By Eugene Hernandez | Indiewire June 23, 2008 at 5:16AM
Documentary filmmaker Alex Gibney is seeking more than $1 million in damages from ThinkFilm, distributor of his recent Oscar-winning film, "Taxi to the Dark Side." Late last week X-Ray Productions, producers of Gibney's film, charged that ThinkFilm fradulently hid the fact that it could not properly release the film in theaters, in a complaint filed with the Independent Film & Television Alliance (IFTA), the organization agreed upon by both sides to arbitrate any dispute. Responding to Gibney's claims and the request for arbitration, ThinkFilm president Mark Urman this weekend defended his company and its work on the film and sharply criticized Gibney.
"ThinkFilm did not disclose to us that the company did not have the financial ability to properly release the picture," Gibney told indieWIRE via email this weekend, in the wake of recent reports of a financial crisis at ThinkFilm (see related indieWIRE article). A copy of X-Ray's complaint to the IFTA, reviewed by indieWIRE, seeks $1 million in damages, payment of legal fees, a termination of its agreement with ThinkFilm, and a return of the film's distribution rights.
Charging that ThinkFilm didnt have the financial resources to properly exploit Gibney's film, the X-Ray complaint contends that ThinkFilm buried the film after its Oscar win and, "jeopardized the success of the film by failing to abide by the terms of contracts it entered into with public relations firms and advisors and failed to pay such firms for work done and expenses incurred." The complaint charges "fraud and intentional and willful breaches of its marketing obligations under the distribution agreement."
The documentation acknowledges that ThinkFilm did pay contractual minimum guarantees on May 5th of this year, although behind schedule as dictated in the agreement with X-Ray.
"How ironic that a man who professes to care so much about the people who worked hard on his film would then inflict such insult and injury upon the blameless and tireless THINKFilm staff," an angry Mark Urman from ThinkFilm countered to indieWIRE this weekend. "And, how disappointing that a man who professes to be all about the cause, is now all about the money."
"For the record," Urman continued, "Even though he got everything he and his investors had coming to them, Mr. Gibney is seeking more money for himself, not for vendors who have yet to be paid. Meanwhile, THINK is completely in the red on this film."
The story of an Afghan cab driver murdered while in American custody, "Taxi to the Dark Side" explores the U.S. government's detention and torture of prisoners during the ongoing war on terror. It debuted last year at the Tribeca Film Festival where it won the festival's award for best documentary. ThinkFilm closed a deal for the film on May 30th of last year, in a pact brokered by Cinetic Media, according to the signed distribution contract obtained by indieWIRE. In addition to the $150,000 minimum guarantee for selling the North American distribution rights to ThinkFilm for a twenty year period, the filmmakers earned a $50,000 bonus for winning the Academy Award this year.
While Gibney and the producers had hoped for a Fall '07 theatrical release of "Taxi to the Dark Side," the film was contractually obligated to distribution in at least 15 markets (including New York and Los Angeles) no later than February 15, 2008. "Taxi" opened in U.S. theaters on January 18, 2008, earning nearly $11,000 in two theaters on its opening weekend. It has made about $275,000 during the theatrical release.
"The entire commercial plan for the picture - as Mark discussed with his publicists (whom ThinkFilm still has not paid) - was to shoot to win the Oscar and then capitalize," Gibney told indieWIRE by email this weekend. "It is impossible to capitalize if you can't order prints because the lab hasn't been paid, and if the website is taken down because that bill wasn't paid, if there is no advertising and no announcements."
Particularly upsetting to Urman was the fact that Gibney came after ThinkFilm even though he worked to allow the filmmaker to strike a new TV deal when Discovery backed out of its plans to air the provocative documentary during this year's U.S. presidential election cycle. "In February, THINK willingly sacrificed an entire revenue stream on 'Taxi' just so Mr. Gibney could sell his film to HBO after it was dropped by its original broadcaster," Urman reiterated.
As the dispute between the acclaimed documentary filmmaker and the cash-strapped distributor goes public, industry insiders will no doubt debate whether the poor theatrical performance of "Taxi to the Dark Side" was due to the mismanagement and lack of funding for the release by ThinkFilm, or a reflection of the ongoing struggle to release war-themed work in U.S. theaters.
The distribution agreement for "Taxi to the Dark Side" required that good faith efforts be made to get the film in theaters before Sony Pictures Classics' release of Errol Morris' "Standard Operating Procedure," which premiered in February at the 2008 Berlin International Film Festival, debuting in U.S. theaters on April 25th of this year.
Morris's "Standard Operating Procedure" has earned less in theaters than "Taxi to the Dark Side," so far. While it debuted with slightly bigger numbers during its opening weekend -- more than $14,000 in two theaters -- it reached a widest release of 21 theaters and has made nearly $204,000 through this weekend.
"We believed in Alex's film, we invested and incurred debt to the tune of hundreds of thousands of dollars, so that he could win an Oscar. He did not thank us on Oscar night and he certainly shows no gratitude today," Urman said this weekend. "His film was resoundingly uncommercial and yet we supported it and got it into the history books. How sad that victory was not enough for Mr. Gibney."
"I know that filmmakers always complain that they aren't fairly treated," Gibney told indieWIRE, "But this is beyond any subjective judgement."
"THINKFilm has done more for documentaries than anybody, probably to our detriment," Urman continued, "Audiences may have abandoned the genre, but I never expected this particular filmmaker, who benefitted so much from our expertise, to be even more fickle than those audiences."