Although we are an ebook blog, issues in other new media can make for interesting comparisons to those that ebooks face, or have faced. And I can see some interesting parallels in the news that just came out about a possible antitrust concern pertaining to how the Academy Awards deals with Netflix.

If you haven’t been following the entertainment news lately, Netflix made waves when one of its movies, Roma by director Alfonso Cuarón, scored a number of Academy Award nominations, including Best Picture, and did in fact win Best Cinematography, Best Director, and Best Foreign Language Film. This got famed director Steven Spielberg’s back up, as he felt that movies made for the small screen and given a minimal qualifying theatrical run shouldn’t be eligible for an Oscar.

Consequently, the Academy of Motion Picture Arts and Sciences has been planning to look at revising the eligibility requirements to require a longer theatrical run. However, Variety reports that the Academy just received a letter from the Justice Department warning that such a move could open it to antitrust scrutiny.

Cinema Rules, TV Drools

It’s not hard to understand Spielberg’s way of thinking, rooted as it is in movies’ long-standing rivalry with television. The Academy Awards began long before television was anything but a distant blip on the horizon. When television did arrive and started getting big, movie studios saw it as unwelcome competition, keeping people home from the box office, and responded by trying a number of gimmicks to draw people out to theaters, such as wider screens, 3D, and even smell-o-vision. About the only one of those gimmicks to stick around was the wider screen, which subsequently sent cinemaphiles into conniptions as widescreen movies had to be chopped down to fit on those old square TV screens.

For much of Spielberg’s life, television was definitely a second-class citizen compared to big-screen movies. TV networks couldn’t afford the kind of production values or budget that cinematic feature films could swing, and television resolution was awfully muddy compared to anything projected on a big screen. TV movies were effectively the new “B” movies—all right to watch for fun, but not something that should play in the same league as the big boys. They could have their own awards, the Emmys.

But over the last decade or so, the rise of the Internet and high-definition television have changed the nature of the game. Streaming services like Netflix have become extremely popular, and hence have grown large enough that they can afford to swing the same budgetary heft as movie studios. Digital video production has gotten good enough that these services can produce shows with much the same production values as cinematic movies. We’re seeing streaming services experiment with letterboxing their shows for a more cinematic aspect ratio. Even movies’ higher resolution than television has gone by the wayside, as 4K televisions have exactly the same resolution as digital cinema projectors. The difference between movies and television is becoming an increasingly artificial distinction—and basing award eligibility solely on method of distribution seems increasingly asinine.

Just to further complicate the issue, Spielberg’s contention that Roma was made for the small screen isn’t entirely correct—it uses a special sound mix that could only be played to full effect on the Dolby Atmos sound equipment in certain movie theaters. So, it was created to play on a big screen(‘s speakers) as well as the small screen—but it was created by someone who saw the small screen as their primary market, and it only screened theatrically for three weeks.

Get That Film An Oscar!

It’s easy to understand why a streaming service would want an Oscar for one of its movies. Even if nobody bothers to watch the ceremony anymore, an Oscar is nonetheless a big feather in the cap of any production studio, and the more Oscar-winning and Oscar-nominated movies Netflix can boast having available exclusively on its service, the bigger draw its service will be. And at the moment, the only eligibility requirement is screening the film for at least one week in Los Angeles. Any screenings elsewhere or afterward are superfluous to that requirement.

Netflix has long been at odds with the owners of major movie theater chains with its demand for shorter theatrical runs before it can release movies on its service. It would like to have movies available in the streaming service and the movie theaters on the same day, but the movie theater chains feel too threatened by the rise of Internet streaming to go for that (just as their forebears were threatened by television). In fact, the major chains usually won’t show Netflix’s movies at all (just like bookstores won’t stock Amazon-published books at all). So Netflix keeps the theatrical runs of its own movies as short and narrow as it can get away with before posting them to the service. And this naturally gets Spielberg’s dander up.

This isn’t the first time that a form of windowing has caused a controversy because of new media. Remember, one of the ways publishers responded to Amazon’s habit of deeply discounting new ebooks was to try windowing ebook availability—a change from having the ebooks available day and date with the hardcover format. As we reported at the time, it was not a popular move among consumers, and led to considerable use of the 1-star “nuclear option” in Amazon reviews before the publishers decided to give it up and collude to impose agency pricing instead. But for movie theater chains, windowing has always been the status quo, and they’re the ones with control over whether to change it.

You would think that, if the Academy didn’t want films just to squeak by with the minimum theatrical run to meet eligibility, they would have done something about it long before now. After all, Roma isn’t exactly the first time an outsider tried to make a run for Oscar eligibility—it’s just the first successful one. In 1999—a coon’s age ago in Internet years—I remember that Blizzard ran the opening cinematic for its computer game Diablo II in one LA movie theater for one week, enough to qualify for eligibility for an Oscar nomination for Best Animated Short.

However, when the Academy Awards rolled around, Diablo II wasn’t there. It wasn’t exactly a surprise; even if it hadn’t been a blatant attempt to game the rules, the short was really rather dreary and didn’t tell much of a story. (Blizzard would probably have better luck with one of the shorts associated with its recent game Overwatch, which are well-made and just plain entertaining enough that fans have clamored for an Overwatch CGI animated movie. But it apparently hasn’t been moved to try again.)

I imagine there have probably been other attempts over the years to game the eligibility rules. After all, how hard is it to screen a movie for one week in LA, when you only need to place it in one independent movie theater? It’s practically a non-requirement. So eligibility under the rules isn’t enough; the work itself has to be of sufficient quality to be nominated. Which, clearly, Roma was. And more of Netflix’s movies could very well be, too—and that’s what worries Steven Spielberg.

Who Do You (Anti)trust?

And that brings us back to the antitrust letter. In the comments to the Variety article, I noticed some puzzlement that the Justice Department was poking its nose into a private organization and its awards. But the thing is, the Academy Awards actually isn’t that. The high-faluting name “The Academy of Motion Picture Arts and Sciences” sounds like some kind of scholarly institution, but it’s really just a coalition of movie studios and filmmakers who got together for the purpose of promoting their own works through an annual award ceremony.

Any time competitors cooperate like that, it can draw the attention of the Justice Department—especially when it looks like those competitors may be colluding to keep another competitor out. That’s the focus of the Justice Department’s letter—if the studios are changing their entry requirements specifically to exclude Netflix, that may be an antitrust no-no. And given how much noise Spielberg has made lately that Netflix is a purveyor of TV-movies and should stick to the Emmys, it might be hard for them to make the claim that they’re not targeting anyone in particular.

It’s also just a little strange that the academy wants to limit eligibility, rather than just continue not nominating movies and shorts that aren’t good enough to be considered. Don’t they trust themselves to know when a movie isn’t worth considering? Or do they want not to be exposed to more movies that are worth considering? If a movie is good enough to be considered for an Oscar, then why shouldn’t it be? Isn’t the point of the Oscars to recognize superior moviemaking in all its forms?

Another funny thing about all this is that the spectre of antitrust has long hovered over the movie industry. When the Academy Awards began, movie studios were all vertically integrated with their own movie theater chains, meaning that they controlled (and would profit from) the distribution of any Oscar-nominated or winning movie as well as the production of it. That vertical integration was busted up by a court decision in 1950, but—as I’ve noted before—streaming services like Netflix are now building up the same vertical integration from the opposite direction as they buy the IP and means to produce their own shows. Since the Justice Department’s philosophy of antitrust enforcement has changed considerably since those early days, this new vertical integration may be deemed perfectly fine.

But the kind of thing that does lead to antitrust investigation these days is businesses that are normally competitors colluding to their own mutual benefit—as, for example, when five of the Big Six publishers got together with Apple to impose agency pricing on every other ebook vendor, including Amazon. Amazon complained to the Justice Department, and the Justice Department looked into it.

Did Netflix, or someone involved with it, complain to the Justice Department this time? The article doesn’t say. But it wouldn’t surprise me if Netflix had. Certainly, it would have every right to, if it felt that the Academy was unfairly changing Oscar eligibility requirements just because Netflix was able to meet them. And perhaps that’s the biggest factor pointing to the convergence of streaming television and cinema: that the Justice Department might find the one actually competes directly with the other, at least in certain situations.

The Smell of Movies

And Spielberg’s moral outrage over movies being eligible for Oscar nominations with only limited theatrical releases doesn’t really ring true, given how many of what Spielberg might consider “legitimate” Oscar nominees now are impossible to see if you live outside of a major metropolitan area with art house theaters that will show foreign films, independent films, and documentaries. Even a city the size of Indianapolis only has one such theater, some distance out of my way to attend regularly. Considerably more people would be able to see such a movie on Netflix or some other service if it moved there immediately after a short theatrical run. And who knows; perhaps it would even help Academy Award ceremony viewership if people actually had a chance to see more of the nominees.

(Also, some people find it a little rich that Spielberg, whose most recent movie was the blatantly lowest-common-denominator crowd-pleaser Ready Player One, is going to bat for the artistic purity of movie awards, but that’s really neither here nor there.)

In the end, this seems to come down to a cinematic equivalent of “smell of books” syndrome. Spielberg thinks that the theatrical moviegoing experience should be preserved, and dislikes the idea of small-screen competitors horning in. Just like the movie studios and theaters in the early days of television, he feels threatened by anything that could keep viewers at home rather than going out to Enjoy The Experience (and spend their money at the box office and concession stand). He’s not the only one to feel that way, either—Dame Helen Mirren has also been vociferous on the matter lately, and reports from an ongoing cinema industry convention suggest more people there agree with Spielberg than do not.

It’s just like all those people—and publishers—who feel that ebooks are threatening the paper books and paper book stores (whose smells) they love. But the thing is, those paper booklovers turned out not to have anything to worry about, at least so far—ebooks seem to have plateaued, paper sales are doing just fine, and paper books and bookstores look like they’re going to be around for a good long while (even if a certain bookstore chain may not). Granted, part of the reason for that plateau may be publisher pushback keeping Big Five ebook prices artificially inflated, but the point is, they found a balance that worked to keep the new in check and the old alive.

The same could be true for movie theaters—just look how many people were happy to visit movie theaters on Moviepass’s dime over the last year or so (which was another new-media fear that worried the old-media establishment), and how many people are clogging up ticket pre-sales for the new Avengers movie now. Just because people have plenty of stuff they could do at home doesn’t mean they can’t also be lured out to theaters. The theaters just have to find the right way to hook people, and reach that balance of their own.

I guess the thing we can take from all this is that any new medium is going to face fear and resistance from the old media establishment, possibly up to and including requiring government antitrust intervention. You saw it in the way publishers and Apple ganged up on Amazon because it was doing things they didn’t like with ebooks. And you see it again in how old guard like Spielberg, Mirren, the Academy, theater chain owners, and others feel threatened by new ways of distributing movies. It will be very interesting to see how these things eventually work themselves out.

If you found this post worth reading and want to kick in a buck or two to the author, click here.