The "dirt" on digital "sanitizing": droit moral, artistic integrity and the Directors Guild of America v. CleanFlicks et al.

"The very basis of all creative work lies in the protection of the

right to create, which is a function of the right of individual

liberty.... A corollary to this right to create is the right not

to create, to refuse to create." (1)

I. INTRODUCTION

Imagine this scenario: an American parent sits down at his computer and points his Internet browser to www.CleanFlicks.com. (2) On this site, the parent can choose from over 400 films to purchase for his family's private use. (3) The movies are advertised with their original posters and publicity materials. (4) These films, however, are substantially different than the versions that were originally distributed in movie theaters across the world. (5) The company that operates the website, as well as a chain of almost 100 retail outlets around Utah and surrounding states, (6) has systematically edited out all instances of what its editors have deemed to be profane, violent, or otherwise objectionable material. (7) It not only edits popular American films but also packages and sells them at a premium under their original titles and packaging, all without the consent of the legal authors or the director-creators of these works. (8)

The above scenario is far from imaginary. In fact, any individual can currently visit such a site and purchase edited films. CleanFlicks indeed exists. The company pre-edits films in accordance with its own pre-established "sanitizing" criteria. (9)

It seems that as digital technology becomes increasingly sophisticated, so do the legal entanglements linked to this unprecedented innovation. For example, digital video disc players (which play films in the DVD format) have begun to proliferate across the United States and slowly supplant the hegemony of the family VCR. Once any work is transferred to a digital format, a technically savvy individual can alter it quite readily. (10) In fact, there are several companies in addition to CleanFlicks that currently offer technology that enables home users to effectively create edited versions of their favorite films after having secured a copy. (11)

For the purposes of the legal analysis in this Note, however, CleanFlicks is of central concern for several reasons. First, as will be explained in detail, U.S. copyright law clearly grants exclusive rights to the authors of the works that CleanFlicks has violated. (12) Furthermore, CleanFlicks is performing a sort of censorship that is qualitatively different from a service like ClearPlay, which offers home-editing opportunities to consumers.

For instance, whereas CleanFlicks makes specific decisions about what content to excise from popular films before selling the films in their original packaging, Clearplay simply works through software that does not permanently alter copyrighted films. (13) Rather, ClearPlay's software enables home users who are viewing DVDs on the family computer to mute sections of the film that might contain language unsuitable for children. ClearPlay users are left with an unaltered copy of the original film after employing the Clearplay software. In fact, ClearPlay might actually encourage parents to rent or purchase DVDs that they might not have, were it not for a digital assurance that their children would not be exposed to offensive or disturbing material (thereby increasing potential profits for movie studios). (14)

When customers visit the CleanFlicks website, they are giving business to a company that was founded in Utah to satisfy the demands of that state's conservative population, but that has since expanded its business to many other states. (15) The "myCleanFlicks" site is modeled after the Netflix.com site, a popular Internet movie rental service with over 600,000 subscribers. (16) This similar format in web page design could easily lead to a customer's misconception that he is shopping for movies in their original, unedited format. (17)

On the CleanFlicks website, the "About Us" page explains the company's controversial mission: to edit popular Hollywood films for "family" enjoyment. (18) The designers of the service seem to have structured their business so customers become members of a "co-op" or "club," creating the appearance that CleanFlicks only purchases videos at the specific behest of particular customers and edits these films one at a time for them. (19) Users can often specify exactly what sort of content they desire to be removed from the film they are purchasing. (20)

While neither the practice of unauthorized editing of films nor the attendant controversy around this alteration are new phenomena, (21) this aftermarket alteration poses some fascinating legal questions.

Since motion pictures first emerged as a new medium of artistic expression, they have served as unparalleled vehicles for creativity and innovation. Ironically, American copyright law has never recognized a specific right for filmmakers to protect their creations. (22) For this reason, prominent American directors have become frustrated over "sanitization" services like CleanFlicks. (23)

In August 2002, the owner of a CleanFlicks outlet in Colorado, (24) having apparently become aware of growing anger amongst prominent Hollywood directors over unauthorized editing of their films by companies like CleanFlicks, filed a pre-emptive lawsuit against the Directors Guild of America ("DGA") in an attempt to have CleanFlicks's activities declared perfectly legal. (25) In October 2002, the DGA answered and raised numerous

counterclaims against CleanFlicks, and several other companies that offer digital editing services and technologies. (26) The DGA also requested that these companies be enjoined from any further unauthorized editing and resale of its members' films. (27) Additionally, the DGA moved to join the movie studios as necessary parties (28) to the dispute because the studios own the copyrights to the films at issue. (29)

The DGA averred that CleanFlicks, in particular, violated the Lanham Act by editing its members films without proper consent, thus creating a false designation of origin for the altered films. (30) The counterclaim also alleged that CleanFlicks was liable for copyright infringement since it usurped the authors' exclusive right to make or authorize the production of "derivative works" from their original expression. (31)

It is interesting to note that the major Hollywood motion picture studios have been aware for some time of digital "sanitization" services provided for its films, but they initially failed to emerge on a definitive side in the debate over these editing practices. (32) It has been suggested that one reason that accounts for the studios' initial reluctance to join the suit was the risk of exposing the content of Hollywood films to further public scrutiny. (33) Nonetheless, under current copyright law, (34) the major film studios own the copyrights of their films. (35) Therefore, as the most unmistakable embodiment of the highly commercial nature of the motion picture industry, the studios' reaction to the DGA litigation was eagerly awaited. The studios' initial (and conspicuous) hesitation to weigh in on the debate between the Directors Guild of America and CleanFlicks was one of the most curious elements in the early evolution of this dispute. (36)

However, on December 13, 2002, the studios finally joined the Directors Guild of America in its counterclaim against CleanFlicks. (37) Dreamworks, Sony, MGM, Fox, Disney, Paramount, Universal and Warner Brothers effectively went on record and voiced disapproval of websites and services like CleanFlicks. (38)

The legal foundations of this dispute embrace some of the defining tensions in American copyright law: the delicate balance between an author's property right to his original work once "fixed in any tangible medium of expression," (39) and the rights of society to benefit freely from that work. The CleanFlicks litigation also explores the balance between copyright law's nurturing stance towards emerging technologies and its simultaneous capability to stifleinnovations that stand to facilitate rampant infringement of existing copyrights. (40)

The debate behind the CleanFlicks dispute will no doubt challenge the compatibility of the American copyright concept of fair use (41) and the much-debated civil law concept of an author's droit moral in his art. (42) These two principles have stood opposed to one another within the contours of American copyright law for many years. (43) For example, more than sixty years ago, Martin Roeder explored this tension. In his search for a place for moral right in American copyright law, Roeder explained that most aspects of moral right encountered "the most bitter antagonism" (44) when proposed to be incorporated into United States common law.

This Note will first provide background on general United States copyright law and the specific protections accorded to popular films and directors under the current laws. Part II of this Note will explore the substance of the DGA's counterclaims, as well as the legal hurdles to succeeding on these claims. Finally, Part III will consist of an in-depth exploration of the doctrine of moral right and how the official grant of this right to film directors would allow them long overdue artistic control over potential alterations to the movies that are the product of their unique artistic vision and talents.

II. AMERICAN COPYRIGHT LAW

The United States Constitution authorizes Congress to provide authors the exclusive right to their works in order to "promote the Progress of Science and the Useful Arts." (45)