The Directors Guild of America (DGA) submits this testimony in connection with hearings on the "Family Movie Act of 2004."

The DGA represents the interests and creative rights of motion picture directors and other members of the directorial team. Those rights and interests are jeopardized by the conduct of companies that make and distribute unauthorized versions of director's movies, based on criteria ranging from "sanitization" to thematic mutilation. Such unimpeded, unauthorized editing by individuals lacking in training or guidelines does not promote consumer choice, gives a substandard viewing experience, does great injury to the film-viewing process, undermines a director's work and ability to tell a coherent story, and ultimately does great harm to directors' reputations.

Accordingly, the DGA opposes any amendment to the Copyright and Lanham Acts which would specifically authorize this unauthorized editing of motion pictures. In addition to the severe, adverse impact on the creative rights of directors, such conduct has potential consequences far beyond what the Subcommittee may envision today. Indeed, depending on the action of this Subcommittee, what is now occurring with respect to motion pictures could be extended to books, music, magazines, newspapers, and all other forms of speech. Legislation simply opens the door to all of this, but it cannot regulate the unforeseen and unintended consequences.

Notwithstanding directors' grave concerns over this conduct, and a legislative solution that specifically targets valid litigation claims addressed to it, the DGA has worked intensively with the motion picture studios and willing electronic editing parties on a negotiated solution to the current disputes. We presume the members of this Subcommittee agree that, before adopting a legislative solution, it is preferable that a market-based settlement be reached through negotiations among the parties. Indeed, for many months these parties have been engaged in multilateral negotiations, which would allow for the distribution of electronic filtering products under specified circumstances. If a settlement is reached, it would permit the wider distribution of "family friendly" versions of motion pictures, provide appropriate protections for the rights of directors and the motion picture studios, and render legislation unnecessary. Accordingly, the DGA submits that apart from its fundamental opposition to the proposed legislation, introducing it at this time would be counterproductive to negotiations that have taken many months, and involve many different parties.

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Founded in 1936 by the most prominent directors of the period, the Directors Guild today represents over 12,800 directors and members of the directorial team who work in feature film, television, commercials, documentaries and news. The DGA's mission is to protect the creative and economic rights of directors and the directorial team — working to advance artistic freedom and ensure fair compensation.

The DGA is an organization of filmmakers, parents, and individuals who create the movies that many members of this Subcommittee have seen and hopefully enjoyed. The DGA submits this testimony because of directors' deep concern about giving someone the legal ability to alter, in any way they choose, for any purpose, and for profit, the content of a film that a director has made, which carries the director's name, and which is associated with the director. When this is done without the director's knowledge or authorization, and without the knowledge or authorization of the studios that own the copyrights in the film, consumers are misled and the artistic and economic rights of directors are harmed.

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Film is truly an indigenous American art form, and the work of filmmakers — in collaboration with other creative artists in the entertainment industry – has documented, reflected upon, and portrayed the American experience for almost 100 years. Motion pictures have played an unique role in popular culture during the 20th Century, and they continue to be enjoyed daily by billions of people around the world.

The films that directors create tell the story of people's lives, be they in the present or the past, in our country or in a foreign culture. In telling these stories – and creating accurate depictions of life on a reel of film – filmmakers seek to capture not only who we are, but also who we want to be. Directors may not always hit the mark with every film, but they try to seek the truth in the story they are telling, whether as a serious drama or a lighthearted comedy.

The process that goes into making a film is understandably unknown to those outside the entertainment industry. During the making of a film, directors are actually running a massive project, involving hundreds of people and a myriad of details and decisions that have to be made each day to keep the production on schedule and on budget. Whether it is the crafting of a single scene or the visual creation of a character from the written page, the director always is working to create a compelling narrative that shapes the story.

Directors take great care in making motion pictures and are faced with a multitude of creative choices during the filmmaking process. Directors must reflect on the realities of life and determine if, how, and in what way they might put them into their film. The director, and his or her collaborators—the writer, the actor, the cinematographer, the art director, and the film editor—make these decisions constantly. Choices are made before the production begins, during shooting, and in the post-production room where the film is edited.

Despite this collaborative process, it is the director who is associated with the film in the end. Directors put their full vision and often years of hard work into the creation of a film. That film is not only their vision, but it carries their name and reflects on their reputation. For this reason, the director receives the most prominent, final credit in a film, indicating to the audience that the film was "Directed By" him or her. The ability of directors to have their names used to identify and market their films is of great economic consequence. No matter how many warnings or disclaimers someone puts on the film, it still has the director's name on it. Accordingly, directors have great passion about protecting their work, which is their signature and brand identification, against unauthorized editing, and share an abiding belief that contracts and the law will prevent others from illegally profiting from or altering their work.

As the members of this Subcommittee are aware, under American law directors do not have a copyright interest in the films they create. The copyright is held by the production company or studio, and the director's contribution is a "work for hire." Instead, the rights and interests of the director in a film are protected by the DGA's collective bargaining agreement with motion picture studios and production companies. That collective bargaining agreement – along with the individual personal services agreements negotiated by directors for each film – protects the creative rights of directors, including the directors' right to make the first edit or "cut" of a film that is delivered to the studios:

The Director shall be responsible for the presentation of his or her cut of the motion picture (herein referred to as the "Director's Cut") and it is understood that his or her assignment is not complete until he or she has presented the Director's Cut to the Employer . . . .

[N]o one other than the Director may supervise the editing of the first cut of the film following completion of the editor's assembly . . . .

In addition, many directors receive even greater control over the editing of their motion pictures, and earn the much-coveted position of being a "final cut" director. These directors, through their creative and commercial success, earn the right to have the final say over the form of their films, by making the final edit of their movies. These much sought-after rights are bargained for separately by individual directors who achieve this status.

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Directors play a central role in the preparation of movies for television or airline viewing. Far from subverting the rights of directors, that process is conducted under the auspices of the DGA's collective bargaining agreement and directors' individual agreements with motion picture studios. The collective bargaining agreement specifically provides all member directors with the right to edit movies for television and airline versions (when the studio is doing the editing), and in all other cases, requires that the director be consulted on the editing of films for television or airline use.

Directors specifically plan for the fact that their movies may be shown outside the intended theatrical context. Directors shoot and prepare alternate footage and audio to create alternative versions which remain true to each director's vision, but which will fit the needs of the particular airline or broadcast network. Directors do this because they understand that airline and television versions are often viewed by audiences not originally intended for the theatrical version.

Directors also work hard during production and editing to create alternative versions that are suitable for television and airlines. Unlike companies who simply cut, skip, or mute the films, directors have a number of tools at their disposal to add alternate scenes, takes, and dialog to create airline and television versions from the original theatrical release. These tools allow a director to create alternate versions of their films that remain true to the director's vision, so that in appropriate circumstances these films can be shown to audiences for whom they were not originally intended.

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Because directors and their names are inextricably and prominently linked with the movies they direct, the conduct of companies that sell unauthorized software filters or edited versions of movies is particularly harmful to directors. These companies are undoing, undermining and superseding the artistic work in which a director has invested a great deal of effort, and become closely associated by the public. Removing scenes and dialogue from films interferes with the story a director is trying to tell, and in so doing, can take away from the narrative structure and overall vision that audiences associate with a director. This editing can make movies into nonsense, completely changing their meaning. The director's reputation is likely to suffer when people viewing the film may believe they are watching a version of the film that has been edited and authorized for release by the director. This is particularly damaging because the DVD market offers movies in a pristine format which is meant to maximize the viewing experience, and often features extensive background material that emphasizes the director's centrality to the film-making process.

To illustrate the problem, Appendix A provides several concrete examples of what these products have done to directors' artistic visions, and their adverse impact on the power of the story directors seek to tell.

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Sometimes, the director and the studio determine that a movie should not be edited for television or an airline, because of its content and subject matter. As an example, Steven Spielberg's Schindler's List never has been edited for domestic television or airplane exhibition. In fact, Schindler's List was shown on television in the full, uncut theatrical version, and was accompanied by numerous viewer warnings throughout the showing regarding the appropriateness of its content for certain viewers.

Despite this fact, Schindler's List has been heavily edited – again without authorization – by one of the film editing companies. This version edits out much of the Holocaust brutality, profane dialogue, and any scene deemed too disturbing in the judgment of the editor. In short, it cuts deeply into the horror the film seeks to document. Deleted are many crucial scenes that directly illustrate the brutality of the Nazis and their assault on the Jews of Poland.

Presumably, the unauthorized editors of this particular scene from Schindler's List were not attempting to minimize the horrors of Nazism. Nevertheless, some other company, in another context, could easily do just that to suit its viewpoint. Amending the copyright law to permit this historical revision would just be wrong.

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According to promotional materials for some of companies engaged in unauthorized editing, their technology ". . . allows consumers to filter graphic violence, sex and profanity from DVD movies." These companies analogize to a "mute button" or a "fast-forward," and try to distinguish their products from devices that actually alters or edits content. The truth, however, is that these parties do not sell tools for consumers, and do not give consumers any choice.

To the contrary, these companies effectively sell a movie that has been edited by a few unqualified employees, generally without any written guidelines or criteria, and without the involvement of the studios who own the film or the directors who created it. In the case of parties who offer DVD filters, specially equipped DVD players read special edits and remove what the company — not the consumer — has decided to be potentially objectionable material. What has been removed or left in is strictly in the company's decision, and is simply not something that individual consumers can influence.

This is particularly troubling in light of the way companies market these unauthorized versions. Consumers are led to believe that electronic filtering products provide a seamlessly edited version. Instead, consumers are subjected to versions of director's films that are shoddily and choppily edited, with arbitrary editing decisions made by employees who have no training in the film industry and also lack any experience to provide "family safe" content for children. Simply put, this is not what customers are promised, and it is not the product originally delivered by the director.

Now that some of these products have been on the market, critics at leading newspapers across the country have analyzed their products. To put it mildly, the reviews have not been favorable. For example:

• In an editorial, the Salt Lake Tribune stated that ". . . such filters don't let parents edit movies. They let parents rely on editing done by the people [selling the filers] . . . ." He adds: "The matter is before the courts, and in negotiations. Congress should leave it there, at least for now. Meanwhile, the best bet for people who want to see a family-friendly movie is to go rent one. Unfiltered."
  
  
• USA Today reports that, ". . . too often, the cuts are clunky, eliminating portions of sentences and leaving only dead air, or speeding over objectionable items so they emerge almost as 'blips.' The awkward presentation could backfire as a way to sanitize mass entertainment . ."
  
  
• Finally, David Pogue of the New York Times commented that ". . . [the filtering product] is not objectionable just because it butchers the moviemakers' vision. The much bigger problem is that it does not fulfill its mission: to make otherwise offensive movies appropriate for the whole family." He added: "Maybe every []-sanitized movie ought to begin with a message: 'This film has been modified as follows: It has been formatted to fit the taste, sensibilities and religious beliefs of a couple of guys in Utah. That'll be $1.50.'"
  

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The DGA understands that some members of this Subcommittee are concerned about the current dispute between movie filtering companies and the motion picture industry, over the legality of altering films, which has led to the introduction of proposed legislation that would amend the Copyright Act and Lanham Act specifically to permit certain unauthorized editing of motion pictures. Lest there be any doubt, the DGA is fundamentally opposed this legislation, which would enable companies to edit films for their own commercial purposes, without the director's approval or knowledge and without the copyright owner's consent, and in a way that interferes with the director's artistic vision for his or her films*.

This kind of activity is precisely why the founding fathers envisioned copyright protection for creative works, and why Congress has created a system that protects those works. Amending the copyright laws to authorize these products would allow companies to ignore copyright protections created by Congress, and to destroy someone else's property rights and reputation, all in the name of profit. This is particularly troubling in a digital era, where creative works can so easily be destroyed or distorted by others. That is the very reason that copyright protection is fundamental to artists and to consumers, who assume when they see a film that it is the one the director intended to make and present under his or her name. Never was this protection more important that today, when a motion picture can so easily be illegally copied, edited, and transmitted to millions of people through digital means.

The DGA appreciates the concerns of parents and families about exposing their children to unwholesome entertainment. We know that parents face many hurdles in protecting their children. As filmmakers and parents, directors know when they make a film whether it was intended for children or not. Simply put, directors do not expect children to see a film that was not made for them, unless their parents want them to. Ultimately consumers and parents have the choice; they can decide whether or not to purchase or rent a videotape or DVD of a particular film. That is the purpose of the movie rating system; to distinguish the content of films and identify what the appropriate audience is for that film.

The DGA's Social Responsibility Task Force has been active in promoting the importance of the film rating system, and the DGA works closely with the MPAA and the National Organization of Theater Owners to strengthen that system by increasing awareness and providing consumers with information about movies. Many directors are parents, and they assume that other parents will be guided by the ratings system and will make sure that young children are not shown films that are not appropriate for them, and which the director did not intend for children to see.

Amending the copyright laws to permit the use of digital content filters simply is not the way to deal with this issue. Such legislation opens the door to many unintended manipulations of movies or other copyrighted material that all would agree are improper. Indeed, this legislation would not, and could not, discriminate between editing for benign, "family friendly," purposes, on the one hand, and other more nefarious purposes, on the other hand. For example, the DGA presumes that this Subcommittee does not intend to authorize people to use filtering technology to change the political content of copyrighted works, such as editorial columns or political statements. However, this is precisely one of the unintended effects that this legislation would have.

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Despite the DGA's great concern about the protection of directors' works and the numerous problems with unauthorized editing of motion pictures, the DGA has gone to extraordinary lengths to try to resolve this matter. The DGA takes this Subcommittee's concerns very seriously.

The present litigation has been pending for almost two years, and had its genesis several months before that. The litigation involves almost three-dozen parties and more than one-hundred claims and counterclaims. Extensive discovery has been taken and a comprehensive motion for summary judgment is pending.

Over the past nine months, many parties to the litigation have been engaged in settlement discussions, which require multilateral discussions between each of the electronic editing parties, each motion picture studio, and the DGA. For its part, the DGA's leadership and professionals have been working with lawyers for the studios and some of the parties that make these products. In particular, the DGA has been asked to provide its position on potential settlement and licensing structures between the studios and parties that distribute filtering products. On several occasions, the DGA has provided detailed guidelines on licensing and settlement structures, and has undertaken not to grieve under the collective bargaining agreement if the studios enter into agreements that are consistent with those guidelines. At bottom, the DGA has given its approval to the release of products which are consistent with the airline and television versions of motion pictures.

The DGA understands that, on the basis of the DGA's guidelines, the motion picture studios have been conducting one-on-one negotiations with various electronic editing parties. Given that a market-based, negotiated resolution is far more desirable than a legislated resolution, we urge the Subcommittee to allow these negotiations to continue and come to fruition.

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One of the software filtering companies has its own version of The Hurricane, which skips and mutes core storyline content, presumably because of the strong racial overtones. For example, in an early scene, a scared and stuttering eleven-year-old Rubin Carter is being interrogated by two white police officers who, during the process of the interrogation, utter racist remarks toward the young boy. The company removes these lines from the interrogation scene. However, it is through this racist and threatening language that the audience connects with the intimidation that the young Carter must feel, and the racism he is encountering from the law enforcement authorities. Moreover, one of these officers is central to the scheme to wrongfully convict Carter years later. With the racist and threatening comments of the police officer removed, the audience is unable to connect emotionally to Carter's terrifying encounter with the racist officer and power structure. As such, the officer's role in the wrongful conviction and incarceration of Carter is diminished. Much of the meaning and historical accuracy of the film are therefore lost.

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Among the several versions of Traffic offered by the parties engaged in unauthorized editing, is one which removes a number of critical scenes that are key to telling the film's story and carrying the central themes. In one pivotal scene, the daughter of the White House Drug Czar (played by Michael Douglas) engages in drug use with other wealthy teens after school. In particular, her boyfriend exposes her to the smoking or "freebasing" of cocaine. In editing Mr. Soderbergh's film without authorization, the company removed key portions of this scene, which show Douglas's daughter beginning what will become a freefall into the abyss of drug abuse. Not only does this render much of the movie unintelligible, it completely undermines one of the key themes of the movie: That the highest-ranking law enforcement official in the war on drugs is wholly unaware that his daughter is becoming a drug addict. In addition, the company edits out numerous harsh realities associated with drug use in America; highlighting these realities is key to the heart of Mr. Soderbergh's film about the drug problem in America. The unauthorized editing of this movie minimizes the horrors of drug abuse.

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Despite the utter centrality of the kidnapping to the story, at least one company, without any authorization or contractual right to alter the film, removed the entire kidnapping scene when it created a filter specifically designed to alter the viewing of this film. This scene was shown on television and airline versions virtually in its entirety, with only eleven seconds removed. Those types of minor, authorized edits were acceptable to the director, and were done within the framework of the DGA's collective bargaining agreement.

The unauthorized edits were at odds with the director's vision and the basic story of the film. First, the subject of kidnapping for ransom is pivotal to the film, and the film's director went to great lengths to portray it as realistically as possible. In the theatrical, airline, and television version of the film, the audience sees how the abduction was carried out, and witnesses the organizational skill of the abductors and the depth of their cruelty. All of these essential details, and the overall tension and desperation of the scene, have been ripped from the film.

Second, the kidnapping scene, which takes place early in the movie, establishes the foundation for the entire story that follows, and is crucial to the overall dramatic purposes of the film. This scene enables the audience to empathize with an ordinary person, who is driving to work thinking about everyday problems on the job and at home. This "everyman" suddenly is wrenched from his daily life and plunged into a nightmare that he had never imagined possible. Removing this scene in its entirety leaves the audience unable to understand the context and meaning of the story, and renders the audience unable to connect emotionally to the character's plight. In short, removing the early kidnapping scene, from a movie about a kidnapping, changes the basic nature of the movie.

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