What to look for in regards to Deferred Contracts?

[Michael B. McGee]

I've been asked to shoot a Lo/No (I won't have a salary) budget feature. The Director/Producer/Writer is expecting to submit this project to festivals as well as the SyFy channel and he's mentioned direct to DVD sales as well. So, obviously he plans to make some money from this film. What I'm wondering is how do I make sure I get paid? I've never shot (DP'd) a film that's possibly had the potential to make any money. So, what questions do i need to ask him and what kind of "deals" should I be requesting, ie: daily/weekly salary, points, etc.? I'm a little hesitant at the start because he doesn't even want to go through SAG. This caught me by surprise because he's gonna run into a lot of trouble if he wants to sell this film to anyone. Anyways, what advise can you give me being that this is gonna be my first quasi-"paid" feature? And can you share with me some examples of contracts that has gotten you paid from a "deferred contract" situation?

thanks in advance,
Mike

[David W. Jones]

I hate to say this, but you won't see a dime.
If you want to earn a living by doing this, then get paid!

[Michael B. McGee]

Nobody has ever gotten paid from a deferred contract agreement?

[Brian Drysdale]

Don't expect to get paid with a deferred deal. Make sure you're not out of pocket and your expenses are covered.
Any contracts I've seen for deferred payment are a percentage of the net profits i.e. you're extremely unlikely to get paid, even with a financially successful film, given the creative accounting.

[Chris Hurd]

Actually getting paid from a deferred contract agreement is a very rare exception,
unfortunately. The general rule on this type of agreement is that you're basically
agreeing to work for free. The contract itself is just a formal way of saying "you
understand that your chances of actually making any money on this deal are
slim to none," and that's a fact, unfortunately.

[Sareesh Sudhakaran]

Get your meals and per diems up front. As for deferred pay, increase your rate and keep it a fixed cost if possible, to be paid by a certain date or a certain event (like the 'release'). But, most likely you won't get paid, as most features don't make money, unfortunately.

The only reason why you should do a non-paid job is if you are getting the best equipment and crew to showcase your skills. If they are asking you to perform wonders with a handy-cam, pass.

[Michael B. McGee]

WOW! This is somewhat shocking to hear. I can't believe that NO ONE has received a dime from deferred agreements. Thanks for ALL of the great advice. I really need to assess how important this project is to me and my career.

You guys rock.

cheers,
Mike

[Michael B. McGee]

Okay, I just found out that NO ONE has ever made a penny from a deferred payment contract. So, what do I need to ask the producers in order to get paid for working on this project.

I've been asked to shoot a Lo/No budget feature. the producers are trying to raise money to at least pay for meals and transportation. They're calling this a "Labor of Love" project. I believe in the project, but I do want to be compensated for my time and efforts. Considering their budget I'd be willing to accept $100/day. Hell, I'm kind of on vacation anyways.

So, how do you insure yourself that you'll be getting paid? Is there a contract to sign before/during Prep? Or do you trust them when they say they'll pay you on a weekly basis? I can bet there won't be any kind of payroll department which means that there won't be any time cards to fill out.

Thanks in advance,
Mike

[Charles Papert]

Michael:

There's a lot of ground to cover here, but suffice to say that it's a good plan to have a deal memo in place for any job. If nothing else, it removes any possibility of confusion later on. The rate is set in stone, there's no debating it. In the past couple of years I've had situations where questions have been raised and all I have to say is "refer to my deal memo. It's right there in black and white" and suddenly the debate goes away, without them even checking.

It's particularly important if you are supplying gear to a shoot, with or without production insurance. Once again, it removes the possibility of miscommunication. A lot of inexperienced producers don't get that once gear leaves your house to travel to their shoot, it's their responsibility to cover it against damage until it returns to your house. You need it in writing.

Now, anyone can default on a contract and simply say "sue me". And chances are you aren't going to, over a few hundred bucks of wages or maybe even a few thousand in damaged gear (lawyer and court costs being what they are). But I have already been in a few situations where having my deal memo in place has protected me personally against BS stunts, where I have been the only one to get the agreed amount while others have fought unsuccessfully against unspoken agreements. Remember that you have no leverage to make deals after the fact. A typical one is when people are hired for, say, $100 a day and the day goes 18 hours and they want overtime. Problem is, when they got hired, they didn't ask "how long is the day scheduled for? Is this a flat or 10 hr, 12 hr deal? Its a 12 hour? So we will have overtime after 12, right? At double time?" Simply having this conversation is a good start, but a written deal is much better. If any producer refuses to sign a deal memo that simply states verbally agreed employment or rental terms, don't take the job.

Some years ago I was asked to come in on a small feature to do a day of Steadicam. I negotiated the deal with the producer based on a 10 hour day. I asked about overtime. He said there was absolutely no chance of it, we were doing a day exterior shoot and it would be dark before overtime could occur. I suggested that nevertheless we should have a deal in place. He said, no point, it will never come to that. I said, then it should be an easy negotiation! We made the deal with an overtime clause.

We shot right up to sunset in the middle of the woods. I even asked the AD and DP if they had been told by the producer to cut me early, and they both said "haven't heard a thing--we need you for every shot today". By the time I made it back to basecamp and packed my car, I was two or three hours into OT. I went to see the producer to collect my check and he turned purple when he realized I was still there. From a distance I watched him scream at the AD, who simply shrugged--he never heard anything from the producer, it wasn't his fault. Finally the guy came back to me and said "how could this have happened? You should have wrapped yourself". Stifling a laugh, I pointed out that we both knew it doesn't work that way. He hemmed and hawed and tried to manhandle me but I wasn't having any of it. Finally I said "look--are you telling me you are going to stiff me on our deal?" and he said "no. here you go" and pulled out an envelope of cash which had been in his pocket the whole time. Off my stunned look he said "are you available next week?"

Crazy times.

Bottom line: make your deal, if nothing else send an email simply detailing the terms of the deal and ask for a confirmation email. Do it with strangers and do it with friends. I lost one friend because I was too casual about all this, a camera I borrowed got destroyed and he thought I should assume some responsibility for it. A tense and ugly fight ensued. Don't let it happen.

Oh yeah, and deferrments are indeed meaningless, unless you can negotiate into an already-pending deal (i.e. a corporate entity is intending to buy a property like a web series, but not paying upfront for it--try to piggyback a flat reimbursement onto the initial sale).

[Dylan Couper]

I know one guy who got paid... a good friend of mine who is an armourer in town did one day of work on a feature. About a year after it wrapped, the producers came up with a few hundred bucks for him as they needed to use him again. HOWEVER, I was the DP on the feature... and did not see a penny. DPs are much easier to replace than pay. :)

So, my thoughts:

1) You're not getting paid, but it may be worth the experience to you to learn and make mistakes on someone elses dime. If that's the case...

2) say you can only do it if they cover your basic expenses, gas/travel/massages. Ask for $100 a day, plus your deferred shares. If he can't afford $2000 for a certainly talented DOP like yourself, he can't afford to make a movie.

3) If he won't do #2 and you still want to do it, offer to take $100 a day and he can keep your deferred shares. Since clearly they are going to be worth a fortune, it's money in his pocket. ;)

4) If he won't do #3 and you still want to do it, offer to take $50 a day AND deferred shares. Keep going down to $20. If he won't do $20, move on.

5) If all of the above fails... and it probably will... and you STILL want to do it... get your shares in writing. BEFORE you go to camera, sell all your shares to anyone else on the set you can talk into buying them. $5000, $500, a half eaten sammich... take what you can get.

And as Charles says, if it ain't on paper, it don't exist.

[Charles Papert]

Also, and referring back to your first post: a lot of people make films with the hope that it will somehow get sold and make money, which in their mind can turn into "I'm planning to sell it and make money". The vast majority of indie features (especially with no names in them) do not sell and do not make money, regardless of their maker's fervent hopes. Projects that do involve known talent and/or are made by people who have a track record of having done it before are obviously more likely to be potential earners. Remember that this business is filled with hype and misdirection...!

[Steve House]

Originally Posted by Charles Papert

...
Bottom line: make your deal, if nothing else send an email simply detailing the terms of the deal and ask for a confirmation email. Do it with strangers and do it with friends. I lost one friend because I was too casual about all this, a camera I borrowed got destroyed and he thought I should assume some responsibility for it. A tense and ugly fight ensued. Don't let it happen.

....

Actually you shouldn't have to accept SOME responsibility for the destroyed camera, you should have accepted ALL responsibility for it. It's a fundamental legal principle that when you borrow a piece of property, you have the legal duty to return it to its owner in the condition in which you received it, less normal wear and tear, If you were not the party who actually destroyed it, then you in turn may have a course of action against the person who actually did the deed to secure reimbursment for your costs, but as far as the owner of the property is concerned, you bear sole responsibility for making him whole. He doesn't have to go against the party who damaged the camera, you do.

[Charles Papert]

Uh no, you are missing the point. I assumed complete responsibility for the camera as far as my friend was concerned, but once it went on the job, the producer then assumed that responsibility on my behalf. Doesn't matter who actually caused the damage. Production is expected to cover liability and damage for equipment brought onto the job. If it was being used negligently, there's an argument to made about that, but damage that occurs in the regular course of events should be covered by the production, unless some other agreement has been reached. But this is why it's important to get in writing.

Re-reading what I wrote, perhaps I was not clear. It wasn't my friend who I borrowed the camera from that I had a problem with, it was the producer (another friend) who wanted me to split the repair costs. He finally saw my side of it when I pointed out that unlike him, I had no ownership in the final product, nor did he ever offer me any. As far as the guy who owned the camera, I promised him that no matter what happened, his camera would be returned to him in same or better condition. It took a month to get repaired (and I personally offered to cover any rental costs if he needed in the meantime) and as a gesture for his patience, I bought him a custom foamed hard case for the camera out of pocket.

[Michael B. McGee]

Wow, thanks Charles and to the rest of you for your insightful input. I really appreciate it.

[Josh Bass]

I'm just going to chime in with another angle.

This is only a rumor about a local guy, but I trust the person who told it to me and have heard many other not-so-good things about filmmaker, but the story goes thusly:


Filmmaker pays nothing up front, has everyone sign deferred pay contracts, filmmakers sells film for $400,000, still doesn't pay anyone.

True? who knows. Not good? Definitely.