Force Majeure: Opportunity or Unemployment?
Blue collar workers like those newly unemployed in the state of
In Hollywood Force Majeure is a contemporary term conveniently used for laying off “white collar” workers. It is as much an excuse as it is a strategy. It allows companies to void individual contracts based on the idea that unforeseen events, like natural catastrophes, changed the conditions that facilitated the contract when it was originally written. In
MUTUALISM
There is a wonderful piece in the New York Times today (1/11/08) on “mutualism”. It refers to the concept of co-evolution, nature’s mechanisms for survival between two species. The Acacia tree in the African savannah hosts a specific breed of ants that feed on the nectar generated by the tree. When a giraffe or elephant eat the tree and thorns the ants erupt violently and make it difficult for the tree to be eaten. When humans came along and attempted to preserve the trees through protective intervention, the tree now somewhat protected produced less nectar. With less nectar available the ant population declined and beetles came along and eventually killed the tree. The article points out a similar relationship with wolves and elk. Wolves keep the elk population lean so it will not eat all the grass thereby killing the entire herd. Nature definitely has a way of taking care of it self. How does this relate to the writers strike? The entertainment industry is similar in its application of mutualism. The writers talent need to be combined with the producers money, marketing and distribution. Without words, entertainment as we know it will descend into banality. Without money, nothing will get created, produced, marketed or distributed. The two sides of the writers strike are inextricably connected. For one side to think they will bring the other side to their knees is naive. The same as the other side thinking they can continue to put trash on the networks and continue to put butts in seats. As we all understand, nature abhors a vacuum. If the two sides in the current strike negotiations don’t give up their mutual dislike and distrust for one another, nature will take over. People want to be entertained and creative people want to express themselves. The creator and the consumer will figure out how to satisfy their interests and desires irrespective of the intransigence of the producers and writers and quite possibly both will lose. One thing for sure is the consumer will not.
IT IS ABOUT THE UPSIDE
I hear from some of my AMPTP friends that a 9% increase in compensation is a fair number to offer to the writers. especially when compared with other industries and other types of businesses. They are correct. I don’t think however that that is the problem. The problem is that if the on line distribution of entertainment becomes enormous, which most people think it will, then 9% could turn out to be a paltrey sum of money. The writers should believe that if the internet adds significantly to the revenue and profit columns for the producers then the amount the writers receive would also be increased significantly. and not be limited to 9%.There is a history here. With the advent of DVD’s the writers did not enjoy the upside the producers did and so now they have to be cautious. If writers were convinced, through a flexible agreement, that as the on line increases manifested themselves the benefits to the writers would accrue simmilarly as to the studios, i think they would be more encouraged to settle.
IT ALL BEGINS WITH WRITING:
Someone gets sick, write them a letter or even easier send them a get - well card, written by someone else. Need to give out a recipe? Put it in writing. Respond to your e mail or your social web page? It is all done in writing. Go through any given day and most of us will be constantly writing something. We mostly don’t think consciously about the act of writing because it is generally in response to someone or something or it is a request for something we want. In other words the purpose of our writing is usually decided before we pick up the pen. Now, sit in front of a terminal with nothing on it, and write something that is dramatic or humorous yet engaging, cohesive, understandable and contemporary. What should it be? What could it be? Where do I start? Who cares what I write? Writing creatively is not so easy to do, which is why few people do it and even fewer do it for a living. Even among those who do it for a living, very few do it successfully and only a negligible percentage of those make a “good” living at it. Yet it is the written word that is the foundation of all entertainment. A song, book, play, game, television show or a film all begin with writing. The very beginning of the entire business of entertainment, the place where money first changes hands is when a studio or other producing entity actually acquires written material. That is the time a writer gets paid and the buyer records an asset.
The likelihood of any of the written material actually being turned into a produced body of work is quite low which is why so much written material has to be bought. It may not turn out as well as expected, it may not be timed correctly, specific talent might not be available, or interested, even management changes at the acquiring company may cause all the assets in the vault to be sent packing. There are a countless number of reasons why a specific piece of writing never gets out of the development phase. The hardest thing for anyone, not a writer, to understand is how hard it is to write, even harder to write well and almost impossible to write professionally. A writer puts themselves on the page. There is an emotional connection with what they wrote even if no one reads it or cares about it. Only after it is written are they exposed to judgments, criticisms and opinions about what they wrote. And, generally judged by others who don’t know how to write professionally nor understand the vulnerability in the process. The written word starts every entertainment project. Without the writers there is no entertainment. That is a fact. And the significance of writing is becoming more manifest everyday as the consumer choices of entertaining escalate. The consumer has so many choices today that they can pick and choose only what they want and to a large extent they know more about what they want, how and where to get it and have no interest in experiencing content of only mild interest. A well known individual said back in the 60s television watching is about choosing the least objectionable programming. The consumer wanted to watch TV more than they wanted to watch a particular program. Put the TV on and find what you object to least. Today consumers have so many choices they don’t even have to turn the television on to be entertained, but the likelihood is that whatever they do choose will have been written by someone.
WHAT IS A PRODUCER?
Recently Vance Van Petton of the PRODUCERS GUILD OF AMERICA was quoted as saying that the AMPTP does not reflect the producer but rather the studio and the networks. The AMPTP represents the folks sitting across the table from the writers in the current labor negotiations. The letters stand for the Association of Motion Picture and Television Producers. In that context it can be a bit confusing as AMPTP really does represent the studios and the networks, not the actual professionals who physically produce a film or television show. I recalled a seminar I was involved in with the PGA a few years ago and at the time posited the answer to how I would describe the role of the producer of a film. I had spent almost two decades interacting with producers and had the pleasure of observing what they do and how they do it. In answer to my own question “What exactly is a producer? This is what I said. I guess one could say it is someone who produces something. For most products produced in the world that is probably enough of a defintion but in the film business it is not nearly enough. To understand what the producer of a film does one must go back to the beginning of the film making process. How does a film actually get made? Who is that one person who takes on the responsibility for making it and what do they have to do to get it made, short of mortgaging their first child? To begin, one does not receive an “MFP” degree (Masters in Film Producing). Anyone who wants to can claim, “I am a film producer”. To those who don’t know what that means it sounds like a great title and an even greater job. Who would not want to be a film producer? To actually be one means you will face sacrifice, both financial and personal, and rejection on a level few people can imagine, and most would avoid, if they knew how constant and unrelenting it can be.
At the very beginning of the process you have to pour over literally thousands of ideas for your film. They can come from magazine articles, newspaper stories, scripts, books, plays, treatments, or ideas generated by your next-door neighbor. Pick one, any one. Will it be successful? Who knows? Is it likely to be? Probably not, if one follows the odds, but then again the odds are about other people, not you. You better be certain the film you pick is the one you want to make because for the next several years you will be its only parent, guardian and advocate. If it is from material out in the public domain you need to secure, (pay for with your own money) for the rights, which will need to be renewed, and paid for, over the next 8 years, if the project takes the average number of years it takes to be one of the lucky ones to get made. The more recognized the writer, author or popularity of the story, book, or play you choose, the more you will have to pay for the rights to make it into a film. The less well known, the less expensive the rights will be, but correspondingly the more difficult it will be to get made. After you own the rights you hire, as one producer said, your boss: The director. The better-known the director will cost more for your project. The less well-known director will be more difficult to sell. The decision on the director also signals the beginning of an endless sequence of compromises. The director wants changes; wants to modify your vision and you know compromise is part of the process. You go along to get along. Now you need money to make it. If you are Mel Gibson, you put your own 25 million dollars into it and it gets made. Short of financing it yourself you begin what has to be the most difficult and torturous undertaking any person can expose himself or herself to: raising the money. Begin with a domstic distributor. Here you will encounter the most creative methods of saying no without making you feel it is hopeless. Quite possibly everyone in
Each country has its own conditions and contingencies…. shoot it here, do the post there. Hire one of our actors, and maybe even make a few story modifications as well. More compromises. Is this still the film I wanted to make, how many years ago was that?? Don’t agree? No money. With legal bills mounting as each deal is put to bed you are weaving a rug, not with strands of steel, but with the strands of lint. The slightest change, bump in the road or unforeseen event could unravel the entire project right up to the point of actually shooting the film. Anything that could go wrong, and often does, can completely unravel the entire project, at which time you start all over again, with no reimbursement for what you have invested of your own money up to this point. With the money promised from all territories it still does not add up to what you need to make it. Go to a bank, lender or third party financier to fill in the gap. Again, pay for the leverage they have over the project. Without their money it can’t be made. Got the green light, the money is ready and the process finally begins. Hire up to one thousand different people, services, facilities and suppliers. Assemble them as a once only team, co ordinate all their scheduling, budgeting, administration, insurance, security and inspiration, while facing weather, egos, logistical challenges and the unexpected, some, or all, of which will likely take place. More compromises on the set as the unplanned for dictates changes or the film won’t get completed, the way it was envisioned.
When finished, marketing and distribution kick in. Will you be released the same weekend as a Shrek or other huge franchise picture? Or maybe an unknown film like My Big Fat Greek Wedding will be released the same weekend. In either case you could be dead on arrival. How many prints should be ordered, at what level should the advertising budget be planned? Will the talent participate in the publicity? What support does the studio offer and are they as enthusiastic as they were when they first bought the project? In fact are they the same people who initially bought the project, how many years ago was that? The answers to all these questions can, and do, have an effect on how, or if, the film will be successful. The film is finally out and people like it. Now get in line to cash in. After all you have been personally financing and sacrificing everything for at least the last 8 years getting the film in front of an audience, now is the time to get the pay off. It is like standing last in a buffet line. All the profit participants, guarantors, equity partners are in front of you. As you move closer to the front of the line and all of your “partners” are ladling extensively from the result trays you only hope there is something left when you get there. To be producer of a film is to accept the responsibility, the risk and the sacrifice for the entire enterprise. Lives, jobs, incomes and careers are held in your hands. Failure is yours alone; success is shared by everyone on the project. That is how it is and that is how it will always be. But there should be no doubt about who the producer is nor what it is they do. The title producer must convey the magnitude of what they are willing to undertake to get a film made and there should enjoy all the respect and recognition they receive. Let it be said that on that once in a lifetime occasion a producer steps onto the world’s stage to accept the academy award for the best film, they did not just produce a film, they produced a miracle.
POLITICS IS NOT A ZERO SUM GAME
I have developed an unpleasant habit. Twice a week I listen to Rush Limbaugh for 20 – 30 minutes. I do so because he is on the opposite side of every political issue I care about. I believe it is important to hear, through a gifted spokesperson, what the other side thinks, how they feel about the significant issues and what is the basis for their opinions. By paying close attention I will understand their point of view and get a better sense for their advocacy. If their points are salient I can readjust my thinking. If not, I know I am not missing anything. Whenever I listen to Rush I wonder what it is about him I don’t like. I find he is so negative about all liberal points of view, and whatever a Democrat says, that he has all but nullified any serious debate on any of the more pressing issues facing this country. He much prefers name calling, belittling opposing points of view and characterizing anyone who disagrees with him as disingenuous, stupid and essentially un-American. The other day it finally dawned on me. Rush views all politics as a zero sum game. For him to win, the other side has to lose. There is no middle ground. For Rush it is all out war fare and he takes no prisoners. Not unlike what has happened with the red state blue state phenomenon. As a country we are not a game with sides, looking for winners and losers. We are one country with one democratically agreed on position and we need solid, passionate debate to arrive at that one voice. Why do I indict Rush with a zero sum game mentality? Simple, in all games with two or more sides, someone wins, while someone else loses. Football, like all team sports, is a zero sum game. In every game only one team can win. Critical to understanding the process of a zero sum game the practice field is what Rush overlooks. When the offensive players line up against those on the defense for a scrimmage both sides work tirelessly to make the other side better. The harder they work the better they become. The better they become, the more games they win: as a team. Yet however much effort they commit to quality practice sessions they never intentionally hurt, maim or humiliate anyone on the other side of the ball. They are teammates and they all want the “team” to win. Politics, unlike football, is not a game. In politics the nation has to win. The strength of politics lies in the very fact that it does have more than one side. It does include multiple points of view and there is a healthy, purposeful desire to prevail in those points of view. Political arguments should be made as intelligently and forcefully as possible, by everyone elected to do so. When each side of the issue that is being debated, clearly articulates their positions, does so with intelligence and passion, and respects those offering the opposing points of new, the outcome of the debate is a win, win for both sides. When that confluence of multiple opinions, professionally advocated, in an orderly, respectful atmosphere is blended into legislation the quality of governing is advanced and the country is the clear winner. How lucky we are that we live in a country that stimulates differing points of view offers public forums for healthy debate and holds the quality of the debaters arguments accountable to their constituencies back home. Healthy debate is essential to governing. No one is always right, or wrong, and few issues are clearly black or white. Most arguments in a public debate are a combination of lots of things. When the points of view are disrespected, or the debaters ridiculed, or their opposing points of view are demeaned or belittled, then the serious issues that seek resolution remain buried in the vitriol of the more fanatical voices. The focus of their arguments become about the debaters, not the issues, their attacks become personal and the residue of the acrimony breeds unhealthy divisions, not workable solutions through healthy compromise. Without the benefit of intelligence, experience, wisdom and passion of those elected to public positions we will descend into a quagmire of divisiveness and hostility. We will be ruled by anger, envy and bullies. We must not lose our enthusiasm or motivation for honest and open debate. If we don’t rein in the demigods no one but the basest of our citizenry will have the nerve to stand up and speak. A good start would be to liberate our public airwaves from on air personalities like Rush Limbaugh. While football is a zero sum game,
PIRACY IS THE ANSWER
It was reported today in the NEW YORK TIMES that the studios lost 1.9 billion dollars from last years full year slate of films. The studio argument in the strike is since they lose so much money how, and why, should they pay the writers more. Makes sense when put in those terms except it is the studios that are making the gross dollar deals for high profile actors, directors and producers that are causing the massive deficits, not the writers. According to an ad in the trade papers today the AMPTP pays writers 260 million dollars in residuals, hardly a major share of the $26 billion dollars the industry has achieved. Piracy costs the studios anywhere from 3 to 5 Billion dollars per year, an amount more than capable of covering a better, more fair deal for writers and still allowing studios to continue to make the kind of foolish producer and talent deals that have stuck them in red numbers for so long. The good news about piracy is that it is clear the customer wants the product. No one pirates what they don’t want. The bad news, of course, is the consumers are not paying the filmmakers for the right to see a film. The solution to piracy lies in connecting the consumer interest with their willingness to pay. The reason people don’t pay for films are simple. They know about them, want them but are denied them. So when someone else, a pirate, offers them, they buy them. Keep in mind consumers are paying for the films, they are just not paying those who made and own them. It is the studios who have the marketing clout and creative genius to promote a film worldwide. It is through the miracles of broadband distribution of sounds, images and words consumers everywhere in the world instantly know what is available, what a film is about, who is in it and if it is something they want to see. If no, they are not a factor in piracy. If yes, and they are forced to wait due to a form of film distribution that has been out dated for several years they will turn to the pirates. Given their interest they can buy a film at a local piracy shop, on line through a piracy site or even have it delivered to their home through a piracy distributor. The pirate is making money because the consumer is paying more for the copy than it costs the pirate to distribute it. Historically every form of distribution that offers more consumer convenience has resulted in more value for the rights holder. The least convenient method of seeing a film is in the movie theater. Schedules, show times, baby sitters etc. all have to be factored in to a decision to go to a movie theater to see a film. The most convenient form of entertainment is in the home. But, prior to the advent of the DVR, the at home convenience was compromised by the time of the broadcast. Not everyone was available when the show was on. Everyone accepts the value of the home entertainment industry far exceeds the value of the out of home entertainment experience. Today we have the technology to offer the ultimate convenience to everyone in the world. Whatever you want, whenever you want it and on whatever platform you have, at a reasonable price. Technology has made instantaneous convenience available. That simultaneous convenience, coupled with the overwhelming consumer interest in all things entertainment, and delivery of a high quality copy of the product will result in a massive increase in the value of all forms of entertainment and a reduction in all forms of piracy. $3 to $5 billion saved in pirated dollars is more than enough to off set the estimated $1.9 billion lost by the studios. The studios will be the major beneficiaries, but those who created the work should fully and fairly participate in the increases as well.
THE STRIKE IS ON
The strike is on. Comparisons are being made with the last strike in 1988. What was the impact? Who won, who lost. We know the reality show genre caught on and we know how well the studios weathered the storm. It would seem from the press reports the studios feel quite bullish about their resolve and their readiness this time around as well. Well 2007 is not 1988. There is a difference and it could be a defining element of the current dispute. In the last ten years the world has been wired. We have become networked. In 1988 a network was NBC, CBS, and ABC. In 2007 the concept of a network has taken on a completely different meaning. What does it mean to be networked? Simple! Everyone is connected. Everyone has access to everyone else. It might be through Face Book, My Space, Google, Yahoo or someone’s personal web site. The fact is we all are accessible and we all are available. There are billions of choices for where we can go. The Internet is the network. It has evolved into the only true world marketplace. It is a network of all of us. Place has been replaced by space. The distance between Burbank and Hollywood is the same as the distance between Hollywood and Rumania. No one knows nor needs to know exactly where anyone is. We are all in the same place. On the internet time is asynchronous. We all exist on the same time, our own time. We can communicate whenever we want, from wherever we are, and we have access to everyone and everything. The internet is not governed; it has no controls and is without any hierarchy. It is made up of billions of independent, autonomous entities. Everyone on the internet is both sender and receiver. It is always on, has no frequency, and encourages shared use. In 1988 that was not the case. The internet did not exist. Back then media operated in an exclusive sender/receiver relationship. The networks, studios, cable companies, record labels and publishers were the senders, the consumer the receiver. The senders were in control. They controlled what was produced, who produced it, what was distributed and when. When the 1988 strike ended that formula did not change. The senders still controlled everything and the creative community went along or they did not work. Today is different. True there are 12,000 writers in the WGA, half of which are employed but are those employed the only ones who can successfully write? There are countless other writers in the world who write for their love of the craft but don’t know how to get anything produced. They don’t know anyone in the entertainment business; they don’t have representation of any sort and can’t get anyone to read their material. Is all of what they write of no value? How would anyone know without it being read? Until the internet there was no alternative. There are currently millions of creative people expressing themselves on the internet, none of which are WGA members. Some do it for the fun, others are trying to figure a way to make money and others are just experimenting with the medium. Much of what is being published is worthless but its creator has the opportunity to put it out into the universe and let the world decide its value. What happens if the truly gifted writers, the professional WGA member writers, months into a strike, with no income; savings depleted decide to try their hand in the internet arena? What if they are forced to listen to others who are doing things on the internet and gaining valuable experience? Will they find their voice in a game? On a cell phone, a comedy site, a short episodic series? Could it happen? Could something materialize out of necessity? Maybe it could. The naysayer will respond with the age old question, what is the business model? They might be right, for now. Remember in the earliest days of our country the pioneers stamped out the new roads well before any maps were drawn. No doubt many back then questioned the wisdom of traveling without a map. Many who did went for the adventure but others were forced to leave due to a hardship beyond their control and found a far better life. In technology it is axiomatic that when an installed base of users is large enough they will create something no one ever dreamed of. That is the unintended consequence of a network of users using a new technology. If the professional creative community is forced to test the internet waters there is no telling what could come out of their involvement. Maybe nothing more than what is out there now, but on the oft hand possibility they find a way to continue their passion and monetize it on their own they may be too busy to even return to the bargaining table. Don’t be too sure this will not occur.
THE STUDIO HAS A POINT:
Further to my thoughts on behalf of the writer, the other side to consider is the studio. It is a fact that a film is a collaborative partnership that is faced with so many roadblocks it often seems foolish to even make one. After the words come the money, production, marketing and distribution. Each facet of the process is unique and challenging. To commit as much as $100 million plus dollars for production and marketing, the average cost for a studio film these days, takes enormous courage. When the decision to invest such a sum is made in front of a wall street mentality and a level of risk not found in any other business, those who make the decisions have to be heard when they speak about keeping the costs of running successful media companies under control.
These major media enterprises have enormous experience with the audience: who it is, where they are, what they like to do and what messages they respond to. A long and involved history has taught the studios how to produce films. They know what talent puts consumers in the seats, they know the best directors for the appropriate material, they know how to get things done on time and on budget. When it comes to marketing, their approaches are pure genius. They know who to market to, what the message should be, what media to choose, what theaters to play in and what time of year is best for releasing just about every available film.
A film has to be approached as a partnership. A poor script can not result in a good film. But a great script in the hands of the wrong people will also never be successful.
At a bargaining table both sides have to realize the other has serious issues that need to be addressed. Without respect for the arguments of both sides no deal can ever be made.
The key is motivation. Is either side motivated to hurt the other side or are they just trying to protect themselves from getting hurt? If both sides can agree their motivations are pure then the proper execution should follow.
Technology will change everything as it already has. This will only continue. To be clear on how to set a deal for a few years when technology is now measured in months seems impractical. Stay committed to fairness for both sides and continue to adjust the terms to fit the market as it changes.
If a true partnership exists both sides will want a win, win and will see to it that a win,win is the answer.
WRITERS SHOULD BE PARTNERS
I have always felt the hardest thing in life is to go from nothing to something. Conception, as opposed to evolution. It seems so much easier to go from something that exists to something that could be better or bigger or whatever comparative word one chooses. Once something exists it is always easier to make it different.
Unfortunately, the one who thinks it up is not always the one who is recognized for the role they play in its creation. Nor generally do they profit by it…
In his book THEY MADE AMERICA, Harold Evens points to the difference between the inventor and the innovator. He says the inventor discovers something, while the innovator applies it. History is rife with examples of people who discovered something but never participated in the fruits of its application. Actually less than 10% of all patents end up in a commercial venture, which means the inventor was mostly invisible. As Evens goes on to say “invention without innovation is just a pastime”.
I mention this because to me the hardest part of entertainment is writing. Writing is the conception. The writer is the inventor, the creator. Someone has to sit in front of that terminal and put it all down. That is the hard part. Reading it, changing it or judging it is a far easier task.
As hard as it is to do, it is even harder to understand how hard it is to do.
Everyone knows what writing is because most of us do it. But successfully writing for others: Plays, books, music, films etc is far more than simply putting words on a page. Where do the words come from, why these words and not others, what compels one to tell a story in one way, while someone else tells it differently? Questions that have few answers.
What ends up on the page comes from a place we have all been, but few of us can express in any way, let alone creatively. That place is the essence of our life. The environment we live in, where we come from, who we are, our experiences, the people who touched our lives in both good and maybe not so good ways, our formative years, the challenges, fears, conquests, joys and all the emotional baggage each of us carry around with us. The writer can go there, can exploit those experiences, can draw on their own personal emotions and translate them into the story they want to tell.
A gifted writer writes from inside. They feel what they put on the page. Often those feelings are in line with a universal pulse that exists in all of us. The resonance with what we are feeling, but cannot express, comes out in the words and the words connect with us on an emotional level. When that happens, and it does, it is transcendent. No other talent in entertainment can claim such a gift. For me, it is the most elegant and exceptional of all skills.
What is my point? The writer deserves to participate fairly in every nickel of revenue their words generate, irrespective of the source, or platform of those funds. They should be viewed as partners in the process not unwelcomed visitors. They created the words and probably know them best. They should be in on the entire process, including the financial fruits of their work