HONEST BROKERS
In a saturated market, do producers need producer's reps in order to get their films seen and sold? Reed Martin looks at this world of dynamic middlemen.
Dot-com dreams have crashed to earth, but the notion that a completed independent film can be sold for a ton of money is alive and well. Despite mounting competition and incredible odds, many filmmakers secretly believe that their project will someday join the ranks of The Spitfire Grill, The Castle and Happy, Texas by pulling down a huge Sundance sale.
"The biggest misperception filmmakers have these days is that they’re going to hold a screening at a festival and someone’s going to pull out a checkbook and hand them $10 million," says Rick Sands, chairman of worldwide distribution at Miramax. "Those days are over."
Sony Pictures Classics co-president Michael Barker agrees: "The fact of the matter is 'The Big Sale' is an aberration," he says. "In many cases – actually, in all the cases – its overpayment, and the likelihood of it happening is like winning the lottery."
Regardless of whether filmmakers are hoping to cover a new Saab or just back rent, when faced with the job of selling their film, most still wind up in the arms of the one person who might be best able to broker that big-ticket deal – the producer's rep.
"‘producer's rep’ has become a catchall term for an agent, manager or anybody who works on selling a film," says Ruth Vitale, co-president of Paramount Classics, the distributor of You Can Count on Me and The Virgin Suicides. "[producer's reps] know the business, know the players, and can give the production team guidance where they need it."
REPS – WHO NEEDS ’EM?
According to attorney and longtime rep John Sloss of Cinetic Media, who has repped such indie milestones as Boys Don’t Cry, Ulee’s Gold and, more recently, [Michael Almereyda’s] Hamlet and [Richard Linklater’s] Waking Life, the producer's rep has to be something of a chameleon. "The ideal producer's rep would actually be two people," Sloss says. "One is the ingratiating good cop who beats the drum for a movie and is all of the distributors’ best friends. The other is the quote-unquote bad cop, strategizing behind the scenes and manipulating interest, once created, to obtain the most beneficial deal for the filmmaker."
For many experienced producers, the necessity of having that bad cop in the mix demands that they hire a producer's rep. Younger producers shopping new projects to several distributors might want to distance themselves from the political fallout of a nasty bidding war or even an acrimonious lunch. Or a producer may simply want to represent to his or her investors that an experienced sales hand is handling the film.
"For the films that I think have huge [sales] potential, I would not dream of sitting in a room and negotiating with Harvey Weinstein. I would absolutely have a rep," says producer Gill Holland, who has both employed producer's reps and acted as one himself. "I would assume the rep’s participation would be worth more than the five percent I would pay them. Just like a star actor, a star negotiator can enhance the value of your movie." he adds, "On the little films, I can do it myself and not give away five percent of something that I might to need to get my investors their return."
Former Fine Line Features president Ira Deutchman, however, now a producer's rep and CEO of New York-based DV film production company Studionext, cautions first-timers about flying solo. "Inexperienced producers need help on several fronts, and that means hiring [a rep] who is going to pre-market the movie, position it for festivals, work with the press, work with the festivals for the best slotting possible, come up with a strategy for launching the film, deal with the buyers and, ultimately, negotiate whatever deals come along."
HIRING THE REP
If producer's reps are usually hardball negotiators skilled at securing a film’s highest price, it’s for good reason – most work on commission. Cassian Elwes, who, along with Rena Ronson, reps films under the William Morris Agency Independent shingle, charges a fee of between five and 10 percent of the film’s net proceeds to the producer. (The actual fee, he says, depends on the size of the film, the amount of work involved and whether he was involved at the film’s inception or became attached after it was completed.)
Cinetic Media, a consulting firm that specializes in project financing and producer's representation, charges seven-and-a-half percent (which includes legal work), but senior executive Micah Green believes that even 10 percent is a very fair rate. "Sometimes you can pick up a film and sell it for a lot of money with very little work, but that almost never happens," he says. "Most of the time it takes a lot of effort to get a film sold, and in the case of Cinetic, we can spend a year and a half working on the film to earn our seven-and-a-half percent."
But with fewer completed films being bought and distributors holding the line on the prices they are willing to pay, producer's reps are having a harder time making money for filmmakers and for themselves. "As a stand-alone type of a business, it’s a very difficult environment right now," says attorney Michael Roban of Kauffman & Roban, who repped the documentaries Better Living through Circuitry and Trembling before G-d. "If the filmmakers are having a tough time, obviously it can’t be great for producer's reps."
To make up the difference, some reps are getting on board as producers during production and raising the rates on the completed films they do rep. And, controversially, others have even started to charge retainer fees. "There’s a new breed of rep cropping up in recent years who are, in my opinion, preying upon the dreams of the filmmakers who have made films that are marginal at best," Deutchman says, who has repped indie classics such as Metropolitan, sex, lies and videotape and, more recently, Shadow Magic and Human Traffic. "A few reps will even charge just to watch your movies, and to me that’s a complete sham. If they truly believed in the films and their potential, they wouldn’t even think about charging for anything."
Roban says however, that even legitimate reps sometimes have to charge a fee given the increasingly competitive nature of the low-budget film sector. "The biggest problem for small films without a major cast is that financially it’s much more difficult for a producer's rep to take the job purely on speculation," he says. "As small films become less of a money-making venture in the marketplace, working purely on a percentage basis becomes an increasingly dicey proposition."
Roban believes the situation started to change in the mid-1990s. "It used to be easy for a filmmaker going to Sundance to engage a producer's rep for a percentage of the sale and not have to pay anything up front," he says. "I think right now that’s a very difficult thing for filmmakers to do. Fewer producer's reps are working on spec and I would urge filmmakers to consider paying retainer fees because I think they will get a better level of service."
But although many reps don’t charge fees, they also won’t take films they don’t think will make them money. "It’s a huge amount of work, and because a lot of these smaller films end up getting no advance, you’re really working for zero money," says Howard Cohen, an agent at United Talent Agency (UTA) who reps films as well as director clients.
Even Holland, who has sold numerous small indies, won’t rep a film unless he thinks it can sell for more than $100,000. "It’s just not worth my time," he says unapologetically. "You have to massage the festivals, and there are 80,000 festivals. You have to organize the screenings. You have to get the press to attend, and then you have to make sure the distributors hear what the press thought. Even if you know all the distribution people, they still don’t necessarily show up."
Concurs Miramax’s Sands, "Lately a producer's rep’s goal is just to sell the film; it’s no longer about driving the price up. So many movies are just not sold at all these days."
WORKING THE FESTIVAL PREMIERE
For some lucky filmmakers, the first contact they’ll have with producer's reps is when their film gets selected for Sundance. Once that Sundance list is published in the trades, the most aggressive reps contact filmmakers directly and solicit their services. But despite the hothouse environment of such a festival, Elwes, who has sold such films as Sling Blade and Happy, Texas, claims that he does his best to discourage filmmakers’ unrealistic expectations.
"A lot of people come in with stars in their eyes about how they’re going to get $10 million for their movie," he says. "They think, ‘You’ve done that before, so you’re going to do that for me.’ I think those kinds of deals are the exceptions rather than the rule." Elwes says his primary goal is to get the filmmakers to revel in the fact that they have been asked to participate in a major festival and to not think of their film as a lottery ticket. "I tell them the main thing is to enjoy themselves, because it’s not every day you have a film that’s going to be spotlighted in competition at Sundance," he adds.
Tom Bernard, co-president of Sony Pictures Classics, agrees. "We meet these filmmakers and we ask, ‘What do you want for your movie?’ thinking they want it handled a certain way or that a certain audience should be reached. Instead they say, ‘A million dollars!’ They literally think it’s going to be like the Christie’s auction house: ‘One million dollars, there! Two million, over there!’"
Before a festival begins, the producer's rep will help the filmmaker fend off the hordes of junior acquisitions folk all claiming that their company should see the film first. Although reps will sometimes hold pre-festival buyers screenings, usually any film deemed to have audience-pleasing potential will screen for the first time at a festival.
"Festivals, especially Sundance and Toronto, allow you to create ‘The Great Moment’ for your film," says Mark Stolaroff, director of post-production and finance at Next Wave Films, a division of I.F.C. Entertainment. "I was there when
premiered at the Eccles Theater in 1998. Everybody went to that screening – it was sold out, it was packed, there was this incredible energy. It was such a thrilling moment when the audience went crazy that the buyers said, ‘Wow, this is that kind of movie: it’s unique, it’s intelligent and it’s got audience appeal. And that’s when the offers flew."
Comments Cinetic’s Green, "One horrible misperception filmmakers have is that distributors are actually interested in their film" before they’ve seen it or seen it with an audience. "The fact that studios are calling about a movie before they’ve seen it reflects nothing. We often meet filmmakers who are confident that they have a good shot at distribution because a certain company is convinced – from what they know about the film – that it would be appropriate for their slate. But a filmmaker would be mistaken to rely on that assumption."
Almost any good film will play better at an oversold festival premiere than it will on video and after lunch in a Herman Miller-decorated conference room. producer's reps generally prefer selling in the crazed atmosphere of a major festival because it’s the best way to create that rare thing – a bidding war.
"It’s like doing a drug deal," Bernard says of buying a film in such a situation. "You’ve got to meet a guy with a cell phone on a street corner, and he’s got another guy waiting in a condo somewhere. It’s almost as if they expect you to show up with an aluminum briefcase full of hundreds. And at Sundance there’s no organized manner in which to do business, which makes it even crazier. Often you’ve got to see two movies at one time, and one might be 60 miles away in another town on the other side of the mountain. There isn’t a place where you can watch a movie if you don’t make the screening that the producer's rep is holding, and there isn’t even a center – a business center – where you can find all the sellers."
In this environment, producer's reps use the pace of the festival to bid up the price of the films they are repping. "Sellers can whip people into a frenzy very easily when things are not accessible," Bernard adds. "Some buyers didn’t see this one, some saw the other one, and all of a sudden it becomes a bidding frenzy."
After making sure that decision makers attend the public screenings, amplifying good buzz is the producer's rep’s main job at a festival. "We [at Miramax] certainly don’t like to be used to raise the price against one of our competitors, but it’s done all the time," Sands says, citing one notorious producer's rep trick. "They tell us that another company is interested, and they tell the other company that Miramax is interested, and they try to create a frenzy."
Often, Sands says, he’ll confront the producer's rep and let him or her know that he really isn’t at all interested the film – or appreciative of the gambit. "They just laugh," he says. "They shrug, ‘Oops. I got caught.’ "
Sloss, however, asserts that his method involves turning down the heat. "My general approach is to create the lowest expectations possible but still get people in the theater," he remarks. "In most cases, heightened expectations are the worst enemy of a film up for sale." Citing as an example Albert and Allen Hughes’s American Pimp, which his company did not represent, Sloss continues, "[That film] was so overhyped that people wanted to hate it. And it was a perfectly good film. It was just set up poorly."
Having been in the business for years, senior indie distribution executives claim not to be swayed by artificially flavored buzz. "I don’t think that anyone who does this professionally is really open to hype, because the product speaks for itself," Vitale says. "We will go to the theater, we will see it, we will make our own personal analysis, and we will decide – [co-president David Dinerstein] and I together – what we’re going to buy."
Still, anyone who has observed the process of selling a film at a festival is struck by the clubhouse atmosphere that informs the negotiating process. Although producers may hire reps to have an unsentimental Dirty Harry on their side, the rep’s friendly social relationships with key film decision makers is also part of what’s being bought for that five to 10 percent commission.
Says Vitale, "We get along with most of these guys and have really good relationships with them, whether it’s Cassian Elwes or [ICM’s] Ken Kamins or [UTA’s] Howard Cohen and Dan Aloni." Like Vitale, Sands doesn’t mind the dance. "The people who represent the filmmakers know how to work the room," he says. "They’re good, and they’re fun. They know how to get interest up."
Once a film screens at a major buyers festival – Sundance, Toronto or Cannes – the reactions of audiences, press and the acquisitions community will spell its destiny. After the screening, the producer's rep will quickly garner reactions from key distributors, communicate them back to the filmmakers [Cinetic even has a secure Web site where filmmakers can key in a password and read synopses of all the acquisition folks’ comments], and then either work to seal a deal, build on good buzz or else spin doctor a poor screening. In the rare case of a standing ovation and mass adulation, a deal can be negotiated right away, before news of Weinstein passing on it or a negative Variety review can cast a pall on the film’s prospects. The rep will speed-dial (or snowboard) between competing bidders. A third strategy involves locking himself or herself in a hotel room with the filmmaker’s first choice of distributors until a deal is sealed.
INKING THE DEAL
Although the press focuses almost exclusively on a film’s upfront advance, which is usually reported erroneously, the producer's rep must negotiate the purchase price and other critical deal points.
"I think the actual release commitment is just as important, if not more important, than the financial commitment up front," Elwes says. "I can’t stress enough situations where films have been bought for large amounts of money and then dumped by distributors because the right people didn’t see the movie until after the film was bought.
"In a Sundance situation, the acquisitions people have nothing to do with sales or marketing," he explains. "So the film is acquired and all of a sudden the sales and the marketing guys get this movie – they’ve had no say in it, they’ve had no time to see or think or give any feedback to it – and they say, ‘We don’t see a market for it. We don’t get it, and we’re not behind it.’"
Indeed, Dinerstein, says it is more important for an independent film to get a cohesive marketing strategy than a big up-front payday. "It’s wonderful to say you have a deal with a mini studio, but if you’re a first-timer and your film doesn’t do well, you’re going to be hard-pressed to get a second film made," he warns. "It doesn’t mean the film has to gross a huge amount of money, but it does have to be handled in a certain way so it can be seen by a large group of people."
So the producer's rep will try to ensure against a half-hearted release by demanding from a distributor a minimum prints-and-advertising commitment, an outside release date and a guarantee that the film will open in, say, at least 20 of the top 50 markets. The rep will also attempt to strike favorable deals with regard to the way the film’s revenues are defined and treated. (In almost all sales of independent films, the so-called sale price is actually an advance on distribution revenues.) In a deal on a risky film with a low advance, the rep might propose a "gross corridor" deal whereby some percentage of a film’s gross revenues to the distributor, either before or after the distributor’s break-even point, is returned to the filmmaker. And in a deal involving a single distributor buying world rights, the rep may try to ensure that foreign profits are not "cross-collateralized" against domestic losses.
"You can almost never make a deal within North America that’s not cross-collateralized," UTA’s Cohen says. Furthermore, he believes, "If you get offered $400,000 for U.S. rights only versus $600,000 for the world, you are better off taking the $600,000. It’s very hard to collect on international. American indies are having a tough time internationally, especially now. They just don’t sell in a lot of territories."
Sometimes the rep will negotiate a sale involving more than just the domestic or foreign rights to a film. Therefore, when filmmakers see seven-figure advances quoted in Variety, they should take comfort that these figures often include defrayed post-production costs and advances on the director’s next project. "Many times you’re buying an option on the director’s next two films, but that investment is wrongly included in the headline of the big story about the film’s purchase price," Bernard says.
Of course, the rep’s ability to successfully obtain guarantees for a filmmaker depends largely on the "heat" produced by the film itself. "If only one distributor is interested, they’re going to pay what they feel like and not cover the cost of delivery or very much else," says Next Wave Film’s Peter Broderick, who repped Christopher Nolan’s first film, Following. "But if you have a situation where a bunch of people are really excited, then you’re going to have competition on the advance, on the P&A commitment and maybe on what they’re willing to put in for delivery and a big soundtrack."
"Palpable excitement," says producer's rep Jeff Dowd, is integral to a successful deal and a rep’s ability to negotiate: "The people at the distribution company are regular people like you and me. If there’s not an individual at a distribution company who falls in love with a picture and says, ‘Look, this is going to be tough as all hell, but you know what? I love this movie, and this is why I have this job, and I’m willing to work eight days a week on it,’ they aren’t going to pick it up." In the heat of the moment, distribution plans, marketing commitments and future-picture options are a lot to think about for a first-time filmmaker.
"It’s a really complex and difficult world — and filmmakers need to have folks on their team that can help them avoid making mistakes, which in some cases are fatal," Broderick says. "For example, a filmmaker can get into a situation where he or she lands a deal but it’s going to cost them an additional $200,000 to satisfy the [distributor’s] delivery list because it wasn’t discussed during the negotiations."
THE RIGHT REP FOR THE RIGHT DEAL
Because there are so many pitfalls to navigate, filmmakers are advised to find producer's reps as soon as possible. "I generally recommend that filmmakers do their homework about potential reps even before their film is accepted to festivals, decide who they want to represent them and start showing the film to them in the order of their preference," Green says. "There are festivals that are more appropriate for certain films – it all depends on the film – and the sooner they start working with a rep, the sooner he can help guide them through the process." Sloss advises subjecting potential reps to an in-depth interview. "[Filmmakers] should ask: ‘How are you going to sell my movie? Do you think it will sell? Who do you think are the potential buyers? And what is your strategy?’ And a question that people really need to ask is, ‘If it doesn’t fly off the shelves, are you going to maintain your commitment to getting it sold?’ "
Filmmaker Stephanie Bennett, whose feature Some Body screened at Sundance in 2001, was repped by Next Wave and subsequently sold to Lot 47 Films, says, "It’s important to sit down with [potential reps] and make sure that you like them as people and that they have seen and like your movie. I know that sounds silly, but a lot of producer's reps will call you up even though they have never seen your movie before."
Filmmakers are encouraged to continue this probing approach throughout the sales process. "I want the filmmaker to be involved in the process with me – it’s their movie, not mine," Elwes says. "I think they are entitled to be part of the process, especially meeting the distributors and the negotiations. It’s very much a part of the learning curve for them, and I think they should participate."
Another job for the producer's rep may be mediating among a director, a producer and the film’s investors. A great company may offer a small advance for a film but promise more careful handling than a bigger company less adept at releasing specialized product. A prestigious company that will boost a filmmaker’s reputation may be bidding against a risky startup throwing around more cash. Or, as occurred this year at Sundance with Henry Bean’s The Believer and Allison Anders’s Things behind the Sun, filmmakers can be forced to decide between lucrative cable deals and lower theatrical offers.
"If you get a bigger advance from one company but they plan to release it straight to video, versus an offer from another company that might be offering less money but is committed to releasing it theatrically, you have to decide what is more important," says Money Train producer Adam Fields, who also produced the Sundance film Donnie Darko. "Is it the money or the desire that people see your film in a theater, which presumably was why you spent a year or two years of your life making it in the first place."
UTA agent Cohen, who repped Billy’s Hollywood Screen Kiss, Trick and O, recently purchased by Lions Gate Films, says he often finds himself walking a tightrope between a film’s investors – who want cash money – and the filmmakers – who want the public to see their baby in a movie theater rather than a home theater. "It’s a significant problem, and I face it all the time," he says. "I think the misperception a lot of filmmakers have is that just because they’ve made a good movie, someone’s going to want to buy it and release it."
Roban believes this question strikes at the hearts of idealistic filmmakers who draw from a well of what some would call lunatic optimism. "That’s the biggest crisis that’s facing these filmmakers today," he says. "How is making a small independent film a profitable venture? How can I sell this to investors, and what is it that I’m promising them?"
When it comes to playing referee between filmmakers and the financiers, Elwes says, "In the long run, I think I’m able to make both sides happy because I always help them pick the distributor who is going to do the best job with the movie. As for the financiers – as long as they make their money back – making a huge profit is not as important as being put on the map as serious financier-producer so they can get their next movie off the ground."
What if a film doesn’t get into any major festivals? Or what if a filmmaker decides to opt out of the festival rat race, preferring to let a distributor help push the film into a prestigious fest? Although some producer's reps may pass on a film not deemed to have solid launch possibilities, others will devise alternative strategies such as holding individual or group buyer screenings or screening excerpts of scenes for buyers. The former strategy worked for Sling Blade, which was bought by Miramax just after its producers learned that it was rejected from Cannes. And the latter worked for Boys Don’t Cry, which Sloss sold to Fox Searchlight on the basis of half an hour of video clips.
THE DARK SIDE OF THE REP
Whereas producer's reps are lauded by filmmakers whose films have sold successfully, they are also pilloried by those whose films are rejected by buyers. A common complaint is that the rep has too many films on his plate and isn’t pushing a filmmaker’s title hard enough. (Of course, the counterargument is that a rep’s slate of successful films will drive buyers to at least check out another title.) Some industry veterans complain that certain unscrupulous producer's reps habitually push their luck. "David and I are always saying if we had a quarter for every time a rep came up to us and said, ‘This is the movie,’ we could retire. It’s a disservice to the filmmakers when [reps] do that sort of thing," Vitale says, "and it makes it hard to trust them when they do have the right film." Reps can even end up overhyping the film to the filmmakers. Says Dinerstein, "Sometimes a producer's rep will tell a filmmaker there’s interest in his or her film so he or she will think [the rep] is doing their job. Sure, there may be interest in seeing the film, but not in buying it!"
And, despite protestations to the contrary, there are those who doubt the producer's rep’s ability to walk away from 10 percent of a big advance in favor of an offer from a smaller company with perhaps a stronger release strategy. Bernard, whose company is known for both its modest advances and careful handling of independent films such as The Tao of Steve, Run Lola Run and Crumb, says, "There is one drawback with a lot of these producer's reps, especially the ones who are handling large amounts of people, and that is that they are working on their percentage and not trying to match the film with the right distributor. They take their 10 percent and put the film with a big-money distributor that doesn’t have the sensitivity for releasing the movie, and you end up with a disaster."
On the other side is Green, who comments, "Distribution companies want the filmmaker to take all of the risk. But most filmmakers want to find a distribution company that’s going to share in that risk, someone who is going to make the filmmaker whole, recoup them on their investment, and make some sort of assurances. That way, we know the distribution company is committed to putting significant resources into the release."
STAYING SINGLE IN A REPPED WORLD
So what if a film doesn’t sell? While star producer's reps are held in reverence by filmmakers whose films are sold for multiples of their production budgets, many other filmmakers walk away from festivals each year disappointed. "Everybody goes into Sundance thinking they’re going to walk away with a distribution deal, but the reality is, it doesn’t matter who’s repping your project – only a certain number of films have that potential," Green says.
Although all producer's reps interviewed said they continue to work diligently on selling films that didn’t catch fire at that all-important first festival, the sad truth is that the more time goes by, the harder it is to make a sale. "People are going to have the perception later on that your film screened at ‘x’ festival and nobody bought it, so it’s probably not any good," Broderick says.
Indeed, if a film doesn’t nab that big fest pickup, the producer should be prepared to stay on top of his or her rep and, ultimately, if necessary, develop his or her own grass-roots strategy to get the film seen. "A lot of times, nobody knows better than the filmmaker," Bernard says. "A filmmaker should never just stand back and let the producer's rep work his or her magic."
Holland is one producer who insists that filmmakers must be psychologically and financially prepared to actually go it alone. "The job of the film producer is a little more expansive nowadays, and you have to think with a distributor’s hat on," he warns. "They say anyone who represents himself in court has an idiot for a client, and that may make me an idiot, but producer's reps won’t take on a film that’s going to sell for under a certain amount. The producer of an independent film today has to also be planning to be the film’s producer's rep and its distributor."
As daunting as this may seem, Holland says it can be done. "You have to put together a database of every distribution company in the U.S., every home video distributor, every possible TV outlet," he says. "There are a hundred little distributors. Then you have to find out what their tastes are and try to guess – from asking a lot of questions – what they pay, what you can expect in terms of creative input, and what you can expect in terms of release. "We released Spin the Bottle for a week at the Pioneer Theater in New York City and sold the video to TLA Video. It just came out on DVD, it’s doing really well, and now we’re talking to Bravo, the Sundance Channel and the IFC to see if we can make [a cable] deal," he continues. "You just have to be prepared to do all the work."
The problem with this approach is that filmmakers often have little by which to judge the strength of their deal, because bases for comparison are hard to come by. "Nobody wants to have to tell anyone else that they didn’t make any money, so a lot of times deal points are kept secret [between producers and distributors]," Holland says. Producers acting as their own reps can hire entertainment attorneys to assist in the negotiating or can simply cull information on a bidding company’s deals by calling the producers of other films in its catalog.
At the end of the day, obtaining a good producer's rep is just one more step among the many that are taken to develop, produce and release an independently financed feature film. But just as filmmakers should persevere if they are rejected from Sundance, they should also not despair if they are passed on by the top reps.
"It makes sense to try to get representation, but not all films get reps," concludes Good Machine international president David Linde. "Everybody can pass on a movie before it gets into a film festival and the audience responds enthusiastically. Then, lo and behold, everybody wants the movie. Films sometimes suddenly come out of nowhere. So I would say it does make sense to try and get representation, but if you don’t, don’t give up. Keep at it."
Also see sidebar: Twelve Tips For Selling Your Film.
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