Showmen's Trade Review (Apr-Jun 1946)

SHOWMEN'S TRADE REVIEW, June 22, 1946 5 NATIONAL NEWSREEL Hughes Denied Injunction in ^Outlaw^ Case Hughes Says He'll Fight Howard Hughes issued the following statement shortly after the federal court had voided the injunction which restrained the Motion Picture Association from taking action against "The Outlaw." "I want to be sure the public understands that this is merely a decision regeirding my request for a temporary injunction. This decision has no bearing on the trial. The case has not yet come to trial. When it does come to trial I intend to prosecute it with all the strength I have." In Hollsrwood MPAA President Eric Johnston refused to say whether or not it was true Howard Hughes was approaching him in connection with the dispute. Says He'll Continue Fight At Damage Trial; Motion Picture Ass'n Free to Act Howard Hughes lost the second round of his court battle with the Motion Picture Association of America in New York Monday when Federal Judge John Bright vacated a temporary restraining order which had prevented the MPAA from taking action against Hughes and denied a petition for further injunctive relief. In a clear, blunt statement, Judge Bright told Hughes that he could not have his cake and eat it and that the entire case seemed like a movement "through the court as additional publicity and advertising in the promotion of the picture." Within a day after the court's decision Hughes issued a statement saying that only one phase had been decided and that the case had still to come to trial on its damage phases when he would continue the fight. The Motion Picture Association which had remained silent after its first victory in the much discussed matter, was reliably reported again to have written Hughes asking him to submit "The Outlaw" advertising for approval. Presumably, if he refuses or fails to comply with MPAA requirements, Hughes will be expelled and the MPAA seal of approval removed from the picture. Hint at Peace? Wholly unconfirmed reports were circulating Wednesday that there might be an amicable solution of the matter. The switch Hughes made in his public relations counsel in favor of a firm thought to be experienced at lobbying and to be interested in aviation, may have started these reports. Hughes had sued the MPAA on two counts. The first sought injunctions to prevent that organization from withdrawing the code seal from "The Outlaw," interfering with distribution or exhibition of the picture or the dissemination of its advertising. This was sought under the free speech and deprivation of property without due process of law clauses of the Constitution. The second phase sought triple punitive damages on a million dollars already claimed lost through the MPAA actions and a total of $5,000,000 which it claimed the picture would lose through future MPAA action. The Sherman Act was involved under the allegations that the MPAA was a monopoly which forced producers into its ranks under its terms since it controlled more than 95 per cent of the production, distribution and exhibition of the industry. It further charged that through this monopoly it enforced a censorship which was an assumption of governmental police powers. Judge Bright found no free speech restrictions and pointed out that there were several distributors who were not MPAA members and that pictures without the MPAA seal were playing in theatres of the nation. He vacated the temporary order and denied the requested injuncition on the grounds that the agreement between Hughes and the MPAA was "either wholly good or wholly bad. If it is good the plaintiff cannot retain part and reject the balance. If it is bad because the defendant allegedly is engaged in a combination in violation of the Sherman Act, then this court should not lend its injunction process to uphold any part of it." "The entire controversy," Judge Bright said, "has been precipitated by the act of the plaintiff. It has not only violated the terms under which it obtained the seal, both before and since the submission of the disputed advertising to the defendant, but it claims the right so to do, even though it requires the recognition of another part of the contract it is violating. Its compliance with the contract does not involve very much on its part. An examination of the various exhibits persuades me that the whole matter is a trivial one, a tempest in a teapot. In fact, it seems more an effort on the part of the plaintiff to add this case and its peregrinations through the courts as additional publicity and advertising in promotion of the picture." Fight on Advertising "The crux of the dispute," Judge Bright's opinion read, is a narrow one, and relates only to the alleged rejection of certain advertising matter which plaintiff's president [describes as "only a small portion of the advertising with which the film is to be launched." "Plaintiff's papers reveal that it has not complied with the terms of the certificate in so far as advertising is concerned. In 1943, at San Francisco, the advertising, which had not even been submitted to defendant, was of such a character as to incur the condemnation of public authorities and its consequent withdrawal. Other undenied instances are shown which reveal that plaintiff's president has sought and still seeks to arrogate to himself the decision of what advertising should be indulged in, regardless of the contract above quoted, and of the rules and regulations of the association of wli'ch his production company was a member. "This advertising was submitted by plaintiff to llie ACA for approval in December 1945. It consisted of still photographs, newspaper advertising, and art work for proposed posters. There were 202 stiUs submitted, 187 were approved, one was rejected and the remaining 14 were returned for retouching. Plaintiff appealed with respect to only six of these 14, and defendant's president reversed the decision of the Administrator of the ACA, and they are no longer the subject of 'discussion. "Twenty-six newspaper advertisements were approved. As to 20 others which were returned for correction, plantiff appealed and the rejection was sustained. Eight of the advertisements were pen and ink drawings, in which the breasts of the star were emphasized and exposed. The Administrator of the ACA suggested that these drawings could be rendered unobjectionable by a slight retouching, that is, by the raising of the blouse a fraction of an inch, whicli plaintiff refused to do. Others were rejected because they showed a man and woman together in hay in a compromising horizontal position. Another was rejected because it exposed too much bosom and carried the line'What are the two great reasons for Jane Russell's rise to stardom?' Eleven others were rejected because they contained what the Administrator terms was a false and misleading statement — 'Exactly as filmed — ■ not a scene cut'. Four others were rejectefd because they contained the word 'censored' displayed across the figure of the star with her anatomy exposed. There was also rejected the use of a type line, 'How would you like to tussle with Russell?'. These rejections were all sustained on appeal to defendant's president. "A photostat of a painting of the star, from which it was proposed to prepare a poster 8'8" x 14'5" was submitted, and after it was retouched, was accepted. Later finished posters were submitted, which the Administrator states did not reproduce the painting but knowingly and indecently emphasized the star's breasts, they were rejected, and the rejection sustained on appeal. "Since these rejections and the appeal therefrom, and prior to the commencement of this action, plaintiff's advertising agent has submitted eight additional newspaper advertisements, which have been approved ; and United Artists, its distributing agent, has submitted 11 pages of material for a "press book" and various other pieces of miscellaneous display material, all of which have been approved. "it is further shown, without dispute, that plaintiff is now using not only rejected advertising material, but also material which has never been submitted to the defendant, both in newspapers and on sign displays, and has even released the picture which caused trouble for it in San Francisco in 1943. Late in April, 1946, it is alleged, and not denied, a sky-writing airplane wrote the words 'The Outlaw' in the sky over Fasadeua, and then made two enormous circles with a C -L in the middle of each. "The appeal from the action of the Administrator of the ACA, was to defendant's president in accordance v/ith its by-laws. Upon that appeal, plaintiff was represented by counsel, and had full opportunity to present its argument and contentions. "It is not necessary for a determination of this motion that I pass upon whether or not the rejections of the advertisement because of the exposure of too much anatomy, or because of the use of the expressions mentioned, were wrong or otherwise. They certainly were not arbitrary or , discriminatory. Concededly, one of the purposes for which defendant was organized was to establish and maintain the highest possible moral and artistic standards in motion picture production. That was in part in response to objections voiced in press and otherwise throughout the United States to the kimd of pictures which appeared from time to time in the theatres, and to some of the advertisements used in the promotion of pictures. I shall not interfere with the carrying out of that purpose, particularly in favor of one whose sole object is a selfish one. "Nor will I hold that the processes offered by defendant for submission to it of proposed advertising, and for its examination and approval or rejection, are of such a character that they ido not present a fair opportunity for consideration, honest decision, and full and complete representation, nor that such trial and appeal were either perfunctory, useless or illusory. The results obtained by plaintiff as to this very picture completely disprove any such contention. The seal of approval was granted liberally, it now appears. Governmental authorities in several communities subsequently required further deletions. And the disapproval of pictures of the star was not final; they were returned for correction. There is no evidence of discrimination against plantiff. If anything, there is shown a desire to cooperate. That plaintiff's president was not satisfied with the results proves nothing other than that he would not be satisfied unless he had all of bis own way. . . . "There, is not shown here any refusal or threatened refusal on the part of any exhibitor to exhibit without the seal. There is not shown here the refusal on the part of any distributor to distribute without the seal. Plaintiff already has distribution and exhibition. Not one instance is shown where either distribution or exhibition has been refused because of the absence of a seal, or because a seal once granted has been cancelled. . . . "Plaintiff's real complaint seems to be that because he claims to have invested $2,000,000, and that 'The Outlaw' is the only picture which it has produced since 1941 and its entire status as a producer is at stake on this one production, the defendant's 'threat (which the papers show it has not made) to revoke the seal' must be gauged on the basis of the financial loss that may be involved and of plaintiff's capacity to go on producing motion pictures. It overlooks the fact that all of this danger, if any there may be, is being caused by its obvious and admitted violation of its contract with the defendants. It is perfectly willing to accept the benefit of the seal which it says will give it entry into all of the 18,000 theatres in the United States, but it is not willing to accept the conditions under which it may operate with the seal. That part of its contract which will result in profit to it is good; that part which requires it to restrain its advertising is bad. I know of no law which authorizes a party to accept the good in a contract and reject what he does not like. It cannot have its cake and eat it too. If it wishes to retain the seal, it must be on the condition that it aidhere to the agreement under which it holds and has used it."