Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, July 11, 2006

District Court Rules Against Clean Flicks; Orders Company To Turn Over Edited Versions of Movies To Copyright Holders

U. S. District Court Judge Richard Matsch has granted summary judgment to the Directors Guild of America and others suing Clean Flicks of Colorado, Family Flix and several other companies which make available edited versions of films for "family viewing."  The DGA had claimed that such sanitized versions of movies violated copyright and Matsch agreed, saying "The right to control the content of the copyrighted work ... is the essence of the law of copyright." Clean Flicks claimed it had a First Amendment right to provide edited works because it was also providing unedited versions of the works in a "one-on-one" ratio. Matsch rejected both that justification and the "fair use" defense, saying,

Under the purpose and character of use factor, the counterclaim defendants concede that their use of the copyrighted works is for commercial gain, but argue, correctly, that under Campbell, that fact is not determinative. 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.

They seek some comfort in language appearing in the opinion deciding Chicago Bd. of Education v. Substance, Inc., 354 F.3d 624 (7th Cir.2003) that the privilege protects public criticism and may justify substantial copying of that which is being criticized. The holding in that case was an affirmance of the denial of the fair use defense under summary judgment standards. Ironically, Judge Posner wrote that a teacher does not have the right to publish the criticized tests indiscriminately “any more than a person who dislikes Michelangelo's statue of David has a right to take a sledgehammer to it.” ... Or, as maybe more aptly said in this case, to put a fig leaf on it to make it more acceptable for viewing by parents with young children.

The accused parties make much of their public policy argument and have submitted many communications from viewers expressing their appreciation for the opportunity to view movies in the setting of the family home without concern for any harmful effects on their children. This argument is inconsequential to copyright law and is 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.

During the pendency of this case Congress enacted the Family Movie Act of 2005, Pub.L. No. 109-9, 119 Stat. 218, 223-224, amending §  110 to provide an exemption for the editing of motion pictures by a member of a private household if no fixed copy of the altered version of the motion picture is created. That statute eliminated from this case those parties selling technology enabling such private editing. The legislative history shows that the amendment was not intended to exempt actions resulting in fixed copies of altered works which the House Committee believed illegal. Thus, the appropriate branch of government had the opportunity to make the policy choice now urged and rejected it.

The Studios contend that the counterclaim defendants are violating the right to create derivative works, being the edited versions of their films. A “derivative work” is defined in §  101 as

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

This raises the question of whether these DVD-Rs are “transformative.” That same question arises under the fair use defense. The parties take inconsistent positions on this question. The counterclaim defendants argue that they are making a transformative use of the copyrighted works for purposes of the first factor under §  107(1)-that the purpose and character of their use are for criticism of the objectionable content of the movies, and then deny that their edited versions are derivative works because they are not recasting or revising the copyrighted material in a manner that can be characterized as a work of authorship within the statutory definition. On the other hand, the Studios say that the edited versions meet the definition of derivative works but deny that the character of the use is transformative within the scope of the fair use defense.

The transformative nature of the use of copyrighted material requires such a contribution of originality as may be of such public benefit as would serve the underlying purpose of providing copyright protection, as identified in Article 1, §  8 of the Constitution: “... to Promote the Progress of Science and useful Arts.”

In Campbell, the Supreme Court said that a use is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” ... The counterclaim defendants add nothing new to these movies. They delete scenes and dialogue from them.

Since oral argument in this case the Second Circuit Court of Appeals decided Bill Graham Archives v. Dorling Kindersley Ltd., 498 F.3d 605 (2d Cir.2006). It held that the publisher of a “coffee table book,” telling the story of the Grateful Dead, made fair use of that music group's artistic images on its event posters and tickets. In so doing, the opinion addressed all of the statutory factors and emphasized that these images were not exploitative and their appearance was only incidental to the commercial value of the historical/biographical book. Therefore, the use of the copyrighted images was “transformatively different from the images' original expressive purpose and [the publisher] does not seek to exploit the images' expressive value for commercial gain.” 612. That is in sharp contrast to the counterclaim defendants' use of the copyrighted works in this case. It is undisputed that the edits are a small percentage of most of the films copied and the use is clearly for commercial gain. There is nothing transformative about the edited copies. Therefore, the first statutory factor in the fair use defense does not support the infringers.

The non-transformative nature of the edited copies coupled with the creative expressions of the movies weigh heavily in favor of the Studios under the second factor, the nature of the copyrighted work.

The third factor requires an examination of the quantitative and qualitative nature of the copyrighted material taken. Campbell, supra at 586-587; Bill Graham Archives, supra at 613. This factor also weighs against fair use as the amount used is substantial for the movies are copied in almost their entirety for non-transformative use.

The primary argument on the fair use defense is the fourth statutory factor. The counterclaim defendants contend that there is no adverse effect from their use of the movies on the value of the copyrighted work to the Studios. They suggest that the Studios benefit because they are selling more copies of their movies as a result of the editing parties' practice of maintaining a one-to-one ratio of the original and edited versions. It is assumed that the consumers of the edited versions would not have themselves purchased the authorized versions because of the objectionable content and the Studios do not compete in this alternative market.

The argument has superficial appeal but it ignores the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public playing them on DVD in a home environment is more than merely a matter of marketing; it is a question of what audience the copyright owner wants to reach.

The case is Clean Flicks of Colorado v. Soderburgh, 2006 WL 1876624 (LEXIS cite not yet available).

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