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State Officials Requesting Cinema Installations
What Exhibitors Should
Know About Captioning!
by Steven John Fellman
NATO Washington Counsel

The Department of Justice does not require that motion picture theatres provide patrons with captioned movies. In the Revised Americans With Disabilities Act Accessibility Guidelines (ADAAG) published July 23 by the Access Board, it is stated that: “ADAAG and the Department of Justice’s ADA regulations do not require captioning of movies for persons who are deaf.”

Various groups representing deaf individuals have organized the Coalition for Movie Captioning and urged that motion picture theatres provide captioned movies for deaf patrons. Litigation has been filed against theatre circuits in three federal courts to force cinemas to install captioning equipment. In two cases, the courts ruled that captioning was not required. In one case, the companies settled by agreeing to install a limited number of captioning units.

There are at least three technologies that are currently available to provide captioning for movie patrons. The oldest technology, and one apparently preferred by deaf patrons, is open captioning. Open captioning traditionally involves burning dialogue and other aural information onto a print in the form of subtitles. Although open captioning is mandated for certain TV presentations, the legislative history behind the ADA is conclusive that motion pictures do not have to be presented in an open-caption format and movie theatres do not have to offer open-captioned films to U.S. audiences.

Open-caption prints are often used in foreign countries where U.S. films are shown to non-English-speaking audiences. Some members of the creative community have objected to open captioning, alleging that the captioning detracts from the artistic presentation of their work. Some exhibitors have reported that U.S. moviegoers object to open captioning and will stay away from films that are shown in open-captioned format if they can see the same film without the captioning. As a result, although open-caption films have been shown by many U.S. exhibitors for a number of years, such films are usually played on weekday nights or as matinees rather than on a Friday or Saturday night. Although there are an increasing number of films being offered in open-captioned format, the number of prints available for such films is limited.

A second form of open captioning involves utilizing a projector to display captioning in an open format on a “reader” located below the bottom of the screen. Although this type of captioning is visible to all members of the audience, it does not require that the captioning actually be burnt onto a print. However, this type of captioning does require that the theatre purchase additional equipment. A theatre equipped with this system has the option of turning on the captioning on demand. The theatre can announce publicly that captioning will be available only for certain showings or only at the request of a deaf patron. A benefit of this system is that if there is no demand, there is no captioning visible to the audience. A potential concern is that if the system is activated on the demand of any patron, members of the audience may object to being exposed to open captioning without any prior notice.

The third type of captioning is closed captioning. A closed-captioning system involves projecting the captioning in such a way that it is only visible to those theatre patrons who elect to use the system. A closed captioning system that is currently commercially available synchronizes captions and action by projecting reverse text images onto a display unit on a wall behind the audience. The reverse text is then reflected to transparent screens placed in the cupholders of the individual seats of those persons who have elected to use the system. The screens are made available at the box office or customer service desk. The moviegoers can theoretically read the script on the screen and view the movie through the screen simultaneously.

Although deaf patrons have indicated a preference for open captioning and indicated some difficulty in utilizing closed captioning technology, the deaf community would argue that closed captioning is better than nothing.

Installation of projection-type open captioning and closed captioning systems may cost $15,000 to $20,000 per screen. To install such a system in every screen in a large chain of theatres would be very expensive. The first court decision involving this issue, Cornelius v. Regal, held that requiring a theatre chain to install captioning equipment in all theatres would be an undue financial burden and therefore was not required by the ADA. However, in a second case, Ball v. AMC and Loews, the plaintiffs did not demand that the exhibitors install captioning equipment in every auditorium of every complex. By contrast, the plaintiffs asked that the exhibitors install captioning equipment in one mid-sized auditorium in less than half of their theatres in a certain geographical area. In the Ball case, the judge ruled that the ADA required theatre chains to consider new technology. She argued that closed captioning technology did not exist at the time that ADA was passed and she denied the theatre chain’s motions for summary judgment and scheduled the case to go to trial. Before the trial, the companies settled, and each company agreed to put in a total of six closed-captioning units within a 24-month period.

Recently, the attorney general of New Jersey sent letters to all major exhibitors in that state informing them that it was the position of the state that, under state law, motion picture theatres must provide captioning for deaf patrons. He asked that theatre chains install at least one captioning system in each multiplex housing between 10 and 20 screens, and two units in multiplexes with over 20 screens. In order to avoid litigation, some of the companies agreed to install a limited number of captioning units.

It can be expected that other states, with similar state ADA statutes, will follow the New Jersey example and request exhibitors put in some type of captioning equipment. Although implementation of digital cinema may make this type of captioning equipment obsolete, the state attorneys general probably will not agree to wait until digital cinema becomes a more significant market presence.

Initial reports on utilization of captioning equipment in motion picture theatres shows that usage is very low. Although there are certain auditoria where such equipment is used on a regular basis, in many auditoria the equipment is rarely, if ever, used. When faced with a request from an attorney general to install captioning equipment, the theatre owner can choose to litigate or negotiate. If the theatre owner chooses to negotiate, a decision must be reached whether to offer to provide open captioning or closed captioning.

It can be expected that theatre chains will have to be making more and more of these decisions in the upcoming months. The distributors have indicated that they will provide caption-display disks in either open-caption or closed-caption format but usually not in both. Some distributors seem to favor open captioning. Others favor closed captioning. More and more films are being made available with caption disks. Currently, distributors are not charging exhibitors for use of the disks. However, that could change.

Every exhibitor should consider what to do when faced with the issue of captioning.