By Indiewire | Indiewire November 25, 2003 at 2:0AM
IFPs and Independent Film Producers File Lawsuit Against MPAA
by Eugene Hernandez
The Independent Feature Project chapters in New York and Los Angeles and a group of leading independent production companies filed a lawsuit Monday against the Motion Picture Association of America (MPAA). The plaintiffs are seeking a restraining order to prevent the MPAA from enforcing its recent ban on awards screeners and are hoping to win a ruling that would allow the distribution of screeners to all guilds, critics groups, and other organizations. The MPAA recently ruled that screeners can only be sent to members of the Academy of Motion Pictures Arts and Sciences who sign an affidavit assuring that they will not distribute their tapes.
A hearing on the matter is scheduled for Wednesday morning in U.S. District Court, Southern District of New York. Attorney Greg Curtner of law firm Miller, Canfield, Paddock and Stone, told indieWIRE on Monday that Chief Judge Michael B. Mukasey would hear the case at 10 a.m. Wednesday in Manhattan. He indicated that the plaintiffs would seek an injunction from the judge in the hearing.
Plaintiffs joining the lawsuit include Jeff Levy-Hinte's Antidote Films, Ross Katz' Elemental Films, Scott Macaulay and Robin O'Hara's Forensic Films, John Penotti and Fisher Stevens' GreeneStreet Films, Susan Stover's HeadQuarters, IFP/Los Angeles, IFP/New York, John Sloss, Gary Winick and IFC's InDigEnt, Scott Rosenfelt's Independent Entertainment Christine Vachon & Pam Koffler's Killer Films, Joana Vicente & Jason Kliot's Open City Films, Peter Broderick's Paradigm Consulting, Yael Melamede & Eva Kolodner's Salty Features, Robert Altman & Josh Astrachan's Sandcastle5 Productions, Sarah Pillsbury & Midge Sanford's Sanford/Pillsbury Productions, John Coles' Talking Wall Pictures and Anthony Bregman, Anne Carey & Ted Hope's This Is That Corporation.
"We'll be asking [the judge] to restore the freedom to send out screeners," Curtner told indieWIRE simply in a conversation on Monday. Plaintiffs Levy-Hinte, and IFP chiefs Dawn Hudson (Los Angeles) and Michelle Byrd (New York) echoed the statement in conversations with indieWIRE on Monday evening.
Producer Jeff Levy-Hinte told indieWIRE that he, the other producers, and the IFPs felt that "there was really no other choice" but to file the lawsuit. He added, "We feel that certainly [this restraining order] is necessary and called for." Continuing, Levy-Hinte additionally said, "We are very serious about sitting down at the table with the MPAA and all relevant parties in the global motion picture industry [to discuss] a comprehensive way to deal with piracy."
A spokesperson for the MPAA did not respond to indieWIRE's multiple requests for comment on Monday. Rich Taylor of the MPAA told the Associated Press on Monday, "Any suggestion that this is designed to disadvantage one type of film over another is simply untrue." Taylor told Variety that while he had not read the lawsuit, "from the early quotes and reports I've seen it (the suit) seems to ignore the intent of the ban which is to reduce piracy and preserve the industry for motion pictures big and small."
The news of the lawsuit came on a day when Hollywood trade reports indicated that film producers have begun to pursue sending out their own screeners to the guilds, as a way of getting around the ban against sending tapes to the organizations. Producers of the Sony Pictures Classics film "Monsieur Ibrahim" are sending out video screeners to Screen Actors Guild (SAG) members to lobby on behalf of film star Omar Sharif. Some have speculated that the move will lead to other producers doing the same thing to promote Indiewood films and stars.
The 47 page filing, which included an additional 8 page declaration by producer Levy-Hinte, copies of which were sent to indieWIRE on Monday by the plaintiffs, states in Part 1 that the "Defendant, the Motion Picture Association of America ("the MPAA"), is conspiring with substantially all of the major motion picture studios in the United States and their controlled affiliates to eliminate a significant feature of competitive rivalry among themselves in relevant markets in the motion picture industry."
Continuing in Part 1 of the lawsuit, the statement reads, "The MPAA has mandated an anticompetitive, unjustified, pretextual and unnecessarily restrictive ban on one significant method of promoting films, awards screeners, has bound its signatories' subsidiary distribution companies to abide by these rules, and has conspired with the American Academy of Motion Picture Arts and Sciences ("the Academy") to unlawfully restrict trade in one or more relevant markets related to critics' evaluation awards events." Continuing it reads, "The MPAA has also tortiously induced its signatories and their subsidiaries to breach both express and implied agreements relating to the promotion of independently produced films."
The lengthy filing is a comprehensive document that offers a unique, contemporary "state of the industry" report on the specialty and independent film business. Indeed it could be published as an insiders guide to today's Indiewood film business. The document includes detailed background information on each plaintiff (production company), information on each of the MPAA member studios and also explains various financing modes used today, as it explains the issues of concern for the producers of Indiewood films as a result of the screener ban.
"This has been a long-term campaign to right the wrong of the MPAA screener ban," said the plaintiffs in a statement issued on Monday. "We have written letters, placed ads, held meetings, and tried in every way to get the MPAA to reverse its decision of September 30th. Unlike the major studios -- who can buy public awareness through expensive promotional campaigns -- independent filmmakers rely on recognition through awards to attract talent, financing, and box office revenues. As a last resort, to protect the interests of independent filmmakers and the film-going public, we have taken the step of seeking court-ordered relief of the ban."
At the same time that they filed this lawsuit, the plaintiffs also discussed a legal defense fund that has been established to cover the costs of the lawsuit. An email message recently sent to filmmakers seeking more plaintiffs to sign onto the suit (a copy of which was forwarded to indieWIRE) indicated that initial costs for the lawsuit could reach up to $50,000.
Levy-Hinte, in the conversation with indieWIRE on Monday, called the lawsuit a "David and Goliath" story, saying if the lawsuit fails, "We are not going to quit, we are not going to stop what we are doing until every stone has been turned over and every possibility has been exhausted."
The plaintiffs in the lawsuit issued the following points summarizing the legal issues. (The following information was provided by the plaintiffs.):
On November 24th, 2003, a Coalition of independent filmmakers along with IFP/LA and IFP/NY filed a lawsuit in the United States District Court for the Southern District of New York against the MPAA seeking a court order to force the MPAA to lift the screener ban, and thus allow individual distributors to determine when and in what manner to distribute promotional screeners. Further, the Independent Coalition is seeking an order requiring the MPAA to develop a forum in which all constituencies of the industry have a voice in the development of effective, fair, and legal anti-piracy policies.
The MPAA has mandated an anticompetitive, unjustified, and unnecessarily restrictive ban on the promotional distribution of screener tapes and has bound its signatories' subsidiary distribution companies to abide by these rules. The current screener ban constitutes an unlawful restraint of trade under United States anti-trust law (under Sections 1 & 2 of the Sherman Act, and Section 16 of the Clayton Act).
The MPAA has:1. Conspired with major motion picture studios in the United States to eliminate competitive rivalry among the studios;
2. Conspired to use that control to disadvantage and to erect barriers against fair competition from small, independent film producers;
3. Conspired with the American Academy of Motion Picture Arts and Sciences ("the Academy") to unlawfully disadvantage other competing critics' evaluation and awards events.
Unless immediately enjoined by the Court, the foreseeable and intended result of these unlawful actions is and will be to:1. Immediately cause irreparable harm to independent producers of films which will not be promoted effectively or seen widely enough for fair consideration during this year's awards consideration process;
2. Severely restrict the ability of small, independent film production companies to enter the film production and promotions market by raising costs and other barriers;
3. Chill the financing of independent films;
4. Reinforce the shared monopoly power enjoyed by major studios;
5. Inhibit competition in the market for television broadcasts of motion picture awards shows;
6. Decrease choice, decrease quality, and increase prices to consumers in the motion picture distribution markets ("theatrical release markets") and in aftermarkets for both video and DVD rentals and purchases.