Boxoffice (Jan-Mar 1962)

CHANCES OF REVISING DECREES REMOTE, SAYS TOA'S COUNSEL PCA Seals Issued to 254 in 1961; 43 Above I960, Highest in 3 Years Levy Bases His Opinion On Efforts Made in Meat-Packing Case NEW YORK — On the basis of antitrust litigation involved in the case of United States vs. Swift & Co., Armour & Co., et al, the chances of revising or vacating the consent decrees in the government’s suit against the motion picture distributors are remote, according to Herman M. Levy, general counsel of Theatre Owners of America. SUIT WAS STARTED IN 1920 The Swift-Armour case was started by the government in 1920 and, through the years, efforts to get the decrees changed or eliminated by the defendants have been futile. For that reason, Levy said that while that suit was not a motion picture case, it deserved analysis and study by all segments of the film industry which, from time to time, had commented on revising or vacating the decrees in U.S. vs. Paramount through court action. In the Swift case, the antitrust suit was against the “big five” of the meat-packing industry, the government charging the defendants with dominating the purchase of livestock and other factors in that business. Under the decrees, the defendants were prohibited from extending their business activities, principally in the grocery field and retail marketing, and were enjoined from operating supermarkets. They were foreclosed from vertical integration, just as the divorcement decree in the Paramount case prohibited five distributors from showing their own pictures in their own theatres. Levy pointed out that antitrust authorities had stated that ten years was sufficient time to judge the efficacy of antitrust decree; that is to say, whether they eliminated the restraints, conspiracies and monopolies sought to be remedied. Ten years have elapsed since the entry of all of the decrees in the Paramount case and. Levy said, it was not surprising that there had been thinking about revisions. BOON TO DISTRIBUTION Levy said that those most vocal had been the exhibitors and that the distributors had been discreetly silent, for good reason. The decrees, he declared, were a great boon to distribution because it was able to use the decrees as a means of fostering competitive bidding. In addition, Levy said, in part at least, the decrees insulated distribution against competition in that field by enjoining the former affiliated circuits from engaging in distribution. Thus, he continued, the decrees had helped to contribute to the film shortage and had given the distributors the opportunity to take full advantage of the product famine by competitive bidding. Many in exhibition, Levy said, believed that the decrees left much to be desired and that they had not been sufficiently enforced. Others were of the opinion that HOLLYWOOD — In a report by Production Code Administration administrator Geoffrey Shurlock to Eric Johnston, president of the Motion Picture Ass’n of America, it was disclosed that certificates of approval were issued to 254 feature films during 1961, the highest figure since 1958. The total was a sharp rebound from the 1960 figure of 211, a year in which two major studio strikes halted film production for several weeks, and a marked increase the decrees should be revised. For example, many exhibitors believe that exclusive hard-ticket engagements, accompanied by extended runs, violate the injunctions against unreasonable clearances as to time and area. Some believe that the injunctions against former affiliates entering the distribution business should be eliminated. Levy said others believed that the device of licensing pictures “when, as and if available,” rather than under the old system of specific clearances set out in the licensing agreement, was a means of imposing unreasonable clearances. And still others, he said, felt that a return to a form of block booking would result both in more product and make it easier for theatres to operate by giving them a backlog of product. In the Paramount case, the court specifically reserved jurisdiction to make changes in the decrees. Levy said there was no question, therefore, that the court had the power to reexamine the decrees in the light of present conditions in the industry and, if it should find them necessary and proper, to order changes. In order to be heard on the subject of revision, however. Levy said the matter must be brought to the court’s attention by action and only by a party in the case. Exhibition was not a party to the Paramount suit, although granted amicus curiae status for limited purposes. An amicus curiae does not have the privilege of initiating court actions along the lines indicated. Only the government, a distributor defendant or a former affiliate could over 1959 when 223 features received seals. Of the 112 films made abroad in 1961, the report said that 58 were made by American companies and the remaining 54 by foreign producers. The number of feature scripts submitted to the PCA reached 242 in 1961, as compared to 222 in 1960 and 254 in 1959. Following is a breakdown of last year’s total figure together with the comparable figures for 1959 and 1960: 1961 1960 1959 bring a motion to revise or vacate the decrees. Moves to revise or vacate the meatpacking case have been rejected. On the basis of those decisions, Levy said, the odds would be against success in the Paramount case. In 1930, both Swift and Armour petitioned for revision of their deci’ees on the grounds that the decrees had become unjust in view of radical and revolutionary changes in the business which “were both unexpected and unforeseen and had worked a revolution in food distribution methods.” A district court granted some relief, but the government took an appeal to the Supreme Court which, in 1932, reversed the district court and ordered the decrees reinstated in full. The defendants waited 24 years before trying again for modification. After months of hearings, the district court in Chicago refused all requests for changes in the 1920 decree. As an indication of the practically insurmountable burden to change a decree, Levy cited the court’s quotation from the Supreme Court decision in the original hearing: “No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen circumstances should lead us to change what was decreed after years of litigation with the consent of all concerned.” Domestic: Produced and released by members 31 29 31 Produced by non-members, released by members 100 85 97 Produced and released by non-members 11 6 22 142 120 150 Foreign : Produced and released by members 9 5 6 Produced by non-members, released by members 85 82 55 Produced and released by non-members ... 18 (112) 4 (91) 12 (73) 254 211 223 6 BOXOFFICE :: January 15, 1962