Department of Justice Wades into Academy Awards Controversy - Fordham Intellectual Property, Media & Entertainment Law Journal
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Department of Justice Wades into Academy Awards Controversy

Department of Justice Wades into Academy Awards Controversy

On March 21, 2019, the Antitrust Division of the Department of Justice wrote a letter to the CEO of the Academy of Motion Picture Arts and Sciences.1 The letter claims to be in response to “news reporting” that the Academy was considering amending its rules in a way that would “[limit] eligibility for the Academy Awards.”2 The reporting that the Department of Justice alludes to stems from statements made by Steven Spielberg and his studio, Amblin, about the emergence of streaming platforms and their presence at the Academy Awards.3 In a 2018 interview, Spielberg was quoted as saying, “I don’t believe films that are just given token qualifications in a couple of theatres for less than a week should qualify for the Academy Award nomination.”4 The recent victories by Netflix’s Roma in this past year’s Academy Awards only added to the sense of urgency.5 At the 2019 Oscars, Roma (and in the Academy’s eyes, Netflix) ended the night with the awards for Cinematography, Achievement in Directing, and Foreign Language Film. Alfonso Cuarón, the writer and director of Roma, previously took home the 2014 Oscars for his film Gravity, in the Directing and Film Editing categories.6 Hulu and Amazon Studios have also made a foothold in the Academy Awards in recent years. Hulu’s Minding the Gap was able to get a nomination for Best Documentary in 2019, and Amazon’s Manchester by the Sea made history as the first streaming service movie nominated for Best Picture in 2017.7

The Department of Justice letter asserted that antitrust “concerns” could be raised by the actions of the Academy if it were to, “[establish] certain eligibility requirements for the Oscars that eliminate competition without procompetitive justification. . .” 8 The letter references §1 of the Sherman Act, which “prohibits anticompetitive agreements among competitors.”9 It then goes on to draw a line between the adoption of new rules, to the resulting exclusion of films “distributed via online streaming services” from consideration for Academy Awards, to the tendency of those films’ sales decreasing as a result, which would in turn violate §1 of the Sherman Act.10 The Justice Department has challenged media companies with antitrust actions in the recent past, with its efforts to block the merger between AT&T and Time Warner being the most public.11 On February 26, the Department lost its second (and for now, final) challenge against the merger, with the D.C. Circuit ruling in favor of the two media giants.12 The merger drew the attention of then Presidential Candidate Donald Trump, who stated during the 2016 campaign, “As an example of the power structure I’m fighting, AT&T is buying Time Warner and thus CNN, a deal we will not approve in my administration because it’s too much concentration of power in the hands of too few.”13

It is not clear yet what effect, if any, the Department of Justice’s letter will have on the governing body at the Academy of Motion Picture Arts and Sciences. The annual “rules meeting” is scheduled to take place on April 23, 2019, where “possible updates for consideration” are proposed, one or several of which could implicate the Academy in exactly the type of behavior the Department references in its letter.14


  1. See Ted Johnson, Justice Department Warns Academy Over Potential Oscar Rule Changes Threatening Netflix (EXCLUSIVE), Variety, Apr. 2, 2019, https://variety.com/2019/politics/news/doj-oscar-rules-changes-netflix-1203178413/#article-comments. [https://perma.cc/4M4H-P66W]

  2. Id.

  3. Ann Thompson, The Spielberg vs. Netflix Battle Could Mean Collateral Damage for Indies at the Oscars, IndieWire, Feb. 28, 2019, https://www.indiewire.com/2019/02/steven-spielberg-vs-netflix-oscar-academy-wars-1202047846/. [https://perma.cc/YPT4-P28N]

  4. Nick Statt, Justice Department says attempts to prevent Netflix from Oscars eligibility could violate antitrust law, The Verge, Apr. 2, 2019, https://www.theverge.com/2019/4/2/18292773/netflix-oscars-justice-department-warning-steven-spielberg-eligibility-antitrust-law?utm_campaign=theverge&utm_content=chorus&utm_medium=social&utm_source=twitter.  [https://www.forbes.com/sites/kashmirhill/2012/02/16/how-target-figured-out-a-teen-girl-was-pregnant-before-her-father-did/#12b20fb66686]

  5. See Johnson, supra note 1.

  6. Sarah Huggins, Roma Wins 2019 Oscar For Cinematography, Feb. 25, 2019, https://oscar.go.com/news/winners/roma-wins-2019-oscar-for-cinematography. [https://perma.cc/FD29-SBF6]

  7. See Jessica Prois, Oscar-nominated doc ‘Minding the Gap’ tackles violence through lens of race, gender, NBC News, Feb. 18, 2019, https://www.nbcnews.com/news/asian-america/oscar-nominated-doc-minding-gap-tackles-violence-through-lens-race-n972651. [https://perma.cc/A2Y5-NTFY]; See also Brent Lang, Amazon Makes History as First Streaming Service Best Picture Nominee, Variety, Jan. 24, 2017, https://variety.com/2017/film/awards/amazon-oscars-manchester-by-the-sea-1201967617/. [https://perma.cc/A6D9-4FXW]

  8. See Johnson, supra note 1.

  9. Id.

  10. Id.

  11. Nihal Krishan, Justice Department Loses Antitrust Appeal to AT&T-Time Warner Deal, Mother Jones, Feb. 26, 2019, https://www.motherjones.com/politics/2019/02/doj-loses-antitrust-appeal-att-time-warner-deal-trump/. [https://perma.cc/Q2EQ-YH3S]

  12. Edmund Lee and Cecilia King, U.S. Loses Appeal Seeking to Block AT&T-Time Warner Merger, N.Y. Times, Feb. 26, 2019, https://www.nytimes.com/2019/02/26/business/media/att-time-warner-appeal.html (“The Justice Department does not plan another appeal, a spokesman for the agency, Jeremy Edwards, said.”). [https://perma.cc/KK4H-B7TC]

  13. Andrew Ross Sorkin, The Political Legacy of a Failed Challenge to the AT&T-Time Warner Deal, N.Y. Times, June 12, 2018, https://www.nytimes.com/2018/06/12/business/dealbook/att-time-warner-legacy.html?module=inline. [https://perma.cc/8DQ4-EAYA]

  14. See Johnson, supra note 1. (“An academy spokesperson said, ‘We’ve received a letter from the Dept. of Justice and have responded accordingly. The Academy’s Board of Governors will meet on April 23 for its annual rules meeting, where all branches submit possible updates for consideration.’”)

Luis Pena-Navarro

Luis Pena-Navarro is a second-year J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. Luis holds a B.A. in English from Columbia College, Columbia University.