What does it mean to call something a “director’s cut”? Who else would have a right to “cut” a film if not a director? What sorts of limitations can be placed on a director’s right to “cut” their film?
Let’s start with what a “cut” of a film is. The notion of “cutting” a film derives from the traditional process of editing a film: strips of film containing different takes of scenes would be literally “cut” and spliced together in order to create a single sequentially-running version of the film. As the various individuals working on a film (editor(s), director, producer(s)) create different versions of the film in the process of “finalizing” the film for public release, different people will have different rights to “cut” the film until a “final” version is created. However, even once a film is “finalized”, and released for public consumption (either theatrically or on home video or on TV), there may still be people or entities entitled to further “cut” the film (no George Lucas jokes, please).
A director will generally want the version of the film which arises from their right to cut to coincide as closely as possible with the “final” version of the film which is initially released to the public. To that end, directors will often seek to negotiate a contractual right to “final cut” – a right which is typically reserved only for the most famous and successful directors (and, as will be discussed below, even if a director is lucky enough to get “final cut” rights, those rights will be subject to certain limitations). The default position for audio-visual projects is that the producer(s) of the film will wield the prerogative of “final cut” – it is the producer(s) who will decide when a project is “finished” and ready for public release.
The producer’s right of final cut can be modified by contract: if the director is not a member of a guild such as the Directors Guild of Canada (DGC), then the relevant contracts are the contract between the producer (usually in the guise of the production company) and the director and the contract between the producer and any distributor or broadcaster. In that context, the director will have whatever cut rights they can negotiate, subject to whatever restrictions are imposed on the producer by the distributor/broadcaster (which the producer in turn imposes on the director). However, if a director is a guild member, then their cut rights are informed by the applicable guild agreement. Here’s what the DGC Standard Agreement (Schedule 1) has to say about director’s cut rights:
- Article DR9 clarifies that a “director’s cut” is “the assembling and editing process whereby a Motion Picture is assembled and arranged, or edited under the Director’s exclusive supervision and control” – the agreement further articulates that the right to a director’s cut is an “absolute right” is “a cornerstone of the Director’s creative rights”, and that so long as a director prepares his or her cut within the timeframes specified in the agreement, no one is allowed to interfere with the director’s efforts
- the DGC agreement stipulates various minimum time allowances to which a director is entitled in order to prepare their cut, which timeframes depend on things like type of production (theatrical, TV MOW, episodic TV) and budget levels
- a specific process is identified by which the producer must abide in enabling the director to create the director’s cut: when the director can see the assembled sequences once the editor has completed work on them; who can see the completed assembly before the director (no one other than the editor and the editor’s staff); what happens at the screening of the director’s cut
- even after the director has delivered their director’s cut, the DGC agreement accords certain rights to the director: the right to be present and consult and participate in “all creative decisions throughout the entire post-production period” – that means that a DGC-member director has the right to a “reasonable opportunity, subject to his availability, to screen and discuss the last version of the Motion Picture before negative cutting, digital mastering or dubbing, whichever occurs first”
- further, the producer is obliged to “implement any reasonable and practical suggestions” made by the director in respect of “the last version of the Motion Picture before negative cutting, digital mastering or dubbing”
- the DGC agreement also prohibits producer’s from undertaking post-production work at a distant location in an effort to stymie the feasibility of the director’s exercising his or her right to a reasonable opportunity to be present for post-production decisions – the producer is obliged to pay for the director’s transportation, meals and accommodations to any distant location
- a director is also entitled to further consultation rights to any post-completion edits, discussed in further detail below
While the foregoing list applies to DGC-member directors, any contract with a non-guild director should address the same issues: who wields the right of final cut; timeframes for delivering cuts; any rights (or lack thereof) with respect to post-director’s cut modifications; etc.
As mentioned above, the right of “final cut” generally rests with the producer, and such right is essentially absolute (subject, when hiring a director who is a guild member, to abiding by the guild requirements) – if the producer wants a movie with 110-minute duration and the director delivers a movie lasting 180 minutes, they can chop away (or if the director deliver a cut which would only qualify for an MPAA rating of NC-17, they can make such cuts as they see fit to bring down to the contracted-for rating).
However, even after the producer has delivered the “final cut” to distributors or broadcasters, modifications can be made to the film. Distributors and broadcasters will often have contractually secured for themselves the right to modify a film which has been delivered to them for a variety of reasons, the primary ones being listed below. (As an aside, a producer who has agreed to give a director “final cut” rights should ensure that their contract with the director “carves out” the following reasons, so that the producer can “pass along” such rights to the distributor(s)/broadcaster(s) without falling afoul of their commitment to the director.) The standard reasons for which a distributor or broadcaster can modify a film after it has been delivered to them:
- language dubbing or subtitling
- censorship restrictions (which may vary from territory to territory)
- timing restrictions (e.g., a television version of a film which must meet broadcast time slots)
- content restrictions (such as in-flight versions)
- broadcast standards restrictions
- format alteration (e.g., a “pan and scan” version of a wide-screen film for purposes of broadcast on TV)
DGC members have some protection with respect to such modifications by a distributor/broadcaster: Article DR9.13 stipulates that if a producer enters into a distribution agreement or broadcast license that entitles the distributor/broadcaster to make any such edits, the producer must ensure that the distribution/license agreement requires the distributor/broadcaster to provide notice to the director of the proposed edits and give them an opportunity to comment thereon.
We can see then, that even in a situation where a director has successfully negotiated for themselves a right to “final cut”, other parties, such as producers, broadcasters and distributors will have rights to create what might be termed a “post-final” cut. As Matt Galsor at Law Law Land points out when a director gets a “final cut” right, that right will often be contractually limited to cover only certain versions (such as the US theatrical version and the home video version, but not the broadcast network television version) – but a savvy negotiator will often be able to secure for the director the right of first opportunity to cut the versions outside of the scope of the “final cut” right.
The director’s right to “cut” his or her film, then, is articulated via, and circumscribed by, contractual arrangements put in place between the director, the producer, the director’s guild (if any) and any applicable distributors or broadcasters. That being said, there is one final element which needs to be considered in the Canadian context: moral rights. Assuming, for the moment, that a director is the (or an) author of a motion picture, we should note that Section 14.1 of the Copyright Act (Canada) reads as follows:
The author of a work has, subject to section 28.2, the right to the integrity of the work…
And Section 28.2 of the Act clarifies that “integrity of the work” means:
The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author, … (a) distorted, mutilated or otherwise modified
There is thus at least a plausible argument that a post-director’s cut modification to an audio-visual project which is sufficiently egregious could constitute an infringement of the director’s moral rights. Unfortunately, not only has that issue been considered by Canadian courts, but it is unlikely ever to be considered by them: contracts with directors which have been reviewed by competent producer’s counsel, in addition to describing the limits of a director’s right to “cut” their film, will also generally include an unqualified waiver of moral rights.