The recent “screener ban” court case—which pitted a consortium of indie plaintiffs against the Motion Picture Association of America (MPAA)—was a defining moment for New York independent film, up there with The Blair Witch Project‘s box office success or the acquisition of production company Good Machine by Universal. The MPAA ban, an anti-piracy effort, forbade the studios and their subsidiaries from sending out VHS and DVD promo copies to Academy members, critics’ groups, and guilds. Calling the MPAA ban an “unlawful restraint of trade,” Judge Michael B. Mukasey’s decision to lift it was a triumph for studio art-house divisions, which see “screeners” as a key way to level the playing field in awards races. But the case also emphasized the chasm that has long existed between independent filmmakers and the companies that distribute and promote their movies; at the same time, it suggested that the gap may be quickly narrowing.
“What’s been made very clear is that independent film production is a mature part of the industry,” says Antidote Films producer Jeffrey Levy-Hinte (Thirteen), one of the most outspoken plaintiffs in the lawsuit. “We’re no longer the scrappy upstarts.” But by challenging the studios that his livelihood depends on (20th Century Fox owns Fox Searchlight, which distributed Thirteen), Levy-Hinte acknowledges he is now in a precarious position. “There are some people who won’t be returning our calls,” he admits. But Michelle Byrd, executive director of the Independent Feature Project, another plaintiff in the suit, notes that the case helped solidify a network of indie auteur power, driven by the likes of Robert Altman and Ang Lee, who got behind the campaign to overturn the ban. “It united the coasts and the production community,” she says. “The groundwork for advocacy has been laid.”
“The dominant monopolies need to be inclusive of the true independents on discussions that affect all of us,” says producer Ted Hope (American Splendor, 21 Grams). “The creative community recognizes that the specialized independents function as a farm league for the studios, so the business apparatus needs to recognize that, too.”
However, despite an obvious desire to end the ban, the studios’ “specialized” subsidiaries or “dependents”—from Fox Searchlight to Focus Features—stayed out of the case, with the exception of Miramax screener king Harvey Weinstein, who submitted into evidence a declaration calling screeners “an important part of the success of an independent film,” and new Warner Independent Pictures chief Mark Gill, who actually testified against the plaintiffs. (Says Levy-Hinte, “He tried to do what was right in serving his employer.”)
The dependents’ enforced loyalty to their parent companies might make some independent producers wary of dealing with them, but as Levy-Hinte attests, “If there was a genuine choice, one would err on the side of the non-corporate-controlled industry, but if we want to cover our negative costs, we have to sell to a mini-major.” Moving forward, Ted Hope expects producers to demand contracts that explicitly allow for the sending out of screeners.
Hope says the dependents’ complicity with Hollywood is no reason to be discouraged. “If American Splendor and 21 Grams were going to get hurt by an anti-free-trade action by the studios, there were 15 different producer groups and two organizations that rose up and found a way to combat it.” Hope, along with this loosely affiliated independent collective, is confident that they now have the studios’ ears. Levy-Hinte vows it’s time to start talking about such topics as the lack of aggressive tax incentives and the notorious MPAA ratings board. “I think the ratings are the next frontier,” he says.