The Texas Film Commission, and When Controversy is Really Just a Matter of Opinion

Earlier this week, we alerted you to a brewing storm regarding the Texas Film Commission and their decision to not extend film incentives to Waco, a movie currently in early production phases that had its first media acknowledgment thanks to this week's Cannes Film Festival.

Most of the information that we had were quotes from various people involved in the production of the film—representatives of Entertainment 7 (specifically Emilio Ferrari and Tara Wood), the production company behind the picture, and the Director of the Texas Film Commission, Bob Hudgins. At that time, the full story had not yet emerged, but we still felt that it was important to inform our readers of the brouhaha.

Yesterday afternoon, we spoke with Mr. Hudgins and feel that we now have a clearer story, at least from the state's point of view, and wish to tidy up some omissions and inaccuracies that were presented, not only by us, but by other media outlets as well.

As a primer, let's start with the language from the statute that was signed into law in June of 2007, which went into effect in September of 2007:

The office is not required to act on any grant application and may deny an application because of inappropriate content or content that portrays Texas or Texans in a negative fashion, as determined by the office, in a moving image project. In determining whether to act on or deny a grant application, the office shall consider general standards of decency and respect for the diverse beliefs and values of the citizens of Texas.

Fairly vague, to be sure, but the spirit of the clause was intended to protect the good citizens of Texas from the Glory Road effect. That film portrays the 1966 men's basketball team from Texas Western College, with an all African-American Starting lineup—the first of its kind in College Basketball—overcoming adversity and racism on their way to the NCAA Division 1 Championship, during which they beat the University of Kentucky and returned home heroes. However, earlier in the film, there are scenes between the Westerners and East Texas State University (now called Texas A&M University-Commerce), during which East Texas State fans are shown throwing popcorn and drinks, and yelling racial epithets at the Texas Western College players. In a later scene, racial slurs are shown painted in their hotel rooms. The events depicted did not actually happen at the East Texas State game, but instead happened at various other games during the Westerners Season, thereby making the ETSU fans out to be something that they were not.

Disney, who had produced the film, refused to offer a formal apology to Texas A&M Commerce, saying that events had to be consolidated, and, well, sorry, your school just happened to be the one that gets the racist story line, and that they did not intend to misrepresent any group. The film shot to number one at the box office on its opening weekend, forever tarnishing the reputation of alumni and current students of Texas A&M Commerce, who had done no wrong. Furthermore, Disney claimed that since it wasn't a documentary, it shouldn't really matter.

This is exactly the type of situation that the clause in House Bill 1634 is meant to protect against: real people being portrayed in a negative light when in fact they are innocent of any wrongdoing. Basically, you can portray a scoundrel, but only if they were actually a scoundrel, which is where the rub is with Waco.

According to Hudgins, there are named characters in the Waco script who are actual people that were present at the Branch Davidian standoff, and after reading the script and seeking them out to verify that the events portrayed were true to life, seeing as they would put those characters in a negative light, he was told that no, the script was in fact inaccurate.

Which is exactly why Hudgins followed the letter and spirit of the law, which stressed that if you use someone's name in your film and recount detailed events that are damning to that person, and those events didn't actually happen, then incentives should be withheld.

While that covers the actual denial of incentives, there is much more to this story that has nothing to do with the law, and instead stems from the rhetoric that has surrounded the reporting of the incentive refusal and the views of the producers of Waco.

We'll start with the political misgivings, as those are the easiest to dispel, and possibly the most humorous. From the Statesman's first report of the incentive denial:

But “we were told in the last couple of days that the Texas Film Commission was backing out” of recommending incentives because of opposition from an unnamed state senator, Ferrari said.
Ferrari said he heard that a senator was objecting to the movie’s getting any incentives because it might make Texas “look bad.” But Ferrari said the movie is not political and does not point fingers. “I’m a moviemaker, and I’m not political. I’ve never even voted,” Ferrari said.

The irony of a person who has never voted complaining about an incentive program that was put into place by the government aside, Ferrari asserts that this was a political decision, as opposed to a decision based on reason free from passion.

There were no senators or other elected officials of any kind involved in deciding whether or not Waco would receive funding, said Hudgins. The Texas Film Commission acts on its own in these matters, and the director is the final word on whether or not a script or project steps outside the bounds of the law.

AP Photo/Charles Rex Arbogast, previously published on Chicagoist.com

(In fact, the assertion that politics played a part in this decision is even more off base when you consider that Hudgins resigned his position as the deputy director of the Illinois Film Office in order to come to Austin, due in part to the corruption and political pressure that he felt under none other than then-Governor Rod Blagojevich.)

Moving along, Ferrari pointed out in subsequent articles by the Statesman that the TFC had the script for a year and did not object to the content until just recently.

"He had the script months ago," Ferrari said. "And there was no problem for a long time. Hudgins helped us scout locations and did not indicate there were any problems until recently."

This is, unfortunately, not accurate, according to Hudgins. It is true that the TFC had a copy of the script (which they received on December 13th, 2008) and that Hudgins did aid in scouting locations, but it was made clear to the producers of the film that the content was not acceptable under the current statute. The TFC even provided an annotated edit of the script to the production company after their first reading—and then the production went silent.

According to Hudgins, since some of the story lines would not pass muster, the producers of Waco began looking to other places for funding, and it was assumed that the film would be shot in Louisiana, since the film commission there had offered Entertainment 7 $6 million in incentives, and had no beef with the script. It was only in April of this year, when Governor Rick Perry signed the second bill regarding the Texas Moving Image Industry Incentive Program, which allows a 15% incentive to moving picture projects (a bump up from the previous 5% grant), that the Texas Film Commission had any indication that the producers of Waco were still interested in filming the picture in Texas.

It was at that point that Hudgins reached out to one of the other producers of the project (who wishes to not be named or comment on these proceedings) to ask her if the script had been modified from its original version to more aptly comply with the regulations of the law. When she informed him that they had not changed anything in the script, Hudgins had to tell her that the TFC's position on denying an incentive grant to the project would still stand. Hudgins says that this unnamed producer acknowledged that it was what he had to do and still has four other films that she would like to shoot in Texas that do meet the regulations set forth in the law.

Apparently this unnamed producer and Ferrari are not communicating, as he wrote a pretty scathing letter to another blogger, Si Dunn, stating that he would never shoot another film in Texas because of this one case.

Finally, the invocation of the word "censorship", not only in the comments section of the Statesman article and our original post, as well as by Ferrari himself, has been much discussed.

As Hudgins told us, there is a very narrow crack through which these projects fall out of compliance with the statute, and this is the first film that they have come across that meets the criteria for denial. If this was a fictional story, then the state would have no problem with it (as long as there was no pornography involved), but when a film claims to be based on true events, it must meet the standards that have been defined by the law.

Furthermore, in order for it to be censorship, the state would have had to deny access to the project entirely, or forced the changes to the script in order for the production to film here at all—this has not happened. Any film is welcome to be filmed in Texas, said Hudgins, but if they want to get taxpayer's money, they must play by the rules. That may rub some people the wrong way, but it is what it is.

In closing, it's of note to point out that the Texas Moving Image Industry Incentive Program is not just for films, and that the majority of the projects that have received benefits thus far are video games and commercials. Below you will find attachments from the TFC regarding what projects have been completed and funded by grants from the incentive program, as well as statistics on how many projects have applied and are in process to be granted incentive monies. As for Waco, the chances of it being made are pretty good (though almost certainly not in Texas), especially given the free publicity that's come of this media blitz.

Incentive Program Status Update 4-16-09-1.pdf

TFC Incentive Program - Paid Projects as of 5-21-09.pdf

Contact the author of this article or email tips@austinist.com with further questions, comments or tips.

By oh, steph in Arts & Entertainment on May 22, 2009 12:00 PM 0 Comments

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sidunn

Tara Wood, one of the producers involved in the controversial "Waco" movie project, has resigned her post with the production company Entertainment 7 and is returning to her home base in Austin. She contends that political "pressure from above" the Texas Film Commission led to the denial of state production incentives for the $30 million movie.

"It’s very unfortunate that Texas will not benefit from this project," she told me. "I’ve lived in Austin for 15 years, going back and forth to L.A., and have been actively involved in trying to get the film community back on track. This is quite a blow. I was very encouraged when the most recent bump in incentives went through, because it actually allowed us to consider Texas to shoot. I’m shocked at this [Texas Film Commission] decision.

"Since Mr. [Emilio] Ferrari has made that ridiculous statement 'will never ever shoot in Texas,' I have left his company as head of international sales of Entertainment 7. I’ll be damned if I worked this hard to have someone be that reckless! I have a Texas-based distribution company and will put all my efforts there again."

Ms. Wood notes: "When this all went down, the last thing I wanted was to be associated with anything against Texas or the Texan people. My argument is against the language in the provisions [which bars portraying "Texas or Texans in a negative fashion" in any project seeking state production incentives]. In my opinion, this is blatant censorship, and ‘the state’ of Texas needs to take a step into this generation. The picture is going to be made with or without Texas, with another state reaping the benefits, most likely Louisiana (again). It was unfortunate that [Texas Film Commissioner] Bob Hudgins has been attacked in all of this. He made the mistake of taking the blame and becoming the state’s scapegoat by stating it was his decision. If you know Bob, you know he wouldn’t deny the Texas people the benefits. I firmly believe there was pressure from above."

She adds that her work on the "Waco" project "as it pertains to assistance with funding" is complete, and she will now focus on her Texas-based entertainment distribution company.

sidunn

The tax abatements were approved, the capital investments were made, the factories were built, people like me were hired, and a few years later, the markets cratered, the factories shipped the jobs (including mine) overseas, and nothing was left behind except empty buildings that took a LONG time to sell to anyone else. They eventually became call centers, until those jobs, too, were shipped overseas and the buildings were left empty once again. I see nothing wrong with grubbing for every entertainment dollar we can pull into Texas. Movie projects, for example, are short-term, and everyone working on them knows it. Get enough projects going, however, and you can work almost all the time. Movie projects seldom build and abandon buildings. The producers also don't hammer local officials for long-term tax abatements. They just show up, spend a wad of money in the areas where they are shooting, and leave. Then, if the movie is a success, tourists start showing up to visit the locations where it was shot. Forty-two years after some scenes of "Bonnie & Clyde" were shot in the Ranchman's Cafe in Ponder, Texas, people are still coming there to see the photos of Faye Dunaway and Warren Beatty and talk about the movie while they eat steaks and burgers and pie. In my view, movies are a "capital investment" that can keep paying off a lot longer than factories in 21st century Texas.

sidunn

Manufacturing? Wow, I worked in manufacturing...several times. Got laid off every time as sales plummeted and jobs kept getting shipped overseas. My final job in manufacturing is now being filled by someone in India. My own impression of the catch-as-catch-can entertainment industry is that it's a hard place to make a living, but it is a hell of a lot more likely to stick around than manufacturing.

Wes

You completely missed my point about capital investment.

sidunn

Personally, I think the Texas Film Commission should serve only to help get as many moving-image projects as possible into the state, whether they involve singing steers or crazed zombie cowboys with chainsaws or a cult of cannibals in Crawford. Get the productions here, spending money and hiring casts and crews. Beyond that, the existing legal system can take care of any "issues" that crop up regarding interpretations of "accuracy" or libel or slander or whatever. The Texas Legislature has no business trying to be the state's "image" police. There are many, many more pressing needs and issues they should be dealing with, instead. Many people need jobs and health care; some people are hungry and homeless; many roads and bridges are falling apart; many public schools are crumbling and failing to educate. That's the state's real image problem, not some screenplay about religious zealots and federal agencies that made some fatal mistakes near Waco 16 years ago.

sidunn

Many states offer production incentives of various types (often tax breaks or tax refunds on private money that has been spent) in hopes of landing moving-image productions that have a lot of money to spend. But these states can only push the incentives so far in their battles to outdo each other and make their state more "attractive" than the state next door. At some point, the incentives may become so "generous" and complicated that states can't do anything else to compete with each other (short of handing out free cash), and politicans in cash-strapped states will begin cutting back on the incentives. If Texas gets out of the incentives business altogether, as you advocate, private ways will have to be found to entice moving-image productions to Texas and compete with other states' incentives. Otherwise, the state will lose out on a lot of production money, and many Texas moving-image people will be looking for jobs elsewhere, or in other fields.

Wes

"If Texas gets out of the incentives business altogether, as you advocate, private ways will have to be found to entice moving-image productions to Texas and compete with other states' incentives. Otherwise, the state will lose out on a lot of production money, and many Texas moving-image people will be looking for jobs elsewhere, or in other fields."

I don't really care whether film jobs leave town or not. If we are going to hand over taxpayer money to for-profit businesses I'd much rather see that money used to attract businesses which are likely to make large capital investments (i.e. manufacturing) in Texas.

Wes

Doug, you make a very good point. The state of Texas should get out of the incentive plan business altogether. The real problem here is public money being given to private, for-profit businesses.

Doug

No offense, but your opinions of whether a work is fiction or non-fiction don't matter at all. Censorship is censorship. There should be NO "negative light" clause in the incentive plan. Negativity is totally subjective, and I for one don't want elected of appointed bureaucrats deciding Productions might cast a negative light on Texas' image or not. Who cares?! Individuals are going to interpret topics themselves regardless of the opinions of someone sitting on a board. The bottom line of any incentive plan (and the only reason this one now exists) is money. It's really simple...if you want companies to produce content in Texas, don't censor that content. It's completely ridiculous and contradicts one of our most basic rights as citizens of the United States.

sidunn

I still say the Austin American-Statesman got to the real heart of the issue in its May 22 editorial when it stated: "The 'negative light' criteria...is...subject to different standards by different people" and "Not every production is going to be worthy of a tax break, but the reasons for denying them shouldn't rely on standards that could vary from one person to the next."

The Texas moving-image industry should pay very close attention to the "negative light" restrictions in the incentive program and get busy on generating some new legislation that will make it easier to bring outside productions to Texas even when they involve subjects that state legislators and local chambers of commerce will think are a bit "too touchy" or "too negative."

As the Statesman pointed out, some of the most successful movies ever made about Texas did not exactly flatter the Lone Star State. And yet, we did not disappear from the map. Instead, the state has made tons of money and is still making money from productions created up to 50 years ago and more that put Texas and Texans very much in a "negative light."

Bottom line, movies are produced to make money. Money is spent somewhere in hopes of making money for all those involved in a movie's production. More money could be spent in Texas--and more Texans could work, get paid and spend money, too--if the "negative light" clause is replaced with new and more enlightened legislation.

Having the Texas Film Commissioner--a good guy by all accounts--be the final judge of "factual accuracy" in screenplays is legislative idiocy. No matter how much "due diligence" is done, you're still dealing with screenplays -- movie fiction, no matter how "based on real events" the screenplays are supposed to be. As for the "inaccurate" parts of screenplays, those often are worked out in lawsuits that, sometimes, shut down productions. For example, the producers of "Waco" could have come to Texas, spent a bunch of money, then gotten sued by those who think their script is "inaccurate." Then, lawyers and publicists would have made some money and the media would have had some new headlines, and either the production would have been shut down and left the state (after leaving a lot of money behind) or it would have won its case and put a bunch of Texans to work amid lots of publicity.

Of course, those who think the big, strong, independent state of Texas somehow can be harmed by movies such as "Waco" are free to disagree with my argument. But remember, we're already not exactly loved by the 49 other states and U.S. possessions and territories, anyway.

Caiwyn

Excellent writeup, looks like you guys did some solid digging. Glad to see this in the Austinist. :)

sidunn

Oh, I see, the 2011 "Tulia" project that now lists its shooting location as...Louisiana.

sidunn

This "Tulia" project will focus on the actions of attorney Vanita Gupta (Halle Berry), who grew up in Great Britain and France, then attended Yale and New York University School of Law before flying into the Lone Star State for the Tulia cases. Not exactly a Texan being portrayed in a "negative fashion." However, Billy Bob Thornton also is attached to the project as an actor. I would guess he's going to play the "out of control" undercover cop who ends up getting discredited in court, which leads to the 40-plus drug convictions being overturned with the help of Gupta and a team of volunteer attorneys, some of whom also fly in to Texas. Likely, Billy Bob's character will be the Texas Film Commission's approved "Texas scoundrel," who can be portrayed "accurately" because of court records and news accounts. However, Louisiana is still the only shooting location listed for the project at this time. (Can't get in much trouble with state-image-conscious Texas legislators if you shoot in Louisiana.) But maybe they'll at least send a second-unit crew to shoot a few everyday-Tulia street scenes before staging everything else in courtrooms, jails, houses and sound stages in Louisiana? Just speculating...

oh steph

Actually Si, you are referring to the documentary by Cassandra Herman and Kelly Whalen that was featured on the PBS series Independent Lens. Rodney is referring to the biopic that is still in development, allegedly starring Halle Berry and to be directed by John Singleton.

sidunn

I'm pretty sure the Tulia, Texas, movie you are referring to was funded and shot before the 2007 "Pollyannaish" restrictions went into effect. The producers and others were working on the movie in Tulia before 2007--actually several years before 2007. The movie premiered in March, 2008.

Rodney

To the point that the content clause only allows funding for Pollyannaish views of Texas, consider one of the recently approved projects, a biopic about a 1999 miscarriage of justice in Tulia, Texas.

Without a lick of evidence other than one undercover officer's testimony, 46 black residents were arrested and convicted on narcotics charges. (This amounted to almost one in three of the small town's black males.) The arresting officer was hailed as a hero. So enamored was the state, in fact, that the state attorney general named the officer "Lawman of the Year."

Several years later, a Texas Observer reporter started noting inconsistencies in the officer's claims and his dubious professional history. This led to a reexamination of the case in which the 46 were released from prison and awarded $6 million by the state.

Not exactly a flattering view of Texas, is it? Yet the Texas Film Commission, after conducting its required due diligence on the script, deemed it accurate and approved its funding request.

sidunn

Fine, you have your opinions, and I have mine, based on my experiences and admitted biases as a book author, screenwriter and book review columnist who has had to deal with numerous overabundances of horseshit in his day. I'm sorry you're so trusting of "reality." There is, in fact, a lot of "fiction" in works of nonfiction. A "nonfiction" work is still the creation of one or more authors, who make decisions about what to include or leave out of their book. Their interpretations of what happened may be completely unlike what those who were there will say happened--from their perspective. Everyone's interpretations will be different. I have just finished writing a nonfiction military memoir in which I had to get the recollections of several people who served with me in a combat zone. What they remembered happening did not match up with the official documents of the events and also did not match up with what I remembered as happening. So, even my autobiographical account of what I experienced is not completely "real." It is as "real" as I can make it within my own mind and sense of honesty. But someone else who was there may completely disagree with my interpretations--just as you and I are in complete disagreement about this "Waco" project. And the historians who are now reviewing my manuscript for the publisher may have their own interpretations and opinions of the events I have written about and ask for changes.

To those who think the "Waco" movie will show what "really" happened there, I'll just say: "Hey, good luck with that."

oh steph

That's like saying that all non-fiction books should in fact be classified as fiction just because they are not auto-biography, which is complete horseshit in my estimation. What would happen to the Dewey Decimal System?!!!! Sorry, Si, but we will never agree on this matter.

sidunn

Since there is no moment-by-moment, all-angles video and audio recording of everything that happened on all sides of the standoff, any attempt to create a biopic or re-create events "as they really happened" will still be a work of fiction and based on various individual interpretations of what so-and-so says or believed happened or didn't happen. A lot of stuff will still be made up or modified. And to create a dramatic story somewhat within the realm of a screenplay's traditional three-act structure, certain events will have to be compressed or combined, certain characters will become composites, etc., etc. The director and the director of photography will have their own "visions" of the movie. And the actors will create their own interpretations of the characters. The final work will be fiction, no matter how much it is based on events "as they really happened."

oh steph

Sorry, Si Dunn, but I must heartily disagree with you. A film that portrays events that happened to a person or group of people in real life is a biopic, not fiction.

You say, "Fiction does NOT depict events as they really happened," but that is not the aim of this film. This film is indeed based on and hopes to depict "events as they really happened."

Look at it this way: if someone made a movie about your life and everything in it was factual - how you grew up, where you went to school, etc, etc - and they used your name and likeness, but they also added a part where you molest a child, do you think that would be fair? Sure, it is an extreme case, but if a writer/director/producer is presenting all other aspects of the film as based on true events, then how can the viewer decipher what is accurate from what is inaccurate. Keep in mind that people will see the film and that no matter what, after that you will be seen as a child molester. I think it is completely fair for the people who are named in the script to say what did or did not happen to them.

sidunn

The real issue is still being ignored. A movie is fiction. Fiction does NOT depict events as they really happened, even if it is "based on real events." It is still fiction, and in fiction, anything goes. Anyway, if 100 people witness one event, they will have 100 different interpretations and memories of it. So who is to declare what is "accurate"? Those who were involved in one part or another of the Branch Davidian standoff will have their own memories and interpretations of what they did, and they will tend to see themselves in a positive light even if many others had negative opinions of their actions. Also, whether they like it or not, they became public figures as a result of their involvement in the standoff or attempts to end it. Public figures are much more open to review or criticism of their actions than everyday people are. The statute attempting to stop "Texas or Texans" from being depicted "in a negative fashion" has the effect of barring any story that criticizes any aspect of the state. Therefore, if someone wants to make a "Texas" movie, only happy-talk stories with blue skies and singing steers should be funded? Read the editorial in the May 22 Austin American-Statesman. It sums up the problem very nicely beneath a good headline: "Negative light creating quite a gray area."