Toronto Film Buyers Beware: 'Birth of a Nation' Blowup Casts Shadow on Dealmaking

Toronto Film Buyers Beware - Illo - Robbie Porter -H 2016
Illustration by: Robbie Porter

What should agents disclose in festival bidding wars? After Fox Searchlight spent a record $17.5 million for a movie now engulfed in Nate Parker's college rape trial controversy, buyers may investigate more filmmakers as lawyers weigh potential liability.

Late in the evening of Jan. 25, teams from Fox Searchlight, Netflix, The Weinstein Co. and Sony converged in a lounge off Main Street in Park City to begin their pitches for Nate Parker's The Birth of a Nation.

Hours earlier, the Nat Turner biopic had premiered to uproarious applause at the Eccles Theater, and WME Global head Graham Taylor, the lead agent for the film, was ready to spearhead a monster sale. Parker, who actually had fired WME and moved to rival CAA only weeks before Sundance (Taylor continued to rep the film), also was busy consulting with his new agents, CAA's Joel Lubin, Franklin Latt and Scott Greenberg. Searchlight executives made their formal pitch at around 11 p.m. to the film's producers, including Aaron L. Gilbert, who as the primary financier was responsible for bonding the film. (A completion bond requires scrutiny of key people to determine whether the film is insurable. It usually focuses on health issues but typically also includes a principal's legal history.) An hour later, Parker and Birth producers moved to the Marriott Summit Watch to meet privately with TWC's Harvey Weinstein and David Glasser. By 5 a.m., Weinstein had bowed out when the bidding reached $15 million. Searchlight then upped the ante to $17.5 million, but Netflix quickly surpassed that by offering a deal that two sources say was potentially worth a whopping $25 million ($5 million higher than has previously been reported). WME co-CEO Ari Emanuel was fielding calls back in Los Angeles from Netflix's Ted Sarandos and then-Fox film chairman Jim Gianopulos. By 6 a.m., Parker, who wanted a wide release for the film rather than Netflix's day-and-date theatrical/streaming proposal, opted for Searchlight's package and went to bed, with Taylor and his team closing the record $17.5 million deal.

The Sundance frenzy involved some of the most seasoned and sophisticated dealmakers in Hollywood, yet none of them discussed the personal backstory of Parker, who as co-writer, director, producer and star of the movie would be used as the primary marketing tool and, more importantly, a moral voice in the theatrical and awards-season campaign. This despite Parker's own Wikipedia page including the fact that he had been charged with rape in 1999 (Parker was acquitted, while Birth co-writer Jean Celestin was convicted of sexual assault, though the verdict was later overturned).

Now, as Searchlight grapples with damaging fallout from resurfaced details of the rape case, the question circling the independent film community as the Toronto International Film Festival gets underway Thursday is how the Birth aftermath will impact future festival dealmaking. Multiple sources say Searchlight executives, including co-presidents Steve Gilula and Nancy Utley, learned the lurid details about Parker's past well after agreeing to buy the film. But the sale pact did not include a morality clause for Parker, which could have given Fox a claim against him or allowed the studio to void the deal. Still, sources say Fox lawyers have looked into this issue. Searchlight declined comment.

In the close-knit indie film community, both buyers and sellers privately are saying WME may have had an ethical if not a legal obligation to disclose Parker's past if its sales team knew the upsetting details, including that the woman at the center of Parker's rape trial died by suicide in 2012. (Parker himself has said he did not know about his accuser's death until recently; WME declined comment on how much Taylor and his team knew before the sale, as did CAA.) A source says MPRM'S Mark Pogachefsky, who was handling publicity for Birth, only learned of Parker's past while on the ground in Sundance.

"The finger that should be pointed should be at WME — period," says one top buyer involved in the Birth hunt. "These are people who will have repeat customers, and it's their reputation that is affected. If you're selling tainted goods, you're screwing over the buyer."

It's still unclear if Parker's past and his recent comments on his actions 17 years ago will have a negative impact on the film's box office or awards performance. And Searchlight still might have paid a record price for the film even if it knew the baggage that came with it (Woody Allen and Roman Polanski have continued to make in-demand films after abuse claims surfaced). But sources say exhibitors who had made verbal commitments to book Birth for its planned wide rollout Oct. 7 are re-evaluating their plans, reducing screen counts or keeping the film on a short leash if it doesn't perform in the first week.

Both buyers and sellers privately say while wholesale vetting of filmmakers or stars is not logistically possible, they likely will do more research in the future, especially if a film takes a strong point of view. (None would go on the record.)

And there is precedent. Though the stakes are smaller, documentary sales agents have been vetting filmmakers for years because any unrevealed personal transgressions can be used to undermine a storyteller's credentials. "If it's a high-profile film, sales agents try to be more cautious," says Submarine's Josh Braun, who has sold hot-button docs including Citizenfour and Weiner. "But what are you checking for? You could be handling a filmmaker who did a documentary on drinking and driving, and then it came up that he had killed someone in an accident when he was 14, and it was sealed and never revealed because he was a minor. That would be the worst-case scenario. But no one would ever look for that. For the most part, we are going on trust."

And most legal experts consulted by The Hollywood Reporter say there may be no legal recourse for Searchlight. "I don't feel that any talent has the obligation to disclose their personal history unless they are specifically asked about it, particularly in an instance where someone was acquitted," says Jill Smith, a deal lawyer at Kleinberg Lange. Litigator Neville Johnson agrees: There's "no reason he — nor someone else in his situation — would volunteer the information," he says.

The burden, at least from a legal perspective, likely is on the shoulders of the distributor to do its homework. "There's an issue of due diligence," adds Johnson. "Why didn't they look at Wikipedia? Do a social media search."

With all eyes now on the Toronto market, there likely will be greater scrutiny placed on filmmakers and efforts made to uncover potential headaches ahead of a purchase. At this stage, only one film stands out for flirting with issues (and they are of a business nature, not the personal backstory of the Nate Parker case): The Anne Hathaway starrer Colossal, whose plot about a giant lizard and a young woman with the power to halt the destruction has been accused of hewing too close to the Godzilla movies. Toho sued the producers for selling the film without regards to its intellectual property and the two sides settled in October 2015, allowing the film to go into production. 

Either way, potential buyers are expecting full disclosure of any loose legal threads.

A version of this story first appeared in the Sept. 16 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.