This story was updated at 8:58 p.m. PT.
HOLLYWOOD — On Monday, studios weighed the issue of what tapes to send and to whom. And, as with every step in the Screener Wars, there was plenty of confusion and contradictory information but few absolute answers.
Warner Bros., Disney and Universal on Monday said they will adhere to the original terms of the voluntary ban, sending out screeners only to Academy of Motion Picture Arts & Sciences voters who have signed the screener agreement.
Other studios were not so decisive. Several execs seemed bewildered by their own studio’s stance: Legally, the court seemed to enable a wider mailing, but some studio bosses are still against any change in policy.
And several reps from the plaintiffs in the suit indicated Monday that if any studios wants to stick to its Acad-only plan, they should do some serious rethinking.
A strong warning from the plaintiffs’ attorneys on Monday indicated that the court ruling was not an invitation to change their policies — it was a command. The attorneys said that legal action would ensue “should some or all of the studios continue to conspire in restraint of trade” — i.e., ignore the decision that screeners could be sent to a wider group.
A third issue: Several indies (e.g., Lions Gate) are sending their films to other kudos groups, and several “art-house” divisions on Monday said, off the record, that they also plan to send out tapes to other groups.
If that’s true, big films from the majors could feel “penalized” if they’re not similarly sent out. Studio reluctance to change plans may antagonize filmmakers and talent.
And will others (film critics, SAG nominating committee members, etc.) be asked to sign a declaration, similar to the one presented to Academy voters, that they will accept full responsibility for the tape?
“We are planning to send VHS cassettes of certain titles to Academy members who have requested them,” a Universal spokesman said. “At this time we do not have a plan to send them to any other group.”
A spokesman for Disney similarly said it is sending out tapes to Academy members only.
At first glance, it would seem that each studio and distributor is free to decide which screeners to send and to whom. But a letter from plaintiffs attorney Greg Curtner Monday warned that studios could face further legal action including injunctions and damages should they fail to comply with lifting the ban.
“The plaintiffs’ position is that the studios, as controlling members of the MPAA, should follow the court’s ruling and cease their unlawful behavior,” said Curtner, attorney for Miller, Canfield, Paddock & Stone.
“Should some or all of the studios continue to conspire in restraint of trade, however, we remind you that the antitrust laws are enforceable against each member of the conspiracy and can be enforced with a variety of remedies, including injunctions and damages. A refusal to abide by an injunction is grounds for contempt findings.”
The letter stated that the injunction to cease implementation of the ban pending resolution of litigation was clear: “The implication of that ruling should be obvious — the major studios are required to cease their concerted action in refraining from using screeners and in prohibiting sister and subsidiary corporations from so doing.”
Jeff Levy-Hinte, one of the key plaintiffs and a witness for the indie coalition behind the MPAA lawsuit, said Monday: “Even though the ban has been lifted we are not prepared to rest on our laurels without ensuring that our rights are protected.”
The indie coalition has antitrust experts who can be made available to any distributor that wishes to discuss its rights regarding the screener issue.
“It appears that the studios are interpreting Friday’s ruling properly and deciding on a case-by-case basis, and that’s exactly as it should be,” Levy-Hinte said. “But from what’s been reported it seems that one studio in particular is contributing to observe the ban, which we interpret as contrary to the court’s ruling.
“It’s in our interest to act cooperatively in continuing to seek to correct the wrong which the initial ban created,” he continued. “But it’s not beyond our capacity to begin looking toward individual studios if that’s what it takes.”
Edward Zwick, director of “The Last Samurai,” which is being distributed by WB, on Monday said he is not sure that it’s relevant whether other groups receive screener tapes; he thinks Academy voters are minimally influenced by other prizes.
“I’m not sure that everyone, once they have (the screener tapes) and look at them, are influenced by anything else,” Zwick said. “The campaigns and the ads may have some influence, but I am not sure that they — Academy voters — are then swayed by ‘the tide of wins’ at the Golden Globes or the critics awards.”
However, the Academy’s own agreements are in question. Approximately 4,700 of the org’s 5,800 members signed pacts stating they’re responsible for tapes sent to them. If other companies send tapes to those who didn’t sign a similar agreement, Acad signees will wonder if they’re being held more liable than other people.
Academy executive director Bruce Davis says, “We can’t conceive that any company, having imposed the screener agreement on one set of Academy members, would then create a second set of AMPAS members not bound by any agreement.”
(David Rooney in New York and Claude Brodesser in Hollywood contributed to this report.)