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Contracting with Film Victoria

INTRODUCTION

If your application is successful, you will be required to enter into a written funding agreement with Film Victoria. That funding agreement will set out all of the terms upon which the Film Victoria funds will be provided to you.

Here, we have set out some information and answers to frequently asked questions, which might be helpful to you when you are contracting with Film Victoria.

This information is intended as a general guide only. If you have any specific questions about the contracting for your project, you should feel free to contact us (the details for the relevant contacts at Film Victoria are set out in the I Have More Questions section below.

YOUR FUNDING AGREEMENT WITH FILM VICTORIA

MY APPLICATION WAS SUCCESSFUL - WHAT HAPPENS NOW?

You will receive an agreement providing details of your funding from Film Victoria. In order to prepare this agreement, you will need to provide the following details (if not already done so):

  • personal details) if you are entering into the agreement with Film Victoria personally; (name, address, ABN, bank account)

  • company details - if your company will be entering into the agreement with Film Victoria, you will need to provide all relevant details for that company (name, ACN, address, ABN, bank account, names of company directors);

  • partnership details - if you wish to contract with Film Victoria as a partnership, you will need to provide all relevant details for that partnership (name and address details for each partner, ABN, bank account);

  • association details - if your association will be entering into the agreement with Film Victoria, you will need to provide all relevant details for that association which must be incorporated (name, registration number, address, ABN, bank account). Film Victoria cannot enter into a funding agreement with an unincorporated association.

Film Victoria will not be able to prepare your agreement until this information is received. 

I HAVE A BUSINESS NAME - CAN I ENTER INTO AN AGREEMENT WITH FILM VICTORIA USING MY BUSINESS NAME?

Yes - if you have a registered business name, you can enter into an agreement using that name. But, a business name is not a separate legal entity (like an incorporated company). For that reason, the agreement will be prepared between Film Victoria and you, trading as your business name (for example, A Jones trading as A Jones Films).

I HAVE RECEIVED THE FILM VICTORIA FUNDING AGREEMENT - DO I NEED A LAWYER?

Your agreement  sets out your obligations to Film Victoria in relation to your project. It is very important that you understand those obligations and for that reason, you may wish to obtain independent legal advice from an appropriately qualified lawyer. You might like to browse our Industry Directory or the Encore Directory for a list of lawyers who have experience in film and television law. You may also be able to obtain legal advice from the Arts Law Centre of Australia.

You will need to make your own determination about the lawyer that is right for you. Film Victoria does not make any representation or warranty about the legal service providers listed in the Industry Directory or the Encore Directory.


Where necessary, we encourage you to budget for legal services by including a line item in your budget. 

MY PROJECT DETAILS HAVE CHANGED - WHAT DO I DO?

If any of the details of your project change (for example, the key personnel, the production schedule, the budget, the finance structure, delivery dates), you will need to inform the relevant Film Victoria Program Manager in writing immediately.

Film Victoria will then consider these changes, and determine if they are approved.  Any approved changes may need to be reflected in your funding agreement with Film Victoria. 

ABN AND GST

WHAT IS AN ABN?

An Australian Business Number (ABN) is a number given to legal entities registered with the Australian Tax Office (ATO) which are carrying on business in Australia. 

An ABN is used by the ATO to track a business's ongoing tax obligations, specifically with respect to the Goods and Services Tax (GST), and provides a mechanism for businesses doing business with one another to handle incoming and outgoing GST.

I DON'T HAVE AN ABN - DO I NEED ONE BEFORE I ENTER INTO AN AGREEMENT WITH FILM VICTORIA?

Film Victoria generally prefers applicants to have ABNs.  There are two reasons for this:

  1. Businesses with a certain annual turnover ($75,000 at March 2010) must register for GST, and they need an ABN to do this; and

  2. If a business does not have an ABN, Film Victoria is required by law to withhold tax from any payment to that business at the top marginal tax rate (45% at March 2010).

The process for registering for an ABN is relatively straightforward and can be completed online at https://abr.gov.au/. If you do not have an ABN, you may wish to seek independent financial or accounting advice before registering for one, to ensure that your business affairs are appropriately structured. 

I HAVE AN ABN BUT I AM NOT REGISTERED FOR GST - CAN I STILL ENTER INTO AN AGREEMENT WITH FILM VICTORIA?

Yes you can, however,   if you are not registered for GST, Film Victoria is not required to pay any GST to you in respect of the funds, and you are not entitled to invoice Film Victoria for GST. 

I HAVE AN ABN AND I AM REGISTERED FOR GST - DOES FILM VICTORIA HAVE TO PAY GST TO ME, ON TOP OF THE APPROVED FUNDS?

Yes. If you are registered for GST, you must advise Film Victoria and provide your ABN details.

Then, if GST applies to the approved funds, you will be required to invoice Film Victoria for any payments due under the funding agreement, plus GST. As part of your own financial management arrangements, any amounts paid by Film Victoria to you on account of GST will need to be remitted to the ATO.

It is important to note that GST does not apply to all funds granted by Film Victoria as some programs are not subject to GST. 

I WILL PAY SOME OF THE FUNDS I RECEIVE FROM FILM VICTORIA TO ANOTHER PERSON INVOLVED IN MY PROJECT (FOR EXAMPLE, A WRITER OR SCRIPT EDITOR). THAT PERSON HAS INVOICED ME FOR GST - DO I HAVE TO PAY THE GST AMOUNT?

Yes. You will need to pay any GST that applies to the services you receive from another person, regardless of whether or not you are registered for GST.

WHAT IS REQUIRED FOR A VALID TAX INVOICE?

For further information on what constitutes a valid tax invoice, please refer to the ATO website.

Generally, a valid tax invoice must state:

  •  the words "tax invoice";

  • the name and ABN of the supplier (in this case, Film Victoria);

  • the name, address and ABN of the recipient;

  • the date of issue of the invoice;

  • a brief description of the goods and/or services;

  • the total price of the goods and/or services (inclusive of GST); and

  • the GST amount.


PAYMENT

MY APPLICATION TO FILM VICTORIA WAS SUCCESSFUL - WHEN WILL I BE PAID?

Before any funds are paid, you will be required to enter into and sign a funding agreement with Film Victoria. Film Victoria will generally be in a position to forward your agreement to you for signing between 2 and 6 weeks from the date of approval of your application. That timing will depend, in part, on how quickly you provide the information required by Film Victoria to prepare that funding agreement, being funding recipient details (hyperlink to above) and all project details.

Please note that these time estimates do not generally apply to production investment, where the timing of the contracting process will depend on a number of factors including the finalisation of the finance structure.

The agreement will set out how the Film Victoria funds will be paid to you (usually be paid in at least 2 instalments), with conditions to be satisfied by you prior to the payment of each instalment.

You may be required to provide some or all of the following prior to your first payment of Film Victoria funds:

  1. the signed funding agreement (which will also need to be signed by Film Victoria); 

  2. your bank details; 

  3. a valid tax invoice for the instalment amount; 

  4. chain of title documents; 

  5. solicitor's opinion letter; and 

  6. any outstanding reports or other deliverables due to Film Victoria in relation to previous funds received by you (or related entities). 

CHAIN OF TITLE

UNDER MY FUNDING AGREEMENT, I AM REQUIRED TO PROVIDE CHAIN OF TITLE DOCUMENTS - WHAT IS CHAIN OF TITLE?

Chain of title is a term commonly used to refer to a series of documents which establish that you own all the necessary rights (namely copyright) to allow you to develop, produce and market your project.

Some funding agreements require you to submit a Chain of Title confirmation form. This form requires you to list all the Chain of Title documents for your project.

WHAT DO I NEED TO DO TO SHOW CHAIN OF TITLE?

You will need to establish for Film Victoria, that you own all necessary rights and have the appropriate chain of title documents to evidence such ownership.

If you are required to provide chain of title documents under your agreement, Film Victoria will be entitled to approve those documents.

Documents which typically form the chain of title for a project include:

  • Writer's Agreements (you may be able to obtain a sample agreement from the Australian Writers’ Guild);

  • Script Editor's Agreement (40KB);

  • Researcher's Agreement (39KB)

  • Script Consultant's Agreement (39KB),

  • Option and Assignment Agreements - if you are basing the script for your project on someone else's work, such as a novel (you may be able to obtain a sample agreement from the Arts Law Centre of Australia);

  • Producer's Agreements (you may be able to obtain a sample agreement from the Arts Law Centre of Australia);

  • Director's Agreements (you may be able to obtain a sample agreement from the Arts Law Centre of Australia);

  • Publisher Quit Claim - if your project is based on a published work, this document obtained from a publisher establishes the Publisher has no rights in a film version of the published work

Key points to remember for your chain of title documents:

1.     Contracting Party - The person entering into the agreement with Film Victoria must be the same person entering into agreements with key personnel, who holds all the rights in the project enabling them to develop and produce the project.

2.     Stages of funding - Your key personnel must be contracted to work on the same stage of the project that is being funded by Film Victoria.

3.     Options - If you are optioning the rights in the project, you must have the option over the project to develop and produce the film, for at least 2 years from the date of your agreement with Film Victoria,

4.     Rights – You must obtain all rights from Key Personnel for the work they do on your project, so that you are entitled to develop and produce the project.

5.     Payment –

a.     You must pay key personnel the amount specified in the Budget in the funding agreement with Film Victoria.

b.     If you are receiving funds for fiction or factual development investment, you must ensure that your agreements with your writer and script editor specifies that they will receive 75% of their fee in their first payment, as specified in Film Victoria’s funding agreement.

6.     Other Investors – if you have another investor in the project (current or previous stage) you will need to provide Film Victoria with:

a.     the investor’s approval of Film Victoria’s investment in the project;

a copy of your agreement(s) with the other investor(s). If it is for the same stage as that which Film Victoria is investing in, it should note Film Victoria’s investment and ownership in the project.

UNDER MY FUNDING AGREEMENT, I NEED TO PROVIDE A SOLICITOR'S OPINION LETTER - WHAT IS AN OPINION LETTER?

The requirement for you to provide a solicitor's opinion letter applies to some (but not all) of Film Victoria's funding programs. The solicitor's opinion letter needs to be from an independent solicitor, certifying that you have acquired all the necessary rights to enable you to develop, market and produce your project.

Generally, Film Victoria will require a solicitor's opinion letter prior to payment of the first instalment of funds. In some instances Film Victoria may also require a second solicitor's opinion letter prior to the payment of the final instalment of the funds.

In order to provide these opinion letters, your lawyer will need to review all relevant Chain of Title and other documents and confirm that you have acquired all necessary rights to make and exploit your project.  Pro forma opinion letters are available from Film Victoria. 

I HAVE MORE QUESTIONS - WHO CAN I ASK?

Applicants are advised to contact the relevant Film Victoria Program Manager (refer to the Guidelines for the relevant Program contact person).

For specific queries regarding the contracting or payment processes, please contact:

FOR GRANTS AND DEVELOPMENT INVESTMENT:

Sam Lloyd, Contracts Officer - Development and Grants on 9660 3200

FOR PRODUCTION INVESTMENT:

Emma Geier, Contracts Officer - Production and Recoupment on 9660 3200

FOR SPECIFIC QUERIES ABOUT YOUR FUNDING AGREEMENT:

Alison Bird, Solicitor on 9660 3200

Sally Wilson, Legal Manager on 9660 3200

Michelle Rubin, Senior Solicitor on 9660 3200

Please note that Emma Cornall (Principal Solicitor) is on leave until 2012

 
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