Photo by Joe Berlinger

“In what has become a tribal ritual, accusations are
again flying about the Oscar nominees for Best Documentary Feature Film.”
With that line, critic Ann Hornaday began her New York Times article
titled “Documentaries and the Oscars: No Cinderellas at the Ball.”
The date was March 14, 1993, and Hornaday was reporting on the peculiarities
of a selection process that had consistently excluded many of the most acclaimed,
groundbreaking and/or popular documentary films of the moment from its list
of nominees. Many in the press — to say nothing of the overlooked filmmakers
— were up in arms, accusing the Academy’s documentary screening committee of
being at best antagonistic to innovation and at worst mired in corruption. (Around
the time of Hornaday’s article, it was revealed that one documentary committee
member was also a documentary distributor whose own films accounted for a suspiciously
high percentage of the nominees.) And given the list of omissions — Claude Lanzmann’s
Shoah, Errol Morris’ The Thin Blue Line and A Brief History
of Time
, Michael Moore’s Roger & Me — such allegations seemed
more than a case of proverbial sour grapes.

Now flash forward 11 years. Responding to pressures both internal
and external — and an ever-lengthening roster of high-profile non-nominees —
the Academy of Motion Picture Arts and Sciences has instituted widespread changes
to its documentary nominating process. Perhaps most significantly, an actual
documentary membership branch has been created, meaning that nominees are now
selected by the documentary filmmakers themselves, rather than (as under the
old system) by a group of volunteers culled from all the Academy branches. Morris
and Moore — as if anyone could have missed the latter — have finally been invited
to the ball. Yet in a year that was widely hailed (as was 2003) as the Year
of the Documentary, with nonfiction films playing in record numbers of theaters
and to record attendance, the Academy’s recently published list of the 12 semifinalists
for 2004’s best-documentary statuette suggests that all is still not well in
the house of Oscar. Though the final five nominees won’t be unveiled until January
25, already out of the running are Control Room, The Corporation,
Dig!, The Five Obstructions, Guerrilla: The Taking of Patty
Hearst
, Los Angeles Plays Itself, Metallica: Some Kind of Monster,
Tarnation and Z Channel: A Magnificent Obsession — in short, a
veritable honor roll of the year’s most lauded movie achievements, documentary
or otherwise.

Tarnation


Fahrenheit 9/11 isn’t in the running either, though that
owes to Moore’s own decision to withdraw the film for documentary consideration
and concentrate on a Best Picture campaign instead. Of course, there’s no Academy
rule prohibiting a film from being nominated in both categories. There are,
however, abundant regulations governing which films are eligible for a documentary
Oscar in the first place. While both narratives and documentaries seeking Oscar
eligibility must first play qualifying runs of at least seven consecutive days
in at least one Los Angeles cinema, where documentaries are concerned that represents
but the first step on the long and winding road toward hoped-for Oscar gold.
As detailed in the Academy’s official rulebook (available in both pamphlet form
and as a download on the Academy’s Web site), having cleared that initial hurdle,
documentaries must then either open in theaters in four additional U.S. cities
or, failing that, be withheld from television broadcast, anywhere in the world,
until the day the Oscar nominations are announced. If a film is Oscar-nominated,
it must be withheld from television for an additional nine months following
the announcement. As for those films that do roll out to other cities, they
too are prohibited from television airings, but only for a comparatively lenient
nine months from the date of their first theatrical exhibition.

Guerilla: The Taking of Patty Hearst


Ostensibly, these rules were first deployed to protect
and empower documentary filmmakers. As Academy documentary-branch governor Freida
Lee Mock notes, “For a while, there were documentaries that simply did
the minimum qualifying run without the spirit in which the rules were written
— which is to qualify and then roll out, like most narrative films — and were
on television the following Sunday night. And that undercut the vitality of
our genre. There’s always been this distinction for the Academy, that their
mission is supporting theatrical motion pictures, be they fiction or nonfiction.
Our whole goal is to support the filmmaker.” Yet, in 2004, the Academy’s
television “blackout” rules were directly responsible for the disqualification
of Control Room and The Corporation (both showed on international
television within nine months of their U.S. theatrical premieres) before the
Academy’s documentary-branch members ever had a look at them — something that
Control Room director Jehane Noujaim doesn’t find particularly helpful
or empowering.

[

“Our film had one of the widest theatrical releases of this
year, and one of the highest grosses for a documentary, but it was still disqualified,”
she notes, before going on to point out the key role international television
financing plays in documentary production. “Seed funding for documentaries
is virtually nonexistent in the U.S. So why are these foreign broadcasters who
are taking the risks being penalized by the Oscars? If the filmmaker
wants to go for the award, the broadcaster must wait until after the Academy
Awards to show the films they have financed. Which can be three years or more
after the initial financing.”

In the Academy’s defense, Mock insists that the documentary branch
is constantly revising its guidelines to keep up with changes in the industry,
and that more changes are on the way. “We certainly didn’t want our rules
to handicap true rollout releases,” she says. “So, under our new rules
for the coming year, which haven’t been published yet, we’ve actually allowed
for an exception to the blackout if your film has expanded to a certain number
of markets.”

Even if a documentary does qualify for an Oscar nomination, however,
the battle hardly ends there — just ask Metallica co-directors Joe Berlinger
and Bruce Sinofsky. Two of the best documentarians on the planet, Berlinger
and Sinofsky found themselves embroiled in the original documentary Oscar controversy
when their debut feature, the remarkable account of murder and dairy farming
Brother’s Keeper (1992), failed to garner a nomination. In her investigation
at the time, Hornaday referred to the film as “the Elijah at the Academy’s
table,” and it’s a seat Berlinger and Sinofsky have occupied many times
over the ensuing years, as all of their subsequent work (including the two Paradise
Lost
documentaries, which have gone a long way toward sustaining the controversy
around an Arkansas child-murder case) has gone similarly unrecognized by the
Academy.

Back then, the co-directors did little to publicly conceal their
disgruntlement. “But now I’ve gotten to know the process a lot better,”
says Berlinger, himself (along with Sinofsky) a new Academy member. “I
have my analysis as to why it happened, but I no longer think it’s some conspiracy
against well-reviewed, commercially viable dark movies, which is what I used
to think.”

“Not making the shortlist — believe me, it hurt almost as
bad as Bush getting re-elected,” adds Sinofsky. “I was depressed for
a week, but then we got an Independent Spirit Award nomination, which in many
ways is almost as good as an Academy nomination.”

The key problem, as Berlinger sees it, is systemic: “The
nominating process, despite having gotten infinitely better, still has a long
way to go. There were 60 feature-length entries this year. They get divided
into four groups of 15, and about 100 of the documentary-branch members agree
to be divided into four screening groups. That means that only 20 to 25 people
watch each group of the entries.” At the end of the process, the screeners
in each group rate the films on a scale from 6 to 10, with any film receiving
an average score of 8.0 or higher advancing to the shortlist. Only these shortlisted
films are then viewed by the full membership of the screening committee.

“The lack of consistency required to produce that shortlist
is inherently flawed,” says Berlinger. “My suggestion to the committee
is that somehow more people, more peers need to watch all of the films. To me,
even the shortlist is too short.”

Which brings us to those titles that did make the 2004
Oscar shortlist. It’s anything but an undistinguished group, including a few
audience favorites (Riding Giants, Super Size Me, Touching
the Void
and The Story of the Weeping Camel), some relative obscurities
(Howard Zinn, Born Into Brothels) and several pictures (In
the Realms of the Unreal
, Tell Them Who You Are) that won’t go into
wide release until 2005. Of the 12 contenders, I’ve so far seen eight and can
say that none are less than good, a few are better than that, and at least one
— Paola di Florio’s Home of the Brave, about slain civil rights worker
Viola Liuzzo — is downright superb. But I’d also be lying if I didn’t say that,
in many cases, these works strike me as triumphs of documentary content over
documentary form, and that it’s hard to imagine there was ever really space
on this list for Jonathan Caouette’s Tarnation, a kaleidoscope of tortured
adolescence; Thom Andersen’s Los Angeles Plays Itself, a dyspeptic three-hour
essay about Los Angeles and the movies; or Berlinger and Sinofsky’s chronicle
of heavy metal rockers struggling to stay relevant.

“My observation is that when it comes to documentaries and
those who judge them — not just the Academy — people put subject matter ahead
of craft,” says Berlinger. “In the dramatic arena, if a story is great
but it’s poorly made, that film will get ripped to shreds. In the documentary
arena, it’s different. That’s not saying that Fahrenheit or any other
film is a bad film or poorly made, but I happen to think that people don’t care
enough about craft when evaluating documentaries. And let’s face it, in terms
of subject matter, a heavy metal band going through therapy might strike some
people as frivolous.”

[

For the Academy’s Mock, however, these long-running controversies
boil down to a familiar bit of conventional wisdom: You can’t please all the
people all the time. “Remember that under the old committee system, some
of the best films were still nominated. What happens is that three out of five
films everyone can agree on, and four through nine generate more widespread
opinions. Of course, it’s all very subjective.”

There, at least, is something everyone can agree on.