By Cameela Ketheeswaran and Gene Goodsell, Special Counsel
When life imitates art, legal boundaries become blurred and people start talking lawsuits. Audience members, traumatised by real criminals, file lawsuits against writers of fictional characters acting in imagined worlds.
The recent blockbuster The Dark Knight Rises was overshadowed by the massacre at the midnight viewing, in Aurora, Colorado. The violence that ensued paralleled the violence in the film. In light of the indiscriminate killings and the assertion made by the shooter, James Holmes, that he was in fact the Joker, violence and censorship in films was pushed to the fore. Aside from the arguments for and against stricter gun laws, for many, there remains the pervasive issue of violence in films.
The legal implications associated with screening such films can be seen whenever lawsuits are brought against film studios whenever graphic film violence spills over into real life. For example, one Aurora shooting victim, Torrence Brown, is suing three entities, one of which is Warner Bros, for creating The Dark Knight Rises.
There are three questions that must be asked. Firstly, can the creators of movies be attributed responsibility for violent films? Secondly, what level of violence is acceptable and non-attributable to the filmmakers? Thirdly, should any film with excessive violence be banned?
What does the law say?
Historically, in the US, courts tend to avoid assigning liability to film studios and companies when real violent, criminal acts take place as alleged consequences of the films’ fictional portrayals of violence. The opposing argument to victims’ claims is that artists’ freedom of expression is secured under the First Amendment. This precedent was affirmed in cases concerning the film Natural Born Killers, The Basketball Diaries and Boulevard Nights.
On the one hand, many argue that there is a link between violent films and mentally unstable individuals replicating such behaviour.
On the other hand, policy arguments and case law supporting the First Amendment in the US and freedom of expression in Australia, aims to prevent Government censorship of films. If this were to occur, it would ultimately lead to State selection on viewable content in films. Such censorship would remove the fundamental right that an individual has to artistically express themselves without the interference of the State.
In 2011, the Australian government banned the gruesome films Human Centipede II and A Serbian Film after a conservative group lobbied against their release in Australian cinemas. The Classification Review Board gave the films a rating of RC (Refused Classification) and recalled all copies from retailers. Retailers and theatres may be unable to sell the films to the Australian public legitimately; nevertheless, a curious member of the public could still download the film. This moves responsibility and liability away from vendors and back to the creators – writers, directors and production companies. With our ability to download any type of content from the Internet, does classification serve any purpose?
‘Spectator violence’, a phrase used to describe violence perpetrated by patrons of motion pictures and sporting events, has occurred in Australian. In 2009, Greater Union pulled the Australian film Combination within three days of its release to theatres. The reason may be readily attributed to spectator violence. Although Greater Union asserted that such violence wasn’t a result of the film, the decision to pull the film may have been an attempt by the theatres to avoid lawsuits and further violence on their premises.
There is no substantial contractual or legitimate link between the parties (such as the film studio and the perpetrator) in this context. For example, there was no fiduciary obligation or agency relationship between Holmes and Warner Bros. If anything, the lawsuit and others like it should emphasise how freedom of expression is a valued right that should be protected.
What happens if Warner Bros. is held liable?
One of the issues many have with violence in films is how it is glamorised by celebrity actors. Violence inflicted by relatable or heroic characters, accompanied by a soundtrack of popular music, may blur the boundaries of fiction and reality, particularly where legal consequences are missing from the plot.
Regardless, if the Batman massacre lawsuit is successful, it will set a dangerous precedent. The attorney for Torrence Brown argues that the Dark Knight Rises was ‘particularly violent’ and that Holmes ‘mimicked’ some of the action in the film. By this logic, regardless of the film being given a PG-13 rating in the US, it and many other films like it can be deemed particularly violent, leaving its creators liable for any resulting criminal acts perpetrated by individuals.
James Holmes is 24 years old and is legally allowed to view the film in the US. If Warner Bros. were found liable for the actions of Holmes, this would mean that a filmmaker can create films deemed legally acceptable for children, teenagers or adults, however, also has to consider whether a film may have an adverse impact on sensitive individuals who have mental health issues.
Films may be a contributing factor to spectator violence, but it is never the sole factor and is often fuelled by numerous other factors.
How is the film industry responding?
Movie mogul Harvey Weinstein has called upon fellow directors renowned for violent films, to assess their role in the violence that played out in the Batman massacre.
Remarkably, this is a step towards self-censorship, by a co-producer of the gory Inglorious Bastards, directed by Quentin Tarantino. The point argued by Weinstein is that violence has become ‘excessive’ and perhaps unnecessary when attempting to convey a message or produce an effect upon viewers.
Conversely, Tarantino approached the subject from the perspective of the voyeur: “If a guy gets shot in the stomach and he’s bleeding like a stuck pig then that’s what I want to see — not a man with a stomach ache and a little red dot on his belly.”
Irrespective of the weak legal foundations of the case or moguls empathy, it is important that blame isn’t placed upon artists. As Marilyn Manson stated in response to the public’s finger-pointing after the Columbine massacre:
“I think that the National Rifle Association is far too powerful to take on, so most people choose ‘Doom’, ‘The Basketball Diaries’ or yours truly. This kind of controversy does not help me sell records or tickets, and I wouldn’t want it to. I’m a controversial artist, one who dares to have an opinion and bothers to create music and videos that challenge people’s ideas in a world that is watered-down and hollow. In my work I examine the America we live in, and I’ve always tried to show people that the devil we blame our atrocities on is really just each one of us. So, don’t expect the end of the world to come one day out of the blue — it’s been happening every day for a long time.”
This blog is for discussion purposes only. This must not be considered legal advice.
For legal advice on this topic and references to any information in this article, please contact
Gene Goodsell, Special Counsel:
Phone: 1300 725 105
Connect with Gene on Linked In
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