Saturday, September 21, 2002

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.

Friday, September 20, 2002

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."

Wednesday, September 4, 2002

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."