Last Friday a federal judge agreed to the Department of Justice’s petition to “vacate” the Paramount decision. What does this mean? Why should you care? If you aren’t interested in films, or in going to the cinema again once there’s a vaccine, then it doesn’t affect you very much. But if you are still a cineaste, currently obliged to slake your thirst for art online, the decision matters… as we shall see.
The Supreme Court decision in US vs. Paramount Pictures in 1948 broke up the vertical integration of film distribution: the big studios could no longer own cinemas, and exclusively screen their own films. This is why there are cinemas – old, splendidly decorated movie palaces – called the Paramount in some American cities. They were built, and owned, by Paramount Studios, and showed Paramount films. In 1948, the Supreme Court ruled that studios couldn’t own cinemas, and for 72 years that was the case. On Friday, U.S. District Judge Analisa Torres found “that termination of the Decrees is in the public interest”, and set the Supremes’ decision aside. Judge Torres’ reasoning is bone-headed in many ways, and I don’t understand how a lower court gets to overrule the Highest Court in the Land. But apparently it does, and as of this week, Paramount can be an exhibitor again.
Not that they would want to, especially when all US cinemas are closed. Paramount is only a small studio, a modest beneficiary of this amazing pro-trust US government largesse. The real beneficiary is the mega-studio, Disney, which in 2018 swallowed its rival, 20th Century Fox. Last year Disney movies (which include the Marvel and Star Wars franchises) took forty percent of the US box office. Disney can extract extraordinary terms from theaters: insisting that its films play for X number of weeks, on the largest available screen. Given such power Disney doesn’t need to own theaters. But now it can, if it chooses to. Or if invited to. Last week, the US government ordered the Chinese company Tik Tok to sell its US interests to Microsoft. The AMC theater chain is also Chinese-owned. Disney would no doubt be happy to take it over, in return for generous taxpayer concessions.
“Multiplexes, broadcast and cable television, DVDs, and the Internet did not exist” when US vs. Paramount was decided, Judge Torres wrote. “Subsequent-run theaters no longer exist in any meaningful way.” Clearly the Judge is bang up-to-date on high-tech developments like broadcast TV, and DVDs. But what she says is untrue. There are hundreds of independent movie theaters in the US, which play a mix of “subsequent-run” studio movies, independent, and foreign films. The Judge’s contention that “consumers” only see films at home after their initial theatrical release is an evidence-free assertion. Has she never been to an art house? Never seen The Rocky Horror Picture Show?
Even before the coronavirus and Torres’ dead-wrong decision, independent cinemas faced new difficulties – thanks to Disney. As this article from Vulture shows, since acquiring Fox, the Disney execs have dropped that studio’s back catalogue into what is apparently called the Disney Vault. Here old Disney (and now old Fox) films are kept in darkness. They are not let out to be screened, or seen, except perhaps at a favored venue such as Film Forum. Decades go by, and no one can see them, until the execs decide it’s time for an “official” re-release. Well, I supposed it’s their business, and looking at the list, pretty much all the films Fox made after Murdoch took over the company are rubbish, anyway. Still, independent cinemas derive a fair part of their revenue from showing old Hollywood movies on the big screen, and their inability to screen a DCP of Alien or Fight Club, say, impacts their finances and their ability to screen foreign, or independent, films. My films!
(The saddest think about the Vulture article is that none of the theater owners interviewed will go on the record about Disney’s business practices. They are all afraid of retaliation, from Disney.)
I see a solution. Rather than litigate separate anti-trust suits to ban the Disney Vault and vertical integration (save that fight for Amazon), the US government simply needs to lower the copyright period, from a ridiculous 95 years from publication, to something reasonable, like 20 years. That way all those great Disney pictures like Sleeping Beauty and Fantasia and Pinocchio will be in the public domain, along with the good movies Fox sometimes made before Murdoch came along.
I’m sure that this will be a priority for President Sanders, once he… oh… wait…
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