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Author Topic: Descriptive Narrative now required by theatres
Frank Angel
Film God

Posts: 5116
From: Brooklyn NY USA
Registered: Dec 1999


 - posted 05-23-2010 12:14 PM      Profile for Frank Angel   Author's Homepage   Email Frank Angel   Send New Private Message       Edit/Delete Post 
Business Insurance
Court rules for moviegoers in disability access case

May 03, 2010

SAN FRANCISCO—The owners of movie theaters could be required to install special equipment for patrons with hearing and visual impairments under the Americans with Disabilities Act as a result of a federal appeals court ruling that that has been hailed as groundbreaking.

Friday’s decision by the 9th U.S. Circuit Court of Appeals in San Francisco in State of Arizona vs. Harkins Amusement Enterprises Inc. et al. largely overturned a lower court’s dismissal of the case brought by Frederick Lindstrom, who has severe hearing loss, and Larry Wanger who is blind in one eye and has poor vision the other.

They filed suit alleging Scottsdale, Ariz.-based Harkins Amusement, which operates 21 theaters in Arizona, violated the ADA and state law when they could not see or hear a movie in 2005 because of their respective disabilities.

For those with hearing impairments, two out of Harkins Amusement’s 262 theaters have open captions on the screen, but it has no theaters with descriptive narration for the visually impaired. Another approach for the hearing impaired is closed captioning, which uses a device attached to a seat, according to court papers.

A district court held that neither the ADA nor the Arizonans with Disabilities Act requires movie theaters “to alter the content of their services.”

However, a unanimous three-judge appeals court panel disagreed. “Because closed captioning and audio descriptions are correctly classified as 'auxiliary aids and services’ that a movie theater may be required to provide under the ADA, we conclude the district court erred in finding that these services are foreclosed as a matter of law,” the appeals court ruled in remanding the case for further action.

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John Walsh
Film God

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From: Connecticut, USA, Earth, Milky Way
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 - posted 05-23-2010 12:39 PM      Profile for John Walsh   Email John Walsh   Send New Private Message       Edit/Delete Post 
I installed several of the DTS units. They are cool, work well, not hard to install. If I could not see, I admit it would be great to be able to go with my friends and get more out of the movie-going experience.

OTOH, they cost about $14K each, not including labor. I installed two in Minneapolis, a city noted for it's handicap friendly-ness, and even there hardly anyone uses them. As a theater owner, I'd be upset over spending that much to serve so few people.

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Martin McCaffery
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 - posted 05-23-2010 12:48 PM      Profile for Martin McCaffery   Author's Homepage   Email Martin McCaffery   Send New Private Message       Edit/Delete Post 
Well, right now it only applies to the 9th circuit, and I'm sure enforcement will be put on hold pending an inevitable appeal. It will be interesting to see if it makes it to the Supremes, and if so, whether any clarifying legislation gets through before a ruling.

Stay tuned!

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Scott Norwood
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 - posted 05-23-2010 05:20 PM      Profile for Scott Norwood   Author's Homepage   Email Scott Norwood   Send New Private Message       Edit/Delete Post 
So, what if a theatre shows a film for which the special DTS disks are not available? I can't remember the last art-house release that even had DTS timecode, much less disks. Never mind that a bunch of these (usually from France) don't have disks at all in the US. It has probably been over a year since I have seen any art-house titles with timecode.

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John Hawkinson
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 - posted 05-23-2010 06:54 PM      Profile for John Hawkinson   Author's Homepage   Email John Hawkinson   Send New Private Message       Edit/Delete Post 
This is STATE OF ARIZONA V. HARKINS AMUSEMENT ENTERPRISES (decision pdf). The decision is fairly short, 19 pages, so it's worth reading.

Martin, this is the kind of case that strikes me as exceedingly unlikely to make it to the Supreme Court. They choose about 100 cases out of around 9,000 submitted a year, and a lot the cases not chosen involve real suffering and real money. This case...not so much.

In any event, it would probably go before the 9th circuit en banc first. It is interesting that one of the 3-judge panel ruling here was Alex Kozinski, the chief judge of the 9th (opinion was written by Judge Procter Hug, Jr., however).

II.A.[7] of this decision makes it clear that, as a matter of law, the ADA does not require open captioning. That's certainly a relief since, at least in my view, open captioning is pretty disruptive to the non-disabled patrons.

The lede of the newspaper story was properly ambiguous, when it said "could be required." The 9th's circuit's decision here:

quote: II.A.9

Our holding does not necessarily mean that Plaintiffs will be entitled to closed captioning and descriptive narration in Harkins’s theaters. Harkins may still be able to avail itself of several defenses, such as the contention that the devices would fundamentally alter the nature of its services or constitute an undue burden. See 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(a).

That feels right to me...the only reasons not to support DVS/RWC are that it might be too expensive for the theatres.

In any case, this goes back to the the district court to decide whether there is undue burden, whether the plaintiffs actually have standing, and various other issues. So there's hardly much precedent here.

Scott asks, "So, what if a theatre shows a film for which the special DTS disks are not available?"

Oh, come on. There's no need to nit-pick like this. The disabled guys are asking for reasonable accomodations where they can be provided, they're not asking for the moon. The 9th opinion summarizes as much:

quote:

Major movie studios distribute a significant number of wide-release movies with captions for use with Rear Window Captioning and open caption projection systems. However, accessibility to these services is limited to theaters that have equipment for Rear Window Captioning or open caption projection systems.

...

Major movie studios distribute wide-release movies with descriptive narration capability, but accessibility to this service is limited to theaters that have equipment for audio descriptions.

If we go crazy and review the actual docket entries for the 9th, there's some hilarious stuff. Like:

quote:

12/08/2008 21 37 pg, 116.61 KB Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by National Disability Rights Network. Date of service: 12/08/2008. [6731406] (BE)

12/08/2008 22 Deleted Incorrect Docket Entry (LA)

12/08/2008 23 Entered appearance of Amicus Curiae NDRN. (LA)

12/08/2008 24
2 pg, 36.17 KB Amicus Brief [21], [21], [21] will not be filed because of deficiencies (footnotes too small). Within 5 working days of the filing of this order, filer shall submit a new brief via ECF curing the deficiencies. If a motion was filed with the brief, the motion should be filed again with the submission of the new brief. The previously established briefing schedule remains in effect. (Note: no motion is attached because Amicus has consent from all parties to file brief.) [6731550] (LA)


That's right -- the National Disability Rights Network submitted a brief that was rejected by the court because the footnotes were too small. Think of all the poor judges with diminished eyesight! Surely the ADA grants them big footnotes? [Smile]

NATO filed an amicus brief with a section that struck me as particularly disingenuous:
quote:

While captioning involves quantitatively less subjective artistic activity than narrative description, captioning for movies, unlike the rote replication of dialogue in television captioning, includes descriptions of sounds, sound effects, music, and voice tones--and the dialogue is often modified to compress the written message on screen. Such substantial artistic undertakings cry out for characterization as fundamental alterations. Indeed, if captioning and narrative description are not fundamental alterations in the service offered at movie theaters, it is difficult to conceive what might be, apart perhaps from mandating only happy endings.

NATO's brief also has some words on the obsolecence of film, in the context of digital cinema's approaches to these technologies: "Any requirement of captioning or narrative description by this Court at this juncture would be a blunt and counterproductive approach, require enormous expenditures for film-based equipment adaptations that will become obsolete in the near future"

Looking at the Arizona District Court docket, it appears that the case has not yet been re-opened there (on remand), so I'm sure it'll be a while. [whew, this was kind of a long post...]

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Scott Norwood
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From: Boston, MA. USA (1774.21 miles northeast of Dallas)
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 - posted 05-23-2010 07:18 PM      Profile for Scott Norwood   Author's Homepage   Email Scott Norwood   Send New Private Message       Edit/Delete Post 
jhawk--I wasn't trying to say that this is an unimportant issue because not every film is available with a descriptive soundtrack. My point was more directed to the idea that it would be silly to require a theatre to install this equipment if that theatre has a booking policy (art-house or rep-house, most likely) that might possibly lead to one or two bookings per year that could even make use of it.

I'm generally pretty sympathetic to the needs of disabled patrons, but this seems like it might be a bit of a slippery-slope issue. Will live theaters be required to have interpreters for the deaf and descriptive audio for the blind, too?

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John Hawkinson
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 - posted 05-23-2010 07:22 PM      Profile for John Hawkinson   Author's Homepage   Email John Hawkinson   Send New Private Message       Edit/Delete Post 
I'd be pretty surprised if that question (live theatre) was not already settled...

At this point, nobody's being forced to install it, so it's pretty unclear what the metric would be. But yeah, it certainly sounds like arthouses would have a pretty good case. Besides, they already show a higher fraction of open-captioned titles...

--jhawk

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Steve Guttag
We forgot the crackers Gromit!!!

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From: Annapolis, MD
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 - posted 05-23-2010 07:57 PM      Profile for Steve Guttag   Email Steve Guttag   Send New Private Message       Edit/Delete Post 
Historically, I've found that the way theatres have been having to deal with ADA issues with respect to sight/sound to be rather silly. What the government (FEDERAL) should do is legislate ADA frequencies in the IR and RF spectrums to be used by all facilities.

The theatre should be required to broadcast on those frequencies...in the case of multiplex theatres, IR but single theatres (live or movie) RF is probably a better choice as they are often larger (but not always). You, the disabled, should have your own receivers. Thus, you will have a sanitary means of actually correcting for YOUR specific loss (visual or audio). It should not be the theatre's responsibility to provide you a headset or visual device...just the signal for you to receive.

In this system, your hearing aids will also help you in ANY public establishment...including say, Malls when a fire alarm goes off...the alarm message could be broadcasted on the special frequency too.

The current system of providing low-cost head sets with ear pads (or buds....eeewwww) that almost never are replaced that do little more than amplify the signal without regard for the type of hearing loss is pretty dumb. If you have a hearing loss, you have it everywhere, not just in theatres. Your hearing aids should work for you everywhere. It is not the theatre's responsibility to correct for your loss, just not to discriminate against it. There is a big difference between discrimination and accommodation and outright responsibility.

I'm pleased to see that the DCI is now targeting channels 15 and 16 for the HI and VI channels (respectively) so the information will be there for all movies. Afterall, it is the studio's responsibility to provide the information.

Steve

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Gordon McLeod
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 - posted 05-23-2010 08:54 PM      Profile for Gordon McLeod   Email Gordon McLeod   Send New Private Message       Edit/Delete Post 
I have run into issues with CFL lamps interferring with the 96KHz IR panels

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Steve Guttag
We forgot the crackers Gromit!!!

Posts: 11749
From: Annapolis, MD
Registered: Dec 1999


 - posted 05-23-2010 09:14 PM      Profile for Steve Guttag   Email Steve Guttag   Send New Private Message       Edit/Delete Post 
Yep...95KHz systems will have problems with fluorescents. That is why MOST IR companies have dropped them in favor of higher frequencies. That said, I rarely is an issue in a cinema since the lights are normally dimmed/out when the movie/sound is on.

Steve

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