November 30, 2019
When it came to planning its first major theatrical release, Apple pulled out all the stops for “The Banker.” Starring Anthony Mackie and Samuel L. Jackson in the true story of two African American bankers who thwarted the racial limitations of the 1950s, the tech company earmarked the film for an awards campaign and landed a November 21 premiere as AFI Fest’s closing-night selection.
And then, Apple yanked it from AFI November 20, citing the need to look at unspecified concerns with the film. A few days later, Apple delayed its scheduled December 6 theatrical release. The reason: Mackie portrays Bernard Garrett and Garrett’s daughter, Cynthia Garrett, leveled sexual abuse allegations against Bernard Garrett, Jr., her half brother and the film’s co-producer, while also arguing that film’s narrative was inaccurate.
The fallout has been intense. Bernard Garrett, Jr. has since removed his name from the credits. He denied the allegations in a November 25 statement to Deadline, and on November 26 Cynthia Garrett responded with her own statement detailing the accusations. “It seems the legal representatives on this film want to position themselves as defending the actions of a child molester,” she wrote. “It shows what we have seen from them the whole time — an exploitative orientation of our family.”
THE BANKER Trailer (2019) Samuel L. Jackson, Anthony Mackie Movie https://t.co/44EVCwKy1n via @YouTube. LIES TO HIDE THE PRODUCER WHO SEXUALLY MOLESTED MY SISTER AND I FOR YEARS THEN STOLE MY MOMS LIFE STORY WITH OUR DAD. WOW!!!!! #TIMESUP. THIS FAMILY WILL NOT REMAIN SILENT!
— Cynthia Garrett (@SpiritualChick) November 16, 2019
“The Banker” would be a PR disaster for any distributor, but particularly for a film meant to launch a major division of a multinational corporation that obsessively guards its reputation as a maker of family-friendly, must-have products. How could this have happened? (Apple declined comment for this article. Producer Romulus Entertainment did not return a request for comment.)
It’s easy to point fingers. Why didn’t the producers reach out to more members of the Garrett family? Didn’t someone at Apple read Cynthia Garrett’s 2016 book “Prodigal Daughter: A Journey Home To Identity,” where she discusses the allegations? What about E&O (errors and omissions) insurance?
The truth is, even in hindsight, the conflict that Cynthia Garrett alleges in her family makes it hard to imagine a path that would have allowed this film to be produced and released without controversy. While this may be an extreme case, all true-life stories carry inherent risk that’s almost impossible to entirely mitigate — even with E&O coverage.
“If you do a background check on each individual, you can find out if they’ve committed crimes, if they’ve gone bankrupt, but you wouldn’t be able to know about things that haven’t come out yet. That’s going to be very, very difficult for somebody to anticipate, even if you do a really thorough job,” said Chris L. Perez, a partner at Donaldson + Callif. “There’s always going to be things that you can’t anticipate.”
Trying to shoehorn a life into a three-act structure is tricky at best, and buying life rights can introduce as many issues as it resolves. While it gives legal access to the subject’s perspective, it doesn’t address the perspectives of others who shared the experience. And legally, it doesn’t have to. “Based on a true story” gives a lot of leeway to modify timelines, fabricate dialogue, and create scenarios in the aim of telling a story that’s protected under the First Amendment, provided the film causes no harm to living people.
A cached version of Apple’s press site for the movie from last week describes the film as “inspired by a true story.” The current version of the site says the film is “inspired by true events,” while the poster says it’s “based on a true story.”
“When you’re making something based on real-life people, there’s not a lot of legal recourse that the subjects of the show have,” said Steven J. Peña, a former legal affairs VP at 20th Century Fox. “That doesn’t prevent people from filing lawsuits, raising issues, or putting out press releases.”
Sometimes, the filmmakers might chalk that up to an annoyance, like this year’s back-and-forth between Quentin Tarantino and Bruce Lee’s daughter Shannon Lee over the filmmaker’s unflattering portrayal of the martial-arts legend in “Once Upon a Time in Hollywood.”
Other circumstances can completely derail a project, as with “The Birth of a Nation,” which was the priciest Sundance buy in history when Fox Searchlight acquired it at the 2016 festival for $17.5 million. The problem didn’t lie with the film’s hero, slave rebellion leader Nat Turner; it was writer-director Nate Parker and co-writer Jean Celestin’s sexual assault trial 15 years earlier, which went unnoticed until it made headlines after Sundance. Though Parker was acquitted and Celestin’s conviction overturned, their accuser committed suicide over a decade after the incident. All told, it was a scandal from which the film couldn’t recover.
Others fall somewhere in the middle, such as Norman Jewison’s “The Hurricane.” Universal’s 1999 biopic of Rubin “The Hurricane” Carter, a former boxer whose triple-murder conviction was overturned, earned star Denzel Washington an Oscar nomination, but questions about the film’s accuracy have dominated its legacy.
Where “The Banker” lies on the spectrum remains to be seen, but the stakes are high for an elite company that hoped to establish a Hollywood brand and now finds itself embroiled in a controversy that evokes the worst aspects of MeToo.
The film went into production in fall 2018, and Apple announced its purchase in July 2019. With its story of real-life figures subverting racist culture, “The Banker” looked like it could be a bedrock for the Apple brand. In the announcement that Apple would pull the film from AFI, the company said: “We purchased ‘The Banker’ earlier this year as we were moved by the film’s entertaining and educational story about social change and financial literacy.”
It’s unclear how much Apple paid for the movie, but sources say it bought the film after viewing less than 10 minutes of footage. According to Nolfi, who discussed the film at IndieWire’s November 5 Consider This FYC Brunch, the budget was about $11 million. He added that after the acquisition, Apple put up additional monies for Nolfi to shoot an additional day at his most expensive location, a stand-in for the US Capitol building.
As for E&O insurance, it’s an essential backstop to protect filmmakers against legal challenges that might arise from negligence — but for the issues facing “The Banker,” it may not apply.
There are two sets of controversies: One is Cynthia Garrett’s frustration over how the story was told. She told IndieWire that she found out about the movie’s production at the start of 2019 and hoped the producers would reach out to her. She said no one contacted her about the film but after the trailer dropped November 4, she had her attorney contact Apple.
“We hoped we could discuss this privately with them and navigate what to do,” she wrote to IndieWire over email. “We wanted nothing financial. We just wanted to be heard in the hopes they could figure out a way to correct this mess and stop our abuser from profiting and clearly deceiving them and others. After days thinking they would meet — they then refused to meet. We were devastated.”
However, neither Cynthia Garrett or Bernard Garrett’s second wife, Cynthia’s mother, are portrayed in the film, and their absence may fall under the catchall of being “based on” or “inspired by” real life.
“When you have a movie and you leave people out, there’s no red flag because they’re not in the script,” said attorney Mark Litwak, who serves as production counsel and has written several books on entertainment law. “It doesn’t necessarily violate their rights.”
The second and more disturbing challenge, stemming from the allegation that Bernard Garrett, Jr. sexually abused her, doesn’t have direct connection to the film itself. As such, it’s not something that would arise in vetting the film’s story — but presumably it’s a claim that the producers and Apple would have wanted to know.
Ultimately, filmmakers can’t be entirely certain that vetting captures all contingencies. Independent films, which may be armed by little more than a producer with a checklist, can be more vulnerable than studio films with swarms of expensive lawyers who meticulously root out risk scenarios.
“If you limit your review to a strictly E&O review, in the sense that you’re looking for any kind of viable trademark, copyright, or rights claim, something like this might get missed,” Perez said.
At the IndieWire FYC event, Garrett Jr. said his dad was adamant about his story being told. “He wanted black people to see that there’s motivation stories out there that haven’t even been told yet,” he said.
Nolfi added that the first script was written by two friends of Garrett, Jr., whom he did not name. (Cynthia Garrett denies the existence of such a script, saying that her father only penned a book for her and her siblings.) According to Nolfi, Joel Viertel, who edited and produced the film, got his hands on a copy about 20 years ago, and pitched it to Mackie and Nolfi in 2009 on the set of the director’s 2011 “The Adjustment Bureau.” (Mackie was unavailable for comment. Viertel did not respond to a request for comment.)
“Bernard and Joe [Morris, portrayed by Jackson] had to essentially dress as chauffeurs and janitors in their own banks, essentially to be able to monitor things. It was an incredible story,” Nolfi said at the event. “I was like, ‘Look, I’ll do anything to get this made.’” Levy (Marvel TV’s “Cloak & Dagger”) and Nolfi are the credited screenwriters, with “Lodge 49” co-executive producer Brad Kane receiving story credit and David Lewis Smith and Stan Younger as additional writers.
Ultimately, the only real failsafe for avoiding all true-story complications is if absolutely everyone attached to the subject is dead. Beyond that, however, producers must decide: Do they want to involve a minimum of people, limiting the cost and the possibility of script interference, while risking conflict upon release? Or, they could spend the money to get life rights and cooperation from as many people as possible, which then introduces the very real possibility of power struggles and legal battles if family members won’t come to terms.
“The one thing no writer wants to hear is, ‘No, you need to tell this story,’” said awards publicist Tony Angellotti, who has worked on multiple true-life films including “Frost/Nixon,” “Cinderella Man,” “Erin Brockovich,” and “Green Book.” “A biographer interviews everyone, but ultimately it’s their opinion.”
Dana Harris-Bridson contributed to this report.
Source: IndieWire film