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 UK film project that collapsed shortly before filming was to start. By October of that year, A Patriot’s American bridge lender (the Bridge Lender) sought return of Green’s US$1,000,000 pay-or-play fee, leading to a recent decision in London’s High Court of Justice.1i
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 US$1,000,000 fee, as “truly mad” and a “f**king nightmare.”
Green, who attributed her strong feelings, at least in part, to her “Frenchness,” claimed 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, causing the Project’s collapse.
Case Study
Did the High Court of Justice:
1. ———-Allow Green to keep the US$1,000,000 fee, or order her to return it?
2.———-Accept Green’s “Frenchness” as a justification?
3.———-Apply, explicitly or implicitly, the “Law Of Failed Projects”?
For answers to these questions, including an explanation of the “Law Of Failed Projects,” keep reading.
The Law Of Failed Projects
When a judge applies “the law,” we usually think of Contract Law, Tort Law, Constitutional Law, and the like. But there are other kinds of “capital L” laws too. Think of 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
Step 6 – Search for the Guilty.
Spectacular Fails
Although I haven’t (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 A Patriot.
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 US$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 US$2.5 million, plus another US$1.2 million from a UK broadcaster. While for some US$10 million film projects, US$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 (x) the downbeat futuristic genre of the Project, (y) the limited track record of the initial creative team (the Originating Filmmakers), (z) the casting of the glamorous Green as a dystopian warrior, or (zz) 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, an LA-based financier, came to the rescue, or at least seemed to, extending a bridge loan which funded Green’s US$1,000,000 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 UK co-productions like A Patriot.
Two Finance Plans
Providing a potential exit for Sherborne as Bridge Lender were two possible longer term finance plans. One was a Belgian co- production, with Chinese pre-sales, in support of a Project budget of nearly US$6.9 million. The other was an Irish co-production which, with the exclusion of China pre-sales, could support a budget of only US$5.3 million.
Of course, both budgets were significantly below the original US$10 million budget target for the Project. But 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 US$1,000,000 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 wasn’t 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. And on the official start date set by the Bridge Lender, pre-production simply didn’t 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 Green’s explanation that “the language she used and the feelings she expressed [. . .] were down 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
So, returning to the questions posed at the outset:
1.——Did the High Court allow Green to keep the US$1,000,000 fee, or order her to return it?
–
——–Yes, the Court ruled she could keep the fee.
2.——Did the High Court accept Green’s “Frenchness” as justification for her strong words?
–
——–No, the Court found this justification wasn’t “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’s 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.
Or, in my terminology, he blamed it on the Law Of Failed Projects!
What This Means For You
If you’re a bridge lender: Before you exercise a takeover right, make sure you have a takeover plan. (Hint: Consult an experienced business affairs lawyer at the planning stage.)
Everyone else: Count to 100 before you hit “send”. . .
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- Green v White Lantern Film (Britannica) Ltd, [2023] EWHC 930 (Ch) ↩︎
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Ezra Doner 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.
donerlaw.com 