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(c) 1998 by Harris E. Tulchin, Esq. All rights reserved.

Introduction. Perhaps the most difficult task in financing and producing an independent motion picture project is getting a star to read the script and commit to the project. In most cases, the key to getting a star to commit to an independent project is to make him an offer -- either financial or artistic, but ideally both -- that he or she can’t refuse: to be involved in an absolutely brilliant script with crisp dialogue and to play a role that is so unique, colorful and one that stretches the actor’s creative abilities to such an extent that he or she simply can’t say no while making at least enough money to keep paying the bills. Actors will kill for the opportunity to play the role that will give them critical praise, peer recognition, awards, and an increase in their stature that will allow them to choose other roles that they indeed want to play. While the actor’s fee is important, it is in many cases not as important as the role and the script. Indeed, many multi-million dollar players act in movies for SAG scale (most legendarily, Bruce Willis in “Pulp Fiction”), just to play a particular role.

It’s never easy to create or find these brilliant scripts and exceptional roles, but once you have created or acquired that page turner, how do you get the actor you’ve set your sights on to say yes?

Reading the Script. First you have to get the actor to read it. Hollywood is replete with stories about the script that was thrown over the actor’s wall, the one that was dropped in the mailbox, or delivered hidden in a bouquet of flowers. While stars have committed to a project as a result of such guerrilla techniques, in most cases the scripts are not read.

More effective methods result from opportunities in which you can create a personal relationship or rapport, or some other direct connection to the actor, where a brief, succinct, but personal pitch can be made directly to the star. These opportunities can be created by participating in as many social, industry, charitable, and educational functions associated with the entertainment business as possible. While I don’t recommend following your favorite actor to rehab, or anything remotely as extreme, you do want to find an arena that you and the star have in common. These include film festivals, Independent Feature Project (IFP) and other seminars on the entertainment industry, American Film Institute events, IFP Spirit Awardas and Gotham Awards and other industry award ceremonies, serving on industry committees (for example, the Directors Guild and Writers Guild have “steering committees” for women and minority groups which often have mixers), etc.

Film festivals are also an ideal opportunity to meet actors who are attending screenings and other festival events and engage then about their past, present, and possible future work. The collegiate atmosphere of many festivals (all of which explore the world of independent film is some way) offers gatherings which are specially conducive to this type of networking. Many stars are seen leaving these events with scripts in their hands which were introduced at the event.

Dealing with Agents, Managers, and Lawyers. Of course, you are not always going to be able to make that direct connection to the actor, and even if you do, eventually you are going to have to deal with a star’s agent, manager, and lawyer before anyone signs anything. These professionals are extremely busy and since they rarely represent just one individual actor, they generally do not want to spend a lot of time, if any, on projects they do not believe will be financed.

The key to getting your star to commit to a project, in addition to having that killer script, is to get the star’s handlers to believe in you, believe in the project, and generally join your team with the goal of getting your movie made.

While you may, in fact, have made personal contact with the star, make sure that the agent, or manager and/or lawyer are involved in the process from the get-go. Keep them fully informed of your activities and get them a copy of the script as soon as possible. The absolute worse thing that can happen in this process is any of these these people feeling that you are “going around” them. That perception is a sure fire way of getting your project rejected by the star. Phone calls won’t be returned,  offers won’t be transmitted, scripts won’t be submitted and correspondence will end up in the circular file.

Establish from the outset a dialogue, a rapport, and a straightforward manner in your dealings with the actor’s representation. Respect their time constraints and be prudent and respectful with the number of telephone calls that you initiate.  Find out the star’s realistic availability dates, consistent with the plan for the financing of your project and its eventual production start date. Get the star’s quotes for fees on similar projects with similar time commitments (i.e., $3 million for a twelve week shoot). Make sure you get a number of these quotes and verify them with the entities that have engaged the star previously. Additionally, make sure that the quote is not a combination of the cash and contingent compensation for the star’s services by checking with the studio or producer. Sometimes mistakes are made and the cash and deferred fees are lumped together in a quote this can be a cosly error as well as a point of confusion when you eventually go about making your offer.

Making the Offer. When you make an offer, it is a good idea to make the offer in conjunction with a casting director, or recognized financial entity, such as a reputable foreign sales company with a track record and that the agent or manager knows can put the financing together in relatively short order. The casting director is often extremely helpful because he or she will ideally have developed a strong relationship with the manager or agency handling the star, and in many cases, the star personally.

Don’t make a lowball offer. Make one that is both reasonably consistent with an actor’s current market value. For example, if the star’s quote is $3 million for twelve weeks, and you only need the star for four weeks of shooting, a reasonable offer would be $1 million, since you are actually offering the star his or her customary rate of $250,000 per week. And in liu of an irresistable cash offer, it’s often a good idea to at least consider the actor for some form of producer credit on the picture, thus making the work more of a proprietary piece for the actor and thereby worthy of his time at a discounted rate.

Another technique successfully used by independent producers making films that call for ensemble casts is to make what is commonly referred to as a “favored nations” offer to multiple actors for multiple roles. The “favored nations” offer implies that the key members of the cast will share equal billing and recognition in the titles, credits, and, most importantly, in the size of their paychecks and the amount of money they will receive in deferments, profit participation, and other contingent compensation (such as merchandising royalties).

These types of offers can, and in my experience, do, engender a kind of team spirit among the cast and crew that can really make a production run smoothly. Essentially the ego factor has been removed, and the cast’s commitment to the film being the best it can be is magnified. The ideal version of this scenario is seen in the work of Woody Allen, where megastars (and often long-standing fans of Mr. Allen) will take radical pay cuts and alphabetical, single card billing just for the chance to be in a Woody Allen picture. Allen is but one of the many practitioners of this technique: Ted Demme’s“Beautiful Girls,” James Mangold’s “Cop Land,” David Mamet’s “The Spanish Prisoner,” Richard Linklater’s “The Newton Boys” and Don Roos’ “The Opposite of Sex” all used a variation on this technique to secure recognizable casts on relatively modest budgets.

The Pay or Play Issue. At some point in time, you may be asked about, or perhaps required to make, a “pay or play” offer. The pay or play offer means, simply, that you are obligated to pay the actor whether or not you use the actor, or make the movie for that matter. The “pay or play” offer is generally subject to a breach by the actor, the actor’s death, disability, or an event of force majeure which is essentially an act of god beyond the producer’s control. Those are the only exceptions to being required to pay the actor if the movie isn’t made or you don’t use the actor in the movie.

If you are not in the position to guarantee the compensation payable to the actor in a pay or play offer, you have no business making such an offer and can get yourself into a legal quagmire if you do. This is why it is much better to make the offer, if you are able, with a financially responsible entity such as a reputable foreign sales company, a wealthy investor, or another entity that has the requisite financial resources.

If you simply can’t make the pay or play offer, be straight with the agent, manager or lawyer. Independently produced features are prevalent enough that these professionals are often able to suggest a remedy or compromise of some kind. If you explain your entire financial plan for the movie and are reasonable and you have a great script, in all likelihood the actor’s representation will want to help you to the next step and not require that the offer be made on a “pay or play” basis. In those cases, the offers are made subject to the completion of the final financing of the motion picture or subject to a meeting with the director, or the approval of financier of the project or even subject tofurther negotiations on the other key terms of a deal such as credit, start date, and contingent compensation. It’s important to understand that stars have only their time to sell. If they block out the time for your project and turn down other offers as a result, they will have lost an opportunity to hook that time period if your project does not end up getting financed. This can seriously damage your reputation, especially if everyone involved doesn’t have all the information about the financial plan for your film.

The Wire Transfer Escrow Deal. One technique that I have used which protects both sides -- actor and producer -- in lieu of a “pay or play” offer is what I call the “wire transfer escrow deal.” In that scenario, the producer and the actor’s representatives fully negotiate and conclude an agreement on fees, credits, what time period, contingent compensation,  per diem, transportation, dressing facilities, rights granted, etc. and agree to place the funds due the actor in an escrow account. The agreement is then fully signed by both parties with the caveat that the actor is free to take other movies until the producer wire transfers into the escrow account the full amount of the actor’s already-negotiated fee. As soon as that wire transfer hits the escrow account, both parties are automatically bound to the deal. Obviously you have to have the support of the star and the full cooperation from the star’s agent, manager and lawyer for this to work as a lot of time and effort will have been invested in this process. In this scenario, the producer is not on the hook for a pay or play obligation to the actor if the movie is not made, and the actor is still free to take another job if the money has not hit the escrow account. If for some reason the financing doesn’t come through the producer will not be on the hook for the cash as in the the pay or play structure, as all the money will have never been wire transferred into the escrow account.

In the next issue of Moviemaker magazine, I will continue this discussion with an analysis of all the key terms and conditions that need to be included in a deal for the services of a major star.

The above issues include the basic considerations in making an offer to a major star to commit to your project. As with all motion picture or production deals, an experienced agent, producer’s or entertainment attorney should participate in these negotiations or discussions.



harris tulchin About Harris Tulchin & Associates

Harris Tulchin & Associates is an international entertainment, multimedia & intellectual property law firm created to provide legal and business services for all phases of the development, financing, production and distribution of entertainment products and services and multimedia software on a timely and cost effective basis to its clients in the motion picture, television, music, multimedia and online industries.
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