Creating and distributing edited versions of films to “sanitize” the films to make them more “family-friendly” constitutes copyright infringement as a matter of law under the §106(1) right of reproduction and 106(3) right of distribution. The court finds that these works are not transformative and thus can not be considered unauthorized derivative works, but are only mere reproductions. By casting these butchered copies as mere copies and not derivative works, the court never directly addresses the moral rights question.
Courtesy of Joe Gratz: Clean Flicks of Colorado v. Soderbergh (02-cv-01662-RPM, D. Colo. 7/6/06)
Compare Gilliam v. Am. Broadcasting Co., 538 F.2d 14 (2d Cir. 1975) (Where the Lanham Act protects moral rights of creators.)
William Patry: As Dirty as We Wanna Be
There really isn’t a paradox, because altering something doesn’t make it automatically transformative or fair use: if I crop off the edges of a fabric design to make it fit better for my textile machines, I have altered the original, but hardly “transformed it.” The family friendly folks had a stronger case than that, but it can’t be said that they provided any new insights or perspectives on the works and that is what Judge Leval meant by transformative. Still, the case highlights once again, the square peg in the round hole problem that is rapidly overtaking fair use analysis.
William McGeveran, Info/Law: Bowdlerization as Fair Use: “There is little doubt that the companies infringed on copyright – they copied the movies, distributed them, and at least arguably created derivative works from them. The real heart of the case (other than some side arguments that get dealt with quickly) is the fair use defense they raised. Unfortunately, the decision’s reasoning about the factors considered under the fair use doctrine is somewhat weak.”
William McGeveran, Info/Law: Fair Use: Rickety?: “We may be heading for a crisis point where fair use cannot respond to all these different applications, from file-swapping to parody to reverse engineering and so forth. The problem is that I am not sure what the alternative could be. Congress is ill-suited to devise specific statutory exemptions for these sorts of unpredictable issues.”
John Ottaviani, Technology & Marketing Law Blog: Court Nix Clean Flicks: “The entertainment world has given us yet another example as to why one should be very wary of creating or investing in a business model built on the foundation that its activities are legitimate under the ‘fair use’ exception to the U.S. copyright laws.”
Randy Picker, The University of Chicago Law School Faculty Blog: CleanFlicks and Digital Rights Management: “Last Thursday, a federal district court judge ruled that CleanFlicks violated U.S. copyright law when it edited movies for sex, violence and language. CleanFlicks sought to claim protection under ‘fair use’ but the court rejected that claim. The case is interesting in the way that it ties into the issue of digital rights management (posts here and here) and the question of how we will allocate control between content creators and content users.”
Marci Hamilton, Findlaw: A Court Rules That Privately Editing Films for Content Violates Studios’ Copyright The Decision in Clean Flicks v. Steven Soderbergh and Its Cultural Context: “This case was about as straightforward a copyright case as there can be, and the court’s determination is plainly correct – as I will explain. The case is far more interesting, actually, as a study in the interaction between religious (or moral) entities and the rule of law.”
For the purposes of fair use, it should make sense to think of a transformative use as a non-substitutionary use. Where the use simply substitutes for the original work, there is no transformative use. If the edits were done as commentary on the amount f violence in movies– and not to meet some demand for people who want to watch popular movies but without objectionable parts– there is a stronger transformative use argument.
