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The Trouble with Oscar: Do New Academy Qualifying Rules for Documentary Help or Hurt?

By Tom White

In 2001, the Academy of Motion Picture Arts and Sciences' Board of Governors voted to establish a Documentary Branch--some 60 years after the first Oscar was awarded to a documentary. In the years leading up to this development, the documentary form had twisted precariously in the wind--on two occasions, the governors voted to eliminate the short-form category altogether, reversing its decision after a strong letter and e-mail-writing campaign from the community calling for the category's reinstatement.

Five years later, the Documentary Branch, represented by governors Michael Apted, Frieda Lee Mock and Rob Epstein, who recently filled Arthur Dong's seat, has been working to promote the prestige of the documentary form through programs such as the John Huston Lecture Series and a two-part screening series devoted to the Academy Award-winning docs from 1941 to the present. But the area that has presented the most challenges in navigating between the needs and concerns of the documentary community and the scrutiny of the rest of the Academy's Board of Governors has been the rules for qualifying one's documentary for Academy Award consideration.

One can call the Awards Department at the Academy at 310.247.3000 and ask for a copy of the most recent version of "Rule Twelve: Special Rules for Documentary Awards." The major changes in the rules, as approved last December, have been in two areas: (1) the theatrical rollout beyond the Seven-Day Qualifying Exhibition in Los Angeles County or the Borough of Manhattan in New York City, and (2) the digital cinema standards for the Seven-Day Qualifying Exhibition. Those changes are also the primary areas of concern within the documentary community, along with an ongoing issue: television sales, often the driving force in getting one's documentary made.

The Theatrical Rollout

The Seven-Day Qualifying Exhibition for feature documentaries, instituted in the mid-1990s, states, for 2007, that "features must complete an exhibition...between September 1, 2006 and August 31, 2007 for paid admission in a commercial motion picture theater...for a run of at least seven consecutive days, at least twice daily."
In 2002, the Documentary Branch Committee voted to incorporate a four-city theatrical rollout, beyond the seven-day qualifying exhibition, as a requirement for qualification. At the root of this decision was the need to distinguish between a theatrical documentary and a television documentary. "What was happening historically is that the Board of Governors looked at the films that were winning," says Mock. "After the documentaries did their seven-day run, you never saw the films again in theaters. Instead they were not only not showing up in theaters across the country, but they were winning the Oscar after a seven-day run one Sunday and they were on TV the following Sunday. That was a tipping point with the Board of Governors. They looked at us: 'Aren't these television documentaries?' That certainly was the question that fed into the '90s, when they voted to eliminate the Oscar to short-form documentaries. They said, 'These are television documentaries; these are not theatrical documentaries.'"

In 2005, the committee voted to double the number of cities on the rollout, to eight. And now, with the new rules, the multi-state theatrical rollout stipulates that feature docs must play in 14 cities among ten or more states, for at least three consecutive days and twice per day in each city. But unlike in previous years of the theatrical rollout, the films can be exhibited in any standard commercial format.

"The idea was not to stop at four or eight or 14, but to roll out your film," Mock explains. "That's what the academy puts in its by-laws: 'Supporting the art and craft of theatrical motion picture.' I think the reason it went from four to eight to 14 is a combination of the fact of the increase in digital technology; we were getting more and more submissions, and the question was, How do you service the way the screening process works? How are you going to get volunteers to look at submissions if there are too many? Were these submissions theatrical? We were finding that within the submission papers one has to spell out a theatrical rollout plan for the year, and close to half of them had no theatrical plan."

For many documentary makers, the prospect of taking one's documentary to triple the number of cities since 2002 is a daunting one. Patricia Foulkrod, whose film The Ground Truth was short-listed for Academy Award consideration, had the benefit of having Focus Features as a distributor. But even a mini-major like Focus might balk at the prospect of jumping to 14 cities. "That's double the number of cities--of ads in newspapers, of manpower," she notes. "If you're a major company that's going to make a decision to put a documentary in 14 cities, you're going to do it the way they do everything. I don't know if the question is, Can a major studio meet the requirements? I think the bigger questions are: What is the commitment of major companies to documentaries? How can we make that a commitment that's a win-win?

"What's ironic to this is that you're picking 14 major cities at a time when all of the major chains have been condensed," Foulkrod continues. "You only have a few friends out there--Laemmle and Landmark and a handful of indie theaters that are trying to stay alive. And you're going to show up and say, Hi, can I come in for two or three days? You're putting people in a begging position. It's not a position that nurtures a film. What the 14-city tour is saying is: The only people who are going to be nominated next year are people with deep pockets, and what a lot of people will have to say is, Well, I have a good doc, but the academy is just not one of the places where my film is going to be recognized."

As Udy Epstein, whose company Seventh Art Releasing is distributing Stanley Nelson's Jonestown: The Rise and Fall of Peoples Temple, points out, "At least half of the films on the short list this year would not have qualified if next year's rules had been applied. For us, 14 vs. eight is a big difference. The costs which are forwarded to the filmmaker would also have to go up. It's not impossible, but it's going to make it a little difficult."
"We're trying to do the right thing," explains documentarian and feature director Apted, who also serves as president of the Directors Guild of America. "I wouldn't say that Michael Moore has had a bigger part of the theatrical success of documentary, but I think that our insisting on these rollouts will help as well. We would like to expand it; we don't want to try to be burdensome. We want to try 14 this year and see how that goes. If it doesn't work and people are upset, then we'll have to revisit it. We didn't think it was onerous; there are lots of art house cinemas and small theaters, and it's only for three days, so we didn't think this was too onerous to qualify in a genuine theatrical run."

In looking at the art house cinemas, Epstein does posit a reasonable way to carry out the rollout: "The one good thing about the three-day run is that it is more likely to be able to secure that in secondary venues than it would be to secure it for a one-week theatrical run in smaller markets. For the most part, 99.99 percent of all exhibition systems are all interested in the bottom line. However, for the calendar houses, which have a calendar sent out ahead of time, they can book the film not for a week but for three days, and it's still a real theatrical run. But it has the advantage of being on the calendar, so their subscriber base will come see the film."

"However, in that quest of making sure that only theatrical documentaries get considered," Epstein continues, "it's very hard to define what theatrical is; you can't just define it by commercial box office potential. As a matter of fact, most of the rules are set to protect a film from the commercial and box office appeal, which is to say that voters have to watch all five films [including those that did not make as big a splash as, say, An Inconvenient Truth. The 14 cities is not going to make a film that I'm chaperoning an overnight success. There's always the injustice, if you will, that a producer will have to give up, or they're not going to have the money to do it. In a way, it might actually drag some self-distributing filmmakers out of the game."

Filmmaker Michael Tucker (Gunner Palace; The Prisoner or: How I Planned To Kill Tony Blair) does see the importance of commercial appeal in factoring in the malleable definition of theatrical documentaries. "I think that's actually a good thing to recognize that is just as commercial as the other branches of the academy," he says. And along those lines, Tucker is calling for stricter theatrical requirements to get the film out there. "I think the four-walling has to stop. Either you're going to say that theatrical doesn't matter anymore or you're going to say that it matters. And the thing that matters about theatrical in the business is where you get reviewed; it's where you are artistically recognized. It still matters to be in theaters. If people are getting disqualified because of TV sales, and someone's out there four-walling...their movie is never reviewed; no one's heard of it, and it's on the short list. It's one thing to make a film as an art, and marketing a film is another art. And that's what the normal part of the academy recognizes: It's not just the best-made film; it's the film that was able to touch the public. And that's measured on the screen; it's measured in dollars."

Television Sales

Tucker's film The Prisoner or: How I Planned To Kill Tony Blair did not qualify for Academy Award consideration because he had made foreign sales of the film in Australia and to the BBC, both of which were anxious to air the film because of the timeliness of the subject. Two of the more critically and commercially successful documentaries over the past few years--Control Room and Why We Fight--did not qualify either, for similar reasons.

According to the Academy rules, "A feature documentary film is not permitted to have any type of television or Internet transmission until 60 days after the first day of its Seven-Day Qualifying Exhibition, and until the completion of its Multi-State Theatrical Rollout. And no type of television or Internet transmission shall occur at any time prior to the first day of the Qualifying Exhibition."

"The foreign sales is super important," Tucker asserts. "In some cases people will say that the foreign sales agent screwed up and didn't have a holdback, but at the same time you also have to ask, 'Where does this money come from? Who's paying for these films?' You take the money where you can get it. There's very little support for financing films in the United States, and I'm glad that we have an aggressive foreign sales agent, and if someone wants to buy it and air it...I also want people see the film when it matters. I don't want them to see it 12 or 18 months later. Look at the new crop of Iraq docs: Most of them were shot in 2003 and 2004. It's 2007 now; that's just not fast enough to get your stuff out there."

"They got the timing wrong," says Apted of the BBC and other foreign commissioning editors that aired both Control Room and Why We Fight. "If a television company is interested in using the academy as a marketing and selling tool, surely it can wait until it has completed its qualifications, which, if they're serious about it, doesn't take a long time. A documentary can safely run on television without jeopardizing its Academy chances 60 days after its initial qualifying run in LA [or the Borough of Manhattan]. So, it does its seven-day qualifier and its theatrical rollout, then it can go anywhere 60 days after the first day of the qualifier. Since the date to start qualification is September 1, 2006 for nomination and awards the following February, a documentary could go on TV on November 1nearly four months before the Oscars are handed out."

Short Documentaries

For the short subject documentary, the rules are slightly different. While the same seven-day qualifying exhibition applies to the short form--except the short doc must be screened at least once daily, rather than twice--the film has the option of satisfying one of two requirements: (1) The film must complete a multi-city theatrical rollout to four US cities, with exhibitions of at least two consecutive days in each city. Both the seven-day qualifying exhibition and the multi-city rollout must be completed, with documentation of advertising and exploitation, by September 4, 2007. (2) If the film completes the seven-day qualifying exhibition only, "It must be withheld from television or Internet transmission until 180 days following the day nominations are announced." In addition, should a short documentary receive a nomination, the film must be "contractually available for theatrical release during the 180 days following the day nominations are announced."

Chuck Braverman, whose 2000 short documentary Curtain Call was nominated for an Academy Award, and whose last two films, Abused and A Revolving Door (both produced and directed with Marilyn Braverman), were on the short list, contends that "The reality of theatrical is that there is very little income for theatrical distribution for long or short form docs--especially shorts. Therefore, you have to be eligible and sell to TV to make a living. For example, with last year's film that I was short-listed for-Abused--I made a version for A&E and sold it to them. This year I sold A Revolving Door after the film was submitted--to HBO. I qualified it in the extra cities in the slight chance that it might win so that it could run any time after the Oscars, but again that's a financial hardship."

The Collapsing Windows

In this rapidly morphing media landscape of video-on-demand, podcasting, mobile content, day-and-date and a plethora of other scenarios soon to be developed, the media arts industry is both trying to keep up and assessing the viability of the traditional models of theatrical exhibition and distribution. And what about the academy? "The governors are very alert and alive to this," says Apted. "The problem we have at the academy is the problem we have in the whole industry--not being perceived as a dinosaur but figuring out what's significant and important to the ongoing development of the industry--and to try to keep up with it. Clearly, it's a very fast moving horizon."

"You're going to see it this year because of new players like Netflix through its theatrical arm, Red Envelope Entertainment," says Tucker. "They're looking up and down on how to do this. They think theatrical is still important, but that window is going to collapse. It may not be day-and-date, but it's definitely going to collapse. It could be Netflx or pay-per-view. Look at what IFC is doing with pay-per-view; they're doing incredible numbers with that, in a service that no one thought would work."

The Digital Standards

During the Seven-Day Qualifying Exhibition, the film must be projected in either 16mm, 35mm or 70mm film, or in keeping with the following digital standards, as stated by the Academy's Science and Technology Council: "A 24- or 48-frame progressive scan format with a minimum projector resolution of 2048 by 1080 pixels; source image format conforming to SMPTE 428-1-2006 D-Cinema Distribution MasterImage Characteristics."

These standards, which apply to all genres, have caused some consternation among the documentary community. In Los Angeles, for example, three major exhibitors that have a strong history of screening documentaries--Laemmle, Landmark and the ArcLight--have digital projection, but it doesn't meet the Academy standards. What the IDA did for its 2006 DocuWeek Theatrical Showcase for the seven-day qualifying run that ran at the ArcLight was rent the necessary equipment, with the generous support of Langley Productions. But the cost for the independent filmmaker to do the same would be challenging to meet.

"We should be able to project our film digitally in a system other what I'll call 'The George Lucas System' that runs at some at some theaters," says Braverman. "There are some other systems, like at the Landmark chain, where one can say, 'My God, if it's good enough for the Landmark chain, that's theatrical distribution!'. If it wasn't, people wouldn't be paying their $10 to get into the theater."

The 35mm Proposition

If a documentary makes it to the short list, then the filmmaker must submit two 35mm prints (as well as 35 Region 1 NTSC DVDs)--another significant line item, and a gamble since, if one shells out considerable money to rent the equipment for the Seven Day Qualifying Exhibition to showcase in those theaters that don't meet Academy standards, and if one is fortunate enough to make the short list, then there's the high cost of making the prints. Therein lies the quandary: Does one wait to see if the film makes the short list before making those prints, or should one make the prints in the beginning and save on the equipment rental?

"We're sitting on the cusp of that decision: Do we have to blow up the film or not?" asks Tucker. "Of course, we'd prefer not to because our source is on digital. We can have a completely legitimate theatrical run projecting all-digital at the Landmark theaters and be stuck with $25,000 to do the blow-up. I think it needs a complete re-write and rethink of where the business is."

Says Udy Epstein, "If I were a consultant to filmmakers, I would present it to them and say, 'Look, if you have to spend a lot of money, let's look at the most affordable good-quality 35mm process and go for it because, if you really believe in your film, maybe we should present it on 35mm.' There's something to be said for it--for preservation, and, quite frankly there's still some bias for it."

Clearly, the beat will go in the race for arguably the most visible honor in documentary. The quest for the prestigious prize has its price--and its considerable rewards. It's all in the spirit of sustaining the theatrical documentary and encouraging theatrical distribution and exhibition in a rapidly spinning world of multiple platforms, consolidations and synergies in the marketplace, and shifting economics.

The Documentary Branch Governors held a meeting in Los Angeles in December about the new rules, and are planning on similar meetings in San Francisco and New York in March and April.

"We're going to do this in San Francisco just to get out there because there is a sense of confrontation which I hope we don't exacerbate between the academy and the documentary community," says Michael Apted. "We're all filmmakers. We're trying to do the best to keep the academy allied with the Documentary Branch and also to get the documentaries into the theaters. The rules are to reflect the mandate from the Academy to ensure theatrical distribution, whatever the genre of the film. By doing that, we continue to protect the status of the Documentary Branch within the Academy. The rules, we think, are feasible to get documentaries into the theaters, which heightens the profile of documentaries. Even if they don't make money, people know about them; they're in the culture. Whether they go on to DVD, cable television or network television, they're known about."

"We want to have a dialogue with our colleagues both in and outside the academy about what the academy and the branch do," adds Freida Lee Mock. "It's beyond just the rules and the Oscars; we're very active in helping to bring this genre of theatrical documentaries to the public in various ways. That fundamental understanding is really important to know; we're just five years old as a branch, while the academy has been going for almost 80 years, and its mission has been at its core to support the art and craft of theatrical motion pictures."

Thomas White is the editor of Documentary magazine.

For more information about the Documentary Branch, go to To find out about qualifying your documentary through IDA's DocuWeek, go to