Online Content – Take 2

It’s rare that I raise the same issue two weeks in a row. But the contracts that online platforms are seeking to put in place—or are with those who either don’t know what they’re signing or don’t care—are so unfair that that the guilds are extremely concerned.

There are four key issues at stake:

1. Compensation
2. Intellectual property rights
3. Editorial Control
4. Sustainable work

Content creators are being asked to deliver high-quality scripted content that will bring eyeballs to screens and deliver revenue, directly or indirectly. The compensation being offered to do this is pitiful for the work required. With appropriate levels of compensation not being the ‘give’ that the platforms are offering for the ‘get’, you would expect that they would be fair and reasonable when it came to terms and conditions for the content. But they are not.

The most draconian of the contracts that the guilds have seen are asking for all rights for ever and a day from those coming in with developed ideas.

Then there are the incidences where creators are being employed for poor levels of pay to generate and develop content ideas that they have no rights in.

And when passionate content creators are asked to produce their own ideas under contracts for little money without the editorial freedom that stimulated many of them into getting into online content in the first place, they feel exploited. And it’s hard not to agree with their viewpoint.

A classic cry from the platforms is that they are offering content creators a space on the internet that can put their content in front of a lot of eyeballs with marketing backup. Another is that in this new world of content creation you can’t expect to get paid well for the work you do in the manner that you may have been in the past. And another is the ‘talent development opportunity’ and ‘talent exposure’ that they are giving you. Yet in this new world of content creation they are employing old world contracting norms that don’t allow content creators to fairly benefit from their endeavours, and to build sustainable careers.

I repeat what I said at our Screenlink evening on Lo-budget Content Making this week—Do NOT sign a contract with an online platform without showing it to a guild or entertainment lawyer. You are doing yourself, your colleagues and your industry a disservice if you do.

Tui Ruwhiu
Executive Director

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Web Series – Opportunities or Rorts?

Ever since Auckland Daze transitioned from online to TV, web series have been seen as an opportunity for young scripted programme makers to get the break they so desperately want and have been effectively shut out of in broadcast in New Zealand.

Of course there are those who see YouTube and other online platforms as a revenue generating opportunity and produce content in the hope that they can turn their web programme making into paid work.

And then there are the truly passionate who just want to make stuff and put it out there for people to see without a lot of expectation, hoping that their good work will get noticed and lead to something better.

On the other hand there are some, like Shoshana McCallum, who created a full spec TV pilot as she did with Animals to pitch to a network, which got shutdown and now it’s online so it at least gets seen.

Then there were Gerard Johnstone and Luke Sharpe who revamped Terry Teo for TV 2 and ended up having it pushed to OnDemand without it seeing the broadcast light of day until TVNZ responded to criticism by promising to schedule it and defending their non-broadcast play citing a viewer rating concern.

Some time ago, particularly after the success of KHF Media’s Reservoir Hill, New Zealand On Air realized there was no turning the digital clock back and so they gradually expanded digital content funding streams to deal with what would inevitably become a growing area of application activity.

The initial largess NZ On Air showed Reservoir Hill with 8 x 8 min. eps at just over $300,000 or $4,700/min. has essentially dropped to $100,000 for web series for around the same number of eps and mins., at essentially $1,500/min.*, although some series are going as low as $500/min., and some as high as $2,500/min. And now you have to make a pilot to go with the application.

Here are some comparable numbers for broadcast comedy shows; the genre most popular with web series: Agent Anna 2 (TV One) at $8,200/min., Auckland Daze (TV One), which moved from online to broadcast at $2,800/min., Paranormal Event Response Unit (TV2) at $4,700/min., and Find Me A Maori Bride 2 (MTS) at $2,800/min.

*(Per minute rates are based on the half hour or hour, not the actual commercial duration.)

It’s my guess that anybody working on a scripted show for less than $4000/min. that varies it’s locations and cast, employs art direction, make up, props, costumes, etc. and pursues a quality production approach is not getting paid properly.

So how are people being compensated fairly?

Are cast and crew getting back end points in the production of a web series on which they work for low or no pay so that they can share in any revenue upside that might come from developments like an additional sale, a move from online to broadcast as in the case of Auckland Daze, or an offshore remake as happened with Reservoir Hill in Sweden?

When producers retain the intellectual property of a show and get cast and crew to work for free or below market rates, they have an obligation to share the success with the team that helped get them there when something goes good. And cast and crew have an obligation to demand it, even when it’s from friends as it most often is.

And what about when media giants want to pay little more than the basic wage for the creation and production of online content, take all the rights to ideas that creators come up with, rely on the creative execution of directors, editors and others to craft good programming, then monetise it to generate revenues for themselves? Something’s not right here, surely.

Film has essentially been the home of the above-the-line creative delusional—web series it seems is now the digital equivalent—There’s no lack of people laying their heads on the digital block with pilots for TVNZ’s and NZ On Air’s New Blood Competition in the hope that something greater will come of it.

If you are not being compensated at market rates for the work you do on a web series or online project, ensure that you negotiate the opportunity through points or another mechanism such as shared IP ownership to benefit later if additional revenues ever flow. Or ensure that you agree to a deferred fee arrangement for the difference and maybe a backend kicker that gets paid to you when the producer/rights holder starts to see money come in, either with the content you helped create or another series, version or manifestation of it.

And get your contract or agreement on paper, even if it’s a deal memo and not a long-form contract, before you start working on a project, not after you’ve started, particularly with mates—it’s merely being professional about the whole thing.

There are many positive outcomes that can flow when you contribute your time and expertise for nix or next to nada, and there are just as many rorts. Make sure you are on the right side of the equation. You deserve it. Otherwise you won’t build a sustainable career.

 

Tui Ruwhiu
Executive Director

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Just Do It?

I was listening to an interview with British director and editor Ben Wheatley on a podcast the other day.

Wheatley in case you don’t know him is considered the new enfant terrible of British film.

He started out making videos for YouTube and got noticed, went on to create online content and then moved into TV comedy.

He wanted to know how he could get into feature film and was told he needed to make a short. Being impatient, Wheatley pooh poohed that idea and went straight to a feature. He shot his first one in eight days, drawing on his experience doing fast-turnaround TV and approaching it like shooting a documentary, going hand held. The result was Down Terrace, which was released in 2009. It was well received by critics and has an 85% approval rating from Rotten Tomatoes. His second feature Kill List, which was shot in 12 days, marked Wheatley as a filmmaker to really watch. Wheatley has with the recent arrival of his latest feature Free Fire now made six feature films, nearly one a year—and the budgets have been getting bigger as has the star power—amongst others Tom Hiddleston in High Rise and Brie Larson in Free Fire.

Wheatley’s from the ‘Just Do It’ variety of filmmakers. He and his mates from outside the film industry (but in the production industry) got together to make Down Terrace, and they’ve been working with each other ever since. He’s trained himself as an editor as well as a director, and this editing experience and his TV training he says has helped him get the coverage he needs on his films and not more, as well as always making his day.

There’s a theory that says TV directors lack a voice and therefore can’t make a decent film. Wheatley’s disproven that as he has a highly distinctive filmmaking voice. And in expressing that voice he’s come up with a process and philosophy that he prescribes to. From amongst many of his thoughts on filmmaking, here are six Wheatley tips for aspiring filmmakers (with my paraphrasing):

  1. Create the Industry Around You—i.e. kick the doors down and don’t wait around for bureaucrats/permission.
  2. Acquire a Particular Set of Skills—if you want to be a good low-budget filmmaker, you need to understand the process and all the roles of production well to be efficient.
  3. . Keep It Small—the bigger the beast, the harder it is to wrangle.
  4. Your Actors Are Your Biggest Asset—great performances work anywhere, poor performances just don’t cut it.
  5. Chop It—get rid of what’s not good… brutally. And don’t be afraid to go against convention when you do.
  6. Don’t Be Precious—just make stuff, and learn from it.

Of course, there are a lot of people out there already with the ‘Just Do It’ approach. And many of them are making bad films because it takes more than an attitude to make a good film—it also requires talent. Which doesn’t mean to say that you can’t learn from your mistakes and get better as you go. Filmmaking however is an unforgiving beast, particularly when it comes to funders. You have a good chance of surviving self-funded flops, critically and box office wise, particularly if not many people have seen it and you’re not using one to promote your next project. Make a flop with a funding body however and you are going to find it hard to get another project up as a director.

Just do it? Yes, that philosophy has its merits. But if you can, make the first one good, and the next one better than the last. That way, you might be the next Ben Wheatley (or Taika Waititi).

Tui Ruwhiu
Executive Director

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Newsflash

I try to stay up to date with what’s happening in the film and TV industry both at home and abroad by reading as many items and articles as I have time for. A few things have caught my attention in recent times that I would like to share with you. Some bode well for our industry while others take an in-depth look at the difficulties we face going forward, and how some are addressing them.

Firstly, news out of the Statistics Department has Gross screen revenue for the year increased 3 per cent to just over $3 billion with film production revenue doubling to more than $1 billion in 2016. Wellington revenue doubling to $644 million for the year, thanks no doubt to Peter Jackson and the myriad businesses that make up his empire. You can read more on this here.

Auckland can now look forward to an increased level of international production with the securing of the Kumeu studio site used to house Warner’s recent feature film production Meg, which was filmed there. A joint venture between Auckland Tourism, Events and Economic Development, The New Zealand Film Commission, Warners Bros and China’s Gravity Pictures, the Kumeu Film Studios will operate under a lease arrangement for the next 12 years. Warners made a considerable investment into buildings and two specialized water tanks for water filming—a major selling point for the studio. These legacy assets are already attracting considerable interest internationally and we can expect the studio to be well utilized, particularly if the two mooted new sound stages go ahead. You can learn more about the studio here.

Stephen Follows, a researcher and producer who digs up interesting facts and figures on a regular basis, took a look at the impending Writers Guild of America strike, of which I wrote on in my last column. Follows in his article looks at the numbers behind the possible strike here.

Screen Australia has an excellent blog that covers a wide range of topics. Recently they have done a four-part commercial analysis of the 94 films that Screen Australia has released. While it’s geared towards producers, everyone can learn from the facts that Screen Austalia uncovered here.

The impact of TV drama on the global screen industry has even caught the attention of the French, with Cannes introducing another market, this time for high-end TV drama. There is still politicking to be done around this with the French Government wading in, but Cannes Mayor David Lisnard and MipTV and Mipvom organiser Reed Midem have joined forces to try and ensure that Cannes remains the centre of screen festivals and markets. Info. on this here. It would seem we are going to be having a golden age of TV for some time to come in the drama space.

And finally, one piece of news that seems to have slipped quietly by without a lot of people noticing is that of Canada joining the European film funding body Eurimages. Canada is the first non-European country to do so, and becomes the 37th country to be able to access the approximately $32 million Eurimages contributes annually to around 60 coproductions. You can read about it here. In this time of shrinking funding for film, this would seem an astute move on Canada’s part.

Tui Ruwhiu
Executive Director

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Down Tools?

I was considering what to write about this week when an email came in announcing a possible strike by the Writers Guild of America (WGA).

It was 2007 when the WGA last went out on strike. It lasted for 100 days. They were finally able to win one concession from the Alliance of Motion Picture and Television Producers that saw them achieve for the first time a percentage of digital revenues—they had been completely denied any financial benefit on video and later DVD and bluray revenues and consequently missed out on what had been a far greater revenue stream for the studios and producers than box office. (We can by the way thank this strike for the rise and rise of reality TV.)

The WGA is a union, and in the US they are able to collectively bargain with producers regarding contractual terms and conditions.

The Directors Guild of America (DGA) and the Motion Picture Editors Guild (MPEG) are like the WGA, a union that collectively bargains on behalf of its members. Through the efforts of the American guilds including the Screen Actors Guild (SAG), their members have been able to get healthcare plans, pensions, and for some residuals—a share of revenues generated whenever producers sell programmes or films that have been made with their creative efforts.

In New Zealand, it is illegal for workers in the screen industry to collectively bargain. This came about because of what is commonly referred to as the ‘Hobbit Law’, which was rushed through parliament by the government in 2010 as part of a deal between Warner Bros and Government ministers to keep The Hobbit film production in New Zealand.

In essence, the law means that screen industry workers cannot be considered employees and therefore are unable to collectively bargain. Screen industry workers are classified as contractors. And when contractors come together in a collective manner to determine pay rates they are deemed to be price fixing in a cartel-like manner, which is illegal.

Here from the Employment Relations Act 2000 is the relevant information:

6 Meaning of employee

(1) In this Act, unless the context otherwise requires, employee—

(a) means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and

(b) includes—

(i) a homeworker; or

(ii) a person intending to work; but

(c) excludes a volunteer who—

(i) does not expect to be rewarded for work to be performed as a volunteer; and

(ii) receives no reward for work performed as a volunteer; and

(d) excludes, in relation to a film production, any of the following persons:

(i) a person engaged in film production work as an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer:

(ii) a person engaged in film production work in any other capacity.

Author and playwright David Macaray writing in 2013 on the 2007 – 2008 WGA strike in the Huffington Post characterised the stoush as the “ …classic case of Labor vs. Management. The writers vs. the producers. Those with talent vs. those with money. Proletariat vs. bourgeoisie. Oppressed vs. oppressor. Surfer vs. ho-dad.”

Later in the same article he suggested readers: “ …take a moment and ask ourselves why so many of us root for the Establishment. For a country that, historically, has taken great pride in embracing the underdog, we seem to have lost our footing. We root for the wrong side in these labor vs. management disputes. Working people are the underdogs. All of them. Including those lucky enough to be represented by a labor union. Can’t we see that?”

New Zealand is of course very different to the Hollywood world that the American screen industry revolves around. And because the unions in New Zealand were broken so long ago, the generations that follow the baby boomers have very little if any knowledge it seems to me of what unions fought for and still seek to achieve here. Three terms of right-leaning government with a former ForEx dealer at the helm hasn’t helped. Which isn’t to say that rabid socialist ideology is the answer either. But as I look out the window in Grey Lynn at what was the residential neighbourhood of many a screen industry worker,  numbers of whom it seems are being supplanted by the Range Rover Sport, yoga pants and quinoa crowd, I have to question whether or not we’ve got it right. Are we so mislead by the now defunct American dream here, too, that we can’t see that most of us are our own worst enemies? Escalating house prices a case in point.

A New Zealand producer very recently lamented to me the difficulty of working with the Australian screen industry because they have unions, there are minimum standards and awards, and fringes to deal with superannuation, workers compensation, etc. But the Australian screen industry is on fire. Large international productions are still going there. Local production from drama to reality to information programming is booming.

The spectre of lost screen production that was used so effectively by an American corporate to change New Zealand employment law just doesn’t stack up when we look across the Tasman.

In Australia and New Zealand, production companies have been gobbled up by offshore entities because the creative talent brought to bear in our countries has proven itself both at home and offshore through the sale of the product that embodies our creativity, yet the lot of the above-the-line creative talent of writers, actors and directors is generally worse than it’s ever been.

The director’s position particularly in the New Zealand screen industry has so eroded that most director’s incomes are going down not up. Like a lot of people in a lot of other jobs. It’s fast becoming time that we need a paradigm shift in our industry and our country. Recent studies that show workers in the creative sector are least likely to be replaced by robots and software in the near term is no reason for complacency, or for accepting lower wages and poorer working terms and conditions.

Down tools like the WGA threatens? Obviously not here. But workers’ rights are meaningful. For all of us. Whether or not you own your own house.

Tui Ruwhiu
Executive Director

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