Fearless filmmaker Kirby Dick turns the tables on independent film’s favorite whipping boy — the MPAA.

BY ANTHONY KAUFMAN

Kirby Dick loves a challenge. Whether devising ways for viewers to empathize with a man who impales his own penis, crafting a movie from raw footage made by 16 high school students or making “deconstruction” an accessible documentary subject, Dick is not afraid of obstacles. But the subjects of such award-winning films as Sick: The Life & Death of Bob Flanagan, Supermasochist, Chain Camera, Derrida and Twist of Faith can’t rival his latest adversary: the Motion Picture Association of America.

Okay, maybe the Catholic Church, whom Dick tangled with in Twist of Faith, a story about the victims of pedophile priests, is a bit more daunting than the MPAA. Still, in his latest film, This Film Is Not Yet Rated, Dick goes after perhaps the most secretive organization in the film world, the MPAA’s ratings board. Between interviews with various independent filmmakers who’ve faced the MPAA (John Waters, Kimberly Peirce, Matt Stone, Atom Egoyan, Wayne Kramer and Jamie Babbit, to name a few), Dick hires a private investigator and tries to uncover the true identities of the “everyday citizens” who sit on the ratings board and tell filmmakers they need to reedit their films while doling out those PG-13’s, R’s and occasional NC-17’s.

This Film Is Not Yet Rated vividly exposes the Hollywood favoritism, hypocrisies, sexism and homophobia of the organization as well as the Byzantine, Kafkaesque rules its ratings board follows. (If a director tries to appeal a rating, for example, she’s not allowed to invoke the basic legal principle of precedent by comparing her movie to other films.) The documentary is also, in Dick’s words, his first “comedy.”

In the aftermath of his film, Dick is holding discussions with film industry insiders about a campaign to change the MPAA ratings system so that “it is less biased against independent and foreign filmmakers and more accountable to the public,” he says. On the phone from his Los Angeles office, Kirby Dick recently spoke with Filmmaker about fighting the MPAA, censorship, fair use and the dangers of media consolidation.

Was there a tipping point for you in terms of the ratings board, where basically you thought enough is enough? No, it’s something that I’ve been interested in for many years. A number of my films have focused on sex and sexuality, so consequently I have closely followed censorship of these issues around the world. And of course, some of the most prominent censorship is from the MPAA ratings board. I’ve followed it closely, and I just felt like it was time to make a film on this subject.

Was it hard to find backers for the project? I went to a couple of funding sources who really liked the project but felt they couldn’t do it because they were too closely associated with the MPAA. Then I went to IFC, and because IFC is not owned by an MPAA signatory they were willing to dive in. They’ve been completely supportive the whole way. As we got further into the film and it broadened into issues of intellectual property and corporate control, I wasn’t certain how they would respond to that, but they were supportive. What’s interesting is that there was really only one company in the U.S. that would fully fund a documentary like this. And this relates to the topic of our film, because if an MPAA signatory had owned that company this film would never have been made and this critique would never have been out there. That’s one of the serious consequences of media consolidation.

Did you discuss with IFC the possibility of some sort of MPAA backlash, now or in the future for their films? I didn’t have those discussions with them; I certainly wondered about it. But I think there is a clever construction of the film: since it is about the MPAA, I think it’s very unlikely that they would come after me or IFC because they’re already portrayed negatively in the film and they would be portrayed in the press even more negatively. The amount of publicity around the film would double. The MPAA is very savvy in the way that it’s dealt with its public relations. So I really didn’t think we would get sued as long as we did everything legally, which we did. We were very careful. We checked with our attorney every step of the way. And he vetted the film before it went out.

They might hold a grudge, no? If I submit a film for a rating, I’m certain some of them might harbor those feelings towards me. But on the other hand, I think, myself, and all the filmmakers who appear in the film, we’re inoculated in a way, because the press will pay attention, particularly, if my film goes in front of the rating board. The last thing that the MPAA wants to do is bring attention to the process. It wants to operate under the radar as much as possible. I don’t think they’d cut me any breaks, but I don’t think they’d be exceedingly harsh on my films.

As a practical matter, how do you have the legal right to show the ratings board members without clearances? We worked closely with Michael Donaldson, our lawyer. As I understand it, we only filmed the raters in public, which is legal, because in public one doesn’t have a reasonable expectation of privacy. Furthermore, because what they’re doing is a topic of public interest and public importance, the raters have even less of a reasonable expectation of privacy than average citizens.

What did you find the most shocking about your investigation? I was very surprised at how difficult it was to get independent filmmakers whose films had been censored by the MPAA and who had spoken out about it to actually appear in the film. Some people said yes right away, but a number of people were concerned that there might be repercussions. I was very surprised by the amount of paranoia, especially among the independent filmmakers. Within the studios, the paranoia was 100 percent. No one in the studio system would speak to us on the record. Never. These are people we had personal connections to; they would say yes and reconsider; they were very supportive and give us information, but they wouldn’t speak on the record.

The other surprise, for me, was the appeals board themselves. Going into this, I thought even if the ratings board was controlled by a few people, and comprised of parents who didn’t have expertise, I would assume the appeals board would rise above that. I was surprised at how Kafkaesque it was. Learning about it and going through it, I did not expect that they would actually shut me up.

There seems to be some confusion in the film about whether the two representatives from the Catholic and Episcopalian Church actually have a vote on the appeals board. Do they actually vote? I don’t think so. One of the people we interviewed anonymously claimed that they did; other people say they don’t. I think it’s implied that they don’t in the film. But first of all, I could never establish it because they won’t really tell you. Secondly, just the fact that there is confusion about the information, I wanted to leave it out there because that’s the kind of lack of information that exists around this whole process.

For me one of the shocking things in the film is the idea that female pleasure is completely taboo. That seemed to be the strongest argument, with that masturbation split screen between American Beauty and But I’m a Cheerleader. It’s very telling. It is, and so is the homophobia that’s built into the system.

But that didn’t surprise me as much. It surprises me because Hollywood is a fairly liberal environment. Politically it’s still such a hot-button subject. But one of the things that their spokesperson, Kori Bernards, said, is, “We don’t set the standards; we reflect them.” I find that horrifying. What if the standards are racist? Or anti-Semitic? Should we go ahead and reflect those? So to be complicit in that and acknowledge that complicity, I found shocking.

You’ve taken on Bob Flanagan, Jacques Derrida and more challenging subject matter from an emotional standpoint, like Twist of Faith. How was this film similar or different? One of the threads in my films is the way they’re formally constructed. I look for subject matter or a method of production that is almost difficult or impossible to accomplish because that stimulates me to attack [a subject] from a number of different angles. I find that creatively interesting. For this film there was this Escher-like referential quality of making a film and then submitting it to the ratings board to rate it. That fascinated me. The other thing in terms of production is that it’s particularly hard to make a film about a subject who doesn’t know the film is getting made, and particularly hard to then submit that film to the subject in the middle of the film to act on it. Tactically, there was a real challenge in making this film. Obviously, all the issues of censorship and creativity are very theoretical, and I was really pleased with the way the directors in the film address those issues.

What do you mean when you talk about methods of production that are near impossible? For example, with Sick, here’s a film about a man who nails his penis to a board. From the very beginning, I knew I wanted that clip, so how does one make a film where when it’s done the audience understands why that’s in there and understands why it should be in there and even identifies with this person? It was such a challenge to do that. In some ways [the film was] built around that grain of sand. With Derrida, in a similar way, here’s someone whose work is completely complex on the printed page and who is much more difficult to present in an audiovisual context. Chain Camera is another example. So I think my work has a combination of formalism and humanism. That’s just who I am. No matter how different or extreme the subject I’m making a film about, I really focus on the audience coming to a point of empathy with the subject.

So what exactly did you submit to the MPAA? We submitted the rough cut up to the point in the film where we show the submission process. It’s not too much different than that. When you sign the paperwork, you agree that if they rate the film, you agree not to make any changes afterwards. After Sundance, [MPAA rating chair] Joan Graves called to tell me that since I changed the film, I could no longer use the NC-17 rating. We toyed with going through several resubmission processes, but we felt like we had accomplished what we needed to do with the film. They invited us to resubmit, and at one point I wondered, How masochistic can they be?

I read somewhere that you charged the MPAA with committing piracy? That was one of the pleasures I had in making this film. A few days before I was going to submit my film for a rating, I asked them, “Are you going to make copies of the film?” They said, “Absolutely not. We don’t make copies of the film. Only the raters will see it. You can be certain that your film will be in safe hands.” Then I asked the MPAA lawyer, “Have you seen the film?” And he paused and said yes. I already knew they were breaking their word, and then I asked Joan Graves if [MPAA president] Dan Glickman had seen the film. And she said yes. So I think the MPAA was very concerned that if this went to the legal stage and there was discovery, this series of lies would reflect very badly on them. The attorney said to me, “I’m calling you to tell you that we have made a copy of your film and that it’s safe in my vault.” But the MPAA says that even one unauthorized copy of a copyrighted work is illegal. They had some tenuous legal argument as to why they could do it, but they did what they decry everyone else doing.

Any other fallout from the film? One thing about this film that is very interesting is that we went fair use with all the film clips. For so many years the area of fair use has been more and more constricted, because E&O insurers and funding sources have more and more demanded that filmmakers get releases, even in situations when they have the right to fair use. Michael Donaldson, who has actually written a book on copyright law, IFC and ourselves — we all decided that we’d take a very aggressive stance on this. The fair use law is straightforward, and we were well within our rights to go fair use. I know many filmmakers who have said to me they are reconsidering going fair use themselves, so I think films are pushing back the boundaries of fair use back to where they should be.

The bigger picture here revolves around issues of media consolidation, copyright law and technology control. Because there hasn’t been a strong critique of the negative side of the film industry and the Hollywood studios, because they have been a Teflon industry that appears not to pollute and has always championed its exports, one of the things I wanted to do with this film is dent that.