When a Film Project Collapsed, Could Movie Star Eva Green Keep Her $1 Million Pay-or-Play Fee? Was the Law of Failed Projects To Blame?
In May 2019, French actress Eva Green (“Casino Royale,” “Penny Dreadful,” “300: Rise of An Empire”) was hired to star in “A Patriot” (the project), a U.K. film project that collapsed shortly before filming was to start. By October of that year, the project’s American bridge lender (the bridge lender) sought return of Green’s $1 million pay-or-play fee, leading to a recent decision in London’s High Court of Justice.1
In the run-up to the collapse, Green, in a seeming torrent of texts, emails, and WhatsApps, had referred to the bridge lender’s lead producer (the financial producer) as “evil,” a “madman,” a “devious sociopath” and “pure vomit,” and said the project would be “impossible” with that financial producer in the lead. In other messages, she called another producer a “f***ing moron” and characterized the bridge lender, which had funded her $1 million fee, as “truly mad” and a “f**king nightmare.”
Green, who attributed her strong feelings, at least in part, to her “Frenchness,” claimed that the project collapsed because the finance plan fell apart. The bridge lender, on the other hand, claimed that Green’s extreme words amounted to a repudiation of her star agreement, thereby causing the project’s collapse.
Case Study
Did the High Court of Justice:
- Allow Green to keep the $1 million fee, or order her to return it?
- Accept Green’s “Frenchness” as a justification?
- Apply, explicitly or implicitly, the “Law of Failed Projects”?
An explanation of the “Law of Failed Projects” and answers to these questions follow below.
The Law of Failed Projects
When a judge applies “the law,” we usually think of contract law, tort law, constitutional law, and the like. However, there are other kinds of “capital L” laws, too, such as the Law of Gravity, the Law of Entropy, and the Law of Unintended Consequences.
As I see it, we should also recognize a Law of Failed Projects. Failed Projects have been widely observed to cycle through common steps, a typical progression of which is:
Step 1 – Uncritical acceptance,
Step 2 – Wild enthusiasm,
Step 3 – Feverish activity,
Step 4 – Deep disillusionment,
Step 5 – Total confusion, and
Step 6 – Search for the guilty.
Spectacular Fails
Although I have not (yet) made a full study of it, the Law of Failed Projects may illuminate some of the most spectacular product “fails” of all time, such as Cheetos Lip Balm, Google Glass, and New Coke. In the case at hand, the judge’s meticulous findings show just how well the Law of Failed Projects fits the collapse of the project.
The Findings
In his findings, the judge traced the project’s history, from inception to implosion. The original budget, prepared in 2016 or 2017, came in at around $10 million. In a spirit of uncritical acceptance (Step 1 in the Law of Failed Projects), Eva Green agreed to star in “A Patriot,” albeit protected by key business and creative approvals, executive producer status, and a fee escrow, which her agent, who had serious misgivings about the project, had negotiated for her.
At the 2018 Cannes Festival, however, pre-sales efforts yielded territorial offers of only $2.5 million, plus another $1.2 million from a U.K. broadcaster. While for some $10 million film projects, $3.7 million in pre-sales may look like a solution, for “A Patriot” that modest level of pre-sales may have hinted at problems. The modest market response may have reflected (i) the downbeat futuristic genre of the project, (ii) the limited track record of the initial creative team (the originating filmmakers), (iii) the casting of the glamorous Green as a dystopian warrior, or (iv) a combination of the above.
Bridge Lender to the Rescue?
In May 2019, in a burst of wild enthusiasm (Step 2 in the Law of Failed Projects), Sherborne Media Capital Group, a Los Angeles-based financier, came to the rescue, or at least seemed to, extending a bridge loan that funded Green’s $1 million star fee and more. This short-term loan was to have been repaid, prior to the start of filming, from longer term finance typically available to potential EU and U.K. co-productions, like the project.
Two Finance Plans
Providing a potential exit for Sherborne as bridge lender were two possible longer-term finance plans. One was Belgian co-production, with Chinese pre-sales, in support of a project budget of nearly $6.9 million. The other was Irish co-production which, with the exclusion of China pre-sales, could support a budget of only $5.3 million.
Of course, both budgets were significantly below the original $10 million budget target. However, while the originating filmmakers engaged in feverish activity (Step 3) in pursuit of both the Belgian and Irish deals, by the summer of 2019, it became clear that neither plan was viable, leading to a mood of . . . deep disillusionment (Step 4).
The Bridge Lender Takes Over
At this point, Sherborne, already out of pocket for Green’s one-million-dollar fee and more, had no exit scenario – no clear pathway to repayment of its bridge loan. To protect its downside, Sherborne took over the project, bringing in the financial producer and that producer’s value-priced production facility. This facility was not in Ireland or Belgium, but at a repurposed aircraft hangar near Alton, in the County of Hampshire (where Green, it emerged, felt she would “be obliged to take [a] shitty peasants crew”).
Unfortunately, but perhaps unsurprisingly, the result was total confusion (Step 5). In particular, in the crucial days leading up to the start of pre-production, it was unclear just who would be in charge. Further, on the official start date set by the bridge lender, pre-production simply did not start. Rather, the project collapsed.
This was the overall context in which Green’s strong words appeared.
Team Sports?
By necessity, filmmaking is a team sport. In baseball, if the pitcher were to call the catcher “pure vomit” or a “f***ing moron,” could the team still perform at its best? How about if the shortstop called the second baseman a “devious sociopath” or a “f**king nightmare”? Would such statements amount to a repudiation of a promise to play ball?
‘Sealing’ the Project’s Fate
The judge, of course, was charged with overseeing Step 6 – the search for the guilty. In carrying out his charge, the judge showed both a feel for the realities of filmmaking and a suitable sense of the absurd. For example, the judge observed that, at first glance, it was hard to understand why Green would have directed “so much vitriol” at Jake Seal, the financial producer:
particularly as she only met him once [. . . ]. But I have to say that, having heard [Seal] give evidence, I can see how it might be possible to take an instant dislike to him.
Impossible!
Moreover, per the judge, Green’s statement that it was “impossible” for her to work under Seal’s sole control had to be understood in light of her expectation that there would be a team of producers – that the project would be a team effort, as it were. The judge characterized Green’s emphatic use of the word “impossible” not as a contract repudiation but as hyperbole, noting that a refusal to perform “is not even the literal meaning of ‘impossible’.” On the other hand, while acknowledging Green’s “forthright personality,” the judge found her explanation that “the language she used and the feelings she expressed [. . .] were due to her ‘Frenchness’” to be neither “credible or adequate.”
The Key
The decision of the High Court ultimately came down to one key finding, namely, that “neither side was prepared to make the Film that the other wanted to make[.]”
Back to the Case Study
Now, returning to the questions posed at the outset:
1. Did the High Court allow Green to keep the one-million-dollar fee, or order her to return it?
Yes, it ruled that she could keep the fee.
2. Did the High Court accept Green’s “Frenchness” as justification for her strong words?
No, it found this justification was not “credible or adequate.”
3. Did the High Court, explicitly or implicitly, apply the Law of Failed Projects?
Not explicitly, but yes, the court implicitly recognized that when it comes to Step 6 – the search for the guilty – it is too easy to latch on to the appearance of bad behavior. Refusing to attribute the project’s collapse to Green’s “mean girl” streak, the judge, instead, tied it to a string of flawed business decisions. Effectively, he blamed it on the Law of Failed Projects!
What This Means for Your Client
If your client is a bridge lender, it is important to advise that before it exercises a takeover right, that the client should have a takeover plan.
Everyone else: Count to 100 before you hit “send”. . .
Ezra Doner, www.donerlaw.com, is an entertainment and copyright lawyer who focuses on the film, TV, and other content sectors. He is based in New York and is admitted to practice in New York and California. He does not represent any of the parties in this case.
