Pushing and Rescheduling

[Nicholas Davidoff]

A question for the industry veterans out there:

 

Let's say you're booked a few weeks ahead for a feature film. Then, a week before filming, the project pushes a week. Then another week goes by and they push again. Perhaps another week or two goes by and they push yet again. Meanwhile, you may have turned down various other day playing jobs or even other features because you were technically "on hold" or "booked" with this production as of those dates. Maybe it was a distant location shoot and you shipped your gear ahead which has been collecting dust in their office. Finally the production comes around and you're happily filming away. Or perhaps the production shuts down after 3 or 4 pushes. You've lost hundred or maybe thousands of dollars as a result of you and your gear being "on hold" and "off the market".

 

Personally, I understand that productions sometimes push. And I might be lenient if it happens once. But two or three times and I'm taking financial losses as a result of somebody's incompetence or lack of planning, now I expect some sort of compensation. I believe it perfectly fair to submit a bill for 1 week of equipment rental for every week that my equipment is reserved and not being used. I understand that rental houses wouldn't do this, but my argument is that this is specialized gear you can't get at a rental house. And unlike a rental house I don't have multiple packages to rent, I only have one. And if you put it on hold, you're liable for the reservation. I may even go so far as to request idle pay if I continue to be strung along and re-booked.

 

So what do you do? Or if you've had this experience, how did you deal with it? I'd love to hear from some people who have actually had to deal with this situation and come to some resolution with production. Are these matters outlined in your deal memo?

For example: "First push in scheduling is complimentary, but upon the second push in scheduling, operator shall be paid for 1 week equipment rental and/or idle days for each day until filming commences".

 

Furthermore, I've heard of or have been involved with a handful of productions lately that pushed numerous times and some eventually shut down altogether. I don't remember such a trend in previous years in the business. Is this the hip new thing?

[Tomas Riuka]

Great topic for discussion, i'd love to hear opinions too.

 

As for me, I'm on your side, that to some level move could and probably should be acceptable, but probably not by weeks. There should be some kind of agreement about situations like these before filming with the production company, so they knew if that's happening, they're paying a pre-defined amount of money. Though, how much?

[Alfeo Dixon SOC]

because you were technically "on hold" or "booked" with this production as of those dates.

Where you "Booked?" If so, then you should already have a contract for your dates of work... it's that simple.

 

I believe it perfectly fair to submit a bill for 1 week of equipment rental for every week that my equipment is reserved and not being used.

I don't understand your rationale, if you where booked then you should be getting paid and your gear is working. If you were laid off for lack of work (i.e. they pushed) then you have no grounds for invoicing them because your not working with your gear.

 

I may even go so far as to request idle pay if I continue to be strung along and re-booked.

If your sitting around in a hotel at a distant location, sure, you may be able to negotiate idle pay. But again, not if you were laid off... unemployment only.

 

Are these matters outlined in your deal memo?

Its called a "Play or Pay" phrase which means they pay no matter what happens to the dates. You are not officially booked until you have a deal memo (contract) in hand.

 

There should be some kind of agreement about situations like these before filming with the production company, so they knew if that's happening, they're paying a pre-defined amount of money. Though, how much?

You will not find "Play or Pay" in any of their deal memos or start paper work, simply because they don't wont it there! Your agent will have it in his agreement and will not "Book" you until it is signed, meaning also that he/she is not turning anything else down until one is signed. It's usually 100% of rate and kit.

[Tomas Riuka]

The main question i suppose is whether company should pay when they book you for some specific date and then you just don't get to work because the production was moved not because of your fault?

[Emre Tufekci]

The main question i suppose is whether company should pay when they book you for some specific date and then you just don't get to work because the production was moved not because of your fault?

 

It again depends on your contract, if you dont have one...you dont have a leg to stand on.

 

My contract specify that the client has X number of days before they can cancel or re-schedule a production. At that point I hold the "right of first refusal" meaning I can keep them or move on to another production with no penalties incurred. If they do not cancel within the agreed time period they incure partial or full payment at my discretion (good client no problem, problem client..their problem.)

 

I have had to deal with a few problem people who challenged that when the time came but we never went to court. Their lawyers told them that all they would get is having to pay my fees and court expenses added on top, as they were in a binding contract.

[Sanjay Sami]

Hi Nick,

If you are one week from beginning principal photography on a movie, you should have a contract in hand. If they didn't get you contracted, in effect you have no obligation to them and they have none to you. However, most studio contracts are heavily weighted in favour of the producer and they don't always accept clauses that you may want to add. In the real world, whether you want to take action on the basis of a push in start dates is up to you (if you have such a clause in your contract).

I think everyone experiences this at some point or the other. In my experience, I have always been good natured about it, you may lose a weeks pay or a few months (notionally) but you gain goodwill, which is more useful from a career standpoint.

 

But not for paying your mortgage.

 

It can be immensely hard to stay good natured about it . I once turned down a confirmed 4 month studio feature film based on the fact that I was offered another film with a Director and DP duo that had won 2 Academy awards, and I had done a movie with before.

The film fell through because of a script rewrite and the writers strike. The other movie filmed on happily for 4 months ....

 

So it goes.

[Mike McGowan SOC]

This is why having an agent is so critical, a contract takes all the guess work out of something like this.

[Nicholas Davidoff]

I've actually been working things out with production on my pushed project and the UPM turned out to be a decent fellow and is compensating me fairly.

 

But for the sake of this thread, I guess it all boils down to a solid deal memo. And a "pay or play" clause within that deal memo. Only this will give you any leg to stand on. If you're booked, then as of what date? And how many days ahead can they cancel or reschedule you before they are financially responsible? This should all be outlined. It all makes sense and of course this is the way things "should" be. But does it always work this way in the real world?

 

Have any of you had an experience similar to this and the producer happily paid you after two or three pushes or a cancelation? Or did the UPM fight you regardless of the deal memo? Has a UPM ever frowned on the pay or play clause and it soured your relationship? What are fair salary demands in the event of a push or cancellation? A full day's rate and equipment rental? What if it's a feature? They're not gonna pay you weeks worth of salary and rental so what's the industry standard here?

 

Lastly, I'm in the process of updating and solidifying my deal memo. I would greatly appreciate if there's an op out there who can send me an official steadicam agency deal memo, or something of equal legal strength. This would really help me uphold the standards we all expect of eachother. Please PM me or email me direct: NicholasDavidoff@hotmail.com

 

Thanks,

 

~ Nick

[Eric Fletcher S.O.C.]

Most producers on larger shows will not sign deal memo's and good luck getting them to either accept or pay out on a pay or play.

[Daniel Stilling DFF]

In my experience, the bigger productions, if/when they push, is well ahead of production start date, not last second, and I would be surprised if anybody ever got a pay or play clause in. Besides that, they have a huge scheduling puzzle to work out. A push is a big nightmare and in reality a Steadicam op. is just a minor detail in their view...

It's up to you then, ahead of time, if you want to stay on the show or take something else.

On smaller independent shows, the push is most likely a result of lack of funding, and they are trying to raise funds, so chances are you won't be able to get any penalty payment, as they simply don't have the cash.

In the end it boils down to being savvy: If you feel that production is serious and have a good reason for pushing, then I normally try to be a team player, and re-arrange things so it can happen. If you feel like the show is not going to happen or keep pushing, move on, take other gigs and cut your losses, but I will in no circumstance send out my gear ahead of time and let it sit in the production office. If that would ever happen like in your example, I would have production ship it back to me.

[Nicholas Davidoff]

In my experience, the bigger productions, if/when they push, is well ahead of production start date, not last second, and I would be surprised if anybody ever got a pay or play clause in. Besides that, they have a huge scheduling puzzle to work out. A push is a big nightmare and in reality a Steadicam op. is just a minor detail in their view...

It's up to you then, ahead of time, if you want to stay on the show or take something else.

On smaller independent shows, the push is most likely a result of lack of funding, and they are trying to raise funds, so chances are you won't be able to get any penalty payment, as they simply don't have the cash.

In the end it boils down to being savvy: If you feel that production is serious and have a good reason for pushing, then I normally try to be a team player, and re-arrange things so it can happen. If you feel like the show is not going to happen or keep pushing, move on, take other gigs and cut your losses, but I will in no circumstance send out my gear ahead of time and let it sit in the production office. If that would ever happen like in your example, I would have production ship it back to me.

 

I've been on 2 union shows this year that both pushed not once but twice around 7-10 days from start date. One show got cancelled, the other worked out. Both times I turned down other jobs for the period I was supposed to be booked. I say there should be a minimum grace period. Let's say a week or more before shooting. If they push or cancel past that point, we're entitled to some sort of compensation.

 

Most producers on larger shows will not sign deal memo's and good luck getting them to either accept or pay out on a pay or play.

 

I know that some or most steadicam agencies use this clause. So is there anybody out there that has ever successfully (or unsuccessfully) enforced a pay or play deal?

[RonBaldwin]

I would think that one of the main advantages to having an agent would be for this purpose, though I have never had one myself. I have also been lucky to have the shows I'm on start when they say they will.

[BJMcDonnell SOC]

Here is a good one, I just flew home because my show got shut down for two weeks due to fire hazard in Moscow. We are suppose to go back in two weeks TBD on the fires. My gear is still there because it is really tough to get equipment shipped if it isnt in a crate full of gear. Im not getting paid now nor am I getting rental on my gear on this hiatus. Production has filed a insurance claim because of the fires. I do have a Agent Russell Todd and there is nothing we can due do to some sort of deal agreement if something like this was to happen. So here I am sitting at home trying to get the smoke out of my lungs that I inhailed for two weeks straight. It is a bummer because Ive only been home for 1 day and I already got a ton of calls. Sure I could try to work and rent someone elses gear from them. Its just a mess. ANyway, Im home for a few days then heading back out. Anybody care to grab some drinks in the next few days?

[RonBaldwin]

Here is a good one, I just flew home because my show got shut down for two weeks due to fire hazard in Moscow. We are suppose to go back in two weeks TBD on the fires. My gear is still there because it is really tough to get equipment shipped if it isnt in a crate full of gear. Im not getting paid now nor am I getting rental on my gear on this hiatus. Production has filed a insurance claim because of the fires. I do have a Agent Russell Todd and there is nothing we can due do to some sort of deal agreement if something like this was to happen. So here I am sitting at home trying to get the smoke out of my lungs that I inhailed for two weeks straight. It is a bummer because Ive only been home for 1 day and I already got a ton of calls. Sure I could try to work and rent someone elses gear from them. Its just a mess. ANyway, Im home for a few days then heading back out. Anybody care to grab some drinks in the next few days?

 

Glad you are home safe bro! You should definitely be getting at least a little somthing something for your hear being on hold. They are filing an insurance claim and making money on the deal. It's a shame that RT can't do anything about it for you. Maybe keep the 10% to compensate you for loss of use.

 

Did the urine come out of your snorkel? Gavno!

 

RB

[BJMcDonnell SOC]

Yea well it is easier said than done. The Urine that is. How about the jizz on your hummer? Gavnuke galava!