Hollywood’s biggest awards organization, The Academy of Motion Picture Arts and Sciences (“the Academy”), has passed sweeping reforms to combat longstanding racial and gender disparities in the film industry. Some praise them. Some call them dictatorial. But will they cause legal trouble?

The Academy’s “Oscar” award remains one of the best-known and most prestigious honors any art form can receive. Indeed, even with declining ratings in recent years, the annual Academy Awards ceremony remains the second-most viewed event on television, behind the Super Bowl.[i]

why do the oscars matter?

Winning an Oscar can result in a major financial windfall for a film or studio. Recently, Green Book stumbled out of the gate financially, only to ultimately gross more than $320 million worldwide thanks to a substantial post-Oscar win box office boost.[ii] Similarly, Parasite saw a 234% increase in ticket sales the week following its Oscar win.[iii] An actor’s Oscar win can propel them from relative obscurity into stardom. Mahershala Ali was only known for brief supporting turns in The Hunger Games films and House of Cards prior to winning his Supporting Actor Oscar for Moonlight. Since then, he has won a second Oscar for starring in Green Book, landed the lead role in HBO’s True Detective and is set to play the Superhero “Blade” for Marvel.[iv] Other recent winners like 12 Years a Slave’s Lupita Nyong’o [v] and The Favourite’s Olivia Colman have experienced similar post-win trajectories. Unsurprisingly, given the benefits that can result from winning an Oscar, studios pour enormous resources into Oscar campaigns.[vi]

Considering the massive financial stakes involved, the high-profile nature of the Oscar awards ceremony and the recognizability of “Oscars” as a trademark,[vii] each year the awards face intense scrutiny.

what prompted the reforms?

The hashtag #OscarsSoWhite trended across social media platforms for weeks, in 2015, after the Academy exclusively nominated white actors in acting categories for two consecutive years from 2014-15.[viii] Though it was no secret that Hollywood had long suffered from serious racial disparities, the high-profile nature of the Oscars, especially as a barometer of the industry’s “best,” made the absence of any non-white nominees especially injurious. Although some may consider the Oscars to be but a small facet of the film industry because it is an awards ceremony rather than an organization that generates its own content, they have a significant ability to induce change due to their financial and cultural influence. This ability to impact the industry was especially evident in 2017 when Frances McDormand used the phrase “inclusion rider” in her Oscar acceptance speech, bringing it to national attention.[ix] After hearing McDormand’s speech, actor and producer Michael B. Jordan utilized the rider on the production of 2019’s Just Mercy, causing co-star Brie Larson to note, “It was the first time in my career that I had hair, makeup, and wardrobe crew that were all people of color."[x]

Although there has been marginal progress made in diversifying Hollywood and the films in contention for top awards, that change has come slowly. In 2016, seven out of the 20 nominees for acting Oscars were people of color. However, during this most recent Oscar season, Cynthia Erivo was the only non-white performer nominated for an acting Oscar. Lack of progress alone might not have pushed The Academy to institute more dramatic reforms, but in Summer 2020, the killing of George Floyd ignited a powder keg of simmering tensions, resulting in a wave of Black Lives Matter protests throughout the nation. In response, many companies enacted often superficial[xi] measures to demonstrate their support for the movement. In the midst of this climate, the Academy announced further reforms, instituting a new set of criteria that films must meet in order to be eligible for consideration in the Oscar Best Picture category.[xii] In theory, because an Oscar is a coveted prize in the industry, the new set of criteria should persuade the entertainment industry to reform its hiring and storytelling practices.

what are the new standards?

Although the new diversity initiative made major headlines, ultimately the standards seem broad and easy to meet, which raises questions as to just how much change they will actually facilitate. Starting in 2024, in order to qualify for Best Picture, a film must meet two out of four of the following criteria:[xiii]

“STANDARD A: ON-SCREEN REPRESENTATION, THEMES AND NARRATIVES
To achieve Standard A, the film must meet ONE of the following criteria:

A1. Lead or Significant Supporting Actors
At least one of the lead actors or significant supporting actors is from an underrepresented racial or ethnic group:
• Asian
• Hispanic/Latinx
• Black/African American
• Indigenous/Native American/Alaskan Native
• Middle Eastern/North African
• Native Hawaiian or other Pacific Islander
• Other underrepresented race or ethnicity

A2. General Ensemble Cast
At least 30% of all actors in secondary and more minor roles are from at least two of the following underrepresented groups:
• Women
• Racial or ethnic group
• LGBTQ+
• People with cognitive or physical disabilities, or who are deaf or hard of hearing

A3. Main Storyline/Subject Matter
The main storyline(s), theme or narrative of the film is centered on an underrepresented group(s):
• Women
• Racial or ethnic group
• LGBTQ+
• People with cognitive or physical disabilities, or who are deaf or hard of hearing

STANDARD B: CREATIVE LEADERSHIP AND PROJECT TEAM
To achieve Standard B, the film must meet ONE of the criteria below:

B1. Creative Leadership And Department Heads
At least two of the following creative leadership positions and department heads—Casting Director, Cinematographer, Composer, Costume Designer, Director, Editor, Hairstylist, Makeup Artist, Producer, Production Designer, Set Decorator, Sound, VFX Supervisor, Writer—are from the following underrepresented groups:
• Women
• Racial or ethnic group
• LGBTQ+
• People with cognitive or physical disabilities, or who are deaf or hard of hearing

At least one of those positions must belong to the following underrepresented racial or ethnic group:
• Asian
• Hispanic/Latinx
• Black/African American
• Indigenous/Native American/Alaskan Native
• Middle Eastern/North African
• Native Hawaiian or other Pacific Islander
• Other underrepresented race or ethnicity

B2. Other Key Roles
At least six other crew/team and technical positions (excluding Production Assistants) are from an underrepresented racial or ethnic group. These positions include but are not limited to First AD, Gaffer, Script Supervisor, etc.

B3. Overall Crew Composition
At least 30% of the film’s crew is from the following underrepresented groups:
• Women
• Racial or ethnic group
• LGBTQ+
• People with cognitive or physical disabilities, or who are deaf or hard of hearing

STANDARD C: INDUSTRY ACCESS AND OPPORTUNITIES
To achieve Standard C, the film must meet BOTH criteria below:

C1. Paid Apprenticeship And Internship Opportunities
The film’s distribution or financing company has paid apprenticeships or internships that are from the following underrepresented groups and satisfy the criteria below:
• Women
• Racial or ethnic group
• LGBTQ+
• People with cognitive or physical disabilities, or who are deaf or hard of hearing

The major studios/distributors are required to have substantive, ongoing paid apprenticeships/internships inclusive of underrepresented groups (must also include racial or ethnic groups) in most of the following departments: production/development, physical production, post-production, music, VFX, acquisitions, business affairs, distribution, marketing and publicity.

 The mini-major or independent studios/distributors must have a minimum of two apprentices/interns from the above underrepresented groups (at least one from an underrepresented racial or ethnic group) in at least one of the following departments: production/development, physical production, post-production, music, VFX, acquisitions, business affairs, distribution, marketing and publicity.

C2. Training Opportunities And Skills Development (Crew)
The film’s production, distribution and/or financing company offers training and/or work opportunities for below-the-line skill development to people from the following underrepresented groups:
• Women
• Racial or ethnic group
• LGBTQ+
• People with cognitive or physical disabilities, or who are deaf or hard of hearing

STANDARD D: AUDIENCE DEVELOPMENT
To achieve Standard D, the film must meet the criterion below:

D1. Representation In Marketing, Publicity, And Distribution
The studio and/or film company has multiple in-house senior executives from among the following underrepresented groups (must include individuals from underrepresented racial or ethnic groups) on their marketing, publicity, and/or distribution teams:
• Women • Racial or ethnic group • Asian • Hispanic/Latinx • Black/African American • Indigenous/Native American/Alaskan Native • Middle Eastern/North African • Native Hawaiian or other Pacific Islander • Other underrepresented race or ethnicity • LGBTQ+ • People with cognitive or physical disabilities, or who are deaf or hard of hearing” 

Most studios can meet C1 (“film’s distribution or financing company has paid apprenticeships or internships that are from the following underrepresented groups”) by simply creating an internship program, which would have minimal substantive impact on the films in contention for awards. Additionally, the rules will not go into effect until 2024, so studios have a great deal of time to make the changes necessary to meet these requirements. Thus, even already-completed films can still safely qualify for Best Picture. These criticisms raise the question of whether the new requirements are anything more than symbolic.

dissatisfaction with the changes

Last year, seven out of nine Best Picture nominees were directed by, starred and were centered around white men. If those seven films would have still qualified under the new standards, then what has really changed? Studios can go about business as usual, making the same sort of films, while the Academy gets to pat itself on the back for taking steps to prioritize diversity. Some in the industry, like Kellee Nicole Terrell who is head of communications for the #MeToo movement, feel that the new regulations might mean well but will not foster the desired inclusion. In pointing out that many of the requirements can be met simply by hiring more white women, she stated, “Like affirmative action, this new (however well-intentioned?) Academy rule will mostly benefit white female directors who will act brand new about this advantage.”[xv]. White women certainly make up a far smaller percentage of the industry than white men but have made more headway in the industry than women of color.[xvi] For example, all five of the female directors who have been nominated for Best Director were white.[xvii] Given that films can meet these inclusion standards just by hiring more white women, the new standards may not open the industry up enough to people of color to create the diversity that is currently lacking.

Many of the concerns surrounding these reforms stem from the standards’ vague language and the fact that they only govern one nomination category out of 23. Writer and Producer Ashly Perez tweeted, “This is certainly progress but unless it’s one of every category required it still won’t be enough.”[xviii] Under the new rules, even if a film does not qualify for Best Picture, it could still receive multiple Oscar nominations or wins and reap the resulting financial benefits without changing anything about the makeup of its crew and creative team. Additionally, the fact that the Academy has faced criticism for its lack of diversity for years and only took steps to combat racial disparities in face of massive societal unrest feels performative.  

Yet, despite the mild nature of these requirements and the ease with which they can be met, some key players in the industry resent any sort of regulation of creative expression. Actress Kirstie Alley decried the changes as “dictatorial” and “anti-artist.”[xix] She later tweeted, “I am 100% behind diversity inclusion & tolerance. I’m opposed to MANDATED ARBITRARY percentages relating to hiring human beings in any business.”[xx] Two-time Oscar-nominated actor James Woods tweeted, “The new mandatory diversity regulations by The Academy will destroy Hollywood. No studio will make a movie that is Oscar ineligible, so EVERY movie now made will be forced to abide or die. Watching a movie made by a rules committee instead of a filmmaker won’t be much fun.”[xxi] HBO talk show host Bill Maher stated, “Diversity is important. But it needs to be said: It’s not the only thing that’s important. It’s also important that we don’t wind up with artists guided less by a creative vision and more by a to-do list. Cameron Diaz is Cuban on her grandmother’s side. Is that Latina enough? . . . We are talking about a world where if you want to make the next ‘Schindler’s List,’ the first thing you’ll need to do is give a racial breakdown of all your employees. Does anyone see the irony in that? . . . Some of the best movies ever made were by refugees from communist and fascist countries who got out because they didn’t like being told what art was acceptable.”[xxii]

potential legal issues

Whenever there is vocal dissatisfaction, there is always risk of litigation. Here, given that these changes are so broad and likely would not have disqualified many recent films from Best Picture contention, the risk of litigation seems low. However, in the event that this new initiative does face any legal challenges, there are a few lingering questions that could present problems for the Academy.

One of the most obvious concerns is whether a program that sets quota-like requirements could be considered unconstitutional. In Regents of University of California v. Bakke, the Supreme Court held that affirmative action programs designed to remedy past discrimination are constitutional insofar as they consider race as one of many factors when deciding between candidates, but setting a race-based quota is not.[xxiii] Essentially, a candidate’s racial background is entitled to receive additional weight when a program is choosing candidates, but admitting a certain number of people from a minority group would be unconstitutional.[xxiv]

While Regents focused on state-based affirmative action programs, United Steelworkers v. Weber held that private companies’ affirmative action programs are also constitutional.[xxv] The program in question provided a workforce training program for potential employees, half of whom needed to be minorities.[xxvi] Employees would be hired from this pool of trainees until the makeup of the company’s employee body reflected the composition of the available workforce at large.[xxvii] This was not considered a quota, but rather a program focused on “hiring goals.”[xxviii] Ultimately, this program was deemed constitutional because it was voluntarily accepted by the employers, existed to remedy a “manifest racial imbalance,” did not “trammel the interests of white employees,” and was temporary in nature.[xxix] Thus, even though there was no set end date as the program would exist until the diversity problem was solved, it was not presumed to last forever.[xxx]

Under the United Steelworkers factors, the Academy’s reforms are clearly remedial in nature. Their stated purpose is to rectify clear longstanding, statistically proven racial and gender-based imbalances in the film industry. The ease with which the requirements can be met makes it very unlikely the regulations would “trammel the interests of white employees.” The Academy has not clarified whether the reforms will exist indefinitely. If it emphasizes that, like in United Steelworkers, it is implicit in these hiring standards’ goal that the standards will only exist until there is equality in the makeup of film crews and creative teams, even if a precise end date is not yet set, they could overcome most constitutional concerns.

Requiring that a certain number of crewmembers be non-white men might seem quota-like. However, the regulations’ flexibility in allowing productions to choose other methods for qualifying, such as choosing a different subject matter or implementing internship programs, help to counteract quota concerns.

However, the Academy cannot be directly compared to the organizations in those two cases. The Academy doesn’t resemble a state action taken through a state university like in Regents, nor is it a private employer like the company in United Steelworkers. It is a private awards organization, presenting an optional award. The Academy itself will not be making any hiring decisions. Rather, the Academy is encouraging other parties, like studios, to re-evaluate their own hiring practices if they want to be eligible for one of its awards. Perhaps a better comparison would be to the NFL.

In 2003, the NFL enacted the “Rooney Rule,” which “requires NFL teams to interview minority candidates for head coaching” and general manager positions.[xxxi] There has been debate about the rule’s enforceability and effectiveness but, thus far, it has not been struck down by any litigation. However, academics who have considered the rule’s constitutionality have utilized similar standards to those in United Steelworkers.[xxxii] Like the new Academy standards, the Rooney Rule did not involve the NFL itself making hiring decisions, but instead required those who chose to be part of the NFL to comply with new standards. However, whereas the Rooney Rule only requires that a certain number of minority candidates be interviewed, the new Academy standards necessitate an actual concrete change in hiring practices. This distinction may cause the new Academy rules to reach more broadly than the Rooney Rule, but that reach is counteracted by the fact that, unlike the NFL, no movie is required to compete for Oscars. If a professional football team wants to play, it needs to do so within the NFL and, thus, must comply with its requirements. However, not all films are required to contend for Oscar consideration, let alone Best Picture. Thus, these regulations do not force every film to comply with their standards. This distinction likely satisfies the United Steelworkers requirement that acceptance of any diversity-based regulation is “voluntary” in nature. Only films that hope to contend for Best Picture need to agree to follow these rules.

More-pressing legal issues might arise if, in the hiring process, productions inquire into a crewmember’s sexual orientation or cognitive or physical disabilities in an attempt to comply with the Academy’s requirements. Inquiring into an employee’s sexual orientation raises serious constitutional right to privacy concerns. As the court in Sterling v. Borough of Minersville stated, “it is difficult to imagine a more private matter than one’s sexuality.”[xxxiii] Inquiring into the presence of an employee’s disabilities is forbidden by the Americans with Disabilities Act.[xxxiv] Unless an employee is open about their sexual orientation or disability status, productions would be unable to rely on these crewmembers when attempting to qualify for Best Picture, unless they chose to make assumptions about crewmembers sexual orientation or disability status, which could present an entirely separate array of problems.

Additionally, the requirements’ vague language could lead to disagreements about what constitutes “other underrepresented race or ethnicity.” Would a person of Jewish descent qualify under the rules? What constitutes Hispanic/Latinx? The Eleventh Circuit Court of Appeals interpreted the term “Hispanic” to broadly include “all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race.”[xxxv] However, this past Oscar season saw disagreements as to whether or not Antonio Banderas, who is Spanish, is a person of color.[xxxvi]

so ultimately, good or bad? 

The issues discussed here are mere kinks that could easily be worked out before the initiative goes into effect. Asking productions to proactively strive to improve diversity on set and, in turn, in the industry by making a Best Picture Oscar contingent on doing so is admirable. Regulations with more teeth and fewer loopholes are likely more desirable, but could risk causing more legal trouble. We can’t call this a new era for the Academy, but it is a step in the right direction.

end notes

[i] David Bauder, Oscars Viewership Plunges to Record Low, ABC News (Feb. 10, 2020, 1:43 PM), https://abcnews.go.com/Entertainment/wireStory/oscars-viewership-plunges-record-low-68889131.

[ii] Green Book, Box Office Mojo, https://www.boxofficemojo.com/release/rl805799425/ (last visited Oct. 4, 2020).

[iii] Rebecca Rubin, ‘Parasite’ Enjoys Record Box Office Boost After Oscar Wins, Variety (Feb. 16, 2020, 10:15 AM), https://variety.com/2020/film/box-office/parasite-oscar-box-office-1203505355/.

[iv] Gregory Wakeman, Mahershala Ali reveals how he was cast as Blade, Yahoo! Sports (Oct, 25, 2020, 6:21 AM), https://sports.yahoo.com/mahershala-ali-reveals-how-he-was-cast-as-blade-132105303.html.

[v] Brian Welk, 8 Greatest Hollywood Unknowns to Win Oscar Gold – From Tatum O’Neal to Lupita Nyong’o, The Wrap (Feb. 21, 2014. 3:49 PM), https://www.thewrap.com/unknowns-oscar-photos/.

[vi] Matt Donnelly, Oscar Campaign Spending Reaches New Heights in Competitive Season, Variety (Jan. 23, 2019, 3:30 PM), https://variety.com/2019/biz/awards/oscar-campaign-spending-1203113199/

[vii] Weintraub Firm, The Academy Award’s Oscar: Golden or Generic under Trademark Law, The IP Law Blog (Mar. 27, 2007), https://www.theiplawblog.com/2007/03/articles/trademark-law/the-academy-awards-oscar-golden-or-generic-under-trademark-law/.

[viii] Reggie Ugwu, The Hashtag That Changed the Oscars: An Oral History, N.Y. Times (Feb. 6, 2020), https://www.nytimes.com/2020/02/06/movies/oscarssowhite-history.html.

[ix] Mekeisha Madden Toby, How Hollywood Studios Are Rising To Meet Interest In Inclusion Riders, Variety (Nov. 15, 2018, 9:39 AM), https://variety.com/2018/film/features/inclusion-riders-warnermedia-disney-chris-nee-netflix-1203028471/.

[x] Danielle Kwateng-Clark, Brie Larson on What It’s Like Not to Be ‘Surrounded by White People’ on Set, Vice (Dec. 5, 2019, 9:40 AM), https://www.vice.com/en/article/pa5q9m/brie-larson-inclusion-rider-just-mercy.

[xi] Tim Marcin, Brand Tweets About Being An Anti-Raicst Ally Are Not Enough, Mashable (June 1, 2020), https://mashable.com/article/brands-statements-george-floyd-protests/.

[xii] Nicole Sperling, Academy Explains Diversity Rules For Best Picture Oscar, N.Y. Times (Sept. 8, 2020), https://www.nytimes.com/2020/09/08/movies/oscars-diversity-rules-best-picture.html.

[xiii] Academy Establishes Representation And Inclusion Standards For Oscars Eligibility, Oscars.org, https://www.oscars.org/news/academy-establishes-representation-and-inclusion-standards-oscarsr-eligibility (last visited Oct. 4, 2020).

[xiv] Alissa Wilkinson, The Oscars’ New Rules for Best Picture Nominees, Explained, Vox (Sept. 9, 2020, 6:50 PM), https://www.vox.com/culture/2020/9/9/21429083/oscars-best-picture-rules-diversity-inclusion.

[xv] Lisette Voytko, ‘Not Messing Around’: Oscars’ New Diversity Rules Draw Praise And Criticism, Forbes (Sep. 9, 2020, 8:38 AM), https://www.forbes.com/sites/lisettevoytko/2020/09/09/not-messing-around-oscars-new-diversity-rules-draw-praise-and-criticism/.

[xvi] 2019 Statistics, Women and Hollywood, https://womenandhollywood.com/resources/statistics/2019-statistics/, (last visited Oct. 31, 2020).

[xvii] Kate Aurthur, Oscars Shut Out Women in Best Director Category Again, Variety (Jan. 13, 2020, 5:45 AM), https://variety.com/2020/film/news/women-directors-shutout-oscar-best-director-nominations-1203463491/.

[xviii] Ashly Perez (@itsashlyperez), Twitter (Sept. 8, 2020, 11:55 PM), https://twitter.com/itsashlyperez/status/1303587863183802368?s=20.

[xix] Kirstie Alley (@kirstiealley), Twitter (Sept. 8, 2020, 6:44 PM), https://twitter.com/kirstiealley/status/1303509516084850688?s=20.

[xx] Kirstie Alley (@kirstiealley), Twitter (Sept. 9, 2020, 7:27 AM), https://twitter.com/kirstiealley/status/1303701540205735937?s=20.

[xxi] James Woods (@RealJamesWoods), Twitter (Oct. 4, 2020, 8:52 AM), https://twitter.com/RealJamesWoods/status/1312782662499627008?s=20.

[xxii] Ryan Lattanzio, Bill Maher Blasts Academy’s New Diversity Rules: They Should Call Best Picture ‘Most Worthy’, Indiewire (Sept. 19, 2020, 3:00 PM), https://www.indiewire.com/2020/09/bill-maher-blasts-academy-new-diversity-rules-1234587573/.

[xxiii] Regents of Univ. of California v. Bakke, 438 U.S. 265, 320 (1978).

[xxiv] Id. at 316.

[xxv] United Steelworkers v. Weber, 443 U.S. 193 (1979).

[xxvi] Id. at 198.

[xxvii] Id.

[xxviii] Id.

[xxix] Id. at 208.

[xxx] Id.

[xxxi] Veronica Coyne, The Rooney Rule: Is the NFL Doing Enough to Increase Minority Head Coaches?, 27 Sports Law. J. 205, 206 (2020).

[xxxii] Id. at 219.

[xxxiii] Sterling v. Borough of Minersville, 232 F.3d 190, 196 (3d Cir. 2000).

[xxxiv] U.S. Equal Employment Opportunity Commission, Job Applicants and the ADA, ADA, https://www.eeoc.gov/laws/guidance/job-applicants-and-ada, (Last visited on Oct. 4, 2020).

[xxxv] Peightal v. Metro. Dade Cnty., 26 F.3d 1545, 1559 (11th Cir. 1994).

[xxxvi] Daniel Hernandez, Is Oscar Nominee Antonio Banderas a ‘Person of Color’? It’s Complicated, L.A. Times, (Feb. 7, 2020, 9:53 AM), https://www.latimes.com/entertainment-arts/story/2020-02-07/oscars-antonio-banderas-person-of-color-latino-hispanic.

about the writer…

 Will is an entertainment journalist for NextBestPicture.com, where he co-hosts a podcast which receives more than 65,000 listeners monthly. He appears as a regular guest on SkyNews, and has moderated awards season Q&As for AppleTV+. Prior to starting at USC Law, he received his BA from Elon University, before serving as a paralegal and client liaison at Pierce Law Group LLP in Beverly Hills, where he focused on both entertainment transactional and litigation matters. He most recently worked as a summer litigation associate for King & Spalding, LLP, where he worked on a number of high profile entertainment disputes.