October 1, 2003

“Who came up with this horrible idea?”

This is the question that I expect to be heard more and more often as we get closer and closer to January 17, the de facto end of the big Oscar race. That’s the day that Academy Award nominations close and with them, any hope for films that have not been able to get traction in the heat of the November/December battle.

The most basic rule of questioning someone in a legal proceeding is not to ask questions to which, as the lawyer, you do not know the answer. Generally, this is the rule for organizations like the MPAA… cautious, steady, unflappable. The decision to push the MPAA membership into not sending out Oscar screeners, just 15 weeks before nomination polls close, is an ill conceived, reactive, reckless one.

The MPAA, long run by Jack Valenti, is one of the world’s most effective industrial lobbying organizations. One of Valenti’s favorite maneuvers is the bait & switch. While Valenti spars and sympathizes with critics about the ratings system, for instance, there is some sense out there that his inability/unwillingness to come up with a system that would allow movies made for adults and not for children to be distributed in this country with some hope of a financial return is completely intentional… it plays in Washington. On top of that, all of the hubbub about ratings gets the media’s attention while the MPAA quietly goes about its monopolistic ways.

That said, Valenti’s move to make this happen at a date so close to the nominations is probably a stroke of genius. This blitzkrieg attack on a decade old system was effective, if wrong headed. Valenti clearly believes it is the right thing to do. He knows as well as anyone that in-depth discussion is the surest road to not getting anything done.

And that is where this road splits.

There are two very distinct camps on business side of this issue. There is the group that is concerned only about attacking piracy as quickly and as aggressively as possible. And there is the group that is trying to use Oscar nominations and wins as a marketing tool.

The group that feel the cold hands of piracy slowly clinching around the industy's neck has some answers, but still more questions and fears than anything else. What is most tangible is the very real sense that we are moving further and further away from the ability to control piracy from becoming a mainstream choice.

I would say that even in this group, the argument about the losses from piracy focus much more on the home entertainment business than the theatrical. I would argue that the industry has shortened the theatrical window systematically, long before broadband became an issue, by moving the home entertainment window closer and closer to the theatrical release date. Clearly, the Finding Nemos and Pirates of the Caribbeans of the world are still capable of pretty leggy outings. But even those long legs are getting shorter and shorter as the costs of maintaining a run discourage any push for much longer runs… you know, runs that might require replacement prints or any more marketing money before home entertainment. Others who are more piracy leery than I would suggest that piracy is contributing strongly to the lack of multiple paid viewings on many pictures.

But we both would agree that the availability of the highest quality DVDs months before the films are released into the home entertainment market surely has dampened some DVD/Video sales. This fact is well disguised by the heated DVD expansion trend of the moment. But home entertainment is also the most vulnerable part of the income stream in future, as the home experience can be virtually the same, stolen or paid. Studio efforts to stem the tide with DVD extras is, in my opinion, a fading strategy, is becoming less and less a factor in all but a tiny number of titles.

The release of what are essentially digital masters into the community months before the official home entertainment release of the titles is a real concern for home entertainment. And, in the case of certain movies, in the theatrical release.

Let’s look at the very odd example of Lord of the Rings: The Return of The King. By consensus, Rings has the least to lose in L’Affaire Screener. The film will be sampled, in theaters, by as large a percentage of Academy voters as any movie on the board. There is no Oscar consultant in the game who would not give up screeners for butts in theater seats.

But interestingly, Rings also had the most to lose by having screeners out there. Given Miramax’s history with Oscar, they may well manage to keep Cold Mountain playing theatrically for as long as Rings plays. But the audience for Cold Mountain, like the audience for Chicago, is not made up primarily of young people who are in the group “most likely to download a film.” Rings has the most coveted title for that group over the last two years and will surely be again this year. If anyone in this year’s Oscar race is going to lose money in theatrical because of piracy, it’s Rings.

On the flip side, Warner Bros. is very anxious to push the intimate Matchstick Men and Mystic River as Oscar movies this fall. Neither film is likely to be a major target for pirates. Both of these are really quality movies for adults. These are not mini-major movies, yet they are small and screeners might have been a critical tool for getting nominations. And if the studio waited until, say, the days before Thanksgiving to distribute their For Your Consideration DVDs, there would be very limited exposure in terms of any effect on the theatrical runs of these films. Yet, Warner Bros.’ Barry Meyer is said to be the biggest studio proponent of the screener ban.

And here is where we get to the other group… those is trying to use Oscar nominations and wins as a marketing tool.

Universal’s Seabiscuit is currently scheduled for a December 16 street date. What are the odds that it won’t soon move to November 18 or 25 so that it can be in awards voters’ DVD players over the Thanksgiving holiday? Might the studio push Intolerable Cruelty into home entertainment distribution in time to put the film in awards voters’ hands just before the Christmas holiday?

Warner Bros.’ Matchstick Men was released on September 12. Will the studio push it out on video in December? What about Focus Features’ Lost In Translation?

In David Rooney’s Variety story on reaction, he cites Miramax’s Dirty Pretty Things and The Magdalene Sisters as being among the unsendables. I would be stunned to my core if both films do not find themselves on the November home entertainment schedule and in voters hands in time for the holidays.

Perhaps the biggest victim in this year’s push will be Fox Searchlight’s In America, which moved out of summer and into November specifically to position itself for Oscar. In a very tight, competitive year, and now, without screeners, that decision is looking like a sucker’s bet. The odds of Samantha Morton and Djimon Hounsou getting acting nods have been seriously damaged and there is no way to change strategies dramatically enough to fully recover at this late date.

And then there is the real nitty gritty… will Fox throw their November 14 release, Master & Commander, into home entertainment in early February, assuming that they will get a big sampling and a number of nominations without any screeners?

But what about the potential backlash from rushing films into DVD to take advantage of the current rules? Will some film rush itself out and find voters resistant because it feels like cheating? Or would voters punish a film like Matchstick Men for not turning up in their mailbox?

The answer is, “We don’t know.” And that one more reason why I consider this move reckless. Tens of millions of dollars are in play. And no one really knows how this is all going to come down… no one has really strategized to adjust to the change (Shouts of “Book screening rooms NOW!!!” could be heard coast to coast all day Friday.) But who knows how it will shake out?

One of the unspoken issues about screeners is that there is very much an awards second wind that screeners enable. It’s not just about choosing to see a lot of movies at a lot of screenings. Screeners allow word of mouth to take hold. And beyond The Pianist last year, I would say that the four acting categories sport as many as nine of the twenty nominations that were significantly effected by screeners.

Oscar campaigners would argue – and are, loudly – that not only does the lack of screeners create a new (old, really) power balance in the awards season, but that the late date of the decision is going to create havoc.

What is only now dawning on people is that by taking this bullet out of the Oscar-push gun, the MPAA will encourage more aggressive gamesmanship during a season that was meant to be one that showed a symbolic restraint after last year’s bar brawl.

There is something charming, I suppose, about turning 2003/2004 into Oscar Survivor: Rodeo Drive… Kick. Punch. Scratch. Suddenly, we are in the Old West.

The idea that Whale Rider could suddenly leap into serious Best Picture contention because Academy members will want to send a message to the MPAA for taking away its screeners is not insanity.

Meanwhile, the entitlement queens at the HFPA have already gone on record, asking the studios to break the screener embargo for them. Of course, the choking irony is that pretty much every studio person who is on the anti-screener bandwagon will cite HFPA members in particular as responsible for the spread of screeners to pirates. Actually, I think that the position is a bit unkind and assumes that these foreign press members are somehow more likely to spread the screeners to other countrues, which piracy is, admittedly, a bigger problem at this time. Of course, if studios break the embargo for any group, this whole thing falls apart completely. But the temptation will be strong to do special favors for a group in which 20 votes guarantees a nomination.

The BFCA, of which I am a member, will also see its voting affected, which is particularly unfortunate in a year in which the group of Broadcast Film Critics will have more direct influence on the races than ever as the only major group to have a televised awards show before nominations close. A full third of the group’s members are likely to be living outside of Los Angeles and New York and not in attendance at every relevant junket. I have no idea how studios will approach this group… not for purposes of placating their egos, but to simply make sure that the films that we vote on will be seen. In fact, last year a new rule was implemented requiring that members cannot vote in the final round in any category in which they have not seen all the nominated films. The rule, which is unique to the BFCA and was completely appropriate when screeners were available, will surely become a bone of contention this year.

People who are for the ban say, “get off your ass and go to the theaters!” People who are against the ban say, “There is no way to see all these films in a theater, no matter how dedicated you are.”

People who are for the ban say, “digital versions of the film on the street is like leaving heroin on a junkies living room table.” People who are against the ban say, “Movies are on the web before they are release already… make it harder for me to distribute my screeners, but don’t take away my ability to see more movies.”

People who are for the ban say, “We can’t keep looking the other way just because you people want ego-building Christmas presents.” People who are against the ban say, “It’s GO TIME, you paranoid freaks!”

The fight is just starting, even if the war is already lost. Oh that Jack Valenti.

E ME: Please tell me what you think. And if you are in the industry, please indicate whether you want your real name attached to your thought if you end up being an ROTD.