Best Picture Voting — Is The Method a Trade Secret?

Here we are in the final throes of awards season. All that remains, from most people’s perspective (hey, I said “most people”!) is the Oscars. It baffles me as to why anyone cares about these other than voting members or the Academy of Motion Picture Arts and Sciences, the nominees and their friends/families, and the studio execs/agents who will negotiate off of new numbers as a result of the winners/losers. Nonetheless, I recognize it as a fact/phenomena and I’m willing to go with it.

In light of this, it is interesting to look at how voting works, winners are selected, and mull over why — in so many instances — I lose the office poll on which flicks will win what.

Voting for most categories are fairly straight forward. Each Academy member in the category for which the award is given, gets a chance to vote on the films nominated in that category. (By way of example, Brad Pitt is not voting for Best Costume Design, but he is voting for the acting categories.) Each voting member is also entitled to vote for Best Picture.

Typically, the Best Picture nomination consisted of members ticking off the one picture out of five that they considered “best” for the year (or whose Awards-Season advertising they found most convincing, or who was nominated opposite their dear friend who they did not want to win an Oscar, etc.) This year, things are going to be a little different, according to unconfirmed reports, e.g. articles in the Washington Post and other journals.

According to those who probably-know-but-maybe-don’t but whom I’m-relying-on-nonetheless-and-now-so-are-you, Academy members will be given the list of ten, from which they will note their choices of “Best” from 1, on down to wherever they stop. This means, for example, if I were completing the ballot, I might get to Nos. 1-9, but “Up” would not even make it to No. 10. (And please don’t even try busting my chops about that. “Up”? Oh please.)

So now the fine bean counters at Price Waterhouse have all these lists, some putting Avatar as No. 1, others putting . . . uh, what else is nominated? Well you get the idea. Then they make ten stacks (assuming “Up” is put as No. 1 by anybody — oh wait, it will be — there should be at least three sheets of paper in that stack.) If any one of the flicks has 50% or more of all votes, we have a winner. If not, the stack that garnered the least number of votes is swept away, and the No. 2 votes from those sheets are redistributed as if they were “No. 1″ votes to the appropriate remaining stacks. This continues until Avatar wins . . . I mean until one film takes 50% of the vote.

So this year, when I lose the office poll, at least I can take solace in that fact that just because the winning film takes home the statue for “Best Picture,” doesn’t mean it actually got the most number of first place votes.

Of course, all of this is wild speculation anyway because the real tallying system is a closely guarded secret.   And — yes – this secret might qualify as a trade secret if the Academy could claim any monetary value for it, or could make the argument that a competitor (Golden Globes?) might derive some financial value from it.   While that seems doubtful, having litigated against them, I suspect this would not stop the Academy from suing on such grounds if they wanted to make a point.   

Of couse, all of this is also wild speculation because if the Washington Post et al got it wrong, then so have I.  But none of this really matters anyway, does it?  Unless of course you happen to be a nominee, his/her agent or the studio exec asked to cough up a little more jing to pay for a newly minted Oscar-winning actor, director, etc.

Jonathan Pink is a commercial litigation attorney with a specialty in defending lawsuits based on copyright, trademark and patent infringement. He is resident in Bryan Cave’s Irvine (Orange County) and Los Angeles offices. He has represented a number of motion picture and television writers, directors and producers, and holds an MFA from the UCLA School of Film and Television. His first job after scooping ice cream as a teenager was working for motion picture producing legend, Roger Corman. He can be reached at (949) 223-7173 or at jonathan.pink@bryancave.com.