Gary Dretzka
Leonard Klady
David Poland
Ray Pride
Patricia Vidal

 

December 6, 2003
10:00 am

The Beat(ing) Goes On

Yesterday's analysis of the situation bears some significant revision today.

The most surprising part of the Temporary Restraining Order is not the battle between the renegade dependents and their big studio bosses, but rather the enthusiasm of the big studios to rush out the films that haven't gotten the expected awards traction.

No one should take this as an indictment of the films themselves. Or of the awards marketing teams for that matter. But in an bizarre bit of irony, this was going to be a studio dominant year, no matter what the status of screeners. The screeners that can be distributed in order to have any remote opportunity to influence any votes this year (9 Days Until BFCA Ballotting Closes... 10 Days Until HFPA Nominations Close... 10 Days Until NYFCC Votes) will only really effect the bigger movies. Look for films like Big Fish, Master & Commander, Love Actually, Cold Mountain, House of Sand & Fog, In America and Mystic River to be on the way in a hurry, anxious to gain, secure or maintain traction as we close in on actual votes. (Please note: Only two of those titles have been confirmed as being in distribution play as of this writing.)

There is a full month left to campaign for Oscar nominations. But this TRO was not about the Oscar campaign, as there was no Academy ban, essentially.

And how long will it be before there is an eruption at the Academy, as other groups get screeners without signing their lives away? So far, only Miramax has made inquiries about various memberships signing Academy-similar agreements. Any studio that decides to go the screener route without this effort will put themselves in harms way, regardless of the fact that 10 days is not enough to get tapes out, much less administrate thousands of honor pledges.

The final irony - for today - is that the screeners that do go out will actually be more important to the final round of groups like HFPA, BFCA, NSFC, BAFTA, SAG, etc. Once there are nominees, no one can legitimately say that they can't see the handful of films that have already been nominated. The vote that was critical to the 9 producers who participated in the ban lawsuit has already passed... Thirteen was not nominated for Best Picture, Best Actress or Best Supporting Actress at the Indie Spirit Awards. And the nominating committee there had screeners. American Splendor, Lost In Translation and Raising Victor Vargas were nominated for Best Picture. Has anything really changed?

And most importantly... has independent film been served by this fight? Wouldn't the industry's favorite underdogs have been better off being able to maintain their outsider argument when denied access to the big show instead of being the battle winners who lose the war? Just asking...

(I'm keeping the earlier commentary within reach, since the idea of allowing history - even MCN history - to be rewritten is bothersome.)

December 5, 2003
11:28 am

TEMPORARY RESTRAINING ORDER
GRANTED BY JUDGE MUKASEY

Reactive Opinion by David Poland

In the words of Bill McKay, "Now what?'

Judge Mukasey decided that "Plaintiffs have shown they are at risk of loss of revenue as a result of the screener ban" and so begins the next stage of internal battling that could result in more damage for the "independent" business than any of the players could ever imagine.

I would have to assume that Jack Valenti's tone of authority in court was enough to allow this ruling to attach, conceptually, to the MPAA. The lawyers for the "Independent Coalition" obviously were right that a TRO was a viable legal recourse.

That said, what happens next?

My guess is nothing.

Well, a little more than nothing. The chances that studio dependents will send out a single tape is minimal… if they care about remaining under their studio's umbrellas.

The thing that really doesn't make sense - in the long-term - about this short-term Temporary Restraining Order is that MPAA's rule never had the force of law. It was an agreement within an association. This ruling does not force anyone, I am assuming, to send out screeners… just as the rule never legally kept anyone from sending out screeners. It was and is an agreement between businessmen. Breaking the ban, by any MPAA-affiliated studio, will still be a breech among businessmen.

Disney, led by Dick Cook, is already not sending out screeners to Academy members - even though they are allowed to do so - as a matter of honor.

It is possible that Sony Classics or Miramax, the two dependents most anxious to send screeners, will breech protocol. Harvey Weinstein did say that he was almost pleased by the idea of Michael Eisner firing him and his brother. And, as a business, Roy Disney and Stanley Gold's attacks on Eisner are likely to be survived. But if Eisner were to dump the Miramax Brothers just as their $80 million-plus investment in Cold Mountain is about to launch, needing the brothers' awards marketing expertise to get into the black, the move could be used as "evidence" against Eisner and help seal his exit from Disney. In other words, at this moment, Weinstein has Eisner in "check," if he wants to make a move. On the other hand, Eisner would have the behind-the-scenes ability to make sure that Miramax never invests more than $50 million in a movie again as a response. It could get interesting.

As for Sony Classics, Barker & Bernard are the most independent of the dependents. They also have failed to find their next Crouching Tiger, Hidden Dragon. (No one else has either.) The indie arm's significance in revenue creation for the parent company can be debated. Like Miramax, Sony has probably made more profit on their youth-skewing arm (Screen Gems) in the last year than from the more tasteful, more adult Sony Classics division. If Barker & Bernard decide to thumb their nose at Sony, it's unclear about how contentious things will get. Some in Hollywood would be more than happy to see them cut off. Howard Stringer has gone on record, early on, against the ban. Then again, neither man showed up in court after being subpoenaed.

Fox Searchlight is running a full-scale campaign for In America and has been supporting Thirteen in any way they could. Unfortunately, neither Holly Hunter nor Evan Rachel Wood (considered to be Thirteen's best shot at Oscar nods outside of the screenplay) got Independent Spirit Award nominations. In a movie world, that is pretty much the end of the Oscar push for this movie beyond the WGA and Academy writer's branches. (Note: The IFP nominating committee had screeners of the film.) Jeffrey Levy-Hite, producer of Thirteen, was one of plaintiffs who won today. Will he take the opportunity to send out screeners on his own? It would be illegal, of course. He does not own domestic video rights. But he might. And its unlikely that Fox would sue him. But they might.

Paramount Classics isn't going to do anything.

United Artists is also walking a tightrope. Bingham Ray has been as aggressive as anyone at the studio level in fighting the ban. But he, too, managed not to show up to testify at the hearing, in spite of a subpoena. The Independent Spirit Awards nominations for Pieces of April have probably strengthened his belief in the potential of the film, particularly for Patricia Clarkson. An award from the NY Film Critics Circle would push that notion even harder.

MGM has not been particularly vocal on this issue and is the major that is most minor at this moment. (They do have a slate of more commercial product for 2004.) They are the real wildcard in this situation.

One thing we know by now is that anything can happen. But at this late date in the awards season - and it's later than most people think - the balance between the spirit of righteousness and the art of self-preservation will have to be balanced by every player on the field. It could get very ugly. Or it could get very quiet. And so we wait…

(Thanks to Jeremy Larner for putting the words in Robert Redford's mouth in The Candidate, quoted at the top of this piece.)