By Anthony Kaufman | Indiewire June 19, 2008 at 9:24AM
"May you be in heaven a full half hour before the devil knows you're dead." The Irish saying, which inspired the title of ThinkFilm's highest-grossing release "Before the Devil Knows Your Dead" is an apt one for the specialized distributor, which is currently facing the worst financial crisis of its seven-year history. If last year's release of the acclaimed Sidney Lumet drama marked the heavenly highpoint of the company's career, now Lucifer appears to be breathing down its neck.
While the boutique distributor continues to operate in New York with president and veteran marketer and promoter Mark Urman at the helm, and a handful of new releases are continuing as scheduled, according to Urman, such as Marina Zenovich's "Roman Polanski: Wanted and Desired" (July 11) and Azazel Jacob's "Momma's Man" (Aug. 22), ThinkFilm is in the midst a continuing cash crunch that could have crippling effects on its future.
The fiscal crisis has created an acrimonious relationship between ThinkFilm and some of its filmmakers, who are feeling a high level of rancor over money flow issues, particularly since the now notorious entrepreneur David Bergstein and his Capitol Films purchased the distributor in late 2006 and media stories began to emerge that the company was short on funds. The Screen Actors Guild stopped the production of the Capitol-funded, David O'Russell project "Nailed" as a result of a money shortage, for example, and two advertising companies filed major lawsuits against Capitol and Think: L.A. based Allied Advertising is seeking nearly $4.2 million in unpaid bills and the Brooklyn-based Mammoth Advertising is hoping to recoup $428,295 in fees.
Now, all eyes are on a number of independent producers and filmmakers who are threatening legal action. While no specific court proceedings have yet been undertaken and each film's case is unique, several producers believe litigation is their last best option to receive portions of their minimum guarantees not yet paid.
During film festivals, splashy acquisitions make big news in the trades, but it's the underreported reality that it can sometimes take months or years to actually process full payments to filmmakers due to lingering contract negotiations and undelivered items, such as various paperwork, video masters and clearances. But, ThinkFilm's much-publicized money woes have created a situation where filmmakers are urgently rushing to get what's theirs.
According to Submarine Entertainment's Josh Braun, a sales agent who has worked with ThinkFilm on a number of occasions, including the company's documentary breakout "Spellbound," there are a number of films that haven't received payment. "It's a source of frustration for the filmmakers and for us," said Braun, who admitted that whether or not ThinkFilm is able to survive, "they've obviously lost a lot of credibility."
In late April, Urman was named president of ThinkFIlm when co-founder and president Jeff Sackman left and the company's Toronto office was closed. Within weeks buzz intensified about the company's cash problems and Urman now maintains that he has been waging an internal struggle to keep filmmakers at bay. His efforts have been met with mixed results.
Albie Hecht, producer of Sean Fine and Andrea Nix's Oscar-nominated documentary "War/Dance," is currently in arbitration with ThinkFilm, seeking an advance that was never paid to the nonprofit producers. "I think it's despicable that this company treats filmmakers like this and treats a nonprofit like this," said Hecht, who added the money was to go to the Ugandan children who appear in the film, which makes the delinquent payments all the more unforgivable.
For some time, according to Hecht, ThinkFilm delayed payment on the basis that certain elements of "War/Dance" were not delivered. But now they have a letter from ThinkFilm acknowledging all deliverables, said Hecht, "but we still haven't been paid."
Hecht admitted the advance to acquire his film was "very tiny," but they chose to go with ThinkFilm because, he said, "I believe and trust Mark Urman and believe he's a super filmmaker and marketer and knows how to do this," Hecht said. "But I don't understand the way the business of this company is being run. For David [Bergstein] and his cronies to be sitting on money and not paying out is immoral."
Producers associated with Robinson Devor's documentary "Zoo," Susan Kaplan's "Three of Hearts: A Postmodern Family" and David Sington's "In the Shadow of the Moon" all refused to comment for this story on the advice of their lawyers.
A determined, but frustrated, Mark Urman told indieWIRE this week that he's communicating with his filmmakers and making every effort to get people paid. "I feel terrible if people are hurt by our financial problems," he said. "We're not moving forward on other people's blood, I can assure you. We're not [EXPLETIVE] people; we're in trouble. And if people end up getting [EXPLETIVE], we're [EXPLETIVE], too, and we can all be on the unemployment lines together."
EDITORS NOTE: After publication, indieWIRE was contacted by Mark Urman who requested that the expletive used in the quote above be removed.
Launched in 2001 by Urman, Jeff Sackman, and other colleagues from Lions Gate, ThinkFilm was one of the few specialized distributors working outside of the studio system to consistently release an annual indie breakout, which were often documentaries, such as "Spellbound," "Born into Brothels," and "The Aristocrats," or the occasional drama, such as "Before the Devil Knows You're Dead" and Ryan Fleck and Anna Boden's "Half Nelson." The company's Oscar pursuits more often paid off in the nonfiction arena, with 14 nominations and 2 wins. Like any company, ThinkFilm had its disappointments: One of its most aggressive releases, "The Assassination of Richard Nixon," starring Sean Penn, failed to crossover or receive nominations.
But earlier this year, around the time Capitol began to aggressively finance and produce several larger budgeted film projects, such as Taylor Hackford's "Love Ranch," money to ThinkFilm's coffers began to grow dry.
Urman says he's worked hard to lobby on behalf of filmmakers seeking payment. Alex Gibney, director of ThinkFilm's recent documentary Oscar winner "Taxi to the Dark Side," whose payment was also delayed due to apparent delivery issues, only recently got paid after lawyers threatened a lawsuit.
Hunting Lane Films' Jamie Patricof, a producer of "Half Nelson," for which ThinkFilm helped garner an Oscar nomination, also has had difficulties getting money out of Capitol and ThinkFilm, but as of last week, Patricof finally received his last check in the mail. "Although my payments haven't come on time and it's not always easy to get paid, I have been paid everything that's owed to me," said Patricof.
But the status of Hunting Lane's upcoming project "Blue Valentine," Derek Cianfrance's drama, which is to star Gosling and be financed by Capitol, is currently up in the air.
Even with its money problems, Urman said the releases of HBO's "Roman Polanski: Wanted and Desired" and Azazel Jacob's "Momma's Man" can go forward. "If I didn't think we could get what they deserve, I wouldn't be proceeding with them," said Urman. "These films are not cash-intensive films. These films will get everything they need. I will not engage with disappointing myself, our team, or our filmmakers. I insist that the films get what they deserve or I won't even begin."
While the company successfully opened Werner Herzog's "Encounters at the End of the World" (from Discovery Films) last week, the fate of acquired films with late '08 and early '90 releases, such as Rupert Wyatt's "The Escapist" and Daniel Barnz' "Phoebe in Wonderland," remain unclear.
"When I know they can get absolutely everything they need," Urman said he would be able to move forward on release plans. "But we're mindful," he said. "We're not on a buying spree, we're being very careful and we're being circumspect."
Urman's tentative approach to forthcoming releases comes on the heels of this spring's distribution of Helen Hunt's drama "Then She Found Me," from Killer Films, which has currently surpassed a healthy $3 million at the box office, but, as Urman admitted, "we were not able to do everything we had planned." The company has spent money on ads, contrary to earlier reports, but "I wanted to spend more," continued Urman, "and would have, if it had been possible. The film did suffer at certain points," he acknowledged.
Also hurt was a much-publicized new relationship with Killer Films that was announced in February of last year. The companies were to develop and produce a slate of new films funded by Think, replicating the studio/specialty division relationship seen in Hollywood. The pact expired, although the companies could work together down the road.
In recent days, rumors have circulated that Capitol could receive a cash infusion from international investors, making it possible to pay off its debts and keep ThinkFilm alive, but no such deals are immediately evident.
Ed Hayes, an attorney for Mammoth Advertising, told indieWIRE that he expected Capitol and ThinkFilm to find a way to pay its debtors. "I would be surprised if they didn't try to settle," he said. "When I've spoken to them on the phone, they were confident that they would work something out."
Then again, for many in the industry, such reassurances from Bergstein -- whose past involvement with ex-Hollywood financier Franchise Pictures, which was convicted of fraud and went bankrupt in 2004 -- are meaning less and less.
As for Urman, he is planning on continuing to do what he does "unless a bomb falls on Madison Avenue," he said. "I'm 35 years in this business in New York City, and that reservoir of experience and relationships -- and if I have it, goodwill -- doesn't evaporate over night. I'm not going anywhere and I will be doing what I do until they carry me out on a stretcher with a sheet over my head. So we'll be fine," he added. "But I just don't know in what guise."