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."

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."