One of the more interesting subplots in the world of state film incentives has been the issue of state censorship or the prospect of film commissions being in the unenviable position of acting as morality police. Censorship may not be the best word, however, because there is no threat of any state or jurisdiction I know of banning or censoring a movie from shooting or playing. Rather, the issue here involves whether certain content produced in a given state will qualify for an incentive.
In Australia, for example, the issue of qualifying for the incentive hinged on the level of Australian “content” etc. in the case of Alex Proyas’ recent film, “Knowing.” There, the government seemed to waiver on its commitment to grant incentive funds to the film because it was not “developed from inception by Australians.” To read more about this, click HERE.
Earlier this year, a state lawmaker in Florida ignited a controversy when he amended the film incentive legislation to include language about supporting “family friendly” content, which many saw as a potentially anti-gay provision to prevent any funds from going to anything not representative of “traditional family values.” The lawmaker denied this was his intent, to his credit, and the language was soon removed from the final version of the bill, which you can read about HERE.
And then there is Texas. On Texas Governor Rick Perry’s (R) film commission site, a film or TV production is ineligible for the state’s film incentive if (among some other items I am omitting here) it is “obscene material, as defined by Section 43.21, Texas Penal Code.” In case you are curious on how that statute defines “obscene material”, as I was, then you will be spared doing legal research. Since Perry’s film site didn’t offer that information or relevant link to the penal code, I went and grabbed it from onecle:
(1) “Obscene” means material or a performance that:
(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and
(C) taken as a whole, lacks serious literary, artistic, political, and scientific value.
I’m going to let the Texas code speak for itself and not say anything more on that. The much more interesting provision on Perry’s site is the following:
The State of Texas is also not required to make payments to projects that include inappropriate content or content that portrays Texas or Texans in a negative fashion.
And I thought the penal code definition was ambiguous. So what does this mean? In 2009, Texas “unofficially” rejected granting film incentives to the producers of “Waco”, a planned $30 million “docudrama” about the 1993 FBI raid on a the Branch Davidian compound in Waco, Texas. An article by the Dallas Morning News reported:
The Texas Film Commission unofficially rejected filming incentives for Waco , a planned big-screen tale of the 1993 raid on David Koresh’s Branch Davidian compound. The commission cited a previously untested 2007 provision barring incentive payments to movies that “portray Texas or Texans in a negative light.”
So is Hudgins’ move censorship? And, as the Austin American-Statesman wondered on its editorial page, would this content provision have kept Giant and The Last Picture Show from shooting in the state? The first answer depends on who’s talking. The second answer is no because the content provision only applies to films based on actual events.
First off, Waco producers have yet to submit an incentives application. Hudgins says he showed the script to both a law enforcement official featured prominently in the script and a journalist closely involved with the story. Both people, whom Hudgins declined to identify, questioned the accuracy.
Waco co-writer and director Rupert Wainwright, who remains interested in a $30 million Texas shoot if incentives are offered, wants to know what the alleged inaccuracies are. “We have spent a lot more time investigating this story than the head of the film commission of Texas has,” he said.
That includes, he says, talks with retired FBI agent Byron Sage, former assistant U.S. attorney Bill Johnson and a few surviving Branch Davidians. He and co-writer James Hibberd, a University of Texas grad now writing for The Hollywood Reporter, also scoured court transcripts and brought on documentarian Michael McNulty (Waco: The Rules of Engagement) as a consultant.
Wainwright goes so far as to hint that unnamed federal officials have put pressure on Texas officials to quash the film. That’s a charge Hudgins flatly denies.
Interesting, but a little confusing. The article claims “Waco” was denied funds because the “don’t portray Texas or Texans in a negative fashion” provision only applied to “films based on actual events.” So either that is not true, or “Machete” must be based on “actual events” (its not) because Rodriguez’s film seems to be rubbing some people the wrong way, apparently jeopardizing granting incentives.
An August 28th article on Austin360.com provided an excellent overview and, in my opinion, Texas Film Commission head Bob Hudgins is handling this very, very well:
When “Machete” opens nationwide Friday, moviegoers will see crooked Texas politicians and a shoot-to-kill immigration policy, all wrapped up in Robert Rodriguez’s signature grindhouse style. Such a controversial topic has already spurred debate, but it’s the opinion of one man that counts the most when it comes to filmmaking in Texas.
A little more than a year after telling the producers of “Waco” that they need not apply for state film incentives, Bob Hudgins, the head of the Texas Film Commission, faces another big decision: whether to approve funds for the locally filmed “Machete,” which has a special sold-out Austin red-carpet premiere Thursday night at the Paramount Theatre.
Some opponents say “Machete” has an incendiary political message and shouldn’t qualify for funds, especially in light of the ruling on the “Waco” script, which Hudgins said was historically inaccurate. But backers of “Machete” — which, unlike “Waco,” is fictional — say critics are jumping to conclusions about the new movie’s content, mostly based on a fake trailer from earlier this year, and see no reason for a denial of incentives.
“Am I thrilled at the prospect of having to tell the most prolific filmmaker in the history of Texas no?” Hudgins said recently. “No! I wouldn’t be excited about doing that. If I have to make that determination, I have to make that determination. I am not saying I am. But, gosh, you know especially when these filmmakers have brought so much to Texas.”
As Hudgins knows, Rodriguez is one of the biggest filmmakers in Texas history.
Since his 1992 feature film debut, “El Mariachi,” Rodriguez’s movies have grossed more than $620 million, according to thenumbers.com, a website that tracks box office totals. That kind of success translates into jobs for Texas film professionals.
And that was the point when the Legislature passed in 2007 — and then strengthened in 2009 — a bill that would increase incentives for people who spend money making movies in Texas.
The debate over providing incentives for “Machete” started in May, when Rodriguez’s Troublemaker Studios released a trailer for the high-profile production, which stars Danny Trejo, Michelle Rodriguez, Robert De Niro, Lindsay Lohan, Jessica Alba, Don Johnson and Steven Seagal. The trailer, which came out just after passage of a new immigration law in Arizona, featured one of the stars, Trejo, saying he had “a special Cinco de Mayo message to Arizona.” He then proceeded to use a variety of weapons in inventive ways.
The clip ignited a controversy about the content and potentially incendiary political message of the movie.
KLBJ radio talk show host Alex Jones, who said he received a final script of the movie a few months ago, raised some of the earliest questions, telling the Fort Worth Star-Telegram in May that funding should be denied. However, he recently told the American-Statesman that he has changed his mind, even though he still thinks “Machete” paints white people as a “bunch of blood-thirsty, foaming-at-the-mouth killers” and “reflects bad on Texas.”
“I support tax incentives for industry and for film and the arts,” Jones said. “Robert Rodriguez has a right to make any movie he wants. If he’s putting out this hard-core, race war film — if he’s releasing it the way the script states — I think it should get its funding, but they had better remove any controls off of any other films. … If they let this go forward and give it funding but then block other things, it’s outrageous.”
Hudgins acknowledged that the immigration-themed trailer raised eyebrows and caused alarm, but he’s recommending that people not rush to judgment.
“For whatever reasons, Robert chose to make that trailer, and that’s his right and privilege to do,” Hudgins said.
“But I never thought that that trailer was truly representative of the story that was going to be in the final product. I have to make my determination on the final version of the film. I have to be Switzerland about it until they say, ‘Here is the final version of the film, and please watch, Bob.’”
Rodriguez has 60 days after the spending for the production of “Machete” has ended to submit the movie to the Film Commission for review. And Hudgins said it could take months to decide whether “Machete” qualifies for incentives. As with “Waco,” which focused on the 1993 Branch Davidian siege, Hudgins said the final decision rests with him.
“I have to do my best in making a determination on the intent of the Legislature. It’s not as cut-and-dry,” Hudgins said of his upcoming decision. “Wouldn’t it be nice if we lived in that tidy little world where all the decisions were easy and black and white. But, you know, with this program comes this responsibility.”
My advice to Hudgins: let the process take as long as possible until after the mid-term elections are over. Once immigration dies as a wedge issue for the election, no one will notice what the Texas Film Commission grants funds to. Rodriguez is one of the only film icons in Texas’s corner and the state should not be pissing him off if the goal of the incentive is to lure AND RETAIN production already here. The man is, after all, a Texan.
