CUTTING AND PASTING: HUNSTSMAN v SODERBERGH AND COPYRIGHT LAW

BY CHRISTOPHER JORDAN / Nov 16, 2007
Flow TV

Huntsman v. Soderbergh illustrates the ever-escalating efforts of corporations to control their every representation in culture as if copyright ownership is a natural right rather than a constitutional privilege. In Huntsman v. Soderbergh, filed in August 2003 and decided in favor of the Directors Guild of America (DGA) in July 2006, a Denver federal court ordered four companies to stop selling and renting unauthorized edited or altered copies of movies, while allowing another company to continue marketing its DVD players and software filters because it does not make derivative copies of movies.

The guild argued that the creation and distribution of the final edited film products violated these provisions. The basis of the main “reproduction” claim was that duplicating movies by copying them onto a computer hard drive as part of the process of making the final edited movie was infringing. Huntsman v. Soderbergh thus raised several questions: Did CleanFlicks violate fair use by using illegal means to create its clean DVDs and by selling a product that compromises the potential market for the copyrighted work? Did ClearPlay violate copyright law by selling software that omitted offensive content without actually altering DVD content? Did CleanFlicks have the right to modify copies of works it had paid for under the first sale doctrine and sell them for profit or did this violate the copyright owner’s sole right of reproduction of the work?The “fair use” law allows the reproduction and use of a copyrighted work in order to balance the author’s right to compensation against the public’s interest in the widest possible dissemination of ideas and information. Fair use thus acts as a defense against the copyright owner’s monopolistic control over who can access copyrighted material and how they can use it.ClearPlay and CleanFlicks contended that their enterprises were legal under two provisions of fair use: purpose and character of the use, and the effect on the potential market of the copyrighted work. In contrast to CleanFlicks, ClearPlay markets a DVD player equipped with filtering technology as well as downloadable software that allows consumers to edit potentially offensive material without actually accessing the DVD. Huntsman v. Soderbergh determined that ClearPlay does not violate the copyright owner’s exclusive right to prepare derivative copies because it is not feasible to have a derivative work when no copy (or “fixation”) of the derivative work exists.

CleanFlicks similarly argued that its modification of Hollywood movies conformed to fair use because the legality of the intermediate copying involved (e.g., reproducing works onto a hard drive) depended on the legality of the final product, and that such copying was a non-infringing fair use when it ultimately produced a transformative, non-infringing final product. Rather than compete with the market for the original product, CleanFlicks argued that it served an entirely new market and bolstered the original one, since the company purchased one copy for every copy it sold in edited form. By condemning this rationale, Huntsman v. Soderbergh threatens the role of fair use in offsetting the monopoly of copyright ownership conferred by the U.S. Constitution.

CleanFlicks also defended its business on the grounds of the first sale doctrine, through which the first buyer of a copyrighted work can use it in any way she sees fit as long as no violation of copyright occurs, such as the duplication of a copyrighted work. The ruling against this argument in Huntsman v. Soderbergh undermines the role of the first sale doctrine in counterbalancing the monopoly enjoyed by copyright owners.The counter suit filed by the DGA also alleged that CleanFlicks and ClearPlay violated the Lanham Act by misrepresenting the trademarked names of well-known directors. Because U.S. copyright law has never acknowledged an artist’s moral right to prevent the mutilation or distortion of his or her work, Hollywood studios protect the artistic interests of directors by using the exclusive ownership conferred by copyright law to define the alteration of film content as trademark infringement. The use of copyright law in this fashion primarily protects the interests of the major studios rather than directors in the digital age by allowing them to argue that manipulation of a specific movie distributed by them damages their ability to profitably exhibit it in theaters and market it to multiple consumer demographics, as they currently do by releasing the R-rated version of a film in theaters and an NC-17 version as a Director’s Cut on DVD.

The DGA argued that ClearPlay and CleanFlicks engaged in editing that is inconsistent, creating confusion in the mind of the consumer. In Pirates of the Carribean (2003), “God-forsaken island” is muted, but “heathen gods” slips through. According to the DGA, ClearPlay editing also resulted in the insertion of social, political, and professional prejudices. In The Hurricane (1999), racial conflict between law enforcement and people of color is deleted, even though it establishes a context for how people of color later react to the police. The argument that CleanFlicks and ClearPlay’s editing created confusion in the mind of the consumer is erroneous. Consumers seek out edited videos or editing software/hardware systems exactly because of the difference between the altered products and the originals.The DGA’s allegation that CleanFlicks and ClearPlay violated directors’ trademark rights is also questionable because directors rarely hold the copyright to their films, much less the underlying rights to the script. Their artistic efforts are “work made for hire” by the studios; thus the studios hold copyright. The designation of the studios rather than film directors as copyright owners of Hollywood movies nonetheless throws into relief the extent to which the Lanham Act actually serves the interests of Hollywood studios rather than the DGA.

Huntsman v. Soderbergh illustrates how the legal system constructs copyright ownership as a natural right rather than a constitutional privilege. Even though the Directors Guild of America prevailed in Huntsman v. Soderbergh, the case nonetheless demonstrates that copyright law ultimately protects the interests of capital rather than Hollywood directors. Content providers who wish to extend copyright protection well beyond its intended objective of ensuring remuneration for creators and promoting the progress of the arts and sciences will continue on the basis of Huntsman v. Soderbergh to exert absolute control over how and when legally acquired, copyrighted material can be used.