The Man Who Beat Valenti

On Sept. 27, film producer Ted Hope was on the phone with distributor New Line Pictures talking about the Academy Awards campaign for American Splendor , which he had produced. “They said, ‘Well, it’s going to be much different this year,’” Mr. Hope recalled in a nasally, New England–inflected accent, from his Tribeca office. “Because they”-the Motion Picture Association of America-”are going to announce that screeners are illegal.”

Mr. Hope couldn’t believe what he’d just heard. “I was like, ‘WHAT? What do you mean?’” he said. “And he’s like, ‘No, no, it’s really good for everybody. We think this is a really good thing.’”

Mr. Hope thought otherwise. A screener ban, which would have halted the distribution of “For Your Consideration” DVD and VHS cassette tapes to award-giving bodies like the Academy of Motion Picture Arts and Sciences, the Hollywood Foreign Press Association and various trade and critics organizations was a direct threat to the word-of-mouth campaigns that had elevated specialized films from the 200-seat art house to the 1,000-seat suburban megaplex and dozens of Oscar nominations along the way. At the time, Mr. Hope had American Splendor in theaters and was readying the release of a second critically praised film, 21 Grams .

Two days later, Mr. Hope sent an e-mail with the subject head “This could kill us!” to HBO Films president Colin Callender, New Line executive vice president Mark Ordesky, Sony Pictures Classics co-president Michael Barker and his former partners at Good Machine, James Schamus and David Linde, who were now running Universal’s art-film division, Focus Features.

“The proposed moratorium on Academy screeners is entirely absurd,” Mr. Hope wrote in the body of his e-mail. “It will hurt specialized film significantly and will make it virtually impossible for the best work to get the recognition it so deserves.” “Don’t let this happen!” he concluded. “Our future is in your hands. Sincerely, Ted.”

“What was amazing to me, right then, [after the first e-mail], there was this dichotomy between New York and L.A. The L.A. producers, that had this same niche of a small film and big film as I did, or had difficult movies, wrote back to me, the ones that even took that time, and said, ‘Ted, what are you doing? They’ll retaliate against you. You won’t win. And no one’s going to listen. So, just stop.”

But Mr. Hope did not stop. And as he set into motion the events that, on Dec. 5, led a U.S. District court judge to declare the ban violated U.S. Anti-Trust laws, and even pushed MPAA leader Jack Valenti to the brink of retirement, an interesting thing happened to the outspoken 41-year-old producer. Mr. Hope, who seemed content to let his gregarious bow-tie wearing Good Machine partner James Schamus have the spotlight, emerged as the galvanizing national voice of the independent film industry.

“I really think this was Ted’s battle,” said Christine Vachon of Killer Films, who was on set with Mr. Hope, co-producing John Waters’ latest picture, when the screener ban hit the fan. “I also think a big thing was that he galvanized the IFP [Independent Film Project] into becoming an organization that was genuinely advocating for the rights of independent filmmakers.

“I feel like, the IFP to me, I’ve never quite understood what their role is-how they can impact positively on my life as an independent film producer-except, y’know, having to drag my ass to those Gotham awards every year and eat rubber chicken.”

“I’m not hired to agree with anybody, including the studio,” Mr. Hope said. “I’m hired to do whatever is necessary to take the film and make it as best as it can be, to be responsible for the money, to push as hard as I can to make sure that it’s seen by the widest audience.”

On the day the ban was announced, Mr. Hope called IFP/ New York executive director Michelle Byrd and told her: “We’ve got to mobilize this.” The next day, Ms. Byrd released a statement condemning the ban. “This last minute policy change will seriously diminish the diversity and quality of independent films immediately, and the mainstream film industry in the long run,” she wrote. “Oscar consideration is a primary motivating factor behind the funding of riskier films, those of more serious content, films with ambitious narrative aspirations. Lacking Oscar potential these films will not be made.”

Ms. Byrd, who had worked with Mr. Hope when he was a member of the IFP/ New York board from 1992-2002, said, “Essentially, Ted’s been the conscience of the organization, I’d say, probably the whole time I’ve been here. Whenever there are issues that come up, whether they impact him directly or impact the field in a wider sense, he’s always been very vocal in turning to the organization to challenge us, to see if we would be able to take something on. He’s always been very much in favor of the formation of an IFP unified presence.”

When the screener ban first took effect it made explicit the Mason-Dixon line of an East Coast West Coast divide that has existed in the film industry for years, bubbling beneath the surface of every Oscar nod Miramax received. The seven major Hollywood studios implored the ‘dependents’- the tag that industry insiders half-jokingly give to their art-house subsidiaries – and the rest of the specialized film industry to consider the harms of piracy and to think of the future of the movie industry, lest it go the way of the music Industry. As Tom Rothman, co-chairman of Fox Filmed Entertainment, wrote in a guest column in the Oct. 8 issue of Variety : “After all, if movies fall into the thievery morass now afflicting music, Chicken Little will be the voice of understatement.”

But the opposition immediately cried foul, perceiving a fatal threat to their films’ award chances and perhaps, their box office. And out of this schism emerged a well-organized East Coast contingent of film executives, producers, directors, publicists and talent, galvanized not by Mr. Schamus or Mr. Weinstein, but by Mr. Hope.

On Oct. 15, a three-prong attack launched. Mr. Hope wrote a searing guest column in Variety , rebutting Mr. Rothman’s pro-ban piece, and making him the first producer to actually commit his anti-ban argument to print and sign his name to it. “This unilateral, undemocratic, self-serving and truly misguided action reeks of the same arrogance that encourages the head of the NYSE to bonus himself over a hundred million, or corporate leaders from Enron and others to line their pockets while swindling the general public and their stockholders,” Mr. Hope wrote. “The process utilized to enact The Ban speaks of a true restraint on trade, of a cartel plotting against

competition, of the very things that lead to anti-trust suits.”

At that point, members of the Independent Working Group, an ad-hoc consortium of distributors such as Miramax were functioning largely anonymously.

That same day, Mr. Hope released what was referred to in the industry as his “White Paper,” a detailed argument against the ban, with sections titled “Long Term Effect the Ban on Screeners Will Have on the Industry,” “Why the Process Implementing the Ban on Screeners is Misguided,” “Why the Ban Does Not Seem to be Truly About Piracy” and “What Can One Do to Protest the Ban.” This manifesto was circulated throughout the industry to give potential protestors the appropriate arguments to combat the ban.

Also, on Oct. 15, the IFP placed one of two ads that would run in Variety : The first was signed by over 150 directors who opposed the ban, including Robert Altman, Barry Levinson, Sydney Pollack and Terry Zwigoff. The ad was funded by anonymous donors. Another, which ran soon afterwards, was signed by a coalition of industry talent and funded explicitly by the IFP

“Certainly nobody else had the wherewithal to really think the issues through and aggressively advocate for those positions,” said Thirteen producer Jeff Levy-Hinte, who would play an integral role in the trial which eventually saw the ban overturned. “Where Ted was unique was really laying down an intellectual framework for what we were doing and why we were doing it. He was very up front and outspoken and wrote some very key letters to the media, too.”

Although Mr. Valenti conceded and allowed distributors to send out screeners to members of the Academy, by mid-November it became abundantly clear that no more changes were going to be made to the ban. At that point, the ad-hoc coalition led in part by Mr. Hope, Ms. Byrd and Mr. Levy-Hinte, played their final card and brought an anti-trust suit against the MPAA, alleging anti-competitive practices by the lobbyist group. “We tried to remain civil,” said Mr. Hope. “Which in fact later we were very civil: a civil suit.”

Ironically, the independent coalition’s victory was solidified by Mr. Valenti’s testimony. When expounding on his decision, the judge said, “Beyond [the] testimony [of Mr. Hope and Mr. Levy-Hinte] and [Mr. Weinstein's] affidavit evidence, which I credit, convincing evidence that the plaintiffs have show potential injury from the MPAA’s screener ban comes from Mr. Valenti’s testimony that if the ban were not in effect, at least some studios would break ranks and send out the screeners because ‘these companies are hotly competitive against each other.’ If studio executives did not perceive that the risk of piracy were outweighed by the competitive advantages to them of sending out screeners, plainly they would not do so. To find otherwise, I would have to find that well paid and highly successful studio executives do not understand what is good for their company. I have no basis to find that.”

By this point, with all of the negative publicity that has surrounded the ban, it is possible that the judge’s admission did not even make Mr. Valenti blush. And while many agree that Mr. Valenti still has the confidence of the seven studios that comprise the board of the MPAA, Mr. Valenti has admitted that he will probably step down within the next two years. In order perhaps to save face, those involved in the case speculate that Mr. Valenti and the MPAA will seek an appeal.

“I’m optimistic that they will be wise enough not to [appeal],” said Mr. Hope. “I mean, it would just be embarrassing.”