With examples of the way music has served such films as Rain Man, Major League and the Guardians of the Galaxy, a group of Hollywood studios on Wednesday asked a federal court to reject a lawsuit that contends Hollywood is violating various laws by refusing to provide more captioning or subtitling of song lyrics.
Members of the Alexander Graham Bell Association for the Deaf and Hard of Hearing filed the lawsuit in California in October. Their legal action follows a quarter-century of Congressional action, FCC rulemaking and past litigation over a campaign to provide those with hearing disabilities, estimated to be 10 percent of the population, with equal access to creative works.
This particular lawsuit raises the contention that studios are falsely advertising their products and violating the civil rights of deaf consumers.
“While the dialogue of some movies or shows are indeed fully subtitled, the practice of not subtitling song/music lyrics is frustratingly widespread,” states the complaint. “Movies or shows that do not include the subtitled song/music lyrics withhold the full enjoyment of the movie or show from deaf or hard of hearing consumers. If parts of the movie or show are not captioned or subtitled, then deaf and hard of hearing consumers should be told as such before making a decision to rent or purchase the DVD, theater ticket or streaming.”
After having the case removed to federal court, Disney, Warner Bros., Universal, Paramount, Sony and Buena Vista Home Entertainment have now filed a pair of dismissal motions (see here and here). One is based on California’s anti-SLAPP law and figures to have a judge address the First Amendment factor much like what happened when CNN went head-to-head with a deaf group a few years ago.
The defendants give three reasons why the lawsuit should fail.
First, they argue there has been no misrepresentation — that while products might be described as “captioned” or “subtitled,” the plaintiffs haven’t made any suggestion that a reasonable consumer would understand those terms to mean all song lyrics, too.
Take the fact that plaintiffs say that the lack of captioning of song lyrics is “frustratingly widespread.”
“Plaintiffs know from the ‘numerous’ movies and TV shows they admit watching, and the ‘many, many other examples’ they describe, that not all song lyrics are captioned or subtitled,” the studios respond. “Plaintiffs’ admission that they understood the terms ‘captioned’ and ‘subtitled’ to mean captioning and subtitling of some but not all song lyrics directly undermines their misrepresentation claims.”
This deals with whether Hollywood is falsely advertising or breaching an implied warranty, but doesn’t address the civil rights issue. The studios have a different response there.
Express legal obligations to caption came via the Telecommunications Act of 1996 and the 21st Century Communications and Video Accessibility Act of 2010, and once those laws were passed by Congress, the FCC swung into action with an attempt to write regulations and enforce them. But the studios say the standards pertain to broadcast television, not to DVDs, theaters or streaming.
“Simply put: No law requires the Studios to caption all song lyrics, for all movies and TV shows, across any — much less all — of the distribution channels Plaintiffs target here,” states a motion to strike.
The defendants point to some of the ways they’ve been captioning, and areas where they haven’t. In Rain Man, when Tom Cruise teaches Dustin Hoffman to dance, the background song’s name and first line of the lyrics are captioned, but once the characters speak, the captioning focuses on what they are saying instead of the song lyrics. In Major League, when the crowd sings “Wild Thing” upon Charlie Sheen coming out of the bullpen to pitch, the lyrics of the song are captured in subtitles. But when opera plays in the background of a scene in The Theory of Everything, deaf audiences are told the type of music playing, but not the precise lyrics.
“The Studios remain free to caption or subtitle some but not all song lyrics, exactly as Plaintiffs admit they have done,” say the defendants. “To hold otherwise would improperly limit the Studios’ exercise of creative discretion.”
It remains to be seen whether the need for “creative discretion” beats the allegation that studios are providing inferior services to disabled patrons, and thus violating their civil rights. But the studios are also making a third argument based on what happened in a 2006 class-action lawsuit over failure to close caption DVDs. That case was settled, and the agreement is said to have acknowledged that song lyrics would not always be captioned.
The plaintiffs are represented by John Girardi at Girardi Keese, while the defense is being handled by Glenn Pomerantz and others at Munger, Tolles & Olson.