Showbiz Thailand – The film producer
#Blockbuster #Update: In the first quarter of 2018, 224 international films have been shot in #Thailand, resulting in earnings of THB 739 million. Main producer countries are #India, #Germany, and #China. (Whole 2017: 810/THB 3 B)
— PUGNATORIUS Ltd. (@bangkoklawyer) May 3, 2018
This post provides a rough overview of the legal and regulatory environment for foreign film producers to use Thailand as the location for movies, reportages, and coverages, music videos, etc. The shooting of the movie should be the most exciting part of the filmmaking experience in Thailand. In reality, this is not always the case.
Blockbuster in Bangkok
Located in the heart of South-East Asia and as a gateway to Indochina, Myanmar and Southern China, the Land of Smile offers beautiful and attractive landscapes, exotic rainforests and beach paradises. The availability of quality equipment, studios, and experienced film crews, combined with an excellent public infrastructure results in an overall package which is unrivaled by the neighboring countries. Thailand has everything.
Well-established Bangkok-based film production companies include A Grand Elephant Production, Benetone Films, Big Blue Production, Dir4Films, Greenlight Films, Indigo Asia Production, Lime Production, Rubber Knife Productions, Siam Movies and TAPROD. Recently GMM Grammy (GMM Tai Hub, Hub Ho Hin) founded GDH 559 as one of the biggest players in Thailand’s film producer market. Much more can be found on the website of the Thailand Film Office (TFO). A broad scope of locations services, film equipment, and camera rental companies, post-production companies and film crews are available.
Thailand is traditionally the preferred location for Japanese and Indian film productions. However, it gains importance for Chinese and Korean movie makers, while the USA and Australia seem to lose interest. In the last years, Thailand earned annually US$ 60 million from over 500 foreign film production teams shooting in the land of smile. Famous film shots in Thailand are episodes of Rambo and James Bond 007. Other examples are The Lady (2012), The Hangover Part II (2011), Bangkok Dangerous (2008), American Gangster (2007), Star War: Episode III Revenge of the Sith (2005), Bridget Jones, Around the World in 80 Days (2004), The Beach (2000) and Mortal Combat (1997, 1995). However, the list of movie productions which had not been accomplished in Thailand due to various reasons is not publicly available.
Screen credits for the local Thai production company
Local production companies offer international producers a broad scope of services with virtually any aspect, based on “vast experience in the nuts and bolts of filmmaking in Thailand.” This includes the film licensing, location permits and visa/work permits. On their website, these legal services seem to be easily and quickly available. Other film production support services include art equipment including cameras and lighting, talent scouting, casting, wardrobe, makeup, accommodation, transportation and other movement logistics, production crew, post-production and final accounting. “We can provide everything you want to make your TV commercial, feature film, music video, documentary, and TV program.”
Despite the glossy websites, the contractual arrangements show a different picture of lopsided clauses made for the uninformed movie enthusiast, not for well-balanced fair play. The vague text leaves a tremendous leeway for interpretations. Various provisions give the local producer an exit route if things do not develop as expected. In the end, a “best efforts approach” is not good enough for an international film production. As a result, there is the need to discuss and negotiate the whole contractual framework.
Although the overall service offers seem to be same same, the contracts disclose different risk profiles and allocation of tasks and responsibilities. The selection of the local film producer should base on a careful comparison of their offer documents and not only by their friendliness, market reputation, and showcases. One of the aspects is, whether legal obligations can be successfully enforced and whether the insurance covers the risks involved even under a worst case scenario.
A contractual aspect of utmost importance is the allocation of all and any intellectual property newly created through the film production. If the foreign principal is not familiar with the laws of Thailand, he will easily accept a disadvantageous IP clause, hidden in the voluminous document files. This includes the final rights on the master film reels. Negotiation is strongly advisable.
There are other aspects where the conflict of interest becomes more apparent: Which phase of the movie production – development, pre-production, physical production, post-production – could be done in a more economical location and how could this impact financing, incentives, and other aspects? The foreign parties will not like to discuss this only with the own lawyers of the Thai production company.
Permits: The license to film in Thailand
Filming is governed by the Thailand National Film and Video Act. Proper authorities are the Thailand Film Office and/or the One Stop Service Center or another office listed here. A film permit has to be applied, and the film’s script has to be attached to the application form. The government will review, above other aspects, whether the script offends country’s national institutions, religions or customs and culture. After the film permits have been granted, a so-called “monitoring officer” will follow the crew each step whether the production remains in-line with this.
The government might not accept the scripts and, therefore, deny the filming permit. The monitoring officer might disagree with any necessary variation of the script and bring the whole process to a sudden stop. In the post-production phase, or even after the movie is shown in the cinemas, a non-compliance might be claimed. Special filming permit exemptions for news, specific events or semi-private film projects might as a late surprise not be applicable, although the authorities showed a blind eye on this before.
Location permits have to be applied from the Department of Natural Parks, Wildlife and Plant Conservation if the shooting locations are beaches, forests or conservation areas, or by the Fine Arts Department, if shooting locations are national heritage places. Location permit from local authorities might be required when the shooting affects the public use of such properties and locations, or is vast in nature, regarding crew, equipment, and vehicles. Public streets, bridges, and parks may in certain cases not require permission. For privately owned properties and locations, a location release is always required.
On equipment brought from abroad, an “A.T.A. Carnet” document is required to avoid customs duties and taxes when the equipment is re-exported.
Visa and work permits are required for any foreigner working in Thailand. However, there are exceptions, above all for foreign filmmakers coming to Thailand for shooting film for a period of 15 days or less.
Starting January 2017, foreign film productions qualify for film incentives after they obtained the necessary film permit from the Thailand Film Office for filming in Thailand. Eligible criteria are local spending in Thailand of more than THB 50 million, which must be spent in Thailand on Thai registered businesses and other Thai services and individuals. TV commercials are not eligible for this incentive program.
The main incentive is 15%, based on above eligibility criteria. Additional incentives are 3% for hire of Thai key personnel and 2% for the promotion of Thai tourism. The maximum rebate available through incentives amounts to THB 75 million per film project.
The consideration period is promised to be 90 days or less after a proper application has been filed. Payment shall be made within 60 days after the final announcement.
Risk assessments and compliance requirements
It is an open secret that Thailand’s film producers work very close together with local authorities, even closer than it should be acceptable for some international film project. A foreign TV project might release a film about Thailand’s successful fight against corruption without noticing that the application for the film permits base on exactly this issue.
Caught in action without the required licenses results in a confiscation of films and equipment and draconic fines. A wrongly advised IP strategy might open the door for interim injunctions from an unexpected direction. The international film producer should carefully consider, whether he wants to accept the Thai standards and compliance policies. The legal advice provided by the local film producer is highly speed and success-oriented. This might not be a reasonable approach for all film projects.
When it comes to film productions, Thailand’s laws are not black and white. There are lots of legal issues involved in a film production which needs the independent advice of a legal expert who is not under the control of the local film production team. Which clauses in a Thai film director agreement does the local film production company try to avoid? In which cases allow Thailand’s laws to withdraw and terminate a photo release agreement for video or film productions? When can a location release be revoked? Under which conditions can a film permit be void? How would the courts of Thailand decide, if an actor objects to a modification of a film script? How does the “work made for hire” principle work in Thailand? What are the local particularities of a film footage release? What are the legal and tax consequences of copyright assignment in comparison to copyright licensing? How far are sequels, stage versions, novelizations and derivative works protected under Thailand’s IP case-laws? To listen to a second legal opinion seems not to be an overanxious behavior.
As mentioned in a publication of the governmental Thailand Film Office: “Any distributor will require a clear chain of title and comprehensive releases. If you ignore this, you can end up with a finished film, which however great, cannot be distributed because you cannot satisfy the legal requirements.”
PUGNATORIUS Ltd. is a Bangkok-headquartered specialist provider of bespoke transactional legal and tax advice in the corporate and property legal and taxation industry sectors. The law firm advises and supports foreign film productions in Thailand. More at pugnatorius.com/category/showbiz