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Indies Win in Case Against MPAA; Screeners Allowed

Indies Win in Case Against MPAA; Screeners Allowed

Indies Win in Case Against MPAA; Screeners Allowed

by Eugene Hernandez

Producer Ted Hope and IFP/New York executive director Michelle Byrd celebrate their victory in their case against the MPAA Friday. Photo credit: Eugene Hernandez © indieWIRE (shot on the Kodak LS443)

Citing an “unlawful restraint of trade” by the Motion Picture Association of America (MPAA), Federal Judge Michael B. Mukasey in New York struck down the MPAA’s ban on awards screeners. He said Friday that the ban by the Motion Picture Association of America would significantly harm independent film and granted a preliminary injunction to prohibit the ban, effective immediately.

“The plaintiffs have shown that they are at risk of loss of revenue as a result of the screener ban,” Judge Mukasey said Friday in his decision allowing the distribution of screeners to all guilds and critics groups beyond just the Academy of Motion Picture Arts and Sciences. The MPAA, which had announced a modified ban on October 23, is vowing to appeal the decision, chief Jack Valenti said Friday in a statement. The organization has yet to announce a timeline for its appeal.

In his brief official order, Judge Mukasey said that the MPAA “is preliminarily enjoined from taking any action to implement the ban on awards screeners as described in its press release dated October 23rd, 2003.” [A transcript of the official order is published at the end of this story.]

The group of plaintiffs that joined forces to file suit against the MPAA included Antidote International Films, Elemental Films, Forensic Films, GreeneStreet Films, Head Quarter Pictures, Independent Digital Entertainment, Independent Entertainment, Killer Films, Open City Films, Paradigm Consulting, Salty Features, Sandcastle 5 Productions, Sanford/Pillsbury Productions, Talking Wall Pictures, This is That Corporation, IFP/Los Angeles, and IFP/New York. The coalition have been battling the ban since it was first announced on September 30th. The plaintiffs said that the ban would prevent the smaller films that they produce from gaining wider awareness from the Golden Globe awards, Screen Actors Guild awards, and film critics groups. Critics in Los Angeles and Chicago canceled their awards this year in solidarity with the independent producers.

“Today’s ruling is a victory for ALL sectors of the motion picture industry, and a real win for consumers who will continue to have access and awareness of the broadest possible range of movies,” the victorious plaintiffs said in a statement Friday.

In his statement, MPAA head Valenti said, “From day one, the screener policy has been about one thing: preserving the future of our industry for filmmakers of all sizes by curtailing piracy. We know, without dispute, that in the past screeners have been sources for pirated goods both domestically and overseas. We will appeal because the impact and growing threat of piracy is real and must be addressed wherever it appears.”

“All studios are now free to send out awards screeners for films as they see fit,” said plaintiff attorney Greg Curtner in a statement Friday. “We look forward to seeing the results of fair competition. We stand ready to meet with the MPAA and discuss putting this ill-advised and poorly conceived screener ban behind all of us.”

Plaintiffs Ted Hope, Michelle Byrd of IFP/New York, and Josh Astrachan of Sandcastle 5 productions were in court for the announcement of the decision that took Judge Mukasey more than 45 minutes to read into the record on Friday morning. After the decision, a beaming Hope was surrounded by reporters outside the courtroom Friday.

“We felt that independent film and the audiences that enjoy independent film were jeopardized,” Hope, a producer on “American Splendor, “21 Grams,” and other films said. He and Byrd were then met by a handful of photographers as they emerged from the Lower Manhattan courthouse into a blowing snowstorm.

“Independent films depend heavily on exposure to critics, and critical acclaim,” Judge Mukasey concluded, in reading his ruling. “The harm to plaintiffs is significant,” he said, adding that the group had “proven an anti-trust injury.”

Judge Mukasey said that “perhaps the most significant evidence” in the case involved “the conduct of the MPAA and its member [studios].” He said that he was struck by MPAA chief Jack Valenti’s testimony that the ban had been designed to prevent the competitive distribution companies from trying to “take advantage of each other by sending out screeners.” He added that the MPAA did not prove that significant piracy was caused by awards screeners.

The comments of three specialty division heads also played a role in Judge Mukasey decision. The Judge cited numerous portions of the testimony by Miramax chief Harvey Weinstein, presented to the court in the form of a declaration. Weinstein was the only specialty division head to speak out against the ban in this case. Warner Independent Pictures president Mark Gill testified as an MPAA witness; the judge said that Gill’s comments proved to him that independent films are delicate projects that require unique promotion. The inadvertent comments of Fox Searchlight president Peter Rice also had an impact on the decision. The Judge said that he struck by the testimony of producer Jeff Levy-Hinte which detailed an email exchange between he and Rice. In the exchange Rice told Levy-Hinte that he wanted to send out screeners of the producer’s film, “Thirteen,” but that his hands were tied by the screener ban.

Specialty division heads and their staff at the various Indiewood companies were buzzing Friday afternoon as word of the decision hit. Many were crafting responses and discussing next steps.

“Although we have not yet seen the court’s opinion, we are pleased at reports that screeners will now be available,” SAG president Melissa Gilbert and SAG national executive director and CEO Bob Pisano said Friday in a statement. “This means that the SAG Awards Nominating Committee will have the broadest possible opportunity to view and judge the work of our members. At the same time, piracy is a serious issue with significant economic implications for the entire entertainment industry. Screen Actors Guild remains committed to combating this problem.”

In closing his decision, Judge Mukasey credited the “sincerity” of the MPAA with regard to the issue of piracy and rejected as “paranoid fantasy” the idea that the group or its studio members has designed the screener ban as a way to hurt independent film.

The official order, issued Friday by Judge Mukasey and obtained by indieWIRE, reads:

For the reasons set forth in open court on December 2, 2003, defendant is preliminarily enjoined from taking any action to implement the ban on awards screeners as described in its press release dated October 23rd, 2003. This injunction will not be interpreted to forbid any activity in furtherance of conducting this litigation, or any advocacy protected by the First Amendment, including advocacy addressed to the topics of (i) piracy of motion pictures, and (ii) the desirability vel non of distributing awards screeners.

Defendant’s application for a stay of this order is denied.

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