When the sexual misconduct scandals surrounding Harvey Weinstein erupted last fall, the collateral damage was extensive. Employees lost jobs, deals fell through and creditors were left in the lurch. Among the debris were several movie titles that Weinstein Co. had produced or acquired for distribution but whose fate was suddenly thrown into question, following more than 80 assault and harassment allegations against its co-founder.
Almost a year later, the majority of these titles are still stuck in limbo, either without a distributor or still without a domestic release date, despite being completed. The fallout isn’t limited to Weinstein properties. Other movies that have been orphaned amid the #MeToo movement include the latest films by Woody Allen, Roman Polanski and Louis C.K.
For domestic distributors, these titles represent a tricky and in some cases insurmountable marketing challenge. With Hollywood still in the grip of sexual misconduct scandals involving prominent figures, distributors have to weigh the cost of releasing these movies against the potential publicity backlash that could scare audiences away.
The result is that some of these titles may never see the light of day, at least not in the form of a U.S. theatrical release.
“You effectively have an asset that you can’t exploit. There’s a scarlet letter on it,” said Elsa Ramo, an entertainment attorney whose expertise includes independent film sales. In most indie acquisition deals, the distributor has negotiated the rights to either terminate the agreement or to shelve a movie, leaving the title’s producer with little recourse in the event of a public scandal.
“It would be unusual for a producer to be able to force a release,” Ramo said.
The legal hurdles are especially complex for Weinstein Co., whose assets were acquired by the Dallas private equity firm Lantern Capital Partners in July in a bankruptcy sale. Among the Weinstein movies that Lantern acquired were three unreleased titles — “The Current War,” “The Upside” and “Polaroid.”
The deal didn’t include two other titles that Weinstein Co. had previously committed to distribute — the New Testament-themed drama “Mary Magdalene” and the Robert De Niro comedy “The War With Grandpa.” The latter two titles are currently without U.S. distribution but have found overseas distributors for some territories.
The fate of a sixth Weinstein acquisition, the World War II drama “The Man With the Iron Heart,” remains murky. Lantern is still working out a possible agreement with producers, according to an individual with knowledge of the situation who was not authorized to comment.
“The Current War” still has no release date as Lantern continues to disentangle the movie’s ownership. Weinstein Co. was a producer on the movie, but the studio often brought in financing partners on various projects. The historical drama, starring Benedict Cumberbatch as Thomas Edison, debuted at last year’s Toronto Film Festival but went back to the editing room after a tepid critical reception.
You effectively have an asset that you can’t exploit. There’s a scarlet letter on it.
The remaining two Lantern acquisitions have found more favorable outcomes. “The Upside,” a remake of the popular 2011 French comedy “Intouchables,” is scheduled to be released in theaters Jan. 11 in a partnership with STX. The movie, starring Bryan Cranston, Kevin Hart and Nicole Kidman, was once touted by Harvey Weinstein as a possible awards-season contender, but the January release date appears to have ended those aspirations.
“Polaroid,” a horror movie that was originally to be released by Weinstein Co.’s Dimension division, looks as if it will head to Netflix. Lantern is in negotiations with the streaming giant to release the movie.
Streaming and other digital-only releases appear to be an increasingly attractive distribution option for these titles, since it offers producers a revenue stream minus the media attention that comes with a traditional theatrical release.
The Disney movie “Magic Camp” will bypass cinemas and debut on the company’s digital streaming platform, which is set to launch next year. The movie about a grown man who returns to a kids camp for magicians features a supporting role by Jeffrey Tambor, who has been accused of sexual harassment on the set of the Amazon Studios series “Transparent.”
Walt Disney Co. hasn’t said if the decision to skip theaters was related to the allegations against the actor. The studio pulled the movie from its theatrical release schedule before the scandal broke.
Amazon fired Tambor after the accusations became public. The actor has called the allegations false.
The e-commerce giant has another conundrum on its hands with Woody Allen, whose latest movie “A Rainy Day in New York” is currently without a release date. Amazon bankrolled the project and was set to distribute the movie as part of its highly touted deal with the filmmaker that was announced in 2015.
But since then, leadership at Amazon Studios has changed, with studio head Roy Price stepping down last year in his own sexual harassment scandal. Actors Timothee Chalamet and Rebecca Hall have publicly distanced themselves from the movie, saying they are donating their salaries.
“Rainy Day” was to have been Allen’s third movie with Amazon in three years. An Amazon spokesperson said the studio hasn’t set a release date for the film but declined to elaborate further.
Rumors have circulated that the movie won’t be released theatrically, but a spokesperson for Allen disputed those.
“As always, Woody Allen controls all aspects of his films — including their release dates. ‘A Rainy Day in New York’ will absolutely have a theatrical release in 2019, and any suggestion that it will not is totally inaccurate,” the spokesperson said in a statement. She declined to say who the distributor will be.
Allen was accused by Mia Farrow in 1992 of molesting their daughter Dylan. The couple was in the midst of a bitter break-up and custody battle at the time and Allen denied the allegations. Prosecutors in Connecticut eventually declined to press charges, citing a lack of evidence. But Allen’s daughter, now grown, has renewed the allegations in recent years by publicly denouncing her adoptive father in the press and social media.
Another child, Moses Farrow, has defended Allen, writing in May that he was present at the time of the alleged event and that it couldn’t have happened.
For distributors, a name-brand director can represent a major liability if the filmmaker is associated in any way with scandal.
“If you have an iconic director, you can’t hide that fact,” said Paul Dergarabedian, senior media analyst at ComScore. “The higher profile of the person involved, the greater risk to the marketing, because if they are the main attraction, how do you market around that?”
Polanski’s most recent movie, “Based on a True Story,” was acquired for North American distribution by Sony Pictures Classics last year prior to its premiere at the 2017 Cannes Film Festival. But the specialty film label has shelved the French-language thriller indefinitely, with no plans for a domestic release. The movie has already been released in Europe and other territories through different distributors.
The filmmaker is still a fugitive from U.S. justice, having fled the country in 1978 at the height of his statutory rape case in which he plead guilty to unlawful sex with a minor. In May, the Academy of Motion Picture Arts and Sciences expelled the Oscar-winning Polanski from its membership.
Sony Classics made the acquisition deal in a partnership with Brett Ratner’s RatPac Entertainment. Ratner was accused last year by six women of sexual harassment and misconduct. The director-producer has denied the allegations.
Distributors can face significant financial exposure if they choose not to release a movie.
In a typical deal, a distributor will pay a fixed amount called a minimum guarantee to the film’s producers for the right to release the title in theaters and on other platforms, such as streaming, for a certain geographic territory. In the indie and foreign film markets, minimum guarantees typically range from a few hundred thousand dollars to several million.
On top of that, distributors will negotiate box-office revenue sharing as well as various fees related to releasing. They are also on the hook for what is known as “P&A” — prints and advertising expenses related to copies of the movie as well as marketing costs.
The decision to abandon a movie usually means the distributor will lose the minimum guarantee, though not always. Indie distributor The Orchard dropped Louis C.K.’s movie “I Love You, Daddy” just one week before its scheduled November release after five women accused the comedian-turned-filmmaker of sexual misconduct, including masturbating in front of them.
But Louis C.K. bought back the distribution rights to his movie from The Orchard, which had acquired it for $5 million. The comedian hasn’t announced his release plans for the movie.
An increasing number of film distributors are exploring the idea of introducing morality clauses into their contracts, according to Marc Simon, a partner at Fox Rothschild, where he advises entertainment clients on acquisitions.
A morality clause will generally require individuals associated with a movie to behave in a certain way prior to the release. Depending on how it is negotiated, a morality clause could also provide distributors with recourse if an individual breaches the terms.
Such clauses were once common in Old Hollywood and were included in actors’ contracts, but now companies are considering them for intellectual property, such as movies. But these provisions could be difficult to implement and may have a chilling effect on film financing, since they introduce uncertainty about a title’s release, Simon said.
He said he first heard discussions about morality clauses before the Weinstein scandal, when “The Birth of a Nation” was released two years ago. Old rape allegations against actor-director Nate Parker resurfaced in the media before the film’s opening. Parker was acquitted and has denied the allegations. The movie was a box-office disappointment.
The subsequent deluge of Hollywood sex scandals has more distributors worried, Simon said. “Now with #MeToo,” he said, “we have distributors saying that they will put it into the contracts.”