November 23, 2022 - The Thanksgiving Long-Read
This week brings us Thanksgiving in the US and, usually, the majority of filmmakers get their acceptance calls for Sundance. And soon after, if you don’t have one already, you’ll start to get calls and emails from just about every sales agent, saying they’ve heard amazing things about your film, and asking for a screener and to represent your sales. And if you didn’t get in, you are likely starting to think about how you get a sales agent to help you position your film for another film fest and for sales. In the past couple of weeks, I’ve heard from a few filmmakers looking for a sales agent, and looking online for info to share with them, I realized it’s surprisingly hard to find good resources about this topic. The best I’ve found is this guide to the business from the UK’s Skillset, and this post about foreign sales from Filmmaker Magazine back in 2013.
So I thought I’d write a new Film 101 post on Sales Agents - you can read the two previous Sub-Genre Film 101 articles here and here - what is a sales agent? How do they work, how do you get one/choose one, and what are the pros and cons? In writing this, I also realized that it’s a pretty complex topic to cover, so this is a long post (I recommend reading this over the entire Thanksgiving weekend, perhaps), and I’ll inevitably forget something important. So proceed with caution, and do a lot more research, but here goes.
A sales agent is a person/company who represents your film exclusively to the marketplace, helping to position the film with film festivals and buyers, all in service to finding you the best deal for your film for the best price, and in theory, with the best distribution plans. For the most part, they work on a commission basis, meaning they take a cut/percentage of the sales price they negotiate. In the US and with the major agencies (CAA, WME, etc.) this is always 10% of the sale, and with no other upfront fees. But some reputable agents charge as much as 15%, and some foreign sales agents charge even more (more about that below).
There are some exceptions, and there are many little differences in how they work between the US and International. In the US, it is very rare for them to charge any upfront fee, and you should probably avoid those who do charge one. Some will deduct some fees from your sales price before applying their commission, and as a filmmaker you want to be very wary of this as well. For example, they might deduct airfare to a fest, or a portion of the cost of their booth at a market. Those costs can get expensive, so you want to negotiate (with an entertainment attorney) to remove and cap those potential expenses. The best US sales agents, especially those who believe they can sell your film for a good price, don’t deduct these kinds of fees.
Foreign/International Sales Agents, especially those based in the UK and Europe, operate a little differently. They often act kinda like a distributor (and some even call themselves distributors as well, and a few even act as distributors in certain countries). Some will pay an upfront MG or minimum guarantee/license for the film, and then recoup that cost, and their other costs, from the sales they make for the film globally. It is more common to see deductions for marketing costs, booths and travel, but again, you can and should negotiate these fees and put caps in place, etc. with a lawyer. Foreign sales agents also like to get involved earlier, to help position films with the fest premiere, and will often even be involved at the fundraising stage for films, by providing sales projections, or even bringing financing to the table.
For US based filmmakers, you will often go with one US based sales agent for your film, and they will represent global rights. They will usually aim for one global sale – such as Netflix buying the rights to stream the film, globally, for one license fee. But often, your sales agent will end up splitting up your rights among many different distributors and sometimes many different territories (countries or groups of countries). For example, they might sell streaming rights in North America, the UK and some other English speaking countries to Netflix. If they are lucky, they can carve out your theatrical rights in those same places, and maybe sell them to one distributor (say Greenwich) in the US, and maybe another in the UK. They might then sell your streaming and/or other distribution rights to a dozen or so distributors in different countries and in different languages. Maybe one company buys it for all of Europe, another for MENA, and another for Asia. As you can guess, there are numerous ways this might happen.
Complicating matters, your US sales agent might do all of these deals through their own office/sales team, or they might have subcontractor agents who help with different territories. Likewise, you might negotiate a deal with one US based Sales Agent who handles North America (and probably handles any global, all rights-deal), and another agent – your foreign sales agent - who handles the rest of the world. Make sure you know whether your sales agent is working with any sub-agencies, and what their fees are, and also their track record with foreign sales.
For a brief time, it was more common to get lucky and sell your film for all rights, globally, to someone like Netflix. But increasingly, the bigger streamers aren’t making huge offers for global rights at all, and you have to split your rights among multiple buyers, or they only want a small number of territories; so once again, it’s becoming more common to need a good domestic sales agent and a good international one. Last, I think, there are also many international sales agencies who have now become pretty good at handling domestic/US rights – especially in the doc world (Dogwoof and Autlook being just two examples), and you might be able to work with them for all of your rights.
How do you find and retain a sales agent? But how do you find a good one, and get them to work with you? That’s also tough. In the US, most of them don’t want to work with you early unless you are an established entity – a well-known producer or director, and/or an emerging talent with a name. They often want to wait until you’ve gotten accepted into a decent film festival (at which point you’d be right to guess that most of the hard work of a sale has been done). But once you get into a major film fest – in the US, that would only be Sundance and to some extent SXSW and Tribeca – someone junior there will reach out to you and want to see your film.
If you didn’t get into a major fest and have them come looking for you, or if you are trying to attach a sales agent earlier in the process it can be a bit harder if you aren’t already an established filmmaker. But it’s not impossible. First, ask around. Talk to other filmmakers about who they’ve worked with, and who they liked (and didn’t like), and ask for introductions. Second, do your research – look at films that are like yours, and look up their sales agent on IMDB, or in the trades – anytime a film sells, the agents who sold it are listed in Deadline, Indiewire, and others who report on the sale. Approach agents who seem to represent films like yours, or that you like. You can also look at this list of reputable European sales agents from the trade organization Europa International, who has been a client of mine (full disclosure), and there are numerous other lists online (some are outdated, so keep doing that research).
Third, take advantage of the many networking/educational opportunities out there. DocNYC just had its DocNYC Pro Days, which included talks with sales agents, and meeting opportunities. There’s fests with markets and meetings, such as AFM, Berlinale (EFM), Cannes (Marche), IDFA, Gotham Film Week, CPH:DOX, Hot Docs, Sheffield, and smaller fests like Camden, where many industry attend, but are less busy than at Sundance, and you can meet these folks. Third, reach out. Almost every sales agent has a junior employee whose job it is to go through the random submissions, the films they missed at a festival, and to be sure they aren’t missing a film they might want to represent. Cold calls are the last resort, but I’ve seen them work many times.
Finalizing a deal with a sales agent. One you’ve gotten one or more sales agents interested in your film, you’ll negotiate a sales agent agreement with them. There are a lot of things to look for here, and many traps, some of which have already been hinted. I recommend that your primary concern should be going with your gut – who seems to “get” your film the most? Who seems like they know how to sell it, and seems to genuinely care about your movie and getting it sold? What is their plan for your film, or what parts of your plan to they agree with? Who is the most enthusiastic? Remember, in the best case, you are going to be trusting this person with your film’s future – your baby – and if the relationship works well, you might be working with them again in your career, so in a sense, you are trying to build a long term relationship for your own future. Next, go back to that Filmmaker Magazine article I mentioned above, which was written by Ryan Kampe who is a sales agent, as he gives a good break-down of the deal terms to look for and what to think about. Last, don’t enter into any agreement without a good entertainment attorney reviewing your agreement with you, and negotiating on your behalf.
Pros/Cons of Sales Agents. I have a notorious love/hate relationship with sales agents (ok, usually hate), so this is an opinionated/biased take on the pros and cons of working with one. Here’s what I love. Mainly, as a producer, you can let them take the blame if you don’t get the sale you dreamed of about, and that is especially helpful with your investors. In fact, that is the only thing I like about them, and I think many producers are like me – they know most of the buyers (and if your film is good and at Sundance, the buyers will find you) and know how to negotiate for what they want, but that can be a valid reason to work with them.
But to be fair, there are many other reasons to work with a sales agent, and for most filmmakers, they bring knowledge and access that most people don’t have. A good sales agent knows what your film is probably worth. They know all of the buyers (they have a virtual rolodex of all of them, and meet with them often), and what they like and don’t like, and they also have a history with these buyers. They know what has sold for what, when, and what your film should bring in the current marketplace (which is currently soft). They know how to position your film with these buyers, and also with film festivals (if you are lucky enough to get them onboard before your fest premiere). They can make sure you get a good screening slot in the program, and they make sure the right people show up to watch it. They can help you determine whether you should try for a pre-sale, before a fest premiere, or whether it will be smarter to aim for a higher price at your fest premiere (or even later). And, possibly working with your attorney, they can help you negotiate the best deal.
What I don’t like… well, many things. The biggest is thing is that many of them can come across as lazy. Many don’t try to do something different to position your film with buyers. They often don’t try super hard for a film if they don’t think it will be a big sale, because they aren’t incentivized to do much work for a commission that will be small for that extra work. Many lie. I’ve had more than one experience where a sales agent told me they pitched a film to a distributor/buyer who then told me they didn’t get pitched, or that they weren’t pitched well. Their commission based structure also means they aren’t always incentivized to push for the best deal for your film over the best monetary offer. Yes, these can be different things. In simplistic terms, you might be offered more money by one buyer, but what they will do for the film might not be what you want. Or perhaps you could make more money over time from splitting up your rights instead of taking that all rights deal. Or maybe you could carve out certain things like an impact campaign with one distributor, but they’re offering less money. Last, they often won't help you with rights that don't sell - I've been contacted by many filmmakers desperate for help because their sales agent sold some streaming rights, but they still own their other rights but can't get any help setting up a service deal, or aggregator deal (unless there is an MG involved), and lord help you if you get back your rights later and need help re-sellling them.
But all these potential bad things can (in theory) be mitigated by working with a reputable sales agent (remember, ask around), and by communicating very clearly to them what you want and what is important to you. For the most part, they are working for you (at least US ones), and you have the final say on what deal you will take. As one sale agent told me recently, they’ve closed a couple hundred sales in the past few years, and only a handful of filmmakers had bothered to say they wanted to prioritize an impact campaign over a higher price. You get what you ask for, when things go well. And to be even more generous to them – they can also tell you when what you want or are asking for just won’t work in the market. There is a reason they can seem “lazy” – because they do this all the time and know what works, and what is a waste of time to even try.
For those of you working on the brand side in film – like my client base – this communication is very important. If you want to keep your logo on the front of the film, or want to implement a marketing campaign that augments the distributor’s campaign, or you need to be able to screen the film to your employees for free, or some other weird things (meaning anything that is not the norm of film distribution), you need your sales agent on your side, and they need to know all of this in advance. They can’t negotiate this stuff after a deal is done, and they won’t negotiate for it unless you tell them what is important to you. If you (as a brand) aren’t the one hiring the sales agent, you’d better also have this conversation early, and you should have all of the things you want to do in your contract with the producers you are working with – and you need to be sure all parties are aware of what you want to do, and how you’ll do it, or you will get lost in the sales process.
I’ve found that most of the things a brand wants to do around a film’s release are initially scary to a buyer, but if they are explained clearly and early, these fears can be mitigated, and a deal can be made that satisfies all parties. I’ve also had numerous experiences where an agent told me – we can’t get this deal unless the brand removes it’s logo, for example – and then I’ve called the buyer to argue why we need it, and how we won’t do the deal otherwise, and had them agree within seconds – learning that the sales agent had never even pushed it, because they didn’t want to jeopardize a sale (I’ve had this happen with more than one agency, and with some of the most respected). But this is less likely to happen if you communicate your needs clearly and make sure your sales agent is on the same page with you about this stuff.
You also might not need a sales agent if you have a good entertainment attorney. If your film is in Sundance, for example, and is also a great title with sales potential, they buyers will find you. A good entertainment attorney has also seen numerous deals, knows most of the buyers and their history, and can help you field the offers that come your way. That being said, finding that great entertainment attorney can also be hard to find, and who wants to be the producer stuck without a good sale and you didn’t try to build your best team by having both a great sales agent and a great attorney?
So, I usually recommend that producers work with a sales agent, but communicate what is important to you, and always remember that no one will fight as hard for your film as you will, so stay involved (but nicely, as they don’t need you getting in their way, either).
I hope this Film101 has been helpful, and if so, please let me know. Also, reach out if you disagree with anything or think I missed something important. And have a Great Thanksgiving weekend.
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Film
Future of Film Summit 22 is back - online and on-demand - 6-13 December with exclusive sessions exploring the future of screen storytelling including: AI, Web3, Virtual Production and the Metaverse. Speakers include Joanna Popper - CAA's Chief Metaverse Officer, Niels Juul (EP of THE IRISHMAN and Founder of NFT Studios) and Dan Erickson, Creator and Showrunner of SEVERANCE.
We are delighted to offer a 10% Discount on all ticket types to readers of Sub-Genre, just head here use the code SUBGENRE at checkout.
Twitter’s Broken Its Copyright Strike System, Users Are Uploading Full Movies: The latest in Twitter (is a dumpster fire) news is that their automated copyright takedown system is down. One user’s account went viral after posting the entire Fast and Furious Tokyo Drift over the span of a 50-tweet thread and other accounts are hosting the World Cup games. As of now, these instances go undetected unless an individual Twitter employee suspends the account. If Elon Musk’s ideas for Twitter Blue go according to plan, users will be able to upload 40min + videos which will obviously be a major problem if the social media giant doesn’t have a functional copyright enforcement system. You’ll probably have to wait a while for Twitter to comment on the issue since their communications dept. has probably experienced countless layoffs. Paul Tassi for Forbes has the news. (GSH)
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Miscellany:
 The scary truth about AI copyright is nobody knows what will happen next: Generative AI — models used to create code, music, art, and text — has been taking off, but is any of it actually legal? The truth of the matter is that like most machine learning software, generative AI systems are trained to identify and replicate existing material in order to output other material. As a result, in the last couple years, artists and coders began to see their work being stolen/replicated by AI models. Check out James Vincent’s piece for The Verge (h/t ReDef) to learn about this very new fight over intellectual property and consider some key questions he poses: (1) Can you copyright what an AI model creates? (2) To what degree is the human that trained the AI responsible for copyright infringement when an AI does ‘steal’ a person’s work? (3) Is using copyright-protected data to train AI models legal? (4) How can artists and AI companies make peace and how might they work with one another? (GSH)
Tuvalu creates digital nation in the metaverse as climate change threatens the Pacific nation island: This is about as apocalyptic as it gets: The South-Pacific island nation of Tuvalu is on a path to creating a digital nation as their physical nation will likely not survive the climate crisis. “As our land disappears, we have no choice but to become the world’s first digital nation,” Tuvalu’s Minister of Justice, Communication & Foreign Affairs said at COP27. “Our land, our ocean, our culture are the most precious assets of our people. And to keep them safe from harm, no matter what happens in the physical world, we’ll move them to the cloud.” Tuvalu is paying The Monkeys and Collider (Accenture Song-owned agency) to co-create its presence in the metaverse, starting with its smallest island, Teafualiky Islet. Watch this short video to see where they are now (yes, watch it). Danielle Long for The Drum has the news. (GSH)
GSH = Articles written by Sub-Genre's Gabriel Schillinger-Hyman, not Brian Newman (BN)
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