Tyke is now a festival favourite and selling like hotcakes internationally. The BBC Storyville (UK) and CBC The Passionate Eye (Canada) documentary strands and Netflix are among the buyers to date – as is the Nine Network for Australia.
The filmmakers say they would have a better chance now of sourcing international finance because Tyke has given them a calling card, that is a tick of approval as filmmakers of theatrical features. Presupposing they had a similarly dramatic and significant story of course.
Tyke, Elephant Outlaw
Title Tyke: Elephant Outlaw
Genre Documentary (78-minute theatrical and 55-minute TV versions)
World premiere/release date 18 April 2015 at the Sarasota Film Festival. Watch now anywhere in the world that has access to Netflix or on the Nine Network in the first half of this year.
Distribution partners ABC Commercial, Dogwoof
Synopsis A circus elephant made history when she went on a rampage, killed her trainer and died in a hail of gunfire.
Website tykeelephantoutlaw.com
From the filmmaker
Susan Lambert, producer / director | Stefan Moore, producer / director | Megan McMurchy, co-producer
Tyke had plenty of international sales and festival interest – after it was made
Susan Lambert: “In mid-2010 I was out walking with a friend and she said ‘you should look at animal law’. I immediately thought it was a fantastic idea. I’d worked on two observational series about the law for ABC TV, DIY Law and On Trial, and had never heard of animal law. I’m interested in the relationship between animals and humans – I ride horses – and many people love and work with animals. And hard-core animal rights groups are raising our consciousness.
“I talked to Stefan (business/personal partner Stefan Moore) and he was intrigued. We started out on the journey with a $15,000 grant from Voiceless. We used it and a $10,000 development grant from Screen Australia to attend an animal law conference in Portland, Oregon for five days in October, talk to people in Australia and overseas, make a pitch trailer, and write up research and pitch documents. We took a camera and did interviews at the conference.”
Voiceless, which describes itself as “raising awareness of animals suffering in factory farming and the kangaroo industry”, has a grants program.
Stefan Moore: “At our original meeting with Voiceless we realized how many people were involved in fundamentally changing the law. We started reaching out to international organisations. We were interested in exploring the rights of animals, not in making a film with a specific point of view. Some lawyers were involved in an extraordinary pursuit to redefine the legal status of other species. A nonhuman animal is property, equivalent to any other kind of property alive or inanimate, like a chair or table. The only way animals have any protection is through animal welfare law, but they are still legal “things”. So we began to talk with lawyers who wanted to fundamentally redefine the rights of certain animals – those with characteristics closest to humans – as legal persons.
The exact nature of the content shifted
“There was one lawyer who intrigued us most: Steve Wise, president of the Nonhuman Rights Project. He brought together about 100 lawyers looking for the right case, venue and judge to mount the first precedent-setting case for legal personhood of a nonhuman animal. But we were very aware that we were here (in Australia) and that was all going on over there (in the US), making it difficult to jump on developments as they were unfolding.”
At this stage, the documentary was called Rattling the Cage, based on the title of one of Wise’s books, Rattling the Cage – Toward Legal Rights for Animals. By May 2011, a further $10,000 in development funding had been secured from Screen NSW.
Moore: “The topic of animal law, however, opened the door to so many amazing new insights into animal cognition and animal behaviour, and we began to cast our net more broadly to find a powerful story. Eventually, we came to Tyke whose story dramatically embodied so many of the themes we had been looking at in our animal law research. It was a highly dramatic story with a powerful message that could be told through the extraordinary amount of archive of the incident and its aftermath – the incident was filmed by four TV stations and home video – as well as through the contrasting perspectives of those who knew Tyke, eyewitnesses to her rampage, animal activists and circus industry insiders.”
Lambert: “I’d been sitting through some courtroom sessions about puppy farms here in Australia but no dramatic stories seemed to be happening. When Stefan discovered Tyke, we realized that her story had a richness that gave us the material for a powerful film. It also answered the need for a beginning, middle and end, and it was contributing to the discourse going on around the world about our treatment of other species. It ticked all the boxes.”
“When approaching Screen Australia, it is an advantage if the budget can be held below $500,000."Megan McMurchy
Tyke, Elephant Outlaw
Months of begging to clear the archival footage
Lambert: “Our first research trip was to Hawaii in March 2012. We found a lot of good archival footage – not only of what happened that day but of Tyke before the incident – without which we wouldn’t have a film. When KGMB TV handed us a tape of raw footage of Tyke arriving with the other circus elephants in Hawaii, it was like striking gold.
“We also needed to get copyright clearance on the home video footage of Tyke showing the moment she killed her trainer. It was all over YouTube but we couldn’t use it without tracking down the rights from the original owners. It’s incredibly powerful footage. In fact, when we used it in our original trailer some people said it told too much of the story and asked what more needed to be said. Of course, we believed that this footage was a way into a much larger story about our relationship with animals.”
Moore: “What also made the film possible were the eye witnesses and the people who knew Tyke during her lifetime although it was a massive amount of research going through court documents and newspaper clipping to track them down. It was also a huge challenge to break into the US circus industry. We had many doors slammed in our faces and saw firsthand how secretive this industry was.”
Susan: “In mid-2012 we invited Megan McMurchy on as co-producer. She has a set of skills we don’t necessarily have: including archival and music clearances.”
Moore: “Throughout her involvement in the project, Megan had a key creative role as well.”
Megan McMurchy: “Susan and I had dogs that were sisters and we always told each other that we would make a film together about animals. It was our promise to them.
“We set a budget of $50,000 for archival footage and came in just underneath that. There was months of begging. All the local Hawaii stations are affiliated with US broadcasters and it was murder negotiating with them for their Tyke footage. Some TV stations didn’t have the resources to help us and, given Tyke’s death was in 1994, most of the stations only had the news footage that went to air.
“We knew the home video footage up on YouTube had been filmed by a Japanese tourist called Tetsuya Niibori. Hiromi Matsuoka, a producer/researcher friend of ours who does a lot of liaising for Japanese film shoots based here, spent months tracking him down. She trawled social media, went through phone directories and eventually found six people of that name, and email addresses for four of them. I wrote a letter, she translated it into Japanese, the person we were looking for was the very last one we contacted. He sent a beautiful letter about how what happened still has an impact on him and he also revealed he had footage of the entire circus performance.”
Lambert: “We were well into the shoot when I heard they’d found him and I burst into tears of relief.”
“You have to have a blind and irrational belief in the value of what you’re doing.” Stefan Moore
The biggest funding slice came via Signature
Lambert: “We’ve got ahead of ourselves. In August 2012 we applied for production funding under Screen Australia’s then Signature Documentary Program and learned about a three-day residential Think Big Documentary Lab planned for November. One of the workshops was led by Simon Chinn, who produced Project Nim, which covered similar terrain to Tyke. It was perfect timing for us: we knew we had to get real about raising finance. We got shortlisted and rigorously interviewed. And accepted.”
Moore: “It was announced at Think Big that we had received a letter of interest from Screen Australia. The Signature Documentary Program no longer exists. We were one of the last to get in under the wire. Think Big and Signature acknowledged the potential of the long-form documentary as important festival films without the traditional broadcaster attachments.”
A letter of interest is a mechanism by which a producer can indicate to other potential financing partners that Screen Australia supports his or her project. For documentary, a letter of interest signifies that a favourable creative assessment has taken place but it is not a funding commitment because the finance plan is only speculative. It becomes a funding commitment when the producer returns to the agency with all his or her finance confirmed. This must occur within four months.
McMurchy: “From November on we sought finance from more than 70 international broadcasters, philanthropic foundations and organisations that have a particular interest in animal welfare and animal rights. The foundations included the Sundance Institute Documentary Fund, BRITDOC Foundation and Cinereach. The broadcasters included the BBC (via Storyville) and Channel 4 (UK), NHK (Japan), NDR (Germany), CBC (via The Passionate Eye, Canada) HBO and PBS (US), KBS (Korea), Discovery Asia and more. We pitched to a number of them during the Australian International Documentary Conference (February 2013), and also to distributors Flame and Off The Fence. We also pitched the project at Asian Side of the Doc in Kuala Lumpur (March 2013), assisted by a $5,000 travel grant from Screen NSW. It turned out to be months and months of fruitless work. So many leads came to nothing …”
Moore: “Except for a small health food business in Tasmania that gave us $5,000. They were on a list of about 30 people who had supported Voiceless. A lot of people we approached said ‘this is an incredible film, stay in touch’, but wouldn’t commit up front.”
The final budget was $463,750. Screen Australia contributed $210,000, Screen NSW contributed $45,000 and a further $83,750 came from PEP (the Producer Equity Program). These three sources amounted to 73% of the total. The rest was made up of the $5,000 private investment, an advance against international sales from ABC Commercial, and the producers investing their fees. These two amounts cannot be disclosed because ABC Commercial would not agree to the size of its advance being made public. The production finance from Screen Australia was a grant. Of Screen NSW’s contribution, $35,000 was a grant for production and $10,000 was development investment that the agency subsequently allowed to be converted into producers’ equity. (The $5,000 travel grant mentioned above was off budget.)
Lambert: “Screen NSW knocked us back before filming took place but when we applied at fine cut stage they came on board to help with post because of the strength of the film. That we had no marketplace finance was a sticking point for some but I believe the advance from ABC Commercial should be regarded as marketplace attachment. We have had a long relationship with the ABC and ABC Commercial. Most distributors are only putting up $10,000 these days.
“Our crew gave 150 per cent. There are wonderful people working in documentary.”
Tyke, Elephant Outlaw
The producers hold 100% equity
McMurchy: “When approaching Screen Australia, it is an advantage if the budget can be held below $500,000 because once your project is approved for production funding you can automatically access the Producer Equity Program (PEP), securing a further 20% of your budget. Also, Screen Australia production funding is provided as a grant if the agency’s total contribution is $500,000 or less, so we were able to combine the production grants from Screen Australia and the PEP with additional grant funding from Screen NSW plus invest our own fees to effectively hold 100% equity in the project. That way, if the film was successful, we could expect to get a return. And of course PEP is also simpler and easier to access and administer than the Producer Offset (PO).”
(PEP can be claimed on eligible projects with or without Screen Australia funding. It is paid in lieu of the PO and administered by the agency. To claim the PO, qualifying Australian production expenditure (QAPE) has to be $500,000 or more and there must be a guarantee from a distributor to release the film in public cinemas.
Lambert: “We couldn’t have made the film unless we invested our fees. I was able to invest with money earned from directing My Big Fat Bar Mitzvah and episodes of Outback Coroner for television …”
McMurchy: “I helped run the Enterprise Program at Screen Australia …”
Moore: “ … I’d worked at Screen NSW and did a project for another production company and used my savings.
“You have to have a blind and irrational belief in the value of what you’re doing. We all have a love of feature documentary. We didn’t have a lot of money and all dipped deeply into our bank accounts. We never talked about the film making money – and we are not going to get rich from Tyke – but we all felt intuitively that it would be successful on the level of appealing to audiences. The story is a metaphor about human behaviour that meant something to us. It was about us, as human animals.”
Lambert: “Stefan and I went to Hawaii in March 2014 to set up the shoot and follow up on as many of our archival deals as we could. Director of photography Simon Smith and sound recordist Graham Wyse came 10 days later. We filmed for three weeks, principally in Honolulu but also in and around Sarasota in Florida, including at Nokomis, at Watertown in Upstate New York and in New York City. Denise Haslem was the editor and Antony Partos was the composer and the edit ran from June to October. Final post-production at Definition Films went through until January. When we finished we were very proud of the film. We knew if people saw it, it would move them. But there’s a big difference between that and getting people to see it. We sent it to the Sundance Film Festival as a rough-cut …”
“We couldn’t have made the film unless we invested our fees.” Susan Lambert
Tyke, Elephant Outlaw
Festival hit rate high; sales buoyant
Moore: “Sundance is intensely competitive. More than 4,000 documentary films are submitted so we were not too disappointed that we were not accepted with a rough cut.”
Lambert: “Someone associated with Sundance sent it to the Sarasota Film Festival in Florida. Sarasota is the heart of the circus industry and they wanted the film to have its world premiere there. Screen Australia set up a strategy meeting for us with (US documentary programmer) Thom Powers. We particularly wanted to know if we should hold off on Sarasota because once a film has gone to a North American film festival, many A list festivals won’t take it. His advice was to say ‘yes’ to Sarasota. Talking to him was like having a cold shower. He said: one, you have to go to a festival that loves your film, will invite you along with the film, and program it well; two, you’ve got to have a story to sell that suits that festival; and three, festivals are now businesses that have to make money. It’s not about a cinema experience but about selling tickets by showing films that are flavour of the month. He also said our window of opportunity was five to eight months. You have to be very very lucky. Timing is everything. You have to have a subject that people really care about. People care about animals.
“Pro and anti-circus groups demonstrated outside the theatre at the second screening at Sarasota. From that point we had directors of festivals asking for the film. Sometimes they didn’t know we’d applied to their festivals. We approached 30 festivals and got into 15. Others approached us, which is the best way around.”
Moore: “A lot of unexpected things happen once you get onto the festival circuit. At the Sarasota Film Festival we were invited to the Portland Film Festival where we won best documentary. We got into Sheffield and, as a result, were approached to submit to the FOCAL (Federation of Audio Visual Libraries) International Awards. We were hoping for Tribeca but Tribeca passed us on to AFI DOCS in Washington DC which generated a lot of interest. And the Hawaii International Film Festival screenings were a huge success in other ways because it coincided with the debate over passing regulations that will make Hawaii the first US state to ban the use of wild performing animals in circuses.”
Lambert: “To capitalize on the growing interest in Tyke, we negotiated for marketing support through an increase in the production grant in June 2015. We travelled to all the festivals. Often festivals provide accommodation, other times we stayed with friends or in shitholes. Costs add up, including entry fees and couriers. We are going to apply to Austrade for an export market development grant. We wanted to crack the Sydney and Melbourne Film Festivals and a sale to the BBC’s Storyville and we did. Storyville was the first sale and it was broadcast under the title Circus Elephant Rampage.”
McMurchy: “As far as we know none of our sales have come directly from festivals, but it’s a feedback loop. It encourages our distributor to keep the film alive.”
Lambert: “It helped that we were featured on the cover of (documentary magazine) Realscreen as one of their ‘MIPTV 2015 picks’.”
Moore: “There are only a handful of documentary strands around the world including Storyville and CBC’s The Passionate Eye. Both bought Tyke. I was personally gratified by the Storyville sale because we worked hard to get a presale there. Of course, a presale would have been great because you generally get four or five times more for a presale than you do a sale.”
Lambert: “Filmmakers must understand they have to have a hand in the distribution process. You can’t just hand over the film, you have to follow up.”
Lambert: “Our ‘likes’ on Facebook have been rising by 100 a week since the Netflix sale. This was our first big foray into social media. We have a social media producer. We have our own dedicated website.
McMurchy: “We had to relinquish our desire to pursue a US broadcaster because of Netflix.”
Lambert: “The whole sales and rights business is very complicated now. One of the reasons Channel Nine came in so fast was because of the Netflix deal, which took effect on December 1, 2015. Dogwoof in the UK handled the sales to iTunes, Google Play and Amazon. They are transactional VOD deals or pay per title, whereas Netflix is subscription-based, so those two sales can live together.
“We had originally hoped that the film would get a limited theatrical release in Australia, however, we did not pursue this at any great length. Once Netflix and Channel Nine came on board we decided that the film would reach a far greater audience. We are very pleased with the film’s sales performance at this stage and are confident that we will eventually recoup our own investment.
“It was a relief to be able to make the film we wanted to make and we knew had an audience, without a commissioning editor breathing down our necks. Not since Landslides (1987) have I had that kind of freedom. The industry is mature enough to make films about somewhere else that resonate here and worldwide. If we were making another theatrical documentary, without Signature we’d have to get overseas money. Because of Tyke we have a film with an international profile – a calling card – though that doesn’t mean we could get the money. We’ve had films in festivals previously but not to this extent.”
ABC COMMERCIAL’S POINT OF VIEW
“We’ve had a very positive market response to Tyke: Elephant Outlaw, as demonstrated by the number of broadcasters who have been interested in screening it and the number of festivals it’s been accepted into,” says ABC Commercial’s Sharon Ramsay-Luck, head of sales and business development. “Ninety different broadcasters had a look at it although not everyone felt it was the right fit for the needs of the channel or platform.
“Netflix took worldwide rights to the feature-length version and believed enough in it to secure the premiere broadcast in the US. They are very selective about documentary. (In sales) you have to balance linear with SVOD (subscription video on demand) and with everything else. You have to work out the windowing of the release based on discussions with potential buyers. Demand from digital platforms like Netflix demonstrates the changing landscape and the growing value of digital deals. Normal windowing for our distribution activities in Australia is free to air, EST (electronic sell thru such as iTunes), DVD then SVOD and/or Pay. But internationally, SVOD is sometimes the premiere platform and can often, potentially, deliver the widest audience.”
As mentioned above, the feature-length version has sold to Storyville and The Passionate Eye.
“(The shorter version of) Tyke has been sold to free to air in a number of individual territories in Europe and there’s also been a pan European sale to the Sundance Channel. As an exception to our standard approach, we sub-licensed DVD and EST rights for the US, UK and Canada to UK-based Dogwoof to enable direct promotion of Tyke to the database they’ve built with similar subject matter releases, such as Blackfish.
“One of the reasons we’ve had such global success with Tyke is because it’s a global story involving elephants, circuses, animals in captivity and an American anchor to what happened. It’s not an Australian story but it’s a story that resonates with audiences worldwide.”
SCREEN AUSTRALIA’S POINT OF VIEW
Screen Australia provides direct funding for documentary via a number of pathways. Feature-length projects intended for festival and theatrical audiences currently fall under the Producer Program. Under this program it is possible to apply for funding for projects intended for digital, transmedia and broadcast audiences too – although there is also a Broadcast Program. Those who pass the two-step application process get a letter of interest.
Liz Stevens, senior manager of documentary, says tracking what’s happening in the Producer Program at the moment the agency is likely to spend more on theatrical/festival documentaries in the current financial year under the Producer Program than was spent in any year the Signature Program operated.
She classifies theatrical documentaries as having an Australian distributor attached, a plan for a release in cinemas nationwide at a particular date on a certain number of screens, and a publicity and advertising budget. Festival documentaries are aimed at the worldwide festival circuit in the first instance, and they don’t necessarily get an Australian cinema release but sometimes “break out into that space” after a successful festival life. Stevens says that, to be suitable for the big screen, documentaries need to deliver a satisfying experience for the audience in the same way fiction does. Films such as Tyke achieve this and do their part in building an appetite for big screen documentaries.
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