film law streaming studios television

Tarnished Silver: The Big Screen in the Age of Streaming

Last week, I returned to a world I could never have imagined I’d be forced to depart: a world of wonder, thrill, and awe, held very dear to me. Past a temperature check and the scan of a barcode, I was ushered through a quiet, regally secluded courtyard temporarily cordoned off from the grime and traffic of the bustling Hollywood Boulevard, walking in the literal footsteps of the greatest stars that our industry has seen immortalized in concrete. The aroma of freshly popped popcorn wafted out the open doors of a dimly lit lobby propagated with iconic memorabilia from classic films. Buzzing with a restrained euphoria, I took a seat towards the back of a cavernous auditorium adorned from floor to ceiling in ornate chinoiserie. The lights dimmed and for the first time in many months, I enjoyed a brand new film in a glorious IMAX cinema.

To me, the silver screen is far more than just another option for a Friday night on-the-town. In the words of Wired’s Jordan Crucchiola, “it’s not just a way people kill two hours in air conditioning on a hot day. It’s the concert experience of cinema. It’s an exercise in shared empathy. It’s the chance to be immersed in a world of fantasy, to laugh and scream with strangers, to learn more about what it is to be human—all without the distractions of the outside world” (Crucchiola, 2020). The theater is a portal to other times, stories, and worlds: a sanctum of art, entertainment, and community.

For the first three years of my time at Emerson College, I worked as part of the film crew at AMC Boston Common, connecting me more intimately with the experience of theatrical distribution than I had ever been before, even if it meant trudging up and down auditorium stairs sweeping M&Ms and stale popcorn kernels from underneath seats for hours on end. The experience was well worth it. Throughout the year 2018 I was able to see approximately 75 different films in the theater, the most memorable of which exemplify why I hold the pastime so close to my heart.

As a lifelong consumer and current student of media, I understand the power of storytelling and how important it can be for quality content to reach audiences and actively engage them. At AMC, as I’m sure is the case for many of us cinephiles, I’ve witnessed the power of what great filmmaking can do to an audience, as well as the chaos that erupts when a rebooting computer system or a broken popper threaten that sacred experience! The energy of a theater eagerly anticipating a new release, or the joy of simply seeing people leave satisfied and enriched by their experience showcase what makes the entertainment industry so unique.

When the pandemic hit full force in March of 2020, it quickly became apparent that movie theaters would unfortunately have to shut down, which, in conjunction with the closure of the College, led to my leaving AMC. In the succeeding months, studios with a backlog of content were forced to seek out alternative methods of distribution, as they could not stand idly by as their massive investments sat stagnant, accruing interest. Incidentally, the industry has been steadily adopting a streaming model of content distribution of the last few years, which in the face of the pandemic was fast tracked as a dominant strategy. Now, the time has come for the theaters across the country to once again welcome audiences through their doors after over a year. However, in a post-pandemic age of streaming, the future of movie theaters has been called into question. As a passionate, ardent lover of theatrical moviegoing, I ponder with a blend of optimism and nerves: what does the future hold for the cinematic experience?

To put it bluntly and simply, writer William Goldman says it best with his famed Hollywood mantra: “nobody knows anything” (Brueggemann et al., 2021). Nobody can be certain where exactly the industry will go. IndieWire goes as far as to assert that “anyone who claims to know the future of movie theaters is wrong” (Brueggemann et al., 2021). Because the answers to these looming concerns remain to be seen, the best way to predict the future is to understand the past.

To a degree, this has actually happened before. In a poetic rhyme of history, the pandemic known as the Spanish Flu, or the 1918 influenza, ravaged the world just over a century ago. The flu, which infected an estimated 500 million people (a whopping one-third of the world’s population at the time) and killed around 50 million, spread with deadly vigor, particularly in Europe during the final months of the first World War (CDC, 2018). With mask mandates, quarantines, and lockdowns taking place globally, the impacts of COVID-19 echo the devastation of the 1918 pandemic, including the shackling of cinemas and live theaters. From an economic standpoint, the theater business in the late 1910s was at its lowest point perhaps since its inception, positioning moguls to swoop in and take advantage of the floundering market.

Producer Adolph Zukor, who would eventually go on to head Paramount Pictures, bought out multiple defunct or failing theaters in the wake of the pandemic. Thus, the stage was set for success in the era of vertical integration, during which studios had financial control of the entire production process, from development through to exhibition (Crucchiola, 2020). The opulence of the 1920s germinated in the aftermath of the pandemic, as theaters and other social and leisure businesses “had to give people a reason to leave their homes” (Stewart, 2020). Maggie Valentine, a theater historian, reflects on the rise of theaters after the 1918 pandemic in a statement of hope, assuring that “theaters have always come back, and when they do, they’ve been better” (Stewart, 2020). This grandiose migration back into the theaters, in combination with the vertically integrated studio pipeline made way for Hollywood to prosper from the late 1930s through the 1950s in an era known as its Golden Age. Smooth sailing would not, however, carry on much longer.

In 1948, Hollywood’s systems of production were majorly disrupted by the Paramount Consent Decrees, a decision motivated by a national antitrust sentiment in the wake of World War II forcing studios to divest their interest in exhibition (Gardner, 2020). On top of the restructuring caused by the Paramount decision, the entire film industry faced a serious threat in the advent of television. The post-war era saw mass migrations outside of city centers to the developing suburbs, as well as a renewed interest in family life and domesticity. In such a cultural climate, the television was widely adopted as a luxurious home appliance offering families a wealth of entertainment in the comfort of their own home, not entirely dissimilar to the popularization of streaming services over the last few years.

In the face of a threat to the viability of not only cinemas but the medium of film as a whole, studios were forced to diversify and work in conjunction with exhibitors to revitalize the theatrical experience, differentiating it from the in-home appeals of the TV. Out of this necessity came the grand epics of the late 1950s and 1960s featuring innovations like Cinerama, VistaVision, and Cinemascope, which took advantage of wide theatrical aspect ratios to create a sense of magnificence and scale, as well as improved audio and visual technologies. Films like Ben-Hur (1959), Lawrence of Arabia (1962), Dr. Zhivago (1965), and The Sound of Music (1965), showcased glorious technicolor, lengthy runtimes, and impressive production design to impress upon audiences what a television set never could (Sklar, et al., 2021). Many gimmicks like Sensurround and Stereoscopic 3D came out of this urge to draw people back into the theater, the remnants of which still remain today with most major multiplexes featuring Dolby and IMAX theaters and of course the occasional 3D flick, inescapably dominant in the early 2010s. To combat the popularity of television, the infrastructure of theaters evolved to better fit the needs and expectations of the consumer, with the revelation of air conditioning adding an extra level of comfort. The concept of the multiplex largely sprung up in following the development of middle class suburban communities as opposed to tight individual auditoriums in city centers (Stewart, 2020).

With the 1918 pandemic spawning the Golden Age of Hollywood and the threat of television forcing the boundaries of cinema to be pushed far wider and eventually into the blockbuster era, the cinematic experience has always been resilient. Fascinatingly, one of the key operating parameters under which the industry developed for decades has recently been dissolved, drastically altering the future of potential distribution and exhibition. In August of 2020, under the vague deregulatory fervor of the Trump administration, U.S. District Court Judge Analisa Torres repealed the Paramount Consent Decrees of 1948. Torres defends her decision by stating that in considering the nature of the marketplace and the value of a wide theatrical release, “the Court finds that it is unlikely that the remaining Defendants would collude to once again limit their film distribution to a select group of theaters in the absence of the Decrees and, finds, therefore, that termination is in the public interest”. Additionally, the Court assumes that the nature of streaming as a supplementary model of distribution eliminates any likelihood of block booking, another practice protected against in the Paramount decision (Gardner, 2020). This game changing move opens up the possibility for studios and distributors to own and operate theaters themselves, beyond the few individual prestige theaters already owned by Netflix largely for the purposes of Academy Awards qualification: The Egyptian in Hollywood and The Paris in New York City, as well as Disney’s El Capitan.

A few months ago, the debate over the future of theaters seemed focused on concerns of health – how safe it would be to actually go to a theater before a vaccine – and business – the logistics of opening a movie without major markets like New York and Los Angeles. Now that we have a vaccine and society seems to be on the mend, these particular concerns have subsided a bit. Perhaps the most significant lasting question now becomes how theaters will adapt in an era where the predominant method of distribution is now streaming?

Just as was the case in response to the 1918 pandemic and the threat of television, the industry must revitalize itself and once again prove to audiences why the cinema is so special. In the words of Variety’s Owen Gleiberman, “the issue is that between the streaming revolution, the rise of COVID, and the fact that so many viewers have been grousing about the theater experience for years (the ads, the cell phones, the sticky floors — we all know the mythic litany of complaints), the notion that going out to a movie simply isn’t worth the trouble has taken root” (Lang, et al., 2020). As an avid lover of theatrical moviegoing and former employee of an enormous multiplex, the validity of Gleiberman’s thoughts concern me. Throughout the industry and across the general public, similar worries have taken hold, from Tom Hanks, who concedes that a sea-change has been a long time coming (Hanks, et al., 2020) to President of ArcLight Cinemas, Ted Mundorff, who derided the industry’s “awful release patterns” even before the pandemic (Kohn, 2019).

In conversation with Kevin Reilly, I was lucky enough to hear the prolific TV executive and former Chief Content Officer of HBO Max’s take on the future of theaters: “{Theater chains} were a terrible monopoly with a terrible consumer experience. You can only see it now either in old reels of people watching movies or in films where they show people going to the theater – the early talkies, the first time people heard sound. That was an amazing experience, decades later you’re sitting in a shitty movie seat that hurts your back with a sticky floor and a $30 popcorn and it’s not a good consumer experience. Now they’re going to have to think about how they work in tandem with the streaming business. It’ll ultimately be: release a product, market it once in different experiences” (Reilly, 2021). Besides the lack of care given towards consumer experience from the highest levels of corporate oversight to the often sub-par service of film crew to which I can unfortunately attest, the way theaters functioned pre-COVID also exacerbated unfortunate industry trends. Tight theatrical windows and evolving attendance patterns shifted the evaluation of a theatrical run from a longer term experiment like the legendary performance of James Cameron’s Titanic (1997) to a make or break sprint focused disproportionately on opening weekend totals (Crucchiola, 2020). Thus, little opportunity remained for the midrange movie to succeed, or the sleeper hit to find its footing.

As was the case in the years after the 1918 pandemic, some, like Forbes’ Rob Salkowitz, view movie theaters as the “bargain basement deal of the decade” for those willing to take on the risk (Salkowitz, 2021). According to the magazine’s cardinal rule of investing – “buy low/sell high” – theaters are in the optimal position to be bought up by large corporations like Amazon, Netflix, and Disney. These major players have the capital and leverage to potentially acquire theaters either on an individual or chain level and “invest heavily in enhancements to the viewing experience along with other perks to get butts back in seats”. This eventuality is even more apparent given the recent repeal of the Paramount Decrees (Salkowitz, 2021). Among the more unusual results of the scramble for revenue during the pandemic came about via separate models of distribution and exhibition employed by each of the major studios, integrating streaming and theatrical to varying degrees. The majority of these models build off an initial theatrical release combined with a significantly shortened (traditionally ~75 day) window before having the option to move to paid video-on-demand (PVOD): 45 days in the case of Paramount, 30 or so for Lionsgate, and a mere 17 days for Universal, with Sony expected to follow suit (Clark, 2021). Disney has been releasing films on streaming both at no extra cost (Soul (2020), Luca (2021)), catching some flack from those at Pixar who feel they’ve been gypped (Sharf, 2021), and for an additional $30, dubbed “Premiere Access” (Mulan (2020), Raya and the Last Dragon (2021)), the latter of which also played in theaters (Clark, 2021). They’ve claimed, however, that they plan to return to a purely theatrical model by the summer, though this is not set in stone. Warner Brothers, on the other hand, has perhaps the most controversial strategy. The studio’s announcement that all of it’s 2021 releases would simultaneously debut in theaters and on HBO Max shocked the industry, but according to a Morning Consult survey, general audiences seem to be on board with the strategy (Clark, 2021). Though, I personally find it tragic that Dune (2021) will be relegated to a streaming venture with an adjacent theatrical component, potentially diminishing its potential to be recognized as a cultural juggernaut among the likes of Star Wars and Harry Potter.

Though we cannot yet attribute much in terms of success or failure to any of these individual strategies, though it will certainly be interesting to follow how these different models influence the studio’s respective revenue streams, and consequently their continued viability in the marketplace. There are some concerns in regards to how streaming revenues will compare to direct box office revenue given the opacity of streaming data compared to the relative transparency of box office reports: a byproduct of the multiple parties involved in the pipeline of theatrical distribution. Tom and Jerry (2021), Godzilla vs. Kong (2021), and now Mortal Kombat (2021) prove that there is at least some appetite for theatrical moviegoing, even when PVOD and streaming options are available (Brueggemann et al., 2021). It seems unlikely that corporations would risk letting go of such a powerful potential for revenue; “nothing to sneeze at” boasts Disney CEO Bob Chapek on his company’s $13 Billion in 2019 box office receipts (Whitten, 2021).

In examining and predicting the future of movie theaters, it’s impossible not to reconcile with the fact that streaming has revolutionized the industry from both the consumer facing and business facing perspectives. Streaming platforms undoubtedly provide many benefits, from socialization via adjunct services like Netflix Party (now Teleparty) to the breadth of content and personalization of the user interface. The weekly release strategy of Disney+ has particularly revitalized a sense of communal engagement with content with shows like The Mandalorian and WandaVision. Despite these positives, streaming is not the end-all-be-all. It’s been said that streaming reduces every piece of content down to essentially an item on a list, a row on a balance sheet with minimal differentiation or individual identity.

Collider’s Matt Goldberg professes that “it’s hard to make anyone care about one thing over another” when everything is reduced to a mere piece of content (Goldberg, 2020). Kevin Reilly echoed these sentiments, positing that we might not “even get to appreciate the greats, does it all just come and go? If it drops, then you stream it, then it’s gone – is that cinema?” (Reilly, 2021). Reilly elaborated a concern that streaming sanitizes and commoditizes content to an extent not experienced through theatrical distribution, stripping it of potential value and acclaim (Reilly, 2021). Gleiberman of Variety optimistically pleads for the return of the cinematic experience, rhetorically asking if we are willing to enable the dissolution of the cinema “so we can spend the next 100 years sitting on our couches watching a never-ending stream of product? Moviegoing in theaters will survive if we as a culture — theaters, studios, politicians, audiences — decide that we want it to survive” (Lang, et al., 2020).

On a final note, I clearly find the theatrical experience to be invaluable: a social indulgence that deserves to persevere, though it rightfully must adapt to survive. Examining the issue from a social, as well as an economic standpoint, theatrical distribution as a business model may likely end up serving more of a niche market than it has in the past as a result of both the decline in the quality and consumer experience of exhibition venues and the post-pandemic dominance of streaming. However, theaters have always made it through rough times and came out of it stronger than before. Goldman rings true once again in that “nobody knows anything”, but what we do know, and what might ultimately propel the future prosperity of theatrical moviegoing is that “humans are social creatures, and we want the communal experiences, especially after a year where they’ve been denied to us” (Goldberg, 2020).

Works Cited

Brueggemann, Tom, et al. “Why Anyone Who Claims to Know the Future of Movie Theaters Is Wrong.” IndieWire, 12 Mar. 2021

Clark, Travis. “Warner Bros.’ Strategy of Releasing Movies to Theaters and HBO Max on the Same Day Is Very Popular with Consumers, According to a New Survey.” Business Insider, 10 Mar. 2021.

Crucchiola, Jordan. “On the Future of (Going to the) Movies.” Wired, Conde Nast, 1 Oct. 2020

Gardner, Eriq. “Judge Agrees to End Paramount Consent Decrees.” The Hollywood Reporter, 7 Aug. 2020

Goldberg, Matt. “Streaming Is the Future for 2021, But I’m Not Convinced It’s the Future of Movies.” Collider, 4 Dec. 2020.

Kohn, Eric. “Here’s How Movie Theaters Will Survive the Next 10 Years: Exhibitors Speak Out.” IndieWire, 29 June 2019.

Lang, Brent, et al. “The Future of Movie Theaters In the Age of Coronavirus: A Dialogue.” Variety, 9 Oct. 2020.

Salkowitz, Rob. “Here’s Why The Future Of Movie Theaters May Be Brighter Than It Looks.” Forbes, 8 Jan. 2021

Sharf, Zack. “Pixar Staff Speaks Out Against Disney Moving Its Films to Streaming Only: ‘It’s Hard to Grasp’.” IndieWire, 28 Apr. 2021.

Sklar, Robert, et al. “The Threat of Television”. Encyclopedia Britannica, 16 Feb. 2021.

Stewart, James B. “Movie Theaters Are on the Brink. Can Wine and Cheese Save Them?The New York Times, 15 May 2020

Taylor, Drew, and Tom Hanks. “Tom Hanks on the Future of Movie Theaters: ‘A Sea Change Was Due.’” Collider, 17 Dec. 2020,

Tight, Andrew, and Kevin Reilly. Katch Media, 14 Apr. 2021. 

Whitten, Sarah. “Movie Theater Owners Are Frustrated about Streaming, but Their Survival Depends on Studios.” CNBC, NBCUniversal, 2 Jan. 2021

History of 1918 Flu Pandemic.” Centers for Disease Control and Prevention, 21 Mar. 2018.

disney law streaming television

Bill Nye Makes Disney Sigh: Residuals in the Streaming Era

A recent piece by Gene Maddaus published in Variety takes a look at a decision made by Judge David Cowan this February in regards to a lawsuit between Bill Nye (the Science Guy) and the Walt Disney Company. The beloved entertainer took Disney to court in 2017 over their practice of keeping 80% of streaming revenue from older content under the pretense that the relatively new method of distribution can be considered “home video,” leaving a mere 20% for talent like Nye and other profiting parties. Apparently, Disney has historically taken such a high margin due to the costs associated with distribution of home video. However, Nye has called out this practice, noting that in the modern era of streaming, distribution is far cheaper than when the Science Guy negotiated his contract in 1993. Nye’s representation, Raymond Hamrick, intends to appeal after Cowan’s siding with Disney on the grounds that streaming does qualify as home video. On the contrary, Nye’s attorneys argue that “Disney is simply grabbing whatever it can based on a tortured reading of contracts that predate the streaming era.”

This case strikes up a compelling debate over the implications of evolving technology within entertainment law. Nye’s initial negotiations were conducted under the assumption that home video implied the production of a physical product or “video device” such as a DVD or VHS tape. Nye and his attorneys argue that streaming equates far more to pay TV than home video, as much of the presumed costs associated with home video distribution do not apply to streaming. Disney, on the other hand, claims that from the audience’s perspective, “streaming is similar to home video and represents an evolution from the earlier technology.” These contrasting views are well grounded in both logic and legality, forcing the reader to think critically as to the ethical implications of such a conflict. Accelerated by COVID-19, the streaming era will only continue to grow and dominate distribution influencing development, production, and all other facets of the industry for the foreseeable future. As such, it is essential to discuss and ponder these squabbles, for their outcomes will likely determine how similar conflicts are to be resolved going forward.

The core of this issue boils down to the fact that Disney, and presumably other such media conglomerates, continue to rake in profits under outdated legal justification. Given how rapidly and overwhelmingly the entertainment industry has evolved over the last decade or so, concerns of ethics and legality as they relate to business practices need to be continually recontextualized. Because of the increasing unanimity of streaming services as a dominant platform of distribution, the key to addressing this situation arises in the law rather than in the particular case of Bill Nye vs. Disney. When it comes down to it, Nye has the stronger argument. I feel a bit biased to side with creators as opposed to enormous corporations when the situation calls for it (despite my admitted love of all things Disney), so I give credence to the qualms of Bill Nye and his representation. Judge Cowan went as far as to say that Nye was “credible”, but that he found his arguments legally unconvincing, “because it would mean that Disney would not be able to collect any distribution fee at all.” Disney’s argument that streaming is an evolution of home video comes across as porous and theoretical in comparison to Nye’s more grounded claim that the same profit structures should not apply to an entirely digital medium of distribution which does not entail the production of a physical product.

Personally, I don’t find either party to necessarily be in the wrong here. Nye understandably feels entitled to a higher share of profit, given the outdated nature of his contract. Whereas, Disney is entitled to the profits they currently take as the judge has ruled under the protection of the law. Thus, it seems to me like the issue is found within the law itself more so than with either party. As is highlighted in the article, streaming operates far differently than the traditional methods of physical distribution, to which Nye’s contract originally pertained. “Unless the ruling is upheld on appeal, it does not establish a precedent that could be applied in other cases. But it still bothers attorneys who represent performers in profit participation lawsuits.” As such, the legality of the division of profits in cases like Nye’s needs to be reconsidered and potentially amended to more justly reflect the evolving industry. Otherwise, the various other streaming platforms like Netflix, Amazon Prime, Paramount+, HBO Max, and so on, which also hold the rights to vast libraries of legacy properties and valuable IPs will likely take advantage of this same loophole assuming they are not already doing so.

The article quotes Douglas Johnson, managing partner of Johnson & Johnson LLP, throughout, ending on his comment that “streamers are paying those big first window license fees that are usually your largest gains on the title. This should be a wakeup call to the artists and the people who make movies. This is outrageous.” In this statement, Johnson hits the nail on the head in highlighting the implications of such a case, in that while Disney’s business practices may be technically legal, they are detrimental to creatives and artists and indirectly harmful to the industry as a whole. As is the nature of business, there is an imminent danger that competitors will adopt this seemingly obvious yet morally questionable strategy in order to boost profits in the streaming era at the expense of talent. In conclusion, I think the solution to this issue comes in a reconsideration of the legality of back-end contracts like Nye’s to more fairly represent all parties in the context of the era of streaming.

While I find the legal minutiae of this case to be quite fascinating, the true interest for me comes in how much it seems to have slipped through the cracks of public consciousness. Though the article states that a legal precedent has not necessarily been set unless the ruling is upheld after further appeals, it’s difficult to imagine such a loophole going unnoticed by competitors, given the prevalence of streaming as the potentially dominant method of distribution in a post-COVID world.