Hollywood blacklisting was run amuck from 1947 – 1960. It blocked screenwriters, producers and actors who were considered sympathetic to communists from getting jobs. The House Un-American Activities Committee (HUAC) investigated alleged disloyalties, which blocked 151 people from working, even though they were not convicted. The mere investigation based on someone alleging their possibility of being sympathetic was enough to shut the person down – Although the smart ones continued working under an assumed name.

While there is no active HUAC group in Hollywood today, there seems to be a new kind of blacklist running rampant in the media. It is the type that forces major corporations to make decisions based on image, rather than facts or logic. And, instead of being policed by the media, it is being driven by the media.

Last week Paula Deen lost her entire career including multiple book, television and other media deals because she chose not to allow a disgruntled employee to blackmail her. Since the employee did not receive her long sought after settlement, she released information on June 26th that 26 years earlier Deen had used the “N” word, which today is considered a racial slur.

Since that word is politically incorrect, the media used it to generate enough negative press against Deen that all of her sponsors walked away from her, blacklisting the entertainer from any future in the entertainment business.

Also last week, Facebook “accidentally” removed several “politically incorrect” entries by conservatives including Todd Starnes who had posted:

“I’m about as politically incorrect as you can get. I’m wearing an NRA ball cap, eating a Chick-fil-A sandwich, reading a Paula Deen cookbook, and sipping on a 20-ounce sweet tea while sitting in my Cracker Barrel rocking chair with the Gaither Vocal Band singing “Jesus Saves” on the stereo and a Gideon Bible in my pocket. Yessir, I’m politically incorrect – and happy as a june bug.”

When I was a child, everyone was able to say whatever suited his or her fancy. Freedom of speech meant that a person could voice or publish any thoughts without filtering. Everyone could easily understand all the positions on an issue and respect each view, while choosing the one they would stand behind.

Today, it seems that if you aren’t on the side of the media, whether a person or corporation, you might be shunned by the masses as the media instructs them to judge you as being politically incorrect.

I find it disturbing that Deen lost her career based on something she said 26 years earlier. And worse yet, she used a word that our society didn’t understand was hurtful at the time. Thankfully our society got smarter and stopped using the “N” word, but I’m sad to learn that our past can be used out of context against us.

Last week’s issues made me think about words I used years ago like “G.I. Joe.” Today there are movies by the same title, which suggests it’s an acceptable word to use “today.” But, what would happen 20 years from now if that term became politically incorrect because women in the military took offence to it? Could I lose my career because I used the word as a small child playing with my G.I. Joe action figures?

I preferred the time in America when you could say whatever you felt was important without people blacklisting you. It was a time when freedom of speech meant we were free to voice all of our views, whether positive or negative. It was a time when Journalists sought after the truth and shared both sides of every issue equally, so their audience could draw their own conclusion.

So you tell me, has media blacklisting returned?

Paying points is a typical offering to cast and crew on low budget projects. However, most independent production companies never payout points because they never have it contracted – Just offered by word of mouth. Those companies that actually contract the points may have little left over to pay it.

I’ve used points for several film projects and it works well as long as the film has multiple release venues including video and television distribution. The only unfortunate thing the producer has to deal with is a lot of paperwork for years. To reduce the tracking efforts, many times a date will be picked to offer the cast and crew an opportunity to sell their points back to the production company for a certain dollar amount or for product.

Sometimes the payment is made with excess DVDs based on a discounted value. This allows the cast member to sell the DVDs for cash or give them away to friends and family during the holidays or for birthday gifts. I was involved in a points based project that paid me 300 VHS tapes. I sold some, but you can guess what my kids gave at every birthday party they attended for an entire year. Had I sold all the tapes at 50% off retail, I would have made 3X my normal production rate.

Points vary greatly between projects and so does the amount of cash involved. One project paid 20% of a person’s rate in cash and the rest in points. Another project paid 10% in cash, 50% in points, and 40% in DVDs. The variations to financial packages are endless, but the key concept to understand up front is that eventually the production company will want the points off of the books and will either have a cut-off date or a buyout date for the points.

Here is a made up breakdown of dollars to clarify what is available for point payouts:

Film Revenue

$140,000,000   Actual Box Office Receipts

$100,000,000   Reported Box Office Receipts (after counting errors)

– $20,000,000   House Nut – Negotiated amount to cover concessions for film

$80,000,000   Theaters pay to distributors

– $20,000,000   Deduction to cover P&A (prints and advertising)

– $40,000,000   Distributor fees/margins

$20,000,000   Gross payment to producer

– $6,000,000   Production costs (cash returned to investors)

– $9,000,000   Investor payback agreement

– $1,000,000   LLC Operations

$4,000,000   Net Profits

– $3,000,000   Investor profits

$1,000,000   Point payout (all points total to 100%)

Please note that in the above scenario the people on the point system are the last ones paid. It should also be noted that the film scenario brings the point people to breakeven, which means their payout for DVD and television sales will be much higher as the investor payouts will be much smaller going forward. This is due largely to the producer scaling the payback structure to reward himself should he make a hit. On the above scenario the investors’ payout schedule declines after they reach 2.5X their original investment.

Every monetary exchange percentage is highly negotiable. The general rule of thumb for the producer is to get as much cash up front from the distributor as possible since creative accounting can reduce payback after the film’s release. The same rule applies for cast and crew. However, if the only way to be a part of a certain picture is to be on the point system, make sure it is in writing and the film has multiple venues. Also make sure alternative payouts or buyout programs are in writing.

There is one other concern about the point system and that is the 100% ceiling. Since it is against the law to promise more than 100% of profits for payout, the total number of points given out will always equal 100%. So if the production company offers you 10 points and they give out 20 points in total, you own 50% of the payouts. If however, you are promised 80 points and they give out 1,000,000 points, then your percentage isn’t worth talking about, as it isn’t even high enough to be considered a rounding error.

Even if you get the estimated number of points in writing, there is a consideration clause for going over budget. So lets say you sign an agreement for 120 points out of 10,000 points and the film goes over budget. There might be additional points paid out to bring a new stunt team in for the mass explosion scene. The new total number of points rises to 12,000 changing your 1.2% payout to 1%. According to the above scenario, your $12,000 payout just dropped to $10,000.

Also, the above scenario of an independent film bringing in $140MM at the box office is a great scenario to spell out how the points work, but consider that the average independent film only makes $6MM at the box office. This puts approximately $6,000 into the points kitty for the cast and crew. Now your 1% equates to a nice dinner or a dozen DVDs. However, the additional venues of release will increase your payout.

Copyright © 2013 by CJ Powers

Photo © mellefrenchy – Fotolia.com

I received a great question the other day and wanted to share it along with my response. “Should a screenwriter register her script with the WGA or with the Library of Congress?”

Now, I suppose that a disclaimer should be given at this point. What I’m about to share is based on the perspective of a writer, not a lawyer. Okay, I hope that helps you to understand there is no client lawyer relationship here – I do not practice law.

My answer is both. The copyright registration gives a certain level of legal entitlements for life and the WGA registration gives you a quick validation of the work’s existence.

The thing I like about the WGA is that I can instantly register my script online with a third party that, if needed, will send a representative to testify in court on my behalf. The WGA rep would testify to the facts about the particular script in question being registered at a specific date and time under my name.

When I was a kid, writers were know to mail themselves copies of their work in a post office sealed envelope. The seal would have a stamp placed across it and cancelled to prove the contents were in existence at the date of the cancelled stamp. This held up in court during numerous trials, but started falling apart when the seal was broken due to climate conditions or other reason.

Being able to show the Library of Congress certificate for copyright registration of the work in court is the ideal. Since the Library of Congress is a government entity, holding the copyright brings a quick end to any trial dealing with a possible infringement. However, it takes 2-6 months for the registration, which puts the work at risk for some time.

The best news about a copyright registration is that it entitles the writer who wins the court battle to receive an award of statutory damages and attorney’s fees. There are no awards based on the WGA, as there is no legal precedence that gives the WGA legal clout.

Some screenwriters take advantage of the copyright laws that allow you to own the copyright without registering the work. However, this becomes a little precarious without additional proofs of the creation date, which the WGA registration would help. However, it’s my practice to register all significant version changes with the WGA and the “first” work and or the “finished” work with the copyright office.

Copyright © 2013 by CJ Powers

Photo © mipan – Fotolia.com