Spare us the cutter

Blogging light as I work on finishing the first draft of my next spec (in hopeful anticipation of needing it to submit to the next round of Writer's Arc on the 24th). But I was pleased to note the recent decision from the federal district court in Utah granting summary judgment in a suit by the Directors Guild of America and the major studios against the CleanFlicks company of Pleasant Grove, Utah.

It seems, several years ago while watching Titanic -- specifically the one brief moment of Kate Winslet nudity in the three and 1/2 hours of James Cameron disasterrific spectacle -- the proprietors of CleanFlicks were sufficiently offended as to take it upon themselves to scrub clean other Hollywood releases of any offensive content for the home rental market. According to their website, CleanFlicks removes all "profanity, nudity, graphic violence, sexual content." Then, Netflix-style, customers can request the sanitized-for-their-protection version of the latest films. And have a big, happy, white family like the one pictured on the CleanFlicks website, presumably.

All which might have been perfectly okay, but for the fact that all of the films receiving the CleanFlicks treatment were registered works under the Copyright Act. Because the company was making the world safe from offensive content without the consent or permission of the copyright holders, CleanFlicks's activities were alleged to have infringed on several of the exclusive rights provided for by the Act, i.e., reproduction, creation of derivative works, and distribution. CleanFlicks argued that under the fair use doctrine, their unauthorized copying was permitted as a form of criticism because, in the court's words:

"They seek to establish a public policy test that they are criticizing the objectionable content commonly found in current movies and that they are providing more socially acceptable alternatives to enable families to view the films together, without exposing children to the presumed harmful effects emanating from the objectionable content."

As CleanFlicks's motto states: "It's all about choice!"

The Utah court, however, wasn't buying. However objectionable, or purportedly harmful to the customers' children, the court found those arguments "inconsequential to copyright law and . . . addressed in the wrong forum. This Court is not free to determine the social value of copyrighted works. What is protected are the creator's rights to protect its creation in the form in which it was created." Of the several factors weighing against a finding of fair use, the most damning (as it usually is) was CleanFlicks's contention that there was no adverse effect from their use on the value of the copyrighted works to the studios. To the contrary, the court found, the bowdlerized versions were not only being sold as a substitute for the original works, but also that the unauthorized edits were themselves the sine qua non for CleanFlicks's customers.

A good result for the industry and one consistent with prior cases dealing with the fair use defense to infringement claims. It is interesting to note that the DGA, but not the WGA, was a party to the suit. Just another indication of the auteur perception of films as the sole creation of the director (someone had to write the dirty words and nude scenes before they could be filmed and, ultimately, censored). It is curious to me that the DGA and several individual directors would have been parties (as "defendants-in-intervention") at all, aside from the publicity value to the case. I'm not sure they have any more legal standing than the screenwriter to the extent that the studio is the sole owner of the copyrighted works.

Here in the United States, the statutory rights conferred to copyright owners by the Copyright Act are the exclusive grounds for an infringement suit. Unlike Europe and other jurisdictions, we have not generally adopted the concept of droit moral, or "moral rights," which provide the creator of artistic works with certain protections for their creations, irrespective of whether they are the actual holder of the copyright, e.g., prevent others from modifying, distorting, or otherwise interfering with the integrity of that work. Which, I suppose, avoids placing directors in the awkward position of having to separately enforce their moral rights against companies like CleanFlicks while complying with each and every suggested cut or change to come down from the studio after the latest round of test screenings.

[Postscript] While the CleanFlicks decision is a sort of vindication for Hollywood, in practice it is likely a pyrrhic victory. The Family Home Movie Act of 2005 expressly exempts from liability makers of technology that edits DVD content "on the fly." Companies such as ClearPlay cut out (heh) the CleanFlicks-type middleman with players that censor as you watch. So if thine DVD offends thee, pluck it out . . . and pop it in a ClearPlay machine. Although the happy white family on their website isn't quite as large as the one on CleanFlicks's, so I remain dubious of their claim to be "Better for your Family!"