II

103D CONGRESS

1ST SESSION S. 1181

To amend the Act entitled ‘‘An Act to provide for the registration and

protection of trademarks used in commerce, to carry out the provisions

of certain international conventions, and for other purposes’’, enacted

July 5, 1946 (commonly known as the Lanham Act), to require certain

disclosures relating to materially altered films.

IN THE SENATE OF THE UNITED STATES

JUNE 30, 1993

Mr. SIMPSON (for himself and Mr. METZENBAUM) introduced the following

bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To amend the Act entitled ‘‘An Act to provide for the registration and protection of trademarks used in commerce,

to carry out the provisions of certain international conventions, and for other purposes’’, enacted July 5, 1946

(commonly known as the Lanham Act), to require certain

disclosures relating to materially altered films.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Film Disclosure Act

5 of 1993’’.
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1 SEC. 2. FINDINGS.

2 The Congress finds that—

3 (1) motion pictures are an American art form

4 that uniquely captures and preserves our national

5 and cultural heritage;

6 (2) the integrity of a motion picture is com7 promised and diminished when the motion picture is

8 sold, leased, or exhibited in a materially altered

9 form;

10 (3) the public is misled when motion pictures

11 are sold, leased, or exhibited in a materially altered

12 form;

13 (4) the public has a right to know whether a

14 motion picture which is being sold, leased, or exhib15 ited has been materially altered;

16 (5) the reputation of the artistic author of a

17 motion picture may be harmed when the original

18 work is sold, leased, or exhibited in a materially al19 tered form;

20 (6) the artistic authors of a motion picture

21 must have the right to indicate their objections to

22 any material alterations made to their work because

23 otherwise the motion picture misrepresents their

24 work;
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1 (7) the practice of materially altering motion

2 pictures can result in the discouragement of artistic

3 creation in the motion picture field; and

4 (8) the Government has an interest in the en5 couragement of artistic creation through protection

6 of an artistic author’s reputation.

7 SEC. 3. AMENDMENT TO THE LANHAM ACT.

8 Section 43 of the Act entitled ‘‘An Act to provide for

9 the registration and protection of trademarks used in com10 merce, to carry out the provisions of certain international

11 conventions, and for other purposes’’, approved July 5,

12 1946, commonly known as the Lanham Act (15 U.S.C.

13 1125), is amended by adding at the end thereof the follow14 ing:

15 ‘‘(c)(1)(A) Each public exhibition of a materially al16 tered motion picture, and each copy of a materially altered

17 motion picture offered to the public through sale or lease

18 (including its film packaging), shall include a label which

19 clearly and conspicuously discloses the following:

20 ‘‘(i) The film has been materially altered from

21 the form in which it was first released to the public.

22 ‘‘(ii) The nature of the alteration.

23 ‘‘(iii) The fact of objection, if any, by the artis24 tic authors of the motion picture to any such alter25 ation.
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1 ‘‘(B) Any distributor or network that proposes to ex2 ploit a materially altered film in the manner set forth in

3 subparagraph (A) shall—

4 ‘‘(i) make a good faith effort to notify in writ5 ing and by registered mail and in a reasonable

6 amount of time prior to such exploitation those indi7 viduals described in paragraph (5)(B);

8 ‘‘(ii) determine the objections of any individual

9 so notified to any specific material alteration of the

10 motion picture;

11 ‘‘(iii) determine the objection of any individual

12 so notified by the questionnaire set forth in para13 graph (9) to any type of future material alterations

14 which are in addition to those specifically proposed

15 for the motion picture to be exploited;

16 ‘‘(iv) include or affix the label required under

17 subparagraph (A) prior to the public performance of

18 a materially altered motion picture already in dis19 tribution or the initial distribution of a materially al20 tered motion picture to any exhibitor or retail pro21 vider of motion pictures intended for home use; and

22 ‘‘(v) in the event of affirmative objections by

23 the artistic author to any future material alterations,

24 include or affix such objections to any copy of a mo-
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1 tion picture distributed or transmitted to any exhibi2 tor or retail provider.

3 ‘‘(C) Whenever a distributor or network exploits a

4 motion picture which has already been materially altered,

5 such distributor or network shall not be required to satisfy

6 the obligations set forth in subparagraph (B) (i), (ii), and

7 (iii), if—

8 ‘‘(i) such distributor or network does not fur9 ther materially alter such motion picture; and

10 ‘‘(ii) such motion picture was materially altered

11 by another distributor or network that complied fully

12 with all of the obligations set forth in subparagraph

13 (B).

14 ‘‘(D)(i) The requirement of a good faith effort under

15 subparagraph (B)(i) is satisfied if a distributor or network

16 that has not previously been notified by each individual

17 in paragraph (5)(B)—

18 ‘‘(I) requests in writing the name and address

19 of each such individual from the appropriate Profes20 sional Guild Registry, indicating a response date of

21 no earlier than 30 days following the date of the re22 quest, by which the appropriate professional guild

23 must respond; and

24 ‘‘(II) upon receipt of such information from the

25 appropriate professional guild within the time speci-
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1 fied in the request, notifies each such individual rea2 sonably in advance of the date upon which the mo3 tion picture is to be released into any secondary

4 market.

5 ‘‘(ii) The notice to the artistic author shall contain

6 a specific date, no earlier than 30 days following the date

7 of such notice, by which the individual so notified shall

8 respond in accordance with subparagraph (B)(ii). Failure

9 of the artistic author or the appropriate professional guild

10 to respond within the time period specified shall relieve

11 the distributor or network of all liability under subpara12 graph (B) (except for clause (iv) of such subparagraph);

13 ‘‘(E) The obligations of an exhibitor shall be limited

14 to—

15 ‘‘(i) broadcasting, cablecasting, exhibiting or

16 distributing all labels required under this section in

17 their entirety as included with or distributed by the

18 network or distributor of the motion picture; and

19 ‘‘(ii) including or affixing a label as described in

20 paragraphs (6) and (8) on a materially altered mo21 tion picture as required under paragraph (1)(A) for

22 any material alterations performed by the exhibitor

23 to which the individuals described in paragraph

24 (5)(B) have objected through the questionnaire pro25 cedure described in paragraph (1)(B)(iii).
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1 ‘‘(F)(i) The provisions of this paragraph shall apply

2 with respect to motion pictures intended for home use

3 through either retail purchase or rental, except no require4 ment imposed under this paragraph shall apply to a mo5 tion picture which has been packaged for distribution to

6 retail providers before the effective date of this section.

7 ‘‘(ii) The obligations of a retail provider of motion

8 pictures intended for home use shall be limited to includ9 ing or distributing all labels required under this section

10 in their entirety as affixed or included by a distributor

11 or network.

12 ‘‘(G) There shall be no consideration in excess of one

13 dollar given in exchange for an artistic author’s waiver of

14 any objection or waiver of the right to object under this

15 subsection.

16 ‘‘(2)(A) Any artistic author of a motion picture pub17 licly exhibited or offered to the public through sale or lease

18 within the United States who believes he is or is likely

19 to be damaged by a violation of this subsection may obtain

20 appropriate relief with respect to any violation of this

21 paragraph without regard to the nationality or domicile

22 of the artistic author.

23 ‘‘(B)(i) In any action under subparagraph (A), the

24 court shall have power to grant injunctions, according to

25 the principles of equity and upon such terms as the court
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1 may deem reasonable, to prevent the violation of any right

2 of an artistic author. Any such injunction may include a

3 provision directing the defendant to file with the court and

4 serve on the plaintiff within thirty days after the service

5 on the defendant of such injunction, or such extended pe6 riod as the court may direct, a report in writing under

7 oath setting forth in detail the manner and form in which

8 the defendant has complied with the injunction. Any such

9 injunction granted upon hearing, after notice to the de10 fendant, by any district court of the United States—

11 ‘‘(I) may be served on the parties against whom

12 such injunction is granted anywhere in the United

13 States where they may be found; and

14 ‘‘(II) shall be operative and may be enforced by

15 proceedings to punish for contempt, or otherwise, by

16 the court by which such injunction was granted, or

17 by any other United States district court in whose

18 jurisdiction the defendant may be found.

19 ‘‘(ii) When a violation of any right of an artistic au20 thor shall have been established in any civil action arising

21 under this section, the plaintiff shall be entitled to the

22 remedies provided under section 35(a).

23 ‘‘(iii) In any action under subparagraph (A), the

24 court may order that all film packaging of a materially

25 altered motion picture (including film packages of motion
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1 pictures intended for home use through either retail pur2 chase or rental) that is the subject of the violation shall

3 be delivered up and destroyed.

4 ‘‘(C) No action shall be maintained under this sub5 section unless it is commenced within 1 year after the

6 claim accrues.

7 ‘‘(3) Any disclosure requirements imposed under the

8 common law or statutes of any State respecting the mate9 rial alteration of theatrical motion pictures are preempted.

10 ‘‘(4) To facilitate location of a potentially aggrieved

11 party, each individual identified in paragraph (5)(B) may

12 notify the copyright owner of the motion picture or, as

13 appropriate, one or more of the organizations maintaining

14 a Professional Guild Registry. These organizations may

15 maintain a current registry of persons so notifying them

16 and may make available such information in their posses17 sion to facilitate the location of any individual so reg18 istered for purposes of paragraph (1)(B). No cause of ac19 tion shall accrue against any of the professional guilds list20 ed in such section for failure to create or maintain a Pro21 fessional Guild Registry or for any failure to provide infor22 mation pursuant to paragraph (1)(B)(i).

23 ‘‘(5) As used in this subsection:

24 ‘‘(A) The term ‘film’ or ‘motion picture’ means

25 a theatrical motion picture after its publication.
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1 ‘‘(B) The term ‘artistic author’ means—

2 ‘‘(i) the principal director, principal screen3 writer, and, to the extent a theatrical motion

4 picture is colorized or its photographic images

5 materially altered, the principal cinematog6 rapher of the film; or

7 ‘‘(ii) in the event that an individual listed

8 in clause (i) is deceased or incapacitated, the

9 heir or heirs of that individual.

10 ‘‘(C) The term ‘to colorize’ or ‘colorization’

11 means to add color, by whatever means, to a pub12 lished version of a theatrical motion picture origi13 nally made in black and white.

14 ‘‘(D) The term ‘distributor’ means any person,

15 vendor, or syndicator who engages in the wholesale

16 distribution of motion pictures to any exhibitor, net17 work, retail provider or other person who publicly

18 performs motion pictures by means of any tech19 nology, except such term shall not include labora20 tories or other providers of technical services to the

21 motion picture, video or television industry.

22 ‘‘(E) The term ‘heir’ means any person to

23 whom a right passes by bequest or by the applicable

24 laws of intestate succession.
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1 ‘‘(F) The term ‘lexiconning’ means to alter the

2 sound track to conform the speed of the vocal or

3 musical portion of a theatrical motion picture which

4 has been the subject of time compression or expan5 sion.

6 ‘‘(G) The term ‘exhibitor’ means any local

7 broadcast station, cable system, airline or motion

8 picture theatre or other person that publicly per9 forms a motion picture by means of any technology.

10 ‘‘(H) The term ‘material alteration’ means any

11 change, with the exception of changes excluded by

12 this subparagraph, made to a motion picture after

13 its publication. Material alteration includes, but is

14 not limited to, the processes of colorization,

15 lexiconning, time compression or expansion, panning

16 and scanning and editing (purposeful or accidental

17 removal of existing material or insertion of new ma18 terial). Material alteration does not include inser19 tions for commercial breaks or public service an20 nouncements, editing to comply with the require21 ments of the Federal Communications Commission

22 (in this subsection referred to as the ‘FCC’), trans23 fer of film to videotape or any other secondary

24 media now in existence or developed hereafter, prep25 aration of a motion picture for foreign distribution
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1 (subtitling and editing limited to those alterations

2 made under foreign standards which are no more

3 stringent than existing FCC standards) or legitimate

4 film preservation activities (the primary purpose of

5 which is the restoration of the motion picture to its

6 original version).

7 ‘‘(I) The term ‘network’ means any person who

8 distributes motion pictures to broadcasting stations

9 or cable systems on a regional or national basis for

10 public performance on an interconnected basis.

11 ‘‘(J) The term ‘panning and scanning’ means

12 the process by which a motion picture, composed for

13 viewing on theatre screens, is adapted for viewing on

14 television screens by modification of the aspect ratio

15 (ratio of width to height) of the motion picture and

16 the selection, by someone other than the motion pic17 ture’s principal director, of some portion of the en18 tire picture for viewing.

19 ‘‘(K) The term ‘Professional Guild Registry’

20 means a list of names and addresses of persons

21 readily available from the files of (i) in the case of

22 directors, the Directors Guild of America (DGA); (ii)

23 in the case of screenwriters, the Writers Guild of

24 America-West (WGA–W) and the Writers Guild of

25 America-East (WGA–E); and (iii) in the case of
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1 cinematographers, the International Photographers

2 Guild (IPG), and the American Society of Cine3 matographers (ASC).

4 ‘‘(L) The term ‘publication’, with respect to a

5 motion picture, means the first paid public exhi6 bition of the work following previews, trial runs and

7 festivals.

8 ‘‘(M) The term ‘retail provider’ means the pro9 prietor of a retail outlet that sells or leases motion

10 pictures for home use.

11 ‘‘(N) The term ‘secondary media’ means any

12 medium, including but not limited to video cassette

13 or video disc, other than television broadcast or the14 atrical release, now in existence or hereafter devel15 oped, by which motion pictures are sold, leased, or

16 distributed to the public.

17 ‘‘(O) The term ‘syndicator’ means any person

18 who distributes a motion picture to a broadcast tele19 vision station, cable television system, or any other

20 means of distribution by which programming is de21 livered to television viewers.

22 ‘‘(P) The term ‘motion picture’ means a motion

23 picture of 60 minutes duration or greater, intended

24 for exhibition, public performance, public sale or

25 lease. Such term does not include episodic television
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1 programs of less than 60 minutes duration (exclu2 sive of commercials), motion pictures prepared for

3 private commercial or industrial purposes, and ad4 vertisements.

5 ‘‘(Q) The terms ‘time compression’ and ‘time

6 expansion’ mean to alter the speed of a theatrical

7 motion picture or a portion thereof with the result

8 of shortening or lengthening the running time of the

9 work in order to fit the picture into a television

10 schedule, airline schedule, or secondary media

11 length.

12 ‘‘(R) The term ‘vendor’ means the wholesaler or

13 packager of a motion picture which is intended for

14 wholesale distribution to retail providers.

15 ‘‘(6)(A) A label for a materially altered version of a

16 theatrical motion picture intended for public performance

17 or home use shall consist of a panel card immediately pre18 ceding and adjacent to the commencement of the motion

19 picture, which bears one or more of the following state20 ments, as appropriate, in legible type and displayed on a

21 conspicuous and readable basis:

22 ‘THIS FILM IS NOT THE VERSION ORIGI23 NALLY RELEASED. lll mins. and lll secs.

24 have been cut [or, if appropriate, added]. The [insert, if

25 appropriate: heirs of the] director, lllllllll
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1 llllllllll, and [insert, if appropriate: the

2 heirs of the] screenwriter, lllllllll

3 llllllllll, object because this alteration

4 changes the narrative and/or characterization. It has

5 (also) been panned and scanned. The director and [insert,

6 if appropriate: the heirs of the] cinematographer,

7 lllllllll llllllllll, object be8 cause this alteration removes visual information and

9 changes the composition of the images. It has (also) been

10 colorized. Colors have been added by computer to the

11 original black and white images. The director and cine12 matographer object to this alteration because it eliminates

13 the black and white photography and changes the photo14 graphic images of the actors. It has (also) been electroni15 cally speeded up (or slowed down). The director objects

16 because this alteration changes the pace of the perform17 ances.’

18 ‘‘(B) A label for a motion picture that has been mate19 rially altered in a manner not described by any of the label

20 elements set forth in subparagraph (A) shall contain a

21 statement similar in form and substance to those set forth

22 in subparagraph (A) which accurately describes the mate23 rial alteration and the objection of the artistic author.

24 ‘‘(7) A label for a motion picture which has been ma25 terially altered in multiple ways, or of which an individual
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1 served as more than one artistic author, including the

2 principal director and principal screenwriter, need only

3 state the name of the artistic author once, in the first ob4 jection of the artistic author so listed. In addition, a label

5 for a motion picture which has been materially altered in

6 multiple ways needs only state once, at the beginning of

7 the label: THIS FILM IS NOT THE VERSION ORIGI8 NALLY RELEASED.

9 ‘‘(8) A label for a film package of a materially altered

10 motion picture shall consist of—

11 ‘‘(A) an area of a rectangle on the front of the

12 package which bears, as appropriate, one or more of

13 the statements listed in paragraph (6) in a conspicu14 ous and legible type in contrast by typography, lay15 out, or color with other printed matter on the pack16 age; and

17 ‘‘(B) an area of a rectangle on the side of the

18 package which bears, as appropriate, one or more of

19 the statements listed in paragraph (6) in a conspicu20 ous and legible type in contrast by typography, lay21 out, or color with other printed matter on the pack22 age.

23 ‘‘(9) The questionnaire required under paragraph

24 (1)(B)(iii) shall consist of the following statement and re25 lated questions:
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1 ‘In order to conform [insert name of motion

2 picture], of which you are an ‘‘artistic author’’ (or

3 the heir thereto), to ancillary media such as tele4 vision, airline exhibition, video cassettes, video discs,

5 or any other media hereafter developed, do you ob6 ject to:

7 ‘(a) Editing (purposeful or accidental deletion or ad8 dition of program material)?

9 Yesllllll Nolllllll

10 ‘(b) Time compression/time expansion/lexiconning?

11 Yesllllll Nolllllll

12 ‘(c) Panning and scanning?

13 Yesllllll Nolllllll

14 ‘(d) Colorization, if the motion picture was originally

15 made in black and white?

16 Yesllllll Nolllllll

17 ‘(e) If the artistic author of the motion picture listed

18 above is deceased or incapacitated, are you the heir of the

19 artistic author?

20

21 Yesllllll Nolllllll’ ’’.

22 SEC. 4. EFFECTIVE DATE.

23 (a) IN GENERAL.—Except as provided in subsection

24 (b), this Act and the amendment made by this Act shall

25 take effect on the date of enactment of this Act.
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1 (b) SPECIAL RULE.—Paragraphs (1) and (2) of sec2 tion 43(c) of the Act entitled ‘‘An Act to provide for the

3 registration and protection of trademarks used in com4 merce, to carry out the provisions of certain international

5 conventions, and for other purposes’’, approved July 5,

6 1946 (commonly known as the Lanham Act) (as added

7 by section 3 of this Act) shall take effect 180 days after

8 the date of the enactment of this Act.

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