Making movies, on location...

Do public procurement regulations apply to matters of intellectual property rights?

OK, I’ll admit it might not be the sexiest question in the world to start an article with (that would surely be ‘Why don’t you do right?’, sung by Jessica Rabbit). Nonetheless, it’s been troubling me for a few weeks now: ever since local film-maker Pierre Ellul raised questions about the funding of the film ‘Storbju’… you know: the one about Sette Giugno, which will star Harvey Keitel and Malcolm McDowell (and a presumably a few other actors, too… strange, how they never seem to get mentioned anywhere…)

More pertinently, it is a movie that is being partly funded by the Arts Council. That is, in fact, the whole point of Pierre’s complaint: “Thank you, especially the Government who gave Jean Pierre Magro a lovely handout of €500,000 (that we know of) whilst the rest of us mortals have to jump through all the hoops and processes. More money than even Malta Film Finance under the CoPro Fund and the Malta Film Fund put together can give. Whilst Malta Film Commission and its commissioner Johann Grech have to constantly battle to get more funds allocated to the Malta Film Fund, the Arts Council enters into “business” with Jean Pierre Magro, handing over a sweet gift of €500,000. Indeed, in George Orwell’s words, “Some animals are more equal than others.”

As someone who has seen quite a lot of unfairness in the distribution of public funds over the years, I can certainly understand Pierre Ellul’s frustration. Don’t know if he’ll remember, but we discussed this very issue when I met him at a social event a few years ago: around the time when he was still making (or had just made) his own feature film, ‘Dear Dom’: a biopic/documentary about… erm… you’ll never guess…

From that, and other conversations with other people in the film industry (including Jean Pierre Magro, whom I interviewed last August), my understanding is that the Malta Film Fund offers a number of grants to prospective film-makers each year, ranging from €200,000 for a feature-length film, to… oh, I don’t know: a lot less for short movies, etc.

It is a structured fund, and therefore there is – or is supposed to be – a competitive process whereby people can enter their script ideas, to be selected by an internal board.

I don’t know if Jean Pierre Magro applied for funding through this particular scheme for ‘Storbju’; evidently, however, he received what looks like a one-off contribution (call it what you will) from the Malta Arts Council.

And I doubt Pierre Ellul would have had much cause for complaint, if Jean Pierre Magro was indeed chosen as winner of a competitive process that had been open to all applicants equally (including himself). Hence the Orwell reference at the end: in this case, one film-maker does seem to have been handpicked over others, for no apparent reason.

Whether that constitutes an irregularity or not, however – and to be honest, I don’t think even Pierre himself is suggesting it does – is not that straightforward. ‘Making movies’ is not quite the same as laying down a pipeline, or building a power station. The process naturally varies from film to film, and from country to country – but in general, it always starts with an idea. In this case, the idea was to make a film about the riots that took place in Malta on 7 June 1919.

Here is where intellectual property rights come into the equation. The original idea of any film will have belonged to someone – quite literally, in the sense that it would be copyrighted. But whether the copyright owner will be the same person at the end of process… that’s something else entirely.

To take a classic Hollywood example of how this most often happens: the screenwriter who wrote the original script and/or treatment will own the copyright at first; but – with very few exceptions – will not have the 10 or 12 million dollars necessary to actually make the film.

So the screenwriter will pitch it to a studio… and the studio will (or won’t, as the case may be) buy the rights off the screenwriter. Generally, the studio will then co-fund the production itself; but very often – almost always, in fact – it will seek external financing: from other studios, independent producers, rich benefactors, lobby groups, governments, etc… basically, from wherever or whatever it can. (This, incidentally, also explains why the credits at the end are sometimes longer than the actual movie itself.)

Apply all that to the ‘Storbju’ case, and what seems to have happened (for here Pierre Ellul certainly does have a point: there is way too little official information about this) is that the copyright owner/s approached the Malta Arts Council – among God knows how many other sources – to fund the project.

Now – and this is the really tricky part – if this were a classic case of public procurement, it would be the other way round: government would come up with the ‘idea’, and then put out a call for public tenders to select an entity to deliver the finished product.

This case (assuming my other assumptions are correct), is clearly not the same. And I don’t think it necessarily should be, either.
For instance: how would it work out if it was my idea to write a script for a movie about Sette Giugno? Or anything else (personally, I’m leaning more towards a Kurt-Russel inspired, soft-porn vampire rom-com fantasy set in the time of the Knights… with some steampunk thrown in for no particular reason.)

Naturally, my first (and, quite frankly, only) option would be to try and pitch it to a studio or independent producers. I’d get paid for the rights… and that’s it. It’s someone else’s intellectual property now, and my involvement will be at an end.

But – only for the sake of argument – let’s imagine that I’m not me at all, but… Orson Welles. Or Charles Chaplin. Or (more likely) Ed Wood Junior: all film-makers who were – or fancied themselves, in the latter case – writer, director, and producer of their own movies, all at once.

If, under the circumstances, I approached the Malta Arts Council for 500K in funding (note: I could make that Knights-era porno for a lot less, you know…): would my intellectual property then have to be put out for auction by public tender, like a government contract? Or subject to any form of public competition to decide who’s going to make my own pet project?

I certainly wouldn’t apply for any public funding under those circumstances. And I somehow doubt a great many films will ever get made here, either. But then again, it’s not exactly what Pierre Ellul is arguing.

So let’s go back to the argument itself. Pierre is perfectly right to point out that the act of simply dishing out 500K to a hand-picked beneficiary is both suspicious and unfair. And I’ve heard it from other film-related sources that the other entities mentioned above – Malta Film Finance, the CoPro Fund, the Malta Film Fund, the Malta Film Commission, etc. – may be a good deal less than transparent when it comes to the question of ‘who gets what financing for which movie project’.

I haven’t had time to look into it more closely (been a kinda busy week, if you know what I mean) but all those entities – and I could add PBS, too: which, if I’m not mistaken, is also involved in ‘Storbju’ – are publicly funded, and therefore subject to strict public procurement/transparency/meritocracy rules.

Now: I’ve already laid out my own view, above, that public procurement rules should not apply to projects which are intellectually owned by individuals. But that doesn’t mean there shouldn’t be any form of public scrutiny at all. After all, €500,000 might be nothing in terms of a movie budget – personally, I doubt it will even cover the cost of Harvey Keitel’s fake moustache – but… to an independent film-maker in Malta, struggling to get a foot on the movie-making ladder… that’s a lot of money.

In fairness to Jean Pierre Magro, however… I don’t think anyone (not even Pierre, though a hint of understandable envy does creep into his tone) is suggesting that he is either underqualified or somehow undeserving of this chance to make (what I’m hoping will be) a very good movie. No one that I can see is even remotely questioning his talent, his skill, or his merit.

And I, for one, see nothing wrong in someone like Jean Pierre Magro accepting a 500K grant, for a film that is probably going to cost 20 times that amount. Even if it does come from the public purse. (One point we often forget is that entities like The Arts Council also have a mission to promote and encourage local artistic initiatives, including movies.)

But against a backdrop where there are so many other instances of seemingly unfair distribution of public money, happening so very often… this lack of transparency does start to stand out a little. And besides: while it’s great that talented makers like Magro do get assistance from the state to make a movie… well, it would be kind of nice if the rest of us were given the same opportunity every once in a while, too.