Tuesday, June 19, 2012

Questions arising from the banning of a filmmaker by Screen Australia


On one level, my dispute with Screen Australia, my having been banned by Ruth Harley from even speaking with members of SA staff, is of no real consequence to anyone other than myself.  There are however two reasons why I think the circumstances surrounding my banning are relevant to my fellow filmmakers:
(1) Let’s assume the worst case scenario (for me!) in which Ruth Harley releases correspondence I have written that provides evidence of my having harassed, intimidated and placed Screen Australia staff at risk; that Fiona Cameron releases correspondence that makes me appear not just a fool but one who hopes (nudge nudge, wink wink) that I can get Ross Mathews to breach SA guidelines and give me an assurance, in a meeting, that my project had been greenlit. Given that I have been asking for the correspondence that Ruth refers to for 5 weeks now and that to which Fiona refers for 18 months, why has it taken so long to release it – especially since its vindicate Screen Australia’s banning of me?  If Screen Australia is not going to be transparent and accountable when the facts are clear-cut (correspondence either exists or it doesn’t) and which it is clearly in their best interests to be so, what does this suggest about SA’s commitment to transparency and accountability in other less clear cut situations - ones in which a member of Screen Australia’s senior management has in fact played fast and loose with the truth in order to breach the organizations guidelines or Code of Conduct?
(2) If it transpires that correspondence of the kind that Ruth refers to (and Fiona Cameron 18 months earlier) does not exist, the film community, so dependent on Screen Australia for its creative and economic good health, will then be confronted with a series of realizations and questions:
- Why did the Screen Australia Board not step in and resolve Ricketson’s dispute on the basis of the known facts 18 months ago? Does the Board have any interest at all in the way Screen Australia is administered?
- Why did the office of Mr Crean not step in and ask questions of both Ruth Harley and Chair of the Board, Glen Boreham?
- Why did the Ombudsman not bother, 18 months ago, to even ask the few basic questions that would have led to the dispute being resolved in a matter of days? Why, given the seriousness of the punishment handed down to a filmmaker, will the Ombudsman not request of Ruth Harley that she release the relevant correspondence or extracts thereof? How efficiently is the Ombudsman likely to resolve other disputes in the future between filmmakers and Screen Australia? Can to Ombudsman be trusted or are filmmakers setting themselves up to be ‘banned’ (either officially or unofficially) for having made a complaint in the first place?
- Why has it been necessary for a filmmaker to go to such lengths, writing 40 or so entries in his blog, before the truth emerged?
And here are the most important questions of all for the industry to ponder:
- What else is being kept secret from us? What other battles are going on behind the scenes that we never hear about because the filmmakers (and film magazines?) have received legal threats – veiled or unveiled?
- How, as filmmakers, are we to get our complaints about Screen Australia, when and if they arise, dealt with in a fair and impartial manner?
The answer to these questions, broadly speaking, is that as things stand at present, with Screen Australia run as an autocracy without a functioning complaints system, filmmakers rights (or lack thereof) are subject to the whim of senior management within Screen Australia. Appealing to the Minister for the Arts, Simon Crean, will yield no result other, perhaps, than a letter from a spin doctor. And appealing to the Commonwealth Ombudsman is no guarantee that questions will even be asked that make it possible for an impartial observer to adjudicate on the basis of facts as opposed to spin and lies.
For so much power to be concentrated in the hands of a handful of people in senior management within Screen Australia and a Board that places a rubber stamp on decisions made by them is a dangerous situation and good neither for the industry or culture of Australian film. If the industry as a whole does nothing to change this state of affairs, nothing will change.

17 comments:

  1. Friend of Esben'sJune 21, 2012 at 12:43 AM

    James

    I admire what you are doing on your blog. But you are really just skirting around the edges of just how morally corrupt our industry is. If you don’t know the story of how Esben Storm had ‘Tomorrow When the War Began’ stolen from him with the tacit approval of the Australian Film Commission and Screen Australia, you should. So should the whole industry. It is a story that does not reflect well on the ethical values of those within Screen Australia, and still working there, who allowed Esben to be screwed. I knew Esben well and he confided in me often over the 8 or 9 years from the time he first decided to turn ‘Tomorrow When the War Began’ into a movie to when the film was released with no acknowledgement that it was his idea not just to make one film but a series of films. When ‘Tomorrow’ turned out to be a huge success Esben didn’t want to be seen as a whinger but it was very difficult for him to see the film acquire the acclaim and box office success it did, to see other people making money and building their reputations on his idea, without it breaking his heart. Instead of earning a decent wage for all the years of work Esben put into the project and maybe even making a lot of money, he was left with debts only. And what did Screen Australia do to stand by Esben? Nothing. (to be continued)

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  2. Friend of Esben'sJune 21, 2012 at 12:46 AM

    Esben began work on ‘Tomorrow’ in 2001. With his well-established reputation as a maker of children’s television he was the ideal person to do so. He acquired the rights to three of John Marsden’s novels and started work on what he hoped would be three feature film. He wrote lots of drafts of the screenplay for ‘Tomorrow’, prepared logos, pitch documents and budgets, made several trips overseas to generate interest and spent hundreds of thousands of dollars developing the project.

    In mid 2006 Esben became involved with a company called Ambience, an offshoot of
    Omnilab, a company that was cashed up and keen to get into production. The Film Finance Corporation was trying to encourage the production of feature films for kids by offering to invest up to 60% of the budget, so it seemed to Esben that, if he could get Omnilab on board he’d be in a good position to get the film financed.

    Esben contacted Matthew Street, Chief Executive of Ambience, the production arm of Omnilab, and pitched the idea of “a trilogy of movies aimed squarely at the young mainstream” with the potential to spin off into a TV series. He had a detailed pitch brochure, outlining and illustrating each film and what he believed to be the international relevance and potential of the project. Street was very interested in Esben’s project and introduced it to Christopher Mapp, Managing Director of the Omnilab Media Group.

    Esben wanted to have some people with him who would look after and protect his interests so turned to Stacey Testro, who had been involved in the successful Saw franchise. Esben, Testro and Ambience’s Michael Boughen agreed to form a company and become joint Producers to make a film of ‘Tomorrow When the War Began’. If the film succeeded the company would co-produce the follow up films. Esben met with Boughen and the Ambience script consultant to receive from them notes on his screenplay. Their concerns were not major and it didn’t take Esben long to amend his screenplay accordingly.

    Michael Boughen then began renegotiating the rights to the books with Marsden’s
    Agent. He wrote: “…with our combined expertise and financial strength we are uniquely placed to realize the vision so clearly defined by John (Marsden) and Esben.” David Whealy, the lawyer and Manager of Business Affairs for Ambience, then drafted a Deal Memo for a proposed co-production between Ambience, ZTudio (Testro and her husbands company) and Esben. The renewed option with Marsden entailed a substantial fee, which would be paid by Ambience and ZTudio.

    David Whealy drew up a Heads of Agreement outlining the business arrangement between Ambience, ZTudio and Storm. Esben was concerned the agreement didn’t address the status of his screenplay or his position as a Director. And there was no acknowledgement of the money of his own Esben had previously spent developing the project. Nor was there an acknowledgment of the money put up by other investors, including the Australian Film Commission. David Whealy put Esben’s concerns to rest in an email in which he said the agreement provided for the three Producers to “...approve all key creative decisions; key heads of department; the script; the budget; key cast; the production schedule; and the terms of financing of the production cost (including recoupment). Therefore, there is every protection to all of the producers...”

    Esben felt a little more secure that his concerns would be addressed in the long form agreement that would ensue once the production was locked in. Esben’s lawyer vetted the agreement and late in 2006 Esben and his co-producers signed up and everyone seemed to be very excited by the prospects for our project.

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  3. Friend of Esben'sJune 21, 2012 at 12:48 AM

    In early 2007, Esben and his co-producers put out a press release that read, in part... “a major new joint venture, Ambience Entertainment, ZTudio and Storm Productions today announced their plan to produce a number of films based on the Tomorrow series books. Michael Boughan of Ambience Entertainment, Stacey Testro of ZTudio and Esben Storm will produce with Storm also helming and writing the first film in the series... Michael Boughan of Ambience Entertainment, a division of the Omni-Lab Group, loves the books. “So the challenge for me was for the script to capture them and ensure that the integrity of the books was not lost. When I read Esben’s script – I was in,” he said.”

    After Esben had signed on the dotted line and issued the optimistic press release, he started to feel as if he wasn’t that involved anymore. Esben’s co-producers then made a decision, without consulting him, that the budget should be increased and that they’d try and finance the film through the FLIC scheme. Esben’s credits didn’t qualify him to direct a FLIC film but this change of direction was presented to him after the fact as a fait accompli. Esben felt that he was being sidelined but accepted assurances given to him that he was not. Midway through 2007, Michael Boughen suggested to Esben that they could get to Stuart Beattie to direct because he had been a schoolmate of Chris Mapps’. Beattie had a reputation as a writer, but was untried as a Director and therefore , Esben felt, didn’t qualify to direct the first film. That was the last Esben heard about Beattie directing Tomorrow, until a few years later. As far as he knew, he and his co-producers were still looking for a Director.

    By July 2007, Esben was feeling quite marginalized. He was a director of the Tomorrow When the War Began company and a Producer but was not meeting with his collaborators to strategize in any meaningful way. Esben’s unease about the way the project was developing intensified when, with just one month to go before they were due to pay their second annual option fee, Mathew Street sent an email to Testro which opened with... “Further to our previous conversations regarding Tomorrow When the War Began (“Tomorrow”) and due to creative differences and despite everyone’s best efforts to promote Esben’s version of the “Tomorrow” books in the market place. I would like you to consider the idea of a buyout either way to which Ambience is open.”

    Esben insisted that he hadn’t been a party to any “previous conversations” and that he was totally unaware of any "creative differences”. Street suggested Ambience could buy out ZTudio but didn’t mention Storm Productions, even though Esben had
    originated the project and brought it to the other parties. It seemed to Esben that the only option open to him was for ZTudio/Storm to sell out to Ambience, giving Ambience 100% control of the project.

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  4. Friend of Esben'sJune 21, 2012 at 12:58 AM

    Esben found the conditions of Ambience’s suggested buy out onerous and unsatisfactory. There was no acknowledgement of his development investors or his own out of pocket expenses prior to the Ambience involvement. Nor did he feel he would be compensated adequately for originating the project and developing it since 2001. So Esben drew up his own list of conditions and presented them to Street, Boughen and Whealy in a meeting on October 29, 2007. Testro, whom Esben had hoped would support him, suggested that he was better off going into this meeting on his own. The meeting eventually comprised just Esben and Whealey, who told Esben that he’d never actually read the script Esben had revised with the notes from Boughen. Considering that Whealey would be one of the Executive Producers, Esben was amazed that he hadn’t read the script. There was no response on Whealey’s part to the terms Esben suggested for the buy out. Esben rejected the terms of the Ambience buy-out, believing them to be unfair and the option held jointly by three parties lapsed, at which point Ambience acquired the rights and announced that Stuart Beattie would be the Writer and Director.

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  5. Friend of Esben'sJune 21, 2012 at 1:14 AM

    Ambience had every right, legally, to acquire the lapsed rights but did it do so in such a way that Esben felt he had been manipulated out of his own project – a process that began when Stuart Beattie’s name was first mentioned as director a few years earlier. As the situation now stood, Esben would not be able to recoup any of his own development costs, nor repay his development investors including the Australian Film Commission. Nor did Testro see that there was anything she could do on Esben’s behalf. Coming into 2009 as it became evident that Tomorrow When the War Began would actually go into production, quite a few eminent people in the Australian Film community felt that Esben had been screwed and suggested that he talk to a lawyer. At this point Esben sent me the following email:

    “I sought the counsel of two prominent lawyers and subsequently, between
    June 23, 2009 and July 29, 2010, they sent four letters to Ambience which
    were copied to Paramount, who are distributing the film and Screen Australia,
    the federal film investment body. In these letters, my lawyers outlined all the
    reasons why we felt I’d been treated unjustly and taken advantage of unfairly.
    We asked for documentation to verify that the rights had reverted correctly
    and to confirm that the chain of title was in tact. This documentation has not
    been forwarded to us and indeed, of the four letters, I believe we’ve only had
    a response to the first one.

    Given that up to around 50% of the films budget could end up being provided by Australian taxpayers, we had hoped Screen Australia might be sympathetic to my position, as an Australian film maker. However, judging by the lack of response to our letters, my situation seems to be of no concern to Screen
    Australia.

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  6. Friend of Esben'sJune 21, 2012 at 1:15 AM

    We have also, via the Australian Writers Guild asked to see Beattie’s script to
    confirm that he didn’t take any ideas from my script. Ambience refused to let
    us see their script and though they initially said they’d provide us with
    statutory declarations to affirm that they had not used my script, they later
    reneged on that offer. As it turns out, the Omnilab production of Tomorrow
    does have a few elements which were in my script that weren’t in the novel. When we sent the first letter to Street, I copied it to Testro to keep her in the
    loop and let her know that I was trying to get Ambience to acknowledge my
    claims and to pay the money they owed ZTudio. Testro made it quite clear
    that she did not want to be involved in any actions that I might pursue against
    Omnilab. She said she had other ongoing business with Omnilab which she
    didn’t want jeopardized. She preferred her own interests to mine and there
    was no way she would support my efforts in relation to Omnilab.

    As noted, ZTudio paid half of the first option fee, which was a substantial
    amount of money. The agreement didn’t provide for me to recoup any of my
    previous option fees or development costs, but it did provide for ZTudio to
    recoup the money they put in. However, Ambience then stipulated that
    ZTudio could not recoup their money until ZTudio and Storm had signed a
    Release Agreement which would free Omnilab from any obligations to us,
    prevent us from making any claims whatsoever against Omnilab and prohibit
    us from making any untoward statements about Omnilab or the film.

    This Release Agreement was sent to Testro in July 2009, a month or so after
    my lawyers first letter went to Ambience, however, for reasons unknown, this
    agreement was only forwarded to me a year later, in August 2010. ZTudio
    has been willing to sign the Release Agreement because they naturally want
    their money back, but I won’t sign the release because I’d be surrendering all
    avenues of redress for no compensation. As demonstrated by their lack of
    response to our letters, I don’t think Omnilab cares whether I sign or not. In
    fact if I don’t sign they won’t pay back a very significant amount of money to
    ZTudio. Again that can only be a win for Omnilab.

    By August 10, 2010, we came full circle when Chris Mapp told Encore, the
    Australian film industry magazine; “What we’re trying to create is a franchise,
    with a potential for three films and a television series...” This is of course the
    idea that I first pitched to Mathew Street on June 28, 2006.

    More recently I bit the bullet and rang Matthew Street, hoping to bridge the
    impasse and the non-response to our last letter, however Street was in a
    meeting and hasn’t returned my call.

    We still believe I’ve been treated unfairly, however, because of the costs
    involved, I have been advised not to pursue it through the courts. We believe
    Ambience is not acknowledging our letters because they assume that this is
    justice I can’t actually afford to pursue. So for now, I’ve written it all down, to
    clear the decks. But it is hard to swallow when Tomorrow has grossed more
    than $10mill. after four weeks in the Australian market and the producers are
    now talking about making the follow up movies back to back. It seems the
    only compensation I have is, that so far, the box office has confirmed that my
    idea was a good one.”

    There are many unanswered questions arising from this sad story – the only ones relevant here being: Was Screen Australia paid back the money it invested (as the AFC) in Esben’s project all those years earlier? And: “Given Screen Australia’s investment in ‘Tomorrow’ when it was Esben’s ‘baby’ and given Ambience’s refusal to acknowledge his authorial and other rights, why did Screen Australia not stand up for or behind Esben in his battle for justice?

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    1. Esben didn’t renew the option when he could and should have. Bad mistake. Ambience was within its rights to pick up the option, though it should have done the right thing by Storm financially and in terms of acknowledging that the project was his idea. Has Esben’s estate got anything at all out of the success of ‘Tomorrow’?

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    2. Did any members of the Screen Australia Board stand to gain financially from ‘Tomorrow’ being taken away from Esben Storm under the circumstances described here? Is it even possible to ask such a question? And who can I ask? Ruth Harley? Glen Boreham? Simon Crean? Fiona Cameron? The Ombudsman?

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    3. Filmmakers beware. No matter how successful your last film was, no matter how good your track record is, no matter how just your cause is, no matter what contractual obligations you and Screen Australia might have to each other, Screen Australia will screw you if it feels that it is in its best interests to do so.

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    4. Who at the FFC and the AFC approved funding for ‘Tomorrow’ when they knew that Esben had been shafted? Are they still working for Screen Australia? Anyone know?

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    5. I knew Esben well. It did break his heart, after so nmany years of work, to lose control of Tommorrow in the way he did, to be sidelined and excluded from any of the money that should have gone to him after so many years of hard work. It also broke his heart that the funding bodies involved in financing the film did not give him any support at all in his fight for recognition of his rights. And I think it broke his heart also that the filmmaking community he had been a part of for close to 40 years did not stand by him, offer him support. Its a dog eat dog world the film industry now and if qa true gentleman like Esben, who had given so much to Australian film, can be left to swing in the breeze as he was, what hope is there for any of us. Shame.

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    6. My 10 cents worth, for what they are worth. It seems clear from what is written here that no-one has broken any laws in relation to ‘Tomorrow’. The rights became available and someone other than Esben picked them up. There are plenty of moral and ethical questions here, however, that will not (and cannot now) be explored.

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    7. Isn't one of the Omnilab guys in jail for fraud?

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  7. My experience, after many years working in this industry in many different capacities, is that it is corrupt. If anybody bothered to look closely at what actually goes on behind the scenes, ask the right questions and act on the answers, there would be a lot of people out of a job and with questions to answer at an ICAC hearing. As has Ricketson I have had an experience with the Ombudsman that left me wishing I had never lodged a complaint in the first place. I would strongly advise anyone contemplating a complaint to the Ombudsman to think twice before doing so. If the Ombudsman bothers to ask any questions at all it will be in the context of your name being mentioned as the person who wants answers. The end result will be that your name will wind up on an unofficial list of film producers or directors that have a snowflake’s chance in hell of ever getting funding from Screen Australia. There is no actual list of course. Nothing in writing. It would be impossible to prove that you were being discriminated against but you might as well pack your bags and leave the industry. That corruption is rife in the Australian film industry is not the real problem. In any similar situation, when there are tax dollars being handed out, corruption will occur when those handing out the dollars do so to their friends, business partners and themselves. The real problem as Ricketsons banning illustrates is that there is no one to turn to to even ask the right questions - let alone get answers. If the Ombudswoman doesnt see it as her role to ask Harley to come clean with the letters or emails Ricketson has written that place Screen Australia staff at risk who the fuck does he ask next to help him? Crean and Gillard are useless. Maybe his FOI request will at least get him copies of whatever it is he wrote that got Harley's knickeres in a twist.

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  8. Think of all the funds that Screen Australia has available to spend each year as a cake. Lots of filmmakers want a piece of the cake. There is not enough cake to go around. Sharing the cake fairly is, by definition, problematic. Always was. Always will be. Interesting question though is ‘What percentage of the cake goes to (a) members of the Screen Australia Board, (b) past and present business associates of members of the Screen Australia Board and senior management at SA and what percentage goes to filmmakers who have no connection at all with Screen Australia. Other questions include, “How big a slice of the cake winds up on the plate of former SA employees who, having doled out the slice whilst employed by Screen Australia, find themselves a few months later, having left SA, consuming the cake with the very people they gave it to?" My point here is not to point fingers or make accusations but to point out that there is no way questions such as these can be asked of Screen Australia and answers expected. Does the Writers Guild ever look with a little annoyance (and a few questions) at the amount of script development monies that turn up in the accounts of certain well-connected filmmakers while other more highly qualified screenwriters miss out time and time again? Defamation laws prevent asking more precise questions with names attached. Does SPAA or the ADG ever ask why it is that some producers are able to breach all Screen Australia guidelines in their dealings with SA whereas other producers have their applications knocked back on the basis of pettifogging technicalities? Now that Encore has given up publishing anything that might result in a letter from the Screen Australia legal department and with no film journalists doing anything that is even vaguely investigative, how will we ever get answers to questions such as these?

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    Replies
    1. Gave up on Encore. Online the magazine is litle more than a compendium of press releases these days. And the Writer's Guild, of which I am a reluctant member, useless as tits on a bull when it comes to fighting the battles that really need to be fought.

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  9. It is a treasonable idea that any public service has control of an industry here. We don't deserve to have one.

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