Rating the Ratings Systems: A promotional tactic for a problematic film

Production still from BRETT AND MELANIE: BOI MEETS GIRL

Last Thursday I called the MPAA and told them that I had a new film I wanted to submit for a rating. We did this back in 2007 for our film MARIE AND JACK: A HARDCORE LOVE STORY, which to no one’s surprise garnered an NC-17 rating. What was a surprise, at least to me, is that the folks at the MPAA remembered me, and even better, remembered my film, and were excited at the prospect of my putting another film through the ratings process.

Except that this time there’s a catch…

When we submitted MARIE AND JACK there was never any doubt in my mind that it was going to get the (dreaded!) NC-17 rating. How could it not? It’s a film about a grown-up topic, made for grown-ups, and not watered down by making it “safe” for underage viewers.

There was also never any doubt that we were going to accept the rating. We weren’t going to cut the film to get an R; we weren’t going to make a stink about the MPAA trying to “kill” our film by giving it an NC-17; and we weren’t going to decline the rating, and then release the Unrated version with words like “uncut” or “uncensored” or “the version the MPAA doesn’t want you to see” plastered all over the box.

This time is going to be different.

This time we’re going to submit BRETT AND MELANIE: BOI MEETS GIRL and find out what it takes to bring BRETT AND MELANIE down from an NC-17 to an R, or maybe even a PG-13.

At the same time we’re going to try and create a YouTube TOS compliant version to serialize on YouTube. I think this part is going to be trickier because the MPAA and YouTube do things a little differently.

First of all, YouTube only has three rating, where the MPAA has five. On YouTube content is considered all-ages appropriate (or G-rated), 18+ (or NC-17) or it’s banned from YouTube. By contrast, the MPAA has G, PG, PG-13, R, and NC-17; and nothing is banned from the MPAA rating system.

Secondly, if you want a lower rating from the MPAA, they’ll give you notes on just what to cut. YouTube publishes guidelines, but it’s up to you to try and interpret them.

For example, when we put our trailer up for BILL AND DESIRE: LOVE IS TIMELESS, based on other videos I saw on YouTube I thought it was inside their guidelines, but within a couple of days, the video was TOS’d and we had a flag on our account (get two in any six month period and your account is deleted.)

When I put a talking heads only interview clip from DAMON AND HUNTER: DOING IT TOGETHER I never imagined, given the other videos roaming at large on YouTube, that it would be flagged as “inappropriate”; and for about a year I was right. Then one day I tried to show it to someone who wasn’t logged in and found out it was flagged, and only accessible to logged in users. Not surprisingly, views for the clip have fallen off.

Why are we doing this?

Because right now the big question facing artist, educators, writers and anyone else working in sexuality isn’t whether or not something is obscene, or whether something is art or pornography. That horse is dead (not surprising, considering how long and how hard people have been beating it.)

No, the big question now is who is going to be allow to express their ideas within corporately controlled systems, why ideas they are are going to be permitted to express, who is going to make those decision, and how those decisions are going to be made. Different systems serve different needs, have different processes, and yield different outcomes; and I hope by showing BRETT AND MELANIE’s journey through these processes, I can open up a discussion about ideas like censorship, community, age-appropriateness, disintermediation, gatekeepers, status, etc.

Going through this process is going to entail some additional expenses, so we’ve submitted a project to Kickstarter.com and hope we’ll have approval shortly. Those of you who remember our Hurricane Katrina fundraiser and our No On Prop 8 fundraiser know I am loathe to ask people to give money for nothing, so we’ve got some pretty nice incentives going all the way down to the $10 level. I don’t know how long Kickstarter takes to review and approve projects, but I hope it’s soon, but because I’m raring to go! I hope you are too!

UPDATE!!!

We have our project approval from Kickstarter. More details soon!

50 Years of Failure

From my odd vantage point, what I notice is than in the more than 50 years since Roth v US, wherein the Supreme Court declared that, at least in some cases, explicit photographic representation of genitals and sex acts were entitled to First Amendment protection, both sides of the pornography debate have mostly proved their impotence and incompetence.

One one side, those who would seek to reign back the proliferation of sexually explicit imagery have completely failed; and on the other side, there has been no great cinema exploring and dependent on explicit sexual imagery.

To Gail Dines and her ilk, I would like to ask: given the abject failure of you and others to stop the proliferation of sexually explicit images, have you ever, even for one moment, considered that you might be wrong in your approach?

And to porn proponents, I would ask: Where are the D.W. Griffiths? The Charlie Chapmans? The Fritz Langs? Towering geniuses of cinema appeared within a generation after became a commercially viable, but in the 50 years Roth, the various excursions into erotic cinema are a footnote at best. Where are the masters? And what are their masterpieces?

That both sides have failed so completely suggests that there are deeper currents that neither Dines, nor her adversaries have addressed, or even considered.

The Promise and Price of Living at the Mall.

Valley River Center, Eugene OR

I have been participating in a long-running discusion of Clay Shirky’s concept of Cognitive Surplus over at Alan Jacob’s Text Patterns blog.

I find Shirky’s concept both attractive and repulsive in almost equal measure. Adopting and mastering technology has been such a powerful, positive force in my life, it’s hard for me not to be optimistic about it. But at the same time, I have growing suspicion of how it’s being pitched — from powerful and useful tool, to consumer product, and now finally, almost as a religion, with questions about technology’s promise treated almost like heresy in some quarters.

Today, on a long car ride today with my fangirl wife we spend a lot of time hashing our mutual histories with tech, and speculating on where things are going.

She can pretty much re-tell Alan’s story, but Brooklyn instead of Alabama, and with IT instead of books giving her her big break from an intellectually unrealized life to being the multimedia superstar she is today (deep skills in information design/internet stuff, published author, award winning filmmaker, blah blah blah.)

Further more, she can rattle off the names of about a dozen women who have gone from fanfic to professional writers; including one who’s had her work optioned by Peter Jackson; and another half-dozen women who parleyed their involvement in the fanfic community into learning computer programing which now pays them cash money.

And although I can’t do the humble origins thing (doctor’s son, grew up in La Jolla CA), IT has been instrumental in my life too.

But.

We were at IKEA today. Both of us really like IKEA. But the more time you spend shopping there, the more you realized the #1 design consideration for *everything* IKEA sells is how much space it takes up in storage and transit. Everything else flows from this consideration, and as wide a variety of stylish, good value proposition goods as you can purchase at IKEA, every last one of them is shape by this one overriding consideration.

That’s sort of how I feel about the internet. Like IKEA, there’s a lot of stuff about it that’s a good value proposition, but there’s also this one overriding design consideration that everything else has to bend to. Yes, search is part it, but it’s just one part of it. And like when I’m shopping at IKEA, when I’m socializing, being “productive” and generally living my life on the internet, I’m (more or less at various times) aware of the way things are bent to the needs of the internet.

Also.

For all the ways my wife and I have benefited from the internet (including meeting and beginning our courtship online) I’m aware that there somethings have been massively disrupted; the topic of the moment seems to be Journalism, and where the money is going to come from for The Fourth Estate to keep doing what we need it to do in our society.

But in the last few weeks I’ve caught a wiff of something that I think bears watching.

First there was that “Who are you?” video with the congressman.

Then a financial newsletter author was convicted of fraud, despite his claim that of first amendment protection.

Then a court forced a blogger to reveal her sources, despite her claims of journalist’s privilege.

And yesterday I read the Ninth Circuit allowed a lawsuit to go forward over internet criticism of competitor. The court ruled that because the critic had a financial interest, their criticism was “commercial speech” and was not entitled to the same degree of protection afforded non-commercial expression.

I’ve no doubt that some of what Clay Shirky predicts will come true. More people playing, creating, thinking, interacting is liable to bear fruit we call can enjoy.

But my own feeling is that our traditional understanding of the First Amendment cannot possibly survive the explosion of information being created. We cannot possibly extend journalistic privilege to every person carrying a handicam, every person publishing a blog or a newsletter. Nor can we burden the courts with every claim of such privilege (Read Jenkins v Georgia, then ask yourself why what is permitted in sexually explicit speech has so vastly overrun what the court made fairly explicitly clear was protected and unprotected.)

Some twenty years ago I got arrested in a mail for not leaving a Prop 9 petition table. Reflecting on it a couple of years ago, I wrote the following:

It turns out that at the same time I was having my little adventure in Eugene there were some interesting court cases trying to figure out what can and can’t get you kicked out of a mall. Stealing will definitely get you kicked out. Wearing a “Dick Cheney is a War Criminal” t-shirt might get you kicked out in some places (probably not Eugene), but you’d probably have a case if you decided sue.

Politely disrupting someone’s mall-sanctioned policitical activities? Well I don’t know if that ever got settled. Mostly what happened is malls stopped giving anyone permission to anyone to do anything in the mall except spend money. There’s a lesson in that, or at least I think there is, even if I don’t know quite what it is.

More and more I think the lesson is this: as we move our lives and culture online, we are moving from living in public spaces to living in corporate
spaces. We’re doing it because it’s convinient, fun, inevitable, whatever. But corporate spaces are governed very different agendas that public spaces. We are transforming citizenship in to consumership; and what constitutes being a good consumers is not the same thing as what constitutes being a good citizens.

Some people will thrive in this new order, others will be marginalized. Will it be better, more prosperous, more fun? Who knows. I hope so! I do know it will be different.

An Open Letter to Paul Kalina of the Age Concerning Film Censorship in Australia

Dear Paul,

I’ve just read your article in The Age asserting that L.A. Zombie is the first film banned from the Australian festival cirucut since Ken Park in 2003.

This is incorrect

In 2006 the OFLC banned my documentary film Damon and Hunter: Doing it Together from playing at the Sydney QueerDoc International Gay and Lesbian Film Festival.

In 2007 the OFLC banned my film Ashley and Kisha: Finding the Right Fit from the Melbourne Underground Film Festival, along with six other films: 70k Schulmädchen-Report: Was Eltern nicht für möglich halten (aka The Schoolgirl Report), Sex Wish, The Farmer’s Daughter, Whore, and 60 Second Relief

In 2009 the OFLC banned Jennifer Lyon Bell’s Matinee from the Melbourne Underground Film Festival.

Perhaps if the Age would do a better job of informing the Australian public about their government’s censorship of films, it wouldn’t happen so often.

Yours,
Tony Comstock

(Cross posted to The Art & Business of Making Erotic Films)

UPDATE:

The original copy read like this:

“The festival is not generally required to submit films for classification, but after reading a synopsis of the plot of L.A. Zombie, which features wound penetration and implied sex with corpses, the Classification Board requested a DVD to watch, and then refused to issue an exemption. It is the first film to be banned from the festival circuit since Larry Clark’s Ken Park in 2003.”

Paul Kalina answers by e-mail:

The reference to LA Zombie as the first film banned since 2003 was intended to refer to the Melbourne Film Festival’s programming of Ken Park, and would probably be understood that way by local readers.

Now the reads like this:

“The festival is not generally required to submit films for classification, but after reading a synopsis of the plot of L.A. Zombie, which features wound penetration and implied sex with corpses, the Classification Board requested a DVD to watch, and then refused to issue an exemption. It is the first film to be banned from the Melbourne International Film Festival since Larry Clark’s Ken Park in 2003.”

Why doesn’t The Age think it’s worth mentioning that eight other films have been banned between Ken Park and L.A. Zombies? Who knows…

Nothing Exceeds Like Excess!

The Comstock Test: A means to determine if a photograph is not a crime

I first made this proposal during a heated debate with Alison Crogon about Bill Hensen’s photographs of naked children wherein she likened my films to women being raped by dogs. (If you think that’s bad, wait till you read what I wrote about her.)

I’m moved to repost it here at the Koan of Silence 1) because it’s a good idea that,  due to how NSFW websites are treated in search, has become virtually lost to the debate of ideas; and 2) because the abuse over the past several days of Justice Potter Stewart’s “I know it when I see it” in the press and the blogosphere has become to much to bear.

As noted in James Fallows’ introduction to my “guest post” on his blog at TheAtlantic.com, no society allows absolute freedom of speech; and different countries draw the line in different places for different reasons. In the US, Obscentity is just one example of constitutionally unprotected speech, and the current law of the land is the Miller Test.

One of the criticisms of the Miller Test is that it is vague/subjective/regional, but these are not unique qualities in the law. (This is explored in greater depth at TheIntentToArouse.com) and in any event, the court made it’s intentions in Miller quite clear in Jerkins v Georgia:

Appellant’s showing of the film “Carnal Knowledge” is simply not the “public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain” which we said was punishable in Miller.

To me it’s clear what the court is getting at — they have no interest in extending constitutional protection to what they regard as techologically intermediated prostitution, and give that prostitution is illegal in nearly every juristiction in the US, there’s a logical consistency to that position.

The trouble with this position is it creates uncertainty about what is and is not a criminal photograph; and this uncertainty is a drain of resources on all of the various stakeholders. Producers of sexually explicit photographic images must measure their efforts against uncertain outcomes; and the impact on law enforcement is similarly confusing. Time, effort and money that could be used to make movies or catch criminals is drained off into uncertainty.

To clear away some of this ambiguity, I would like to propose The Comstock Test. But first, a couple of provisos:

The Comstock Test is for photographic reproductions only. Photography is a specially case in reproducable art, because unlike writing or painting, it involves depictions of actual persons and actual events.

Like Justice Stewart’s “I know it when I see it”, the Comstock Test is an exclusionary test. The Comstock Test can only tell you if the making and distributing of a photograph is not a crime. In that respect, the Comstock Test is not intended to do away with the idea of Obscenity, but only to refine and make more workable our conception of what it is not:

When contemplating whether or not the making of a photograph constitutes a criminal act, let us conduct a thought experiment. Let us imagine all the circumstances of the creation of the photograph: where, when, who, how.

Now let us imagine that there is no film in the camera.

Get it? Everyone is there, everyone’s been informed, consented, tricked, bribed, lied to, flattered, compensated. Strobes pop, motors whir. But there is no film in the camera.

If absent the creation of the latent image, there is no crime, then the creation of the latent image is not a crime.

If, absent the creation of the latent image, the circumstances – the where, the when, the who, the how — constitute a criminal act, then let’s prosecute the criminality, and let’s not entertain any foolish notions that including a camera in the undertakings (with or without film) changes the circumstances in a meaningful way.

A few days after first proposing the Comstock Test, I proposed a negative correlary thought experiment on the idea of Art:

I’m calling bullshit on the silly idea that art is a justification.

Art is vocation. Art is avocation.  As entertainment, or hobby,  or even  mere whimsy, art is important. But in an era when everything from toilet bowls to bags of trash are called art, if you want to defend a grown man spending his time with naked 12 year-olds and taking pictures, you’re going to have come up with a better reason than art.

Tell me you just don’t think it’s a big deal; that we are entirely too hysterical about all this stuff.  I’ll listen. I may or many not agree, but I’ll listen.

Tell me you’re not sure how you feel about Mr. Henson and the parents who provide him with his “vehicles”, but you feel cautious about handing the decision about what a parent should or should not do over to the state. I’m all ears; and once we’ve hashed that out we can discuss parental notification laws.

But do not tell me it’s okay because Bill Henson was making art; I’m no more ready to accept that than to accept that Ed Gien’s art making excuses, justifies, or even mitigates what he did. You do something criminal, you get punished. You do something reprehensible, you get shunned. You make some art along the way, that’s a footnote.

Do not tell me it’s okay for a middle-aged man to spend his time taking naked photographs of 12 year old girls, so long as he’s making art. My family and I live every day of our lives on the wrong side of this unanswerable and meaningless question about what is and what is not art. We know what happens when the state says “No, that’s not art.” We live every day with the possibility that we will be deprived of our livelihood, our property, our freedom because somewhere someone in a position of power might ask this question about our films, and then answer as they see fit.

Lastly, I’ve seen in the last few days that some of the photos in question are now available to be seen online, but with the naughty bits covered by black bars. This is quiet possibly the low point in this whole farcical episode, and to illustrate my point, I would propose that we conduct another thought experiment:

Let us suppose that a photographer were to create photographs of children that even the most liberal of minds would readily recognize as evidence of child abuse. Now let us suppose that she were to display these photographs with the naughty bits covered with black bars so as to render the photos devoid of the sort of details that are commonly use by art critics and censors to distinguish between what is art and what is not; the sort of details the Australian Office of Film and Literature insisted that I remove from DAMON AND HUNTER before they would declare it to be art, and allow it to be screened at the Sydney International Gay & Lesbian Documentary Film Festival.

Would these photographs be provocative? No doubt. Challenging to our sensibilities? I’d hope so. Would they be art? Maybe, but it doesn’t matter. The photos would be evidence of a crime and the people who made them would be criminals.

By either test, and on the basis of the facts as they’ve been reported, I’d be inclined to leave both Bill Henson and John Stagliano free to pursue their respective hobbies, and not get state involved in distinguishing which of them is producing Art, and which is producing Obscenity.

I know it when I see it?

“I know it when I see it” is perhaps the best known and least understood phrase to come out of the US Supreme Court; and in the last several days I’ve seen no less than three “experts” misconstrue Justice Potter Stewart’s famous words. Here’s his entire concurence in Jacobelis v Ohio, including the famous phrase in context:

It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts,1 that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography.2 I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Much more on Jacobelis v Ohio at TheIntentToArouse.com, but briefly: 1) Stewart says that obscenity may well be indefinible; 2) Stewart doubts he could provide an intelligible definition for “hard-core” pornography; 3) Definiable or not, the film in question (Les Amants) is clearly not pornography.

This couldn’t be any further away from Stewart asserting that he can readily identify pornography in an affirmative and legally binding way. Yet that is how his quote is understood today; by the public at large; and by experts who should know better.

Something for Everyone?

The internet makes for strange bedfellows, and I’ve found myself both surprised and pleased to be corresponding with Alan Jacobs, and commenting on at his Text Patterns blog. When I sent the below privately, he suggested I blog it:

When IT (digital cameras, web distribution, etc.) swept through porn and expanded production dramatically, it was seen by some as an answer to the criticism that porn represented an unrealistically narrow range of body-types and sexual interests.

“Now there’s something for everyone!” was the pro-porn argument, “you just have to get out there and find what you like!”

Of course this is moronic.

The range of body-types and sexual practices depicted expanded dramatically because the economies of scale changed. But the underlying essence of pornography remained unchanged; there was only “something for everyone” if what you wanted was a videotape of people paid to have sex having sex, videotaped in a way that was dictated by the financial constraints of the business (i.e. not very well).

Similarly, the internet offers “something for everyone” so long as it’s something that can be produced and distributed within the framework the internet offers.

That’s a lot to be sure, but it’s surely doesn’t encompass the range of human experiences and desires anymore than a handicam and a handful of people having sex encompasses the range of human sexual experiences and desires.

To me, that’s where [Clay Shirky’s] “cognitive capital” is weakest. It defines capital so very narrowly, and in a way that I don’t see as being particularly egalitarian. I’m not particularly worried about the “future of knowledge”, but you already know where I’m making my personal bet, and it’s not on becoming an a-list blogger.

I am also spending less time making lolcats and more time watching TV.

Cultural Criticism as Role Playing — a reply to Camille Paglia

Camille Paglia had an op-ed in yesterdays New York Times, and I wasn’t surprised when my professionally conservative iFriend* James Poulos twittered his approval:

MT @WAWilsonIV Paglia is AMAZING: http://nyti.ms/c6LCQX She has now officially atoned for “Vamps and Tramps” // I comment @Ricochet

I read the Paglia piece too, but was not so impressed. She’s a deft and amusing writer to be sure, but I feel like I’ve heard it all before, and it all sounds a little too mannered; a little too calculated to hit hot buttons without much interest in going deeper.

In other words, Paglia’s essay was a perfect glib set up for my no less glib response to James:

“Paglia plays metadominatrix to a certain sort of liberal, while a certain sort of conservative sits in a nearby chair and metamasturbates.”

But in addition to my glib jab, I’d like to offer two straight-forward criticisms of Paglia’s piece.

1: !t’s a pity the moniker “female Viagra” has seized the public’s imagination. Viagra and other ED drugs don’t make men who are uninterested in sex want sex; they help men who want to have sex achieve erections. A better female counterpart is a woman who desires sex, but whose body does not produce sufficient lubrication, and there are many effective and safe artificial lubricants to address this. Rather than doubling down on the catchy, thoughtless language, I’d enjoy seeing Paglia turn her intellect on why these sort of misplace sexual shorthands are so readily absorbed into the culture; and “female Viagra” seems especially ripe for a different sort of “no, women and men are actually different” Paglia essay.

2: Paglia cites the end of the Hays code as the end of suggestion and innuendo in popular culture in general and movies in particular; another  cry of  “now that we can show everything, we don’t reveal anything”. It’s not an original thought, but more importantly, it’s not an accurate one.

There are plenty of unexplored ideas and images that lie  between Hollywood’s R-rated world and pornography’s XXX world. I reckon most of the human experiece of sex lies in the space between those worlds. But there are all sorts of powerful social-economic reasons why that space is largely unexplored in cinema. If I had Paglia’s ear, I’d invite her to read How “X-rated” became synonymous with “porn,” and the death of movie making for grown-ups. and be curious to hear her response.

There’s more in her essay I’m not so sure about, but it’s time for me to lay aside the computer and go help my wife with our kitchen rebuild. Cabinets from IKEA, trundled back to our Long Island home in our Toyota minivan. Later this afternoon we’ll take our daughters to ballet class, and hit Home Depot to shop for floor tile. With Camille in mind, I’ll enjoy wearing one of the fitted t-shirts I bought at the gay shop that openned two doors down from our Hells Kitchen apartment after the neighborhood gentrified.

*iFriend: A person with whom I enjoy having public and private electronic discourse, but do not know well enough to presume to call my friend.

Dave Weigel, The Beautiful Kind, Dissent and Discretion

A few weeks ago the blogger who goes by TBK was fired after her boss googled her name, and an obscure cache in Twitter’s database linked the blogger’s real name to her anonymous blog. Her boss decided their organization could not risk association with the ideas and images on TheBeautifulKind.com. TBK trusted Twitter, and it turned out her trust was misplaced.

Earlier this week, Dave Weigel’s comments to the private list-serv Journolist were leaked, and Weigel was fired from his job at The Washington Post. Weigel trusted his colleagues on Journolist, and it turned out his trust was misplaced.

My wife and I met online more than 15 years ago, back when that was an awkward thing to admit to “normal people”; and the conventional wisdom at Casa Comstock has been that having indiscreet information on the internet — off color jokes, sexual pictures, whatever — would become more and more common; and that much as past drug use is now tolerated among our politicians, over time having indiscreet online information would become “no big deal.”

But I’ve revised my opinion. Yes, for most people it will be “no big deal”, but it will always be a “big deal” for some people, and you never know when you might become one of those people.

And as every aspect of our society becomes digital — who we talk with, what we say, what we buy, everything — being discreet becomes more and more difficult.

It’s also worth taking a moment to think about what we’re losing. Here’s Marc Ambinder on the now defunct Journolist:

It was a forum. A members-only coffee shop where people who take ideas seriously, who want access to people who take ideas seriously, could test their own ideas before they refined and presented them to the public. As a reporter, I learned a lot about a lot of subjects. It was an enormous resource, and I’ll miss it.

There are plenty of things I miss about the “old internet”; but mostly I miss the optimism. But as much as that’s about the internet growing up, it’s probably just as much about me growing up too.