You Mean I Have to Pay For That?

Back in Los Angeles after my trip to Washington State. Had a wonderful time up there and am excited to return.

Met today with my music supervisor, Linda Cohen and we continued to talk about music we wanted to try to license for the Cobain film. This is a fun, but somewhat curious, part of the process when every piece of music, every artist is "possible" or "might be able to be cleared". Some seem more possible than others, some seem almost immediately out of our budget range, which is something that we're paying a lot of attention to. Because, as I noted in an interview with Warren Etheredge, getting clearances up front for all rights was one of the most important things I learned from my first film:

Get your music rights and clearances taken care of long before you edit. Never think that you`ll be able to figure all that stuff out later. And get all rights taken care of—home video, television, everything. Some people make the mistake of just getting clearances for festivals, thinking that any potential distributor will pick up the other costs, but that`s exactly the thing that can scare someone away. It was the smartest thing we did in making this film—working on the rights from the very beginning, because you have no idea how long that shit takes. And again, if not for (producer) Shirley (Moyers), and our great music supervisor, Linda Cohen, we would have been in a terrible position.

I've been reminded about this issue by a recent article on Mad Hot Ballroom, which in turn reminded me of a fascinating study done by the Center for Social Media, which talked about the issues of clearances and how rights questions and the costs involved have affected recent documentary filmmaking.

This past winter, when the American Film Institute honored Jonathan Caouette's Tarnation as one of 2004's Moments of Significance, it stated:

Jean Cocteau once said, "Film will only become art when its materials are as inexpensive as pencil and paper." In 2004, the accessibility to affordable tools for the art form was brilliantly dramatized by the Cannes Film Festival's acceptance and enthusiasm for TARNATION, a film made for $218.

The last line, "a film made for $218", was part of Tarnation's selling point, and it played into a classic indie film publicity line - our film made for so very little money is of such high quality while Hollywood makes 100, 200 million dollar movies that suck".

The problem is, Tarnation wasn't made for $218, it was made for $400,000. I found out when I stumbled onto the report about rights clearances for documentaries, and was somewhat astonished to come across this paragraph:

The cost of rights can dramatically inflate a budget, as budding filmmaker Jonathan Caouette vividly demonstrated with the 2004 release of his home-made movie about his dysfunctional family, Tarnation. Although the film was largely made from images of his mother and grandparents, it interwove many references to popular culture. Thus, a film that the filmmaker estimated at a cost of $218 in hard cash ended up costing $400,000, using most of the eventual budget to clear rights.

This simple fact does nothing to diminish the power or the genius of Caouette, at least it shouldn't. Making any kind of feature film for $400,000 takes great skill, not least to make something as powerful and personal as Tarnation. But we indie filmmakers know that you need a hook, and for Tarnation and Wellspring, the hook was a $218 budget, even if they all knew by then that the budget was approaching half a million.

While I've never seen a breakdown of the $218, you have to automatically assume that they aren't taking into account his computer, software, cameras, tape stock, etc. Nor the meals while he was working on it or the costs of festival submissions.

But what they really didn't take into account were the clearance rights to the songs he used. And paying for those rights - so that Wellspring could actually distribute it to theaters - cost hundreds of thousands of dollars. Even festival rights would likely have costs him somewhere in the tens of thousands. (So one must assume that the film played numerous festivals without paying for any festival rights - that is if one is to take the $218 budget at face value.)

I always knew that the $218 story was a ploy and I didn't mind it so much. It was a little like the story that El Mariachi cost $7000. Utterly preposterous to any filmmaker, but who are we to begrudge someone their publicity hook.

I thought about Tarnation's $218 story when reading a recent article on how the filmmakers behind Mad Hot Ballroom dealt with their own clearance issues. It's a terrific article, as filmmaker Amy Sewell talks about the issues that she came across in clearing all different kinds of music for MHB. One of the basic points is that they first negotiated for two years of festival rights and then had to go back and renegotiate rights in perpetuity.

With my own experience on Gigantic, Linda Cohen advised early on that we should negotiate all of our deals up front - with payments due if and when certain milestones were reached (for example, a theatrical release, a DVD release, a certain level of sales, etc.). This way, there was never a risk that we had put a song in the movie for it's festival run that we might have to take out for a theatrical engagement or for home video. Reading the Untold Stories report again, I'm shocked by how many filmmakers make this gamble.

The fact is, if we hadn't made our deals at the beginning, Gigantic never would have been picked up. That was the first question every distributor asked us: "what's the status of the rights?" And it was clear that had we said, "we only have festival rights," the conversation would have ended quickly.

Luckily for the filmmakers of Tarnation and Mad Hot Ballroom, there was enough interest in their films to get someone (producer? distributor?) to pony up the difference (which was clearly a good deal of money in both cases). But for most filmmakers, not being prepared could mean that their film never graduates from festivals, even if distributor interest is there.

Comments

[grace]

What about a film like the excellent "Los Angeles Plays Itself" which was basically a 169-minute essay on Los Angeles as seen through the movies -- with tons of clips from hundreds of sources. If the director had, from the start, tried to negotiate all clearances, I'm sure he would have gone crazy. I am curious if anyone knows if this film actually did get every single one of its clearances, if it argued fair use, or what -- because I know it had a theatrical run on the arthouse circuit.

[Joe Swanberg]

Tricky stuff. With my new film I'm working on, I'm avoiding this by having my friend write original music for the film, and by not having much music in the film anyway. I'm also being super cautious to not accidentally film any artwork or anything like that that I would have trouble clearing. It sucks to have to think about that stuff, but that's life I guess.

[AJ Schnack]

I got a bunch of comments on this topic offline (via email and in person) from filmmakers who confided that they, too, were working without a net, specifically using hard to trace music cues or just hoping to get away with some rights, with the hope of pleading ignorance if they were caught. For some, they assume the film will only play festivals - and smaller ones at that - so how likely is it that someone will find out?

I must admit that I still feel uncomfortable about it - both as an artist who would want to be asked permission and as a filmmaker who wants to stay on the trouble-free (or at least less hassle) side of the fence. And while I do support, in theory, the notion of doing whatever it takes to get a film done, I also believe in a certain responsibility - not just to rights-holders, but also investors, actors, crew, subjects, anyone who hopes that a piece of work can be seen by as many people as possible.

All that said, it's also clear that certain rights clearances are needlessly complicated and that filmmakers run the risk of trying to do everything right and still failing to clear something or someone. It's definitely true that a more comprehensive definition of fair use is vital for all filmmakers.