The June 27th announcement by the Academy of Motion Picture Arts and Sciences regarding new and tweaked rules for the 87th Academy Awards seemed pretty much by-the-numbers at the time, but in the days since has engendered controversy over a new requirement in the Documentary Feature category that now requires even stiffer regulations for a film’s seven-day qualifying run. Instead of the previous requirement of two shows a day without specifying times, the new rule calls for a minimum of four shows per day at theatres in LA and NY with screenings beginning between noon-10 PM including at least one “prime” show beginning between 6-10 PM. Sources at the Academy tell me this is an effort to get the films seen by the public in a theatrical setting.

“The main reason was to get those documentaries to be seen by paying audiences,” an Academy executive told me. “As you know a lot of those (qualifying runs ) movies are basically four-walled at 11 AM and nobody sees them in a theatre. So by allowing four showings daily for a week it allows so much greater access for the consumer and the public to see these movies.” I am told the docu branch leadership was passionate about the change because “it really allows the movie fan to see documentaries with so much more opportunity.” It also reinforces the idea that these Oscar-qualifying films are indeed theatrical experiences, something the Academy has always been rightfully concerned about emphasizing in their annual competition.

It also could have the effect of cutting down on the number of films eligible to compete because together with previous tightening of rules (including that the films be reviewed by the LA Times and NY Times), it means it will be harder for some of the smaller films to meet these requirements. Last year, 151 films qualified and they were all sent en masse to members of the docu branch who all now have a vote on which films make the shortlist (15 finalists), a near impossibility for working filmmakers who may choose only to watch the more prominent titles or those from familiar names. Until a few years ago (in changes championed by then-Governor Michael Moore), the whittling-down of titles was tasked to four separate committees of members who each viewed about 25% of the entries. Now according to some prominent members the net effect is to make the shortlist process a “popularity” contest, which is what the Academy has been trying to avoid for years.

Filmmaker Joe Berlinger (whose new film Whitey: United States Of America V. James J. Bulger recently opened in New York and releases this weekend in LA) is an Academy docu branch member who thinks the old system might have had its flaws but at least guaranteed that every entry got viewed. “All branch members in theory are supposed to watch ALL 150 films, nearly an impossibility that we branch members complain about…so what happens is that doc branch members flip through their box looking for the titles or filmmakers that they have heard of… I know this to be true because I do it myself when I get my box and many of my peers on the doc branch have said the same thing to me — so only the popular films and filmmakers benefit,” he said. He added that he abstained from voting on the shortlist last year because he was unable to see the vast majority of the eligible films. “Presumably this system will unfairly benefit a film like my Whitey Bulger doc this year because it’s been a very visible title. But I find that distressing actually because the smaller, very serious films, some of them not on “popular” subjects like (2013 Oscar winner ) 20 Feet From Stardom, are not going to have the same opportunity to be recognized, and I think that is a loss for society.”

It also benefits a doc like Dinesh D’Souza’s America, which opened on over 1000 screens (through distributor-for-hire Lionsgate) and earned $4 million this weekend. It is a right wing-financed “political agenda” docu which has deep pockets behind it, if not the kind of quality of more worthy theatrical docus financially struggling to qualify for Oscars. It currently has an abysmal and embarrassing 0% Rotten Tomatoes fresh score among top critics (its deceptive A+ Cinemascore was partially the result of attracting large groups of conservative and religious groups opening night). D’Souza’s work, like his previous 2012 agitprop film 2016: Obama’s America (which earned a stunning $33 million from its targeted audience), has no realistic chance at an Oscar nomination but it easily qualifies under Academy docu rules because it has no issues with money, unlike some more serious theatrical docus perhaps not as well protected by the new rules. Current Documentary branch governors Michael Apted, Alex Gibney and Robert Epstein are all high-profile Oscar winning and nominated docu filmmakers.

The shift requiring four shows a day in theatres could further disadvantage those types of smaller film to which Berlinger refers — those movies from lesser-known filmmakers that don’t have the deep pockets and exhibitor connections of companies like IFC, Magnolia, Radius-TWC and others who distribute top titles.

Ted Mundorff , president and CEO of the Landmark Theatres chain, called it an “egregious” move on the part of the Academy. “It effectively will eliminate the ability of many of the filmmakers, especially the diverse filmmakers, to get their movie played off. Under the old rules we could wedge a doc into a theatre but under the new guidelines it basically requires the exhibitor to dedicate one full screen to the doc. This isn’t practical. Most docs will not require 28 shows a week (the total now needed to qualify) because the demand to see 28 shows a week isn’t there for most of these important documentaries. Now to get a theatre for that amount of time is just not going to happen for them.” Mundorff said that financially it will be unfeasible for many docus which will have to rent the theatre to qualify, and that the cost will go up for the extra shows and particularly the “prime” show. “This is an obvious change to help the Michael Moore kind of films and eliminates the rest of the smaller films you will see at the Spirit Awards. This is something that hurts the business and hurts the documentarians, so I question why the Academy would want to do something that actually hurts the filmmaker. It’s definitely a move to cut the volume. They ought to be straightforward. They aren’t interested in all docs, because that seems to be what is going here.”

Ironically, the same specific stiff theatrical exhibition requirement isn’t as harsh on those films qualifying for Best Picture. Those films are required only to have a seven-day run in a theatre in the greater LA area and presumably can do so with as little as one show a day. The Academy has traditionally struggled though in trying to differentiate many feature documentaries from the television experience (HBO is a big participant in the Academy’s docu process but can also afford to rent out the theatres for as long as it takes). The new rule is just a continuing effort to emphasize the “theatrical experience” when talking about docus up for Oscar. But Berlinger, an Academy member for over 10 years who thinks past changes have been hit and miss, feels this particular move is a step in the wrong direction. He thinks the Academy needs to re-orient its thinking about what is “cinema” vs “television.” He thinks shoving films that have the budget to do so into a theatre for a week only serves to allow television films — which he calls the “root cause of the glut of entries” — to circumvent the spirit (and intention) of the new rules. He is calling for a broader definition of cinematic documentaries that “don’t look and smell like a television show” and that those films should be allowed to qualify by other means including digital platforms and some kind of minimum threshold of qualified film festival screenings (the latter previously allowed by the Academy but not now).

“My own Whitey Bulger film had a decent — but nothing to get excited about — theatrical debut, but on the very same opening weekend was the No. 1 doc on iTunes,” he said. “Clearly people are watching theatrical docs in new and different ways. The art house dramatic and documentary film as a theatrical release is in a serious state of demise…I think the new rule misses the whole point of what the debate should be about.