November 5, 1998
A three-judge panel of the Ninth Circuit Court of Appeals today upheld an arbitrator's ruling that Tristar Pictures, Inc., in editing Michael Apted's film Thunderheart for television, altered it so severely as to breach Tristar's obligations as set forth in the Directors Guild's Basic Agreement. Circuit Judge Alex Kozinski issued the opinion.
"The DGA is pleased that the Court of Appeals upheld the arbitrator's ruling that a director's vision cannot be significantly altered without serious repercussions," said DGA President Jack Shea.
Apted, concerned that Tristar wished to shorten Thunderheart by nearly half an hour in order to show it on commercial television, had refused to help the studio cut his film. Tristar preceded over his objections, making 270 separate cuts totaling 22 minutes, compressing the film to gain another 4 minutes, and speeding up the credits to lose another 2 minutes. Apted then asked for his name to be taken off the edited picture, a request that Tristar refused. Pursuant to section 8-211 of the DGA's Basic Agreement, Apted then requested the use of a pseudonym from the DGA's Director's Council, which voted in favor of issuing the pseudonym.
Section 8-211 states that when the Director's Council assents to a director's request for a pseudonym, and the studio refuses to grant it, the next step is the convening of a joint panel composed of two representatives from the DGA and two representatives from the studios. If a majority of this panel sides with the director, the pseudonymous credit is used on the film.
However, in this case the joint panel had not yet met as of six days before the scheduled airing of Thunderheart, and the DGA therefore called for expedited arbitration of the dispute under section 2-400 of the Basic Agreement. In the arbitration hearing, the DGA sought a disclaimer that would tell the public the truth about the film; namely, that it had been altered without Apted's approval and did not represent his work, and that airing the edited version with his name on it but without a disclaimer would serve to discredit him, rather than credit him. As Judge Kozinski wrote, quoting 1 Samuel 25:25, "As his name is so is he."
The arbitrator ruled that if the joint panel did not grant Apted a pseudonym, Tristar would have to air the following disclaimer:
This film is not the version originally released. 22 minutes have been cut out. The director, Michael Apted, believes this alteration changes the narrative and characterization and is not associated with it. The film has also been electronically speeded up. The director believes that this alteration changes the pace of the performance and is not associated with it.
Following the arbitrator's decision, the joint panel failed to reach a decision on the pseudonym. This triggered the use of the disclaimer; however, the DGA and Apted then agreed to Tristar's request to use a pseudonym instead of running the disclaimer.
Tristar later brought a petition in state court seeking to vacate the award, claiming that the arbitrator had no jurisdiction, and that even if he did, he overstepped his authority in awarding the disclaimer. The DGA removed the case to federal court, where the U.S. District Court for the Central District of California upheld the arbitrator's award. Tristar appealed this decision, which was upheld today by the Appellate Court. Circuit Judge Alex Kozinski, writing for the panel, stated that by agreeing to submit the case to arbitration in the first place, Tristar was "tacitly admitting that it was plausible for the arbitrator to assume jurisdiction over the dispute."