Record #1216

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Reel 12
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Production Code
EDITORIAL COMMENT: Various papers relating to the emendations to practice, mainly from 1938. These need to be interwoven with 12-0656 to 12-0705.

The question has arisen as to how to deal with war-related films with ideological import. The question of PCA jurisdiction is crucial -- they must not ban "undesirable" films, which would be seen to be a restraint of trade; and a problem is posed by government films -- processing by PCA machinery would look like ideological endorsement. Eventually the question of desirability of eliminated by "physically" separating the administrative and advisory functions of the PCA, and government films handled by AAC


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11 July 1938 Quigley to Hays -- over a joint concern over "political" films: -- Quigley proposes a Board of Directors resolution amplifying the Production Code: "No motion picture shall be produced which shall advocate or create sympathy for political theories alien to, and subversive of, American institutions, nor any picture which perverts or tends to pervert the theatre screen from its avowed purpose of entertainment to the function of political controversy." His Argument: "The record, particularly in recent months, abundantly proves that the industry faces a serious emergency on account of the efforts being made to use the entertainment screen for purposes of political controversy and for the advancement of alien political philosophies. "Any such use of the screen would seriously jeopardize the industry's prosperity an the popularity of the motion picture theatre. It might also result in a condition in which the entertainment industry would find itself aligned with forces inimical to the progress and tranquility of the national life. "In the absence of any general rule or guidance, such problems, as they arise from time to time, if dealt with along lines of momentary expediency, are not likely to get solved or stay solved. There arises here a situation very similar to that which existed in many matters prior to the introduction and enforcement of the Production Code. "It seems to me that the wording of the attached draft can hardly be attacked successfully. I cannot see any insistence, except from the radical fringe. that motion pictures advocate and create sympathy for political theories alien to, and subversive of, American institutions. "It has long since been the declared policy of the American entertainment industry (motion pictures) to avoid political controversy. A determination to avoid political controversy is unassailable in the case of a mass medium which seeks to cater to the whole public. "The Production Code already contains several policy considerations. "The place for such a provision as I propose, together with its explanatory preamble, is, I believe, in the Production Code, where there is machinery to guard against its possible violation and where, under existing regulations, there is provision for bringing to the attention of the President and the Board of Directors any matter which needs final decision by the authorities of last resort. Obviously for successful operation, when any matter has to be referred, it should be referred in due time and before it has been threshed over in public prints. "I think that this or some similar resolution should be enacted promptly. It does not seem necessary that any such action be published. It would seem to me to be enough that the action be taken and that the resolution be placed there in the records, for the guidance needed by all concerned."31 August 1938 memo: "At a staff meeting in late June Messrs. Milliken, Norr and Harmon were requested to study the 'twilight zone' of screen entertainment and submit recommendations with regard to the general policies of the Association with respect to films in this zone and the respective jurisdictions of the Production Code Administration and the Advertising Advisory Council in this field. Attention was drawn to the fact that Mr. Breen was out of the country at the time. It was understood that immediately upon his return to New York from Europe conferences were to be held with him so that he, too, might be a party to the recommendations. "Messrs. Milliken, Norr and Harmon continued the work which they were doing, pending Mr. Breen's arrival. When Mr. Breen reached New York Mr. Norr was away, but an unhurried conference between Messrs. Milliken, Breen and Harmon revealed so complete an agreement that the following general statement of policy and the paragraphs with reference to the jurisdiction of the Production Code Administration are submitted as the joint recommendation of Messrs. Milliken, Breen, Norr and Harmon. I. General Policy "Continued success in the field of self-regulation depends upon our judicious use of the existing machinery. Even the finest piece of machinery will break down if the overload is too great. It is as true in our operations as in the political sphere, that the best governed people are those having the least government. To change the figure, when too many artificial barriers are built across a river and too much water dams up, the danger of a major disaster in case the dam does break is vastly increased. "Within the area of delegated responsibility, our 'police' force the Production Code Administration must continue to perform efficiently and sympathetically a very necessary and important function. But aside from enforcement of the moral standards embodied in our Production Code, there should be just as few restrictions as possible upon the judgment of local theatre operators as to what they exhibit on their screens. "Screen Entertainment: It has been stated (in the most recent annual report) that 'there is room, much of which is still unused, for the presentation and treatment of the greatest theses of life, literature, music and drama, along with sheer recreation for the masses, on the entertainment screen. The subject matter of screen entertainment comprehends the manifold relationships of man and man, man and woman, man and family, man and society, man and government, man and God. "The Producer's Responsibility: Producer must determine for himself the dramatic possibilities, the degree of box office appeal, and the probable reaction of the public to a particular theme and its treatment. While officers of the Association and members of the Production Code Administration may with propriety respond to requests for advisory opinions on these points, the final decision as to whether a certain theme not in violation of the Code will be treated in a film, must rest with the Producer. "The Association's Responsibility: Once a film has been completed and submitted to the Production Code Administration for review, it becomes the responsibility of the Association to ascertain whether or not in theme and treatment, it meets the fundamental tests of decency and morality embodied in the Production Code. "If the film deals with a controversial subject, but is free from that which offends decency or is listed in the Code as morally objectionable, then the sole remaining question to be decided by the Production Code Administration should not be whether the film is 'desirable' but whether the presentation deals fairly and honestly, and without deliberate deception, with the subject matter. "The Exhibitor's Responsibility: When the Association by its seal of approval attests the fact that a certain film meets the twin tests of common decency and common honesty, the responsibility then shifts to the exhibitor to determine whether (a) its box office possibilities, (b) the nature of the theme, and (c) the probable reaction of his local community to this theme, justify him in exhibiting it." II. Jurisdiction of Production Code Administration Messrs. Milliken, Breen, Norr and Harmon are in agreement in recommending that there should be no formal amendments to the Production Code at this time. "Since refusal of the Production Code Administration to review a film is tantamount to forbidding its exhibition in affiliated theatres unless films not needing a seal are so classified, and since the extent of the Production Code Administration's jurisdiction is not clear, 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 policy), "b. Films produced by Federal, state or municipal governmental units for the purpose of supplying the public with facts relating to governmental projects or programs (exemption recommended on grounds of public policy), "c. Advertising trailers of a local character (exempted already), "d. Advertising films promoting the sale or use of a commodity (for recommended procedure in handling such films see III below), "e. Sponsored films, produced or distributed by commercial enterprises for promoting 'good will' for the business, industry, profession, or trade (for recommended procedure in handling such films see III below), "f. Films advertising or promoting support for organizations established to sponsor special interests or causes (for recommended procedure in handling such films see III below). III. Jurisdiction of Advertising Advisory Council "Messrs, Milliken, Norr, and Harmon recommend that at the next meeting of the Board of Directors appropriate action be taken providing for the application of the principles of the Advertising Code to films in the following categories excepted above from the jurisdiction of the Production Code Administration: "d. Advertising films promoting the sale or use of a commodity, "e. Sponsored films, produced or distributed by commercial enterprises for promoting 'good will' for the business, industry, profession, or trade, "f. Films advertising or promoting support for organizations established to sponsor special interests or causes.IV. Government Films "Messrs, Milliken, Norr, and Harmon recommend that at the next meeting of the Board of Directors an appropriate resolution be adopted authorizing affiliated theatres in their discretion to exhibit films produced by Federal, state or municipal governmental units for the purpose of supplying the public with facts relating to governmental projects or programs, without requiring prior review and approval of such films by the Production Code Administration or the Advertising Advisory Council as a condition precedent to such exhibition and excepting the exhibition of such films without the Association's seal of approval from penalties now pending."Note dated 7-25-1938 attached to Jurisdiction of Production Code Administration memo: The attached memos to which Messrs. Milliken, Breen and Harmon gave specific attention in the course of extended discussions of pending questions, seemed to them a satisfactory summary of the respective responsibilities of producers, exhibitors and the Association in connection with screen entertainment.14 September 1938 Memo, Breen to Hays: "With regard to the memorandum, dated August 31, 1938, prepared by Messrs. Milliken, Norr, and Harmon, and having to do, in general, with the question of pictures in what you have called 'the twilight zone': "I agree with much that is set forth in the memorandum, but I question Paragraph 2, on page 2, under the general heading, "The Association's Responsibility." "In this paragraph it is set forth that 'If the film deals with a controversial subject ... the sole remaining question to be decided' by the Production Code Administration should be ... 'whether the presentation deals with the subject matter fairly and honestly, and without deliberate deception.' "This paragraph, it seems to me, places upon the Production Code Administration a very serious and difficult responsibility. "For example: One of the minor producing companies, hereabouts, has in mind the production of a picture, based upon the subject, now very much in the public eye, and referred to as 'socialized medicine.' You will recall the row which was started between the American Medical association +officials and certain government employees in Washington, who sought to set up a scheme, whereby those belonging to the group would secure medical and surgical aid, by way of group payment for such. "The American Medical Association protested in some way against this enterprise, and it is my impression that the AMA were later cited, or threatened to be cited, by the Attorney General's office as a monopoly. "We have talked with the local minor producing company regarding their plans to make a picture, suggested by this Washington episode. The subject matter is 'controversial.' No question is raised as to its desirability, and, for the purposes of this discussion, we take it that the picture will be acceptable under the provisions of the Production Code. "But, suppose that the Production Code Administration has the further responsibility of seeing to it that 'the subject matter' is 'fairly and honestly' and 'without deliberate deception' presented. "Who can make this decision, without serious study of this particular problem? True, it might not be difficult to establish the fact, that there is, or is not, 'deliberate deception' in the presentation of the problem, but the phrase, which worries me, is the phrase 'fairly and honestly.' It might even be easy to establish the honesty of he presentation, but how can the Production Code Administration accept the responsibility of saying that the controversial subject matter has been fairly presented, without considerable study of the subject? "It seems to us that, before accepting a responsibility of this kind, we ought to study the matter a little further. In the case of the socialized medicine subject, we would have to be fortified with arguments pro and con, by competent authorities, before we would be in the position of deciding whether or not the presentation was done fairly. In order to assemble this information, a great deal of research work would be necessary. "Again: suppose a company were to submit a story, based upon a controversial subject, like the present civil war in Spain? It would not be difficult for us to decide whether or not the presentation is 'without deliberate deception,' but how are we to fortify ourselves in making a decision that the controversial material is presented 'fairly and honestly'? Here, again, I suggest that to do this would require a great deal of study and research. "From all of which, you will see that I worry a good deal about the expression 'fairly and honestly.' If we are to accept such a responsibility, I can anticipate that the members of this staff will need to do considerable reading, study, and research on a number of matters, which are likely to come up, and this, of course, I seek to avoid. As I told you, when you were here, we are now over-burdened with the doing of much that is not, strictly speaking, within the responsibility of the Production Code Administration. We seem to be surfeited with the need for the doing of a number of things, which are not strictly within our definite responsibility under the Code. "The danger I see in the offing is that we are likely to become confused in administering the Production Code. In reading scripts and viewing pictures, we have, now, so many extraneous matters to be on the lookout for, that it is difficult, at times, to keep track of them, and this, of necessity, 'clouds the issue,' which, after all, is to establish the acceptability of the picture under the provisions of the Code."16 September 1938 Quigley wrote to Hays commenting, in very hostile manner, at the Milliken-Norr-Harmon Report on Jurisdiction of the PCA (concurred in by Mr. Breen as revised [which involved omitting "fairly and honestly"]) 20 September 1938 Milliken and Harmon compiled a reply, which included the text of the Report, Quigley's comments, and their comments on his letter.Introduction"Mr. Quigley says:'I telephoned you this morning about the attached, which you were kind enough to let me see ... This memorandum, dated August 31, saddens me considerably. It is in no way representative of the discussion, last July, participated in by Governor Milliken, Mr. Harmon, Mr. Breen and myself. [Quigley's letter also says, 'It is, to me, an obvious travesty on commonsense procedure to have Mr. Norr's advice on problems arising in this sector.'] "'Apparently some of us are quite unable to learn from experience. The line suggested in this memorandum, partially by where it goes, and partially by where it does not go, is virtually certain to create a damaging situation. "'The essential viewpoint of several sections are enormous in their obvious lack of understanding of the foundation and structure of the Production Code.'Our Comment: "The 'foundation and structure of the Production Code' are not involved. The point to be determined is the extent of the Production Code Administration's jurisdiction in administering a Code, no changes in which are recommended at all. The Production Code Administration's jurisdiction in the 'twilight zone' is not clear and sound administrative procedure requires such a definition.General Policy"Mr. Quigley says:"The two paragraphs on General Policy are a confusion of meaningless platitudes, misstatement of some facts and misinterpretation of others. The Production Code Administration cannot be referred to with any sensible appreciation as a 'police force.' I am quite at a loss to understand what the author of this memorandum is talking about when, in referring to operations of the Production Code Administration, he says: "There should be just as few restrictions as possible upon the judgment of the local theatre operators as to what they exhibit on their screens."'Our Comment:Much of the phraseology to which Mr. Quigley objects is a literal quotation of statements made by Mr. Hays in discussing these problems with us, when appointment of our Committee was under consideration. "Is it not true that there is real danger that overloading the machinery of self-regulation unduly, might result in the breakdown of the whole process? "'Aside from the enforcement of the moral standards embodied in our Production Code' -- what restrictions does Mr. Quigley propose to place upon exhibitors? "Mr. Quigley refers to 'the author' of this memorandum. "Authors' would be more correct. Messrs. Milliken, Norr and Harmon prepared it together after several conferences. Mr. Breen concurred in it with the elimination of four words, and the revision he suggested was agreed to without any hesitation.Screen Entertainment"Mr. Quigley:"Since Mr. Quigley does not criticize this paragraph, we presume, he is in agreement with it.Producer's Responsibility"Mr. Quigley says:"'The paragraph headed Producer's Responsibility is grossly at variance with the facts and the procedure of the existing system, and seems to me, could only have been contributed by someone ignorant of, or intent upon destroying the existing system.'Our Comment: "Producers today are doing exactly what we described. They have been doing this for years and will doubtless continue to 'determine for themselves the dramatic possibilities, the degree of box office appeal, and the probable reaction of the public to a particular theme and its treatment.' "In Mr. Quigley's Motion Picture Herald, for September 17, 1938, is an important article headed: '20 Producers Fill in Gaps in 38-39 Programs by Buying 93 Stories.' "The article lists the stories. The Production Code Administration did not tell these people what to buy. In two or three instances they requested advice and received it. Ninety percent of these properties however, were purchased without nay kind of consultation with the Association and if scripts and films based thereon, conform to the Code, seal will be issued. When and where such film is to be released, are matters for the producer and distributor to decide. There is absolutely nothing new in this.The Association's Responsibility"Mr. Quigley says:"'Virtually the same may be said of the paragraph headed Association's Responsibility ('that it is grossly at variance with the facts and the procedure of the existing system, etc.') with the exception that there is here introduced a reference which may be twisted to justify the approval of that type of subject sympathetic to a system destructive of all morality.'Our Comment:"The paragraph dealing with 'controversial subjects,' simply crystallizes into a definite rule, the procedure which has been followed. "The Production Code Administration did not undertake to decide the 'desirability' of the release of I Was a Prisoner of Nazi Germany. In fact Mr. Breen made it quite clear in his letter sending Code Seal that in approving the film as conforming to the Code, the Production Code Administration was neither approving nor disapproving the subject matter. "Similarly with Blockade, Zola, They Won't Forget and other films to which countries, communities, or groups objected, the Production Code Administration, having found the films in conformity with the Code, issued certificates, without attempting to decide whether the film was 'desirable' or not. "Any other procedure is likely to involve the Association in difficulties under the Federal Anti-trust Laws as an 'unreasonable restraint of trade.' "In the present anti-trust suit one of the charges is that 'There is no opportunity for new forms of artistic expression which are not approved by those in control of the major companies, even though there exist communities which would support them.'The Exhibitor's Responsibility"Mr. Quigley says:"The paragraph head 'Exhibitor's Responsibility' is, again, an invitation to disaster.'Our Comment:"With all due respect, if this paragraph is 'an invitation to disaster,' then tragedy has already overtaken the theatres of the country for every issue of Mr. Quigley's excellent publications indicate that this is exactly the course which exhibitors are following. "a. Last week a report was printed that The Music Hall and Warners were unable to come to terms, hence no Warners pictures were expected to follow Four Daughters to Music Hall. "b. Atlanta Theatres never showed They Won't Forget because of 'the probable reaction (unfavorable) of the community to this picture. "c. Paramount-Saenger Theatres in certain Southern states have not played Snow White because exhibitors were not willing to pay the rentals RKO demanded. "d. Certain theatres declined to exhibit Blockade because of protests from Knights of Columbus and other groups. Certain other theatres 'played up' this picture as a protest against civilian bombings, etc. "Obviously, the exhibitors of the country ARE 'determining' what films they will play, the only limitation being the one we mentioned namely that theatres affiliated with members of this Association agree not to book films unless they bear Production Code Administration seal. "It would be interesting to know what additional limitations Mr. Quigley would place upon the exhibitors and how he would justify them legally.No Code Amendments Proposed"Mr. Quigley says:"'I must admit satisfaction to observe, in face of this mess of confusion, reference to an agreement that there should be no formal amendments to the Production Code at this time.'Jurisdiction of Production Code Administration and AAC"Mr. Quigley says:"'It is clear to me why certain types of subjects, other than entertainment films, should not be passed upon by the Production Code Administration, but I am not at all clear as to why these subjects are exempted from the attentions of the Production Code Administration, and at the same time, are held subject to the attentions of the Advertising Advisory Council.'Our Comment:"Our recommendations here grew out of numerous discussions with which we know you are familiar, in which Messrs. Hess, Palfreyman, Thompson and ourselves participated. We can well understand why Mr. Quigley was somewhat puzzled, since he had not participated in these conferences dealing with the baffling problem of advertising films.Government Films"Mr. Quigley says:"'In the face of what we see going on around us all the time, I can only interpret the section referring to Government Films as a means someone is seeking to employ to bring in quietly by a side entrance what he feels is not politic to bring in at the front door.'Our Comment: "We submitted this recommendation without any enthusiasm whatever, as a proposed practical solution for a very perplexing problem. "Under existing resolutions, affiliated theatres are obligated not to play any film which does not bear the Association's Seal of Approval. "Paramount agreed to distribute the US Government Film The River. To save Paramount from violating resolution, the Production Code Administration, at Paramount's request issued certificate of approval. Exception was taken to this Production Code Administration action as improper and not to be repeated. "Later, Michigan exhibitors affiliated with a member company insisted upon right to exhibit a Michigan state film on Highway Safety. Film was never submitted to, nor approved by Production Code Administration. "We cannot recommend that members of the Association should agree NOT to exhibit any film made by a state or federal governmental agency, under existing legal situation. "To permit member companies to violate existing resolution without a penalty, in case of government films is to encourage other violations and thus undermine Production Code Administration authority. "To review and approve government films seems to endorse their content. "Hence the only other alternative seemed to us to be that recommended -- namely to amend the existing resolution so as to permit affiliated theatres in their discretion to exhibit such films if they desired, hopeful that such films would not contain offensive material, but aware that such a case might arise. "We are prepared to accept any other practicable proposal, PROVIDED steps are taken to live up to it. We feel that tacit acceptance of violations of the agreement not to play 'unapproved' pictures will speedily undermine the structure of self-regulation, which we should earnestly deplore.Conclusion"Mr. Quigley says:"'Someone apparently is taking this whole matter in hand and attempting to run off with it. I appeal heartily to you to take it in hand before it is too late'.Our Comment: "The report of your committee was not presented on our initiative. At June staff meeting you named the committee and gave us our assignment. As you know, members of the committee analyzed to the best of their abilities, these pending problems and then at your specific request, attempted to formulate a brief committee report. "Mr. Breen suggested deletion of four words from one paragraph of this report. The change was made. He approved the general statement of principles and the paragraphs relative to Production Code Administration while he was in New York and his further study lead him to offer only the one suggestion for a change. "The report is in your hands. We join with Mr. Quigley in 'heartily appealing to you to take it in hand.'"23 November 1938 Memo, Breen and Harmon to Hays: "Unless and until some better formula is devised, we shall follow the procedure herein outlined, unless you instruct us otherwise."12 January 1939 Norr to Harmon "With reference to resolutions regarding the jurisdiction of the Production Code Administration: "Let me repeat as strongly as I may, that I believe it is bad public policy, bad legislative, and bad legal policy (in view of the pending Government suit which seeks to involve our Production Code Administration procedures in the monopoly charges), to begin this resolution with a statement that we are trying to apply our Production Code 'to the largest possible number of films in the stream of public distribution.' The fact is that the largest possible number are newsreels and short subjects, and if the educational film ever comes into its own, our moral code should and will be limited to the minority of films in public distribution. "Furthermore, it is pure nonsense to start the resolution this way when the object very obviously is to limit the jurisdiction of the Motion Picture Production Code in various respects. "My discussions with Mr. Hays, with you and with Mr. Milliken, ever since my memorandum of May 27, 1938, was to the effect that the Production Code Administration sought to take on a vastly greater field than was ever intended by the industry's purpose -- which was to adopt and maintain a moral code in the production of motion picture entertainment. "In any point that I made with reference to what I saw is the duty of the Production Code Administration in the reviewing of pictures, it was directed to the ridiculous and dangerous position in rejecting or refusing to service a picture on the grounds of political censorship. For it was obvious that if we refused to service a film on the ground that is was politically 'dangerous' we were, in effect, keeping it out of the leading theatres of the nation, legally bound to pay a fine of $25,000 for the exhibition of entertainment pictures without our seal. "I say again to you that if 'films to promote "good will" for or to advertise a business, industry, profession, or trade' should be excepted from the jurisdiction of the Production Code Administration -- and to that you all seem to agree -- certainly films made by non-commercial organizations relating to matters of public information or public interest should require no seal for exhibition in our theatres "That means that the Boy Scout people should be told that their film does not require the seal of our organization for such theatre exhibition as such a non-commercial organization can secure. Here is the way I would change the resolution." .... Note missing.14 January 1939 Harmon to Breen over the Boy Scout film, which was to be released in February. Hays was apparently en route to Hollywood, and had not yet resolved the jurisdictional question. Harmon presented Breen with 3 different versions of a Resolution, which now excluded newsreels, government films and "motion pictures produced by religious, charitable, educational or philanthropic organizations, for public information and relating to matters of public interest, and which contain no appeal for funds or advertising for the organization" -- if they had such appeal, they came under the AAC as advertising.

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