United States: Texas Film Commission Permitted To Slice And Dice Financial Incentives To Machete Films

Last Updated: March 9 2016
Article by Nicole Kinsley

It's been a disappointing few months for Machete, Danny Trejo's "Mexploitation" character created by Robert Rodriguez. After making powerful enemies in Mexico, former Federale Machete found himself a day laborer and vigilante in Texas. His adventures allowed him to exact some bloody satisfaction against fictional corrupt Texas lawmen and politicians, but he is having decidedly less success against the real-world Texas government. Recently, both state and federal appellate courts affirmed the dismissal of claims brought by the producers of the Machete films, thus approving the State of Texas' decision not to provide economic incentives to the franchise.

The First Machete Film

A few minutes into Machete (the first film in the series, which was borne of a mock trailer from the intermission of the Tarantino/Rodriguez two-part bloodbath Grindhouse), a fictional member of the Texas border control shoots a pregnant Mexican woman in the abdomen, declaring as justification that, "[i]f it's born here, it gets to be a citizen, just like you and me."

Most people would consider that a less-than-flattering portrayal of Texas. The Texas Film Commission, which administers the Moving Image Industry Incentive Program, apparently agrees. The Program, like those in other states, offers financial incentives to filmmakers who produce movies in Texas, creating local jobs. Not all movies, however, are so generously welcomed. The Commission's rules provide that it "may deny an application because of inappropriate content or content that portrays Texas or Texans in a negative fashion." The Commission agreed to give Machete a grant in 2009 after reading the script, but changed its mind once it had reviewed the final film in 2010 – even though everyone agreed that the script had undergone no significant changes.

In 2013, Machete's Chop Shop, which produced Machete, filed a lawsuit in Texas state court, seeking a declaration that the Commission acted improperly under its own rules, or that those rules were themselves invalid. The Chop Shop argued that the Commission can withdraw preliminary approval of a grant only if there have been "substantial changes" to the script since the preliminary approval. But last month, the Texas Appeals Court disagreed and affirmed the trial court's dismissal of Chop Shop's complaint. The Court held that the text of the regulations (and an enabling statute) allowed the Commission to deny an application at any stage for negative portrayal of Texans. Chop Shop's fairness argument – that it relied on the Commission's original promise of funds – could not prevail against the state, which has the benefit of sovereign immunity.

Absent from the Court's opinion was any mention of the supposed motive behind the Commission's change of heart – that is, the political controversy that emerged once the plot of Machete came to be known. Chop Shop, perhaps rightly, believed the denial of its application was the result of political pressure over the state funding a movie that dealt with topical but sensitive subjects in a bombastic and bloody B-movie fashion.

The Sequel: Machete Kills

Even before the legal dispute over the first Machete film was filed, in 2012 a related entity, Machete Productions, began production on the sequel, Machete Kills, also filmed in Texas (somewhat undercutting Chop Shop's argument that – but for the Commission's rescinded promise – Machete might have been produced elsewhere). Machete Productions was told (by no less than Governor Perry's chief counsel) that there was no way the second film would receive incentives from the state. Undeterred, Machete Productions filed an application — which was denied because of "inappropriate content" – and then a lawsuit. The defendants, the current and former heads of the Commission, removed this litigation to federal court, and the Fifth Circuit recently upheld its dismissal.

The questions presented in the Machete Kills litigation were different, since there had been no preliminary approval of a grant for that film. Here, the crux of the claims was that the Commission – or the Commission's rules – violate the Texas Constitution and/or the First and Fourteenth Amendment of the US Constitution. Machete Productions asserted that the Commission had previously – and very rarely – denied funding only to the makers of inaccurate historical films.

But the District Court and Court of Appeals were having none of it. The Fifth Circuit held that the First Amendment and the Texas Constitution protect only against state action that actually restrains, silences or censors speech. According to the Court, however, a funding program that encourages one type of speech does not silence another – as evidenced by the fact that Machete Kills was still made, and made in Texas, after the application was denied. The Court further held that the effects of such viewpoint discrimination are "not constitutionally severe" when the government "is acting as a patron rather than as a sovereign." Moreover, the producers of the film did not have a protectable property interest in the incentives, no matter how regularly they had been granted in the past, because the statute expressly gave the state discretion in granting them.

The message from the Texas Appeals Court and the Fifth Circuit is loud and clear: Robert Rodriguez can keep making films about racist, corrupt, violent Texans, and Machete and friends can keep hacking them to pieces (next time, apparently, in space!) but Texas doesn't have to help them foot the bill.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions