LEGALLY SPEAKING, IT DEPENDS: Incomplete Projects – What’s a Filmmaker or Writer to Do?

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

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(Apologies. This article was intended to be published several weeks ago, but, due to circumstances beyond my control was not completed until now.)

“Wait, wait, I’m not finished.”

LEGALLY SPEAKING, IT DEPENDS: Incomplete Projects by Christopher Schiller | Script Magazine We’ve all experienced that helpless feeling of not being able to complete a task that is expected of us. In our industry there are countless unfinished masterpieces and abandoned projects galore. It seems inevitable that somewhere in your career you’ll encounter something that you’re involved in that stops while incomplete or never gets where it was going. This article intends to explore some of those circumstances and evaluate what happens next, what the consequences and responsibilities involved are for the incomplete projects in our lives.

The incomplete screenwriter

If you’re a screenwriter you likely have lots of incomplete scripts in your files. Ideas that started as specs and abandoned for whatever reason; the screenplay premise didn’t stand up to a full script treatment, the idea was done by someone else before you could finish, the dreaded “writer’s block.” When it is a spec idea that we’re attempting for ourselves the fallout of leaving a script incomplete is simple. Since no one was waiting for it, abandoning it doesn’t impact anyone’s expectations or waste anyone else’s time or money. The worst potential damage is you kicking yourself for wasting time on something you can’t take to the next stage.

But if that script you were working on wasn’t a spec and someone else was counting on the delivery of a completed draft by a certain date, then you’ll likely have more of a substantial problem not finishing it. When a party buys your pitch or hires you to write a draft there’s a contractual expectation and obligation for you to deliver.

Contractual fallout

Regular readers of these columns have heard me extol on the importance of knowing the terms of the contracts involved in your dealings in this business. It is in the interest of both sides of an agreement to fully understand the terms of the deal. Clarity of terms allows you to know exactly what is expected of you and when per the contract. Failing to meet those deadlines and conditions results in… bad things.

When a party to an agreement fails to meet the requirements of an agreed upon term of the contract that party is said to be in breach. If the writer was expected to turn in a complete new draft on Monday and here it is Tuesday afternoon and no draft has been delivered, the producer has a right to be upset. What the producer can do at this point can depend on the rest of the terms of the agreement.

If the contract is mum on what happens if a party breaches, then traditionally the entire agreement is ended. How that affects both parties can be quite dire so usually there are terms in the contract that discuss ways of dealing with a breach to keep something of the original deal alive.

Curing the breach is the contractually defined conditions where the breaching party, by specific terms laid out in the text, may be able to recover from the faux pas and restore the conditions of the agreement going forward. Usually the language used in a curing of a breach section is quite heavily in favor of the non-breaching party. Often the specific way a breach must be cured, and in what time frame are stated. Or the non-breaching party is given full discretion as to how to set terms to get the agreement back on track and the breaching party must abide by them to make amends.

Typical ways breaches can be cured include penalties of some kind for the breaching party, an extremely tight deadline to deliver what was promised, significant oversight of the breaching party’s operations in curing the breach by the non-breaching party until resolved (and maybe for the rest of the contract term), and/or damages compensating the non-breaching party for any losses caused by the breach and the recovery.

It is sometimes possible for the non-breaching party to decide to grant a waiver, ignoring the contractual requirement that led to the breach as if it wasn’t part of the deal. If a waiver is available, it is often defined as an option for the non-breaching party in the original terms of the contract. Usually that language will stipulate whether the waiver, once granted will always apply in future contractual terms (e.g. a repeating event.) This is the default of a waiver if no other language counters. Often there is included the stipulation that granting a discretionary waiver once has no affect on future interpretations of the contract. As always the specifics of the contractual language rule.

What this boils down to is that the one who breaches a contract is at best left to the mercy of the other party, which, since you are disappointing or inconveniencing them isn’t likely to be favorable.

Other fallout of not completing a script

Even after considering the direct, legal ramifications of an incomplete script assignment, there are many other career aspects that suffer if you don’t deliver. Even if the other contractual party allows you to continue after missing a deadline there is the potential loss of other contractual advantages (right to further drafts, credits, right to be first in line to write sequel) that may result from the incomplete. Then there’s the damage to your reputation. News travels fast about who is capable and who has problems delivering in this industry. It’s hard to get a second chance when you didn’t turn in the first one.

The damages differ from delivering a draft that isn’t good or liked. If you at least turn over a legitimate script (not 120 blank pages) that doesn’t live up to the creative expectations of the producers, you still have lived up to your obligations to deliver. Though it is likely your reputation will still take a hit, there are many reasons why a script draft fails to please and many of those are situational or personal. One person’s trash is another’s treasure and all that. But if you don’t deliver anything it’s pretty clear where the problem lies.

The incomplete filmmaker

And the fear of failing to complete a project doesn’t end with the script delivery. Filmmakers are constantly under the gun to deliver and there are a myriad of reasons why a film project might end up incomplete. When the producers start to get nervous are when the film is about to (or already has) gone over budget or over schedule or both. A runaway train is sometimes only stopped by crashing. While in production, a line producer‘s traditional role is to monitor the daily production aspects that affect the bottom line and delivery date. Certain extra expenditures are expected and even anticipated. That’s why a good film budget always should have a hefty contingency line item. It’s a significant portion of the budget’s funds (sometimes upwards of 20%) that isn’t allocated to any department but is there to have ready funds to handle emergencies or unexpected rises in costs. If it rains on the exterior shoot days and there’s no work around, the extra days lost are paid out of this. There’s a certain flexibility built in to modern production budgets. But those only go so far.

Completion bond and the incomplete film

The fact that there is a lot of someone else’s money on the line (both above and below) adds to the producers’ nervousness. Not to mention the nerves of those whose money is being spent each day. That’s why most investors in film require some form of insurance that they won’t lose everything they spend on a production if things go wrong. A completion bond is an insurance policy that something will be available for the investors from the result of spending all that money on the production. The bond assures the investors that at the end they will either have a completed film or their money back.

Before a film is bonded a completion bond company assesses that there is a strong likelihood the players in place will be able to complete the film. If you hear that a film cannot get insurance because one of the principals, say a lead actor or director, isn’t healthy enough it’s likely that the bond company determined the risk is too great and the potential cost if the sickly person died while filming is too high to assure the film will be completed. If a bond company does take on a project they do so with significant power to act as they see fit when trouble threatens the completion of the film. There’s no guarantee that the investors will have a film that they can make money with let alone make their money back but they will have an asset with which to try.

A bond company usually has two options for salvaging a film heading for trouble: 1) they can decide to step in and make changes to the production team, budget, structure or anything else they feel would assure the completion of the film. Or 2) the bond company can determine that it’s a lost cause and the film cannot be completed as things stand (and with money spent) and decide to pay the investors back what they’ve spent. Bond companies prefer situation number 1 most of the time and will step in and finish “a” film, maybe not anything like it was intended to be, but, it will be complete.

As you can see, a bond company has a strong motivation to keep tabs on a film’s development. They are often the first to sound the flag on overspending or trouble brewing. Just another reason why so many filmmakers are paranoid about going over budget or schedule. They don’t want to lose control of the film they’ve worked so hard to create. In the best scenarios the bond company collects its fee and does nothing. The film is delivered close enough to on time and budget to please the money people and creatives alike. But occasionally that’s not always the case.

Example 1: The Man Who Killed Don Quixote

man-who-killed-don-quixote-art-2Sometimes an incomplete film is a product of shaky financial structure security and bad luck.

At the beginning of the millennium Terry Gilliam was set to direct a long gestating pet project of his, The Man Who Killed Don Quixote based on the Cervantes masterpiece. After years of trying different approaches he finally raised the millions needed from a large, cobbled together group of investors and set out to film in Spain. Through fits of bad health, weather and location issues, after only two days of actual shooting the plug was pulled on the project. The chain of minor disasters and the skittish, many handed investor group led to the film’s initial stoppage. In what was supposed to be a typical behind the scenes video documentary, the tumble of events were wonderfully (or horribly?) captured in detail in the award winning documentary Lost In La Mancha.

lost-in-la-mancha-poster-0It has taken many years and several attempts for Gilliam to get control back of his film from the shambles of that original attempt. And it is not clear yet that he will be able to finally complete the picture even with the backing of Amazon Studios this time. The latest hurdle is that his current star, John Hurt’s health is problematic in getting the film insured.

Example 2: The Other Side of the Wind

A completely different way to end up with an incomplete film is when the driving force behind its creation dies before completing it.

The Other Side of the Wind is a (so far) incomplete film that Orson Welles was working on throughout the last decades of his life. He shot bits and pieces of the film over the course of several years, whenever he could raise enough money to get a bit more done. He was in the process of editing it when he died back in the mid-eighties.

CJOmaEHWsAA7nsQAs is the case with most incomplete film projects there are an awful lot of people with various vested interests involved in it that would like to see a finished product. In this case, Welles had shot all the footage he thought he needed to complete the film and had actually created about 40 minutes or so of rough cut scenes as well as created detailed notes as to how he envisioned the rest of the film was to go. With no real missing pieces it should be a simple matter of bringing the elements together to finish the work. As often the case in Hollywood when it comes to what should be simple, it’s not.

For this instance the first question was, “Who owned the film?” There were many vying parties from the people who put up some of the financing to the stars of the film to those who worked hard on the technical ends. The story is chronicled well up to the most recent turn of events in the recent book by Josh Karp, Orson Welles’s Last Movie: The Making of The Other Side of the Wind. Since it’s publication there has been a resurge in people attempting to raise funds and get rights to finish the edit as Welles intended and get his last work out to the masses. But even now, stumbling block keep rising up.

What’s a filmmaker or writer to do?

When a guiding force for a film falls, the wind is knocked out of the sails. And if that leader had a tendency to fly by the seat of his pants in dealing with people and properties trying to get his film made, even with his original charts and plans the depths of the waters of complications ahead can be treacherous. Claims of ownership have to be investigated and either supported or debunked. Claims of debts owed against the film have to be dealt with in a similar manner. Angry participants should be quelled so as to not make more troubles. Worried family members and friends must be satiated that the end product will still honor the memories and intentions of the original creator. And you still have to deal with the regular uncertainties of trying to bring a film to market and reach an audience. Only an extremely dedicated (and lucky) group can succeed under such circumstances.

A prudent scheme for a provider of source material for a film, be it a spec script or other work, is to contractually obligate a production deadline for a completed film by a certain date or the rights revert back to the originator. It’s basically like a completion bond for the creative efforts instead of the financial expenditures. And a filmmaker should make sure that the chain of ownership and control is clearly defined and adhered to in the event the unforeseen does happen. That way there isn’t a delay for resolving the murky control issues before a remounting of the project can begin.

An incomplete analysis

It’s the nature of the complexity of possibilities that this article has to be an incomplete analysis of all the possible ways you can reach the dead end on your incomplete script or project. There are many other possible problems that could arise from not being able to finish what was started. The best you can hope for is to plan for the possibility that something might not be finished and put in place contingencies. Because as always, it depends.

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Christopher Schiller

About Christopher Schiller

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. He has an extensive personal history in production and screenwriting experience which benefits him in translating between “legalese” and the language of the creatives. The material he provides here is extremely general in application and therefore should never be taken as legal advice for a specific need. Always consult a knowledgeable attorney for your own legal issues. Because, legally speaking, it depends... always on the particular specifics in each case. Follow Chris on Twitter @chrisschiller, his website, and Google+.

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