Budget woes were a pervasive presence in my head throughout the movie-making process, almost like a fug of fear clouding my judgment. I expected some unforeseen expense cropping up that would end the whole enterprise because there were no deep pockets and no financier to turn to. So, I watched every expenditure every day, checking it against the budget. But it wasn’t the sudden big-ticket item that pounced unexpectedly on me; it was the pile up of little stuff. For the most part, all of the big-ticket items had been planned and accounted for, but the unexpected smaller things were adding up.
One of the problems was that others on the team had the sense that this was a well-financed movie—like a studio production—so they tended to be cavalier about spending. I knew, for example, that some of the people whose gasoline I had to pay for in order for them to do their jobs were cheating. And the wastefulness in the meals, drinks and snacks thrown away was unnerving. But I couldn’t afford the time and energy to solve these little problems in real time. I had to watch for difficulties with more costly issues. An example was muscle cars.
I noticed one day during production that one of the management team was spending a lot of time looking at images of cars on the computer. I had no idea what he was doing and was irritated at his wasting time this way. Before I could say anything to him, I was called away to handle some problem and forgot about it.
Later in the day, he came to me with some printouts of photos of three cars. He explained that he and a couple of other members of the team had selected these cars as “picture cars”—cars to rent for use in the movie. These flashy vehicles would cost several hundred dollars a day and would be required for multiple days. They definitely were not in the budget. I took him aside and told him that under no circumstances were we going to rent muscle cars. I was really surprised when he pushed back, saying that we needed to have cars that matched the personalities of the two cops and the woman who was stalked.
I decided that discussion was pointless. For some reason, he just didn’t have a true grip on budgetary constraints. I told him very firmly (resisting anger that wanted to creep into my voice) that there would be absolutely no more discussion of the issue. I had arranged to borrow friends’ cars and that was that.
Over and over money was an issue. It was lonely sometimes making the calls on where to spend. I wished I could have done a better job not only keeping waste down, but also conveying the limits of my finances to the management team.
One of my least favorite activities was paying bills and doing payroll. Early on, I thought I would tough it out and do the accounting alone and without software, but discarded that notion as soon as bills started piling up before pre-production even began. And, as I pored over the IRS reporting requirements and things like state taxes and 1099s for vendors, I knew that I needed an accountant’s help as well.
I interviewed about 5 or 6 local accountants to see if they could fill the job. None were experienced with movies, which was not good because the the accountant should categorize expenses in a standard way as done in the film industry.
Eventually we found a person who was willing to do part of the job on a part-time basis remotely from Austin, Texas. I was unhappy about having him not be present, not least because I didn’t like paying the hefty auto expenses for him to come up once a week. But I also felt that the production would have been less expensive if we’d had an on-site accountant overseeing expenses. As it was, there were some expenses that shouldn’t have been allowed, some cheating on timesheets, problems with data entry to the accounting software, and errors in record-keeping. I think those would have been avoided with an accountant present.
My role in the accounting process was threefold. Every week I would write payroll checks by hand (another thing that should have been automated, but I didn’t have the time to learn), a process that took an entire afternoon. Then I would pay bills and keep records. Then, after production was over and our accountant was off the job, I took over all accounting activities including filings with the IRS and state tax agencies, printing and mailing 1099s, reconciling bank and credit card statements, records-keeping, and filing income tax. Even as I write this, the accounting obligations go on and on, as today I spent reconciling expenditures. Ugh.
A piece of advice given to me by the entertainment law professor at SMU was that I should choose key personnel myself so as to ensure not only their loyalty to me, but to help guarantee that I would be satisfied with them. Not following this advice more closely is a sincere regret. And no better example exists than my experience with the first makeup artist.
One of the early requests our Director, Roger, made to me was that he be allowed to select the hair and makeup artist—a friend of his. She had a good resume and I wanted him to have someone in whom he had confidence. However, alarm bells went off during my interview of her. She was glib, wasn’t prepared to answer makeup questions based on a review of the script, and full of early demands such as what meals she would require. When I expressed my reticence to Roger, he assured me that I would be satisfied with her work or he would himself dismiss her.
Although the cast were genial and inclined not to complain, there were some early grumblings that the makeup artist was requiring them to put on their own foundation and basic makeup before coming to work. I let it be known to the makeup artist that this was unprofessional, but she ignored me. More importantly, I repeatedly had to intervene to try to tone down the heavy black eye makeup on the lead actress and the stringy, vampy look to her hairstyle. And I was unhappy that actors some days had product on their hair and other days, not. It needed to be consistent or it could be noticeable in the film that the hair had changed from one scene to the next.
Although these problems made me think about firing the makeup artist before the end of the first week, I hesitated. I was worried about offending Roger. This is the very point about why I should not have agreed to let someone bring on a friend. My indecision was costly.
It was day 4 of filming when a makeup problem occurred that I didn’t learn about until the following day. An actor had to be made up to be a dead, decaying body. But his makeup didn’t make him look like an authentically decayed body. And, the makeup used on him was unprofessional; it was a black material that would not wash off. The actor had to shower for over a half hour, scrubbing until his skin was raw, and still he had residue on him.
We were on the sixth day of filming, just having had a weekend during which I got most things caught up, when I concluded firmly that the makeup artist needed to go. That morning, she was holding up the filming process because she was talking rather than doing makeup, and decided she needed a break when it was clear that it would put us further behind. When I quietly informed her that she needed to keep working, she replied loudly in front of cast and crew that she didn’t need me telling her how or when to do her job.
Because we were on day one of the second film week, I couldn’t dismiss her immediately. I told Angel and Zubi to get a replacement in for weeks 3 and 4. She was going, soon to be gone.
I was extremely happy with the replacement hair and makeup artists. Not only did they take the job very seriously, they were exceptionally good at it.
To me, a measure of a person should not be taken by their mistakes, but by the effort and success of their recovery from mistakes. With that in mind, I shall tell you about the wardrobe mishap.
It was evening on the third day of filming. We had been at it for 7 hours and it was time for me to leave to do Pono’s (my cat) insulin. So I was not there to see the wardrobe of the character Chris Coxon.
The following day, I reviewed the takes from the previous night and became upset. Coxon is a character who prides himself on his attire and prefers to wear jacket and tie. He isn’t in the least sloppy. Despite this being clear throughout the script and in all discussion about wardrobe and everything else, Coxon was dressed in a shirt that was several sizes too large. You could put your entire hand between his neck and shirt collar. There were apologies all around, but that didn’t change the takes. I wanted the scene reshot.
Angel talked me out of a re-shoot. He pointed out that the entire schedule would slip dramatically and that we would mess up the logistics for all the locations. It was a convincing argument; we could not mess up production for a single wardrobe error.
While I accepted that we had to live with the wardrobe glitch, I wanted to make sure it didn’t happen again, so I called our wardrobe director. She explained that we were using the actor’s own shirts to save money. Here we were again at a money problem that would continually recur: either spend more and get it right, or keep the budget lower and accept quality reduction. In this case, I opted to spend.
Our wardrobe director recovered well once she had the authority and money to do it right. She went out and purchased some shirts, ties, and jackets that would look appropriate and fit properly.
But the wardrobe problems were not confined to ill-fitting shirts. Later, when I reviewed the takes of the film for the edit, there were problems that resulted in editing decisions that I would not otherwise have made. Two stick out in my mind.
There was a scene where the two lead detectives walk down a hallway talking about relationships. The lighting was magnificent and the architecture of the hallway had great production value. And the cinematographer did a great job of starting the scene with their feet, then working up their bodies as they walked. The problem was that Coxon’s pants were about 4 inches too long, bunched up at his ankles, looking ridiculous. I don’t think anyone anticipated that the shot would include their feet and thus they didn’t think about the pants. I had to cut the scene.
Another example was the costume and makeup of the Woman in Black. On this, there was a total miscommunication by me with the staff. I wanted her to be in a ski mask because this character would be trying to keep her hair from leaving forensic evidence. When I said that her attire must include a ski mask, I never envisioned her being made up with heavy black makeup, looking like a raccoon. But when I saw the takes the next day, there she was in in a hoodie that made her look like a Darth-Vader wannabee and ridiculously black eyes. It was one of the several reasons that the scene is almost non-existent in the film. Only parts required for the integrity of the story were left in, and with cuts that minimize the view of the Woman in Black.
It was August and I had created dozens of now-signed contracts with crew and cast. I had been so very busy with 18-hour work days that I’d had no time to worry again about whether I had got them right. Then I had a conversation with my attorney in LA, the one who was doing the script clearance. She suggested that she review at least one of the contract to make sure it was complete. I quickly sent her an example, regretting that I’d waited so long. I would not like to have to re-do all those contracts.
My attorney called me with some bad news. She said that I had neglected to include three key elements, one of which was a remedies clause. This clause says that even if a cast or crew member seeks legal remedy to a problem, they can’t enjoin or restrain the exhibition, advertisement, distribution, or other use of the motion picture as relief. In other words, someone could sue me, but they couldn’t kill the project in the process. This clause, she said, was so important that no distribution company would touch the film without it. I had to re-do all the contracts. Then I had to explain to everyone the reason they needed to sign all over again.
Now let’s jump ahead 10 months in time so I can tell you why I was so glad that I got the legal advice and acted on it. The movie had been through post-production and had premiered to cast and crew in early June 2017. I was now fully engaged in doing preparations for marketing, including a poster, for which I had hired a professional trailer house, Wheelhouse Creative in New York. I posted the draft poster on the private Facebook page I shared with interested cast and crew.
Shortly after posting the draft, I got a call from one of the lesser-role actors who informed me that I had promised him that his name would be on any movie poster for the film and demanded that I follow through. I told him that I had no recollection of such a promise and that I didn’t think it would be appropriate for such, given the level of his role. He persisted, saying that I would soon hear from his lawyer.
Indeed, shortly thereafter I got an email from his lawyer threatening that if I did not put the actor’s name on all posters, he would seek to enjoin any distribution of the movie. He cited the first contract signed by that actor, which didn’t have the remedies clause.
Rather than interact with the actor’s attorney myself, I asked my attorney to address the problem and sent her a copy of the contract signed by the actor. She did so and the case was closed. But I shudder to think what would have happened had I not followed legal advice about the contracts.
One of the first things Angel asked me upon his arrival in Dallas in April 2016 is whether I had arranged for script clearance.
“Say what?”, I responded.
He explained that I had to have someone qualified read the script to identify all possible legal conflicts, such as character, business, or product names, locations, artwork, etc. So I had to start research for a specialist who knew how to do this and, most importantly, could produce the requisite certification letter for the insurance company. This would be required in order to get what is called Errors & Omissions (E&O) insurance.
An Internet search revealed a few firms advertising that they conduct script clearance. I had to make telephone appointments and it took several days to finally interview 3 of them. All wanted between $1100 - $1600 for the job, but there was a huge stumbling block: none would give a clearance letter “that could be used as a legal document” of the sort that insurance companies required. I never could understand why on earth someone would pay so much money for a clearance that couldn’t be used legally.
I decided that maybe I was being too restrictive on getting a “legal document”, so I called the insurance company I was thinking of using, United Agencies. Sure enough, a legal letter would be required for the E&O, which itself was quite expensive.
I heard that there was a professor who taught entertainment law at Southern Methodist University who did script clearances, so I emailed her. She telephoned me and said that, although she could not do it, she advised me strongly to get a lawyer not only to do the clearance, but to help with all my legal affairs. She brought back to life that doubts I had about my contracts. I asked her whom she recommended and she advised a large entertainment firm in Los Angeles.
My concerns about paying attorneys’ fees was exacerbated by the fact that no money had been put in the budget for either legal fees or insurance. The insurance, aside from E&O, would total about $10,000, even with a high deductible. I was worrying about whether we could meet budget and we were less than a month into the one-year project.
There was an inexpensive alternative, Angel said. An acquaintance of his worked for an insurance company and he agreed to put us as a “sub” on another insurance contract for another film. He would then issue us “certificates of insurance” whenever we needed to prove we were insured. I was leery and decided to ask the United Agencies representative about such a scheme. He told me that people may do that, but it is not legal because the “top layer” firm that really is the insured doesn’t know about it. Also, if you ever need to file a claim, you can’t. There was no way I was going that route.
Next I called the large law firm in LA. After consulting with them about what they would do for me, I assented to their retainer and sent them the script for clearance. And, because I had decided to do things the “right” way, I bought the insurance from United Agencies and set in motion the process for getting E&O as well.
While it may be boring to some readers (who should skip ahead), those interested in launching their own film projects probably would like to know about some of the less exciting aspects of preparation. One of those is getting legal issues in order. Although I recount the process in a few paragraphs below, let me advise people who are undertaking a similar effort that these steps are remarkably time-consuming. Not only do you have to figure out what to do, waiting for other people to act can take longer than expected and the process often is slowed by the fact that some things have to be iterative.
I had copyrighted the screenplay in 2005, but I decided also to register it with the Writers Guild of America. That was easy, but everything else from this point on required my acute attention.
It is important to set up an organization separate from yourself as an individual for protection in event of future lawsuits of any kind. That meant that I needed to create a limited liability corporation for the sole purpose of Revenge In Kind. I decided to name my company Pono Productions, LLC. Pono means “most excellent, upstanding” in Hawaiian, and was the name chosen by my husband for our cat. Having a Hawaiian name was emotionally important to me for another reason too. I wrote the screenplay in Hawai’i, where I’d lived for 13 of the best years of my life. I wanted this film, this project, to have a thread of the spirit of Hawai’i sewn throughout.
On the Internet I found instructions how to set up an LLC in Texas and set about filing papers and paying the various fees for registration of the company. Meanwhile, I also obtained a federal employer tax identification number. Once I had the fees paid and the requisite ID number, I was able to open a corporate bank account for Pono Productions. The day I walked out of the bank after transferring the first tranche of my savings to the film, I was almost shaking with a mix of fear and relief. Fear, because now I was officially spending my life’s savings on the film, and relief that I had finally taken the steps that would enable the project.
Also on the Internet, I found a number of models for contracts with crew and cast which I used as templates for my own drafts. I was wary, however. What if something were missing from these contracts? My unease was accentuated by the fact that I received a one-page draft director’s contract from Fred, but a multi-page, highly detailed draft producer’s contract from Angel. They were very different in content and Angel’s contained several clauses I had trouble understanding. I decided to look for an entertainment attorney in Dallas who could at least review my drafts.
The first attorneys I interviewed who billed themselves as “entertainment” met with me for a half hour in early April. The two of them were exceedingly careful to give me no information, which left me wondering whether they knew anything about film contracts. Also, the price of their retainer would be a huge chunk of my film budget.
After emailed to one of them declining their services, I received a reply saying that his wife was also an attorney and would be prepared to draft two contracts, one for crew and one for cast. I decided to use her services, although they were expensive at $500. Unfortunately, the two drafts she provided were boilerplate, poorer quality than what I myself had prepared, had typos, and were almost exactly alike. I was unhappy.
I decided to try one more local attorney, who also billed himself as an entertainment lawyer. The previous experience was duplicated, but this time I objected. I called him and said that the two contracts were alike and were the same as what I could pull off of the Internet. He reduced his bill by half, reinforcing what I already knew to be true in life: if you object to people mistreating you, you often get treated better.
After two misfires, I decided that I would forgo an attorney and do it all myself. Later I will explain why this was a mistake and how I narrowly missed a legal disaster.