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."