Interview: Kirby Dick Talks This Film Is Not Yet Rated

How does one follow-up an Oscar-nominated documentary (2004’s Twist of Faith) about sexual abuse perpetrated by members of the Catholic Church? If you’re Kirby Dick, you deliver another exposé of institutionalized misconduct by taking direct aim at the ratings system of the Motion Picture Association of America (MPAA). A sensation at Sundance, This Film Is Not Yet Rated is a roundhouse blow leveled at the current cinematic evaluation paradigm, dissecting the MPAA’s secretive and hypocritical practices to reveal—with equal doses of humor and outrage—the organization’s collusion with major studios and theater chain owners (all of whom he dubs a “cartel”), as well as the restrictive consequences such relationships have for independent and foreign filmmakers.

Dick illuminates the MPAA’s double-standards regarding violence and sex—and heterosexual and homosexual content—through shrewd juxtapositions and punchy interviews with, among others, John Waters, Kevin Smith and Darren Aronofsky. Yet his doc’s real sizzle comes from offering an inside peek into the halls of cinematic power, the director both employing a private investigator to uncover the carefully guarded identities of ratings board members and also charting his own experience with the unfair and often ridiculous ratings process. Speaking to Slant from Los Angeles, however, Kirby made clear that his present frustration with the MPAA stems less from their slapping of This Film is Not Yet Rated with an NC-17 rating (IFC will release the film unrated), and more with their hypocritical decision to ignore their own anti-piracy statutes.

Have you received any feedback from the MPAA regarding the finished, unrated version of the film?

Well, we did have an interesting interaction with them about our film being copied. A couple of days before I submitted my film for a rating, I thought, “They’re not gonna want to send the DVD that I’ve submitted back.” So I called them up, and they assured me that they would make no copies of the film, because that just isn’t done. So when I went to the appeals hearing and [MPAA ratings board chair] Joan Graves was there, I asked her if [new MPAA president] Dan Glickman had seen the film, and she said yes. I started thinking about that because Dan’s in Washington and they’re in Hollywood, and I called her back and I asked, “Have there been any copies of the film made?” She was kind of evasive, and then hesitated, and then said, “No.”

But about a week later I got a call from their attorney and he said, “Look, Kirby, I have to tell you, we have made a copy of your film, but you don’t have to worry, because it’s safe in my vault.” My attorney then wrote a letter asking for the DVD back, asking for an explanation about where the copy was made and who made the decision to copy the film. No response to that at all. It’s pretty disturbing because here’s an organization that spends all this time on anti-piracy, and their own definition of piracy is “any single unauthorized duplication of a copyrighted work.” Which is, of course, my film. They, by their own definition, have engaged in piracy.

Any plans to take action against the MPAA?

I had to be sort of pragmatic about it. To sue the MPAA is $50,000 just out of the gate. $50,000 I, as an independent filmmaker, don’t have. So even if I’m right on this issue, what do I end up winning? Ultimately, I’ll end up getting back a DVD. There is one slight bit of concern, though. Where was this copy made? Because if the copy was made in a post-production facility, those are often the places where illegal duplications are pirated from. I’m not suggesting this happened, but there’s a possibility that there might be illegal copies somewhere around the world as a result of what they did. I don’t think that’s fair to me. And it’s not enough for me to know that their copy is safe in their “vault.” I want to know the whole process. But they don’t have to [inform me of their process]. They’re too big. Those studios control 95% of the film business. They respond like any cartel responds. Unless you have power, they’re not going to respond.

The film makes clear that the ratings process is shrouded in secrecy. Why do you think the MPAA so diligently avoids making their activities transparent?

If you take a democratic perspective on society, yes, openness benefits everyone. But if you’re looking at it from the position of the power, secrecy benefits the powerful. If it was up to them, the MPAA wouldn’t care whether there was a rating system or not, and they’d probably prefer that there wasn’t one. But if there’s going to be one, they want to be in control of it, because they want to make sure that their [i.e. studio] films get out with less restrictive ratings. And the kinds of films they make are violent films and films targeted toward adolescents—those films get less restrictive ratings. The kind of films their [independent and foreign] competition make—often edgier, often more about adult sexuality—get more restrictive ratings. So the ratings system is set up to help their own films get through while hobbling their competition’s films.

The second thing is that, for example, they make the claim that the raters are anonymous so they can be protected from influence. Well, there are many more important positions in society—judges, school board officials—who make more important decisions that are done completely out in the open. So that’s kind of an absurd argument. But what makes it more absurd is that the only people who have access to these people on the ratings board are people in the studios. Heads of production talk to the raters, post-production supervisors talk to the raters—they have relationships with them over years. Independent and foreign filmmakers do not have that. Because it’s all secretive and nobody knows this, they’ve set up a system where they can actually influence the raters under the guise of protecting them from influence. And I mean, you look to the Bush administration, and secrecy—it’s kind of rampant in this country. And always, of course, for the public’s good.

The majority of directors featured in the film might generally be labeled “independent.” Did you intentionally speak to independent filmmakers rather than those working for studios? Or, given that they’re the ones most hurt by the system, were they simply the people most willing to be vocal with their criticism?

It was interesting—it was both. When I started this process, I thought filmmakers, and particularly independent filmmakers, would rush to be a part of my film. That wasn’t true, and I was really surprised. Everybody was very supportive of the project, but many filmmakers were afraid to go on camera because they were afraid that their future films would be more harshly rated. This applied to studio filmmakers as well [as independents]. And this paranoia is one of the ways they keep critiques from getting out into the public. Fortunately, we ended up getting just a great range of filmmakers—Matt Stone, Kevin Smith, John Waters, Kimberley Peirce—whose films often skewer, through humor, important cultural issues. What we have, though, is a ratings system that’s actually keeping those types of cultural critiques from getting out. When it comes to the studios, no one in the studios would talk to me. Even though there are many people in the studios who don’t like this system and want to see it changed, they were really afraid…

You mean studio filmmakers?

Studio filmmakers, post-production supervisors, executives, anybody who had had some experience with this ratings system. We were very lucky to have Bingham Ray in the film—for years he’s been someone who’s spoken his mind. He was the president of a studio [co-founder of October Films, President of United Artists] for a short time, and that experience was very valuable to bring to our film. But there are very few people like Bingham.

Given that the MPAA and the studios are in cahoots, was it tough getting permission to use clips from Hollywood films?

We approached this using [the copyright doctrine of] Fair Use, and there are certain restrictions under what circumstances you can use Fair Use. Our film is a critique of the ratings system. And because we have to use film clips to show the kind of decisions that the ratings board makes—to show why particular scenes were rated, and why they argued particular scenes were rated in particular ways—we legally had the right to use the material under Fair Use, which meant that we did not have to pay the studios for these clips.

Still, there are studio contracts that would have prevented us from using the clips anyway. For example, studio contracts state that clips from their films cannot be used in NC-17 films, and they also have a clause that such clips cannot be used in films that are critical of either the studio or the film industry. Again, you see how criticism of the film business—and the MPAA represents 95% of the film business—is being repressed by these contractual relationships. And what the MPAA and all copyright holders have been able to do over the past 20-30 years is scare filmmakers and film funders away from using Fair Use. Film funders now are so worried about being sued that, even in cases where they have a right to use Fair Use, they’re forcing their filmmakers to pay for those clips, which then obviously limits the critiques that these filmmakers can put forth.

Fortunately we were working with an excellent attorney, Michael Donaldson, who was very clear that our film was completely covered by Fair Use. And IFC was a very courageous network to come forward and stand behind the rights of filmmakers. And it’s kind of groundbreaking in that way. So we were very fortunate to have both Michael and IFC behind us.

What’s startling about the clips is that many—such as those from Basic Instinct—are not from the work of those filmmakers interviewed, but are from big, profitable studio properties.

But here’s the thing. Using studio clips in our film will probably mean that those studios will make more money. Anybody who watches our film, sees these clips, and hasn’t yet seen the movies they’re from—they’re more likely to go out and rent those movies. It’s not going to dissuade people. It’s just the opposite, it’s going to encourage people to see them.

Were you motivated to make the film out of personal experiences with the MPAA? Or was it simply an issue that had been gnawing at you for a long time?

I’ve been involved in the independent film community for a couple of decades. I was one of the founders of IFP West (now FIND), and I had followed this issue for many years. As an independent filmmaker, I’d been outraged at the way independent filmmakers’ films were being rated. For a decade, I’d wanted to make a film about this subject. But one of the things that was preventing me from doing so was the secrecy of the MPAA ratings system. That there was no access to how the process worked. The film raters themselves were anonymous. The head of the ratings board, up until our film was about to premiere at Sundance, had, as far as I know, never given an interview to a public periodical of any sort. So it was hard to get that information.

But once my producer Eddie Schmidt and I came up with the idea of hiring a private investigator, we realized this approach would not only help us break into that secrecy, but it would also provide a very strong and humorous narrative arc. It would engage the audience, and it would make the film more than just another polemical documentary. Not that I’m criticizing those. But the narrative arc, in many ways, helps you deliver your point very strongly. Shortly thereafter, I realized I could submit my film to the ratings board. Of course, there’s a sort of delicious irony to that, but there’s also a real pragmatic thinking behind it as well. Again, it’s back to the secrecy—how do I find out what happens inside? By submitting my film and then following it through the process, I was able to find out.

Once those two elements came together, I realized I had a film, and the project that I had wanted to do for many years.

Did you always plan to end the film with your own ratings board experiences?

Yes, and it was very tricky, because in some ways that’s the third act of the film, so you’re gambling—you don’t know the process, and you don’t know what’s going to happen. So it was a gamble. Fortunately, we had the secrecy of the MPAA in our favor—I mean, American film history is made up of PI’s trying to break into huge negative organizations—and we were sort of counting on the secrecy working in our favor. Though I have to say, I did not expect the absurdity of the experience, particularly at the appeals board. That was completely Kafkaesque. You couldn’t bring in the attorney of your choice, and you couldn’t refer to precedent at the appeals board level, even though precedent is the primary method that appeals boards use to decide if a lower decision has been made properly. It’s just absurd, but that absurdity lent the film a great deal of humor.

It’s somewhat cathartic to go through the ordeal with you.

You know, it’s funny, because that whole thing about the black van—we just had it corroborated recently again. They were so afraid that we would find out the names of the appeals board members that they got all these executives to meet and get in this black van and then come over and appear at the appeals board and then disappear as soon as it was over. And they were told, very explicitly: “Whatever you do, don’t give Kirby your name!” So when meeting them, I’d say, “Hey, I’m Kirby, who are you?”

Put them right on the spot.

They’re film executives. I mean, how absurd is that? I’m in the same business as they are. I knew two of them already.

Really?

Yeah. One was the member of the clergy [featured in the film], who was just hiding back in the corner and who, after it was all over, went off with Joan Graves, who’s the head of the ratings board. They’re friends. It’s a little creepy.

Ever think of directly including MPAA executives in the film?

Well, we did. We reached out on several occasions to Jack Valenti and Dan Glickman to be a part of the film. No response, no response at all. Their assistants were very nice, but we never heard back. Again, this is not surprising. They don’t want any information to be released about this. They want to keep a closed system that they can control. So why should they go out and speak, particularly to a filmmaker who won’t toe the party line?

Did you have any reservations about revealing the raters’ identities?

First of all, all we did was get a shot of the raters and then reveal info that was pertinent to the job they did. And this film is about the system. But there is no reason that these people’s names should be secret. That’s actually very wrong. It’s a very important job that they’re doing, and the public deserves to know who they are, their backgrounds, their training—which is basically none. If a very powerful organization is going to keep those names from the public, it’s the responsibility of journalists, and of me as a journalist, to get that info to the public. That’s one of my jobs. So no, I had no compunction about that. Just the opposite. I felt like I’d be shirking my responsibility if I had this info and didn’t put it forward. I mean, this isn’t the Pentagon Papers, it’s not the same level, but this is what journalists do. They get info from governments and powerful corporations and they put it out to the public. So I felt like there was a long line of journalists before me who had done…I was working in their tradition.

The film certainly generates a good deal of outrage at the system.

Oh yeah, and you talk to people…we recently talked to another ex-appeals member, and he said there was no doubt that films made by the studios get all kinds of advantages that independents don’t. It’s cut and dried. There’s no question. There are all kinds of reasons for outrage. I mean, it’s a homophobic structure. We demonstrate that very clearly in our film. Why should the most powerful media lobbying group in the country have a ratings system that’s homophobic, that continues to perpetuate homophobia in this country? That’s profoundly wrong.

And then of course, the fact that violent films, which are made by the studios, get through without restrictive ratings, whereas sexuality—oftentimes very mature, thoughtful examinations of sexuality—gets more restrictive ratings. I mean, that’s wrong. I’m not personally saying that you should censor violence, but I think that there shouldn’t be a corporation profiting from violent films at the expense of films that examine sexuality.

How is the European system different?

Each country has their own ratings system, but in general, as far as Western European ratings systems are concerned, the people on the board are known, they certainly have training, they generally have some sort of expertise, and the European ratings boards are much more concerned about violence than about sexuality. That’s a lot of the difference between the two.

Does the MPAA’s reach extend outside the U.S. film industry?

The MPAA has huge international implications. They’re perhaps the major player in the WTO negotiations. In fact, what’s keeping Russia out of the WTO is that they’re not willing to totally kowtow to MPAA demands. They’re very powerful internationally, and they’ve really been one of the bad guys in these international trade agreement negotiations for many years.

Of course, Jack Valenti has long been a player in Washington. And if you look at the two main characteristics of the ratings system, the first is secrecy, and the second is the fact that Jack Valenti has managed to put this spin on [the MPAA’s activities] to convince many people that it’s good for the country. Where do these two—spin and secrecy—come from in Valenti’s past? Well, he was in government, so that’s where the secrecy came from; and before he was in government, he was in advertising, and that’s where the spin came from. So he put the two together in a very brilliant combination, and created this sort of unholy brew that is our lovely ratings system today.

Is there any hope that incoming president Dan Glickman will improve the system?

I really hope so. Dan Glickman is not Jack Valenti. He’s not as tied to the rating system, in part because Valenti created it. But we have to be realistic too. This rating system financially benefits the studios to the tune of tens of millions of dollars a year. So they have a real investment in keeping the status quo. It’s going to take a sustained critique from all sectors of the public in order to pressure them to change. And this film is hopefully going to spur that, stimulate that, and be a part of that.

I couldn’t agree more, as someone who watches a lot of films…

It’s interesting, because it does affect the kinds of films you see. The way that sexuality is portrayed on the screen in America—so many people have commented that many sex scenes look similar in American films. And I think the ratings board is in large part responsible for that, because filmmakers are shooting for that R rating, they’re shooting for this one kind of territory, or this one kind of look. They’re blocking their scenes knowing what will get an R rating, and as a result, everything starts looking the same.

You look at a film like Bertolucci’s The Dreamers. He’s a master filmmaker, and he’s making that film without regard for the American ratings system. And the way that he covered sex was much more creative, much more exuberant in certain ways, and much more visual. I think American filmmakers could do that too if they were allowed to. We’re talking about making film art for adults, and because of this ratings system, that expression is being prevented.

And of course, the MPAA had major problems with The Dreamers’s sexual content.

Major problems—they gave it an NC-17, and the studio tried to go out with an NC-17, and they probably lost tens of millions of dollars. As a result, the MPAA made sure that [these types of films] aren’t going to get made anymore.

These are really serious issues, but what I really wanted to do with this film was do it in such a way that it was exciting, entertaining, humorous. Super Size Me is a model for that. In some ways, you can impact society more by using humor. And we have such great humorists in the film—Matt Stone, Kevin Smith, John Waters. But these are the filmmakers who are critiquing society, and their critique is, again, being hobbled by this ratings system.