In film production, the development period is the most creative one. However, it is essential to check at this stage whether all creative concepts are feasible in organisational, financial, and legal aspects. The fluency of further work and the success of the whole film production project also depends on the reliable execution of development. Which mistakes can be avoided at this stage? Here is a brief guide to development.
What is film development?
Development is the stage at which a movie idea starts to take a particular shape. In the case of a feature film, the essence is usually literary work (the creation of so-called treatment and first script drafts), in a documentary film – depending on its character – either initial subject/protagonist research or a search in the archives, while in an animated film, script, and artwork are equally important.
The scope of development, however, might – and usually should – be much wider. In development, we secure rights, obtain the necessary permissions and licenses, scout for locations, pick the main cast, establish cooperation with key filmmakers, make initial script estimations, prepare to budget gathering and even plan the future promotion and distribution of the film. In case of any of these issues, producers may face certain traps.
Literary works and securing rights –an overview of the most common problems
The basis of every feature film is the script. It can be original or adapted (i.e., based on a book, play, reportage, etc.). In case of documentaries, the script is far less important. It is often written secondarily, on the basis of already executed documentation, and is used more to acquire funding or collaborators than to plan shooting. What is worth remembering during literary/documentation work?
- First and foremost, the rights to the script must be transferred correctly. Secure the fields of use of the script accurately to the needs but possibly widely. The script is the basis for all the further work on the film so any oversights in this respect will indeed recur in the future at the exploitation stage
- You absolutely need to take care of obtaining permission to perform script derivative copyrights – without it, screen adaptation will not be possible. Derivative copyrights are also needed for any further script literary development. At the development stage, it is a good idea to create the possibility for other authors to rewrite the script or to add co-authors during the writing process if you are not satisfied with the result of the literary work done so far.
- When starting to work on a fact-based script, remember to stick to the truth. For example, when telling a story of a famous murder or theft, verify all the available documents and the verdict in the case. Reality distortion may lead to the violation of personal rights. Without the prior consent of the persons concerned, we cannot proceed with a story about their personal life, as we may violate their right to privacy. It’s not enough to make a cosmetic change such as changing a character’s name or profession to be fully exonerated from liability. If a character can still be identified in the film, their personal rights can still be violated.
- If we are planning to create a movie telling about the life of a well-known person or a real event and there is a biography of such a person or a reportage on the event on the market– it does not mean that we automatically have to acquire the rights to such a literary source. Historical facts cannot be appropriated by anyone and are not protected by copyrights. Such protection applies only towards original and creative ways of their presentation. Only if we adapt these original elements, for example, the author’s selection of plots, motives, and specific conventions – then we should acquire rights to the literary source as an original work in relation to our script.
- When creating an adapted script, based on another literary work, we should obviously acquire appropriate rights to this work since the so-called “chain of title” must be fully correct from the very beginning. Although it is not prohibited to write an adapted work for personal use, it does not make sense in the market reality to embark on a literary work that cannot be exploited later. If we want to adapt a book into a script, let’s first establish who is entitled to the screen rights and for how long. Sometimes it stays with the publisher – usually on the principle of a several-year license – but often the right remains with the author.
- In case of documentaries, we should take care of obtaining prior consents for the use of our protagonists’ images. Such consents often have to be presented at the stage of obtaining financing.
- In case of films based on archival materials – for example, newsreels, and old documentaries, it is surely needed to acquire appropriate licenses in order to use these materials in our film. However, that sometimes might not be enough. Usually, those who hold the rights to the archives only hold them in terms of the producer’s rights. Any permissions from the people depicted in such archival materials have to be acquired separately. Furthermore, if we want to creatively interfere with the archives or to present them in non-obvious or critical context (found footage genre films), we can violate the author’s personal rights (including integrity, inviolability of form, and content of the work). In such a case obtaining a license only from an institution – disposer of the film material in question may be insufficient and it may be necessary to apply directly to the creators or their heirs. When the script is ready it is always worth to “clear” it. At this stage, potential risks can still be eliminated at a relatively low cost – i.e., by removing distortions (which can lead to personal rights lawsuits), acquiring all the necessary licenses for the included works (songs, poems, art pieces in the background), suitable permissions for trademarks usage, etc.
Who will the film be for?
The development stage is also the moment for reflection on who the potential film audience for the film will be. The concept of audience design, which is the process of creating a future audience from the development stage, is becoming increasingly popular – not so much through marketing activities, but by attracting interested parties through the very subject of the film and the story it tells.
Thinking about the future audience during the development stage may also have a pragmatic and legal dimension. During the time of script creation, it’s worth precisely considering, at which age groups the movie will be aimed. If we count on a school youth audience, take care of the absence of unnecessary violence, cursing, discrimination, and other behaviors that could negatively affect the development of minors. For this purpose, it is worth becoming acquainted with the National Broadcasting Council regulation from 13 April 2022, issued on the basis of article 18 paragraph 6 and article 47e paragraph 4 of the Broadcasting Act, which regulates what kind of content programmes and other broadcasts dedicated to certain age groups of viewers should not contain.
On the other hand, adequate positioning of the movie (whether it is a commercial film, or rather a niche film, dedicated to families, schools, or adults) will allow us to better estimate future revenues from the exploitation of the film, and thus acquire financing from adequate sources and make credible promises of profits to co-producers and investors.
Financing search, promotion, and distribution planning
These are further issues that need to be planned for at the development stage. Commitments made from the very beginning and entities chosen as co-financiers of even the development stage itself will affect the financing structure of the future film.
Film financing can be acquired in the standard way, by applying to the Polish Film Institute, regional film funds, and acquiring co-producers among public institutions, private producers, or companies – for example, post-production or other service providers. The film financing structure may also include investors, sponsors, donors, televisions, and deferred payments to individual entities, i.e., so-called deferrals. In case of a more complicated film financing structure, it happens that accidentally we may inadvertently promise too much to co-financing subjects, while at the end of the day the “cake” of revenue to be shared still has a total of 100%.
In case of productions co-financed by the Polish Film Institute, we should remember the general rule of revenue distribution contained in article 23 paragraph 5 of the Cinematography Act, constituting that the entity receiving funding for a project, is obliged to return it in case of achieving profit from the project. This rule has far-reaching consequences since it forces a specific construction of film revenue-sharing plans or so-called recoupment plans. A producer cannot, therefore, give the co-producers and investors more of a share of the revenue, than is necessary to secure the potential Polish Film Institute subvention payback during the profit stage (and thus after the distributor expenses– the Minimum Guaranteed and the P&A costs – and the co-production inputs have been paid off).
And what about product placement?
At the development stage, it is worth considering an alternative option for financing a production, such as product placement. This is a moment when a natural place can be found for various products in the script without losing its artistic value.
According to article 4 paragraph 21 of the Broadcasting Act, product placement is a commercial message consisting of a presentation or reference to a product, service, or their trademark, in such a way that these elements are a part of a broadcast itself, in exchange for payment or similar compensation, as well as in the form of making the product or service available free of charge. When deciding on this form of (partial) production financing, it is worth bearing in mind the restrictions under the Broadcasting Act. Films containing product placement have to be clearly marked with a graphic symbol and at the end of such a film, there should be neutral information about the producer or seller of the placed product, about the subject providing the placed service, and about the product or service itself. Product placement must not excessively exhibit the given product and directly encourage to obtain or lease it. Furthermore, product placement is prohibited for products listed in the aforementioned law, such as, for example, tobacco products, alcoholic beverages, medicinal products, psychotropic substances, or… solariums.
The development period should be used not only for creative work but also for working out the legal and business side of the film project. Both literary work and making commitments to financial partners during the development stage may have far-reaching consequences during the actual production and subsequent distribution of the film. In development, however, these can be straightened out relatively easily and cheaply.