The BBFC vs. UK Independent Labels

[MichaelB]

Although the BBFC's recent decision certainly isn't going to help, they've only been charging for commentaries for a few months - so all other failures to cross the Atlantic (very much including the Women in Love example) can be blamed squarely on distributor laziness/cheapskatery.

And it cuts both ways, as excellent European commentaries often don't cross the Atlantic in the other direction!

(Criterion, for instance, would have been better off licensing the superb David Forgacs commentary on The Leopard instead of recording a below-par Peter Cowie one of their own)

[Paul Sutton]

(Criterion, for instance, would have been better off licensing the superb David Forgacs commentary on The Leopard instead of recording a below-par Peter Cowie one of their own)

Thanks for the tip on the Forgacs commentary. I haven't bought a Leopard yet — it's not one of my favourite Visconti's — although I was edging to the Criterion because I'm a longtime admirer of Peter Cowie and we have the same agent.

[colinr0380]

I'm not a fan, and even less so since they decided that all commentary tracks had to be certificated due to being "further video content". This is at a cost of around £1,000 GBP for a 95 minute film, and again, another £1,000 GBP for a commentary track -- and the delays involved in the production process while they certificate prevent us from getting things out more quickly.

The BBFC must be raising cash for another revamp of their offices! They probably need to pick up Blu-Ray players too!

(I think I read somewhere that they were in serious financial trouble before the 1984 Video Recordings Act came in and suddenly they had tons of work again, not to mention a three or four year backlog of tapes to classify! It must have been a boom period for them!)

Although the BBFC's recent decision certainly isn't going to help, they've only been charging for commentaries for a few months - so all other failures to cross the Atlantic (very much including the Women in Love example) can be blamed squarely on distributor laziness/cheapskatery.

True, I remember picking up some Disney DVDs (Tarzan and the Toy Story box) early on and reading about filmmaker's commentaries in the booklets but they never turned up on the discs themselves! It was the laziness of either not including the commentary or at least bothering to remove mention of it from their booklet that annoyed me more than the absence itself!

I can understand it more when a US only company's discs lose extra features, for example the Criterions and Kinos (and in the opposite direction the BFIs and MoCs) are more organisation specific than country specific per se. Also most New Line discs released in Britain through 'Entertainment In Video' often dropped all but one commentary track from their discs, even if the US disc included two or three! I guess it was not really New Line's fault however, more that of the UK licensor (though I suppose this state of affairs is going to change given the recent New Line news). However I often wonder why some commentary tracks are dropped (for example the Disney discs but I've also wondered why all but the director/cast commentary were dropped from the Fight Club disc).

I wonder how much of an effect this new BBFC proposal for commentary tracks will have? I hope this does not cause MoC to drop them altogether, though I could understand the concern at the extra cost.

[MichaelB]

Do you need BBFC approval / rating to submit your film to festivals?

You don't need BBFC approval for any theatrical screening in Britain, just the approval of the relevant local authority. In the case of a festival screening, they'll almost certainly have a blanket agreement with said authority, so you'll be fine.

Because BBFC classification is a legal requirement for video (barring non-graphic documentaries and music videos), many people assume that the same is true of any public screening of any type - but it isn't.

That said, outside a festival situation many cinemas will insist on BBFC approval because they simply don't want the hassle of making separate applications to the local authority (part of the reason the film industry created the BBFC in the first place), but they're not legally obliged to insist on this.

[colinr0380]

The Melon Farmers site have picked up on peerpee's comments and also gave a response from someone else in the industry (I hope they don't mind me quoting the response here):

Back in October 2007 the BBFC issued the following press release:

"The BBFC has recently received legal advice on the issue of audio commentaries. Our advice is that audio commentaries will almost always constitute new video works and consequently require classification.

The only exceptions are audio descriptive tracks which involve very simple and short descriptions of the action on screen (eg for the visually impaired)."

James explains some of the commercial effects that this BBFC decision has on the availability of commentary soundtracks:

I conjured up the idea of producing cost effective audio commentaries for classic British feature films for DVD companies around the world with original cast and crew members. Technology has had a hand at least in making this possible. Getting my foot in the door in the DVD industry took some time but I eventually succeeded in persuading Network DVD to allow me to produce commentaries for some of their releases prior to them going in house. I offer to produce commentaries for feature films between a cost of £1,000 and £1,500. This covers everything including payments made to participants. I even offer to make to produce commentaries which I would then license out for as little as £500. I can offer to produce an audio commentary for a 114 minute video for £1,250 but if the company had to pay for a BBFC certificate to use it, it would cost them another £759 + VAT to use it. A 95 minute film would only cost £645 + VAT to certify and I used to promote my commentary proposals as costing less than the price of the certificate when a license payment is suggested. This ruling would, on occasion, double the cost of the use of an audio commentary and would clearly prohibit the use of them.

It is significant that Paul Sutton posted on the Criterion forum, in that thread you quoted from, that The audio commentary can make or break a release (to say nothing of its educational richness) with emphasis on 'its educational richness'. I do not debate the initial part of the statement that audio commentaries will almost always constitute new video works. It is the following part of the statement that I have issue with that, as new video works, they would consequently require classification. This part of the statement is entirely false. New video works being offered commercially in the United Kingdom do not automatically require classification. They only require classification under the Video Recordings Act if they do not fall into one of the exempted categories (providing they do not fall foul of the exceptions to the exceptions). One of the key exemptions, which was put in place to ensure that people could use the video format to distribute information freely, applies to work that if taken as a whole, ... is designed to inform, instruct or educate. The forum post made by Paul Sutton evidences my perception of the function of an audio commentary that, even when considered as a video work, it is purely 'designed to inform and educate' and often instructs.

I first heard about the statement in November 2007 when trying to persuade Odeon Entertainment to commission some audio commentaries for their forthcoming releases. They wrote back to me an informed me of this recent statement. I subsequently emailed the BBFC and pointed out that the claim that new video works will require classification as a consequence of being 'new video works' is false and even offered an alternative and accurate suggestion of stating that audio commentaries will almost always constitute new video works and consequently require consideration for classification but this step was not taken. I also explained that, in addition to this error, it is most likely that most audio commentary video works would not require classification. Not wanting to show a lack of understanding that there may be some issues related to unclassified audio commentaries, I pointed out that an audio commentary performed in character can not be taken as whole intended for informative purposes and therefore would require classification and that this point may be worth raising with the video industry and the public. Having not heard back after a couple of days, I contacted the BBFC by telephone and explained the predicament the statement had presented me and pointed out again that I was not disputing the notion that an audio commentary playing back over images of a filmed drama constituted a video work of its own but that I was disputing that it can be said that it consequently requires classification when it should be stated that it consequently may require classification. Informally (and verbally) it was agreed that the statement needed revision and that the BBFC would wait for further feedback from others in case further revision was needed. I was told that they were unable to reply to my email due to 'technical difficulties'. At the time I felt that they might have been unwilling to admit in writing a mistake. As the change never occurred (the statement reads exactly how it read back in October) my suspicion was only raised.

I did not waste time in contacting various DVD companies who I sought work from of the issues related to this statement and presented the arguments set out here as to why the statement does not hold water and strongly suggested it could be ignored. I suspect some of the companies have quietly ignored my advice and have declined to take up my suggestions largely due to concerns of having to certify the audio commentaries I suggest producing. This week I finally received confirmation that one company at least are holding back from production of audio commentaries as a result of the issue of this. After making several offers to produce audio commentaries for Optimum Releasing, I received a reply stating we couldn’t afford to buy them from you, especially as despite your previous email on the subject, we would have to pay for them to be certificated by the BBFC.

The concerns the BBFC have in terms of audio commentaries comes from such as the adult nature of the discussion that takes place on the audio commentaries for archive children's programmes which have been released with U certificates. The prime example of this would be the DVD releases of The Tomorrow People which, ironically, Paul Sutton praises in the aforementioned post on the Criterion forum. Language may dictate which category a video work may be given but it does not dictate whether a video work requires classification. The issue the public may have is that they might not reasonably expect such content on a video which has been certified as a 'U'. The remedy, in my opinion, is not to illegally claim that the commentaries must also be classified but that the packaging of such materials should (or perhaps must) supply a warning that some (and perhaps which) content has been included that has not been classified and may contain material that would not meet the requirements of the certificate issued if classified. That would seem the common sense to approach.

[MichaelB]

I was down to record a commentary for an upcoming release, but that was scrapped after the BBFC ruling effectively doubled the cost. It's a niche title (to put it mildly), so I entirely sympathise with the distributor.

In this case, we were able to work out a viable alternative (a short video intro), so my research isn't going to waste - but the fairly major downside for the viewer will be the sheer horror of seeing me on camera, which I was trying to avoid. Normally, the BBFC cuts out visually disturbing material, but in this case their ruling has directly led to more being added!

[HerrSchreck]

Let us know so we can post caps of you-- without stealing bandwidth of course haw haw.

[MichaelB]

I just hope youre wearing a nice tiara with matching poils!

It's being filmed in about a fortnight, so I've noted your suggestion.

Let us know so we can post caps of you-- without stealing bandwidth of course haw haw.

I suspect DVD Beaver will get in there first - they usually cover this label's releases!

[finally]

I was down to record a commentary for an upcoming release, but that was scrapped after the BBFC ruling effectively doubled the cost. It's a niche title (to put it mildly), so I entirely sympathise with the distributor.

Did you read the previous post?

[jt]

I was down to record a commentary for an upcoming release, but that was scrapped after the BBFC ruling effectively doubled the cost. It's a niche title (to put it mildly), so I entirely sympathise with the distributor.

Did you read the previous post?

Wow, great first-post!
Introducing yourself to the forum by taking a swipe at one of it's most respected members...

[finally]

That was not intended as a sarcastic comment. I wanted to ask Michael if he had read it before asking him what he thought about it.

[jt]

Well, a couple of posts earlier he specifically referenced that rule, which has been mentioned about 5 times in this thread (which he has posted in at length). So I think we can be fairly certain he is aware of the ruling.
Maybe I've been reading this forum so long I now assume short comments are taking the piss..?

Michael, when are you going to tell us what the film is? And are you going to organise mate's-rates for forum members who want to buy it?

[finally]

I don't doubt that Michael is aware of the BBFC statement, I'm asking him if he has read the content of one particular post which counters the BBFC claim.

[Felix]

And if I continue to get stung by the UK rip-off tax for buying American DVDs that have been loaded with the extras stripped from British releases, such as Elizabeth R, I'll feel morally justified in abandoning buying official releases and joining the 'file-sharing' community.

Oh you don't need to pay the tax and the Post Office handling charges... I love buying American DVDs as it means that door faced fucker from Kircaldy can't get his hands on any more of my money than he does already.

Keep your purchases under £18 and you will not pay tax or handling charges. Using Amazon marketplace is a good option, especially from private buyers. And always check what price the supplier puts on your package, some of them put a nominal price, make a note of them and order the stuff that costs more than £18 from them (though to be honest, if you are patient, most stuff comes in at under £18 eventually...)

[finally]

that door faced fucker from Kircaldy can't get his hands on any more of my money than he does already.

Was the racial slur really necessary?

Keep your purchases under £18 and you will not pay tax or handling charges.

The allowance increases to £116 in the Autumn.

[tojoed]

Was the racial slur really necessary?

I rather think felix is the same race as the dumb fucker from Kircaldy. Are you going to keep on asking silly questions?

[MichaelB]

I rather think felix is the same race as the dumb fucker from Kircaldy.

...unless you can think of another "dark damp land where the men all wear skirts". Mind you, maybe that's racist too - who knows?

But I suspect the geographical precision is a dead giveaway anyway - non-Scots would just call him Scottish and have done with it.

[tojoed]

^ Exactly, Michael. That's what my "rather think" was trying to imply. But with this "finally" character it's probably best to be explicit.

[finally]

The purpose of my last post was to inform Felix (and everyone else) that the woes of bring in purchases under £18 will soon be gone, I added the silly question as an afterthought. I shall ask no more silly questions.

My first question, however, was genuine.

MichaelB, I sincerely believe that the BBFC statement regarding audio commentaries does not hold water. The argument for this is laid out in the email posted on the Melon Farmers website, of which I am the author, that has subsequently been posted here. I would be very grateful for your thoughts on the subject.

James

[MichaelB]

MichaelB, I sincerely believe that the BBFC statement regarding audio commentaries does not hold water. The argument for this is laid out in the email posted on the Melon Farmers website, of which I am the author, that has subsequently been posted here. I would be very grateful for your thoughts on the subject.

Well, I'm not a distributor or a lawyer and I don't work for the BBFC, so I don't really have any opinion on the subject - or at least not one that's going to carry any particular weight.

It seems to me that the only thing that will be of any practical use would be a test case, but this would require:

1) A distributor to deliberately defy the BBFC and release a DVD with an unclassified commentary track;
2) The BBFC to notice and take action.

But it's an expensive gamble, since failure on the distributor's part might incur costs far in excess of the original classification fees - not least if the existing DVDs have to be scrapped.

What's really needed is wholesale reform of the 1984 Video Recordings Act to allow opt-outs, possibly on pain of restricted distribution (as happens in the US). I don't imagine the likes of MoC and Second Run give two hoots about the age classifications of their DVDs, as their under-18 market must be vanishingly small to begin with.

Also, the Video Recordings Act was originally passed in a very different environment where, for various reasons (not least the reluctance of major distributors to get involved with what was then a relatively new upstart medium), a disproportionate number of the titles in circulation were graphically violent exploitation films. Since this is no longer the case, and since the BBFC has liberalised beyond recognition in the intervening period (to the extent where most of the original "video nasties" are now freely available), it's hard to see what purpose compulsory classification serves any more.

This wouldn't mean abolishing the BBFC, as it serves a useful purpose both as a flak-catcher when dealing with local authorities and the tabloid press, and in terms of providing genuinely valuable advice on legal issues - distributors are often much more conservative when dealing with troublesome material (animal cruelty, child indecency, obscenity) and tend to hack out minutes while the BBFC prunes mere seconds. So I suspect, in practice, that many distributors (and certainly all mainstream ones) would carry on having their films classified. But since the VRA has always tended to penalise small independent operators, they're the ones who would disproportionately benefit from its repeal or modification.

[Felix]

The purpose of my last post was to inform Felix (and everyone else) that the woes of bring in purchases under £18 will soon be gone, I added the silly question as an afterthought. I shall ask no more silly questions.
James

James, and thank you very much for making this known to us all, it is tremendous news and to be honest I have been expecting the aforementioned dour faced fucker from Kirkcaldy to tighten up this loophole to get a few more pence from us. Do you have a source for the information as I would like to know exactly when it happens? My £18 and friendly retailer strategy has worked in 95% of cases but I have never got the Criterion Bergmans at a good price and have been holding off on the Digital Meme silents for the same reason.

As to the rest. Oh dear... What have I started...

I deliberately avoided referring to him as a Fifer as Fifers sometimes consider themselves a race apart from the rest of us Jocks and sometimes we are very happy to let them do so. And, yes, I too am from Scotland, and reading your comment did make me think of the KKK supporting Negro in Shock Corridor...

The location in my signature (used ironically...) comes from a comment made by Amercan Evangelist Pat Robertson when his bank, or bank with whom he is associated, failed in a merger with the Bank of Scotland, due to public protests about his religious beliefs (and coming from Scottish people, of all people, this truly was a case of the pot calling the kettle black...). He referred to Scotland as "a damp, dark land, ruled by homosexuals, where the men all wear skirts". I edited it because I didn't want to excite people too much and have them pass on the news to all their friends and see our rugged and fine country invaded by hordes of effete nancy boys out to dilute our pure Braveheart stock... Lordy, we're still trying to recover from the shock of Jimi Somerville, though we are confident that DNA tests would surely reveal him to be of English ancestry... (oh fuck, I've not done it again have I?)

[ellipsis7]

Might there also be a possibility of some kind of 'educational exemption' whereby if the commentary track is sufficiently informed and delivered by a person with suitable academic or cultural credentials, the charge would not be levied... Of course there then would inevitably be another charge to determine that a given track was exempt.... Unless someone like the BFI stepped in to vet applications and facilitate such exemptions...

[finally]

Felix, the first article on the subject I found includes a link to the Amending Regulation.

It begins December 1st, just in time for Yuletide which will come a relief to your Captain Waggett as much as it will to you.

Ellipsis7, that is the point I am making. There already are exempted categories and you do not need to submit such material that you feel fits into one of the exempted categories to the BBFC to get an exemption. You merely make that decision yourself and perhaps slap on an 'E' for Exempt logo of your choice. The 'E' logo is not an official classification.

MichaelB, if what the BBFC have to say was true then DVD companies will currently be in defiance of law for audio commentaries previously released and still on sale.

I do not dispute the legal advice the BBFC have been given, that new audio commentaries playing over video constitute "new video works". It is the conclusion they have reached that having taken that advice that I dispute. The statement claims that classification is required merely as a consequence of new video works. In reality, necessary classification depends upon what form that video takes. As long as there are exemptions to classification, the statement is not valid, surely? If an audio commentary requires classification, it is not dependent upon it being a new video but dependent on that video not being exempt. Of course, that does not help producers like ourselves if a DVD company is all too willing to take the statement as truth.

[MichaelB]

MichaelB, if what the BBFC have to say was true then DVD companies will currently be in defiance of law for audio commentaries previously released and still on sale.

No they won't, because the law (specifically the 1984 Video Recordings Act) only requires them to obtain a classification from the BBFC - which they've done.

In fact, I specifically asked the BBFC two years ago if I needed to submit audio commentary tracks with my then-current project, and they said no.

So as far as I'm concerned, I absolutely complied with all the relevant requirements (both the strict legal ones and the ones in connection with the BBFC's guidelines) - and retrospective changes aren't my concern unless a change is made to the relevant legislation.

[broadwayrock]

If i remember correctly, Die Hard had a Subtitle commentary in which various members of the production make screen specific comments on the film.

That could be a compromise/loophole that MOC could take if the audio commentary is too costly....unless the BBFC start charging for that too.