II

104TH CONGRESS

1ST SESSION S. 559

To amend the Lanham Act to require certain disclosures relating to materially

altered films.

IN THE SENATE OF THE UNITED STATES

MARCH 15, 1995

Mr. SIMPSON introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To amend 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 1995’’.

6 SEC. 2. AMENDMENT TO THE LANHAM ACT.

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

8 the registration and protection of trade-marks used in

9 commerce, to carry out the provisions of certain inter10 national conventions, and for other purposes’’, approved
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1 July 5, 1946, commonly known as the Lanham Act (15

2 U.S.C. 1125), is amended by adding at the end the

3 following:

4 ‘‘(c)(1)(A) Any distributor or network that proposes

5 to exploit a materially altered motion picture shall—

6 ‘‘(i) make a good faith effort to notify each ar7 tistic author of the motion picture in writing and by

8 registered mail and in a reasonable amount of time

9 prior to such exploitation;

10 ‘‘(ii) determine the objections of any artistic au11 thor so notified to any material alteration of the mo12 tion picture;

13 ‘‘(iii) determine the objection of any artistic au14 thor so notified by the questionnaire set forth in

15 paragraph (9) to any type of future material alter16 ations which are in addition to those specifically pro17 posed for the motion picture to be exploited;

18 ‘‘(iv) if any objections under clause (ii) or (iii)

19 are determined, include the applicable label under

20 paragraph (6) or (8) in, or affix such label to, all

21 copies of the motion picture before—

22 ‘‘(I) the public performance of the materi23 ally altered motion picture if it is already in dis24 tribution, or
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1 ‘‘(II) the initial distribution of the materi2 ally altered motion picture to any exhibitor or

3 retail provider; and

4 ‘‘(v) in the event of objections by an artistic au5 thor to any future material alterations, include or

6 affix such objections to any copy of the motion pic7 ture distributed or transmitted to any exhibitor or

8 retail provider.

9 ‘‘(B) Whenever a distributor or network exploits a

10 motion picture which has already been materially altered,

11 such distributor or network shall not be required to satisfy

12 the requirements of subparagraph (A) (i), (ii), and (iii),

13 if—

14 ‘‘(i) such distributor or network does not fur15 ther materially alter such motion picture; and

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

17 by another distributor or network that complied fully

18 with all of the requirements of subparagraph (A).

19 ‘‘(C)(i) The requirement of a good faith effort under

20 subparagraph (A)(i) is satisfied if a distributor or network

21 that has not previously been notified by each artistic au22 thor of a motion picture—

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

24 of each artistic author of the motion picture from

25 the appropriate professional guild, indicating a re-
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1 sponse date of not earlier than 30 days after the

2 date of the request, by which the appropriate profes3 sional guild must respond; and

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

5 appropriate professional guild within the time speci6 fied in the request, notifies each artistic author of

7 the motion picture in a reasonable amount of time

8 before the exploitation of the motion picture by such

9 network or distributor.

10 ‘‘(ii) The notice to each artistic author under this

11 paragraph shall contain a specific date, not earlier than

12 30 days after the date of such notice, by which the individ13 ual so notified shall respond in accordance with subpara14 graph (A)(ii). Failure of the artistic author or the appro15 priate professional guild to respond within the time period

16 specified in the notice shall relieve the distributor or net17 work of all liability under subparagraph (A).

18 ‘‘(D) The requirements of this paragraph for an ex19 hibitor shall be limited to—

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

21 distributing all labels required under this section in

22 their entirety that are included with or distributed

23 by the network or distributor of the motion picture;

24 and
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1 ‘‘(ii) including or affixing a label described in

2 paragraphs (6) and (8) on a materially altered mo3 tion picture for any material alterations performed

4 by the exhibitor to which any artistic author has ob5 jected under subparagraph (A)(iii).

6 ‘‘(E)(i) The provisions of this paragraph shall apply

7 with respect to motion pictures intended for home use

8 through either retail purchase or rental, except that no

9 requirement imposed under this paragraph shall apply to

10 a motion picture which has been packaged for distribution

11 to retail providers before the effective date of this sub12 section.

13 ‘‘(ii) The obligations under this paragraph of a retail

14 provider of motion pictures intended for home use shall

15 be limited to including or distributing all labels required

16 under this paragraph in their entirety that are affixed or

17 included by a distributor or network.

18 ‘‘(F) There shall be no consideration in excess of one

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

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

21 subsection.

22 ‘‘(2)(A) Any artistic author of a motion picture that

23 is exploited within the United States who believes he or

24 she is or is likely to be damaged by a violation of this

25 subsection may bring a civil action for appropriate relief,
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1 as provided in this paragraph, on account of such viola2 tion, without regard to the nationality or domicile of the

3 artistic author.

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

5 court shall have power to grant injunctions, according to

6 the principles of equity and upon such terms as the court

7 deems reasonable, to prevent the violation of this sub8 section. Any such injunction may include a provision di9 recting the defendant to file with the court and serve on

10 the plaintiff, within 30 days after the service on the de11 fendant of such injunction, or such extended period as the

12 court may direct, a report in writing under oath setting

13 forth in detail the manner and form in which the defend14 ant has complied with the injunction. Any such injunction

15 granted upon hearing, after notice to the defendant, by

16 any district court of the United States—

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

18 such injunction is granted anywhere in the United

19 States where they may be found; and

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

21 proceedings to punish for contempt, or otherwise, by

22 the court by which such injunction was granted, or

23 by any other United States district court in whose

24 jurisdiction the defendant may be found.
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1 ‘‘(ii) When a violation of any right of an artistic au2 thor is established in any civil action arising under this

3 subsection, the plaintiff shall be entitled to the remedies

4 provided under section 35(a).

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

6 court may order that all film packaging of a materially

7 altered motion picture (including film packages of motion

8 pictures intended for home use through either retail pur9 chase or rental) that is the subject of the violation shall

10 be delivered up and destroyed.

11 ‘‘(C) No action shall be maintained under this para12 graph unless—

13 ‘‘(i) the action is commenced within 1 year

14 after the right of action accrues; and

15 ‘‘(ii) if brought by an artistic author designee,

16 the action is commenced within the term of copy17 right of the motion picture.

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

19 common law or statutes of any State respecting the mate20 rial alteration of motion pictures are preempted by this

21 subsection.

22 ‘‘(4) To facilitate the location of a potentially ag23 grieved party, each artistic author of a motion picture may

24 notify the copyright owner of the motion picture or any

25 appropriate professional guild. The professional guilds
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1 may each maintain a Professional Guild Registry includ2 ing the names and addresses of artistic authors so notify3 ing them and may make available information contained

4 in a Professional Guild Registry in order to facilitate the

5 location of any artistic author for purposes of paragraph

6 (1)(A). No cause of action shall accrue against any profes7 sional guild for failure to create or maintain a Professional

8 Guild Registry or for any failure to provide information

9 pursuant to paragraph (1)(A)(i).

10 ‘‘(5) As used in this subsection—

11 ‘‘(A) the term ‘artistic author’ means—

12 ‘‘(i) the principal director and principal

13 screenwriter of a motion picture and, to the ex14 tent a motion picture is colorized or its photo15 graphic images materially altered, the principal

16 cinematographer of the motion picture; or

17 ‘‘(ii) the designee of an individual de18 scribed in clause (i), if the designation is made

19 in writing and signed by the principal;

20 ‘‘(B) the term ‘colorize’ means to add color, by

21 whatever means, to a motion picture originally made

22 in black and white, and the term ‘colorization’

23 means the act of colorizing;

24 ‘‘(C) the term ‘distributor’—
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1 ‘‘(i) means any person, vendor, or syn2 dicator who engages in the wholesale distribu3 tion of motion pictures to any exhibitor, net4 work, retail provider, or other person who pub5 licly performs motion pictures by means of any

6 technology, and

7 ‘‘(ii) does not include laboratories or other

8 providers of technical services to the motion pic9 ture, video, or television industry;

10 ‘‘(D) the term ‘editing’ means the purposeful or

11 accidental removal of existing material or insertion

12 of new material;

13 ‘‘(E) the term ‘exhibitor’ means any local

14 broadcast station, cable system, airline, motion pic15 ture theater, or other person that publicly performs

16 a motion picture by means of any technology;

17 ‘‘(F) the term ‘exploit’ means to exhibit publicly

18 or offer to the public through sale or lease, and the

19 term ‘exploitation’ means the act of exploiting;

20 ‘‘(G) the term ‘film’ or ‘motion picture’

21 means—

22 ‘‘(i) a theatrical motion picture, after its

23 publication, of 60 minutes duration or greater,

24 intended for exhibition, public performance,

25 public sale or lease, and
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1 ‘‘(ii) does not include episodic television

2 programs of less than 60 minutes duration (ex3 clusive of commercials), motion pictures pre4 pared for private commercial or industrial pur5 poses, or advertisements;

6 ‘‘(H) the term ‘lexiconning’ means altering the

7 sound track of a motion picture to conform the

8 speed of the vocal or musical portion of the motion

9 picture to the visual images of the motion picture,

10 in a case in which the motion picture has been the

11 subject of time compression or expansion;

12 ‘‘(I) the terms ‘materially alter’ and ‘material

13 alteration’—

14 ‘‘(i) refer to any change made to a motion

15 picture;

16 ‘‘(ii) include, but are not limited to, the

17 processes of colorization, lexiconning, time com18 pression or expansion, panning and scanning,

19 and editing; and

20 ‘‘(iii) do not include insertions for commer21 cial breaks or public service announcements, ed22 iting to comply with the requirements of the

23 Federal Communications Commission (in this

24 subparagraph referred to as the ‘FCC’), trans25 fer of film to videotape or any other secondary
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1 media preparation of a motion picture for for2 eign distribution to the extent that subtitling

3 and editing are limited to those alterations

4 made under foreign standards which are no

5 more stringent than existing FCC standards, or

6 activities the purpose of which is the restoration

7 of the motion picture to its original version;

8 ‘‘(J) the term ‘network’ means any person who

9 distributes motion pictures to broadcasting stations

10 or cable systems on a regional or national basis for

11 public performance on an interconnected basis;

12 ‘‘(K) the term ‘panning and scanning’ means

13 the process by which a motion picture, composed for

14 viewing on theater screens, is adapted for viewing on

15 television screens by modification of the ratio of

16 width to height of the motion picture and the selec17 tion, by a person other than the principal director of

18 the motion picture, of some portion of the entire pic19 ture for viewing;

20 ‘‘(L) the term ‘professional guild’ means—

21 ‘‘(i) in the case of directors, the Directors

22 Guild of America (DGA);

23 ‘‘(ii) in the case of screenwriters, the Writ24 ers Guild of America–West (WGA–W) and the

25 Writers Guild of America–East (WGA–E); and
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1 ‘‘(iii) in the case of cinematographers, the

2 International Photographers Guild (IPG), and

3 the American Society of Cinematographers

4 (ASC);

5 ‘‘(M) the term ‘Professional Guild Registry’

6 means a list of names and addresses of artistic au7 thors that is readily available from the files of a pro8 fessional guild;

9 ‘‘(N) the term ‘publication’ means, with respect

10 to a motion picture, the first paid public exhibition

11 of the work other than previews, trial runs, and fes12 tivals;

13 ‘‘(O) the term ‘retail provider’ means the pro14 prietor of a retail outlet that sells or leases motion

15 pictures for home use;

16 ‘‘(P) the term ‘secondary media’ means any me17 dium, including, but not limited to, video cassette or

18 video disc, other than television broadcast or theat19 rical release, for use on which motion pictures are

20 sold, leased, or distributed to the public;

21 ‘‘(Q) the term ‘syndicator’ means any person

22 who distributes a motion picture to a broadcast tele23 vision station, cable television system, or any other

24 means of distribution by which programming is de25 livered to television viewers;
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1 ‘‘(R) the terms ‘time compression’ and ‘time ex2 pansion’ mean the alteration of the speed of a mo3 tion picture or a portion thereof with the result of

4 shortening or lengthening the running time of the

5 motion picture; and

6 ‘‘(S) the term ‘vendor’ means the wholesaler or

7 packager of a motion picture which is intended for

8 wholesale distribution to retail providers.

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

10 motion picture intended for public performance or home

11 use shall consist of a panel card immediately preceding

12 the commencement of the motion picture, which bears one

13 or more of the following statements, as appropriate, in leg14 ible type and displayed on a conspicuous and readable

15 basis:

16 ‘THIS FILM IS NOT THE VERSION ORIGI17 NALLY RELEASED. lll mins. and lll secs.

18 have been cut [or, if appropriate, added]. The director,

19 lllllllll llllllllll, and

20 screenwriter, lllll lllll, object because this

21 alteration changes the narrative and/or characterization.

22 It has (also) been panned and scanned. The director and

23 cinematographer, lllll lllll, object be24 cause this alteration removes visual information and

25 changes the composition of the images. It has (also) been
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1 colorized. Colors have been added by computer to the

2 original black and white images. The director and cine3 matographer object to this alteration because it eliminates

4 the black and white photography and changes the photo5 graphic images of the actors. It has (also) been electroni6 cally speeded up (or slowed down). The director objects

7 because this alteration changes the pace of the perform8 ances.’

9 ‘‘(B) A label for a motion picture that has been mate10 rially altered in a manner not described by any of the label

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

12 statement similar in form and substance to those set forth

13 in subparagraph (A) which accurately describes the mate14 rial alteration and the objection of the artistic author.

15 ‘‘(7) A label for a motion picture which has been ma16 terially altered in more than one manner, or of which an

17 individual served as more than one artistic author, need

18 only state the name of the artistic author once, in the first

19 objection of the artistic author so listed. In addition, a

20 label for a motion picture which has been materially al21 tered in more than one manner need only state once, at

22 the beginning of the label: ‘THIS FILM IS NOT THE

23 VERSION ORIGINALLY RELEASED.’.

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

25 motion picture shall consist of—
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1 ‘‘(A) an area of a rectangle on the front of the

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

3 the statements listed in paragraph (6) in a conspicu4 ous and legible type in contrast by typography, lay5 out, or color with other printed matter on the pack6 age; and

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

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

9 the statements listed in paragraph (6) in a conspicu10 ous and legible type in contrast by typography, lay11 out, or color with other printed matter on the pack12 age.

13 ‘‘(9) The questionnaire required under paragraph

14 (1)(A)(iii) shall consist of the following statement and re15 lated questions:

16 ‘In order to conform [insert name of motion

17 picture], of which you are an ‘‘artistic author’’, to

18 ancillary media such as television, airline exhibition,

19 video cassettes, video discs, or any other media, do

20 you object to:

21 ‘(a) Editing (purposeful or accidental deletion or ad22 dition of program material)?

23 Yesllllll Nolllllll

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

25 Yesllllll Nolllllll
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1 ‘(c) Panning and scanning?

2 Yesllllll Nolllllll

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

4 made in black and white?

5 Yesllllll Nolllllll’.’’

6 SEC. 4. EFFECTIVE DATE.

7 This Act and the amendments made by this Act shall

8 take effect 180 days after the date of the enactment of

9 this Act.

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