FILMMAKERS: Beware of former Independent Film Channel Buyer Kelly Devine! (*now with the Global Peace Film Festival)

Update September 15, 2016: Just going through old blog posts and have noticed this one; unfortunately, it still remains unresolved, so am leaving it as is until it may eventually be addressed, i.e., we get a customary kill fee for the deal that Kelly Devine, formerly of IFC Films, reneged on some time ago and ran out on.

Apparently (and ironically?) she's now working with a film festival in Orlando called the 'Global Peace Film Festival'. One sure way to promote global peace, I would suggest first and foremost, is not to break written agreements with filmmakers whose livelihoods are affected by damaging, tortious issues like this.

The kill fee for this deal, which I originally requested shortly after the incident occurred back in 2005, and which still remains unresolved, would not be a huge amount. The kill fee would be 10% of the agreed licensing total for our movie, 'BookWars' - thus $3500, without interest accumulated since that time.

In any case, a kill fee remains the industry standard, and is generally most reasonable way to resolve a situation like this, wherein one party (Kelly) renegs on, or withdraws from, a written agreement after deliverables and tax forms had been provided, etc.

All these items remain available and archived in email format in any case.

Besides that, the sum would buy a lot of bicycles for poor kids here in Cambodia and elsewhere in the region where I've been working since then. (*Standard bicycle $35-$45 a pop = 75 to 100 bicycles, if those funds were applied solely to bicycles for poor kids) Or, alternatively, inexpensive laptops for needy kids.

Here's a brother and sister from a poor family in Cambodia who I helped out with a new, inexpensive Acer laptop. The money would have come in handy here as well, helping to promote computer literacy and education for disadvantaged kids like Hung and Hui, below.

I reckon I could have bought 10 laptops with the kill fee money that Kelly still owes; see the benefit of even one laptop, below, which I paid for out of pocket:

 

Alternately, we probably could have renovated this entire makeshift classroom where I worked as a volunteer English teacher for orphans and street kids in Phnom Penh (with new books for all the kids):

 

Notably, since Kelly Devine reneged on her agreement, without a peep from her since her unlawful act, it has since also been definitively proven that her core justification (aka, "falsehood" or "lie") for breaking the deal - that the master tapes were not technically acceptable - is not at all valid.

Specifically, those exact same HD masters were deemed acceptable by the very finicky Apple iTunes platform, which drew their content from that same same source master for the sale of 'BookWars' on the iTunes platform.

It's a shame that Kelly would lie about all that stuff and in the process put the otherwise reputable and quality driven IFC (Independent Film Channel) on the spot through her actions. But, I would assume that's why she's no longer working with IFC...

Anyway, for transparency's sake, the original blog post appears below

====================

Anyway, just chipping away here, as mentioned finally loaded about half the footage onto one monster hard drive, will load the other half shortly. Problem is, some of the footage was loaded (don't know why) at 32K audio sample rates, the rest at 48K.

Since Final Cut Pro can't deal with this, I'm re-exporting about 100 1 gigabyte clips at the higher 48K sample rate to make them all consistent. read: slow, tedious, but necessary.

Actually, not so tedious, but slow, as my laptop is like a creaking veteran who lives down by the train tracks, in an old room by the abandoned quarry.

Anyway, as the title of this entry mentions: did some outreach to Kelly Devine, the buyer from IFC (Independent Film Channel), part of media giant Rainbow Media, who renegged on her word last October and screwed me over in the aforementioned HD Cinema 10 deal. (see previous blog entry)

The I realize recently after some consultation that, since she asked for the W9 which I signed, and the master, which I sent and was received, I am rightful in requesting a kill fee for my time and trouble for that deal.

Yet, amazingly, Kelly has changed her story again as she refers my request to the legal department at Rainbow Media. Unable to admit an error that may have cause me some hardship, she first:

1) said she renegged because we were both "too hesitant" in moving forward with the deal

which later changed to...

2) the actual reason for the withdrawl of the deal was that rainbow Media's HD Cinema 10 unit had shifted its prirotities and was unable to purchase my doc after all

Now, after receiving my email (see below) requesting the reasonable and rightful kill fee, she now announces -- many months later, for the FIRST TIME -- that the "actual" reason the deal was ended was because my Master was deemed unsuitable for an HD Transfer.

Wow. Is it any coincidence that she mentions this as a reason for termination of the deal, when withdrawl of a deal arbitrarily -- ie, without any technical reason -- would reasonably result in a kill fee payable to the title's owner (moi)?

This is all the more astonishing, given that Rainbow Media's IFC (Independent Film Channel) unit claims to derive so much value from independent filmmakers "who take risks".

Well, this independent filmmaker took a risk with HD Cinema 10 a while back -- and got screwed over!

See, I spent money I would have otherwise delayed spending developing my third freature, Pat and Lloyd's Final Countdown, based on Kelly's definite word that the deal was on. Here's how the conversation went:

"Yep, it's on. It's a deal."
"So it's definite?"
"Yep, it's definite."

Is that ambiguous? I can't see how things could have been stated any more clearly from either side.


Anyway, as a result of the gap in my cash flow when the deal was pulled, I not only had to turn off my cell phone but I also had to LIVE OUT OF MY CAR while waiting for a room to open up in New Mexico.

And not even an apology, let alone any means of compensating me for my troubles suffered in good faith...nice one, Kelly.

Read below to check out our latest correspondence. And filmmakers/producers: draw your own conclusions from my experiences when dealing with this particular buyer!


======>>>

On Tue, 07 Jun 2005 09:51:01 -0400
 "Kelly DeVine" wrote:
> Repectfully, Jason, I will refer this matter to our legal
> deparment for their consideration. We did not enter into
> a contract and the master was not adequate for the
> purposes of HD transfers.*

*[Filmmaker note: this is the first time EVER that this new explanation is offered, coming out of the blue after I notified her that one reason I was seeking the kill fee was because the deal was terminated for non-technical reasons. Hmmmm...how's that for a way to do business?]
>
> Please refer all future queries to Rainbow Legal.
>
> With kind regards,
> Kelly
>

Kelly--

Thanks, if you can get me their email, that would be
appreciated.

Please note this is the first time you have mentioned
anything about the Master being inadequate for the HD
transfer.

Prior to this, the reason(s) given for withdrawing the deal
were, from your perspective.

1) we were both being "too hesitant"

which later became

2) [paraphrasing] that the buying unit had been forced to
make financial adjustments and was no longer able to
acquire the title after all.

which is now --

3) the master was inadequate.


Kelly, no matter how you slice it, I was screwed over and I
think you know this. If you have reframed this incident
somehow to yourself, to convince yourself that when you
said to me "it's a deal, it's definite", that you were
speaking with all the aforementioned qualifications...then
you are far more skillful in conscience-tweaking than I am.

Anyway, more power to you if you can rationalize your
position so adroitly, but what went down was simply not
right, not ethical, and I have to let you know this.

And I want to be compensated for my troubles now that I
have been advised that I have always been entitled to seek
a reasonable kill fee.

I had to give up my phone, I had to live out of my car,
because of expenditures I made (which I otherwise would not
have) based on your emphatic, definite word. Did you know
this? Does this trouble you? Will you please consider
this next time you make an offer to an independent
producer? I know it may be a hassle, but I'm one of the
folks who "takes the risks', which is what Rainbow's IFC
unit celebrates in its stated mandate.

Anyway, this is all solid blog material in the end. I'd
just like to be compensated for my rightful troubles--I
don't see why you have to distort things so severely to
deflect any responsibility from HD Cinema 10...

Regards,

Jason

On Mon, 06 Jun 2005 16:10:25 -0400
 "Kelly DeVine" wrote:
> Dear Jason,
>
> I hope this finds you well. I will forward this email to
> our legal department as this is a matter for their
> consideration.
>
> I would remind you that you had informed me verbally that
> you were still shopping the title to others and that you
> expressed to me that you would not be able to provide all
> the documentation required for our due diligence review.
>
> I would also remind you that the proposal letter I had
> sent you was non-binding and implied no contract. There
> was a notice on the proposal letter itself and several
> emails sent to you regarding the status of the proposal.
> I will provide it again for your records:
>
>
*******************************************************************
> Please be advised that all terms are subject to the
> approval of Rainbow Media Holding's Legal and Business
> Affairs Department and the management of Rainbow Media
> Holdings. This letter of proposal is not and should not
> be construed as a contract or an offer to enter into a
> contract.
>
*******************************************************************
>
> I trust that you are busy working on new projects and
> wish you every success with them.
>
> Best,
> Kelly

Kelly--

Thanks for the reply. Very important we get all the facts
straight --again--and I hope you can forward this as well
to any relevant department:

1) I did indicate that I would have no choice but to put
the title back on the market if there were no concrete
development regarding progression of the paper work, this
being well after the Oct 18th date for conclusion of the
deal which you'd outlined (and which had well come and
gone)

2) I asked (asked, with all due qualification) if, since
your sister station Metrochannels required no due
diligence, as was the case with their acquistion of
BookWars, if HD Cinema 10 would also be able to make an
adjustment along these lines -- since I was logistically
very far afield, outside of the country.

While I have all due diligence along with other elements in
New York, and could have retrieved them upon my scheduled
return, to make a special trip back for this purpose would
have required a return trip at my additional expense, which
I was willing to sustain; however, since the Oct deadline
had come and gone, things seemed to be uncertain and I did
not know if I should place further faith in the deal or
not. (now we know this was a wise move)

Again, let's bear in mind the difficulties the withdrawn
deal caused to my filmmaking activities, especially
considering the fact that the W9 was signed and submitted
and the Master was sent and received as per your request.
 As you know, I considered giving up filmmaking because of
that incident (to focus on music and other pursuits)

If this request for a master does not support the fact that
an authentic offer had been made, then I don't know what
does...

Sincerely,

Jason

>
> >>> JR 06/05/05 2:35 AM >>>
> Kelly--
>
> Hi, this is Jason Rosette, the filmmaker who made the
> movie
> "BookWars", the title for which an offer was withdrawn
> last
> year for non-technical reasons.
>
> Anyway, I've recently been advised to seek a kill fee for
> that deal, something which I had felt to be appropriate
> but
> I had not been properly advised at the time and so I had
> not stated this in a formal fashion.
>
> Again, please recall that the deal was withdrawn not for
> technical reasons, but because the buying unit had
> realigned its priorities after the deal--and after
> receipt
> of the W9 and master.
>
> I am, accordingly, requesting compensation in the amount
> of
> 10% of the proposed overall deal, that percentage being
> $2500.
>
> Please forward this message to the relevant
> department(s).
> I have already submitted a letter to Mr. Sapan and an
> invoice to the accounting department, but it's
> conceivable
> that neither has been received.
>
> Please note that the withdrawl of that deal for
> non-technical reasons caused severe documentable
> hardships,
> due to the fact that --inspired by IFC's mandate
> supporting
> filmmakers who "take risks" -- I'd taken a risk and put
> very limited discretionary money in that approximate
> amount
> towards developing my third feature film, based on the
> presumed solidity of your emphatic verbal agreement and
> submission of master and W9, etc.
>
> (several filmmakers and associates can attest to the
> hardships this caused: the loss of my mobile phone; the
> loss of adequate housing which forced me to have to sleep
> in my car during the consequent gap in my cash flow, etc)
>
> I am only now able to make contact in this fashion
> because
> I have only just been formally advised that a kill fee
> for
> that deal is not only appropriate and reasonable, but it
> would help to alleviate the damage caused by that
> withdrawn
> deal.
>
> Moreover, anyone who asks me about that deal would from
> this point on receive a positive/neutral feedback, versus
> a
> negative one. (if this matters or not, I don't know)
>
> Thanks for your understanding and cooperation. If you
> are
> unable to assist, please refer me to the appropriate
> legal
> and accounting departments who I can contact directly.
>
> Sincerely,
>
> Jason Rosette
> Independent Filmmaker
> CAMERADO
> www.camerado.com
>
>
> From: JR
> Subject: Re: J Rosette W9 (E&O UPdate)
> Date: Wed, 10 Nov 2004 07:44:35 -0800
> To: "Kelly DeVine"
> Kelly--
>
> Yes; if I gave you my word that the title was yours and
> that I was entering into an agreement in good faith, and
> barring any sudden impasse or change in interest by HD10,
> I
> would have been ethically bound not only to do everything
> in my power to conclude the sale (as I had done, even
> including communications which may have been "too-open",
> but in the spirit of being on the up and up) but also to
> reimburse HD10's costs if I'd bailed from the sale for
> some
> arbitrary reason.
>
> But, I didn't bail from the sale for an arbitrary reason,
> so that's a non-issue.
>
> You mentioned after our phone conversation, some time
> later
> when the documentray unit must have been dissolving, that
> the sale could end at any time. However, when we spoke in
> person on the phone, you told me it "was a deal", and I
> actually asked you again to confirm and you said "yes".
>
> Now, I understand that the nature of doing business
> necessarily involves paperwork. But the facts remain
> unchanged. Please note these are not critiques, they are
> facts meant to illumate my position, whether or not
> anything can be done about it at this time:
>
> 1) I took you at your emphatic and plainly stated word,
> which I felt to be good, and which was not qualified at
> the
> time by any conditions other than to say the formal
> paperwork would follow (these conditions followed later)
>
> 2) All previous buyers I've dealt with similarly gave me
> their verbal agreement, which I also took to be good,
> which
> then interfaced with the natural paperwork to follow, and
> so this can be considered to be standard.
>
> 3) Assuming your verbal word was good, and that the deal
> would go forth as described and specified, I made a
> decision to exploit the sale by reallocating my (very
> limited) discretioary funds. And initially at least, when
> things seemed to be on track, I notified other interested
> in the picture that there was a deal with HD10 underway,
> and which hinged on your verbal agreement which was
> unqualified at the time
>
> 4) In the end, I ended up in a weaker financial position
> by
> entertaining a deal with HD10 via yourself as buyer.
> There's no question I would not have operated differntly
> if you had not given me an unqualified verbal agreement,
> asked for the W9, the master, in short, all items that
> would inicate the deal was real, solid, and to be relied
> upon barring any impasse.
>
> Again, the issue whether anyone's right or wrong; I just
> think that, barring anything uncorrectable in a deal that
> is underway, it's not ethical to make an agreement in any
> unqualified form in that there may be real financial
> consequences.
>
> Whether this is good business, or is avoidable, or is
> constructive is obviously debateable depending on one's
> perspective.
>
> And, in the case of the small filmamker producer, the
> effects are magnified by a relatively lesser level of
> capitalization with which they operate.
>
> Anyway, please, please try to thoroughly qualify your
> verbal agreements in the future if a situation like this
> should arise again with another filmmaker / producer. It
> would be all the more useful right up front at the very
> first verbal agreement that it were all stated as
> tentative
> and not solid until every last ioata of paperwork and QC
> were finalized --on both sides.
>
> Anyway, this is why I feel the way I do. Bottom line is,
> I
> suffered financially by placing faith in this deal.
>
> Sincerely,
>
> Jason

On Tue, 07 Jun 2005 09:51:01 -0400
 "Kelly DeVine" wrote:
> Repectfully, Jason, I will refer this matter to our legal
> deparment for their consideration. We did not enter into
> a contract and the master was not adequate for the
> purposes of HD transfers.
>
> Please refer all future queries to Rainbow Legal.
>
> With kind regards,
> Kelly
>
> >>> JR 06/06/05 6:55 PM >>>
> Kelly--
>
> Thanks for the reply. Very important we get all the
> facts
> straight --again--and I hope you can forward this as well
> to any relevant department:
>
> 1) I did indicate that I would have no choice but to put
> the title back on the market if there were no concrete
> development regarding progression of the paper work, this
> being well after the Oct 18th date for conclusion of the
> deal which you'd outlined (and which had well come and
> gone)
>
> 2) I asked (asked, with all due qualification) if, since
> your sister station Metrochannels required no due
> diligence, as was the case with their acquistion of
> BookWars, if HD Cinema 10 would also be able to make an
> adjustment along these lines -- since I was logistically
> very far afield, outside of the country.
>
> While I have all due diligence along with other elements
> in
> New York, and could have retrieved them upon my scheduled
> return, to make a special trip back for this purpose
> would
> have required a return trip at my additional expense,
> which
> I was willing to sustain; however, since the Oct deadline
> had come and gone, things seemed to be uncertain and I
> did
> not know if I should place further faith in the deal or
> not. (now we know this was a wise move)
>
> Again, let's bear in mind the difficulties the withdrawn
> deal caused to my filmmaking activities, especially
> considering the fact that the W9 was signed and submitted
> and the Master was sent and received as per your request.
> As you know, I considered giving up filmmaking because
> of
> that incident (to focus on music and other pursuits)
>
> If this request for a master does not support the fact
> that
> an authentic offer had been made, then I don't know what
> does...
>
> Sincerely,
>
> Jason
>
>