The debate over National Minimum Wage and low budget filmmaking took an interesting turn a couple of weeks ago when Shooting People launched a survey of its members to see whether or not they supported working for less than NMW. Many critics of SP who had previously accused the organisation of ignoring the issue subsequently ridiculed the poll for being biased and poorly worded. My favourite response from the TV Watercooler website was “its a bit like asking all shoplifters what they think of conditions in retail“.
And you know what? They’re right. Whilst I applaud Shooting People for raising the issue to its membership, the poll itself doesn’t really get to the crux of the issue and that’s the fact that any low budget film or fringe theatre production is potentially breaking the law by not paying its cast and crew National Minimum Wage.
Rather than go over old ground or look at whether it’s fair or not, I thought I’d have a look at the two sides to the argument, a potential solution, why the unions (BECTU and Equity) would not support the proposal and the reasons why they should.
Background
Contrary to what some people may think, the National Minimum Wage Act is nothing new. It’s been around since 1998. Campaigners have been fighting for NMW within the entertainment industry pretty much ever since. As recently as July last year Equity activist, Clive Hurst, tried unsuccessfully to get the actors union to enforce NMW on fringe theatre productions. (Guardian article - The Stage article - Equity policy statement)
Why this has become the hot topic in the independent filmmaking community over the last few months is because of the BECTU supported landmark case which saw an Employment Tribunal rule in favour of an art department assistant who had been engaged on an “expenses only” basis and order the film producer to pay the crew member over £2,000.
Since that point there have been many, often quite heated, discussions over how this Tribunal affects the future of fringe theatre and low budget filmmaking.
In the red corner you have the bulging eyed, frothing mouthed supporters who say that every production should pay at least NMW on every project…and in the blue corner you have the bulging eyed, frothing mouthed supporters who say that their right to make films is being taken away.
They’re both right. And they’re both wrong.
Red Corner
You have activist groups like the Sweat Team and individuals like Clive Hurst who are fighting to stop the exploitation of people within the entertainment industry and want NMW to apply to all productions whether low budget films or fringe theatre. You also have the actors and crew members who believe that not being paid for their labour demeans or undervalues their creative talent.
Any attempt to stop the exploitation of, in some cases, young and vulnerable people is something which should be applauded. This industry attracts sharks and charlatans who profit at the expense of others. There can be no excuse for not paying cast and crew when you’re lining your own pockets with the proceeds of their hard work and I fully support efforts made to expose the dishonest outfits who rip people off.
Equally I support my fellow actors when they say that there is no excuse for projects where crew members get paid but actors don’t. I also, to a certain extent, go along with the notion that working for nothing undervalues you as a performer.
However I cannot support the idea that all low budget films or fringe theatre must be forced to pay at least NMW or they can’t be produced. I outlined my reasons in the previous post and subsequent discussion so won’t go over them again.
I question the way in which individuals or groups are targeted by those in favour of a blanket enforcement of NMW. It seems that anyone who is not paying NMW is considered a legitimate target regardless of whether there is an agreement in place regarding deferred payment or profit share. I also don’t know what the legal position is on publishing private emails on public forums but, regardless, I find the practice reprehensible.
It’s one thing to go after the crooks and con artists who exploit the system, it’s another to tar everyone with the same brush and publicly demonise them.
Blue Corner
You have the aspiring directors or producers who just want to make a film or groups of actors who want to put on a fringe theatre production. Whether it be as a hobby or as part of the early stages of a fledgling career or the collective work of experienced professionals looking to fill the gaps in their diaries, these people simply want to do what they enjoy doing and, in many cases, have paid a lot of money to be trained to do.
They’re outraged that a blanket enforcement of NMW will take away their freedom of choice to produce a show or work for no/low pay. There is some confusion over whether NMW applies to low budget productions (see comments on the SP poll) and a feeling that creativity is being stifled by legislation from the nanny state.
Well I’m afraid you’ve only got yourselves to blame.
The way many low budget filmmakers go about their projects is, frankly, laughable. How can you expect to be considered professional when you’re not insured, ignore health and safety regulations, think that a curled up cheese sandwich constitutes lunch and then ignore requests for DVD copies of your film months after it was shot?
The advances in digital technology and the ever increasing use of the Internet as a distribution mechanism now mean that it is possible for anyone with a half decent camera to make a film and get it seen. That doesn’t mean that you can cut corners and put peoples lives at risk in your quest to make a film for £4.50.
Just because you believe you can make a film for nothing doesn’t mean you should.
Facts
- The National Minimum Wage Act is not going to go away.
- Groups like the Sweat Team and individuals like Clive Hurst are not going to go away.
- Despite my tabloidesque headline, low budget films and fringe theatre productions are not going to go away.
Moving Forward
Part of the problem at the moment is being able to distinguish between the productions which deliberately flout the law like the one which resulted in the Tribunal hearing and those which genuinely fall into the realms of the low budget independent filmmaking. This equally applies to theatre productions whether they be classed as fringe or profit share.
A potential option discussed on my previous post was reviving the old ACTT Workshop Agreement (download copy here courtesy of Ben from the Sweat Team) which enabled union members to work for less than industry rates on non-profit ventures. Richard Hartley also raised the issue of forming a co-operative, limited company partnership or voluntary organisation to make your film to remain within the realms of NMW law.
One of the proposals put forward by Clive Hurst was to re-define any unpaid work in fringe theatre as “amateur”. I’m assuming here, and I’m sure Clive will correct me if I’m wrong, that this was not meant to be a derogatory label but, moreover, in line with the fact that amateur dramatics shows are exempt from NMW (although nobody has been able to tell me why this is the case).
There’s possibly some mileage in this although a label of “semi-professional” would perhaps be more palatable to those card carrying members of the union who are performing in the production 
Putting labels to one side, creating a clear distinction between the can’t pays and the won’t pays can only help all those concerned. As a performer or crew member you know from the outset which category the production falls into and as a campaigner or union you know which productions to target. No more being unknowingly exploited. No more friendly fire.
Proposal
A cross-union agreement ratified by HMRC which encompasses all low budget films, fringe theatre, student films and amateur dramatics productions. The agreement would cover areas such as working conditions including health and safety, contractual rights and obligations, issues like Working Time Regulations, provision of DVD copies and such like. It would also cover the issue of production company status (i.e. co-op, collaborative, non-profit, commercial, etc.), funding and disbursement of profits.
Simplistically you would register your production with the organising body in order to receive certification, seal of approval or similar. By registering you are then legally bound to fulfil certain criteria such as following H&S guidelines, WTR, etc. and be liable for the payment of at least NMW to all contributors once the production hits a defined level of profit. As a registered production you may be asked to produce accounts to back up your financial statements.
By making the process as simple as possible there would be no reason why any legitimate production would not register. As a performer or crew member you are working on a project safe in the knowledge that you’re not being exploited. Sites like Shooting People, Casting Call Pro, Talent Circle and Mandy would have no excuses accepting non-certified productions. Fringe theatre productions and low budget films could continue to be made and organisations like the Sweat Team would have legitimate targets to concentrate their efforts on.
It’s a win-win.
Why BECTU and Equity Would Not Support The Agreement
Both unions have worked for many years to put in place agreements with the major TV and film networks, theatre production companies and such like to establish minimum rates of pay and working conditions for their members. Equity have previously released a guideline entitled Low Pay/No Pay Work In Film & Television (log in required) and they already have in place an agreement for low budget films, although the figure they use for “low budget” is <£2m. I’m sure BECTU have probably done the same for their members.
By being seen to align themselves to deferred payment, profit share or no payment projects, both unions could argue that it diminishes their negotiating power with the larger commercial organisations and, to an extent, they’d probably be right.
On top of this you have the costs of administering a system like this, the drain on resources and, perhaps, the fact that its scope falls outside of the fundamental constitution of the union itself.
However…
Why BECTU and Equity Should Support The Agreement
The industry is going through massive change at the moment and this is due, in part, to a new generation embracing digital technology and the ability to produce and distribute content in a way that wasn’t possible a few years ago. This is married to the fact that budgets are shrinking because the consumer now wants their product for a fraction of what they previously paid. A speaker at last years Power to the Pixel event in London referred to it as “The Age of the Free“.
Ever since the end of the closed shop, the requirement or necessity to be a union member has lessened. I know plenty of professional actors who are regularly employed on fully paid projects who are not Equity members. They don’t see the point in joining.
By putting in place the benchmark, by providing the official seal of quality, by supporting the flourishing independent fringe and filmmaking community, both Equity and BECTU would make themselves more relevant in the second decade of the 21st Century.
In Conclusion
Like Richard said in one of his comments on the previous discussion, I don’t want to see the industry legislated into the ground. All of us involved in this long running debate are creative people. We don’t want to be spending our time filling in endless forms
Equally I don’t want to see people being exploited by unscrupulous individuals who are in the industry just to make a quick buck.
A BECTU sponsored meeting is planned for March 18th in London to discuss the issues faced by low budget filmmakers and fringe theatre producers. I urge all those concerned to attend. This is genuinely an opportunity for those involved in the community to help shape its future.
On the face of it, the two camps are diametrically opposed but I don’t believe they are. Whilst I question some of the methods used by certain individuals, I do believe that there’s an awful lot of common ground here. By working together and putting in place a set of guidelines or an official agreement we can not only encourage a more professional approach to low budget productions but also ensure a safer, fairer deal for everyone involved.
{ 54 comments }
As an aside, my original thoughts were that any such proposal could be called the British Independent Film & Theatre Agreement or BIFTA for short. However I’m having second thoughts…
Urban Dictionary definition of bifta
An interesting submission Mike…
I am the last person to claim, that I have all the answers. Clearly no one can say they have. What I hope to do, is bring clarity, where currently there is none. I believe the Low Pay Commission has some of the answers. This is the 3rd year that I have taken part in their yearly consultation. I have learnt a lot and I believe, so has the LPC.
In March the LPC will publish their annual report, let us hope it has something positive to say on this issue. Knowledge is the holy grail…
Keeping this short, as I commented on this before, and had more thoughts since then. I think we all have to realise that as filmmakers, we are not all out to exploit, we are just out to get films made to kick start careers. Sure, there are lots of sharks out there in every biz. If we are talking about them, I agree with the points of previous post. But we have to be rational and fair about how to serve both parties.
Anyway, I personally wont be making no budget films, because I want the best people I can get. Can I get the budgets I need at this stage? Nope! I have to work my way up. My solutioin is very simple though.
If you are starting out, and so you are making a calling card to the industry, then time has proved that you can make a cheap flick with a small cast, and even shoot in 10 days. You pay your small cast, crew, and everybody is happy.
Dont try to make big films at the start with 40 of a cast, and big crew. Keep it small, write great characters, find a unique hook in the one area or more, and make a movie on a micro budget. If you cant raise the money for a micro budget, even if it takes a year or two, then you will never make a career in this biz anyway. Making the movie is not even the real problem these days, is marketing the movie.
Once you have made your calling card, that should be used to raise more money for another film and so on, or show industry, so filmmakers really shouldn’t be making a slate of no budget fillms anyway. Theres no point to that. I know theres a lot of points on here I have not addressed but just tried to simply it, because previous post about this just went on so long.
Thats all I have to say about it.
David
PS. Thoughts Mikes points for BOTH sides were all very valid, fair.
David
@ Clive - Thanks for stopping by, Clive. Only thought it fair since I name checked you in the post
What’s your take on the suggestion?
@ David - You’re right. A slate of no budget films isn’t worth shit to anyone. To elaborate on what I said on Twitter, a number of people I’ve spoken to recently are scared to make a film in the current climate - it’s the stigma of being “named and shamed” for putting together a genuinely collaborative piece. My thoughts behind the post are to try to publicise the current notion that we should all work together on putting in place a guideline for future productions.
A lot of the industry really are not prepared for the changes. I think filmmakers, actors, crew do need to get all together in meetings. There needs to be education, transparency with each other, as I dont think a lot of new filmmakers, actors realise the REAL changes that lie ahead. So they are going to have to communicate with each other, come to fair deals to make it work.
When we start putting filmmakers, actors, crews in corners and start to demonize each other, its all over. I would love to attend that meeting if I can, even though I am not out to make no budget films. I should be shooting in London in the spring, so would love to come to a meeting if I can make it. The web is great for a lot, but theres nothing better than people getting together and thrashing stuff out. Its also the type of set up that should have video coverage for the web for those that cant make it.
cheers
david
Mike,
I’ve been following your previous discussion with interest and agree with your analysis. In the meantime I think there are ways that those who are genuinely on low budgets can work around NMW legislation in the same way that Charity Shops and other charitable concerns do. However the problem is that even if agreements are with the Unions are reached these same loopholes could still be used by exploitative production companies particularly taking in those who are unaware or new to the industry.
For instance it is important is that no contract for employment is established (verbally or written) and no financial recompense is given for voluntary work.
What it does not disallow is a contract for hire of goods to be supplied at a specific time in the morning and collected at a specific time - for instance costume (i.e; The Actor’s own clothes - even if not actually used, or the crew’s equipment) and financial recompense for that hire.
What need to be clear to avoid incurring NMW is that they are then there on a voluntary basis and are not required to remain there but that it would be appreciated if they can remain to help make the movie.
A BECTU sponsored meeting is planned for March 18th in London to discuss the issues faced by low budget filmmakers and fringe theatre producers.
I thought it was only for film. You sure
@ Stuart - Valid points made. I guess the key thing is not trying to work around existing laws but to work with them to ensure future low budget collaborations can still happen without breaking the law. Existing public domain documents regarding collaborative filmmaking don’t quite cut the mustard so it’s important to find something that does.
@ Jules - Welcome back. Why wouldn’t it be? I thought BECTU and Equity supported both film and theatre?
Great post Mikey, and I (mostly) agree. However as a member of the blue corner (not my first choice of political colour) I’d say that we are much less extreme than that. The Sweat Team honestly isn’t interested in genuinely collaborative projects, but it is interested in identifying the rogues and charlatans who buzz around the industry like disease bearing flies. Let’s not forget that Shooting People were challenged two years ago about the ad they were carrying for lo/no pay on a feature which turned into the disaster that was London Dreams. There really does have to be a way to identify the genuine collaborators from the scavengers, and that’s what the agreement we’re aiming for should do.
The other thing I’d disagree with is the assertion that BECTU won’t support the agreement. In fact, this is a BECTU initiative, and it’s a BECTU official who is researching the options open to us through the co-operative movement. The union is taking an intensely pragmatic approach to this: the law can’t stop exploitative employers but we as an industry can by figuring out ways of identifying them and differentiating ourselves from them. The simplest way is by drawing up a model agreement which sets out clearly how to make a microbudget film and yet stay on the right side of the legal and ethical line.
This meeting is actually the spring event of the Writers Producers and Directors Branch of the London Production Division, and that means that its main focus will be firmly film and television. However I can see no reason whatsoever why any agreement which applies in one field of the entertainment industries shouldn’t apply in another. I do think that keeping the focus on one area in the initial stages will be beneficial though.
@ Ben - Re corner colours. Might be worth re-reading. Think I got it right first time around
Regarding extremism, there have been attacks on some folks I know in the past that were wide of the mark. However, moving forward, I’m hoping that we can put those the one side and move on.
The agreement I’ve talked about above comes from something I suggested a while back on CCP and raised again on my previous post. It’s not specifically the BECTU one under discussion on 18 March. This is why I raise union agreement. The old ACTT agreement smacks of the old days when free milk was delivered to schools. I don’t know whether my Utopian view would mirror that of the unions. I hope I’m proved wrong and that the work Martin Spence is putting in reflects the shift in terms of both the industry and revenue streams.
On the final point, fundamentally anything concrete that comes from the meeting could be cross discipline although there will be tweaks needed to be made.
Ultimately it’s about creating clear guidelines that can be adopted by the various parties and taught at the grass roots - ie film schools and NCDT training
Ooops. Yup, I stand corrected: corner colours work (at least they do for me!)
Ultimately it’s about creating clear guidelines that can be adopted by the various parties and taught at the grass roots - ie film schools and NCDT training
Exactly. It sounds to me as many of us have been travelling towards the same end point then, and the union is as keen anyone else to establish clear guidelines. Quite apart from anything it will save them a far amount of work.
The old workshop agreement is hopelessly out of date: I only produced it because it showed that even during the darkest days of the old closed shop, the ACTT recognised that collaborative and co-operative ventures were a special case.
There are other moves afoot which I’ll fill you in on when it isn’t 0100!
I also think you’ve failed to understand the fundamentals of what a union exists for, they don’t exist simply to recruit more members. I cant speak for Equity, but I know its rules state that it exists to ‘obtain the best possible terms and conditions for members’. I think the terms you are considering would need to demonstrate that they are the ‘best possible’, in terms of potential sales and potential commercial success I can’t see how this is this arrangement will work given the current lack of professionalism that exists in low budget film making, all that will happen is that cast and crew will never find out about the subsequent profits made and will end up having to use the unions to sue to get their rightful monies. Unions will be inundated with lots of very low value claims to pursue, which may have an significant impact on union operations. Not to mention that no one has to join a union to reap the benefits of the agreements it has negotiated.
Loads of indie film makers living in a world where IF they make a profit they have to distribute it, wont work. They are mavericks, they hate being regulated by the Gvnt or anyone else as the SP clearly demonstrates. They’ll keep the monies themselves because they simply don’t have the admin processes (or offices) to distribute profits, or if they are intent on exploitation they’ll do a ‘pre-pack’ scam http://dofonline.co.uk/blogs/the-edge/business/pre-packs-administration-4522588/
Indie film makers currently do not want to live up to their legal responsibilities, neither do film schools, please convince me why a ‘new’ agreement will work, the law is already clear that the NMW is due and why an new form of agreement will be adopted when the law of the land is at present flouted - most pointedly by films schools and unis.
On a related point, has anyone read Andrew Keen’s “Cult of the Amateur’? The internet has made it possible for everyone to call themselves actor, writer, filmmaker, journalist…
We’re all doomed!
@ Stuart,
There are both volunteers and voluntary workers as defined by the act, you need to be clear to which you are referring as the regulations imposed on them are not the same.
Under Section 44 of the National Minimum Wage Act 1988, You cannot supply an benefit in kind, thus the provision of a DVD is ruled out in your scenario.
@ Jules - Regarding your comments about the unions and my understanding of them, I think I covered that in the section “Why BECTU and Equity Would Not Support The Agreement“.
Embracing this style of agreement would lead to a more professional approach by low budget filmmakers which is why I finished the article with the sentence “By working together and putting in place a set of guidelines or an official agreement we can not only encourage a more professional approach to low budget productions but also ensure a safer, fairer deal for everyone involved.”
I’m not saying that this would solve all of the problems but it would put us in a better position than we’re currently in. Get an agreement in place, get the film schools, unis, drama schools and such like to take it on and educate their students. Get the job sites to embrace it. Why is this a bad thing?
What do you suggest?
Good question, Mikey. Sometimes people campaigning for observance of the NMW could be accused of wanting to hold on the old way of doing things without either acknowledging that those ways won’t come back or appearing to be prepared to adapt to new circumstances. Trying to use NMW legislation to stifle any collaborative enterprise is both counterproductive and bound to fail.
To my way of thinking, an agreement would do two things: it would act as a checklist for filmmakers (and others) who wished to work together to do it legally and ethically with the proper insurances and other safeguards in place, and it would be a simple test for sites like Shooting People who would have to make no value judgement about a submitted ad. All they’d have to do is ask the question “is this project set up under the X agreement” and they’d know. The parasites who’ve been using the confusion which presently exists to recruit slave labour would be exposed because they couldn’t answer yes, and even if they lied they’d be found out pretty quickly. New entrants who have no clue about the complexities of employment law and H&S would need to know one thing: don’t undertake any unpaid work until you have seen and signed an appropriate contract.
It’s not a miracle cure, and of course unscrupulous people will try to get round it, but it would be a hell of a step forward in my humble opinion.
It is a good question Mikey, however I’m not here publishing solutions online and asking for comments. I’m simply commenting.
As regards to solutions neither can we overlook legislation already in place, its in place and its law - so collaborative agreement or not, the current law must be adhered to. BECTU is only to keen to rely on NMW to pursue legal cases currently. If it wants to change the law then so be it.
One solution I have is to lobby UKFC to ensure that they conduct some analysis of the grants they distribute and the advice they and the bodies they sponsor (Skillset and Shooting People etc) give out. £300 for a short , is not a viable grant to induce anyone to pay anybody.
@ Jules:
BECTU is only to keen to rely on NMW to pursue legal cases currently.
I’m not sure what you mean here. BECTU is actively involved in driving the debate forward with a view to establishing guidelines under the co-operative models which allow people to collaborate without breaking the law. The ability (established by the London Dreams case) to pursue exploitative employers through the legal system is just part of their arsenal, and very much the last resort.
@Jules
In my scenario any benefit provided would be contractually included as part of a hire of goods whilst this would initially be financial reimbursement it would not discount the gift of a DVD, T-Shirt or any other agreed service. This would apply to Volunteers and not Voluntary Workers. In fact I’m very specific in my scenario about the recruitment method required to ensure they are volunteers and not voluntary workers.
I would also be interested in what HMRC would think of an investment on the books from an Actor or Crew member specifically equal to their NMW income minus their gratuity payment. Probably earn you an audit but if everything added up and everyone was agreeable to the arrangement….
@ Stuart - if you hire clothes and equipment from the crew then they will also have to hold public liability insurance for those items - there are probably those kind of ‘due care and attention’ and liability clauses in hire contracts.
@Jules no they don’t; no-one *has* to have Public Liability insurance but it would be remiss of them not to have it when there is a quantifiable risk. In this scenario the only one creating risk is the film-maker in how he uses those items so there is no need for the individual cast/crew members to have separate public liability insurance for providing them. Also contracts don’t have to be off the shelf with “‘due care and attention’ and liability clauses.” The contract can and should be much less formal - I provide you this for this reward. If I could afford to pay them as an employee, they would still be using those items anyway and the liability would still be on me not them.
@ Stuart -
“If an individual described as a volunteer was in fact a worker (see below), they would qualify for the NMW unless a specific exemption applied.”
http://www.businesslink.gov.uk/bdotg/action/detail?r.s=sc&r.l1=1073858787&r.lc=en&r.l3=1081658503&r.l2=1081657912&r.i=1081673684&type=RESOURCES&itemId=1081674285&r.t=RESOURCES
“The job title or label an individual is given is not conclusive in determining whether someone is a volunteer or a worker. An individual who considered themselves a volunteer may in fact be a worker if the arrangements under which they provide their services amount to a contract of employment or a contract to personally perform work or services.”
HMRC may well decide that you are treading a very fine line.
@Jules yet hundreds of Charities tread the very same fine line every day and haven’t been hauled up on NMW. That’s why any crew member *has* to be free to walk away at any point because if they aren’t they become workers, that’s why we have to say “we would like you to… ..but you are not held to doing…”
Here is a guide for Charities to stop their volunteers beng classed as workers:
http://www.volunteering.org.uk/NR/rdonlyres/2B0EB674-8BD9-48D3-8553-1AA24288EDF1/0/NationalMinimumWageActandVolunteersVE08.pdf
The same systems that apply to them also apply to us.
Do we really wan’t to go down the route of at the end of each night, accidentally dropping a £50 note in front of the crew/cast member because I’m not legally allowed to give it to them (which I then have to account for as losses) or do we use another accountable valid expense? Then again working the NMW system the actor walks away with £41.29 for a 10 hour shift once Basic rate of Tax and National Insurance have been taken off. So it’s in their interests to work around the system if they can get an extra £8.70 take home cash (and it’s probably small enough it won’t be taxed if declared to HMRC at the end of the year - by contrast NMW would require you to fight for a rebate at the end of the year.).
Neither can you provide any volunteer with a DVD.
Which is why it has to be part of a transaction that is completely separate from their volunteering on the film.
However the issue of a DVD can be resolved in many ways - it can be put in as part of “on the Job Training” a DVD can be feedback of the Job you have done to learn from it.
It can be a gift of “nominal value” e.g; from the Governments business link website:
http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=108167428
“Volunteers and honoraria, gifts and nominal recognition items
A genuine honorarium in the form of an unexpected gift, with no obligation and of a small value is unlikely to change a volunteer’s status to that of a worker, giving the right to the NMW. However, care should be taken to ensure that this does not create a contractual relationship whereby a person is undertaking work in return for gifts or rewards.
Items of nominal value such as pins, t-shirts or baseball caps given in recognition of volunteering, for instance to mark the successful end of a task or project, would be unlikely to result in the person being regarded as a worker and entitled to the NMW.”
Again wording is everything “if you are able to do this we may be able to get you a DVD when it’s over” is not “Come and work for us; so you can have a DVD to promote yourself”
@ Stuart
Just because you say it isn’t a gift doesn’t mean that a judge will read it that way.
Just because you say someone isn’t a worker doesn’t mean that a judge will read it that way.
Its clear what the workers position will be in the claim and its also clear what your position will be, fancy footwork will not alter the facts of the matter and a judge is wise to that.
@Jules then explain why every charity shop in this country has not had been taken to court for precisely this offence (they get benefits in paying less for the goods and first pick). Explain why every non-charity organisation that has help from volunteers has not been taken to court for this offence (they give plenty of benefits. It’s not fancy footwork it’s the necessary process that *every* SME using volunteers has had to work through since NMW came in.
Of course Amateur Theatre has had this exact same process as well, but when they do it it’s ignored because they’re Amateur- when someone wants to make a film with next to no money (and which probably won’t make any profit unless they are extremely, extremely lucky) suddenly it all kicks off and people come out of the woodwork saying “Oh, you can’t do that because of NMW legislation” yes we can do it because there are ways to do it. The government itself says so.
Couldnt agree more. Having been targeted by SWEAT and battled with them over this for over a year, I’d be the first to sign up to an industry wide agreement to ensure people remain free to choose but companies do not remain free to exploit.
The issue will always been the unions who exist only in themselves to profit from others. Let’s be honest if more people took this kind of work less people pay union dues, union dies.
Union’s have been a pain for indie filmmakers for years but your right they should move on. The industry now is totally different than what it was years ago and will continue to change. Unions need to change and some does legislation.
The industry NEEDS an agreement like this so it can stop fighting amoungst itself and actualy prosper.
Anyway just my two cents….
Phil Hobden
For the record the only issue with issuing DVD copies to cast & crew (and I speak from experience) is that beacuse they are so easy to copy and the guys who get them often run of dups for freinds, famaily etc or even lend them out it can ruin deals.
I know of a film that had a UK deal pulled because the film was already avaialble online BEFORE the UK release. It was tracked back to a crew copy that was lent, copied and uploaded. Cost the company almost £20k in real time profit which in turn meant defrements couldnt be paid. It’s rumoured this even hurt the US deal which went from advance to % of profits to in the end nothing.
I’d love to give copies to cast & crew but sometimes you just cant. If there is even a risk the film could get out there it could essential destroy the film from a commercial POV.
Now giving away disks with SCENES they are in could be the compromise but commercially you’d be nuts to give away the film.
Stuart, charities are exempt from the NMW legislation. See this government site” for clarification.
Hello Phil. Well well.
“The issue will always been the unions who exist only in themselves to profit from others.”
This is such nonsense. The unions exist because people like me belong to them, because I pay my dues. My dues pay for the officers and the union structure. In return for that I get a source of advice, protection from rogue employers and a lot of other benefits. The industry gets a body which exists to protect people who earn their living in it and speak up for those who would otherwise have no voice.
“Let’s be honest if more people took this kind of work less people pay union dues, union dies.”"
What kind of work are you talking about? Are you talking about unpaid work - work which should be paid? My reading of it is a little different: “if more people work for nothing when they should be paid industry dies”. Phil, do you even work (ie earn your living) in this industry?
As it happens, the March 18th meeting is being organised by the union. Make of that what you will.
As to the reason for not giving DVDs, well sorry, but you’ve just demonstrated exactly what the problem is. Someone “misusing” a DVD destroys the commercial viability of the project. Well then, pay them and then they can buy their own DVD, can’t they? You say you’ve been doing this for ten years: surely, in ten years, you must have put away enough to pay entry level workers on new projects? I must admit I’m a bit flabbergasted by that: if you’re not being paid and you don’t even get a DVD for your showreel, what on earth makes people do this stuff?
I have never found unions to be useful. That’s just my POV on this.
“As to the reason for not giving DVDs, well sorry, but you’ve just demonstrated exactly what the problem is. Someone “misusing” a DVD destroys the commercial viability of the project. Well then, pay them and then they can buy their own DVD, can’t they? You say you’ve been doing this for ten years: surely, in ten years, you must have put away enough to pay entry level workers on new projects? I must admit I’m a bit flabbergasted by that: if you’re not being paid and you don’t even get a DVD for your showreel, what on earth makes people do this stuff?”
And counter I can tell you have never made a feature film from the POV of a producer. It’s madness to expect me to damage the release of the film to ensure people get copies. How can I share profits from the film (which is the way I set up my deals on these ultra low budget films) then give away copies so people can damage the commercial viability of the film? I do that, make teh film, offer profit share and then you pick fault that I make films that are never released.
Once the film has hit the market - UK & USA mostly, I’m happy to give away copies as chances are by then it will be online anyway and it wouldnt damage the major releases. This will be a while after the film is made but they will get copies. Just not the day the film is released.
I came here to support the idea Mike had. It’s what I truley believe could be towards the way forward to sorting out this mess. What it seems is I find an extenion of the SWEAT Team Watercooler. Frying pan. Fire.
The idea Mike had, which it so happens is the idea the union also had, quite independently. But since you cannot conceive of a world where unions might be useful, I understand this might be difficult to swallow.
I’m sorry you’ve never found unions to be helpful. I can take a stab at why that might be, but have you ever been a member of, say, BECTU? Or any union, for that matter?
I still don’t get why after ten years of trading, you are unable to budget your films so that you pay the NMW where it’s due. Pay out of the profits of your last job and invest in your labour - that’s how every other business runs. Why should yours be different?
Certainly not an extension, Phil, but a number of the regular contributors do comment on here just so’s you know. Don’t let that put you off putting forward your views
For me it’s not a matter of unions or the blinkered view of some, but thankfully not all, campaigners but about putting something in place to ensure that future productions are made ethically and to go some way to stop exploitation. It’s not a magic pill. It won’t solve all the problems but it will make it easier to spot the sharks and shysters.
In the same way that the unions need to adapt to the changing landscape, so too do the micro/low budget filmmakers.
I do think that a number of filmmakers, certainly in the low budget sector, have an inherent distrust of the unions, Ben, and I kind of hear what Phil is saying in terms of their usefulness. I cited an example on the previous post as to why this may be the case. They can come across as a little bit “it’s my way or the highway”.
On the whole the work done by both BECTU and Equity has been fantastic in protecting its members and long may it continue. I guess the problem lies where stringent enforcement is seen or perceived to stifle creativity.
My hope is that the March 18th meeting is a starting point to move forward and put some of the “us and them” behind us.
Mike couldnt agree more. I just frustarted by people liek Ben and certain SWEAT team members with the hardline “if our expereinces are different you are evil/wrong” attitudes. It’s so black and white it annoys me as life isnt and neither is business.
My point in unions is I that across the many jobs i have done (and I speak for others I know also but not everyone) they have always been a hinderance than a help. Personal experience. Ben seems to be a paid up boot wearing member but again that absoulte hardline without looking at the gray makes entering discussions and debates on forums like this counter productive as you spend more time arguing symatics than debating the point.
As I said I’m fully down with getting something that works but as an Indie prodcuer I need to be able to consider all sides - the crew/nmw debate, the film and the investors (in terms of both money AND time). With all that on the table it can be a challange keeping everyone happy!
@Mikey: “a number of filmmakers, certainly in the low budget sector, have an inherent distrust of the unions” I know they do, but most of the time that mistrust is based on simple prejudice rather than real experience. In fact, in the more mature sectors of our industry, the unions are not the “enemy” but are regarded as partners whose input is often valuable.
The example you give, of Equity withholding information from non-members, is rooted in the idea that benefit can only be conferred on its members. That is a very tricky line to tread, and I think all the entertainment unions are moving to a more flexible attitude. The idea is that non-members can see the benefits of joining but members reap the rewards due to them as the people whose dues finance the union, and it’s one BECTU has increasingly embraced over the last ten years. It is slightly counterintuitive for the more “traditional” member though!
As to “stringent enforcement”, I have yet to hear of a sensible current example attributable to BECTU - maybe there are Equity ones? The London Dreams case was hardly an example of stringent enforcement: it was one out of dozens of potential cases prosecuted by someone who had sadly made the decision to leave the industry. We all know that few people have the guts for that, and you can see why when you saw the rabid reaction of some of the free marketeers to the decision: “she’ll never work on any of my productions” “I’ll make sure she never works again” type stuff. I think that’s shocking given the cynical exploitation that the whole crew was subject to: why do so-called producers want to line up behind that bunch of thieves?
I don’t think I’m being hardline or indeed “boot wearing” (the second time people have flung Nazi insults my way). I am indeed looking at it from a different point of view, but honestly if there’s anyone here who only wants to hear his own POV reflected, you are that person, Phil.
Who here has been working to get that debate under way, eh Phil? Who’s been listening and contributing constructively?
From my experiences over the last couple of months, Ben is not as black and white as you may think. She’s actually quite warm and fluffy once you get to know her
As I said in the post, the two groups aren’t so far apart. There will always be some in the red corner who want to take a hard line view and not waiver from it in the same way that there will always be some in the blue corner who want to fly in the face of any kind of rules. That’s how it is. Personally I am now tuning out those who don’t want to try to find a solution or who harp on like a broken record. To me they just sound like Charlie Brown’s school teacher.
The landscape is changing and it’s important that everyone on both sides recognises this. Funding is dropping, revenues are falling and traditional distribution outlets are disappearing. Independent producers need to adapt and find more creative ways to make their films and generate revenue. The unions need to recognise that one size does not fit all.
One thing that isn’t going to change is that NMW legislation is in place, it isn’t going anywhere and that any cross union agreement for collaborative working isn’t going to change the law but that’s not what this is about.
Some commenters on here and on the Watercooler board seem to think we’re looking to change the law or find ways around paying NMW. That’s not the case. It’s about establishing a set of guidelines - best practice, if you like - to ensure collaborative working can continue within the law.
Sorry Ben but that’s the reason why I’m here and I think I’ve demonstarted that. As I said I’ve debated this, with SWEAT, Shooters and here and am keen to push forward something to ensure producers like me (and there are many) and have adjusted my thought’s on this exactly AFTER hearing other points of view and opinions.
I have known you but a day and all you have offered so far is the “boot wearing” (not a Nazi jibe at all for the record) opinons towards how great unions are. Very helpful…
@ Ben - I don’t think Phil was insulting you, to be honest. Certainly not how I read it, anyway.
You’re probably right about prejudice which is why I said “I guess the problem lies where stringent enforcement is seen or perceived to stifle creativity“. BECTU probably didn’t help the situation by waving the “expenses only jobs are illegal” flag after the case. You can see why those at the lower end of the food chain have a less than positive view of the unions. I don’t think anyone is lining up behind the London Dreams crowd at all. It’s the perception that the unions are looking to stop low budget filmmaking.
The work of the unions is invaluable to this industry however since the end of the closed shop, their relevance has declined somewhat. Actually, let me rephrase that, their perceived relevance has declined somewhat. It’s my belief that BECTU would gain many more paid up members by being seen to support the low budget sector and putting in place the framework for future productions. That’s why the March 18th meeting has so much potential for everyone involved.
Hell, I might even sign up!
@ Phil - Are you free March 18th for the meeting? It would be good to have you along although you might want to go using an alter ego. You can’t have Alan Smithee, by the way - I’ve already nabbed that one
I’ve been considering coming along… as me. I’m pretty brave like that. The issue comes is if it’s just going to be mud slinging and tribes at war I can see it being all that productive.
“Some commenters on here and on the Watercooler board seem to think we’re looking to change the law or find ways around paying NMW. That’s not the case. It’s about establishing a set of guidelines - best practice, if you like - to ensure collaborative working can continue within the law.”
Couldnt agree more. And there ARE exceptions. Goverment back to work schemes where the person gets nothing but experience (not even extra on benifits) for working 20 + hours a week for up to a 6 week period to extend job skills.
So yes there is an answer…
Hey Ben unions have done good things. They also do stupid things. They have helped. And hindered. They have good and bad points. ‘Tiss all.
“The issue comes is if it’s just going to be mud slinging and tribes at war I can see it being all that productive.”
Absolutely and I’ll be on my toes as well if that’s the case but I don’t think it will be. My understanding from previous discussion with Ben on here is that it’s about looking constructively at the future rather than destructively at the past.
@Ben your link doesn’t work but charities are not exempted from NMW what they do have is a half way house; the ability to designate someone a “voluntary worker” who has an employment contract but no still no pay.
The rules on gifting of money or goods to “Voluntary Workers” still applies in the same way it does to non-charities using “Volunteers “and the same”Fancy Footwork” as Jules put it still has to be used to work around those rules.
@ Ben,
I agree with Stuart, charities are not exempt from the NMW - if they were there would be no need to pay their CEO’s. What’s important in deciding if you are a volunteer, voluntary worker or worker for a charity is the nature of the contract/ mutual obligation.
Yes, sorry: that was inaccurate. However, there is a particular part of the legislation which charities are exempt from, and that is the part of the legislation which defines the status of a voluntary worker. As that is the area most often disputed in the areas we’ve been discussing here, I used it as shorthand.
The website I tried to link to is this:
http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1081674285
The text of particular interest is the following:
The term ‘voluntary worker’ has a specific meaning for NMW purposes.
A voluntary worker is a type of worker (see above) who is exempt from qualifying for the NMW. Voluntary workers must work for a charity, voluntary organisation, associated fund raising body or statutory body. The benefits in kind and expenses they can receive are limited, and certain conditions must be met to ensure that the voluntary worker does not qualify for the NMW.
It is a significant exemption, and allows those who would normally be classed as workers due the NMW to act as unpaid volunteers. That’s why charities round the land are not being taken to court. The same exemptions simply do not apply in our sector.
Oh, and by the way, I think we now have a venue for the meeting on the 18th March. It looks likely to be at the University of London Union, starting at 1900. (Not glamorous I know - do you know BAFTA charges £2500 for the David Lean room!!!) but it has plenty of room and there is a bar we can all retire to.
I’ll post further details once I have them, but I must say it’s a relief to have something nailed down.
The net result of this minimum wage legislation is that I now outsource many simple employment requirements abroad, and can no longer offer apprenticeship opportunities to students and others who want work placement. I initially developed my own skills with which I have been earning money for the last 20 years with by working for FREE, until I had enough skill for an employer or client to be certain I would make them money…. - and sadly the output of most educational establishments in the UK is NOT a person with the skills ready to be fully employable.
Making a movie offers a pretty uncertain return on any investment, so the obvious solution would be to do a deal with all cast and crew stating that IF the movie makes any money then they get paid appropriately, plus a percentage - so everyone involved shares in the risk and reward - however I am not sure you could do that under the current legislation.
Also - people can offer no money - but no-one is FORCED to take up the offer….
An interesting piece on the BECTU website this morning:
http://www.bectu.org.uk/news/616
“We recognise [low-budget production] as a training ground for creativity and talent.
Equally, however, we have never seen this as a viable and sustainable business model for our production sector as a whole. There are serious concerns about exploitation, especially of young people and new entrants.
Precisely because of a ‘work for little or nothing’ ethos, this area is less vulnerable to general economic trends - but all for the wrong reasons.”
“BECTU…warned against any attempt to import the micro-budget approach to film-making there into mainstream production.”
So what hope of a positive, constructive meeting 18th March if the union is saying that it want nothing to do with micro/low budget productions?
@Steve I agree with your points although approached them from the opposite angle - for 10 years I’ve had Self Employed status because it was easier for Companies to source me and not have to worry about NMW, or Taxation. I think there is a further problem in that companies are looking for *specific* skillsets where educational establishments give a good general overview of that employment skills but there is no way they can (or should) focus too much on one particular skill. There needs to be more bridgework in-between Industry and Education, the equivalent of an Apprenticeship - though this is something that is being implemented through the devaluation of the Bachelors degree and the promotion of the time-served Masters degree.
@Mikey I agree that this is a very grave situation. The way the industry is looking the indie market is failing to find the funding it was once able to gain and only Major Studio’s and Micro Budgets are continuing to produce. Out of these the Microbudget has the biggest potential to ensure work in the future for BECTU members as the model becomes better established. Working with Microbudget film-makers to see what areas of the model work and which need work in order to limit exploitation.
Sorry last line should read:
BECTU need to be working with Microbudget film-makers to see what areas of the model work and which need work in order to limit exploitation rather than a Blanket “Microbudget isn’t in our interests.”
@Stuart: that’s exactly what the meeting on 18th March hopes to do - kick off a serious conversation about distinguishing between the London Dreams type tossers and the genuine collaborative projects. I don’t read the BECTU submission to UKFC as “Microbudget isn’t in our interests” at all, but as a statement to the country’s film body that the big hole that exists in the mid-budget sector is a serious challenge to the future sustainability of the whole industry.
BECTU has never had a problem with genuine collaborations. It does have a problem with exploitative employers (of course it does), and indeed I’d say the whole industry does, or should do. What we need is a clear way to distinguish between them, and there will be some uncomfortable horse-trading over the middle ground.
@Ben,the article clearly states they want the UKFC to concentrate on £3m-£10m productions, they make clear negative comments about microbudget films and directly associate it with exploitation, and that they clearly comment that do not want the success of microbudget video game development to encourage microbudget film making to become mainstream.
What it doesn’t address is how one gets handed the Directors seat in £3m+ budget film when there’s no money (even private is drying up) for creating <£3m films. There are a whole new breed of filmmakers - David Baker being one - who are developing viable and sustainable microbudget models and BECTU and EQUITY need to be looking at these and their role within them. If a filmmaker has a guaranteed revenue stream through Internet distribution - it is different from the microbudgets of yesteryear where the filmmaker had to find a buyer afterwards - then there’s no reason for the rest of the crew not to take an income stream from that as well. In fact if an crew member felt they could make their money back doing so give them a pile of the DVD’s (or a digital copy for use with a Burn on demand service) to sell at their own mark-up - they might even make more money that way.
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@all, in my earlier posts I suggested a separate contract with actors to “Hire” their clothes , etc. in order to give them an honorarium without breaking NMW regulations. What completely slipped my mind is that we already have a separate contract covered by the Actors’ release form for which a nominal fee changes hands - there’s no reason that the contractual obligation shouldn’t be for a larger amount and possession of a DVD. This neatly sidesteps many of Jules fancy footwork arguments as it’s a fee that has to be paid in order to sell the film but it is not a fee for employment. Crew is a different issue but not dissimilar as the work they are producing - make-up, costume, production design, etc. Can similarly have their copyright and moral rights waved for a fee.
There is not a formula, rather a set of guidelines that should be discussed between an actor and a production company in low budget film making. I can’t understand how anyone can reach a conclusion in such a dynamically vast argument.
Common sense and fairness is all this really needs. Protect the young and old with free legal advice maybe and ensure transparency if films were to make recoupment.
I can remember meeting a fairly established producer/director who made these so called <£3M films. He asked me what my estimates were on revenues and profits for his film he just finished. I told him about zero and told him why (in great detail) and explained to him what type of deal he should seek (In this particular case I told him to fast sale it). He didn’t believe me and went off on this assumption he would make millions in revenue. The film made £6,000 gross box office- zero in his prod. bank account and bang on my estimate. The film made next to nothing on DVD, again in unit terms (which I even broke down in weeks) bang on my estimates. He didn’t even understand how a DVD unit is broke down in net and gross and to whom/how revenue is split.
I find this lack of knowledge far too common. Without it how can actors get paid let alone a film maker feeds his/her cat/dog. Money cannot be raised without the fundamental issue of HOW and WHEN will we profit- that’s why, for now at least, micro budget filmmaker rules and rightly so.
I am now closing off comments on this and my various NMW/Indie Film threads.
If you genuinely want to participate in the debate, join here: Indie Film Forum
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