NEW YORK — If the indies vs. MPAA case were a movie, reviewers might have said Wednesday’s session suffered from poor pacing, fuzzy exposition, overlength, a heavy walkout rate at intermission and lack of a solid conclusion.
The conclusion, at least, is expected Friday.
And there was at least one twist in the appearance of Mark Gill, president of the nascent Warner Independent Pictures specialty unit, who testified for the major studios. Most of the other speciality division chiefs were no-shows, citing travel conflicts or claiming they had not been properly subpoenaed.
After six hours in a Lower Manhattan Southern District courtroom Wednesday, presiding judge Michael B. Mukasey postponed a final ruling until Friday morning on the request by the coalition of independent filmmakers for a temporary restraining order against the Motion Picture Assn. of America’s ban on awards-consideration screeners.
“Obviously, if my life depended on it. I could get you a decision today,” Mukasey said at the close of the session. “I don’t think it does.”
Much of the suspense around the evidentiary hearing centered on the appearance of the studio specialty division chiefs who were subpoenaed Monday: Miramax’s Harvey Weinstein, Sony Pictures Classics’ Michael Barker and Tom Bernard, Focus Features’ David Linde and James Schamus and UA’s Bingham Ray.
While those execs all stayed away, Weinstein did send a detailed declaration that was admitted into evidence.
“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,” said Weinstein.
“A successful awards season can mean the difference between a movie grossing $5 million at the box office and a movie grossing $20 million,” continued the Miramax chief’s five-page statement. “A successful awards season can boost the careers of independent filmmakers … (and) is an important part of the development of future independent films.”
While the indies could have used a heavy-hitter like Weinstein on the stand, the MPAA weighed in with two hours of testimony from president-CEO Jack Valenti, who reiterated that the screener ban was introduced not as an anticompetitive measure or to harm specialty films but simply as a means of fighting piracy.
“It had only one reason and that was to prevent the theft of valuable and creative works,” Valenti said. “Any time there is piracy, it hurts everybody in the industry, not just the studios. It elevates the culture of piracy. Piracy has become a malignant fungus on the face of the industry, and it’s growing more virulent as we speak.”
In the day’s most surprising turn, the defense called Gill, a veteran of awards campaigns at Miramax and other distribs and currently prexy of Warner Bros.’ nascent specialty film arm, Warner Independent Pictures.
“The prime consideration is making sure your film is in theaters at the time voting is taking place,” Gill said. “Screeners are one of six or seven other areas that are important. I’m convinced this can work without screeners.”
Gill detailed how successful awards campaigns were mounted for films like “In the Bedroom” and “Frida” when screeners were withheld until late December, forcing voters from various guilds and kudos orgs to see the pics in theaters.
That view has privately been called into question by other sources close to Miramax, who say cassettes went out for “Bedroom” within a week of the film’s opening and that Gill had already left the company when “Frida” was released so is in no position to talk about that film’s campaign. One source said Gill’s reasoning was based on an outdated timeframe that does not apply to the new shortened awards season.
Gill also pointed to the Directors Guild Awards, in which he said independent helmers are “routinely nominated” despite insisting that all entries are seen in theaters. While many question what the WIP chief is defining as independent, Gill said 26 directors of indie pics had been nominated over the past 13 years, representing 40% of the total.
“That’s a phenomenal record, I think even better than the Academy,” he explained.
The appearance of Gill underlined what a bitterly divisive issue the screener ban has become for the industry: Among the plaintiffs the defense witness attacked were “Bedroom” producers Ted Hope and GreeneStreet Films; and Killer Films, which produced WIP’s forthcoming maiden release “A Home at the End of the World.”
Many in court pointed quietly to the significance of Gill being on the payroll of the screener ban’s principal studio architect.
“I believe there isn’t going to be any harm from the screener ban and I think it will help all films, including independent films, to prevent piracy,” Gill said. “If I didn’t strongly believe there would be no impact in the awards process, I wouldn’t support it. My livelihood depends on awards, so that would be career suicide.”
In addition to Gill and Valenti, the MPAA called its senior VP-director of worldwide antipiracy, Kenneth A. Jacobson, to testify. The indie coalition heard from plaintiffs Hope of This is That and Jeffrey Levy-Hinte of Antidote Films and filed a number of declarations, including a statement from Screen Actors Guild Awards producer Kathy Connell and one from Hollywood Foreign Press Assn. president Lorenzo Soria.
“The use of screeners is an important tool,” wrote Connell. “With many SAG members of the nominating committee located outside of New York and Los Angeles, screeners have become essential for members to have an opportunity to view the film prior to casting their votes.
“With over 50 films opening in the final weeks of the year, it is unreasonable to believe SAG members can attend screenings in different locations many times a week,” she continued.
More than one speaker on the MPAA side cited the fact that the 10 best list announced Wednesday by the National Board of Review contained six indie films despite screeners not having been a factor. However, the fact that those awards are voted by a small screening committee board would appear to make the information irrelevant.
Levy-Hinte’s testimony appeared to make the MPAA lawyers sweat when excerpts were read from email correspondence he received from Peter Rice, president of Fox Searchlight, which released that plaintiff’s production “Thirteen.”
“I would prefer to send out screeners for ‘Thirteen’ to a broad number of award bodies, as such dissemination would enable more people to see our excellent film and its exquisite performances,” wrote Rice. “Without them seeing the film, it will undoubtedly be much more difficult if not impossible for ‘Thirteen’ to receive the recognition it so richly deserves.”
“I think Peter Rice is a real friend of independent filmmaking and he desires the best for every film he distributes,” said Levy-Hinte. “I regret that the MPAA put me in a position where I had no choice but to reveal an email he sent me in confidence.”
While the indie faction argued that piracy has had little or no economic impact on independent features, the MPAA countered with a list of examples compiled by Gill.
More specifically, MPAA attorney Richard M. Cooper pointed repeatedly to the recent news that pirated copies of Lions Gate releases “Girl With a Pearl Earring” and “The Cooler” are available online, reportedly dubbed from DVD screeners that went out to the Academy before Thanksgiving.
This prompted speculation about the timing and origin of the news, which presented the MPAA with crucial evidence and was leaked Tuesday to Daily Variety by a major studio publicity maven with no link to Lions Gate.
While the indies seemed to be running a distinct second through most of the day, the group’s lawyer, Gregory L. Curtner, gained considerable ground in his summation. By contrast, judge Mukasey was curtly dismissive of Cooper’s final claims.
“I feel very positive and optimistic,” Hope said. “But I’m disappointed a ruling couldn’t be made today because every day hurts these films.”
“I think it’s clear-cut that we had the more persuasive arguments and the judge’s response to our closing arguments was much more congenial and less combative than with the defendants,” Levy-Hinte added. “We’re quite hopeful for Friday.”