA): I think the power to find alternative, filmmaker driven revenue streams though touring, speaking engagements, and “live events” is important. We just toured our film MEDORA to 30 cities in 50 days. The turnout was amazing. Audiences want more “experience” for their buck nowadays, and giving them a “night” with Q&A’s, special events/venues, after-parties, food, meet-the-directors–any way to distinguish yourself and make it an “event” more than just a screening. There are lots of awesome alternative venues and press waiting to write about your event. We may never be able to compete head-to-head with larger movies, but giving audiences a bigger, different experience is one way drive your audience out to see your film in large numbers without a huge PR & Marketing budget. This also gives local press a reason to write about your film. Having a newspaper or alt-weekly do a write up on your event will get lots of eyeballs onto your website, etc. It’s not even about the 75 people that come to the event. It’s about the 75,000 people in that city that read about it, and your film.

After all was said and done, we did make money. Most theaters were willing to do a 50/50 split (some of the larger theaters asked that we rented). Besides decent box office numbers (anywhere btwn 30-700 people, I’d say average was about 50-60 ppl), most of the profits came from DVD and t-shirt sales after the events. We also had some nominal “speaking fees” at some art centers and colleges, plus sales from the website during that period. We were driving a lot of eyes to the website through local press though. We do have a bit of a built-in audience and press/booking machine with FOUND Magazine. I’d say 20-30% of folks were fans of davy/FOUND. but most weren’t. We do have lots of local press contacts and some relationships with existing venues–but we hired a girl fresh out of college for 10 bucks an hour to reach out to local press and she did fine on her own. It was a really amazing experience; being able to see audiences connect with the film night after night (a rare thing). We also got to bring one of our subjects with us, which I would HIGHLY recommend.

HEIDI EWING (DIRECTOR, DETROPIA): Where are my peeps? Once you make the decision to self release you must assemble a crack team that includes an experienced booker, an outreach coordinator, an excellent and dogged publicist, an army of interns who love and understand social media and of course yourself, the fearless leader of distribution-dom. Go forth and find thy audience, they are out there in the world just waiting to see a film just like yours.

ADRIAN BELIC (PRODUCER, GENGHIS BLUES): The people you have met in the past will help you build your future. I feel that in the process of making my films, every person I had any contact with while making my film is an part of the team, an “investor” if you will, even if it was only a few words of wisdom/ suggestions or a pat on the back that they gave me on my journey as a filmmaker. I tell every filmmaker that once you are finished with your film, everyone you have ever met in your life must know that you have finished your film and where it is going, or you want it to go. My brother Roko and I were amazed at the people who helped us in so many ways when our first documentary feature GENGHIS BLUES was invited to Sundance. One of the most shocking and helpful discoveries was not simply how our friends assisted us, but how our friend’s friends reached out to help us. A little secret on how we have garnered as much support as we have over our film career is, I try my best to not ask anything from anyone, rather I invite them to be part of something special. I congratulate all those filmmakers that have finished their films and I say you are now half way there, welcome to the adventure of distribution and just like making you film, in distribution you are the leader, no matter the team you build around you and the film’s distribution. Wishing you all the best and enjoy the ride!

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