IT'S A TOUGH JOB, BUT SOMEBODY HAS TO DO IT

BY TRAVIS MORGAN / Nov 21, 2002
Brigham Young University’s Daily Universe

Nothing seems to soothe semester-end stress like a great scary movie. Unfortunately, every time I see a commercial for a perfectly disturbing film, it seems to be rated 'R for violence, content, language' or some other indiscretion. Come now, can't film producers create more disturbing and distressing films for my PG-13 eyes?

Enter Clean Flicks.

Here in Utah Valley, we have another alternative to satisfy our hankering for mind-numbing motion pictures. Suddenly, all those naughty words and unsettling scenes magically disappear with the snip of a pair of digital editing scissors. Clean Flicks president, John Dixon, reassured me that movies are not edited "so much that you can't figure out what's happened."

So, you can still watch all those popular satanic and troubling films without the swear words. But don't fret, the underlying messages of doom and gloom should remain fully intact.

With the holiday season soon approaching, scores of inappropriate movies should be hitting movie theaters any time now. I hear Eminem's new movie is sprinkled with enough colorful language to keep movie editors clipping for hours on end. But within a few short months, you should be able to watch his rise to rapper greatness without his pesky rapper tongue. You may need to find a good organist, however, because the film may end up as a 1920s-style silent movie.

I've always wondered who edits out all those naughty parts of the films. Can just anybody get into the movie-slicing business? I thought I would do some investigating to see if they are looking for any extra help. It turns out that Clean Flicks already has a very competent movie editing staff, based out of Payson, Utah County. And apparently, they already get offers from a few prospective smut-slashers. "Sometimes we get people who offer to edit from their homes for us, but we don't need that," Dixon told me.

I can almost hear the conversations of potential edit-from-home applicants: "I already told you, honey, I'm not watching rated-R movies in our living room, I'm editing rated-R movies. It's a tough job, but somebody has to do it."

The sacrifices people are willing to make for the good of the rest of us!

I thank you eager and dedicated stay-at-home movie editing hopefuls for offering your souls in exchange for my salvation. I will never watch the edited Exorcist again without thinking of your generosity on my behalf.

Image courtesy of Divine Comedy, BYU's award winning comedy troupe.

WHY THE DIGITAL PIRACY WAR HAS TO BE FOUGHT

BY LIONEL S. SOBEL / November, 2002
DGA Magazine

Legal battles over digital piracy began with photos of naked women.

Playboy led the charge a decade ago, when it sued electronic bulletin boards (early versions of today's websites) for distributing digital images scanned from the magazine's centerfold. Playboy won all of those cases. But that didn't deter others from using computer technology to distribute — without authorization — computer games and software, then musical recordings, and now movies and television programs.

These works are protected by federal copyright law, so people who copy and distribute them without authorization are guilty of infringement. But despite injunctions and big money judgments — against MP3.com, Napster, iCraveTV and others — the infringements did not stop. Instead, those who infringe simply devise more elaborate justifications and defenses, and argue that if the law does prohibit them from doing what they'd like, the law itself should be changed.

As a result, battles over digital piracy have escalated to all-out "war." Fortune magazine said exactly that, in the title of a recent article that featured Andy Grove and Michael Eisner as the leaders of opposing armies. Intel's Grove is an icon for Silicon Valley, and Disney's Eisner is an icon for Hollywood. The war, however, is not just between those two California regions.

"Silicon Valley" represents all technologists, from college sophomores who upload and download music and movies from their dorms, to computer and home electronics makers, to Internet service providers. "Hollywood" represents those who create entertainment, from DGA members and the studios that finance their work, to recording artists, songwriters and record companies, and all others who create entertainment for a living.

The war between Silicon Valley and Hollywood is about the future of copyright, and the role that copyright should play in the digital age. Technologists say it should play no role, or at least none of significance. Those who create entertainment note that copyright law was itself created in response to a then-new technology — moveable-type printing presses — and they say it should play the same role it always has, through generation after generation of new technologies.

Copyright's role is to create necessary incentives for the creation of entertainment.

It has been said that people would create entertainment without being paid to do so, and I have no doubt some would. But everyone has to buy groceries and pay the rent. So the universe of those who would create for free would be limited to amateurs and the independently wealthy. Unless we'd be satisfied with their meager output, we need some way to provide financial incentives that permit people to create entertainment professionally, for a living.

In the history of humankind, only three techniques have been conceived to provide those financial incentives.

One is patronage. Wealthy people and companies provide financial support to artists and entertainers, thus enabling them to buy groceries and pay the rent while they create. Patrons, however, are not foolish or selfless, nor are there very many of them. Patrons support the creation of the kind of entertainment that is pleasing to themselves. And, as compared to the amount of money Hollywood invests in entertainment, patrons invest very little. This means that the variety and quantity of entertainment produced with incentives provided by patrons would not even begin to satisfy the appetites of Americans, let alone others in the world who also are fans of American-made entertainment.

Government grants are a second technique for providing financial incentives for the creation of entertainment. Other countries, like Canada and France, make significant use of grants. The United States uses grants just a little. The National Endowment for the Arts and the Corporation for Public Broadcasting are two grant-giving agencies of the federal government. But all of the grants they give in a year amount to but a sliver of what Hollywood invests each year. What's more, their grants often generate as much controversy as entertainment, and thus regularly become tangled in overtly partisan politics. Entertainment produced with government grants, even in countries like Canada and France, does not satisfy local appetites for entertainment. It certainly wouldn't satisfy the appetites in the United States.

Copyright is the third, and by far most successful, technique for providing financial incentives for the creation of entertainment. Copyright gives creators exclusive rights in their creations — rights they may use, or authorize others to use, in the entertainment marketplace. By doing so, copyright encourages people to create whatever they think may appeal to the audience they hope to reach. It gives them the right to charge their audience money for the privilege of enjoying what they have created. Creators themselves decide how great a financial incentive they require to continue to create, while their audiences decide how much they are willing to pay for particular creations. Creators are accountable only to their audiences, not to patrons or government agencies. It is democracy — of the marketplace — in action.

The exclusive rights at issue in the digital piracy war are old:

* The right to make copies and distribute them is more than 200 years old, here in the United States (and even older in other countries).
* The right to make new or edited versions is almost 100 years old.
* The right asserted by DGA members in the CleanFlicks case — the right to prevent the sale and rental of edited versions of movies they have directed — was first recognized by a federal appellate court more than a quarter-century ago.
* And courts have recognized that people may be held liable for infringements committed by others, rather than by themselves, for more than 60 years.

The only "new" right asserted by entertainment creators is the right to prevent circumvention of technology-based protection measures. Congress enacted that right in 1998 as part of the Digital Millennium Copyright Act, in the belief technology has a role to play in solving the piracy problem that technology itself created.

Today's technologists argue that computers and the Internet are revolutionary means for efficient communication, community-building and commerce, and in order for these wonderful new technologies to achieve their full potential, they must be permitted to develop and evolve, unfettered by the law's requirement that certain things not be done, except with consent.

It is significant that the exclusive rights of copyright, to which digital technologists take exception, are old rights, because digital technologies are not the first new technologies developed since moveable-type printing presses.

When motion pictures were new, producers could have argued that movies were so revolutionary and efficient a technology for bringing stage plays to the public that producers should have the right to make movie versions of plays without the consent of playwrights. But movie producers never made that argument. They acquired copyright licenses, and the movie production business thrived nonetheless. When one early movie producer did argue that he should be able to produce a movie of the novel Ben-Hur without a license, the Supreme Court ruled otherwise; yet novels remained, and still are, a fertile source for movie producers.

When makers of the first music recordings — player piano rolls — persuaded the Supreme Court that they did not need licenses from music publishers or songwriters, Congress immediately intervened and changed the law so that copyright licenses became necessary. Yet the record business thrived nonetheless.
When early radio broadcasters contended they did not require licenses from music publishers or songwriters, federal courts ruled otherwise. Radio stations have obtained copyright licenses every since, and have thrived nonetheless.

Early television broadcasters could have argued that television was so revolutionary and efficient a way to bring movies to viewers that they should have the right to broadcast movies without copyright licenses. But television broadcasters never made that argument. They acquired copyright licenses, and the television business thrived nonetheless.

When early cable TV system owners persuaded the Supreme Court that they did not need licenses to retransmit broadcasts of copyrighted television programs, Congress responded by amending the law so that licenses became necessary. Yet, the cable TV business thrived nonetheless.

And when the home-video business was new, companies that made videocassettes could have argued that theirs was so revolutionary and efficient a way to deliver movies to viewers that they should be able to do so without copyright licenses. But they never made that argument, and thrived nonetheless.

In other words, today's digital technologists claim the right to do what none before them was permitted to do. Why has that happened?

Many technologists are "consumers" who simply want things for free, or who assume that whatever can be done — as a matter of technology — is legally permitted to be done. Other technologists are companies — like MP3.com, Napster and now CleanFlicks — who want to build their businesses using, as their inventory, entertainment created by others. Like some consumers, these companies assume that if technology enables them to use the creations of others, they are legally permitted to do so.

Finally, some technologists are companies that manufacture computers or consumer electronics, or provide services like online hosting or Internet connections, who believe that consumers are more likely to buy their goods and services if they can be used to get free entertainment.

Hence, the digital war. Record and movie companies, and even the DGA, have been forced to pursue expensive and unpopular lawsuits, for at least two reasons.

The first is purely a trial lawyer's reason and goes by the name "waiver." If those who create entertainment had not objected to the unauthorized use of their work — say, on the grounds that the Internet is not yet profitable, or the Utah marketplace for edited videos is too small to bother with right now — it would have been too late to object when the Internet finally becomes profitable or the market for edited videos grows. Judges might say that by delaying, creators had waived their rights, by inducing others to build their own businesses in the belief that their behavior did not violate anyone's rights, or at least none that would be asserted.

The second reason is related to this lawyer's version of waiver. It is a practical version of waiver. Most people assume that if they do something improper, they will be told so. If they aren't told, they assume that what they are doing is proper. Lawsuits thus perform an education function: they let people know that if they make unauthorized copies of entertainment, or distribute it to others, or edit it without consent, they're doing something improper.

In short, if entertainment creators don't assert their rights, computer manufacturers and Internet service providers certainly won't. Eventually, if history is any guide, digital technologies will be licensed like earlier technologies were and are. In the meantime, however, entertainment creators are forced to show why licenses are necessary, as a matter of law.

BATTLELINES DRAWN IN WAR OVER WHO GETS TO SAY "CUT!"

BY RAY RICHMOND / November 2002
DGA Magazine

The artistic integrity of the work of every filmmaker appears headed for a landmark day in court as the case involving companies performing the unauthorized alteration of videos and DVDs continues to heat up.


In response to an August suit filed against 16 prominent Hollywood directors, the Directors Guild of America on September 20 returned fire with its own legal answer as well as a counterclaim filed in U.S. District Court in Denver, Colorado.

Besides the plaintiffs of the original suit - Robert Huntsman and CleanFlicks of Colorado, L.L.C. — the DGA countersuit also names defendants including Trilogy Studios, Inc. (which produces and distributes MovieMask software); ClearPlay, Inc.; MyCleanFlicks; Family Shield Technologies, L.L.C. (manufacturer of the product known as MovieShield); Clean Cut Cinemas; Family Safe Media; EditMyMovies; Family Flix, U.S.A. L.L.C.; and Play It Clean Video.

In the September 20 filing, the DGA also asked the court to grant several motions, including:

* Allowing the Guild to "intervene," thereby enabling the DGA to represent the interests of its entire membership.

* Allowing the Guild to expand counterclaims to include other companies that engage or contribute to the practice of editing or altering videocassettes and/or DVDs in commerce.

* Allowing the Guild to bring in the motion picture studios as necessary parties, citing their role as the copyright holders of films.

All motions have since been granted. An unopposed motion to extend the time for a scheduling conference was subsequently granted, delaying that part of the case until January 3 in order to make sure that all involved parties are able to be served beforehand.

"From there, the whole next part of the case will be laid out," says DGA General Counsel Bob Giolito. "That's when we'll begin to get into discovery and motions and all of that."

The opening salvo in this burgeoning war had been fired in late August when the owner of seven CleanFlicks outlets in Utah, Colorado and Idaho preemptively sued the DGA for the right to continue the practice of unauthorized movie alteration — essentially asking for the court's endorsement of its practices.

That suit named as defendants 16 directors whose films are among the hundreds the business has altered. They include Robert Altman, Michael Apted, Taylor Hackford, Curtis Hanson, Norman Jewison, John Landis, Michael Mann, Phillip Noyce, Sydney Pollack, Robert Redford, Brad Silberling, Martin Scorsese, Steven Soderbergh, Steven Spielberg, Betty Thomas, and Irwin Winkler. The DGA will be representing all of the directors in court throughout the proceedings.

In its counterclaim the DGA maintains that the named companies are in direct violation of the Lanham Act — a federal statute that prohibits false advertising, trademark infringement, and unfair competition, which previously has been applied by a federal Court to protect an artist's right not to be associated with an unauthorized, edited version of his or her work. Additionally, the DGA charges the companies with trademark dilution under federal law and unfair competition under California law.

The DGA and its director plaintiffs seek from the court a permanent injunction to stop the defendants from the wrongful and unlawful distribution of unauthorized versions of feature films that have been edited, excised and otherwise adulterated to remove and alter content and language.

According to DGA National Executive Director Jay D. Roth, "This promises to be a major fight. What we are very likely looking at is a case that will go a long way toward determining rights in the digital age."

This practice is, to the DGA's mind, a clear violation of intellectual property and copyright law. "The function these companies perform without the permission of the copyright holder is illegal," states Roth. "We understand that the law protects the integrity of intellectual property. The studios are the copyright holders, and that's why we sought to bring them into the case as parties to the lawsuit. It's obviously very important."

DGA President Martha Coolidge puts it simply: "What these companies are doing is wrong, plain and simple. It is wrong to cut scenes from a film — just as it is to rip pages from a book — simply because we don't like the way something was portrayed or said, then resell it with the original title and creator's name still on it.

"It is wrong to circumvent the studios, who are the copyright holders, and the director, who is the film's creator — all in the name of turning a profit. It is unethical, it is shameful, and the DGA will aggressively pursue these claims."

"If you're a strong believer in copyright and the rights of the creator and author, then you've got to be very troubled," Roth adds. "What do rights mean if anyone can usurp them anywhere in the distribution stream? What moral rights are there if anyone can take your work and fashion it any way they please to suit their personal whim — or redistribute versions that they think will be more palatable to various market segments?"

"We are, to say the least, very concerned about the way these practices have developed," says Warren Adler, DGA Associate National Executive Director. "There's definitely the need from our perspective to put them in front of a court and put an end to this once and for all. There is a concept of fair use [of copyrighted material]. But this isn't it. These companies are turning these films into derivative works and earning money off of them. And it's illegal.

"Many issues raised by this suit are on the legal frontier," Adler adds. "Yet, while the technology is new, the legal rights involved are old. We strongly believe that the integrity of the artist's work must be protected. I mean, it's become far too easy to simply press a button and obliterate or alter an artist's work. Our position is obviously very strong on behalf of the filmmaker's or artist's rights."

Meanwhile, the exploiters of this new technology claim to be merely reselling films that are already on the market, likewise arguing that sanitized versions of the movies are already packaged for the airline industry as well as for broadcast television.

But it's a hollow argument to those who direct movies, including Michael Mann (The Insider, Ali) — who was named in the original suit brought by CleanFlicks. As Mann told the Los Angeles Times, "The idea that somebody can arbitrarily take our works apart and destroy them in any manner they want and represent it as still being that film is a breach. There's no polite word for it — it's stealing. It's stealing from the consumers and from the copyright holders (the studios), and it's certainly stealing from us."


Added Michael Apted (The World Is Not Enough, Coal Miner's Daughter), also named in the suit: "It's the tip of a very dangerous iceberg. This would appear to be a benign issue — making a family version — which could easily go a thousand other ways: making pornographic versions of films, political versions of films, any way you wanted to."

"Nobody can predict with certainty what will happen in litigation," Roth says. "But we have a strong moral and legal argument in our favor. We're saying that these people shouldn't go into the business of changing creative works for their own purposes."

PRUDE AWAKENING

THE DAILY SHOW WITH JON STEWART / Oct 1, 2002
Comedy Central

This clip marks the second appearance of Clean Flicks on The Daily Show with Jon Stewart.

DGA PRESS RELEASE

An official press release from the DGA with regard to their counter-suit:

DGA responds and counterclaims against Robert Huntsman and CleanFlicks; adds motion picture studios to suit. (September 20, 2002)

Motions also filed to expand counterclaim to include other entities that provide unauthorized altered versions of videocassettes and/or DVDs


Los Angeles (September 20, 2002) – The Directors Guild of America (DGA) today filed an answer to the lawsuit filed against sixteen of its director-members by Robert Huntsman and CleanFlicks of Colorado, L.L.C, as well as a counterclaim to the lawsuit. The answer and counterclaim were filed in U.S. District Court in Denver, Colorado.

In addition, the DGA also asked the Court:

* To allow the Guild to "intervene," thereby enabling the DGA to represent the interests of its entire membership;

* To allow the Guild to expand counterclaims to include other companies that engage or contribute to the practice of editing or altering videocassettes and/or DVDs in commerce;

* To allow the Guild to bring in the motion picture studios as necessary parties, citing their role as the copyright holders of films.

The other entities the DGA motion seeks to include in its counterclaim are Video II; Glen Dickman; J.W.D Management Corporation; Trilogy Studios, Inc., which is the producer and distributor of MovieMask software; CleanFlicks; ClearPlay, Inc.; MyCleanFlicks; Family Shield Technologies, LLC, which is the manufacturer of a product called MovieShield; Clean Cut Cinemas; Family Safe Media; EditMyMovies; Family Flix, U.S.A. L.L.C.; and Play It Clean Video.

The sixteen directors named as defendants in the original lawsuit, all of whom will be represented by the DGA, are Robert Altman, Michael Apted, Taylor Hackford, Curtis Hanson, Norman Jewison, John Landis, Michael Mann, Phillip Noyce, Sydney Pollack, Robert Redford, Martin Scorsese, Brad Silberling, Steven Soderbergh, Steven Spielberg, Betty Thomas and Irwin Winkler.

According to the documents filed with the court, the film altering entities are renting, selling, or distributing versions of movies, which neither the Guild's members nor the studios authorized, and which are altered versions of members' works. In the counterclaim, the DGA states that these entities are in violation of the Lanham Act, which is a federal statute that prohibits false advertising, trademark infringement, and unfair competition, and has been applied to protect an artist's right not to be associated with an unauthorized, edited version of his or her work.

In addition, the DGA charges the companies with trademark dilution under federal law and unfair competition under California law.

"What these companies are doing is wrong, plain and simple," said DGA President Martha Coolidge.

"It is wrong to cut scenes from a film –just as it is to rip pages from a book—simply because we don't like the way something was portrayed or said, then resell it with the original title and creator's name still on it." Coolidge continued. "It is wrong to circumvent the studios, who are the copyright holders, and the director, who is the film's creator—all in the name of turning a profit. It is unethical, it is shameful, and the DGA will aggressively pursue these claims.

In its counterclaim, the DGA and its director plaintiffs are asking the Court to grant a permanent injunction to stop the defendants from wrongfully distributing unauthorized versions of feature films that they have edited to remove content and language.

Following are descriptions of what the defendants are doing:

* CleanFlicks sells, distributes, and/or offers in commerce, versions of feature films that have been edited by CleanFlicks to remove portions of the films. Through the cleanflicks.com website, CleanFlicks sells edited videos and DVDs; through the mycleanflicks.com website, MyCleanFlicks rents edited videos and DVDs. CleanFlicks also offers edited videos in its chain of video stores throughout California, Utah, Arizona, Colorado, Idaho, Michigan, Montana, Ohio and Oregon. Like Video II, CleanFlicks removes content through cut edits and volume muting.

* Video II is editing films to offer "E-rated" video versions of new releases, which are then provided to grocery stores in Utah. Corporate record filings and previous news accounts list Glen Dickman as the President of both Video II and J.W.D. Management.

* MovieMask, produced by Trilogy Studios, is software that consumers can purchase online then download into their computer. The software "masks" or filters frames either by editing scenes or dropping out language. On the moviemask.com website, Trilogy Studios boasts that future upgrades will have the ability to superimpose new images, words, advertising or other material during the playback of the DVD. The software "masks" are currently available for 41 films, though the company says it plans to increase its library on an ongoing basis.

* ClearPlay, like MovieMask, markets movie-filtering software that can be downloaded from the Internet. The company currently offers software filters for over 150 DVDs and according to its website adds approximately 25 titles per month. The software instructs the DVD player when to skip over or mute portions of the film in order to filter out specific content. ClearPlay is offered on a monthly paid subscription basis.

* Family Shield Technologies is the maker of a product called MovieShield. MovieShield consists of three separate electronic devices: One device is connected between a VCR or DVD player and television set. A second device is portable and is used to transfer specific movie information. A third device is connected to a computer to download information into the transfer device. MovieShield uses a "patent pending" technology to determine which scene is being played in the movie. Then, using a database of timing information, MovieShield determines when to mute the sound and/or blank the video screen. The "shielding" is broken into eight different categories. According to their website, these categories include: "vain references to Deity; minor language; major language; nudity; sexual situations; immodesty; violence; and gore."

* Clean Cut, like CleanFlicks, sells, distributes, and offers, via the Internet, versions of feature films that have been edited by CleanFlicks to remove portions of the films. The videos and DVDs sold and rented by Clean Cut have been edited, without authorization, to remove content they consider "objectionable." Clean Cut offers its products via the Internet at www.cleancutcinemas.com.

* Family Safe and its affiliated entity or alter ego EditMyMovies, rent and sell edited videos via the www.familysafemedia.com and www.editmymovies.com websites. Family Safe and EditMyMovies also offer a software product called "TVGuardian," which masks or filters language of movies during their VCR playback, and provide this software in DVD players available for sale via the Internet.

* Family Flix, and its affiliated entity or alter ego Play It Clean, sell, distribute, and offer via the Internet, versions of feature films that have been edited by to remove "objectionable" portions of the films, similar to CleanFlicks. Family Flix and Play It Clean offer their products via the Internet at www.familyflix.com and www.playitclean.com.

CLEARPLAY PRESS RELEASE (2002)

Salt Lake City, Utah—Sept 21, 2002

ClearPlay Denounces Hollywood Attacks—Company labels Directors Guild lawsuit "predatory" and "anti-family."

ClearPlay Inc., the leader in enhanced parental controls for movie filtering, has issued a statement regarding legal proceedings that have been initiated by the Directors Guild of America, aimed at ClearPlay as well as other companies that provide similar benefits.

"The DGA's claims against ClearPlay are wholly without merit," said Bill Aho, ClearPlay's Chief Executive Officer. "While other companies in our industry may utilize methods that are legally controversial approaches, ClearPlay does not. Banning ClearPlay filters is like trying to ban the fast-forward or mute buttons on your remote control."

"ClearPlay has worked with the leading entertainment copyright attorneys in the nation to ensure that the company does not violate copyright law, and has continued to respect the properties and rights of the studios, directors and artists. ClearPlay is simply an advanced parental control feature. ClearPlay does not sell or rent edited movies. The company does not reproduce VHS or DVD's. ClearPlay does not add unauthorized audio or video content to movies, nor does it contemplate doing so in the future. In fact, we don't even use box art or movie clips in our website or promotional materials."

"Given our scrupulous adherence to copyright law, these actions by the DGA against ClearPlay can only be viewed as predatory and malicious harassment."

"The very idea that the DGA should be allowed to control how families watch movies in their homes is an outrageous affront to personal rights and civil liberties. Every organization in this country that is concerned about parental rights, freedom of choice or the influence of media in the home should take a firm stand against these anti-family efforts."

ClearPlay provides software that allows consumers to view DVD's—which they purchase through conventional retailers—free of unwanted content.It gives consumers the ability to skip and mute over graphic violence, sex, nudity and profanity if they choose. ClearPlay filters do not touch, alter or change the DVD in any way.

ClearPlay offers its DVD-ROM software to consumers via its website, www.clearplay.com, and through various affiliates, doing business across the U.S. as well as internationally. The company offers filters for 300 popular movie titles.

A LETTER FROM THE PRESIDENT

The following letter from DGA President Martha Coolidge was published in the September 2002 DGA Magazine:

I want to talk to you this month about an issue that has been much in the news lately, and that affects members of the Guild in a very personal way.

The rise of digital technology has paved the way for a number of companies to rent or sell unauthorized edited copies of videotapes and DVDs of hundreds of movies, and has also permitted other companies to design and sell software or devices that can be used by consumers to watch edited versions of DVDs that have been pre-programmed by these companies.

Among these companies are: CleanFlicks; Video II; Trilogy Studios, makers of MovieMask software; and Family Shield Technologies, manufacturers of MovieShield.

What they all have in common is that they are taking films and using technology to alter them without permission from either their directors or their copyright holders.

There are many questions — including legal ones — posed by the actions of these companies, but the one I would like to address is the moral one: Is it right to take finished films that have been created by someone else, change them to suit your whims, then profit by the commerce of these grossly altered products — and at the same time portray these versions as still being the works of their original directors?

For directors, and for the DGA, the answer to this question is a resounding no, and here's why:

As directors, we design and orchestrate every scene in a film, working with actors, writers, cameramen, editors and the hundreds of others whose hard work is reflected in the final product. We make thousands of creative decisions while creating films, through pre-production, casting, shooting and editing. These companies that further edit the films for distribution or sale override these decisions without directors' input or consent by changing or deleting words, adding, replacing or deleting images. In other words, they substitute the carefully thought out choices made by filmmakers with the ones of their programmers or technicians.

Regardless of the motives of those who perform these alterations, it is wrong for them to do so. All creative works, whether they are films, novels, paintings or comic books, are the output of their creators, and stand as representatives of their creators' intentions. These intentions could be to inform, to instruct, or merely to entertain — it doesn't matter. Da Vinci's "Mona Lisa," Spielberg's Saving Private Ryan, Twain's Huckleberry Finn and Frank Miller's The Dark Knight are all equal in the sense that they are what their creators wanted them to be.

Further, to alter these creations in the name of "morality" or "family values" is the height of hypocrisy. What kind of morality and values does it teach our children when we say it is OK to cut scenes from a film, to cover up part of a painting or rip pages out of a book, simply because we don't like the way something was portrayed or said by somebody else? What does it teach our children about America if we allow technicians to remove five minutes from the Normandy landing scene of Saving Private Ryan to make it more "palatable," when Spielberg's overriding intent was to portray in graphic detail the horrors our fathers and grandfathers went through in order to literally save the world?

And finally, it is appalling that these companies release their edited versions of films while trading on the name of the filmmakers whose works they are altering. Shakespeare in Love is no longer John Madden's film when it is changed in any way without his input. National Lampoon's Animal House is no longer directed by John Landis when it is chopped up without his consent. Traffic is no longer the film for which Steven Soderbergh won an Academy Award for directing when it is altered behind his back. It is a clear misrepresentation to rent or sell films that, despite whatever blinders have been put on their vision, will always be associated with their directors — yet, this is exactly what these companies are doing, and exactly how they are making their money.

The DGA is not idly standing by while this is happening. I encourage you to read Ray Richmond's story for an up-to-date look at what your Guild is doing on this issue, and I promise to keep you posted as this heats up over the next several months.

Martha Coolidge
DGA President

THEY'RE EDITING MY FILM!

BY RAY RICHMOND / September 20, 2002
DGA Magazine

Imagine if Rhett Butler had intoned to Scarlett O'Hara, "Frankly, my dear, I don't give a hoot!" — or if the Sundance Kid had leaped over a cliff into the water while shouting, "Shoooooooooooooot!" And imagine if the D-Day carnage in Saving Private Ryan were no more graphic than bullets bouncing benignly off of the sand at Normandy Beach.

Imagine no more. That day is at hand.

Wielding new editing technology like a machete, a number of businesses have sprouted up that specialize in the unauthorized editing of videos and DVDs that essentially transforms every commercial film into what these businesses tout as "family friendly." They are able to neuter films of explicit or semi-explicit sex, language and violence, turning around and profiting by peddling to consumers radically revised editions that in many cases bear scant resemblance to a filmmaker's original work.

Words and meanings are changed. Scenes are added or replaced or deleted outright. Intent and impact are diluted. Visions are fitted with blinders. In the zeal to render every feature spotlessly clean, these business people and computer programmers make a mockery of artists' rights.

According to DGA President Martha Coolidge, the copyright infringement issues and the moral and ethical arguments are decidedly clear: What these companies are doing is wrong.

"We are appalled at the proliferation of companies that bypass the copyright holder and the filmmaker and arbitrarily alter the creative expression and hard work of the many artists involved in filmmaking," said DGA First Vice President Steven Soderbergh.

The chilling effect that the debate is sparking began some four years ago when a company called Sunset Video found a profitable business in clipping the lone nude scene from hundreds of copies of Titanic brought to them by owners. The business began to build steam in Utah and other religiously conservative parts of the country, spawning increasingly creative video-editing technology and marketing.

One of the fastest growing has been CleanFlicks, which operates a chain of some 80 video stores throughout California, Utah, Arizona, Colorado, Idaho, Michigan, Montana, Ohio and Oregon along with independent franchisees. The company offers movies that have been edited of purportedly objectionable material without authorization from the copyright holders or the filmmakers. Through its website, the company also offers MyCleanFlicks.com, which rents to customers so-called "E"-rated (for "Edited") versions of videos and DVDs. It cuts out nudity, sexual content and most violence while muting out what it considers to be offensive language.

In late August, the owner of seven CleanFlicks outlets in Utah, Colorado and Idaho filed a preemptive strike of sorts with a lawsuit designed to continue the practice of unauthorized movie mutilation/exploitation. The suit named as defendants 16 directors whose films are among the hundreds the business has altered. They include Soderbergh, Robert Altman, Michael Apted, Taylor Hackford, Curtis Hanson, Norman Jewison, John Landis, Michael Mann, Phillip Noyce, Brad Silberling, Betty Thomas, Irwin Winkler, Martin Scorsese, Steven Spielberg, Robert Redford and Sydney Pollack.

The suit reads, in part, "A dispute has arisen between the plaintiffs and defendants because the plaintiffs disagree that their third-party editing of commercial movies violates any trademark or copyright laws and believe that their actions set forth ... are free speech and/or fair use and are protected by the First Amendment of the U.S. Constitution."

A DGA statement said the Guild believes the suit is without merit. "We believe it is the plaintiffs who, through their unauthorized altering of original works, are in violation of the law. Appallingly, the plaintiffs rely on the right to free speech guaranteed by the First Amendment as their excuse to alter original works and pass them along — for profit — to the public.

"Perhaps they are unaware that the United States Constitution directed Congress to pass laws to ensure that the creators of original works had the 'exclusive right' to their work and prohibited their unauthorized exploitation by others for financial gain."

The statement further promised, "The Directors Guild of America will vigorously protect the rights of its members, and we are confident that any efforts to legitimize the unauthorized editing and alteration of movies will be resoundingly defeated."

At its most basic level, the issue surrounds the idea that all filmed entertainment should be made palpable and appropriate for all — even when it is clearly intended not to be so for children and/or teens, or even for some adults. Parents and consumers already have the most powerful tool available to them with regard to home videos and DVDs: choice. They can choose whether or not to buy or rent a given film, just as they can use their remote control to change a TV channel or turn off the box altogether.

The operators of these editing services, however, opt to operate under the misguided notion of having one's cake and eating it too, planting the idea in consumers' heads that there should be no such animal as unsuitability.

In effect, they say that there need not be a movie ratings system of NC–17, R, PG–13, PG and G but simply two designations: "A" (for "All") or "N" (for Nobody"). They assert that all ages and levels of taste, literacy and maturity should accede to a single disemboweled standard.

Yet for the moment, the unsanctioned excising practice goes on unabated. Besides CleanFlicks, the companies/products involved in the practice of blithely altering films for profit include:

* Video II, whose "E" rated video versions of new releases are being carried by all 46 Albertsons supermarkets in the state of Utah. Albertsons has already expressed an interest in expanding the availability of the edited films to its other stores throughout the country, including in California.

* MovieMask, which supplies software that consumers can purchase online and then download onto their computer, offers a number of pre-programmed "masks" that filter frames either via editing scenes or dropping out language. On its website, the company boasts that future upgrades will provide masks that will superimpose new images or material during the playback of a DVD.

* MovieShield, from Family Shield Technologies, which uses a "patent pending" technology to determine which scene is being played in a given movie. Using a database of timing information that has been pre-programmed for an individual film, the three-pronged device determines when to mute the sound and/or blank out the screen. The so-called "shielding" is broken down into eight categories of would-be cleansing, including vain references to Deity; minor language; major language; nudity; sexual situations; immodesty; violence; and gore. One would imagine that "immodesty" could be something as innocent as the flashing of a bare thigh.

Coolidge is adamant that when these companies distribute or sell these edited or altered versions, "they are doing so illegally — and we intend to do everything possible to stop it. Many decisions and much creative energy go into creating each scene in a film, and when words are changed or images are added or subtracted, those films become something other than what they were intended to be by their creators."

Certainly, a trio of the directors targeted by CleanFlicks in its lawsuit could hardly agree more, taking a singularly defiant stance.

Promised Michael Apted, whose films include Coal Miner's Daughter, Agatha, Nell and The World Is Not Enough: "Generations of directors have fought to achieve creative rights, and I'm not going to stand on the sideline while profiteers abuse these rights. Which they do, of course, at the expense of mine and others' work."

"For any company or organization to arbitrarily change or edit a film to comply with its religious or political views is not only an infringement of copyright, it is a dangerous assault on the creative rights of authors and artists in America," echoed Norman Jewison, director of Fiddler on the Roof, Moonstruck, A Soldier's Story and Jesus Christ Superstar.

Irwin Winkler, director of Life as a House and The Net and who is likewise named in the CleanFlicks suit, compared what that company does to placing a condom on the statue of David.

"It's a violation not only of our rights as directors but of what the audience has come to expect of a film or a filmmaker," Winkler stressed. "When you buy a video or a DVD of a film, you expect to see the work re-created in its original form, not some bastardization for the sake of someone else's idea of morality. If you go into the museum and see the painting of the Three Graces, you don't expect them to be wearing bras because nudity offends some of the people who attend an exhibit with their children."

Winkler continued, "All of us, from the director to the writer to the actors, the editors, all of the technicians, spent many hours, weeks and months on a film to bring it to the audience the best way we know how. For someone to arbitrarily change it invalidates the whole process of creating a film."

Kathryn Bigelow, director of K-19: The Widowmaker, added that the issue puts nothing less than an impacted director's future at risk. "The distortion and manipulation of a film by nameless, faceless programmers is the distortion and manipulation of the reputation and achievement of the director whose name is attached to that film," she believes.

Many legal educators contacted believe that the conduct of CleanFlicks and the other unauthorized editing purveyors violates the Lanham Act by wrongly associating filmmakers and other DGA members with versions of their films that were never personally authorized — unlike, say, airline or network television versions.

"It's a clear moral rights violation," observed Christine Haight Farley, an assistant professor of law at American University in Washington, D.C., who holds expertise in intellectual property law, trademark law, copyright law and art law. "When you bastardize the work of filmmakers — when you alter it, violate it and otherwise mutilate it against their will — and their name remains on it, the artistic integrity of that individual is fully compromised — I see it as rather like putting a Coke label on a Pepsi. You might be able to fool some people into believing that it's Coke, but you land yourself in an ethical quandary as a result. Because it's not Coke, and you shouldn't try to call it Coke. I mean, there is a public interest in having The Godfather be The Godfather and not The Godfather Lite. You wouldn't want anyone to demolish the statue of David because you were offended by his genitalia. If the law doesn't take into account that basic moral right for moviemakers, then it would seem the law needs to be expanded and broadened."

Jon Turteltaub, a director whose work includes While You Were Sleeping, The Kid and Cool Runnings, is almost more offended by the can of worms the unauthorized editing issue could be opening than what has gone down thus far.

"If these companies are allowed to continue doing this, then I'm chilled by what it says about what's permissible and possible and acceptable," Turteltaub said. "It tells us that all of the people who collaborate to make a film suddenly don't count after that film is released. It's saying that the film ceases to belong to them and that instead it belongs to anyone who thinks it should be his or her own. That's difficult to reconcile."

Coolidge certainly thinks so. She and the DGA firmly believe that tampering with any creative work — be it film or stage work or book — cannot be justified in any ethical context. And the Guild vows not only to vigorously defend against the CleanFlicks lawsuit but ponder a litigative response of its own.

"Films are made by people who care passionately about what they do and what their work says," Coolidge told the Salt Lake Tribune. "We have the right of control of some kind over our work, both morally and legally."

CLEAN FLICKS SUES TO KEEP EDITING MOVIES

BY JOSEPH HADFIELD / Sept 4, 2002
Brigham Young University’s Daily Universe

A Clean Flicks franchise is suing 16 renowned directors over the right to remove sex, profanity and violence from movies for rent or sale. But the action could turn against them.

The suit, filed Aug. 30 by a Colorado franchise of Clean Flicks, asks the courts to rule their editing practices do not violate copyright laws. But the president of the Utah-based company, John Dixon, said fighting filmmakers in court is not the best approach for the business. "Those guys are big, the best thing to do is to sit down and go over this with them," said John Dixon. "A lawsuit isn't the way to go."

Representatives from the Directors Guild of America said they are confident they will win in court. "Obviously, we think they are violating copyright law," said Andrew Levy, special assignments executive for the Guild. "They are taking an artistic work, the efforts of a lot of creative people, and changing it on their whims."

Clean Flicks is headquartered in Pleasant Grove and has 36 Utah stores. If the court rules against Clean Flicks, all franchises could be forced to stop editing films. "Our whole plan was to work with Hollywood on this," Dixon said.

The business has found regular customers at BYU, where student housing guidelines do not permit viewing of indecent material. "If they could see the kind of market we see," Dixon said. "The public wants edited movies, or even just clean movies."

One such customer is BYU senior Dave Baer, who has been a member of Clean Flicks for eight months. "Artistic freedom can go too far," said Baer, a 23-year old neurobiology major from Littleton, Colorado. "They are too caught up in their freedom rather than in making a better society."

One movie Clean Flicks edited and rents is Saving Private Ryan, a film depicting fighting in World War II. Levy said the removed parts are critical to the film. "The whole purpose is to show the horror of the Normandy landing," Levy said. "To sanitize it, is to me abhorrent."

The most surprising part of the lawsuit is that it names directors as defendants in the case, Levy said. "Directors do their films, get paid, but at the end of the day, the actual owner of the film is the studio," Levy said.

Dixon said he hopes to negotiate with studios to settle the issue, citing other instances where similar editing is currently allowed. "We want to say, 'Hey, you already do it for airlines, television and third world countries with strong religious beliefs,'" Dixon said.

When films are edited for airlines, Levy said, they are often done with the input of the director. "There is a difference between authorized editing and unauthorized editing," Levy said. "Whether the studios want to start marketing those airline videos is up to them."

DGA PRESS RELEASE

An official press release from the DGA with regard to the CleanFlicks of Colorado Lawsuit:

DGA denounces lawsuit filed against 16 directors by two entities engaged in unauthorized editing of films (August 29, 2002)

Robert Huntsman and Clean Flicks of Colorado, L.L.C., filed suit in U.S. District Court for the district of Colorado on Thursday, August 29, 2002 naming 16 renowned directors as defendants, seeking the Court’s determination as to whether their editing practices are protected under Federal Copyright law. The Directors Guild of America, which represents over 12,000 members, offers this statement in response to the suit.

“A cursory review by the Directors Guild of America and our legal counsel of the lawsuit filed today in Denver shows it to be wholly without merit. In fact, we believe it is the plaintiffs who, through their unauthorized altering of original works, are in violation of the law.

“Appallingly, the plaintiffs rely on the right to free speech guaranteed by the First Amendment as an excuse to alter original works and pass them along—for profit—to the public. Perhaps they are unaware that the United States Constitution directed Congress to pass laws to ensure that the creators of original works had the “exclusive right” to their work and prohibited their unauthorized exploitation by others for financial gain.

“The Directors Guild of America will vigorously protect the rights of its members, and we are confident that any efforts to legitimize the unauthorized editing and alteration of movies will be resoundingly defeated.”

For more information or press inquires please contact:
Carol Stogsdill and/or Andrew Levy
Directors Guild of America

MOVIE MAKERS VERSUS THE CLEAN FLICKS REVOLT

BY JOHN HUGHES / Aug 28, 2002
The Christian Science Monitor

SALT LAKE CITY - When a little Utah mom-and-pop video store snipped the Kate Winslet nude scene out of the "Titanic" movie a few years ago, it didn't know what it was starting. That act caught the interest of many video-renters in Utah, a conservative state with a large Mormon population, whose church discourages viewing of movies with heavy doses of violence, steamy sex scenes, and profanity.

It turned out there was a considerable market for the edited version of "Titanic" among all kinds of families who didn't want their children watching the sex scenes. And as it further turned out, a national market has flourished for "E-rated" or edited films, which are cleaned up for families who don't want it the violence and crudity that Hollywood injects into far too many of its movies. We are not talking about what scoffers call the "Mary Poppins" line of family movies here. We are talking about major and often significant movies that are simply overladen with filth that some families would just as soon avoid.

A lot of the edited films were originally R-rated, but some films rated P-13 such as "Big Daddy" and "Anna and the King" are getting an editing as violence and profanity creep in. Stores renting the E-rated videos have mushroomed in many states, but the edited versions can also be ordered from websites that put the cleaned-up movies within reach of anybody with a mail box.

This grass-roots revolt against the moviemakers' pollution of our culture has not been well received in Hollywood. The argument producers and directors have used hitherto to justify the increasing use in their productions of four-letter filth and violence is that movie-goers demand it. The emergence of a substantial audience that clearly does not approve of this content surely belies this theory.

So now, the Hollywood opposition to edited videos centers on the thesis that it represents censorship of the original artist's creativity, and is an invasion of his or her intellectual property. It is an intriguing ethical argument, with the hint of legal action by the originating studios hovering in the background.

The argument is somewhat undercut by the fact that the studios themselves alter movies for various markets, notably television, and for showing on airlines. Less well-known to American moviegoers is the fact that more than half of a popular movie's revenue comes from overseas, and movie-makers make substantial changes in those movies to accommodate foreign tastes. Violence is often toned down for European audiences, and sex scenes are often eliminated for viewers in India, and for Islamic countries like Indonesia and Pakistan.

One key legal question is whether a viewer has the right to make changes to a video he himself owns. To illustrate this point: My family pays a small annual fee to belong to a cooperative at a local video-rental store that actually owns the edited videos. A section of the store is devoted to these edited movies and when I exercise my membership I pay a small rental fee to take out a video of which I am part-owner.

But other venues make no ownership demands. Albertson's, the second largest grocery chain in the country, recently began offering E-rated movie videos for rental, and expects to have them in all of its 1,000 stores by summer's end.

New digital technology may soon make the actual editing of videotapes by snipping irrelevant. This technology, downloaded onto a computer that plays a DVD movie, will be programmed to skip over objectionable material, eliminating bad language, nudity, and violence, without copying or altering the permanent contents of the DVD.

Moviemakers see all this as unethical and immoral and are pressing the studios to take legal action to protect the directors' artistic rights. Some academics argue we are on a slippery and dangerous slope toward censorship.The best solution would be simply a recognition by Hollywood that it has descended to the outer limits of good taste and that it needs to clean up its act. At the very least, it could provide edited and non-edited versions of its products, so that viewers could make up their minds which version to buy.

While the debate over its ethics and legality is yet to play out, the revolt by a substantial number of viewers against the tawdriness of some Hollywood offerings is a signal that the moviemakers should heed.

John Hughes, editor and chief operating officer of The Deseret News, is a former editor of The Christian Science Monitor.

ALBERTSON'S OFFERS CUT VERSIONS OF R FILMS

BY SHERRI C. GOODMAN / July 10, 2002
The Salt Lake Tribune

Interested in renting the "Black Hawk Down" movie video? Customers at the 46 Albertson's stores in Utah now have a choice: the studio's original R-rated war film or an "E-rated" version -- E for edited -- with 135 cuts to remove strong language and nudity.

The Boise, Idaho-based grocery store chain has agreed to a short-term test program in Utah to gauge the popularity of edited new-release videos in its stores' rental sections.

"Based on that test period, we'll determine whether or not to continue offering the product in the video rental section and whether or not to expand the program nationwide," Albertson's spokeswoman Jeannette Duwe said. "We felt there was a demand for this type of product, and we needed to take a closer look at it," she said.

The Utah stores also are carrying unedited versions of new-release movies on VHS and DVD. Duwe did not know when the trial period, which started in late June, will end.

Video II, a Sandy-based company that distributes rental videos to 1,000 of Albertson's 2,300 stores nationwide, proposed the trial program in Utah and is editing the movies itself. Glen Dickman, president of the 18-year-old company, said he has tried for 15 years to get edited copies of movies from the studios, but they turned him down. "So we decided we'd go ahead and offer edited titles that we [edited] ourselves," he said. Video II now has 11 cleaned-up flicks including "Gosford Park," "Spy Game," "The Heist" and "My Life as a House." As other
new releases come out, they will be edited and made available in Albertson's stores in the state, he said.

Duwe said it is premature to say whether the program has been a success, but Albertson's has "had quite a bit of positive response in our stores to the videos. The negative has yet to be heard."

Video II is just one of several Utah companies that have bought original videos from studios, sliced them up, and then rented or sold the sanitized copies. Duwe and Dickman said video rental stores that already offer edited versions of movies have opened stores near some Albertson's locations. "There is certainly a market for this in Utah," Duwe said. "We're simply
adding a product some of our [video rental] competitors are offering."

The issue of cleaned-up videos garnered national attention in 1998 when an American Fork shop, Sunrise Video, cut racy scenes out of the then-newly released "Titanic," and angered studio officials who claimed it was copyright infringement. But the legal issue remains untested in Utah.

Dickman talked with his lawyers before deciding that editing the videos was a "risk worth taking." "We feel there's a good chance that we have the right because we purchased the movie, we own it, so we can take out profanity and nudity," he said. Albertson's was not so sure, he said, and required Video II to agree in writing to bear full legal responsibility if the studios put up a fight. Dickman has already received one call from a studio saying it planned to issue a cease-and-desist order to require Video II to stop editing its movies. "I guess all the studios are looking at it pretty closely," he said.