Oscar short-doc figurine-wrestling opens the question of ‘who owns the film’

Not a great moment for the documentary world, as an ousted producer jumps on stage during the short-documentary Oscar presentation to “Music by Prudence” and sets off another 24 hours of WTF.

But the battle between director Roger Ross Williams and ousted producer Elinor Burkett makes for good discussion outside the gossip mags that are enjoying the craziness of it. The Williams-Burkett situation is a reminder that the question of who’s in control must start at the beginning of the process. They are both invoking “creative differences” as the reason for their split and the ensuing lawsuit, now settled.

One post, “Choose your collaborators wisely,” describes the collaboration as a desperation move:

Roger Ross Williams hated his job as a television producer. Desperate for something different, he went to the Catskills, N.Y. home of his neighbor, Elinor Burkett, an author and journalist who also has a home in Zimbabwe. “‘Save me,’” Burkett jokingly recalls Williams said to her, to an audience in the Catskills in early 2009

Partnerships on small projects rarely begin with a lawyer-generated contract – the budgets are too small to burn off money on that – but they should begin with some form of agreement with clear understanding of the roles of the participants. Titles only mean as much as the clarity with which responsibilities and controls are laid out. A countersigned letter of agreement can work; emails also serve as a form of “fixation” that create a verifiabe trail.

Alison Bulman, who recorded a podcast of Burkett and Williams in 2009, said,

“Their relationship seemed fun. They seemed cordial to each other. But you’ve heard the podcast. You can definitely hear her mowing him over. She’s a loud, New Yorker-seeming woman, and he’s the soft spoken, creative type.”

What did Burkett think she would get? She apparently suggested the idea to Wiliams, but that does not in any legal way constitute creative ownership of the project. But what if a producer goes out and raises money to fund a very specific idea or approach, and the director decides to take the project in a new direction? The producer may feel a certain obigation to keep investors from feeling as if the money wasn’t put toward the idea they signed on to pay for. Or, if a producer acts in a “mentoring” relationship with a young director that implies a right of control, can it be spelled out? Studios, for example, often reserve the right to have the final edit, and some producers on small projects ask for the same.

When the director enters the deal, what does he/she expect? A producer is often someone who creates an overall business model, or works the preproduction part of the equation to set up interviews, locations and crews. “Producer” is a much less clear title. Producers can be subordinates, or they can be supervisory. On rare occasions they can be equals, but I’d make the cases that true equal creative control really means you have co-directors.

One wonders, looking at the Williams-Burkett dust-up, who thought they were in charge. The interviews Burkett has given in the last news cycle suggests she believes she was the key person in the project, someone who steered a young director who’d “never even heard of Zimbabwe” to a project that has now brought him an Academy Award. Williams, who is now saying “I own the film,” seems to be someone who believes that Burkett was helpful at first but then became an obstacle to his control. Because their lawsuit was settled out of court, one is unlikely to get any details of how they made their deal, but it’s highly likely it was a loose agreement based on an iniital excitement about a project.

Who owns the film? Most often it’s the person who comes up with the money. Louie Psihoyos, the winner in the documentary feature category, went ahead and funded himself. In doing so, he took risk but really simplified the control issue. He is a seasoned pro who went forward not with hopes but with a game plan, and the assumption good work would result.

Few people who start making documentaries, especially shorts, are crazy enough to believe they’ll make any money. But, by the same token, a contract should have very clear agreements about who gets what share. It should also put in clear words who has control over how the film will be distributed, in which film festivals it will be entered, who is responsible for marketing, and how much each party is responsible for the negatives, such as lawsuits. And the question of who owns the copyright is worth exploring.

Contracts should also cover people involved in the production who do “work for hire,” meaning those who are paid (even if deferred payment) but have no copyright ownership or other control. That usually includes editors, camera operators, sound recordists and composers of music. One thing some low-budget productions do is throw the producer title at everybody, to make them feel they have stake in the project. But those people can potentially become a voting body if their roles as so-called producers aren’t clear.

One benefit of the lowered cost of documentary filmmaking is the opportunity for one person to truly “own” a project.” But if there are more involved, who has creative control must be worked out at the very start. For Williams and Burkett, what probably started out with a handshake ended up with a  tug-of-war that went all the way to the big stage.