FEDERAL JUDGE BLEEPS DVD EDITING

BY DEBORAH NATHAN, ESQ. / July 13, 2006
Find Law: Legal News & Commentary

A federal judge has stopped the distribution of major motion picture DVDs that were edited by several companies to remove objectionable content, ruling that the sanitized versions infringe the copyrights held by several major movie studios and directors.

Judge Richard P. Matsch of the District of Colorado granted the motion for partial summary judgment made by such cinema luminaries as Steven Soderbergh, Robert Redford, Steven Spielberg, Martin Scorsese and Sydney Pollack.

The directors and several movie studios were defendants in a 2002 lawsuit filed by Clean Flicks of Colorado, Family Flix USA, CleanFilms and Play It Clean Video.

The movie studios included Metro-Goldwyn-Mayer Studios Inc., Time Warner Entertainment Co., Disney Enterprises Inc. and Dreamworks LLC.

The plaintiffs sought a declaratory judgment that they were not infringing any party's copyrights by making edited versions of motion pictures.

The defendants counterclaimed, alleging copyright infringement, and then moved for partial summary judgment.

In response to the counterclaims, the plaintiffs argued that their actions did not constitute copyright infringement because they were making fair use of the copyrighted works.

The fair-use doctrine is an affirmative defense to allegations of copyright infringement. The doctrine allows use of copyrighted works for criticism, comment, news reporting, teaching, scholarship and research.

Courts balance four factors to determine if a particular use is fair: the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion of the work used; and the effect of the use upon the potential market for the work.

As explained in Judge Matsch's opinion, Clean Flicks and Family Flix operated similarly by purchasing an original DVD of a movie. After downloading the DVD onto a computer, they edited the film by deleting sex, nudity, profanity and gory violence.

The companies either sold the edited movies directly or through distributors CleanFilms and Play It Clean.

Judge Matsch weighed the four factors and concluded that the scales tipped in favor of the directors and studios.

The plaintiffs conceded that they were using the DVDs for commercial gain. Second, Judge Matsch said the edits to the movies, although constituting a small percentage of the original films, did nothing to transform the creative expression of the movies.

He explained further that the non-transformative nature of the edited copies, coupled with the creative expressions of the movies, weigh heavily in favor of the studios and directors under the second factor, the nature of the copyrighted work.

The judge also rejected the plaintiffs' claim that their use of the movies had no adverse effect on the value of the copyrighted work to the studios, noting that the argument ignored the intrinsic value of the right to control the content of the copyrighted work.

The plaintiffs also raised a public policy argument, claiming they were criticizing the objectionable content in many movies and were providing more socially acceptable alternatives.

Judge Matsch said that argument was addressed to the wrong branch of government, because courts are not free to determine the social value of copyrighted works.

He observed that during the pendency of the case, Congress enacted the Family Movie Act of 2005, which allowed private households to edit movies if no fixed copy of the movie is created.

The judge said Congress had the opportunity to make the policy choice now urged by the plaintiffs and rejected it.

Agreeing that the plaintiffs were infringing the defendants' copyrights, Judge Matsch enjoined them from continuing to produce and distribute edited versions of the films.

The plaintiffs' attorney, David N. Schacter of Sherman & Howard in Denver, acknowledged that Judge Matsch's opinion was well-reasoned, but said, "I'm disappointed that the court took the decision-making role away from the jury."

CLEANFLICKS VID CHAIN SUES HELMERS

September 5, 2002
The Daily Variety

CleanFlicks Conundrum: Spielberg, Redford, Altman, others named defendants -- More than a dozen of Hollywood's top helmers have been sued by a tiny Denver video chain that rents sanitized versions of their films in a preemptive strike against an expected DGA lawsuit.

View full story at www.variety.com

THE BATTLE CONTINUES

BY RAY RICHMOND / March 2003
DGA Magazine

What began in August 2002 as a preemptive lawsuit filed against 16 prominent Hollywood directors continued Feb. 14 with a hearing in Denver, Colo., the first such court proceeding in a case that is expected by all involved to stretch well into 2004.

Since the original suit was brought by Robert Huntsman and CleanFlicks of Colorado, L.L.C., the DGA has filed a countersuit (on Sept. 20, 2002) — and that was joined on Dec. 13 by the major film studios of Disney, DreamWorks, Fox, MGM, Paramount, Sony, Universal and Warner Bros.

The overriding issue, of course, remains the fact that by selling edited versions of existing films and/or selling software that contains pre-programmed "masks" or filters, services such as CleanFlicks, ClearPlay, MovieMask, Clean Cut, FamilyFlix and Family Safe are compromising the work of the directors as well as the copyright protections of creative works.

The case stands to be a protracted one, rife with discovery issues and conferences and motions and possibly a trial on the relative merits of the suit and countersuit well down the line.

The studios suit is based on copyright, while for the DGA the legal issue is the Lanham Act, which is based on the concept of brand integrity.

The 16 directors named as defendants in the original lawsuit — all of whom are being 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.

The purported goal of the companies is to cleanse films of raw language, violence and sexually explicit content, but the analyzed examples go far beyond even the obvious. Indeed, some directors have said they felt the edits and muting have been in many cases jarring and far beyond the realm of simple trims to bring a film in line with an "E" (for Everyone) rating.

Take the case of Spielberg's Oscar-winning classic Schindler's List. A CleanFlicks copy of the film detected 43 audio and/or video cuts and some 10 minutes cut from the movie's total running time. The horrific impact of the film has actually itself been muted in the trims. A prisoner inspection scene in which SS guards manhandle nude prisoners and determine whether they will live or die is effectively eliminated from the film.

Clear Play's edit of Hackford's Proof of Life deletes the entire opening sequence involving rebel brutality, the first killings and subsequent kidnapping — leaving gaping plot holes in its wake.

Not even subtlety is a guarantee against surgical manhandling, however. A scene from Redford's The Horse Whisperer depicts Redford doing a tender slow dance with co-star Kristin Scott Thomas that features his hand touching her back. Thomas' character is married to another man, and the FamilyFlix cut of the film completely eliminates this dance, despite its import in illustrating her character's struggle with her marriage and her attraction to another man.

And those who believe that a movie as benign as the Betty Thomas-directed Dr. Doolittle should be spared the knife might be surprised to learn that it isn't. FamilyFlix makes 58 individual audio and/or video edits and cuts, taking seven minutes from the running time total. Most glaring is the complete butchering of a scene in the vet's office (featuring Jeffrey Tambor and star Eddie Murphy) involving a thermometer and a "talking" dog's rear end. Other edits cut straight to the heart of Murphy's comedic timing.

Then there is the utter evisceration of the freebase scene in Soderbergh's Traffic. We see the drug being prepared, but never the ingesting or its immediate aftermath. Some might note the foolishness of trying to edit, for family consumption, a film as rife with raw language and hard imagery as is Traffic. At best, the attempt unacceptably blunts its edge.

Silberling harbored no illusions before finally mustering the courage to sit down and watch a CleanFlicks edit of his 1998 feature City of Angels. He knew that the company came at its job with a particular outlook. Yet he wasn't quite prepared for what he saw — or, perhaps more accurately, what he didn't.

"They didn't take that much out — less than three minutes, I think — but I was still actually shocked," Silberling admitted. "It was weird because it went beyond language and nudity. It was a mores question. And I guess I wasn't prepared for that."

As Silberling describes one trimmed scene in question, Meg Ryan's character has an on-again, off-again boyfriend but longs for a character played by Nicolas Cage. Finally, after much pushing and pulling, she and her boyfriend get together and make love. In Silberling's movie, the entire episode is off-camera. All that was shown is Meg Ryan getting out of bed. Still, it is cut from the film by CleanFlicks.

"It was the most shocking cut imaginable," Silberling maintained. "I guess someone didn't like the idea of Meg Ryan sleeping with someone out of wedlock. It astounded me."

Indeed, Silberling believes that "if every director saw what these people are doing to their work, it would make them even more upset. The storytelling itself is just being pilloried. And that's your name on the film. I thought I went in prepared, and yet I was really floored by what had been done to my movie."

Having educated himself on the particulars of the debate, Silberling believes he is now fully armed for the battle ahead.

"Another thing that's bothersome," Silberling says, "is that people like ClearPlay, who are supposed to be selling masks and filters, can't sell a pre-programmed technology that immediately recognizes, say, the fact that 'skin' would mean nudity vs. the bottom of someone's leg. Someone still has to go in and pre-program the omissions. They may sell you a template that makes the edits in real time, but someone has to create that template in the first place."

What that means, stresses Silberling, is that morality is still being programmed into a device that is claimed to be amorphous.

"Someone is still making editorial decisions and selling the public those decisions," Silberling adds. "Their decisions happen to be in the form of an edit list. That's something I have a real problem with."

And there is a real difference between viewers customizing their movie viewing experience and having it customized for them, Silberling emphasizes.

"All that any filmmaker can hope for is that the viewer at least has an opportunity to take in the intended storytelling experience," he says. "If people restructure your film for the hell of it, that tends to get in the way. I mean, if you own a copy of a film it should be yours to do with what you want. But for a company to externally distribute a whole set of editorial choices, well, that runs counter to the whole creative process."