ClandesTime 155 – Production Assistance Agreements or How the Pentagon Broke the Rules for Transformers

Most government agencies sign contracts with Hollywood producers when they agree to provide support on a film or TV show. These are called Production Assistance Agreements, and set out the legal terms of the partnership between the government and the production company. In this episode I explore these contracts, how long they’ve been in effect, and the powers they grant to both parties. I use this as a basis for a case study of how the Pentagon has repeatedly broken the rules when it comes to the Transformers films.

Transcript

A Brief History of Production Assistance Agreements

I have been gathering copies of these Production Assistance Agreements for several years, both through my own FOIAs and occasionally through other people’s too. The majority of them are from the Pentagon but the Foreign Office, NASA, the DEA and the DHS all sign similar contracts, though it appears the CIA does not. In all cases they contain a lot of legalese about insurance and liability and other stuff that doesn’t interest me.

The important part, which will make up most of what we look at today, is that they bind the producers to a certain version of the script, or to the government department having effective control and approval over the final edit. However before we get into all that, there is one paragraph that is standard in all Pentagon agreements which always makes me smile. It says that employees of the production company are obliged to: ‘Not carry onto DoD property any non-prescription narcotic, hallucinogenic, or other controlled substance; or alcoholic beverage without prior coordination with the DoD Project Officer or his or her designee.’ Presumably this means that with prior coordination you can bring as much alcohol, narcotics and hallucinogens as you like. I did actually send emails to several military public affairs people asking if this is what the contract means, but they never replied.

Someone who did reply, after two and half years and after I filed a FOIA appeal, was the US Navy. Back in early 2016 I sent a request to them for liaison office reports, script notes and production assistance agreements. They delayed, ignored my followups, forced me to file three separate appeals just to do with this one request and generally have done everything they can to avoid releasing this information. With the entertainment liaison office reports they found over 800 pages, but initially said they couldn’t release any of it. As you know, I forced them to turn over all 800 pages with fairly minimal redactions.

When it came to script notes and production assistance agreements they basically denied having any, saying that CHINFO – the office of the Chief of Navy Information – did not keep copies. I proved that they did, because the Navy had previously released a handful in response to FOIA requests. Eventually they conceded the point and after delaying several months by having the Navy and the DOD review the documents before releasing them, I got over 550 pages, nearly 100 contracts.

So, how long has this been going on? The earliest Production Assistance Agreement I have actually seen for myself is from 1997, for the film Tomorrow Never Dies. From what I’ve been able to look at from the Georgetown archive that Matt visited the files there don’t include the contracts, and possibly never did. The files he copied mostly cover the 70s, 80s and early 90s, and while they include plenty of information on script changes they don’t include these agreements.

To try to answer this question I also looked at the Pentagon’s directives on assistance to entertainment media – the military doctrine governing these operations. I’ve got copies of these directives from 1955, 1964, 1988 and 2015, which is the most recent iteration. Formal script reviews aren’t mentioned until the 1964 version, which is probably because the MPAA and Production Code Administration held a lot of power until the early 60s, so they could lean on film-makers on behalf of the Pentagon if it was deemed necessary. But the 1964 directive doesn’t mention signing any agreement of any kind. The 1988 version, the next time it was updated, only talks about reimbursement agreements and hold harmless agreements. It does detail more or less the same script review process, but there is no mention of having the producers sign a production assistance agreement.

The 2015 version of the same directive does explicitly talk about Production Assistance Agreements and even includes a sample agreement. This tells me that some time between 1988, when they updated the directive but didn’t mention these agreements, and 1997 when they were definitely using them, they changed the policy. Why then? I can only assume that during the Cold War film-makers were more compliant and acceded to the Pentagon’s wishes, or just went and did their own thing. After the Cold War ended they maybe felt a little freer to push back against the Pentagon’s demands so the DOD responded by implementing contracts that granted them a lot of control.

How Production Assistance Agreements Grant the Government Script Control

Why does this matter? Because these contracts grant the government control over the script. The way it works is the film-maker goes to the DOD and asks for help. They have to provide the military with five copies of the screenplay, or their story outlines, storyboards, treatments – whatever they have that outlines the content of the production. This is then reviewed, line by line, and feedback is given either over the phone or in meetings, sometimes through actual script notes just like a studio executive gives a screenwriter.

Once you make changes and your script meets with the approval of Phil Strub and the rest of them, you sign the contract binding you to that version of the script. Any subsequent changes to dialogue or action have to be sent up the chain of command for approval, which means film-makers are quite limited in terms of improvising on set or making changes during production. This is one of the main reasons why so many Pentagon-supported movies are a bit dull and by-the-books, the contract doesn’t allow for much creativity once the ink is dry.

For example, on Tomorrow Never Dies the Pentagon removed a line during the scene where Bond is about to jump out of a plane and they realise he’s going to land in Vietnamese waters. In the original script Jack Wade says ‘you know what will happen don’t you? It’ll be war, and maybe this time we’ll win’. This line was removed because the DOD are still a bit sensitive about losing the Vietnam war.

The Production Assistance Agreement reflects this, saying:

DOD approved military assistance as in the best interest of the DOD, based on the Feb 19, 1997 version of the script and subsequent changes to scenes 248B, 248C and 248D which were faxed to the project officer by the production company 26 March 1997. The production company must obtain, in advance, concurrence from DOD for any subsequent changes to the military depictions made to either the picture or the sound portions of the production before it is exhibited to the public.

This makes things tricky when the script is still being developed as the film is being made, which is what happened on Iron Man. The wording of the agreement had to be changed to accommodate this:

The DOD has approved military assistance as in the best interest of the DoD based on the 02/20/07 version of the script (“DoD—Approved Screenplay”). The DoD acknowledges and agrees that. provided that the Picture substantially conforms to the DoD-approved screenplay with respect to the portrayal of the miiitary, the Picture shall be deemed in compliance with this Paragraph 3.

The problem is that when there’s a disagreement over a subsequent change to the film, the military can just walk away. In the middle of a $200 million production they can just wash their hands of any responsibility. So there’s a lot at stake, much more for the film’s producers than for the DOD.

The Pentagon’s defence of their position is that if there is a disagreement over the content – either in pre-production or during production, or even in post-production – that the producers are free to walk away and do whatever they like. Obviously, this is most important while the film is actually being made, because a breakdown in the relationship could mess up the entire filming schedule and cost a lot of money to reorganise. But it also applies in post-production, the Pentagon has been known to remove all the footage they helped to create if the final edit of a documentary had a different spin to the one they wanted. Likewise, they can withdraw all promotional support if there is a disagreement over the final cut of the film, which can seriously harm a film’s profile.

To be fair, the standard language in most of these contracts does say this. On Iron Man 2 the agreement says:

In the event of disagreement with respect to any of the foregoing changes, the production company’s decisions with respect to such changes, if any, shall be final and binding (…) in the event of a disagreement, the DoD may elect to terminate any future assistance to the production company or its parent companies, in connection with IRON MAN 2.

So the producers know what they’re signing up for, i.e. that if you want a smooth relationship with the DOD you basically have to do what they say and get permission for everything.

Some contracts are different. On Man of Steel the Pentagon rewrote the script over several versions, I even have some of the script notes and emails about this where Strub admitted he was refusing them access to some things until they got the script to a place he was happy with. The contract the DOD signed with the makers of Man of Steel contains the usual bit about it being approved based on a specific version of the script, but the section about what happens in case of disagreements is not there. I assume this is because by that point the DOD had beaten them into submission and didn’t have to worry about disagreements during production.

Transformers’ Special Relationship with the Pentagon

I’m sure you’re getting the idea – the Pentagon can bend or even break the rules depending on how enthusiastic they are about a production, and how compliant the producers are. The idea that everyone gets the same treatment is simply false – they don’t, and I’m about to prove it. One of the most Pentagon-supported film franchises of all time is Transformers, the series of films by Michael Bay that somehow manages to make extra-terrestrial artificially intelligent giant robots boring and repetitive.

From the off, the Pentagon’s liaison offices worked harder on Transformers than they did on other projects. Reports from the Air Force show that they were providing assistance in the autumn and winter of 2005, while the script was still being written. They arranged numerous tours of Air Force facilities, and one entry from mid-December 2005 says,

Met with director Michael Bay (Armageddon, Pearl Harbor) and producer Ian Bryce (Better Watch Out, Spider Man) yesterday to discuss potential Air Force assistance to “Transformers.” A big budget, live action sci-fi movie, the storyline is based on the popUlar Hasbro toy line/cartoon series. We discussed several opportunities to highlight Air Force personnel, operations and equipment. Anticipate a completed script late January 06.

A week later the reports say:

Provided producer Ian Bryce requested possible Air Force character depictions and deployed airbase scenarios. Production is shut down until after the holidays, anticipating further conversations, scouting requests and a script in January.

So they were discussing the script and providing input on the film way before any contract was in place, indeed before any script review had taken place. It wasn’t until the start of February 2006 that a formal application for support was made and the script was submitted. The military then offered more input and made some changes before approving the project. Even this wasn’t enough influence for them – one day on set Jon Voight, playing the Secretary of Defense, said that at the end of the scene where soldiers are attacked by a Transformer in the desert, he wanted to add an extra line. Phil Strub suggested ‘Bring em home’, and it was written into the script. This line substantially changes the tone of that moment, making the Secretary of Defense seem like a caring, paternalistic figure.

Unfortunately I wasn’t able to get a copy of the Production Assistance Agreement for the first Transformers film but according to the DOD’s Hollywood database it was approved on March 30th, two months after they first received the script and after about 6 months of co-operation and support.

On Transformers 2 there were problems and delays developing the script because of the Hollywood writer’s strike, so everything got a bit rushed. Reports from the Marine Corps note how there was a ‘joint planning meeting’ on February 13th 2008, just after the writer’s strike was lifted. One of their liaison officers pitched the idea of one or some of the characters being MARSOCs, Marine Corps Special Forces who are often overlooked in favour of Deltas and Rangers and SEALs. Though this was well received at the time, there is no MARSOC character in the finished film. But an email from Phil Strub says that they did change the tone of one scene where dead soldiers in coffins are being unloaded from a military transport plane. Strub wanted it to be more sombre and respectful, which is ironic since in the real world Strub’s job is to convince more people to sign up to fight and potentially die in wars. If he’s that bothered about respect for these people then maybe he should find a different career.

Interestingly, the Production Assistance Agreement was signed in May 2008 and says:

The DOD has approved military assistance as in the best interest of the DoD based on the current version of the “in-deyelopment” script dated as of May 9 2008 (“Agreed Upon Screenplay“).

So they signed the agreement before the script was even completed, which is contrary to the DOD directive which says the script needs to be finalised before any such agreement can be made. The database goes further, detailing how a ‘phase 1’ DOD Support Notification Letter was signed in late April, a couple of weeks before the May 9th version of the script. So it’s clear that the DOD were very confident that Michael Bay would do whatever they wanted, and were happy to set the rules to one side so that the film could stay on schedule.

However, they were wrong. The Marine Corps, just like the other branches of the military, provided support on Transformers 2 but they were unhappy with the minimal screen time they were given, in comparison to the amount of vehicles, Marines and other support they provided. So when the request came in for Transformers 3 they were dubious, with one report noting that they ‘will move cautiously given amount of support versus amount of screen time on Transformers 2.’

A request came in to film some MV-22 Ospreys – which are nicknamed ‘Transformers’ because they can change from being a helicopter-type craft into a plane. This was denied because the Marine Corps wanted more screentime in exchange for their support, and felt they were being overshadowed by the Army and the Air Force. At the same time the Army reports were very enthusiastic about Transformers 3, saying, ‘It will give us the opportunity to showcase the bravery and values of our Soldiers and the excellent technology of today’s Army to a global audience, in an apolitical blockbuster’. Indeed, the Army facilitated a meeting between Paramount Pictures Worldwide Marketing Partnerships and the US Army Accessions Command advertising agency McCann Worldwide. The reports note that the purpose was to ‘make introductions and discuss opportunities for the US Army to leverage the success of the Transformers franchise.’

The Production Assistance Agreement for Transformers 3 shows that again they approved DOD support on the basis of a script that was still in development. The contract refers to the March 25th iteration of the script, but an email containing script and production notes for the film was sent in June, showing how they were still making changes then. One note says:

Production will revise script to demonstrate that Morshower is competent and in command. He will be briefed on a national and international level, by NORTHCOM re: the entire US. military response and what the other Unified Combatant Commands are doing around the world. Morshower/DOD will paint the strategic context of the military actions to be featured. (Example line: “I understand everyone’s on alert, but who can get there the fastest?” or “What is out there in the region now?” with the response indicating the specific military elements to be featured, e.g., “We have elements of 56th Stryker Brigade entering the city now.”)

On Transformers 4 there was no DOD support and instead Paramount went into co-production with several Chinese firms. This was during the brief period that China was investing in Hollywood, before they realised they weren’t getting particularly good returns. I will cover all this in a future episode, because there was an interesting legal case with Transformers 4 relating to product placement.

Having learned their lesson, for Transformers 5 they returned to the DOD for military support. Reports from the Navy say:

DoD notes were incorporated into a new script revision to feature Navy and DoD forces in more of a protagonist role.’ Meanwhile, an entry in an Army liaison office report dated June 8th 2016 says ‘OCPA-LA continued coordination for the use of an AH-64 Apache in support of the OSD-PA approved filming in Phoenix, AZ on 10 JUN. [redacted] was present for filming. An OSD-PA signed letter of intent was provided to the production company on 7 JUN, and a Production Assistance Agreement is expected to be completed by DoD by the end of the week.

What does all this mean? The military were providing support before the Production Assistance Agreement was even signed. This is a total breach of doctrine and protocol and I’ve never seen this happen with any other movie. Then, in the middle of the 500 pages of contracts I obtained via the Navy, I found the agreement for Transformers 5. It has the usual paragraph about the DOD approving support based on a specified version of the script but there is none of the usual stuff about the DOD withdrawing support in the event of a disagreement over content. Every other contract contains this clause saying the DOD may elect to withdraw all support from a production if script changes are made that they don’t like. Every single one. I can only assume that they were very confident of their relationship with Michael Bay and the other producers, indeed one entry in the Army reports says their representative was on set for the purpose of ‘insuring the [redacted] character maintains the Army’s Core Values.’

To sum up – the Pentagon is supposed to wait for people to come to them with completed scripts which they then evaluate. On at least three of the Transformers films they were working together while the script was still in development. The Pentagon is supposed to only sign an agreement to support a film once the script is finalised. On at least two Transformers films they signed agreements based on scripts that were still being developed. And the Pentagon is not supposed to provide vehicles, access to filming locations and so on until after the Production Assistance Agreement is signed, but on Transformers 5 they were providing support before the contract had even been drafted.

Clearly the rules don’t apply to everyone, and the military decide when to apply the rules depending on how much they like the film or franchise, and how well they get along with the producers. For the likes of Michael Bay, who is little more than a government asset in Hollywood, they’re willing to bend or even break the rules completely.

Given the enormous amounts of money involved in making and selling a Transformers film, the ability to stick to deadlines and shooting schedules is very important. Delays mean costs overrun, eating into profits. Having the Pentagon treat you as a special case, removing the obstacles that other film-makers have to negotiate, is a competitive advantage. Even aside from the fact that the Transformers franchise is a massive military recruitment operation, the government is not supposed to interfere in an industry like Hollywood in order to play favourites and give some films and film-makers an advantage over others. In return for this advantage, it appears that the producers invited the Pentagon in at a very early stage on four of the five films, and continued rewriting the scripts during production to suit the Pentagon’s objectives.

When the relationship is this close, and this exceptional, are the resulting films genuine privately-made products for sale on the mass market? Or are they co-produced with the government for non-commercial purposes? Or are they both at the same time?

It’s this sort of activity and behaviour that leads me to question the legal basis for what the Pentagon’s entertainment liaison offices are doing. They clearly disregard their own doctrine and protocols whenever it suits them, in the name of expanding their influence in Hollywood or to help out their assets in the industry. Quite honestly, I think there needs to be a congressional committee set up to investigate this, with public hearings to ask Pentagon officials exactly what they’re doing and why. They could publish documents, gather testimony, even recommend legislation obliging the DOD to be transparent about what they’re up to. We need a Church Committee for the entertainment liaison offices.

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