By Indiewire | Indiewire December 4, 2003 at 2:0AM
Indies v. MPAA Case Sparks Debate Over Piracy and The Term "Independent"
by Eugene Hernandez
Over the past decade an ongoing debate has intensified regarding how one defines an independent film. The debate made its way into United States Federal Court Wednesday in a case that has come to be known as "Indies v. MPAA."
An evidentiary hearing on Wednesday in the case of the coalition of independent film producers and two chapters of the Independent Feature Project (IFP) against the Motion Picture Association of America (MPAA) saw the term "independent film" used broadly, at times to refer to movies made outside the studio system and acquired for distribution at Sundance, such as "The Station Agent" or "In The Bedroom," or including movies financed by corporations but having a more challenging subject-matter than mainstream movies, like "American Splendor" or "21 Grams." And finally, the term was used to refer to films initially released in a limited fashion by studio specialty divisions, like "The Hours" and even "Gangs of New York."
The indie group is seeking a temporary restraining order (TRO) to prevent the MPAA from enforcing its current ban on awards screeners. After a day of testimony in the case, Chief Federal Judge Michael Mukasey said that he would issue his decision on Friday at 10 a.m.
Wednesday's all-day court session seemed to pit Miramax chief Harvey Weinstein against his former deputy Mark Gill, who is now head of Warner Independent Pictures. At the last minute, Weinstein weighed in with a declaration (in writing) against the ban, while Gill testified Wednesday in support of the ban. Gill's decision to testify in support of the policy that allows screeners only for members of the Academy of Motion Picture Arts and Sciences (AMPAS) had attendees and observers buzzing, perhaps even more so than the appearance by MPAA head Jack Valenti in court. Kenneth Jacobson, the MPAA's anti-piracy leader, also testified in support of the ban.
The plaintiffs presented producers Ted Hope of This Is That and Jeffrey Levy-Hinte of Antidote as key witnesses. Fisher Stevens of Greene Street, Jason Kliot & Joana Vicente from Open City, Susan Stover of HeadQuarters, Dawn Hudson from IFP/Los Angeles and Michelle Byrd from IFP/New York were among the plaintiffs in the audience.
Gill and Weinstein are the only studio specialty division heads to speak so publicly, and on the record, regarding the screener ban matter. But by all accounts Gill is the only Indiewood chief in favor of the ban. In a brief conversation with indieWIRE following Wednesday's hearing, Gill said that he was against the ban until it was lifted for Academy members who sign an affidavit assuring that they will keep screener tapes under their control. During Wednesday's trial, he cited a number of points for his support of the ban, namely: the success of independent films this summer, the nominations of the National Board of Review awards Wednesday, and the continual inclusion of independent directors as nominees for the DGA Award from a group that does not allow the use of screeners.
"I love independent films," Gill told indieWIRE, "I wouldn't do anything that I thought would harm them."
Even so, indie plaintiffs poked holes in Gill's testimony before and after the hearing, questioning his candor given that his boss, Warner Bros. studio chief Barry Meyer, is known to have crafted the screener ban. Others said that he based his views on experiences with films that are not relevant today. Gill, who said he has worked on 40-50 awards season campaigns, told indieWIRE that he "did his homework" in order to develop his opinion on the matter.
Saying that a distributor should primarily "make sure a film is in theaters at the time of [award] consideration," Gill added during the hearing, "[I have a] high degree of confidence that this [ban] can be made to work for most groups." He added that screeners are just one part of an awards campaign that includes trade ads, mailers, and film screenings.
Harvey Weinstein stated in his own declaration that he was filing it in lieu of appearing in court. United Artists head Bingham Ray, Focus Features co-president James Schamus and Sony Classics co-president Tom Bernard all told indieWIRE on Wednesday that they were not properly served with a subpoena to appear. The plaintiffs in the suit have maintained that the specialty heads were served with a subpoena but did not appear for fear of reprisals from their studio chief bosses. But Schamus added, "If I am subpoenaed for any further hearings I'd be happy to comply - for the record I am not aware of any even hint of a threat from anyone at our studio regarding our compliance or appearance." Schamus was in Arizona on the day of the hearing.
In his declaration, Weinstein cited the importance of screeners and said, "The awards season and the distribution of screeners have been critical during the past decade in the success and development of independent films, independent filmmakers, and the specialty divisions of the major studios." Weinstein added, "A successful awards season can mean the difference between a movie grossing $5 million at the box office and a movie grossing $20 million." Weinstein acknowledged that he and the heads of the specialty divisions, known as the "Independent Working Group," had sent a letter to MPAA chief Jack Valenti and met with him. He referenced that indieWIRE obtained a copy of that letter and published it in its entirety and attached a copy for the court in support of his position.
MPAA chief Jack Valenti, who spent nearly two hours on the stand, continually reiterated that the screener ban is part of a campaign to halt piracy and he admitted that he wished the policy had been enacted even sooner.
"Piracy has become a malignant fungus on the face of our industry," Valenti said, his own face tense and serious as he made the statement. Indeed as Valenti sternly spoke about piracy many times on Wednesday he remained a passionate voice on the increasing harms of movie piracy. He also reiterated that this current ban is meant to last through this year's awards season and he pledged that the plaintiffs would be involved in discussions on the matter next year.
Producers Hope and Levy-Hinte spoke succinctly on the damage that the policy is having on their own films this year. Hope said that he just took it for granted that distributors would use screeners to promote his films, which this year include "American Splendor" and "21 Grams." Continuing he added, "The hardest thing is getting people to see my movies, not that people would want to steal them." Hope reiterated his recent comments saying he is "worried that independent/specialty films will suffer grave risk."
"This is about the life of our industry," producer Levy-Hinte told indieWIRE. "[It is] about our very survival and our ability to make independent films."
Levy-Hinte detailed an email correspondence that he had with Fox Searchlight president Peter Rice, distributor of Levy-Hinte's own production, "Thirteen." In evidence provided to the court, Rice told Levy-Hinte, shortly after the ban was announced, that he would "prefer to send out screeners" of the film" to guarantee wider viewing of the film and awards consideration.
The question of what makes a film independent came up a few times while Warner Independent Pictures head Mark Gill was relating the success of what he calls independent films at the DGA Awards over the past years and in this year's National Board of Review balloting. A momentary debate later arose over whether Martin Scorsese's "Gangs of New York" can be considered independent. Gill said that it was, adding, "It's at the very high end, but yes it is." Continuing he added, "If you exclude it, then I am using the same definition as Ted (Hope)."
After the hearing, Levy-Hinte told indieWIRE, "Look at his definition, he has a very distorted sense of the marketplace."