#OscarsSoWhite: Inside Info From An Entertainment Law Expert

Until there are real changes, the Oscar will continue to go to… the white actor.

Jon Pfeiffer

Jon Pfeiffer

Ed. note: Please welcome Jon Pfeiffer to Above the Law. He’ll be writing about entertainment law and issues relating to the entertainment industry in Los Angeles, California.

Imagine you went to bed the evening of January 13, 2016, feeling smug in the knowledge that you are a member of a venerated organization that hosts an annual awards show watched by 45 to 55 million people.

Now imagine that when you wake up the next morning, your organization has been exposed as an exclusionary, old white people’s club. You are one of the 6,261 members of the 94 percent white, 77 percent male, Academy of Motion Picture Arts and Sciences.

On January 14, 2016, the Academy announced its Oscar nominees. For the categories of best actor, best actress, best supporting actor, and best supporting actress, all 20 nominees were white. As evidenced by their nominations, Academy members believe that no person of color gave one of the top 20 performances in 2015. That’s laughable. That the same thing happened last year makes it ludicrous.

Hollywood, we have a problem. We also have a boycott brewing.

Director Spike Lee announced that he would not be attending this year’s Oscars. In an Instagram post, Spike added, “How Is It Possible For The 2nd Consecutive Year All 20 Contenders Under The Actor Category Are White? And Let’s Not Even Get Into The Other Branches. 40 White Actors In 2 Years And No Flava At All. We Can’t Act?! WTF!!”

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Actress Jada Pinkett-Smith also announced that she would not attend the Oscars. Her husband, actor Will Smith, was overlooked by the Academy for his role in “Concussion.” In a video posted on Facebook, Pinkett-Smith said, “At the Oscars … people of color are always welcomed to give out awards … even entertain, but we are rarely recognized for our artistic accomplishments. Should people of color refrain from participating all together?”

How did this happen? How did the Academy get it so wrong?

Well, the Academy isn’t the only villain. The problem originates in the corner offices of the studios. According to a 2015 Hollywood Diversity Report issued by UCLA’s Center for African American Studies, 94 percent of all studio executives are white. As Spike Lee put it, “It’s easier for an African American to become president of the United States than it is for an African American to run a Hollywood studio.” #HollywoodSoWhite

These white executives decide which movies get made. They also decide which of their films is “Oscar worthy,” which then triggers an Oscar campaign. Yes, they actually campaign for an Oscar.

“Hollywood spends on average about $150 million dollars a year to win an Oscar that costs $400 to manufacture,” according to Tom O’Neil, the founder of awards site GoldDerby.com. An Oscar campaign for the best picture nomination can cost as much as $10 million, according to estimates by Stephen Follows, a London-based producer, blogger, and teacher.

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Let’s talk about the nomination process. How does an Oscar nominee become a nominee?

The early stages of an Oscar campaign start with special screenings for Academy members. Studios ply the voters with food and drink, then provide Q & A sessions with the picture’s director or an actor in an effort to create the aura of an Oscar-worthy performance.

For most Academy members, the single biggest perk of Academy membership is the DVD screeners. Each voting member receives upwards of 90 to 100 DVDs, including the motion pictures in contention and those that have actors, directors, etc. being pushed for nomination.

Then they vote.

Every member is entitled to vote to nominate the best picture but they can only vote to nominate within their branch. For example, only directors can nominate other directors for Best Director. Only actors can nominate other actors for Best Actor.

Now you know. The Academy didn’t create the “White Oscar” controversy, the actors did. According to a 2012 Los Angeles Times analysis, 88 percent of the actors in the Academy are white. These white actors are responsible for the 20 white acting nominees.

Why didn’t they nominate actors of color to win an Academy award? I don’t believe the actors overtly are racist but for an actor to say that demographics don’t play a role in their voting is to ignore reality. They live in a bubble.

Did I mention that the median age of Academy members is 62?

What do you do if you are an organization of old white people but you don’t want to be perceived as a group of old white people? You hold an emergency meeting of your governing board, then announce your intention to double the number of women and diverse members of the Academy by 2020. It intends to accomplish this by stripping away the voting rights of older members who have not been active in the entertainment industry for the last 10 years. It also promised to add new members from diverse backgrounds.

The Academy is 2 percent black and less than 2 percent Hispanic. Doubling those numbers would bring it up to a whopping 8 percent. By contrast, African Americans are 13 percent of the population in the United States and Hispanics make up 17 percent. That’s a public relations nightmare.

The response? Mixed.

Some of the older members felt that the rule changes robbed them of their legacy, substituting a perceived racial bias with an actual age prejudice.

Other actors bristled at the suggestion that the Oscars need affirmative action.

“The backlash is understandable, given the current state of the culture, but completely wrongheaded. Nothing should be done, or even can be done. Any ‘affirmative action’ will taint the future winners who may happen to be nonwhite,” said actor Darrell Larson.

For all the handwringing about the demographics of the Academy, I believe one simple change would have more of an impact than those announced by the governing board. Academy members should be required to certify under penalty of perjury that they have seen all of the pictures under consideration before they cast their vote. The Academy’s dirty little secret is that it does not require a member to actually see a single movie before voting. If they don’t see the performance being considered then that member’s vote isn’t an honest assessment of a performance – it’s simply favoritism.

Until there are real changes, the Oscar will continue to go to … the white actor.


Jon Pfeiffer is an entertainment trial attorney practicing in Santa Monica, California. Jon also is an adjunct professor at Pepperdine University in Malibu, California, where he teaches media law. Visit Jon’s website www.pfeifferlaw.com, or e-mail him at Pfeiffer@pfeifferlaw.com.