40 The growing conservatism of mass media, globally, is causing problems never really foreseen in the past, especially in such areas as marketing and creative control, including that of culturally- and/or politically-based censorship. For many observers in the content marketplace, this growing concern is seen as having created a situation “beyond belief” for both producers and distributors. As a result, a lot of television stations, networks, and streaming services, both in the U.S. and other regions, have become more conservative, more emboldened to demand that products be sanitized or “censored”, depending on one’s own perspective of culture. For some, this is seen simply as an example of “cancel culture”, while others see it as political censorship. This is especially evident when international producers and distributors rely on the use of trailers and/or video clips to promote their content. In fact, given the reality that such clips or trailers are already “sanitized” for children under 13, producers as well as content distributors should be prepared to make complete episodes available for screening. In some geographical areas, they should allow pre-screenings of all the episodes of a series. What this might entail is for the producer to cut a few scenes out of an episode rather than possibly lose lucrative business opportunities. The issue of creative control vs. censorship is perhaps most important when negotiating over dubbing rights and subtitle rights. At first glance, one would not think any issue would arise over dubbing; however, it should be viewed in the same category as foreign language rights. Two of the more traditional concerns are about political and sexual issues. In today’s polarized world, a third category has emerged: cancel culture, e.g., when those who are deemed to have acted or spoken in an unacceptable manner are ostracized, boycotted, or shunned. Whereas in the past such behavior was limited to interpersonal relationships, this attitude has begun to appear in mass media, specifically television and theatrical movies. The earliest known example was when in 1966 CBS/Viacom, under pressure from liberal groups, decided to withdraw the television series Amos and Andy from television syndication on the grounds that Black Americans were unfairly stereotyped (some episodes are still in distribution due to its public domain copyright status), which was ironic since the entire television cast were well-known Black American performers. Today, viewers are beginning to see such pressure being put on cable TV providers, such as Turner Classic Movies, with demands that certain movies be banned or edited to avoid airing so-called “socially unacceptable” themes, verbiage, etc. Thus, if dubbing rights are conveyed, it is recommended that certain limitations and/or pre-approvals be obtained from the producer or the company holding exclusive global distribution rights to avoid any potentially embarrassing predicaments. The willingness to be flexible in terms of censorship is particularly important when it comes to joint ventures with U.S. studios. There is a consensus that much of a studio’s competitiveness depends on its reputation. Large media entities tend to have a reputation of integrity and thus cannot afford the luxury of losing that goodwill and credibility. The precise mechanism of any such arrangement is determined on the merits of the proposed co-venture or distribution deal, especially when issues such as “creative control” are discussed, both in terms of production and subsequent on-air/streaming exhibition. When dealing with censorship and creative control, it should be noted that while a successful track record for the independent producer is not a pre-requisite for a TV station or distributor to be interested in a coproduction deal, it is nonetheless important to analyze the existing infrastructure of the proposed partner, including its willingness to waive certain creative and/or censoring rights relating to subsequent airing and/or streaming. For example, if the project involves joint distribution, one needs to be prepared to have themselves carefully evaluated in terms of capabilities and experience in providing such a service. One reason why censorship rights are important is that a major studio or distributor will look both at the ancillary rights available as well as “social media” clearances. This is particularly appropriate when dealing with producers from major markets such as the U.K., due to the fact that in many instances, co-production rights in Europe do not materially benefit American productions since the lucrative local distribution rights typically go to the local partner. In other words, it is important to note that the motivations behind any international coproduction deal must be the economics of the project, viewed globally. The prevailing view is rather straightforward: there’s no real benefit, from an American point of view, to market strictly domestic syndication rights while network and/or international rights are with their competition. Although many independent producers will suggest that the U.S. studios and streaming services carry all the “aces” when it comes to deal-making, it is not really just a buyer’s market. While it is undoubtedly true that a buyer’s market does exist for the newcomer soliciting a marginal product, if the concept is good there will be keen competition for it from most of the American media giants. If that concept is coupled with a producer with a solid track record, clearly the stakes have changed with the status quo becoming a seller’s market. In the final analysis, with censorship issues taking the lead, language and culture are still formidable to a total opening up of international and intra-European TV programming. This is true even in countries such as the Netherlands and Denmark, where English is widely held as being a near universal second language. People still prefer to view television in their own native languages without dubbing or subtitles or concern about ignoring or violating their own cultural or political values. When Censorship Becomes Distortion. The Importance of Censorship Rights October 2023 Legal Talks By Steve Schiffman The motivations behind any international co-production deal must be the economics of the project, viewed globally. Steve Schiffman is an entertainment lawyer and TV producer.
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