http://www.latimes.com/business/custom/cotown/cl-et-mpaa24jan24,0,2188275.story
SUNDANCE FILM FESTIVAL
MPAA finds itself accused of piracy
By John Horn
Times Staff Writer
PARK CITY, Utah - The Motion Picture Assn. of America, the leader in
the global fight against movie piracy, is being accused of unlawfully
making a bootleg copy of a documentary that takes a critical look at
the MPAA's film ratings system.
The MPAA admitted Monday that it had duplicated "This Film Is Not Yet
Rated" without the filmmaker's permission after director Kirby Dick
submitted his movie in November for an MPAA rating. The Hollywood
trade organization said that it did not break copyright law, insisting
that the dispute is part of a Dick-orchestrated "publicity stunt" to
boost the film's profile.
Scheduled to debut at the Sundance Film Festival on Wednesday night,
"This Film Is Not Yet Rated" examines what Dick believes are the
MPAA's stricter standards for rating explicit depictions of sex than
for gruesome violence. Dick also explores whether independent films
are rated more harshly than studio films, whether scenes of gay sex
are restricted more than scenes of straight sex, and why the 10
members of the MPAA's ratings board operate without any public
accountability.
Michael Donaldson, a lawyer representing Dick, has written the MPAA
demanding that it "immediately return all copies" of the film in its
possession, and explain who approved the making of the copy and who
within the MPAA has looked at the reproduction.
Dick said he was "very upset and troubled" to discover during a recent
conversation with an MPAA lawyer that the MPAA had copied the film
from a digital version he submitted Nov. 29 for a rating. ("This Film
Is Not Yet Rated" was rated NC-17 for "some graphic sexual content," a
rating upheld after Dick appealed.) The MPAA's copy of Dick's film was
viewed by Dan Glickman, the MPAA's new president, the MPAA said.
The filmmaker said that when he asked MPAA lawyer Greg Goeckner what
right his organization had to make the copy, Goeckner told him that
Dick and his crew had potentially invaded the privacy of the MPAA's
movie raters.
"We made a copy of Kirby's movie because it had implications for our
employees," said Kori Bernards, the MPAA's vice president for
corporate communications. She said Dick spied on the members of the
MPAA's Classification and Rating Administration, including going
through their garbage and following them as they drove their children
to school.
"We were concerned about the raters and their families," Bernards
said. She said the MPAA's copy of "This Film Is Not Yet Rated" is
"locked away," and is not being copied or distributed.
The standard the MPAA is using for itself appears to be at odds with
what the organization sets out for others: "Manufacturing, selling,
distributing or making copies of motion pictures without the consent
of the copyright owners is illegal," the MPAA's website says. "Movie
pirates are thieves, plain and simple. ALL forms of piracy are illegal
and carry serious legal consequences."
Donaldson said in an interview that the MPAA previously had promised
in writing that it would not copy the film, but an e-mail exchange
does not completely support that claim.
Donaldson added that while he is not planning at this time to sue the
MPAA for copyright infringement, he reserved the possibility of filing
a lawsuit later. "It's my practice and style to wait and see what they
do, go over all of our options, and then make a decision," he said.
Dick, who was nominated for an Academy Award for 2004's documentary
feature "Twist of Faith," said in an interview that his film crew
acted appropriately in tracking down and identifying the anonymous
members of the movie ratings board. But even if he didn't "follow all
the rules," Dick said, "I don't know how that allows somebody else to
break the law."
Bernards said the MPAA has made copies of other films submitted for
ratings, but did not identify any by name.
When Dick submitted his film for a rating, he asked in an e-mail for
assurances that "no copies would be made of any part or all of the film,"
according to a copy of the e-mail exchange.
In a reply e-mail, an MPAA representative did not specifically say the
organization wouldn't copy the film, but did say "the confidentiality
of your film ... is our first priority. Please feel assure (sic) that
your film is in good hands."
The MPAA's Bernards, who said Glickman was unavailable for comment,
said the organization was operating lawfully when it copied Dick's
movie without his or his producer's authorization. "The courts
recognize that parties are entitled to make a copy of a work for use
as evidence in possible future proceedings," she said.
The MPAA has not brought any legal actions against Dick, but did call
the police when the movie raters complained about being stalked and
were worried about their safety. The raters had no idea they were
being followed as part of a documentary.
Donaldson said he was unaware of any legal cases that supported the
MPAA's position.
One expert on intellectual property and copyright law said that while
he was unfamiliar with any cases specifically addressing the issue,
the MPAA's argument might work.
"You can't make a copy as a general matter, but you can if you meet
several tests," said Mark Lemley, a professor at Stanford Law
School. It helps the MPAA, Lemley said, that it is not selling the
copy of "This Film Is Not Yet Rated" for commercial gain.
Dick "is right to say you can't make a single copy unless you have a
legitimate defense," Lemley said. "But it seems that in this case,
[the MPAA] may have a legitimate defense."
Copyright 2006 Los Angeles Times
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