AZ Rules for Captioning

My opinion of Arizona has increased exponentially this week.  The Ninth Circuit Court of Appeals has overturned a 2008 ruling by the lower court, which now requires that movie theaters provide captioning for D/deaf/hard-of-hearing patrons and descriptive audio for blind patrons, under the auspices of the Americans with Disabilities Act.  This is the FIRST TIME a court has ruled in favor of captioning; there have been several cases where the movie theaters settled and agreed to provide captioning on a small percentage of their screens, but never before has a judge ruled in the plaintiffs’ favor.

The judge in the 2008 ruling, Arizona v. Harkins, said that because “theaters offer motion pictures to the public in a specific format which combines audio and visual elements,” providing captions and audio descriptions would require a movie theater to “alter the form in which it normally provides services,” meaning that closed captions would “change audio elements into a visual format” and descriptions would “change visual elements into an audio format.”

So why have judges always ruled against captioning in the past?  And why hasn’t it been required by the ADA?  Longtime captioning advocate Nancy Ellis explains it best, 

“Movie theatre complexes are different because while the building is subject to ADA accommodation laws, what’s on the screen (or in the case of live theatre – what’s on the stage), is protected under the first amendment.  It is proprietary content. In the eyes of a motion picture studio, asking them to put captions on their films is equal to placing dots on the famous painting “The Mona Lisa” in order to make it accessible to someone who is Blind.  An exaggerated analogy, but essentially, the argument has been you can’t alter someone else’s work of art without their express permission.  In the case of live theatre, the artistic director generally decides if and where captions will go.”

But as Brandt pointed out, “There’s only one Mona Lisa.  There are thousands of copies of a movie.”  I added to that, “Of course you can’t alter the actual Mona Lisa, but why couldn’t you have a replica that is accessible to blind people?” 

I find it ridiculous to say that making something accessible just by adding captions or audio descriptions is too ‘fundamentally altering of a movie’s artistic merit.’  Would many people have gone to see Crouching Tiger, Hidden Dragon if it didn’t have English subtitles?  I highly doubt it!  Let’s be honest here:  this is all about money.  Movie theaters don’t want to pay the extra money for the captioning and descriptive technology, and they aren’t going to provide it out of the goodness of their hearts (or pocketbooks).  They’re only going to comply when they’re forced to—and they’re willing to spend money on legal battles against it, rather than just pay up front to give us captioning.

The judge in this week’s case, Alex Kozinski, had some great statements against the movie theater chain in question, Harkins.  He couldn’t understand why they would want to be “forced to do something” that they “should willingly and cheerfully and happily do.” 

Judge Kozinski pointed out that “theaters cost huge amounts of money.  A movie theater is no longer a barn with a sheet at one end and a bunch of chairs…you have all sorts of sophisticated technology, 3D viewing and so on… This seems like a drop in the bucket.” 

And, my personal favorite,

“You are going to lose eventually.  I don’t know if you are going to lose this case or not, but you are going to lose this battle in the end.  You can get out in front of it and be the good guys, or you can be dragged kicking and screaming and look like jerks.  I don’t understand why you are choosing to fight this battle.”

He called them JERKS!  I love this judge!

I have the perfect solution to this debate.  Take the movie theater owners, their lawyers, and unsympathetic judges to a movie—not a big-budget action flick; one with a lot of dialogue, like Before Sunset.  Have them wear foam earplugs, the kind used by construction workers, and give them headphones that play loud, constant static.  Then halfway through, turn the sound completely off.  Ask them how much they enjoyed the movie. 

Or, play a German movie without English subtitles, and make sure to turn the volume way down.  See how much they got out of it.  They could still see the movie, afterall, and probably figured out some words here and there.  That’s just as good as being able to fully hear and understand a movie in English, right?  Right? 

Didn’t think so.