It Was Great Day For The Movies

May 3, 2004
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DETROIT — Independent filmmakers probably couldn’t have written a happier ending than the one they got in this real-life legal drama that threatened their livelihoods.

They not only got a ban against screeners lifted for the Academy Awards in February, but the group of low-budget movie producers also succeeded in erasing the ban for all awards to be given out this year and likely for next year as well. Screeners are promotional videotapes or digital discs of films that are sent to members of the Motion Picture Association of America for awards consideration.

Just over a month ago, the Coalition of Independent Filmmakers and the nonprofit service organizations IFP-New York and IFP-Los Angeles reached a settlement with the MPAA that effectively ended its prohibition on issuing screeners.

The terms of the settlement are confidential.

“I think we can say that we are comfortable given the statements by the MPAA that there will not be a screener ban initiated, or implemented, by the MPAA this year, and I would feel comfortable in predicting not the following year,” said Gregory Curtner, of Miller, Canfield, Paddock & Stone PLC, the lead attorney for the plaintiffs, the independent filmmakers.

When a film wins a top honor, like an Oscar, the box-office and video sales take for a movie usually rises. In September, however, the MPAA banned screeners as part of its attempt to combat piracy — the theft of intellectual property.

Often the only way voting members can see independent films is by viewing the tapes or discs, as these films don’t normally get the national distribution that movies from the major studios receive. So the independent filmmakers started a “Ban the Ban” campaign, and they filed an antitrust lawsuit against the MPAA and the major studios.

In October, the MPAA removed its ban — but just for the Academy Awards.

Then in late March, the MPAA agreed to lift the ban, period, after a U.S. District Court judge in southern New York enjoined the association in December from implementing its screener ban, a decision that allowed individual distributors to send out screeners.

Chief Judge Michael Mukasey ruled the independent filmmakers had shown that the restrictions placed on their films were a probable violation of antitrust laws.

Mukasey also ruled that the MPAA’s action put the indie films at a distinct disadvantage during awards season and likely had a damaging effect on the movies’ long-term revenue streams.

Reaching a mutually acceptable settlement also meant pending litigation was dismissed.

“They have filed a notice of appeal of our injunction to the Second Circuit and, at least in theory, we had the right to continue the lawsuit to try to seek damages or to try to seek a permanent injunction. So they dropped their appeal and we dropped any remaining requests in the lawsuit,” said Curtner.

The Miller Canfield legal team in Ann Arbor and New York argued for the Coalition, which consisted of 15 independent filmmakers, and for the IFP. Attorneys Rick Juckniess, Kimberly Kefalas, Aileen Kaur, Susan Robbins, and legal assistant Eric McLand assisted Curtner in the case.

“It was a significant channel of distribution and a significant channel of promotion and we were able to unclog it,” said Curtner, whose firm has an office in Grand Rapids.

The legal team went up against Hollywood’s heaviest hitters, the studios that capture roughly 95 percent of the industry’s revenue.

The domestic gross last year was just under $9.2 billion. In the MPAA, indie producers, like Forensic Films, took on Walt Disney, Sony, MGM, Paramount, 20th Century Fox, Universal, Warner Brothers, New Line and DreamWorks.

The IFP called the work the legal team did a “miracle.”

“In any given year, the little people without deep reserves of cash and ties to top-tier law firms usually only win in the movies,” said Dawn Hudson, executive director of IFP-Los Angeles. “I personally thank our antitrust attorney, Greg Curtner, who took on the case when all the established Hollywood attorneys would not.”

For Curtner, the outcome was personally rewarding.

“The little films really suffer when it comes to awards time if they can’t be seen by the committees that give out the awards on screeners.

“Everybody sees the big films anyway,” Curtner added. “So it’s highly satisfying because it helps improve, in my view, the overall quality of the movie business. When these small films win awards, it forces the big guys to pay attention,” he said.

“It was a good day for the movies.”

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