More than anything, this back-and-forth shows what a nasty piece of work Bruce Davis is. How the Academy Of Motion Picture Arts & Sciences keeps his job as executive director is one of Hollywood's great mysteries. Here's the update to Does AMPAS Screw Indies With Rule 12? with the AMPAS response to Gigantic Releasing's Mark Lipsky (edited to remove address), followed by Lipsky's rejoinder:
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July 13, 2009

Mr. Bruce Davis
Executive Director
Academy of Motion Picture Arts & Sciences

Dear Mr. Davis,

Thank you for your response to my July 6 letter to Mr. Ganis.

With all due respect, comparing “Must Read After My Death” to made-for-TV productions by Playhouse 90, reaching back to the 1950s for support of a 21st century rule seems a curious stretch. You write that the Academy governors of the 1950’s made a decision to “focus their attention on theatrical films.” With that statement, and somehow without realizing it, you’ve made my central point for me. “Must Read After My Death” is very much a theatrical film. Morgan Dews worked tirelessly for several years to research and produce the picture and, as you know, it was exhibited theatrically in New York and LA.

You must also be aware that, even in better times, independent filmmakers have traditionally had to struggle as hard to achieve distribution for their films as for getting them made at all. It often required generous amounts of pluck, luck and timing for them to realize their dream of a theatrical release. Today that outcome is more difficult to achieve than ever.

I’m a veteran distributor with deep respect for theatrical distribution and exhibition, but I’m also deeply committed to the health and well being of independent vision. My eyes are wide open to the changing technological landscape (I don’t agree with you that it’s “slippery”) and I see it as others increasingly do: the only way forward. The past decade has demonstrated that the long-established model of theatrical distribution and exhibition simply no longer works for the independent/documentary side of the business. In its present form, it is a dying sector. Don’t you think it’s incumbent upon all of us to recognize the danger and act quickly and decisively? We have finally reached a technological tipping point where dedicated distributors can offer films at a level of quality and with an ease of use that respects the art of filmmaking and has the ability to significantly grow the audience.

I don’t think anyone would yet argue against the Academy’s requirement for theatrical play and I’ll leave it others to argue for or against the No-TV rule. But what possible difference can it make to the governors of 2009 if a film is exhibited digitally day-and-date with its required theatrical engagements? In today’s increasingly difficult environment for independents, the first-run window – the very theatrical window that the Academy’s rules insist upon – is by far the most critical one. It is the time during which the most money will be spent, the most marketing and PR will occur and it determines the ultimate fate of the picture. When fewer and fewer distributors are willing to take these films on, when releasing a film theatrically has never been more challenging or more expensive, what reason can be motivating the governors? Why cling so desperately to the past? You suggest that snobbery may have played into the governors’ edicts of decades past. But to deny an independent filmmaker the freedom to be as strategic as possible in that first run window, to deny them the opportunity to fully embrace the internet until after it’s not likely to matter very much, advances from snobbery to meanness.

In the past, with regard to ratings issues, the Academy has argued that there is no requirement for filmmakers and distributors to submit their films for ratings. True, no requirement, but there are certain and decisive penalties for films that enter the market unrated. Likewise, films that cannot qualify for Oscar consideration lose an opportunity for vital industry and consumer recognition both for the film itself as well as for its creators.

So once again I ask, provided that the NY/LA theatrical requirement is being satisfied, what overriding significance do you perceive in the 60-day delay for internet transmission?

You are exactly right to point out that we should have known about the internet transmission rule. Mea culpa. You write that since only “Must Read” can benefit this year from the rule change, the rule cannot be changed. Why not, then, use the example of “Must Read” to announce a rule change for next year?

The internet will increasingly be the delivery mechanism for independent films. That doesn’t mean they are any less significant or worthy of consideration than great independent films of the past – Academy-award-winning films – that, in another time, lived their theatrical lives entirely in bricks and mortar cinemas.

Please take this opportunity to demonstrate that the Academy recognizes the changing times.

I’d be more than happy to continue the conversation at your convenience and I look forward to hearing your further thoughts on this vital issue.

Most sincerely,
Mark Lipsky

Cc: Sid Ganis