The Blur Between Fact And Fiction

Michael Douglass
Can the New York Times distinguish fact from fiction any longer?

Consider a front page story today (May 20,2005) stating "Just as corporate raiders represented the Wall Street of the 1980's (think of Gordon Gekko) and mutual fund managers were the icons of the 90's (Jeffrey N. Vinik, who ran the Fidelity Magellan fund, was a minor celebrity), the lawyers who keep companies in compliance with increasingly tough regulatory laws have become a new prototype of the financial district." Unlike Jeffrey Vinik, however, Gekko is not a real person. Played by Michael Douglas in the 1987 movie Wall Street, he is a fictional creation of writer-director Oliver Stone. Stone, himself a master of the art of blending fact and fiction in movies, say he modeled the character after Ivan Boesky. That may be true, but Boesky was not a corporate raider. He was a crooked money manager, who bought inside information for cash, traded illegally on these secrets, and went to prison for it.

The New York Times reporter, Jennifer Steinhauer, may have been innocently misled into thinking Gordon Gekko was a real corporate raider by CNN’s program Moneyline which repeatedly used a film clip in the 1990s from the movie in which an immaculately dressed Gordon Gekko (Michael Douglas) intones "Greed is good" to illustrate news reports of corporate corruption. Moneyline's decision to use such fictional clip for its news coverage was, appropriately, part of an even bigger greed-is-good corporate deal in which Warner Brothers (which produced Wall Street) paid CNN (which was acquired by its corporate parent from Turner Entertainment ) to hype the licensing values of its movies. The result, as is demonstrated by the New York Times, is that fictional images such as Gekko come to stand for real events.

Paranoia For Fun and Profit

Michael Moore
Michael Moore proved yet again that funnctional paranoia could be both fun and lucrative. By the end of April 2004, he'd finished making Fahrenheit 9/11 but had no American distributor. Mel Gibson's Icon Productions rejected the project back in April 2003. (Moore claims he had a signed contract before Gibson acquiesced to White House pressure. Icon executives deny any such contract existed.) Moore then went to Harvey Weinstein at Miramax. Weinstein agreed to back the movie and signed a contract with Moore to acquire the rights. But in order to distribute the movie, Weinstein still needed the approval of his superiors at Disney. Although he does not discuss this publicly, Weinstein's contract explicitly prohibits Miramax, a wholly owned subsidiary of Disney, from distributing any film that's vetoed by the Disney CEO. When CEO Michael Eisner exercised his veto in May 2003, Miramax, though it still held the rights to the film, could not distribute Fahrenheit 9/11.

By the time Eisner told Weinstein of his decision, the Miramax head had already given Moore $6 million from Miramax's loan account. Weinstein agreed that this advance was to be "bridge financing" that he would recover when he sold off the film's distribution rights. To make sure there was no misunderstanding, Disney's Senior Executive Vice President Peter Murphy, who was also at the meeting, wrote Weinstein a letter on May 12, 2003, affirming that this money was "bridge financing" and that Weinstein had agreed to dispose of Miramax's interest in the film.

For Moore, this $6 million in "bridge financing" was more than enough to make Fahrenheit 9/11. He acquired most of the footage from television film libraries at little, if any, cost and did not pay any of the on-camera talent (except for himself). On April 13, 2004, after Weinstein saw a rough cut, he went back to Eisner and asked him to reconsider his year-old decision not to distribute Fahrenheit 9/11. After getting a report on the content, which included footage from such sources as Al Jazeera and Al-Arabiya television, Eisner saw no reason to change his position. He again declared that Disney wouldn't have anything to do with the movie.

With the presidential election heating up, Moore needed to get his movie into theaters. Although Weinstein had told Eisner and Murphy that he planned to sell the film's distribution rights after it was screened at the Cannes Film Festival, Moore had a more expedient strategem. On the Fahrenheit 9/11 DVD, Moore says he resolved to get the film seen in America "by hook or by crook." His hook was censorship.
On May 5, 2004, the New York Times ran a front-page article headlined "Disney Is Blocking Distribution of Film That Criticizes Bush." The story included the sensational charge that Eisner "expressed particular concern that [choosing to distribute Fahrenheit 9/11] would endanger tax breaks Disney receives for its theme park, hotels and other ventures in Florida, where Mr. Bush's brother, Jeb, is governor." The source for this allegation was Moore's agent, Ari Emanuel. Two days later, Moore claimed on his Web site that Disney's board of directors rejected Fahrenheit 9/11 "last week." In fact, the Disney board had not made such a decision in 2004—the project had been vetoed in 2003.

Moore's excursion from reality proved a boon at Cannes. On May 22, 2004, the Cannes jury defied putative efforts to censor Moore by awarding Fahrenheit 9/11 the prestigious Palme d'Or. Moore now had a golden palm in his hand and the media at his feet—with more free publicity than any Hollywood studio could afford to buy, Fahrenheit 9/11 now stood to rake in a fortune. And Disney, which still controlled the movie's rights through its subsidiary Miramax, now got to decide who was going to profit from it.
Disney had some experience dealing with Miramax's hot potatoes. Rather than distributing the controversial Kids and Dogma, Disney allowed Miramax founders Harvey and Bob Weinstein to buy the films back and set up short-lived companies to distribute them. But those potatoes were as small as they were hot. In the case of Fahrenheit 9/11, Eisner wasn't about to let the windfall escape into the Weinstein brothers' pockets. Nor could Disney take the PR hit that would result from backtracking and distributing the movie itself.

Eisner's solution: Generate the illusion of outside distribution while orchestrating a deal that allowed Disney to reap most of the profits. Here's how the dazzling deal worked. On paper, the Weinstein brothers bought the rights to Fahrenheit 9/11 from Miramax. The Weinsteins then transferred the rights to a corporate front called Fellowship Adventure Group. In turn, that company outsourced the documentary's theatrical distribution rights (principally to Lions Gate Films, IFC Films, and Alliance Atlantis Vivafilms) and video distribution rights (to Columbia Tristar Home Entertainment).

Because of the buzz and prestige attached to Fahrenheit 9/11, Harvey Weinstein extracted extremely favorable terms from these distributors, about one-third of what distributors typically charge. Their cut amounted to slightly more than 12 percent of the total they collected from the theaters. As a result, Fahrenheit 9/11's net receipts—what remains after the distributors deduct their percentage and their out-of-pocket expenses (mounting an ad campaign, making prints, dubbing the film)—would be much higher than those of a typical Hollywood film.

Fahrenheit 9/11, now an event, took in more than $228 million in ticket sales worldwide, a record for a documentary, and sold 3 million DVDs, which brought in another $30 million in royalties. After the theaters took their share of the movie's gross (roughly 50 percent) and distributors deducted the marketing expenses (including prints, advertising, dubbing, and custom clearance) and took their own cut, the net receipts returned to Disney were $78 million.

Disney now had to pay Michael Moore's profit participation. Under normal circumstances, documentaries rarely, if ever, make profits (especially if distributors charge the usual 33 percent fee). So, when Miramax made the deal for Fahrenheit 9/11, it allowed Moore a generous profit participation—which turned out to be 27 percent of the film's net receipts. Disney, in honoring this deal, paid Moore a stunning $21 million. Moore never disclosed the amount of his profit participation. When asked about it, the proletarian Moore joked to reporters on a conference call, "I don't read the contracts."

What of Disney? After repaying itself $11 million for acquisition costs, it booked a $46 million net profit, which Eisner split between two subsidiaries, the Disney Foundation and Miramax. While it was far less than Disney made on children's fare such as Finding Nemo, it was not a bad outcome. The Weinstein brothers also made a multimillion-dollar profit. They had a deal with Disney that contractually entitled them to a bonus of between 30 percent and 40 percent of the net profits on any film that they produced—in this case, that came out to about $8 million per brother. But Michael Moore had perhaps the happiest ending of all. Not only had he made $21 million, he already had a sequel in preproduction—Fahrenheit 9/11 ½.