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

WGAW TO HELP NIX CLEANFLICKS

September 5, 2002
The Daily Variety

CleanFlicks Conundrum: Move aids DGA in Colorado retailer's suit -- The Writers Guild of America West has strongly supported the DGA in its fight with CleanFlicks, the Colorado retailer that cuts sex, violence and foul language from movies it rents.

View full story at www.variety.com

DON'T CLEAN FLICKS

September 5, 2002
The Daily Variety
The town's elite directors, who covet their power over "final cut," awakened recently to an ugly realization: Some people have been quietly re-editing their movies into their own final cut, and they haven't bothered asking permission. Needless to say, the directors are headed to court.

Understandably so. A company called CleanFlicks has decided to re-edit movies ranging from "Shrek" to "Saving Private Ryan" and sell their sanitized videos in some 76 outlets in 18 states. And it's a growing business. Their supposed raison d'être is that they know what their people want -- movies without sex or violence. "Bridget Jones Diary" has some naughty references? Snip them out. Some innuendo sneaks into "Shrek?" Zap it.
What all this entails, of course, is an outrageous invasion of artists' rights. "It's 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 the creator's name still on it," says Martha Coolidge, president of the Directors Guild of America, which filed suit against CleanFlicks.

There are some fascinating legal nuances to all this. Does re-editing films run counter to the "derivative work right' of copyright holders? A few of the Utah movie rental companies have set themselves up as co-ops whose "members" rent videos from the store that claims to own them -- a weird twist on the "fair use" doctrine.

Censorship is ugly in all its manifestations, and its justification on moral grounds is bogus. If the pop culture offends someone, he is free to abstain from it. But to distort the contents of movies, books or TV shows reflects a gross misunderstanding of the nature of a free society. Hollywood should throw its support behind the DGA in its worthy cause.

VARSITY MAKING COMEBACK WITH CLEAN FLICKS

BY TAD WALCH / Feb 23, 2005
The Deseret Morning News

Venue to show only Hollywood hits that meet Y. standards

PROVO — Long lines for tickets were routine during the Varsity Theatre's heyday.

The Brigham Young University playhouse competed with Utah Valley theaters for moviegoers because of its fare — edited versions of R-rated movies such as "The Last of the Mohicans," "A Few Good Men" and "The Firm."

But the lines that snaked through the Wilkinson Student Center hours before tickets went on sale vanished in 1998 after movie studios and distribution companies pressured the theater to stop editing from the films what university officials and Varsity patrons considered objectionable content.

Hollywood hits are making a slow comeback at the Varsity this semester, but local theaters needn't feel threatened, and no one should expect watered-down versions of of R-rated epics like "Alexander," "Constantine" or even PG-13 smashes like "Million Dollar Baby."

"We received permission last fall from the administration to show movies again at the Varsity Theatre, but we will not accept any edited movies, we will not edit them ourselves and we must preview all the movies to make sure they meet BYU standards," said the man behind the renaissance, campus-involvement coordinator Ron Jones.

The theater has been mostly empty for the past seven years, first home to poorly attended movie classics and then to the university's International Cinema program.

Jones is rolling out "Dollar Night at the Varsity" slowly, with a single movie just one weekend a month. "Spider-Man 2" produced a sellout of the Varsity's 794 seats when it ran for three days in January. "The Village" drew solid crowds last weekend.

Students appear interested in an on-campus dollar theater, but the crowds will depend on the movie, said Rob Hickman, a junior from Washington, D.C. Hickman bought a ticket to "The Village" because he considers director M. Night Shyamalan a "modern Hitchcock."

Jones doesn't anticipate the return of long lines, but he does hope to recapture some of the magic of the old on-campus haunt.

He began his quest to resuscitate big events at the Varsity this winter, when it became a popular home for sneak previews of a genre that hardly existed in 1998 — the Mormon-oriented movie. The house was packed for free sneak peeks of "Saints and Soldiers," "The Work and the Glory," "Baptists at Our Barbecue" and "Sons of Provo."

Utah distributor Halestorm will screen its next release, "Suits on the Loose," at the Varsity next month.

Jones said the Varsity will continue to show one Hollywood hit a month, with "Napoleon Dynamite" in March and "Hidalgo" in April, and then move to two weekends a month next fall, when "National Treasure" and "The Incredibles" make their BYU debuts.

"We're looking for movies that don't need to be edited, and we're finding some," he said. "Our purpose is to provide clean entertainment for our students. Rather than trying to make money with our films, we want to provide students with inexpensive choices for on-campus entertainment."

Jones said a committee will rule out movies with objectionable sexual content, "continued use of the Lord's name in vain that is demeaning to religion," other inappropriate foul language or issues of homosexuality.

"That limits what we can show, but we've found some pretty good movies," he said. " 'The Village' is a very innocent story. It has no swearing. It has no sex. It's just a very interesting story with a lot of twists and turns."

BYU might be sticking to its standards, but it took two key philosophical shifts to clear the way for any mainstream movies to return to the Varsity.

First, the administration dropped a requirement that the theater be profitable, Jones said. The goal now is to use it to enhance campus life. Jones also persuaded several administrators to let him deal with Swank Motion Pictures Inc., the company that distributes movies to colleges and universities in the United States.

"The only way to do this is with the distribution company BYU had a problem with in the '90s," Jones said. "Some didn't want to work with them because they felt the company hadn't supported us" during the fight over editing.

A Swank executive did not respond to a Deseret Morning News request for comment.

FILM EDITING UNETHICAL

BY THE SIGNPOST EDITORIAL BOARD, April 23, 2008
Weber State University SignPost

Clean Flicks and video editing companies like it need to be stopped, and it is great Hollywood has finally taken legal action against companies that do so. This illegal film editing is this generation's version of book burning.

In the United States, people are guaranteed the freedom to create artistic visions of their choice and retain ownership of creations. Altering them violates the artist's creative rights.

People who want the videos edited do so because they do not want to expose themselves to offensive material. By closing their eyes to theatrical art, people are closing their eyes to life. Art and literature have always reflected history. Do these people really not want to know what is happening around them? Life is offensive, but how do people learn what is offensive and what they stand for, if they have no knowledge of it? How do parents teach their children values if they have no examples to contrast or question their values? Children are going to face these examples in life. What better way to prepare them for it than through knowledge?

Despite the moral issues involved with censorship, there are legal issues as well. Clean Flicks is violating copyright laws with its practices. To alter a piece of work, one must seek permission of the author, often paying a fee to do so. Clean Flicks failed to do this. They are trying to operate under what they believe is a loophole in the law that allows customers to make one copy of material for personal use. However, by altering these copies and providing rentals of altered movies, Clean Flicks has bent the rules.

People argue that films get edited for television or airplane viewing, so why can't Clean Flicks do the same? The difference is that broadcasters and airlines pay for the edits, and the edits are done and controlled by the film studios. This is the way it should be. By allowing editing enterprisers to randomly cut content out of films, studios comprise the film maker's artistic integrity.

If Clean Flicks prevails in the court case, what could that mean for the future of all literature? Will a Clean Books editing company sprout up, providing offensive free books? Will printers begin processing nudity free alterations of famous art? And do proponents for censorship really think that will make a difference on our society?

According to the February 2003 edition of "Playboy", some common film cuttings include: "the farting in 'Dr. Doolittle 2'; thirty seconds of sexual innuendo and swearing in 'Shrek'; two minutes of sexual discussion in 'Bridget Jones's Diary'; 139 f*#@* and 29 s%&#* in 'Good Will Hunting'; the genitalia and breasts of the concentration camp victims in 'Schindler's List.'" By removing these from the eyes and ears of viewers, censors are not extinguishing them from society.

It is historically proven that art reflects society, not the other way around. The atrocities of WW2 happened long before Stephen Spielberg attempted to recreate them on film. Profanities have always and will always spew from mouths, with playgrounds being the practice arena for trying out these new insults. People have been finding ways to discuss and participate in sex since the dawn of man. And no matter how much people try to remove farting from celluloid, boys are going to think it is hysterical. Parents need to be confident of the moral values they instill in their children. And, instead of fearing that film content is somehow going to strip their children of values, trust that perhaps their children may have learned enough to rise above it.

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."

THE BATTLE EXPANDS

BY RAY RICHMOND / January 2003
DGA Magazine

On December 13, Hollywood's major studios joined the Directors Guild of America in its countersuit against a number of companies involved in the unauthorized editing and manipulation of films for rental or sale.

In their filing, the studios — Disney, DreamWorks, Fox, MGM, Paramount, Sony, Universal and Warner Bros. — note that the edited films "are of lousy quality in terms of continuity and reproduction; sometimes, the dialogue is not in synch with video images" and that "use of studio trademarks on the ... films 'falsely and erroneously' suggests a connection with the studios that deceives consumers as to the source" of the edited films.

The studios are seeking an injunction to stop the sale and renting of the altered videos and to declare that the unauthorized editing infringes upon the studios' copyrights and trademarks. The studios are not seeking punitive damages, but do seek attorney fees.

On August 16, CleanFlicks pre-emptively sued the DGA and 16 well-known director members asking for a judicial determination that they had a First Amendment right to edit movies for private use. The DGA countersued on September 20 asking the court to allow the Guild to represent the interests of its membership, allow the Guild to expand the counterclaims to include other companies that engage or contribute to the practice of editing or altering videocassettes and/or DVDs in commerce, and allow the Guild to bring in the motion picture studios as necessary parties, citing their role as the copyright holders of films. These actions by the DGA set the stage for the studios joining in the battle against film alteration.

For complete background information about the issue and the lawsuits, see DGA Magazine's November 2002 issue.

IT'S A TOUGH JOB, BUT SOMEBODY HAS TO DO IT

BY TRAVIS MORGAN / Nov 21, 2002
Brigham Young University’s Daily Universe

Nothing seems to soothe semester-end stress like a great scary movie. Unfortunately, every time I see a commercial for a perfectly disturbing film, it seems to be rated 'R for violence, content, language' or some other indiscretion. Come now, can't film producers create more disturbing and distressing films for my PG-13 eyes?

Enter Clean Flicks.

Here in Utah Valley, we have another alternative to satisfy our hankering for mind-numbing motion pictures. Suddenly, all those naughty words and unsettling scenes magically disappear with the snip of a pair of digital editing scissors. Clean Flicks president, John Dixon, reassured me that movies are not edited "so much that you can't figure out what's happened."

So, you can still watch all those popular satanic and troubling films without the swear words. But don't fret, the underlying messages of doom and gloom should remain fully intact.

With the holiday season soon approaching, scores of inappropriate movies should be hitting movie theaters any time now. I hear Eminem's new movie is sprinkled with enough colorful language to keep movie editors clipping for hours on end. But within a few short months, you should be able to watch his rise to rapper greatness without his pesky rapper tongue. You may need to find a good organist, however, because the film may end up as a 1920s-style silent movie.

I've always wondered who edits out all those naughty parts of the films. Can just anybody get into the movie-slicing business? I thought I would do some investigating to see if they are looking for any extra help. It turns out that Clean Flicks already has a very competent movie editing staff, based out of Payson, Utah County. And apparently, they already get offers from a few prospective smut-slashers. "Sometimes we get people who offer to edit from their homes for us, but we don't need that," Dixon told me.

I can almost hear the conversations of potential edit-from-home applicants: "I already told you, honey, I'm not watching rated-R movies in our living room, I'm editing rated-R movies. It's a tough job, but somebody has to do it."

The sacrifices people are willing to make for the good of the rest of us!

I thank you eager and dedicated stay-at-home movie editing hopefuls for offering your souls in exchange for my salvation. I will never watch the edited Exorcist again without thinking of your generosity on my behalf.

Image courtesy of Divine Comedy, BYU's award winning comedy troupe.

WHY THE DIGITAL PIRACY WAR HAS TO BE FOUGHT

BY LIONEL S. SOBEL / November, 2002
DGA Magazine

Legal battles over digital piracy began with photos of naked women.

Playboy led the charge a decade ago, when it sued electronic bulletin boards (early versions of today's websites) for distributing digital images scanned from the magazine's centerfold. Playboy won all of those cases. But that didn't deter others from using computer technology to distribute — without authorization — computer games and software, then musical recordings, and now movies and television programs.

These works are protected by federal copyright law, so people who copy and distribute them without authorization are guilty of infringement. But despite injunctions and big money judgments — against MP3.com, Napster, iCraveTV and others — the infringements did not stop. Instead, those who infringe simply devise more elaborate justifications and defenses, and argue that if the law does prohibit them from doing what they'd like, the law itself should be changed.

As a result, battles over digital piracy have escalated to all-out "war." Fortune magazine said exactly that, in the title of a recent article that featured Andy Grove and Michael Eisner as the leaders of opposing armies. Intel's Grove is an icon for Silicon Valley, and Disney's Eisner is an icon for Hollywood. The war, however, is not just between those two California regions.

"Silicon Valley" represents all technologists, from college sophomores who upload and download music and movies from their dorms, to computer and home electronics makers, to Internet service providers. "Hollywood" represents those who create entertainment, from DGA members and the studios that finance their work, to recording artists, songwriters and record companies, and all others who create entertainment for a living.

The war between Silicon Valley and Hollywood is about the future of copyright, and the role that copyright should play in the digital age. Technologists say it should play no role, or at least none of significance. Those who create entertainment note that copyright law was itself created in response to a then-new technology — moveable-type printing presses — and they say it should play the same role it always has, through generation after generation of new technologies.

Copyright's role is to create necessary incentives for the creation of entertainment.

It has been said that people would create entertainment without being paid to do so, and I have no doubt some would. But everyone has to buy groceries and pay the rent. So the universe of those who would create for free would be limited to amateurs and the independently wealthy. Unless we'd be satisfied with their meager output, we need some way to provide financial incentives that permit people to create entertainment professionally, for a living.

In the history of humankind, only three techniques have been conceived to provide those financial incentives.

One is patronage. Wealthy people and companies provide financial support to artists and entertainers, thus enabling them to buy groceries and pay the rent while they create. Patrons, however, are not foolish or selfless, nor are there very many of them. Patrons support the creation of the kind of entertainment that is pleasing to themselves. And, as compared to the amount of money Hollywood invests in entertainment, patrons invest very little. This means that the variety and quantity of entertainment produced with incentives provided by patrons would not even begin to satisfy the appetites of Americans, let alone others in the world who also are fans of American-made entertainment.

Government grants are a second technique for providing financial incentives for the creation of entertainment. Other countries, like Canada and France, make significant use of grants. The United States uses grants just a little. The National Endowment for the Arts and the Corporation for Public Broadcasting are two grant-giving agencies of the federal government. But all of the grants they give in a year amount to but a sliver of what Hollywood invests each year. What's more, their grants often generate as much controversy as entertainment, and thus regularly become tangled in overtly partisan politics. Entertainment produced with government grants, even in countries like Canada and France, does not satisfy local appetites for entertainment. It certainly wouldn't satisfy the appetites in the United States.

Copyright is the third, and by far most successful, technique for providing financial incentives for the creation of entertainment. Copyright gives creators exclusive rights in their creations — rights they may use, or authorize others to use, in the entertainment marketplace. By doing so, copyright encourages people to create whatever they think may appeal to the audience they hope to reach. It gives them the right to charge their audience money for the privilege of enjoying what they have created. Creators themselves decide how great a financial incentive they require to continue to create, while their audiences decide how much they are willing to pay for particular creations. Creators are accountable only to their audiences, not to patrons or government agencies. It is democracy — of the marketplace — in action.

The exclusive rights at issue in the digital piracy war are old:

* The right to make copies and distribute them is more than 200 years old, here in the United States (and even older in other countries).
* The right to make new or edited versions is almost 100 years old.
* The right asserted by DGA members in the CleanFlicks case — the right to prevent the sale and rental of edited versions of movies they have directed — was first recognized by a federal appellate court more than a quarter-century ago.
* And courts have recognized that people may be held liable for infringements committed by others, rather than by themselves, for more than 60 years.

The only "new" right asserted by entertainment creators is the right to prevent circumvention of technology-based protection measures. Congress enacted that right in 1998 as part of the Digital Millennium Copyright Act, in the belief technology has a role to play in solving the piracy problem that technology itself created.

Today's technologists argue that computers and the Internet are revolutionary means for efficient communication, community-building and commerce, and in order for these wonderful new technologies to achieve their full potential, they must be permitted to develop and evolve, unfettered by the law's requirement that certain things not be done, except with consent.

It is significant that the exclusive rights of copyright, to which digital technologists take exception, are old rights, because digital technologies are not the first new technologies developed since moveable-type printing presses.

When motion pictures were new, producers could have argued that movies were so revolutionary and efficient a technology for bringing stage plays to the public that producers should have the right to make movie versions of plays without the consent of playwrights. But movie producers never made that argument. They acquired copyright licenses, and the movie production business thrived nonetheless. When one early movie producer did argue that he should be able to produce a movie of the novel Ben-Hur without a license, the Supreme Court ruled otherwise; yet novels remained, and still are, a fertile source for movie producers.

When makers of the first music recordings — player piano rolls — persuaded the Supreme Court that they did not need licenses from music publishers or songwriters, Congress immediately intervened and changed the law so that copyright licenses became necessary. Yet the record business thrived nonetheless.
When early radio broadcasters contended they did not require licenses from music publishers or songwriters, federal courts ruled otherwise. Radio stations have obtained copyright licenses every since, and have thrived nonetheless.

Early television broadcasters could have argued that television was so revolutionary and efficient a way to bring movies to viewers that they should have the right to broadcast movies without copyright licenses. But television broadcasters never made that argument. They acquired copyright licenses, and the television business thrived nonetheless.

When early cable TV system owners persuaded the Supreme Court that they did not need licenses to retransmit broadcasts of copyrighted television programs, Congress responded by amending the law so that licenses became necessary. Yet, the cable TV business thrived nonetheless.

And when the home-video business was new, companies that made videocassettes could have argued that theirs was so revolutionary and efficient a way to deliver movies to viewers that they should be able to do so without copyright licenses. But they never made that argument, and thrived nonetheless.

In other words, today's digital technologists claim the right to do what none before them was permitted to do. Why has that happened?

Many technologists are "consumers" who simply want things for free, or who assume that whatever can be done — as a matter of technology — is legally permitted to be done. Other technologists are companies — like MP3.com, Napster and now CleanFlicks — who want to build their businesses using, as their inventory, entertainment created by others. Like some consumers, these companies assume that if technology enables them to use the creations of others, they are legally permitted to do so.

Finally, some technologists are companies that manufacture computers or consumer electronics, or provide services like online hosting or Internet connections, who believe that consumers are more likely to buy their goods and services if they can be used to get free entertainment.

Hence, the digital war. Record and movie companies, and even the DGA, have been forced to pursue expensive and unpopular lawsuits, for at least two reasons.

The first is purely a trial lawyer's reason and goes by the name "waiver." If those who create entertainment had not objected to the unauthorized use of their work — say, on the grounds that the Internet is not yet profitable, or the Utah marketplace for edited videos is too small to bother with right now — it would have been too late to object when the Internet finally becomes profitable or the market for edited videos grows. Judges might say that by delaying, creators had waived their rights, by inducing others to build their own businesses in the belief that their behavior did not violate anyone's rights, or at least none that would be asserted.

The second reason is related to this lawyer's version of waiver. It is a practical version of waiver. Most people assume that if they do something improper, they will be told so. If they aren't told, they assume that what they are doing is proper. Lawsuits thus perform an education function: they let people know that if they make unauthorized copies of entertainment, or distribute it to others, or edit it without consent, they're doing something improper.

In short, if entertainment creators don't assert their rights, computer manufacturers and Internet service providers certainly won't. Eventually, if history is any guide, digital technologies will be licensed like earlier technologies were and are. In the meantime, however, entertainment creators are forced to show why licenses are necessary, as a matter of law.

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."