Among the dated and dumb business concepts exposed as folly during the pandemic is the traditional Hollywood film release window, which typically involves a 90 day gap between the time a move appears in theaters and its streaming or DVD release (in France this window is even more ridiculous at three years). The goal is usually to "protect the traditional film industry," though it's never been entirely clear why you'd protect traditional theaters at the cost of common sense, consumer demand, and a more efficient model. Just because?
While the industry has flirted with the idea of "day and date" releases for decades (releasing movies on home video at the same time as brick and mortar theaters), there's long been a lot of hyperventilation on the part of movie theaters and traditionalists that this sort of shift wasn't technically possible or would somehow destroy the traditional "movie experience," driving theaters out of business.
The pandemic has changed everything. To the point where AT&T/HBO this week announced that the company's entire lineup of 2021 films will be released on the company's streaming platform (HBO Max) the same time it hits theaters. There are some caveats: it's a one year trial, and movies will only appear on HBO Max for a month before they disappear (though they may return later). You'll also probably pay far more to watch these movies than it's worth. But it's still a sensible shift given the circumstances, as Warner Brothers (AT&T) made clear it a statement:
“We’re living in unprecedented times which call for creative solutions, including this new initiative for the Warner Bros. Pictures Group,” said Warner Bros. CEO Ann Sarnoff. “No one wants films back on the big screen more than we do. We know new content is the lifeblood of theatrical exhibition, but we have to balance this with the reality that most theaters in the U.S. will likely operate at reduced capacity throughout 2021.”
Yes, it sucks for those whose livelihoods rely on traditional brick and mortar theaters. But these are the same theaters that saw the writing on this particular wall long before COVID came to town, and decided to spend much of their time pouting instead of adapting for the inevitable. Even then, traditional theaters will someday bounce back, buoyed by those who feel a trip out to the movies is an essential cornerstone of everyday life. It's just not going to be until vaccines are commonplace and congregating indoors for prolonged periods is no longer a potential death sentence.
This isn't exclusively about the pandemic, of course. AT&T has been losing traditional TV and streaming subscribers hand over fist after a bunch of expensive mergers, branding confusing, and other executive incompetence. They're running behind giants like Netflix and others, and want the added attention. Scuttlebutt also suggests the company is hoping to use the announcement to pressure Roku into carrying HBO Max and ending their longstanding feud:
Either way, it's another step in the right direction toward no longer embracing antiquated concepts like release windows that no longer make sense in the broadband era. This being AT&T there's almost certainly going to be dumb caveats tied to these releases (ridiculous pricing probably being among them), but baby steps and all that.
Utah and Idaho -- two states with more in common than a border -- have been enforcing First Amendment-trampling liquor laws preventing adults viewing certain films from enjoying adult beverages while doing so. I'm not talking about porn theaters, although the use of the word "adult" certainly leads the mind in that direction. No, I'm talking about regular, old-fashioned R-rated films no one really has much objection to adults viewing, even those who often object to adults viewing films rated X and up.
In a clear waste of public funds and law enforcement resources, officers are sneaking off to R-rated films at movie houses serving alcohol in hopes of catching them engaged in double-devilry. The movie houses have been fighting back, noting (in lawsuit form) the enforced laws are unconstitutional and inconsistently enforced. Theaters in Utah and Idaho could expect visits from undercover prudes for films like "50 Shades of Grey" and, apparently, "Deadpool."
Theaters in both states sued their respective state alcohol boards. Brewvies -- the theater suing the state of Utah -- has been handed a win. Elizabeth Nolan Brown reports on the federal court's decision in the delightfully-titled article "First Amendment Protects Cinema's Right to Show Unicorn Masturbation Scene While Serving Alcohol, Says Judge."
A Utah movie theater that dared to serve alcohol during a sexually explicit movie has won its legal battle against the state's Department of Alcoholic Beverage Control (DABC).
"The State has violated the First Amendment by bringing an administrative enforcement action against a mainstream motion picture theater showing an R-rated movie," U.S. District Judge David Nuffer wrote for the court Thursday.
The decision [PDF] details a lot of the backstory, which includes state officials singling out Brewvies to score cheap wins for the state alcohol board. It also shows the state, after harassing Brewvies multiple times, suggesting it could preview all movies before showing (the court calls this "untenable"), alter the movies it shows to edit out "obscene" content (forbidden by contracts with motion picture studios), or just stop serving alcohol (lose a great deal of its profits).
It also shows an attorney at the state's attorney's office was the source of the sole complaint against Brewvies' showing of Deadpool -- the end result of which was even more harassment of the theater and, consequently, this lawsuit.
Between February 12, 2016, and March 24, 2016, Brewvies showed the movie Deadpool on one of its screens. A friend of Sheila Page, the attorney at the Attorney General’s Office who represents the DABC in enforcement proceedings, mentioned to Ms. Page that Brewvies was showing Deadpool. Once Ms. Page received the information from her friend, she sent an email to Defendant Margaret Hardie, who has been the DABC Compliance Officer assigned to Brewvies since 2014. In her email to Ms. Hardie, dated February 22, 2016, Ms. Page wrote: “I hate to bring this up, but it is just too blatant to ignore. Brewvies is showing Deadpool. The reviews describe explicit sex scenes and male and female frontal nudity. I know some people who have seen it, and they confirm that it is very raunchy amid the bloody violence. Perhaps you should refer it to [the State Bureau of Investigation].” That email, which was the only complaint received by the DABC about Brewvies showing Deadpool, triggered a referral to the State Bureau of Investigation.
Undercover officers were sent to "investigate." It would have been cheaper to keep them home. All three had already seen the movie, one of them multiple times. But their attendance generated an inadvertently-hilarious report on all the naughtiness contained in Deadpool... and gave Brown's article its unforgettable title.
Officer Bullock’s report describes certain scenes of the movie in terms of the prohibitions of Subsection 7. For instance, he states that the male and female characters were “shown numerous times engaging in acts or simulated acts of sexual intercourse” and that the male character “is shown on his back under bed sheets briefly engaged in masturbation or simulated masturbation using a stuffed unicorn toy.” He also describes a scene where the woman was wearing a leather bikini, with an imagined strap-on penis “that isn’t shown,” and “has her groin area pressed against the man’s posterior,” and she tells him to relax as he is sweating and grimacing. She then bends down and says, “Happy Women’s Rights Day” during what Officer Bullock calls “the sodomy or simulated sodomy scene.”
Officer Bullock also says that during one sex scene, the male character fondled the woman’s bare breasts and, finally, during the credits, Officer Bullock describes “a drawing of the main character (male) . . . ‘as he rides on the back of a unicorn, he rubs its horn briefly until the horn shoots out rainbows (simulating orgasm).”
Officer Bullock (along with Officer Cannon -- Utah's pro prudes seem to have the porniest of surnames…) presented their "findings" and the state went to work getting itself sued. In the end, it's the state hearing a judge whisper "It's First Amendment Day every day!" in its ear as it drives its point home.
The State offered only one governmental interest in support of Section 7’s restrictions: avoiding potential negative secondary effects from combining sexually explicit images with alcohol. Though this may be a compelling governmental interest, Section 7 is not the least restrictive means for accomplishing it.
Section 7 is overinclusive. A statute is overinclusive, and thus facially invalid, if there is a showing that the “law punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep.” If the statute is found to be overinclusive it will “invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.”
Section 7 is overinclusive because it captures mainstream content.
The court continues, pointing out how the state's alcohol regulations serve to unconstitutionally regulate speech, a definite forbidden (government) act.
Section 7 reaches “many films that are far removed from what is colloquially termed ‘hard core,’ or even ‘soft core,’ pornography.” The State admits this. It makes no contention that Deadpool is pornography. The State only argues that by analogy short portions of Deadpool are like the films typically found in an adult theater.
Unlike the statute in Baby Dolls Topless Saloons, no language limits Section 7’s application to those businesses that are characterized by regularly showing sexually explicit material, who make that their essential nature. The State has violated the First Amendment by bringing an administrative enforcement action against a mainstream motion picture theater showing an R-rated movie. That demonstrates the breadth of Section 7’s reach. Section 7’s restrictions impose unacceptable limitations on speech that the State admits should be accorded full First Amendment protection.
State booze regulators will have to go back to the drawing board. The statute needs to be severely narrowed before it can be considered constitutional. Undercover officers Bullock and Cannon will have to start watching R-rated movies on their own time, on their own dime, and presumably without a notebook in one hand and a hard on for free speech oppression in the other.
Following two recent deadly incidents at movie theatres in the US, the Regal Entertainment Group – the nation’s largest movie theater chain – this week added a bag and purse check policy as a security measure in some of the 569 theaters it operates.
“Security issues have become a daily part of our lives in America. Regal Entertainment Group wants our customers and staff to feel comfortable and safe when visiting or working in our theatres,” the chain said in a statement.
This may sound like a harmless bit of "doing something" in response to a few tragic incidents, but there's nothing really harmless about it.
First off, it subjects everyone to the same level of scrutiny -- provided they're carrying a bag of some sort. If you have a purse or backpack or (god forbid) a fanny pack, you're a potential threat. Everyone else? Free to go. Weapons tucked into waistbands or shoved into pockets will go undetected.
And, like the TSA its emulating, the security measures will be easily thwarted and ultimately useless. For every weapon the TSA brags about seizing, many more end up on planes. A recent audit of the TSA's security efforts found it missed 95% of smuggled weapons and explosives. Anyone thinking Regal's security force is going to be better trained and more thorough than the TSA is kidding themselves.
Like the TSA's efforts, this will give moviegoers the illusion of safety, rather than actual safety. An illusion might be comforting enough for most moviegoers and it's all Regal can actually offer. This move is more about PR than reality.
According to a new survey conducted by consumer research film C4, following the Nashville incident, 48% of moviegoers are willing to pay $1 or more per ticket for the additional measures. Nineteen per cent of respondents said they would pay $3 or more.
And I'm sure Regal will be more than happy to take $1-3 more from every moviegoer in exchange for a hassling a few moviegoers. But Regal's move -- while good-intentioned -- is ill-advised. Offering your customers mostly-theoretical protection places responsibility for any future shootings almost solely on each individual theater. Now, if anyone shoots up a theater, Regal will very likely be successfully targeted in wrongful death suits. After all, it instituted additional measures to prevent further shootings... and then failed to prevent a shooting from happening. The additional measures seem unlikely to dissuade anyone but the most easily-deterred shooters from following through with their plans. In exchange for little more than a temporary bump in goodwill, Regal is assuming a great deal of liability.
And given what we know about the most recent theater shootings, a bag check wouldn't have stopped anything. James Holmes, who killed 12 and wounded 70 in Aurora, CO, stashed his weapons in his vehicle. The shooter in Louisiana may have had a backpack (reports are inconclusive), but it wasn't on or near him when police got to him, and a controlled detonation later proved there was nothing harmful inside it. The shooter at the Antioch, TN theater was carrying two backpacks -- one of which was strapped across his chest. When police engaged him, he was also wearing a surgical mask. Most of what was in his bags weren't actually weapons, though. Pepper spray, a hatchet and an Airsoft gun were used in the theater attack. Only one of these is an actual weapon, and Regal's new policy doesn't make it clear what will happen to those who bring in legal items that aren't weapons but the theater decides could be deployed as one.
This focus on bags also makes it clear to potential attackers that security will be looking out for one thing -- backpacks and bags. Avoiding scrutiny simply means not doing that one thing. So, while some moviegoers will be comforted by this security charade being performed on their behalf, many more will be irritated that attending a movie will be nearly as annoying as boarding a plane.
There are days when you wonder what life must be like as a PR person for the MPAA. I mean, it must take an extraordinary amount of either cognitive dissonance or will power to avoid bursting out laughing at writing the opening sentence like the following in an announcement about how the MPAA and the National Association of Theater Owners (NATO) are colluding to ban technologies like Google Glass:
The National Association of Theatre Owners (NATO) and the Motion Picture Association of America (MPAA) have a long history of welcoming technological advances and recognize the strong consumer interest in smart phones and wearable “intelligent” devices. As part of our continued efforts to ensure movies are not recorded in theaters, however, we maintain a zero-tolerance policy toward using any recording device while movies are being shown. As has been our long-standing policy, all phones must be silenced and other recording devices, including wearable devices, must be turned off and put away at show time. Individuals who fail or refuse to put the recording devices away may be asked to leave. If theater managers have indications that illegal recording activity is taking place, they will alert law enforcement authorities when appropriate, who will determine what further action should be taken.
This is the same MPAA that tried to sue the VCR out of existence. This is the same MPAA has tried to block things like "day and date" releases so that movies might be released to home viewers more conveniently. This is the same MPAA that sued a variety of file sharing properties out of existence. This is the same MPAA that was the main backer of SOPA, a copyright bill that would have significantly hindered security on the internet. This is the same MPAA whose prominent member, Viacom, engaged in a years-long legal fight with YouTube. Yeah, it has a history of "welcoming technological advances"? I don't think so.
This particular policy is not too surprising. After all, the company did summon Homeland Security to interrogate a guy for deciding to wear his Google Glass (while it was turned off) during a movie. For groups so welcoming to new technology, they don't seem to recognize that Google Glass has terrible resolution and battery life and would be a really dumb choice for someone to use to record a movie (not the least of which is because when the video is recording there's a bright LED light shining from the device, making it easy to spot).
Of course, they're coming out with this policy after basically Google Glass has become a dead product. It didn't catch on, and it's not clear that Google is even taking it that seriously any more. There are others attempting similar things, but, really, at this point the MPAA seems to be barring a technology that was never a serious threat in the first place for no good reason. Because it's so "welcoming" of new technologies.
Next time, MPAA PR person, why not just be honest for a change. Here's the announcement translated for accuracy:
The National Association of Theatre Owners (NATO) and the Motion Picture Association of America (MPAA) have a long history of trying to stop any even remotely innovative new consumer technology that challenges our existing business models. As part of our completely wasteful and pointless effort to stop file sharing of movies, we have a zero-tolerance policy that makes us look clueless and out of date, by doing things like having young people arrested for capturing a few seconds of a movie as part of a birthday celebration. As part of this long standing "screw the customer for no good reason" policy, all devices that might possibly record just seconds of a movie in terrible quality must be shut off. Frankly, if we could, we'd force everyone to dump them in a bin before going into the theater, but even we think you'd probably revolt at that step. Individuals who have basic common sense will be asked to leave and everyone will be reminded that maybe, just maybe, instead of paying $12 for a movie in a crappy theater, they'd be better off at home, futzing around on the internet. But, don't worry, we're looking for ways to make that illegal too.
The MPAA has been pushing its strict take all prisoners approach to force movie theaters into pissing off nearly all movie goers by wildly accusing anyone with a mobile phone of destroying the entire US economy. Or something like that. We've already seen theaters call in Homeland Security when a guy so much as dared to wear his Google Glass during a movie. And now, the latest story of MPAA-driven excess, as revealed by TorrentFreak, involves Cinemark ejecting an elderly woman because she had an old "brick, slider-type" mobile phone, which her husband handed to her as he had to leave. There is also a theory that someone else in the theater saw her theater-provided closed captioning device and assumed that it was a recording device. Either way, the lady (who is not a fluent English speaker, and had trouble understanding the commotion) was ejected from the theater, even though theater employees realized she was not recording the movie.
Just a couple months ago, we wrote about the MPAA's insane "zero tolerance" policies that it was sending to movie theaters, telling them to be extra vigilant in stopping anyone from filming movies:
The MPAA recommends that theaters adopt a Zero Tolerance policy that prohibits the video or audio recording and the taking of photographs of any portion of a movie.
Theater managers should immediately alert law enforcement authorities whenever they suspect prohibited activity is taking place. Do not assume that a cell phone or digital camera is being used to take still photographs and not a full-length video recording. Let the proper authorities determine what laws may have been violated and what enforcement action should be taken.
Theater management should determine whether a theater employee or any other competent authority is empowered to confiscate recording devices, interrupt or interfere with the camcording, and/or ask the patron to leave the auditorium.
As we noted at the time, these kinds of policies seem more likely to piss off movie viewers than to actually stop any form of "piracy." And, indeed, as pretty much every one of you has sent in this morning, a story over at The Gadgeteer appears to show these overreaching policies in action, as a guy wearing his Google Glass (with the power off) was summarily yanked out of the theater in the middle of a movie and held in an office while a bunch of people posing as officials quizzed him about who he was recording for.
The story is a little short on some key details. For example, it's never clear who the people interrogating him actually are associated with. The article title claims "the FBI" and other reports have similarly claimed the FBI was involved, but that seems unlikely. Apparently someone claimed to be with the "federal service" which is not what anyone would say if they were actually a federal employee. Someone is claimed to be from "the Movie Association" -- which might mean the MPAA (the Motion Pictures Association of America), but that's hardly clear. It's especially odd since the person who went through the experience claims that he got the business card of this guy -- named "Bob Hope" -- from "the Movie Association" so if it was actually the MPAA, you'd think he'd look at the business card and properly state where the guy came from. Or, you know, send in a picture of the business card (perhaps with contact info redacted).
To be honest, all of those factors make me question the legitimacy of the entire story -- though there have been other similar stories in the past that we've seen involving mobile phones. And it does fit with the MPAA's guidelines on "zero tolerance."
Update: AMC has confirmed that "a guest with a potential recording device inside the auditorium was questioned at our AMC Easton 30. Another report says that the MPAA was on site and interrogated the guy and then contacted DHS, claiming they have "oversight for movie theft." I'd be curious to see where or how DHS has authority over "movie theft." I'm guessing people will claim it's an ICE issue, but that goes way beyond what ICE is supposedly working on.
Separately, the guy begged the "police" or whoever was there to look at his Google Glass and go through his private things. While that has no bearing on the legitimacy of his story, as Popehat recently reminded people, this is monumentally stupid for a whole variety of reasons.
Whether or not this turns out to be a legitimate story, this issue is going to come up again and again as Google Glass and a flood of similar products heading to market become more popular. The MPAA's "zero tolerance" attitude and its general antipathy towards any new technology it can't control or quash is going to lead to this sort of scenario playing out one way or another eventually. If the MPAA and the theaters had any vision at all, they'd be working out a better way to deal with it, but since they seem to see everything as a black and white situation, expect an even more extreme version of how they've treated mobile phones -- even to the point of (at times) requiring them to be confiscated before people can go into the theater -- thereby encouraging fewer people to actually go to the theater.
One of the key talking points that the movie industry likes to bring up concerning the reason it wants SOPA and PROTECT IP is that it has to "protect jobs." In a recent talk by the MPAA's Chris Dodd, he once again talked up how many jobs were being "lost" in the movie industry. First, he pulled out the industry's favorite 2.2 million number, which is clearly bogus. As we noted earlier in the week, new research from the Congressional Research Service shows that the movie industry actually employs 374,000, making the claim (pulled from the highly questionable Institute for Policy Innovation) that the industry is losing 373,000 jobs each year... kinda questionable.
But I wanted to get a better understanding of what was actually happening to jobs in and around the motion picture industry. Seeing as CEOs of the major studios continue to bring in record salaries, it certainly sounds like the industry isn't doing that bad. Thankfully, research firm IBISWorld digs pretty deep into different industries to separate out what's happening. After digging through the numbers, it looks like the MPAA is (yet again) being intellectually dishonest.
If you look at the jobs in actual movie production -- the kind that they always imply are most at risk -- it turns out those jobs are growing rapidly. In 2002, there were about 43,000 people employed in the actual production of movies and videos. In 2010? That number had jumped to 77,000. Not bad. So where are the few job losses coming from? Well, there are about 1,500 fewer jobs in "movie and video distribution," but that makes sense, since technology is making that area less important. Really, the only place in the industry that has seen a significant loss in jobs (and even then it's not that big) is in the movie theater business. Employment in movie theaters dropped from about 134,000 in 2002 to about 119,000 in 2010. That accounts almost entirely for the drop in total employment in the movie business from 392,000 down to 374,000 that the CRS report noted.
In other words, the only "significant" job losses that we can spot are coming from the theaters themselves -- and it's difficult to see how that's got much, if anything, to do with piracy. As was noted in the CRS report, box office revenue has continued to hit records every year. So, really, it looks like theaters may just be cutting staff to cut costs, but that revenue at the box office keeps getting higher. So, more money with fewer staff. That's not exactly a story that shows an industry decimated by piracy.
Earlier this year, we noted that with Avatar still being popular in theaters, it looked as though the DVD release would occur while the movie was still available in a bunch of theaters, and wondered what if it would actually boost sales at the box office. For years, of course, movie theaters owners have whined that they can't possibly compete against home theaters, and have boycotted movies that tried to do a "day and date" release, where they offer the DVDs at the same time the movie is in the theater. This seems to ignore the fact that the theatrical experience is about the social experience of going out -- which is not the same as staying in to watch a movie at home (no matter how good your home theater system is). But most theater owners don't seem to believe this, and insist that if DVDs are out at the same time as the movie is in the theater, it will harm box office sales.
Avatar seems to suggest that's not true.
btrussell points us to the news of the record-breaking sales of Avatar DVDs this weekend. His point, in submitting it, is noting that the sales were so strong even though the movie has been widely downloadable and widely downloaded for months. So, despite the claims that file sharing is destroying the DVD market, it looks like people are still quite willing to buy.
But a more interesting point is the impact on the box office. Last weekend, April 16 - 18th, Avatar averaged $2,006 at the box office per theater. On April 22nd, the DVD was released. This past weekend (April 23 - 25th)? Avatar averaged $2,257 at the box office per theater. That's an increase of 12.5% over the week. That doesn't seem to fit with the theater owners' claims, now, does it?
Admittedly, a bunch of theaters stopped showing the movie this past week, probably falsely believing that with the DVD out, it would harm sales. But... the week before, a bunch of theaters addedAvatar back into their lineup. If we go back two weeks, we have a much more apples to apples comparison. The weekend of April 9 - 11, Avatar showed in 454 theaters, with an average take of $1,860 per theater for a grand total of $844,651. Yet, again, this past weekend, when the movie was showing in fewer theaters, 421, it brought in both a higher average take per theater at $2,257 and a higher grand total at $950,000. So if we compare those two weeks, with fewer theaters, there was a bump of 21.3% in box office sales after the DVD was released
As we predicted, it sure looks like the DVD release while the movie was still in the theaters actually may have driven more people to the theater, rather than taken them away from the theater.
For the past few years, as home theaters have grown more and more common, we've seen movie theater owners constantly whining that they just can't compete with home theaters. They complain that if studios start releasing DVDs at the same time as theater runs, no one will come. This, of course, shows a profound misunderstanding of their own business -- which is to provide an enjoyable social experience that convinces people to go out. People can eat food at home where it's much cheaper, but most still go out to eat on occasion as well. They do so because it's a social experience and provides something that can be seen as different and better. So while too many theater owners seemed to think they couldn't offer anything better, it appears that a few of the big chains are at least realizing that if home theater screens are getting bigger, so should movie screens. Both AMC and Regal Entertainment are installing a bunch of new IMAX screens, recognizing that the IMAX experience still beats the home theater one. Now, if only these theaters would start improving other aspects of the theater-going experience as well.
