Record #1191

Date:
05/07/1938
Record Type:
Memo
From/By:
Francis Stuart Harmon
Reel:
Reel 12
Frame Start:
12-0658
Frame End:
12-0662
Legacy ID:
1201
Legacy Year:
1938
Legacy Index:
Production Code
Comments:
EDITORIAL COMMENT: The implication here appears to be that PCA memos sent to non-member companies have been causing confusion, rather than those sent to member companies, who, presumably, know how to interpret references to industry policy, etc. In this respect, Breen may have been seen to be exceeding his jurisdiction in relation to non-member companies by not making clear enough the distinctions between Code and advisory matters, particularly in condemning projects. Presumably this is where some of the heat came from that precipitated this discussion.

Harmon memo on the Production Code:Recommendation that "fairness" should be incorporated into the Regulations as a PCA requirement, as with treatment of foreign subjects. Certain absolute prohibitions are unenforceable, and the regulations should be changed to emphasize treatment. Distinction must be clearly maintained between Code enforcement and the PCA's advisory function. Clearer definition of PCA jurisdiction proposed.This controversy is partly generated by the Catholic response to The Birth of a Baby.

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5 July 1938 Memo, Harmon on the Production Code: "1. As a trade Association, the MPPDA and all its departments deal with matters of industry policy. Some of these industry policies are embodied in the Production and Advertising Codes; others are not. Only those included in the Production and Advertising Codes carry a penalty for their violation. "2. Most of the provisions of the Production Code deal with standards of decency and morality. 'Fairness' in presentation of foreign subject matter is included in these standards of morality. 'Fairness' or 'honesty of presentation' of controversial subject matter in the domestic field is not covered specifically in the Code. This would seem therefore a logical addition to a Code embodying standards of morality. This addition could be made either by (1) a specific amendment, or (2) by a broad interpretation of the general provisions now in the Code or (3) by a separate resolution of the Board of Directors. "NOTE: (This question is still under consideration. Further study may indicate whether existing Code provisions may reasonably be construed to cover the point.) "3. Certain Code prohibitions are so absolute as to take them technically out of the area of morals and place them in the category of 'policy.' "Included here are absolute prohibitions against portrayals of "a. Illegal drug traffic, "b. scenes of actual childbirth in fact or silhouette, "c. miscegenation, "d. venereal disease, "e. white slavery, and "f. Nude breasts of native women (by judicial interpretation.) "While 90% of such portrayals would probably involve decency and morality, it is arguable that in the other 10% of the cases, industry policies outside the area of morals are involved. It is erroneous therefore to assume that the Production Code as now written, embraces only matters of morals and decency. "If affiliated theatres (Paramount) are to continue playing The Birth of a Baby, which is not an 'immoral' or 'indecent' film, and are not to be penalized therefor, it is quite possible that this and some other of these absolute prohibitions will prove unenforceable and thereby tend to breakdown the entire Code. It is debatable therefore whether or not such absolute prohibitions should not be rephrased to conform to other sections such as those providing that "'The sale of women, or a woman selling her virtue, surgical operations, branding, brutality,, gruesomeness, third degree methods, etc., must be treated within the limits of good taste' NOTE: (It was agreed that the suggested change is 'logical.' The wisdom of making changes which would be construed as 'opening the door again to salacious films,' is to be the subject of further study. All three committeemen agree that the absolute prohibitions mentioned reflect 'policy' rather than embody moral standards.) "4. With respect to all matters not specifically covered by the Code and any amendments thereto, the jurisdiction of the Production Code Administration is necessarily advisory, since no penalties now existing, are applicable to such cases. Very great care is needed on the part of the Production Code Administration to distinguish between its administrative functions under the Code (with its penalty provisions) on the one hand, and its advisory functions (without penalties) on the other. In order not to influence unduly recipients of the Production Code Administration communications who may not realize this distinction, advisory opinions should "a. be in a separate letter; "b. be purely in factual terminology "c. contain no language implying that the Production Code Administration has authority to insist upon the carrying out of any advice thus given. "d. contain no element of recommendation or coerciveness. "5. The very nature of the Association places an obligation upon the President and his staff to counsel with member companies about contemplated moves affecting them all, and to warn one or all about the probable public reaction, at home and abroad, to a contemplated course of action. (Such counsel will be given to non-member companies on the same basis and for the same reasons.) (Agreed.) "6. A reasonably clear and predictable definition of the extent of the jurisdiction of the Production Code Administration, is urgently needed. Legal problems must be met and a course charted through the maze of confusing terminology now in current use. Refusal of the Production Code Administration to review a film is tantamount to forbidding its exhibition in affiliated theatres, unless films which do not need Production Code Administration seal for such exhibition are so classified. "It is recommended that the Production Code Administration be instructed to review any film presented except films falling within the following classifications: "a. News reels (exempted already upon grounds of public interest,) "b. Advertising trailers of a local character (exempted already,) "c. Advertising films promoting the sale or use of a commodity, "d. Sponsored films, produced or distributed by commercial enterprises for promoting 'good will' for the business, industry, profession, or trade., "e. Films advertising or promoting support for organizations established to sponsor special interests or causes, "f. Films produced by Federal, state or municipal units for the purpose of supplying the public with facts relating to governmental projects or programs. "When any film not specifically excepted above is presented to the Production Code Administration, it shall be reviewed and if it conforms to standards of decency, morality and fairness embodied in the Production Code and any amendments thereto, the Association's Certificate of Approval shall be issued therefor."F.S. Harmon."

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