ASK & DISCUSS
INDEXShot a short film in Indonesia; never edited; production company dormant/unresponsive; I'm owed 50% of fees; have rushes; can I edit/release film?
10 years, 8 months ago - martin percy
Hi Shooters
This is a question about a film that died - and whether I can bring it back to life.
18 months ago, I got a call from a guy I'll call Max in Indonesia, whose father I once knew. Max and a rich friend had started a film company I'll call Maxfilm. Max and friend wanted me to write and direct a short film to show at festivals, to get the company started. I signed a contract with them under Indonesian law and was paid my first 50%. I went to Indonesia and shot the film. I thought it went well, but there was trouble afoot. I never found out exactly what. I never saw the rushes. I was never paid my second 50%. Max left Maxfilm. Max called me six months ago asking for $500 to get him out of trouble.
I sent him the money, and he said he would send me a hard disk of the rushes, and that if I wanted to finish and edit the film, I could be executive producer. However, Max had left Maxfilm by then. He said his rich friend was fine with this, but there's nothing in writing. I have contacted the rich friend by email and twitter, but no reply. Maxfilm appears to still exist as a company, but it is doing nothing, and the rich friend is the only person who works for it.
I now have the rushes, which I think look great. I would love to finish the short film. It is only a short film and will only ever be seen at festivals: there won't be any profit.
I'm happy to give Maxfilm, Max and the rich friend any credits they want, and invite them to any festivals where it's shown. I'm happy to pay Maxfilm 50% of profits from screenings (though that will be 50% of 0). I don’t have any ill-will towards them whatsoever, I just want to finish the project.
However, I have nothing in writing from Maxfilm giving me the rights to complete the film, only verbal assurances from Max. So the question is - Is there anything I can do with the footage?
Maxfilm still owe me the 2nd 50% of my fee, which may give some leverage.
For example: could I send an (Indonesian) lawyer's letter to Maxfilm proposing that I complete the film and that as part of that I’ll waive my 2nd 50%? Could I say that if they don’t respond in X days, we’ll assume they’re happy with this arrangement?
Or is there a better way forward? Naturally I have no interest in fighting a court case about this.
I don't want to sue or get sued by Maxfilm. Finishing the film will take a lot of my time and money. But I do love it and it breaks my heart to see it just lying there gathering dust.
Apologies if this seems dull or irrelevant. Any thoughts would be very much appreciated. Thank you!
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10 years, 8 months ago - Marlom Tander
Follow the money. Max's rich friend is clearly running at a loss right now, and you are his only hope of getting something back, so if you offer him a deal along the lines of "I'll waive my outstanding payments, if let me finish the film, and get such promotion for it as I can, and we'll split any revenue 50:50, plus of course you get credits and bragging rights as the Executive Producer / Financier"
The fact that that you don't expect any revenue doesn't really matter - maybe C4 will take it for Unreported World or something.
If he doesn't bite, then it isn't about the money, or even bragging rights, it's something else, possibly personal / political / complicated and you should walk away.
Response from 10 years, 8 months ago - Marlom Tander SHOW
10 years, 8 months ago - Paddy Robinson-Griffin
What a mess and minefield. I doubt anyone here can tell without a copy of your contact and knowledge of Indonesian IP law where you stand legally. You may have moral rights over some parts of the footage, but not the other rights you'd need in place to get chain of title for any kind of real release. You've got a mess where probably nobody can use the shoot footage without infringing the others rights in some way.
I imagine you're unlikely to ever see the balance of your fee, so offering to write off the debt in return for a letter giving you licence to use the rushes in any way you see fit, for free, for ever. Max film can still own them, but let you do what you want with them and not be able to stop you. That might be an easy way out and only require a simple letter (and credit note for your invoice)
Response from 10 years, 8 months ago - Paddy Robinson-Griffin SHOW
10 years, 8 months ago - Richelle Fatheree
You might be able to reach Max's rich friend through the Indonesian (I'm assuming) attorney who drafted the original contract. Has Max or his father made any effort to intervene on your behalf/pressure the friend to respond?
Response from 10 years, 8 months ago - Richelle Fatheree SHOW
10 years, 8 months ago - Myrna Jelman
Hi Martin, I have friends who have a film production company in Indonesia. They're a friendly bunch from Europe/Australia and may be able to put you in touch with an Indonesian lawyer? www.borneoproductionsinternational.com Who knows? Every little helps... Good luck, Myrna
Response from 10 years, 8 months ago - Myrna Jelman SHOW
10 years, 8 months ago - Susi Arnott
Have a careful look at the contract you signed (hope you kept a copy) and at exactly who countersigned it on behalf of Maxfilm
Response from 10 years, 8 months ago - Susi Arnott SHOW
10 years, 8 months ago - John Lubran
Hey Paddy, we were both answering this question simultaneously. I love positive synchronicity!
Response from 10 years, 8 months ago - John Lubran SHOW
10 years, 8 months ago - John Lubran
I don't know much about Indonesian Law but I do know that much of it would be deemed even worse than unlawful under English, US and most western Law, thereby rendering much if it ineffective in those jurisdictions. Even within the western world a great many people working across borders and making contracts choose to agree contracts under the jurisdiction of English or US Law rather than for example even French or Italian Law (The latter being perhaps even more ludicrous in terms of due process than Indonesian Law). I would imagine that the contract you agreed to will only have precedence in Indonesia and any other territory with which Indonesia has effecting bilateral agreements, which is unlikely to include UK, USA, etc. If Indonesia and those bilateral places are important to you or you will return to work in Indonesia then that could be a caution.
But what exactly are the terms of the agreement? As ever, the devil is in the detail.
A couple of basic principles may apply however. Because 'Maxfilm' has failed to uphold its end of the bargain, specifically by not paying the second tranche of your fee and constructively by rendering themselves no longer fit to act under the agreement by the default of effectively disappearing then the whole of the agreement might well be nullified by those defaults.
With regard to who owns the rushes; where no valid contract exists or has been constructively nullified then the prima facie presumption under English, US and other Common Law jurisdictions is that the person or entity who made and possess the rushes retains the underlying rights. Others however may have specific other rights if they contributed to the film under terms of agreement or again by default if they've evidently contributed without any express agreement, such as release forms for example, that need not be written.
In any event pick your lawyer carefully and don’t presume they are giving the best advice, no matter how grand they seem!
But as suggested, the devil is in the detail.
Response from 10 years, 8 months ago - John Lubran SHOW