I just found out that while I slept, the Australian Office of Film and Literature Classification has informed the Melbourne Underground Film Festival that they will not be given exemptions for about a half-dozen films, including ASHLEY AND KISHA: FINDING THE RIGHT FIT.

Last year our film DAMON AND HUNTER: DOING IT TOGETHER had its world premiere at MUFF, and went on to be named Best Documentary. From there it was invited to show at two screenings at QueerDOC Gay and Lesbian Film Documentary Film Festival in Sydney, but the festival was threatened by the OFLC with both a fine and jail time, and QueerDOC elected not to show our film.

More news when I have more news.

Last week, one of our best friends in Australia, OutDVD received notice from the Australian Attorney General’s Office demanding that they remove all unclassified DVDs from their retail and rental inventory.

Unclassified material makes up two thirds of OutDVD’s stock, and includes DVDs such as the third season of the critically acclaimed Showtime series THE L WORD, our own ASHLEY AND KISHA: FINDING THE RIGHT FIT, and many other titles of interest to Australia’s gay and lesbian community.

Please take a moment and sign OutDVD’s online petition to the AG’s office.

The Ninth Circuit Court of Appeals has just rejected, in a two to one decision, a first amendment argument by a police officer who was fired from his job after it became known that he and his wife operated a website that featured images of them naked, having sex with each other, and with others. The reasoning of the court is that, while the officer does have a constitutional right to run his website, he does not have a constitutional right to keep his job.

This is a similar line of reasoning to the Alabama dildo case. In that case the court found that while the right to privacy protected an Alabaman’s right to own a dildo, there was no constitutional right to sell a dildo. This failure-to-find-protection angle is a common gambit, used by courts as a facile end-around established rights, and is precisely what the framers who opposed the Bill of Rights feared. You won’t find the right to sell a dildo enumerated in the Constitution or Bill of Rights any more than you’ll find the right to sell blue shirts.

—-

A few years ago I was approached by a couple in their mid-forties. They had seen our first two films, and she especially was keen on making a film with us. She had a story she wanted to tell.

The were married, the second time for both of them. The circumstances of his first marriage were unremarkable, but I still recall her narrative vividly.

She had married for the first time in her early twenties, to a man she with whom she was deeply in love. Their life together was comfortable and affectionate, but as the years went by, she grew to feel there was something missing. Their relationship cooled and after ten years she and her first husband divorced.

A few years later she met the man who was to become her second husband. Their courtship was passionate and physical, but they did not have sex until they became engaged to marry. In bed with her second husband-to-be, she found at least part of what had been missing in her first marriage – she had her first orgasm.

Eight years later, she did not hold any ill-will towards her first husband. She had been no less ignorant then he, but the fact remained that she had experience only limited sexual fulfillment in her first marriage, and with the benefit of hindsight, she was able to see how the lack of fulfillment contributed to the demise of the marriage.

The reason she was so keen on making a film with us is that she want to give testimony to the importance of sexual pleasure. She especially wanted other women to hear her story, to hear about how finding sexual pleasure and contentedness nourished both herself and her relationship.

Her husband was no less interested. He took pleasure in having been his wife’s guide and facilitator in her journey to sexual fulfillment. He was unabashed in his affection for her, and proud of the lusty sex life the two of them enjoyed.

But there was a problem.

He was a police officer; a detective actually. He wasn’t concerned what some people might think, but he was concerned about his job security. They were not in a position financially to easily endure the loss of his job, even temporarily; and as they balanced that fact against their desire to tell their story, the need to make their house payment and have health insurance won out.

—–

Decisions in First Amendment cases often involve concern over the “chilling effect” that suppression of unpopular or offensive speech – speech that arguably contributes nothing to the public discourse – will have on unpopular or offensive speech that is necessary and vital to the intellectual discourse of a pluralistic society.

I can’t comment on what “socially redeeming value*” the Dibles’ website might have, but I can comment on the effect of knowing that a civil servant can be fired for expressing unpopular ideas, even ideas that have no bearing or relationship to the that person’s work. If the Chandler Police Department can fire Officer Dible for making and appearing in an unpopular website, what’s to stop them from firing an officer who appears in an unpopular play, or writes an unpopular book? A politicized civil service is as dangerous to a liberal democracy as a politicized military, but more insidious.

Perhaps the Dible’s website has no more value to the intellectual discourse of our nation than as a baroque expression of the freedoms upon which this nation was founded. In measuring these freedom’s against the concern over what harm this website might do to the Chandler Police Department, and the deciding that sniggering and sneering count for more than Officer Dible’s First Amendment rights, the Ninth court has made it harder for me to make my films. I feel chill in the air, a chill that has nothing to do with the changing of the season.

*I use this particular phrase because this was the standard for obscenity set in Roth v. The United States, later replaced in Miller v. California with a three-pronged test, aka The Miller Test. But it should be noted that nothing on Officer Dible’s website was alleged to even remotely rise to the threshold set for obscenity in Miller.

A nice mention by Steve Erickson on Nerve’s indie film blog, Screengrab,about our recent experience with the MPAA’s advertising department. Writes Erik:

“…He recently decided to get an MPAA rating for his film Marie and Jack: A Hardcore Love Story. As expected, he got an NC-17 (not so dreaded, in his case), but the real twist came when he discovered that the MPAA now had to approve his DVD artwork… While many mainstream filmmakers start foaming at the mouth when the MPAA’s name is mentioned, Comstock describes his experiences with a surprising level of respect.”

I can understand why a producer could feel vexed about their dealings with MPAA.

(more…)

The poster for LAST TANGO IN PARIS, including X-rating symbol
(click to enlarge)

Fad23 is absolutely right. The X-rating was a part of the MPAA four-tier system first introduced in 1968.

But unlike G, PG, and R, X was not a trademarked MPAA property. The X rating was conceived of by the MPAA as a rating meaning ‘not suitable for children’ that could be and was self-applied by producers who did not feel their film needed and/or warranted a less restrictive rating.

But there have always been films deemed “not suitable for children,” and long before X or NC-17 there was an “adults only” classification, given to films like DUAL IN THE SUN, BABY DOLL, SUDDENLY LAST SUMMER, TO EACH HIS OWN and others that, by the standards of the day, were deemed to be inappropriate for children.

But in the 1950’s “foreign films”, made outside the (self imposed) Hayes Code that governed Hollywood production, began to make their way into the US. These films frequently addressed issues of sexuality in a manner that was far more frank than the coded subtexualized language required to address adult themes within the strictures of the code.

Poster for THE LOVERS, the film at the center of Jacobellis v. Ohio.

The 1950s also saw the breakup of the studio system, particularly the vertical integration of production, distribution and exhibition, which considerably loosened control on what theaters could and would screen, and by the 1960s cultural mores had shifted to the point that the old production code was becoming increasingly irrelevant. In response code was revised in 1966, and in 1968 the production code was abandoned in favor G,PG, R and X system (originally G, M, R, X.)

But it’s important to remember that from the start, the X-rating was always intended as a rating that could be self-applied by producers, and unlike G, PG, and R, the MPAA maintained no control over the X rating as a trademarked property. It’s also important to remember that when the system was introduce “X” had no special stigma, any more than the previous rating of Adults Only rating give to DUEL IN THE SUN, et al.

Around the same time, there were court decisions established the legality of both producing films depicting actual sex acts and showing them in theaters. This new legal climate gave rise to the open production and theatrical screening of films featuring depictions of actual sex acts. Because X, which meant “adults only” was a self-applied rating, producers of these films were free to give their films an X-rating with or without the MPAAs approval.

At first this was done to give these sexually explicit films an air of legitimacy, but with no control over who could or could not use the X-rating it quickly became associated with very low-budget products concerned with little more than creating a vehicle for the presentation of explicit sex. It was at during this time that films like MIDNIGHT COWBOY, A CLOCKWORK ORANGE, and others moved to have their ratings changed from X to R. Sometimes this was done by petitioning the MPAA to re-evaluate the rating, sometimes by simply editing out the “offending material”.

The stigma of the X-rating was further deepened when some producers began using XXX an gimmick to communicate that their films were especially raw or filled with sex, as opposed to merely X-rated, which could and did refer to films (such as MIDNIGHT COWBOY or A CLOCKWORK ORANGE,) that were unsuitable for children, but contained little, if any, explicit sex or nudity.

42nd Street, circa 1975 (click to enlarge)

This was also a time when many urban areas were in decline, and many theaters were turning to sexually explicit movies to draw audiences to theaters that would otherwise have been empty (think Times Square in the 70s.) In response, theater landlords began to write “no x-rated films” into their leases. Also theater chains enforced “no X” policies on their fanchiseese, and many newspapers had “no X” advertising policies.

Now remember, R means a film may be suitable for suitable for children when accompanied by an adult; X meant a film is not suitable for children at all. The concept of an “adults only film”, a concept that had existed from the beginning of commercial cinema, suddenly collapsed. It became impossible to advertise or exhibit a film that that was not suitable for children. For a film to be able to advertise in most newspapers, or play in most theaters, it had to have an R-rating, and that meant the omission of any element–sex, violence, language, drug use–that was not suitable viewing for children.

This collapse was not some grand conspiracy on the part of the MPAA to put an end to films for grown-ups. It was the result of the collision of changes to the MPAA ratings system, court decisions that allowed the production and public exhibition of films featuring depictions of actual sex acts, demographic and social changes that altered theater going habits, and the odd quirk that the MPAA had allowed their X-rating to be “public property”.

As a result, the X-rating was more or less abandoned by all parties. Hollywood producers weren’t going to invest millions of dollars in a film that couldn’t be advertised or screened in legitimate venues, and restricted their “adult” efforts to R-rated films. And producers of sexually explicit film and videos preferred to label their product as XXX, rather than the seemingly milder X. According to their own website, no films were rated X by the MPAA during the entire decade of the 1980s, (and virtually none in the 1970s.)

What that means is that for 20 years, all films produced by the Hollywood establishment that were produced within the confines of what could conceivably be shown to children. Moviemaking for grown-ups died.

Poster for HENRY AND JUNE, 1990, NC-17

In 1990 the MPAA attempted to reestablish a “legitimate” adults-only movie-making space with introduction of the NC-17 rating. Not wanting to repeat their mistake with the X-rating, the NC-17 is a trademarked property that can only be used if you submit your film and advertising to the MPAA process. But it was too little too late.

Not understanding the history of the X rating, and convinced that the MPAA was simply trying to put a new name on porn, most exhibition and advertising venues simply re-wrote their rules to prohibit the exhibition and advertising of NC-17 films. To this day some of America’s largest theater chains will not exhibit NC-17 movies, and many of America’s largest media outlets will not accept adverting for NC-17 movies. A few NC-17 art-house films were made, mostly in the nineties, and in 1995 MGM/UA gambled (and lost) on the NC-17 rating with the laughably bad big budget feature SHOWGIRLS. But in this decade (2000s), only a small handful of films have been rated NC-17, (including our own MARIE AND JACK: A HARDCORE LOVE STORY.)

Now lest I be seen as an apologist for the MPAA, I think they were slow to understand what was happening to the X-rating, slow to take action, (nearly 20 years!) and when they did finally introduce the NC-17 rating, they did “drop the ball”. More over, as far as I can tell, they’ve done precious little since then to correct their mistake.

These days there’s very little movie-making that is truly for grown-ups. Even “serious films” that have no interest in attracting a teen audience have to be made “suitable for children” to avoid the dreaded NC-17, so even “realistic adult dramas” have an odd lack of candor in the way that sex is depicted visually.

The situations are adult, the language may be frank, but the sex and nudity is strangely demure. Sex is always under the covers, or with the lights low, or the camera-angles are cheated just enough to the left or the right to preserve the all important R-rating.

As a result we have a cinematic landscape where every other aspect of the human experience is rendered in vivid detail (with often a special fetishization of violence,) but the simple truth of what people look like naked, or what people look like when they give themselves over to sexual desire remains largely unexplored by filmmakers, and remains largely unseen by audiences.

Production still from MARIE AND JACK: A HARDCORE LOVE STORY, 2002, NC-17

Back in February we submitted our first film, MARIE AND JACK: A HARDCORE LOVE STORY to the Motion Picture Association of America (The MPAA). Since MARIE AND JACK is a film about grown-up ideas, with grown-up imagery, intended for a grown-up audience, we had every expectation that the film would receive (the dreaded) NC-17 rating. From MPAA.org:

“An NC-17 rated motion picture is one that, in the view of the Rating Board, most parents would consider patently too adult for their children 17 and under. No children will be admitted. NC-17 does not mean “obscene” or “pornographic” in the common or legal meaning of those words, and should not be construed as a negative judgment in any sense. The rating simply signals that the content is appropriate only for an adult audience. An NC-17 rating can be based on violence, sex, aberrational behavior, drug abuse or any other element that most parents would consider too strong and therefore off-limits for viewing by their children.”

(You can read rest the MPAA’s explanation of their rating system on the MPAA website.)

We submitted the film back in February because we knew that sometime this Summer we’d need to make another run (the fifth!) of MARIE AND JACK DVDs, and we also knew that we wanted to update the cover so that it was more inline with the look of our more recent titles (The M&J design was mine, the more recent covers were designed by Peggy. You can guess at which ones I like better.)

The idea was since we were going to be redesigning/reprinting the cover anyway, why not submit the film and see if having an MPAA rating (even the dreaded NC-17 rating) changed the marketablity of our film.

Would the NC-17 rating and MPAA dingbat make our work seem more legitimate? Or would the MPAA rating make people think they were getting a watered-down, censored version of Marie and JACK. (Point of fact, the MPAA didn’t ask us to change a frame, and even said MARIE AND JACK was just the sort of film the NC-17 rating was made for.)

What the MPAA did ask us to change was the cover, both text and images, so that the packaging would be “suitable for all viewers,” and while you and I may disagree with the MPAA about what is or is not suitable for all viewers, it not your or my opinion that counts; it’s theirs. That’s the bargain you make if you want to be in their club. (Actually, I think the MPAA is best thought of as being like a Chamber of Commerce, or local Better Business Bureau. No one forces a merchant to join the Better Business Bureau, but if you do join, they rules they expect you to follow.)

The original re-design of the MARIE AND JACK cover looked like this:

(You can click on it for a larger version.)

The front cover has been redesigned to be in keeping with the look that Peggy developed for the series. The back cover is unchanged from the previous version.

The MPAA had two objections. To begin with, unambiguous nudity is not considered “suitable for all viewers” so the three photos on the upper left side were unacceptable. One solution suggested was that the photos could be cropped, or shadows could be airbrushed on to them sufficient that a reasonable person could say it was not clear whether or not the people were naked.

The MPAA also objected to the word “orgasms” in the quote from Penthouse magazine, but suggested that climaxes could be used in its place. I’ll admit this made my head spin a little, but the MPAA representative’s explanation was that while most people would probably consider our use of the word tasteful and appropriate, if they let us use the word “orgasm” on our cover, then someone else would want to splash it all over the cover in giant pink letters, and that the MPAA wanted, as much as is possible, to avoid making subjective judgments about what was and was not permissible. No doubt this was a reference to the 1997 film ORGAZMO.

The same explanation was given for their request that the back cover photos be altered: yes, most people would find our use of the nudity completely appropriate, but if they allowed unambiguous nudity on the cover of MARIE AND JACK then some other producer would want the same for their DVD packaging, claiming that their use was also “appropriate,” even if most people would find it objectionable.

The MPAA did not object to the close-up of Jack fingering Marie’s clit while they fucked in the spoon position, complete with his cock half inside her pussy that we used to illustrate the “picture in a picture” version of the un-edited, two camera love-scene offered on the DVD. Whether this is because they thought the image was it was sufficiently ambiguous, or because they simply didn’t know what they were looking at, I don’t know.

So here’s the cover the MPAA approved:

(Again, click for a larger version.)

“Orgasms” has been changed to “climaxes”, and the three back photos have been cropped or simply replace with photos that have sufficient degree of ambiguity as to where or not Marie and Jack are clothed. The close-up was removed altogether – maybe they missed it, maybe they didn’t know what they were looking at, maybe they knew, but thought a close-up of clit stroking is “suitable for all viewers” – I don’t know. Whatever the case, I don’t think it’s all-ages appropriate, that’s the standard, so we took it out. This is what the letter you get from the MPAA looks like:

The people at the MPAA have all been very friendly, and I have to admit, seeing that very distinctive MPAA dingbat on our movie is pretty nifty. But the question remains: will going through this process help us make more money? I don’t know. I think the new cover design will sell better, but I don’t know if the NC-17 is going to make much of a difference one way or the other.

As it stands now, most places that won’t show unrated films won’t show NC-17 films either. Most places that won’t sell unrated DVDs won’t sell NC-17 rated films either. In a surprisingly candid conversation with an MPAA rep last Winter, he told me “we dropped the ball when we introduced the NC-17 rating. We didn’t explain or promote it the way we should have.”

As a result, the NC-17 is sort of a no-man’s land. The only thing you get for accepting an NC-17 rating from the MPAA (aside from the chance to write the MPAA a hefty check,) is the obligation to submit your advertising and packaging for their approval.

No doubt that’s why films like 9 SONGS and SHORTBUS decide to go out unrated; not (necessarily) because the MPAA advertisement approval process is so odious, but if the NC-17 rating isn’t going to help the movie make money, who needs the hassle? In fact, the advertising and packaging on unrated movies with sexual theme tend to emphasize that they the unrated, uncensored, uncut version, even when no other version exists. In the art-house world “Unrated” has come to connote uncensored and uncompromised filmmaking.

So then why did we do it?

Well if nothing else, it’s given us a chance to experience the MPAA process, not as observers, not as critics or pundits, but as participants. Having been run through the mandatory ratings processes in other countries, I have to say I much prefer dealing with the MPAA, especially the fact that it’s voluntary. We have four other films, each unrated, each completely legal to sell or screen, and they’re doing just fine.

I’m not thrilled about the changes to the MARIE AND JACK cover, but neither am I broken-hearted. I understand why the MPAA insists on maintaining some sort of control for where and how their trademarks appear, we do the same thing here at Comstock Films. There are venues available to people who have different ideas about is appropriate or what is in good taste, or even whether or not that’s a relevant question.

In the bigger picture it’s about continuing to take risks, continuing to poke around in the places other people overlook to see if we can find opportunities. Most producers consider the NC-17 rating a stigma, a scarlet letter, but who knows, maybe (maybe) we can make it a badge of honor. We’ll play by the MPAA’s rules with MARIE AND JACK and see if it helps us. If it does, we’ll consider submitting our other films. If it doesn’t, we can always surrender the rating and go back to what we’re already doing.

Or hey wait! Maybe we’ll even redesign our packaging and make sure the words “unrated,” “uncut,” and “uncensored” appear in the biggest, pinkest letters possible!

If you’re not a registered user with your super-secret “adult titles” search enabled, you can’t.

You can find 9 SONGS, a film about a fictional pair of rock-show going, coke-snorting lovers, that famously features explicit footage of felatio, cunnilingus, coitus, and even a pop-shot.

You can find PLAGUES AND PLEASURES ON THE SALTON SEA, the film that shared the Best Documentary prize with DAMON AND HUNTER at the 2006 Melbourne Underground Film Festival.

You can even find MARIE AND JACK: A HARDCORE LOVE STORY, our first erotic documentary title.

But you can’t find DAMON AND HUNTER: DOING IT TOGETHER.

Says IMDB:

“The IMDb contains over 400,000 different movie titles. The aim of the database is to cover as many titles and genres as possible. As a result, some of these titles contain words or expressions that some of our users may find inappropriate and some movies themselves may also fall into this category. To provide some level of control for those of a sensitive nature some adult titles have been made searchable only by users who are registered with the IMDb and have requested access to this material.”

“Inappropriate.” Apparently an intimate film about two young men in love, and loving one another is “inappropriate.”

Caligola,, Bob Guccione’s notorious bait and switch production isn’t “inappropriate.”

Neither is Love Camp 7, the infamous Nazi exploitation flick. (From the IMDB listing, “The film contains numerous scenes of women prisoners being abused, tortured and humiliated by their Nazi captors. Indeed the whole purpose of the work is to invite male viewers to relish the spectacle of naked women being humiliated for their titillation. LOVE CAMP 7 contains both eroticised depictions of sexual violence and repeated association of sex with restraint, pain, and humiliation.”)

Apparently Pink Flamingos, which (among other things) features an actor eating dog shit, isn’t “inappropriate” either.

But according to IMDB, DAMON AND HUNTER, an award-winning documentary film featuring a consentual love-scene between committed lovers is “inappropriate,” and viewers with more delicate sensiblities must be protected from the pain they might feel should they accidentally stumble across DAMON AND HUNTER in the course of browsing through IMDB.

We’ve been here before.

Last Summer, the Australian OFLC “protected” the good people of Sydney from accidently stumbling into the queerDOC Gay and Lesbian Film Festival and being exposed to DAMON & HUNTER.

Last Fall, a printer in North Carolina refused to print the above poster for DAMON & HUNTER, lest anyone in their plant be exposed to the image of two men about to kiss.

IMDB’s been here before too. Last January, IMDB hid John Cameron Mitchell’s SHORTBUS in the section for “inappropriate” films. (An uproar ensued across the indie film world prompting IMDB to move SHORTBUS from the “inappropriate” section to the “appropriate” section” by the end of the day.)

Of course compared to us SHORTBUS and ThinkFilm are a marketing juggernaut. John Cameron Mitchell’s been quoted in a hundred places pronouncing that SHORTBUS isn’t arrousing and isn’t porn, where I’m quite proud of the fact that (at least for some people) DAMON AND HUNTER is quite arousing, and I’m ambivalent about the p-word. (Short version, it tells you more about the person saying it than it does about the film they’re applying it to.)

I’m also ambivelent about trying to get IMDB to change the listing. Not because I’m happy to have DAMON & HUNTER hidden away, but because I know that trying to get IMDB to change it will take a lot of time and effort. Comstock Films is me and my wife Peggy, there’s only so much of us to go around. And after financing, producing, editing, and marketing these films, there’s not always that much left over for fighting battles with people like the OFLC or IMDB. Sometimes I feel a little ground down,

What I am not ambivalent about is that Damon and Hunter: Doing it Together is not “inappropriate” film, and if “sensitive” IMDB users don’t need to be protected from stumbling across listings for CALIGOLA, LOVE CAMP 7, or PINK FLAMINGOS, they most certainly don’t need to be “protected” from accidentally seeing the listing for DAMON & HUNTER.

UPDATE

You can also find HONEY AND BUNNY, which played along side DAMON & HUNTER at the New York CineKink Film Festival, and features close-up shot of a half-eaten peach lodged in a woman’s vagina, as well as FILTHY FOOD, which also played with D&H at the CineKink Film Festival, and features close-up footage of a woman performing “oral sex” on a variety of foods in the place of penises, vulvas, and breasts.

I’ve just finished reading THE CONVERSATIONS: WALTER MURCH AND THE ART OF FILM EDITING. Murch is wonderfully eloquent in explaining the role that chance or serendipity can play in making films, without coming off as some sort of flake who leaves things to chance because he’s not creative enough or craftsmanly enough to control his projects.

Well thanks to the serendipitous combination of Violet Blue’s writing, The Chronical’s mainstream status, and the ever mysterious Googlebot, I’ve learned about things today that I never would have imagined.

Ladies and gentlemen, I give you the Filtering DVD Player

The combination of Violet’s copy, mainstream placement, and the Googlebot is some sort of idiot savant uber algorythm for data-mining for everything that is wrong with how our culture thinks about sex. I just called Purity Solutions to ask how I could submit my films to become a part of their filtered films database.

No one was there, so I left a message.

“The erotically charged plot is not meant to arouse the audience-No one got a hard-on watching this film.” — Film Director John Cameron Mitchell after the Cannes premiere of SHORTBUS

Well maybe not at Cannes, but it looks like maybe someone over imdb.com got a boner.

“I have been a photographer my entire adult life. In the name of bearing witness to the human condition I’ve documented unspeakable suffering, violence, and death; and for that I’ve been praised as a courageous witness. When I review the scope of people, places and events that have passed before my lens, I am unable to comprehend the censor’s rationale for “protecting” adults from photographic images of sexuality.”

Along with being a photographer, I am also an ambivalent agnostic. Today is one of those days when I lean towards a suspicion that there is indeed a divine being who (for reasons that utterly defy my comprehension) takes an intimate interest my affairs.

What’s special about today? Today we got our first order from Rwanda.