Open captioning is great. The captions are right there on the screen. We don’t need to self-identify and pick up a viewing device. The theaters don’t need any special equipment – they just select the open-caption option from the digital data package, and the captions appear for that showing.
While we like open captions, the theaters don’t – or at least, they haven’t. Their concern is that a lot of hearing people find open captions distracting. And they have some old data to back this up – prior to digital conversion, Regal showed some open-captioned movies at off hours, and attendance at the captioned showings was lower than attendance at non-captioned showings.
My offhand observation is that people actually exposed to open captioning don’t find it all that offensive, but a lot of people think they won’t like it. From the theaters’ point of view, that’s actually the worst possible situation, because those folks won’t give open-captioned movies a try. And from our point of view, the problem is that a number of the people who think open captioning would be a distraction wear judicial robes or are federal regulators. So even when we win smashing victories for closed captioning, we lose on open captioning.
And yet . . . there is hope. I’ve always taken the position that lower attendance at individual open-captioned showings doesn’t mean much, and that the real issue is whether some open-captioned showings reduce overall theater revenue. My hypothesis has always been that if open-captioned showings are publicized in advance, people who don’t want open captions will go to a different movie at the multiplex or go to a different showing, in which case the theaters don’t lose any money. Conversely, people who really do want and need open captioning, even if relatively few in number, represent revenue that the theaters would otherwise not realize.
There is interesting data available. Hawaii passed a law effective in 2016 requiring the larger theater chains in that state to offer some open-captioned showings. (There is some question about whether all the Hawaii lawmakers realized that the theaters already were offering closed captioning.) The affected theaters in Hawaii did a nice job implementing that law in good faith – the open-captioned showings were at different times, not all at off hours, and it appeared possible to see essentially any movie with open captioning at some point during the week.
Here’s the interesting thing – even though the Hawaii law expired at the end of 2017, the theaters there appear to still be offering some open-captioned showings. Other theaters in other parts of the country are doing the same. So even though the legal battle may have been lost, the public-relations and customer-service approaches appear workable, and in fact, appear to be gaining ground. It certainly helps to have high-profile individuals like Nyle DiMarco speak out in favor of open captioning. (I would suggest that any open-captioned movie Nyle DeMarco planned to attend would have a terrific turnout.)
There are ways captioning can be made to work for everyone. A typical movie is shown 31 times per week – four showings each weekday, five each weekend day. (Friday is a weekend day for movies.) People with hearing loss represent about 8% of the United States population, and we vastly prefer open captioning. Would it be too much to ask theaters for two open-captioned showings at each auditorium each week? And would it be too much to ask that those showings be staggered, so that there is essentially always at least one open-captioned movie at the multiplex, and at least one opportunity to see each movie on a weekend?
I think the key here is to be reasonable, and recognize the legitimacy of the theaters’ concerns. We cannot expect everyone to “live in our world” and accept open captioning immediately, nor can we expect the theaters to accept reduced attendance on the opening weekend of a real blockbuster, when people who don’t want open captions really might go elsewhere. But by week three or four, even blockbusters aren’t filling the auditorium any longer, and open-captioned showings could be scheduled at times that wouldn’t reduce overall theater attendance.
One great thing about the ADA, as we all know, is that it does not trump state or local laws more protective of people with disabilities. If we don’t like what ADA gives us, we can try to get our state or city to do better. Drawing on the Hawaii experience, I think reasonable open-captioned accessibility is a promising subject for such laws. I know efforts are under way in some jurisdictions, and I hope efforts of this sort flower in many spots.
Having been involved in movie theater captioning litigation for the past ten years, I’m happy to see a project of this magnitude finally coming to a reasonably successful conclusion. We’ll be able to have captions for essentially every movie, although there are a few small independent films that may still be released without captions, and there’s the persistent, vexing and unexplained problem of uncaptioned previews. But with the adoption and implementation of the DOJ regulations, the theater doors are largely open to us once again.
John Waldo is counsel to the Association of Late Deafened Adults (ALDA), a nationwide support and advocacy group, and to the Washington State Communication Access Project (Wash-CAP) and the Oregon Communication Access Project (OR-CAP), two statewide advocacy groups.
Disclaimer: The views and opinions expressed in this post are those of the author and do not necessarily reflect the official policy or position of the Deaf and Hard of Hearing Bar Association (DHHBA). Additionally, this post does not constitute legal advice and does not create an attorney-client relationship with anyone. If you need to contact an attorney, please visit our Find A Lawyer page.