Dr. P.V. Viswanath

pviswanath@pace.edu

Filmmaker Says Distributor Failed Him

NY Times, June 26, 2008, by Charles Lyons

Alex Gibney, the director of this year’s Oscar-winning documentary “Taxi to the Dark Side,” has filed for arbitration, asserting that its box office prospects were undermined by the financial troubles of the film’s distributor, ThinkFilm.

The demand for binding arbitration is the latest hurdle for ThinkFilm, and its owner, David Bergstein, who also owns Capitol Films. But it also comes at a critical time for an independent-film world buffeted by an overabundance of movies and financial challenges.

In a June 19 filing with the Independent Film & Television Alliance, an industry organization, Mr. Gibney’s company, X-Ray Productions, asserts that ThinkFilm defrauded him by not having the financing to distribute and promote “Taxi” properly and seeks to reclaim the film’s distribution rights. The complaint says ThinkFilm’s failure to pay vendors caused the film’s Web site to shut down, and that the company did not advertise the post-Oscar run in major magazines. Since its release in January, the movie has made less than $250,000 in theaters.

“I’m upset because the whole commercial strategy of the film was predicated on the idea of winning awards,” Mr. Gibney said. “The fact that they were fiscally unable to capitalize on the Oscar infuriated me for two reasons: They had been in financial difficulty for some time and hadn’t disclosed it to us; and we won the Oscar, and they still hadn’t disclosed it to us.”

While acknowledging ThinkFilm’s financial hardships, Mark Urman, its president, said the company had done right by “Taxi,” which told the story of an Afghan taxi driver who died while in custody at the Bagram Air Base in Afghanistan.

“From the time we acquired it, and throughout its release, no corner was cut and no expense was spared,” he added.

The feud — between Mr. Urman, a well-regarded distributor of independent films including “Spellbound” and “Half Nelson,” and Mr. Gibney, the documentarian behind “Enron: The Smartest Boys in the Room” and the coming film about Hunter S. Thompson, “Gonzo” — is the latest difficulty in the independent film world. Over the last few months Warner Brothers announced it was closing two high-profile companies created to distribute art-house films — Warner Independent and Picturehouse —while Paramount Pictures’ art-house label, Paramount Vantage, acknowledged it was laying off staff and retrenching.

Mark Gill, the president of the Film Department, another independent distribution and financing company, and the former president of Warner Independent, said the current downturn for independent film could be attributed to three things: “a glut of movies in the market, the turning off of the money spigot (due to the drying up of hedge-fund money), and a change in the way people spend their leisure time.”

“It used to be, ‘Mediocrity will be punished,’ ” Mr. Gill said by telephone from Los Angeles, where last weekend he delivered a cri de coeur about the state of independent film during the Los Angeles Film Festival. “Now it’s ‘If you’re not very good or great, you will be punished.’ ”

Bob Berney, the president of Picturehouse, which will officially cease operating in October, said, “I think the audience is still there, but that several of the business models and the way some of the truly independent companies were set up and funded are outdated.” He added, “Good films will always find a market.”

But that is becoming increasingly difficult to ensure. As private equity funds flowed into the movie world and businessmen wealthy from other endeavors decided to try their hand at film financing, movies — particularly those not made by the Hollywood studios and their boutique divisions — have proliferated. About 600 films were released in 2007; five years earlier that figure was under 450, according to the Motion Picture Association of America. And the vast majority of screens in the United States are devoted to the offerings from the big studios.

The result has been that small films, fighting for a finite number of screens, struggle for enough time to build an audience. If they don’t become a hit immediately, there’s another worthy film ready to grab the theater.

The key to longevity, say the presidents of two free-standing independents, Kino International and Zeitgeist Films, is to exercise restraint in both the amount of money allotted for purchasing completed films and in how advertising dollars are spent.

“We try to hedge our bets so we can stay in the game,” said Emily Russo, who with Nancy Gertsman runs Zeitgeist, which on Thursday night will celebrate its 20th anniversary with the opening of an exhibition at the Museum of Modern Art, “Zeitgeist: The Films of Our Time.” “A lot of the companies that came and went, came and went in a bigger, splashier way than we have ever done.”

Don Krim of Kino said his company’s survival for more than three decades had been due in large part to its library of over 500 films, which provides a steady revenue through DVD and ancillary sales. “We don’t hit many home runs, but we have a lot of singles and doubles and occasionally a triple,” he said. “We can do fine with a movie that doesn’t do a million at the box office. But the studio classics divisions need to do $1 million to $2 million to be profitable.”

While never a major player in independent dramatic films, ThinkFilm has quietly made its niche a cache of smart documentaries. A reduced ThinkFilm would make it even tougher for independent documentary filmmakers to find a distributor, and a reduction seems likely.

There is a steadily increasing list of filmmakers, publicists and others who have begun to make public their complaints against ThinkFilm and its owner since 2006, Mr. Bergstein of Capitol.

Shooting on “Nailed,” the new David O. Russell film, has been shut down several times by the Screen Actors Guild and other unions because Capitol was not meeting its payroll obligations. (Mr. Bergstein and representatives for Capitol in Los Angeles did not return phone calls.) The producer Albie Hecht, for example, said he was still waiting for a six-figure advance that he said had been promised after ThinkFilm acquired “War Dance,” an Oscar-nominated documentary by Sean Fine and Andrea Nix in September 2006. Like Mr. Gibney, Mr. Hecht has filed for arbitration with ThinkFilm.

“It pains me to do this,” the publicist Nancy Willen said, referring to her lawsuit filed in Los Angeles in April against ThinkFilm and Capitol Films. “I’ve had a long, productive working relationship with Mark Urman since early in my career. However I now have my own business and simply can’t afford this.”

Questions:

1. What