Warner Bros

In the days leading up to Wednesday, May 1st, Netflix subscribers scrambled to get through numerous titles on their Instant queues that were scheduled to disappear as part of their move to the Warner Archive Instant, easily the highest-profile to-date streaming archive owned and operated exclusively through a particular studio. With an expanding selection of films and television programs that range from classics like When Harry Met Sally to dozens of resurrected B-movies to truly hard-to-find films like Wim Wenders’s forgotten sci-fi epic Until the End of the World, the Warner Archive Instant is a treasure trove for any cinephile invested in the potential of the digital preservation and exhibition.***

Perhaps the best thing that can be said about the Warner Archive Insant is that its potential success should assuage fears about the digital conversion process and studios closing their vaults on repertory prints: here’s an example demonstrating how studios can utilize their back log in a way that caters to film fans and, in effect, looks to future possibilities for cinema’s past. It’s also a nostalgic foray into the most legible qualities of the classical studio system: gathered together in this archive, the monster movies and gangster films of yesteryear exhibit a collective identity that feels particularly Warners.

That said, there are some notable and perhaps troubling implications about a streaming service dedicated to and exclusively run by a major studio. Warner Archive Instant resembles a digital equivalent of the exhibition methods practiced by Warners itself during the years in which many of the archive’s films were released: a strict system of vertical integration.

When the Supreme Court Talked About Movies

The landmark 1948 Supreme Court decision in response to the antitrust case US v. Paramount Pictures (which held all the major studios, including Warners, as defendants) broke up Hollywood’s oligopolistic power over the country’s movie theaters through direct ownership of these exhibition outlets and block booking, the studio practice of selling multiple films as a unit. Simply put, the studios’ direct ownership of only 17% of the nation’s theaters by 1945 constituted 45% of the studio system’s revenue (keep in mind that this was the height of Classical Hollywood’s efficient production of films), and independent theater owners were typically disadvantaged in an economically rigged system that essentially forced them to blind buy a set of films they weren’t interested in showing in order to get the one likely moneymaker from a particular studio.

A case that began with the Federal Trade Commission’s investigation of studio practices in the 1920s, the US v. Paramount Pictures resulted in Hollywood’s system of vertical integration (i.e., their ownership of production, distribution, and exhibition) becoming dismantled under the justification that this system violated the Sherman Antitrust Act, having been deemed anti-competitive. Ohio Senator John Sherman in 1890 wrote that the Act’s express purpose was to “protect the consumers by preventing arrangements designed, or which tend, to advance the cost of goods to the consumer.” Thus, even though the US v. Paramount case was ultimately decided in the name of fair competition between theater owners and the source of their product, there’s an implicit, associated protection of the filmgoer as well – namely, that the competitive freedom of choice practiced by the theater owners should, ideally, enable consumer choice. One couldn’t necessarily go to the local one-screen and think Universal was the only movie studio that exists.

Moviegoing in the Age of Digital Reproduction

Since the rise of home video market and, more recently, digital exhibition, Hollywood has endured quite its share of fights and power plays over the allocation of profits for ancillary markets that the classical studio system could never have predicted. These fights, however, have primarily focused on the production process – the 2007/2008 writer’s strike, for instance. This has been a fight, in short, between and amongst Hollywood.

But there’s also a struggle amongst digital exhibitors as well, a state of competition that’s turned one’s dedication to a particular subscription streaming service into a rather uncertain moviegoing practice. Titles disappear, sometimes without notice, while a beloved distributor might abandon a particular exhibition service completely (like Criterion’s switch from Netflix to Hulu). Major studios who got into the streaming game early under the assumption that it would be only a minor source of revenue are now realizing their upper hand, and are abandoning Netflix streaming in droves. Despite being a lucrative corporation, Netflix has little if any bargaining power in such a scenario. This is, in some ways, the opposite of the system before 1948: instead of studios exercising oligopolistic control over certain exhibition outlets, the streaming market is hugely fragmented, almost illegibly so, with certain titles associated with certain outlets seemingly arbitrarily in the eyes of the filmgoer.

Warner Archive Instant certainly makes this fragmentation make more sense, but it still signals a possible return to pre-1948 practices of vertical integration, especially if studios like MGM and Universal decide to follow Warners’ digital exhibition model. In effect, this framework for digital exhibition turns 21st century moviegoers into pre-1948 theater owners subject to practices of block-booking – if you’d like to watch a dozen or so titles available exclusively through the Warner Archive Instant, then you’ll have to take all their other titles as well. If you’d like to see Universal films, well, then subscribe to their streaming archive to do the same if they develop one. How do subscription services like Netflix compete with studios that own a vault of original material? By making their own exclusive content in turn. Want to see the upcoming season of Arrested Development? Stick with the red envelope, and you can see every season of Comedy Bang Bang as well.

The argument that Warner Archive Instant and Netflix are somehow violating a law that was written in the wake of the industrial revolution is not one worth making. In no current reality is this Supreme Court going to visit a case about market regulation that, frankly, only concerns cinephiles who desire some stability in their access to Ken Russell’s late 1960s filmography. And sure, many of Warners’ titles are also available on non-subscription streaming outlets like iTunes or Amazon (including the obscure Wenders film), or even (gasp!) on DVD. But some aren’t. How to permit a real landscape of choice for the digital moviegoer without allowing a single exhibition service monopolistic control is beyond me.

Still, mobility between various streaming services and digital exhibition outlets assumes a certain degree of economic privilege on behalf of the cinephile, just as the moviegoer’s ability to see films made by a variety of studios before 1948 would require living in a rather large city or having access to a car and considerable free time.

Yes, the Warner Archive Instant seems to be made only for those whose eyebrows perk up at the mention of the words “studio archive” – these are media properties that now only have a limited residual economic value for a dedicated filmgoer. At a time when studios are effectively closing the doors on film history, it seems strange to complain about what seems to be the only major studio that still gives a shit about what’s in its vault. But in the era of supposedly democratized media, during a time where one’s choice of films doesn’t depend nearly as much on where one lives, it seems wrong that (in the consumer-enabling spirit of Sherman’s legislation) one’s choice of a subscription program should depend on their preference for a particular studio. It’s a regressive model for future possibilities. In fact, it’s positively old-fashioned.

*** Important correction: Another writer has brought attention to the fact that, in contrast to a great deal of reporting shared elsewhere, including here, those Netflix Instant titles did not leave the site for Warners Archive. None of the “May Day” Netflix titles were actually owned by Warner Bros. The Screen Time podcast features an interview between Moisés Chiullan and Warner Archive’s George Feltenstein discussing this confusion. However, it is the opinion of the author that this confusion only speaks further to the fragmentary, rarely-transparent nature of digital exhibition, and the author only used the Netflix/Warners story as a lead-in to the larger, still-relevant prospective issue of studio-exclusive streaming services. The piece as it was originally written will remain in hopes of generating a discussion.


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