Full Title Name:  Detailed Discussion of the Legal Protections of Animals in Filmed Media

I. Introduction

Live in three, two, one. Famous animals from Toto and Willy to Babe and Lassie all have taken center stage in Hollywood and took the hearts of movie goers everywhere. However, the life of an animal actor is not all glitz and glamour with reports of animal abuse. Despite these reports, the federal government and states have not implemented any laws specifically governing the use of animals in film. Instead, an industry watch-dog, the Animal Humane Association (AHA), stepped in to help assure better treatment. 

This paper will focus on how the legal system and the entertainment industry protect animal actors from abuse. First, it will outline the history of animals in filmed media. Next, the modern use of animals in filmed media will be discussed. Finally, the paper analyzes the laws protecting animals in filmed media including federal protections, state protections and the entertainment industry standard.

II. History Background

The use of animals for entertainment dates back thousands of years stemming from the public’s fascination with man’s control over animals. http://www.libraryindex.com/pages/2189/Entertainment-Animals-HISTORY.html . Animal actors began their careers in the 1870s performing in theatrical variety shows called vaudeville shows. Id . Animals of all types appeared on the vaudeville stage, including sheep, pigs, cats, dogs, horses, bears, elephants, donkeys, monkeys, and birds. Id . Famous vaudeville shows depicting animals include Laura Comstock's Bag-Punching Dog, Stealing a Dinner , and Jumbo--the Trained Elephant . Id .

In 1920, motion pictures replaced the popular vaudeville shows. Id . Some of the first motion pictures using animal actors include Electrocuting an Elephant , Rin Tin Tin , Black Beauty, and Lassie Come Home . Id . Animal abuse was rampant in the entertainment industry at this time. Id . For example, as many as 100 horses died in the making of the 1926 version of Ben Hur. http://www.salon.com/2012/04/02/hollywoods_long_history_of_animal_cruelty/ . In Tarzan of the Apes , the first Hollywood Tarzan actually stabbed a lion to death during filming. http://www.cbc.ca/fifth/cruelcamera/cruelty.html .

III. The Modern Age

Through the use of technology and a better appreciation for animals, the treatment of animals has changed drastically in Hollywood since the motion picture industry began. In fact, the 2011 prequel The Rise of The Planet of the Apes starred no real animal actors. http://www.mnn.com/lifestyle/arts-culture/blogs/rise-of-the-apes-features-stunning-computer-generated-imagery-of-animal . Instead, director Ruper Wyatt used advanced computer animation. Id . According to one release, “Wyatt wanted to send a message to other studios that in this day of advanced computer animation, there’s no need to stress out real animals for filmmaking.” Id .

Furthermore, animal rights organizations, including People for the Ethical Treatment of Animals (PETA) and Animal Legal Defense Fund (ALDF), urge films to use commuter generated imagery and petition for citizens to boycott films that use animal actors. http://features.peta.org/never-be-silent/animals-in-entertainment.aspx . ALDF recently had some success with this campaign when Coca-Cola banned the use of primates in film submissions for its 2007 Filmmaker's Award Program. http://aldf.org/article.php?id=291 . This was after Coca-Cola found out that the chimpanzees used in the winning film entry for 2006 were the subjects of an animal abuse lawsuit filed against their trainer. Id. Coco-Cola stated to ALDF that "in light of the concerns you raised we are prepared to eliminate the use of primates in any future productions for this program . . . ." Id.

The entertainment industry even recognizes the talent of animal actors now. http://www.tvacres.com/awards_animals_patsy.htm . In fact, each year, the American Humane Association honors animals with the Picture Animal Top Star of the Year (PATSY) award. Id. The first PATSY was given to "Francis" in Francis the Talking Mule in 1951. Id . The second and third PATSYs that year went to "California" for The Palomino ; and "Pierre" in My Friend Irma Goes West . Id .

Most recently, the horse racing series Luck was canceled by HBO after three horses died during production. http://www.usatoday.com/sports/story/2012-03-14/horse-hbo-cancels-luck/53538330/1 . HBO indicated that "[w]hile we maintained the highest safety standards possible, accidents unfortunately happen and it is impossible to guarantee they won't in the future," and “[a]ccordingly, we have reached this difficult decision.” Id .

Although the progress towards better treatment of animal actors is clear, advancements are still necessary. This continued legacy of animal abuse in films raises concerns over what protections actually exist under current law. 

IV. Federal Protections

Although the use of animals in filmed media is not directly addressed by any federal law, two federal laws protecting animals in general may apply to animals in filmed media.  For example, film producers who use animal actors may fall under the category of “exhibitors” under the Federal Animal Welfare Act (AWA). Additionally, film producers may be prohibited from using certain species that have been declared endangered or threatened by the Federal Endangered Species Act (ESA).

A. Federal Animal Welfare Act

i. Overview

Among other reasons, the AWA was enacted “to insure that animals intended . . . for exhibition purposes . . . are provided humane care and treatment . . . .” 7 U.S.C. § 2131 . In fact, the AWA requires exhibitors to follow certain humane standards of care and treatment for certain animals exhibited to the public. Id . The law empowers the Secretary of Agriculture of the United States to enforce criminal and civil penalties as well as to revoke permits for violations of the AWA.  Id .

ii. Applicability 

The AWA regulates, inter alia, “exhibitors.” 7 U.S.C. § 2132 . An exhibitor means the following:

Any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary.

Id . At first glance, this definition seems to include film producers using animals in filmed media. However, this is not quite clear as film producers usually rent the animal actors from private companies. Of course, the private parties renting the animals do meet the definition of “exhibitor.” Neither case law nor any statute explicitly explains whether film producers meet the definition of “exhibitor.”

Importantly, of 373 USDA licensed exhibitors in California, only two production studios were listed: Playboy Enterprises, Inc. and Walt Disney World Company. http://www.aphis.usda.gov/animal_welfare/licensing.shtml . The others mostly included private individuals or companies renting animals to the entertainment industry and other non-film related exhibitors. Id. This strongly suggests a de facto standard that only the private rental company rather than the film producer must be licensed. Id .

According to the United States Department of Agriculture (“USDA”), the use of animals in promotions and in film is subject to AWA requirements. http://www.aphis.usda.gov/animal_welfare/licensing.shtml . In a USDA publication, it states “[a]ny owner exhibiting animals doing tricks or shows must be licensed [and] . . . includes each person owning animals performing in . . . television shows, movies . . . ." http://www.aphis.usda.gov/animal_welfare/downloads/aw/awlicreg.pdf . This statement seems to require an “exhibitor” to own the animal. Film producers typically do not own animals, rather the private companies renting the animals do.

However, the United States Court of Appeals’ decision in Robinson v. U.S shows a set of facts in which a movie producer might be classified as an “exhibitor” for purposes of the AWA. Robinson v. U.S. , 718 F.2d 336 (10th Cir. 1983). In Robinson, Defendant transported a wolf from Utah to California for exhibition on television without a license. Id. When the 10th Circuit discussed whether defendant was subject to the Act, the Court explained that “Robinson's testimony at the September 15 hearing conclusively showed that he transported the wolf from Utah to California for exhibition on television shows in return for money and other things of value . . . [and] [s]uch activity undoubtedly subjects Robinson to the strictures of the AWA.” Id . Thus, the Court found Defendant to be an “exhibitor” as he used animal actors in filmed media. Id. Importantly, the court did not mention whether Defendant owned the animal. Id .

Likewise, the Secretary of Agriculture included “animal acts” within the compass of the AWA.  Haviland v. Butz , 543 F.2d 169 (D.C. Cir. 1976). Animal acts are any performance of animals where such animals are trained to perform some behavior or action or are part of a show, performance, or exhibition. Id . In Haviland v. Butz , defendant presented an animal act with dogs and ponies to paying audiences and occasionally appeared on commercial television. Id . Defendant asserted that he did not “exhibit” animals simply by showing dogs and ponies and argued that the Secretary unconstitutionally added “animal acts” to the AWA. Id . The court held that the inclusion of “animal acts” was authorized as“[t]he words ‘includes’ and ‘such as’ [in the AWA] point convincingly to the conclusion that the listing of types of exhibitions in the statutory text was intended to be but partial and illustrative.” Id. This broad interpretation of the AWA’s definition of “exhibitor” could include film producers. 

Consequently, it can be argued that film producers may be subject to and regulated by the AWA but neither case law nor any statute explicitly states this. Only those movie producers who own, or in the case of Robinson , transport and receive remuneration for the animal actors, seem subject to the AWA. However, no federal court seems to have touched the issue since Robinson in 1983, so under what circumstances a movie producer would be considered an ‘exhibitor’ are unclear.

For all practical purposes, the AWA protects animal actors by regulating the private parties that rent animals to film producers. In fact, the AWA require these private parties to obtain a license. As noted, there are at least 371 licensed animal rental companies in California alone subject to USDA licensing. In fact, the AWA states the following:

No…exhibitor shall sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition or for use as a pet any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this Act any animal, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked.

7 U.S.C. § 2134 . Specifically, the AWA grants “exhibitors” class c licenses. 9 C.F.R. § 1.1 . A class “C” licensee means “a person subject to the licensing requirements under part 2 and meeting the definition of an ‘exhibitor’, and whose business involves the showing or displaying of animals to the public.” Id .

An exhibitor may obtain a license only if the facility is in compliance with all AWA standards and regulations. http://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/fs_awawact.pdf . Such standards and regulations focus on the following areas: housing, handling, sanitation, nutrition, water, veterinary care, and protection from extreme weather and temperatures. Id . To assure compliance, an inspection may be required. Id .

All licensed exhibitors must continue to comply with all AWA standards and regulations. Id . These regulations include recordkeeping, paying annual fees, inspecting, marking and identifying animals and complying with specified humane standards. Id. APHIS inspectors regularly make unannounced inspections. Id .

iii. Limitations

Not all animals are protected by the AWA. In fact, the AWA defines “animal” as the following:

Any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for…exhibition purposes…but such term excludes (1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research, (2) horses not used for research purposes, and (3) other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs including those used for hunting, security, or breeding purposes.

7 U.S.C. § 2132 . Thus, only dogs, cats, primates, and other warm blooded animal actors are protected while cold-blooded animal actors, birds, rats, and mice are not.

B. Endangered Species Act

i. Overview

Enacted in 1973, the Endangered Species Act (ESA) provides a means of protecting animals from extinction. The ESA requires the Secretary of the Interior to identify species that are “endangered” or “threatened.” 16 U.S.C. § 1533(a)(1) . An “endangered species" means “any species which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532 . The term "threatened species" means “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532 .  Three different departments of the federal government administer ESA: the Department of Interior (endangered animals generally), the Department of Commerce (marine mammals), and the Department of Agriculture (plants). For the full List of Endangered and Threatened Species, see 50 CFR § 17.11 (animals).

ii. Applicability

Most importantly, the ESA makes it unlawful to “take” any endangered species within the United States. 16 U.S.C. § 1538 . Taking means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19) .”  Courts construe the term “take” very liberally and define it in the broadest possible manner. Strahan v. Coxe , 939 F.Supp. 963 (D.Mass. 1996) For example, the court found that construction on a residential condominium project site caused a “take” within meaning of the Endangered Species Act since it harassed the bald eagle population. Center for Biological Diversity v. Marina Point Development Associates , 434 F.Supp.2d 789 (C.D.Cal. 2006). This means that a production company wanting to acquire a Siberian tiger or other endangered species will not be able to “take” the tiger from the wild.

iii. Limitations

Despite the ESA, film producers and private parties renting to film producers skirt the prohibition on endangered species through a variety of methods. First, the Secretary may issue enhancement of survival permits.  These permits may allow parties to "take" endangered or threatened species for use in their films. Also, for a species that is listed as threatened or as an experimental population, special rules may allow otherwise prohibited activities.

An enhancement of survival permit allows “any act otherwise prohibited by section 1538 [section 9] for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of [reintroduced] experimental populations.” 50 C.F.R. § 17.3 . “Enhance the propagation or survival” means the following:

Enhance the propagation or survival, when used in reference to wildlife in captivity, includes but is not limited to the following activities when it can be shown that such activities would not be detrimental to the survival of wild or captive populations of the affected species:

(a) Provision of health care, management of populations by culling, contraception, euthanasia, grouping or handling of wildlife to control survivorship and reproduction, and similar normal practices of animal husbandry needed to maintain captive populations that are self-sustaining and that possess as much genetic vitality as possible;
(b) Accumulation and holding of living wildlife that is not immediately needed or suitable for propagative or scientific purposes, and the transfer of such wildlife between persons in order to relieve crowding or other problems hindering the propagation or survival of the captive population at the location from which the wildlife would be removed; and
(c) Exhibition of living wildlife in a manner designed to educate the public about the ecological role and conservation needs of the affected species.

Id . Accordingly, these permits may allow film producers to "take" endangered or threatened species when films enhance the survival of the species. Id . For example, films may be designed to educate the public about the ecological role and conservation needs of the affected species. Neither case law nor statute specifies when a film is accepted as enhancing the survival of the species but it may be argued as such on a case by case basis. 16 U.S.C. § 1539 . 

Additionally, the ESA does not expressly prohibit the "taking" of “threatened" species. Instead, the ESA requires the agency to issue regulations that promote the conservation of the species. 16 U.S.C. § 1533(d) . In most cases, these regulations prohibit the same activities as the endangered species rules, but expand the list of purposes for which a permit may be issued to import, export, sell in interstate or foreign commerce, or “take” the “threatened” species. Id. However, in the case of captive chimpanzees, FWS made a special rule that regulates captive chimpanzees differently according to each animal’s country of origin. This split listing of chimpanzees makes wild-born chimpanzees endangered and captive born U.S. chimpanzees threatened.  The impact of this is that chimpanzees born in this country can be used freely, absent other state laws and obtainment of permits, in the entertainment industry. 50 C.F.R. § 17.11 (h) . 

V. State Protections

Not only is Federal law limited in its application to animals in filmed media, but the states also lack any direct laws. In fact, state laws concerning filmed animals only relate to the two general subjects: (1) general anti-cruelty laws; and (2) laws that prevent the depiction of animal cruelty.

A. General State Anti-Cruelty Laws

All states have a law preventing animal cruelty, with only two states that do not have a felony provision for certain malicious acts. Cruelty laws would be generally applicable to animals used in filmed media as there appears to be no exceptions under most state cruelty laws that would exempt film producers. For example, Washington makes it a class C felony to intentionally “inflict substantial pain” on any animal. WA ST 16.52.205 . Thus, a film producer would be prevented from using an electric prod or other means to induce an animal to perform in a scene. Id .

Additionally, most cruelty laws cover animal neglect. If a person with custody of an animal fails to provide necessary sustenance, this would also constitute cruelty. For example, in Minnesota, “no person shall . . . neglect . . . any animal . . . .” MN ST 343.21 . Under this neglect component, the statute states that “no person shall deprive any animal over which the person has charge or control of necessary food, water, or shelter, among other things.” Id .

For further illustration, California law states "anyone who with malice or intent kills, maims, tortures, or wounds a living animal may be imprisoned and/or subject to a fine of not more than $20,000." CA PENAL § 597 . The word “anyone” in the statute would apply to film producers using animal actors and the word “living animals” would include animal actors. Thus, in California, if a movie producer used a living chimpanzee in a film, the film producer could not legally intentional or maliciously kill, maim, torture or wound an animal actor.

B. Laws Preventing the Depiction Animal Cruelty

In addition to general anti-cruelty laws, a select few states have made laws that criminalize the filming of animal cruelty including California, Illinois, and Maine. Mentioned above, each state has a law proscribing animal cruelty but these laws have been ineffective against those that depict animal cruelty due to prosecution difficulties. For example, it is near impossible to identify the individual in the film. In addition, the production, sale, and distribution of the videos remain permissible. Such laws not only protect animals but also prevent morally wrong behavior.

California law specifically mentions animal actors. California law states the following:

The exhibition of any motion picture, if any intentional killing of, or cruelty to, a human being or an animal is shown in the motion picture and such intentional killing of, or cruelty to, a human being or an animal actually occurred in the production of the motion picture for the purpose of such production, is a nuisance, which shall be enjoined, abated, and prevented.

Killing and cruelty mean conduct which both (1) results in the death or the infliction of any physical injury or wound, including, but not limited to, any temporary or permanent physical harm resulting from the administration of any drug or chemical, and (2) is patently offensive to the average person, applying contemporary statewide community standards.

Cal. Civ. Code § 3505 . California law defines “animal” as “any amphibian, bird, mammal or reptile,” but does not include any fish or insect. Cal. Civ. Code § 3504 . It defines “motion picture” as “any motion picture, regardless of length or content, which is exhibited in a motion picture theater to paying customers, or is exhibited on television to paying customers or under the sponsorship of a paying advertiser.” Id . 

Illinois also has a law addressing depiction of animal currently. Illinois law states “[n]o person may knowingly create, sell, market, offer to market or sell, or possess a depiction of animal cruelty.” 510 ILCS 70/3.03-1 .  Additionally, “[n]o person may place that depiction in commerce for commercial gain or entertainment.” Id . “Depiction of animal cruelty means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording, that would constitute a violation of Section 3.01, 3.02, 3.03, or 4.01 of the Humane Care for Animals Act [FN1] or Section 26-5 of the Criminal Code of 1961.” Id .

Lastly, Maine also prohibits such conduct. In Maine, “[a] person, including an owner or the owner's agent, is guilty of unlawful production of motion pictures if that person knowingly or intentionally prepares, manufactures, makes or participates in the preparation, manufacture or making of any motion picture film or videotape production involving cruelty to animals during the course of preparation, manufacture, making or exhibition of the motion picture film or videotape production.”  17 M.R.S.A. § 1013 . While these three state laws address the dual problem of inflicting animal cruelty and harm to the public through commerce in “patently offensive” material, no states have directly regulated the care of animals that appear in filmed media. In light of the lack of federal or state standards, the film industry has relied for decades on self-regulation. 

VI. Industry Standard

A. American Humane Association

i. Overview

In 1939, during the filming of “Jesse James,” a horse died after being forced onto a slippery platform that was tilted up to ensure the horse slipped off the cliff.  http://www.americanhumanefilmtv.org . This and many other common abusive practices prompted the Motion Picture Association of America to take action. Id . Ultimately, they legally empowered the Film and Television Unit of the American Humane Association (AHA) to monitor how animals are treated in movies, television, commercials, and music shows. Id . In fact, the group was granted the sole authority for this in 1980 in a contract between the Screen Actors Guild (SAG) and producers. Id . Thus, all domestically filmed Screen Actors Guild (SAG) productions are required to provide the AHA unlimited on-set access whenever animals are used. Id . On the set, the American Humane Association’s Certified Animal Safety Representatives ensure that the Guidelines are upheld; advise production on safety issues; document all animal action and care; and serve as independent, professional, objective witnesses to the treatment and well-being of animal actors. Id .

The AHA follow these four basic principles:

1. No animal will be killed or injured for the sake of a film production;
2. If an animal must be treated inhumanely to perform, then that animal should not be used;
3. Animals are not props! If an animal is used off camera as background or to attract the attention of an animal being filmed, the same humane guidelines must apply to that animal; and
4. “Animal” means all sentient creatures including birds, fish, reptiles and insects.

http://www.americanhumane.org/assets/pdfs/animals/pa-film-guidelines.pdf .

ii. Six Required Steps

In order to earn the American Humane Association’s End Credit Disclaimer “No Animals Were Harmed,” the following steps need to be completed by film makers:

1. The producer must notify American Humane Association’s Film & TV Unit before filming begins when a production uses ANY animals.
2. Once notified, the producer must complete AHA’s production information form that requests contact information, and production information. This form also requires the following paperwork from the production: Full scripts, Crew lists, Full shooting schedules, One-line schedules/shot lists, Storyboards (for commercials, music videos, and still shoots), and Animal/Livestock Day-out-of-Days (if the production uses them).
3. Producers also must include AHA on the production’s daily call sheet email distribution list or fax batch.
4. Download, read, print, and distribute the Guidelines for the Safe Use of Animals in Filmed Media to all cast and crew members who are involved in scenes with animals, including prop masters, explosive experts, and stunt coordinators. (See below for guidelines)
5. Ensure that all the animals working in your production have all necessary federal, state, and local permits as well as any other licenses that may be required by law.
6. Finally, a screening with the AHA is required to determine if the production is eligible for the End Credit Disclaimer.
   http://www.americanhumane.org/assets/pdfs/animals/pa-film-guidelines.pdf .

iii. Guidelines

The AHA’s Guidelines for the Safe Use of Animals in Filmed Media governs the following areas: general guidelines; veterinary care guidelines; guidelines for productions, cast, and crew; reality programming; costumes, makeup, rigging and props; location and/or set safety; special effects; stunts; and species-specific guidelines. http://www.americanhumane.org/assets/pdfs/animals/pa-film-guidelines.pdf . The Guidelines include sections on appropriate housing for animals; the treatment of loose, stray and/or feral animals at a film location; the use of animal substitutes, dead animals, and animal parts; and proper training methods. Id . The following pertinent sections are instructive how the Guidelines protect animal actors:

If, upon review of the script, American Humane Association believes there to be any dangerous animal action, American Humane Association will strongly encourage simulating the action through the use of computer-generated images (CGI), animatronics or fake animal doubles to minimize the risk of injury to animals.

American Humane Association recommends that productions be proactive when choosing times or seasons in which to film with animals.

American Humane Association staff, animal handlers, production company staff, veterinarians (when appropriate) should communicate and collaborate regarding the care and management of animals during preparation, rehearsal and filming.

All animals are to be transported safely, humanely and in accordance with applicable laws.

After traveling, animals should be allowed adequate time to rest and acclimate prior to beginning work…

Animals should never be left unattended or unsecured in a manner that would be unsafe or uncomfortable for the animals.

Only animals that are in appropriate conditions to work shall be used.

Nothing shall be done to an animal that will cause harm or permanently alter its physical characteristics.

Id . Once filming has been completed, the AHA publishes reviews of the motion picture describing how the animal action scenes were accomplished. http://www.americanhumanefilmtv.org/ . It then rates each production based solely on the treatment of the animals used in the production. The motion pictures are rated as: outstanding, acceptable, special circumstances, unacceptable, production complaint, and not monitored. Id .

Outstanding: Safety Representatives were on set to ensure the safety of the animals throughout production.

Acceptable: Safety Representatives were not able to monitor every scene in which animals appeared. However, American Humane Association oversaw significant animal action filmed in compliance with the guidelines.

Special Circumstances: Production followed American Humane Association’s the guidelines and cooperated with the protective measures enforced by our Certified Animal Safety Representatives. However, an accident, injury or death involving an animal occurred during the course of filming but a full investigation revealed that the incident was not a result of negligence or malice on the part of the production or animal suppliers.

Unacceptable: Production failed to adhere to the guidelines or disregarded animal safety leading to improper animal safety and directly caused the injury or death of an animal.

Production Compliant: Safety Representatives were unable to directly supervise the animal action due to limited resources and/or scheduling conflicts. The production complied with all registration requirements, however, submitting a shooting script and relevant animal scheduling information, and provided a pre-release screening of the film as requested by American Humane Association.

Not Monitored: The production did not seek monitoring oversight from American Humane Association’s Safety Representatives during filming. Thus, the AHA cannot attest to the treatment of the animal actors or know whether the guidelines were followed. Id.

iv. Criticism

Despite these guidelines, documents revealed in 2001 stated that the group “lacks any meaningful enforcement power under the SAG contract, [and] depends on major studios to pay for its operations and is rife with conflicts of interest.” Questions Raised About Group that Watches out for Animals In Movies , Los Angeles Times, Feb 9, 2001 at A1. Thus, much of the time, AHA is citing the very people who fund their operations. Id .

An additional conflict of interest issue concerns the unit director’s prior involvement with the powerful Alliance for Motion Picture and Television Producers. Id. The fact that just one studio release has received an outright "unacceptable" rating in the past ten years may prove the seriousness of these conflicts of interest. Id. In fact, 65% of films received an acceptable rating, 25% as believed acceptable, 4% as unknown, 4% as unacceptable and 2% as questionable. Id .

Also of interest, there have been several films wherein animals were accidentally killed or harmed yet were awarded the famous tagline. Id . The "no animals were harmed" seal appeared on New Line Cinema's "Simpatico," despite the death of an old bay quarter horse that ruptured a ligament and staggered to the ground during filming at the Los Alamitos racetrack. Id.

Further, AHA is not required to monitor non-SAG productions. Id . Therefore the production of documentaries, reality-TV shows, non-SAG independent films, international films, etc do not require monitoring. Id. This severely limits the reach of AHA. Id .

Man-power issues also are a concern as there are not enough AHA representatives to be physically present during the taping/filming of all scenes with animals. Id. Often times they rely on the assurances of the producers and hired animal trainers.  Id . In fact, the AHA film unit acknowledges that they lack the staffing and resources to keep tabs on the entire film industry. Id .  Its annual budget is $1.5 million and its staff includes only nine full-time field reps, along with 25 part-timers. Id . 

VII. Conclusion

The many unfortunate stories in the beginning years of motion pictures about animal actors such as the horse in Jesse James and the elephant in Electrocuting an Elephant raise concerns about the entertainment industry’s use of animals. Fortunately, the development of computer generated imagery has reduced the use of animal actors. The use of animals in film or television is not directly addressed by any federal law, and only state cruelty laws and three state laws that prohibit animal cruelty depictions touch upon the issue. The federal AWA and ESA are limited in their application to animal actors and do not typically address the care of animals on set. The only animal actor specific regulation is the industry-based AHA’s guidelines but the vast limitations in any true enforcement or penalization for violation of these voluntary standards indicate this may not be enough protection. Until the federal government and states implement laws specifically governing the use of animals in film, animal actors will remain insufficiently protected.