The Academy Awards will have new diversity rules to qualify for an Oscar. But there’s a huge loophole

Finished Oscar statuettes are seen at the Polich Tallix foundry in Walden, N.Y., in 2018. (Shannon Stapleton/Reuters)
Finished Oscar statuettes are seen at the Polich Tallix foundry in Walden, N.Y., in 2018. (Shannon Stapleton/Reuters)

In how many ways will this year’s Oscars be different from the norm? Well, they’re being held this Sunday night, rather than as usual in February or March, during a pandemic that has upended films’ releases. And they’re among the last few Oscar ceremonies before the Academy of Motion Picture Arts and Sciences implements new diversity and inclusion standards for its top award, best picture, which will go into effect in 2024.

Will the proposed diversity rules change the Oscars? One way to judge is to ask whether recent nominees for best picture would have been eligible if the inclusion rules had been in place.

Spoiler alert: Loopholes may make it easy for any widely released film to qualify.

An inclusion menu

The new standards are modeled on rules that have been used since 2016 by the British Film Institute (BFI) for grants and since 2019 by the British Academy of Film and Television Arts (BAFTA) award for outstanding British film. In 2024, BAFTA will apply these rules to its own best film award, a category open to non-British films.

Like the existing BFI rules, the draft plan for the Oscars will require that films meet requirements in two of four categories: (A) “on-screen representation, themes and narratives,” which looks for underrepresented groups in the cast or the story; (B) inclusion in the “creative leadership and project team,” such as the film crew; (C) “industry access and opportunities,” such as training programs; and (D) “audience development,” relating to marketing and promotion.

For criteria A and B, there are three options for meeting each standard. For example, a film could cast a racial or ethnic minority in a major role. Or the film’s narrative could focus on women, racial and ethnic minorities, LGBTQ+ people, or people with cognitive or physical disabilities.

Diversity in past nominated films

We considered the 51 best picture nominees from 2016 to 2021, gathering information on cast and crew sex and ethnicity from IMDb.

More than half (31 of 51) of the films met standard A for on-screen representation, with a non-White lead or major supporting character, or a story centered on someone from one of the historically underrepresented groups.

Another five nominated films — like “La La Land” and “A Star Is Born” — were about heterosexual romances. If the story has enough of the woman’s point of view, it could meet standard A.

Forty-two of the nominated films met standard B, for behind-camera diversity, with at least two people from underrepresented groups in the top behind-the-scenes roles or at least six ethnic and racial minorities in important jobs.

All kinds of stories and storytellers

Considering only these obvious criteria, 31 of 51 films nominated for best picture since 2016 would have been eligible under the new diversity standards. Should we be worried about the others? Will the diversity standards keep Oscars from going to high-quality films about men, White people or familiar themes?

For an answer, we can look at the BFI-administered awards already governed by diversity rules. For example, one Oscar-nominated film this year is “The Father,” in which star Anthony Hopkins plays a man slipping into dementia. Superficially, a nomination for this may seem to be ruled out by the diversity requirements. Its primary cast and top creatives are White; the main character is a White man; and its fairly traditional themes are family, illness and elder care. But “The Fatherhas twice received awards governed by diversity criteria: BFI funding and nomination for outstanding British film. Similarly, last year’s BAFTA for top British picture went to “1917,” a film about WWI whose cast and creative leadership were overwhelmingly White and male.

The one weird trick for Oscar qualification

“The Father”and “1917”qualified for outstanding British film by satisfying less-obvious diversity criteria. (How films meet the BFI standards is confidential.) Remember, they need to meet the standard in only two out of the four categories — and the other two categories are far less visible. Qualifying through the less visible route requires a film project either to help people from underrepresented groups work in the industry, or to target underserved audiences.

The Oscar’s proposed rules are worded differently, creating a loophole. They require that one of the studios attached to a film offers training opportunities to people from these groups (standard C) or has a diverse marketing team (standard D). Unlike the BFI, the Oscars do not require that these personnel be involved in the film.

Why does that matter? Small-budget, prestige films typically involve many funders and production companies. Because of U.S. antitrust laws, a film’s distributor is always a separate entity from its production company.

The 51 films nominated for best picture between 2016 and 2021 credit more than 150 production companies, many of them ad hoc organizations that do not even maintain websites. But just 19 studios — with familiar names like Disney and Warner Bros. — distributed all of them.

We found internship programs and diversity initiatives at most of the studios that distributed recent Oscar nominated films. While we had a hard time identifying whether the production companies had them, it didn’t matter. The academy’s draft diversity rules reward the permanently Oscar-qualifying infrastructure at the large studios that market and distribute prestige films even if they rarely make them in-house.

You may already be a winner

Some recently Oscar-nominated films clearly met one or both of the public-facing diversity standards. Others met BAFTA inclusion standards. Most were distributed by studios with personnel programs that already met future Oscar requirements.

Other routes might have allowed these films to meet the Oscars’ proposed inclusion standards. For example, we could not observe how many people on a film crew might have been LGBTQ+ or had a cognitive or physical disability.

Even though we could not explore every possible way to be eligible for an Oscar, we are reasonably confident that all the films up for best picture since 2016 could qualify for nomination under the proposed diversity rules.

The Oscars’ planned diversity criteria are already in place for other awards. These rules have not blocked recognition for films about men, White people or Western history. We seriously doubt they could block a best picture nomination for any wide-release film.

Bethany Lacina (@bethany_lacina) is an associate professor of political science at the University of Rochester. Ryan Hecker is a member of the class of 2023 at the University of Rochester.

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