Real-Life Can Get A Little Messy
Documentary Process Causes Controversy

By John Anderson
Special to The Washington Post
Sunday, February 17, 2008

LOS ANGELES -- The documentary is the unwanted problem child of the Academy Awards, and Oscar, like many a frustrated parent, has decided to treat its unruly offspring with tough love. But consider the plight of the documentarians (you may get a glimpse of them on Oscar Night, huddled in the back of the Kodak Theatre like bridge trolls): How long can you respect the rules, when the parent keeps proving he has no judgment?

Consider: What do "Hoop Dreams," "Crumb," "The Thin Blue Line," "Brother's Keeper," "The Celluloid Closet," "Visions of Light," "Roger & Me," "Paradise Lost," "Control Room," "Bus 174," "Hearts of Darkness," "The Five Obstructions," "Shut Up & Sing," "In the Realms of the Unreal" and "Grizzly Man" all have in common?

That all lost on Oscar Night?

No. They weren't even nominated.

Controversy has been banging and clanging around the documentary arena of the Academy for years. Sure, griping is heard from other Oscar categories, but perhaps it's because documentary makers are by definition anti-glitz, anti-mainstream, political and provocative in a way Hollywood hates. And since they deal with facts and fairness on a landscape where such qualities seem incongruous, if not antithetical to the business, the filmmakers boil with indignation that their category's rules seem unfair, outdated, limiting or biased. Of course, sometimes the issue has simply been bad taste.

"The list of great documentaries that failed to get nominated is embarrassing," says director Michael Apted ("49 Up," "Amazing Grace"), a member of the Academy board of governors and the chairman of the documentary branch. He joined those bodies in 2002 -- at which point "we were in a first-class train wreck."

It wasn't just the omission of "Hoop Dreams" that irritated some Oscar watchers back in '95, when it was snubbed. It was that the film that won -- "Maya Lin: A Strong Clear Vision" -- was directed by Freida Lee Mock, who happened to be head of the documentary committee. "We all thought, 'This has got to stop,' " recalls Apted. And it did, to a large degree.

While the whining continues, the selection has gotten better. Yes, this year's shortlist (the 15-film, pre-nomination nominations) included films that had no more chance of theatrical distribution than William Bennett has of becoming Miss Universe. But the process was streamlined, and made more relevant, beginning in 2002.

Instead of having people from all branches of the Academy picking the doc nominees, a specific documentary branch was formed. And now voters are able watch the documentaries at home on DVD for the earliest culling of eligible films (though they must see the final five in theaters). Also, digital projection is permitted during qualifying runs (the price of 35mm prints having put a lot of poverty-stricken filmmakers out of the running). The result has been genuine improvement in the quality of the docs that have won the Oscar over the last several years.

And yet . . . some antiquated rules still, well, rule. For instance, a film loses all eligibility if it plays on TV before hitting a theater. Period. This is not a doc branch rule, it's an Academy-wide rule. But because television networks and state-funded TV entities abroad financially support most nonfiction filmmaking, the TV rules have become quasi-sadomasochistic mechanisms that involve figurative flaming hoops and plate-spinning.

This year's documentary regulations required films to do a 14-city release (usually at their own expense) and then wait nine months before appearing on television.

"I can play the game," says Sheila Nevins, head of documentary programming for HBO, which routinely releases/broadcasts the bulk of Oscar-nominated docs, both long-form and short. "But if I have to qualify four films in 14 cities, that means one or two fewer films is going to get made by us that year. It has meant fewer filmmakers getting their films made."

Apted points out that for films released in 2008, the broadcast delay is being reduced to 60 days; the qualifying run for the 81st Oscars will be one week in Los Angeles and one week in New York.

But what was the 14-city run about, in the end?

"It was," Apted said, "to make sure these things got into theaters. People who never had any intention of a theatrical run would do their four-waller [rent a theater] and wait to see if they got nominated and then start arranging a theatrical run. The theatrical became the afterthought; the plan was to chase the nomination." Given that the Academy's purpose is to celebrate theatrical films, he said, they wanted to make sure it was theatrical films that were being celebrated.

And yet the rules often seem self-defeating. "Why can't you show your film in Denmark without becoming ineligible?" asks Debra Zimmerman, executive director of Women Make Movies, a New York-based distributor. "We had this terrific film, 'Calling the Ghosts,' which was ruled ineligible because it showed on Danish TV the day before we showed it theatrically in New York. Part of the problem is that there's so little documentary funding here that filmmakers have to go overseas." And those funders, quite understandably, would like to show the films they've funded without waiting months to do so.

That's what happened with 2002's "The Trials of Henry Kissinger," written and produced by Alex Gibney, the director of "Taxi to the Dark Side" and executive producer of "No End in Sight," both nominated for Oscars this year. For "Trials," Gibney says, "no one in this country would give us a dime [for production]. The BBC gave us the money." And the BBC's broadcast of the film made it inelegible for an Oscar.

"Foreign broadcasters are so angry that the Oscars do this," saysDiana Holtzberg, vice president of the Montreal-based Films Transit International, a prominent sales agent for international docs. To illustrate the contradictions inherent in the Oscar rules, Holtzberg cites two films the company handled -- "The Corporation" and "Shake Hands With the Devil." Both had robust theatrical releases. Neither could get their Canadian broadcaster to accommodate the Oscar timetable.

Some Oscar observers regard the documentary branch as a club -- one whose members don't like change, are envious of success and have an allergy to television. They also have curious rules for membership. Just because you've been nominated for an Oscar doesn't mean you can become a member. If your work has won 17 -- four for long docs, 13 for shorts -- it doesn't mean you can get in either. Just ask Nevins.

"They don't want me," says Nevins, who has supervised and worked on projects including "Born Into Brothels" and "Chernobyl Heart." "I don't care anymore, but you know, I've been nominated by Jack Valenti, Gordon Parks, Al Maysles, Barbara Koppel, D.A. Pennebaker, Lee Grant -- [Grant] compared my rejection to the blacklist."

Apted says her rejection comes from the Academy: "It's way beyond the heads of the documentary branch. Everybody's very jumpy about that" -- meaning the intrusion of television.

That a 70-year-old medium is still worrying the Academy at a time when new media is about to rattle the entire media landscape is like a resident of Atlantis trying to fix a leak under the sink.

"That's another issue," Apted says with a sigh. "And one way beyond the documentary world."

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