"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)
Any "original work of authorship fixed in any tangible medium
of expression" may be protected. (46) A copyright owner is given a
"bundle of rights" to his original work that includes rights
of performance and reproduction. (47) Copyrights are only granted for a
limited period of time, assuring that all creative works will eventually
emerge unencumbered into the public domain after expiration of the
copyright.
Under current copyright law, motion pictures may be protected for
up to ninety five years. (48) Films are designated as "works made
for hire" and are effectively the commissioned and legally owned
entities of the motion picture studios. (49) Therefore, the motion
picture studio that produced and distributed a film owns the copyright
to the film. (50) The key question in designating a work made for hire
is whether the work was made during the employment relationship and
whether the employer had some degree of control over the finished
product. (51)
In order to prove copyright infringement, the owner of a valid
copyright must show some action that conflicts with the rights conferred
to a copyright owner. (52) Under the current statutory scheme, directors
are granted only minimal rights to protect the aesthetic integrity of
their films because they do not own the copyrights to these works. (53)
Therefore, United States copyright law does not recognize the filmmaker
as a creative author and denies him any interest in the motion picture
copyright. (54)
A. The Director's Guild of America's Counterclaim
In its counterclaim to CleanFlicks's preemptive lawsuit filed
in August 2002, the DGA contended that the companies named as
counter-defendants have, through unauthorized editing of
"objectionable content," violated the intellectual property
and artistic rights of the DGA members that directed the films. (55)
The DGA maintained that by engaging in unauthorized editing through
volume mutes and cuts, the companies named as counter-defendants have
violated the Lanham Act. (56) The counterclaim further contended that
the directors and their names are closely associated with the content of
the movies created and that unauthorized editing and resale of these
films is particularly harmful to them. (57) The DGA argued that the
counter-defendants have undermined and superseded the artistic work in
which the directors invested great energy in creating. (58)
B. The DGA 's Unfair Competition and False Designation of
Origin Claims Under the Lanham Act
While the Lanham Act governs unfair competition law and has its
principal applications in the trademark realm, it has been used within
the copyright context when artists have attempted to challenge
unauthorized alterations of original works that are so great that they
have "mutilated" the original and therefore constituted a
misleading portrayal of the work's origin. (59) Section 43(a) of
the Lanham Act prohibits unfair competition by the misleading
designation of origin. (60) Since the landmark 1976 case Gilliam v.
American Broadcasting COS., (61) courts have consistently recognized
that section 43(a) can provide a remedy for artists against third
parties that have substantially altered their work without permission.
(62)
Gilliam warrants discussion because it involved a situation similar
to the facts behind the dispute between CleanFlicks and the DGA. In
Gilliam, the Monty Python troupe filed suit against the American
Broadcasting Corporation ("ABC") for drastically editing its
comedy show for broadcast on American television. The trial court denied
the troupe's request for a preliminary injunction despite Judge
Lasker's finding that "the defendants caused an impairment in
the integrity of plaintiffs' work" and the film had
consequently lost its "iconoclastic verve." (63) The Second
Circuit, however, found that there was an "actionable
mutilation" of the Monty Python Film. (64) While the Monty Python
group ultimately prevailed for reasons sounding predominantly in
contract, the case is often cited as one of the first times that courts
recognized moral right in the copyright context. (65) For these reasons,
this case bears directly on the DGA's Lanham Act claims.
In Gilliam, the Second Circuit explained how a copyright owner
might be able to bring a false designation of origin claim under the
Lanham Act. The court reasoned that if a copyright holder argued that
the mutilation of an artwork was so substantial that releasing it under
its original name could confuse viewers as to the origin of the work,
the Lanham Act might be applicable. (66) It further explained that the
Lanham Act, as "the federal counterpart to state unfair competition
laws, has been invoked to prevent misrepresentations that may injure
plaintiff's business or personal reputation, even where no federal
trademark is concerned." (67) While U.S. courts have been reluctant
to embrace the concept of an artist's moral right in his art, it is
curious that opinions such as Gilliam, which supposedly rested on Lanham
Act principles, quoted principles of the moral right doctrine. (68)
The court concluded that mutilation of a work, while theoretically
subsumed within the doctrine of moral right, should be litigated under
the Lanham Act. (69) Therefore, Gilliam is of great import to the
CleanFlicks dispute because it opened the door to Lanham Act complaints
as a viable legal remedy for artists and copyright holders.
Under the Gilliam principle, DGA member counter-claimants bear the
burden of showing that, regardless of authorization, the edits performed
on their films are substantial enough not to be associated with their
original work. Furthermore, they must demonstrate that what is
"objectionable" content to some segments of the American
population is a vital component of the artistic texture of their
particular film, as well as an indispensable indicator of the
film's creative source. (70)
While Gilliam opened the door to using [section] 43(a) in
intellectual property disputes, the Lanham Act remains the most
significant precept of trademark law. (71) Another potential legal
impediment to the members of the DGA bringing a claim under [section]
43(a) of the Lanham Act (72) is that the main issue in [section] 43(a)
Lanham Act actions is "whether or not the consumer will confuse the
two products" (73) in the dispute. Therefore, a court conducting a
strict reading of [section] 43(a)'s potential applicability outside
the trademark realm might rule in favor of CleanFlicks. (74)
C. The Legal Problems With Suing Editing Software Providers
While the DGA's Lanham Act claims against CleanFlicks are far
from simple, an infringement suit against companies such as ClearPlay,
which provide DVD players equipped with technology that aids home
viewers in performing their own edits of DGA member's films, is
even more complicated. These difficulties are attributed to the
significantly fewer legal bars to individuals who properly acquire a
copy of copyrighted material and perform alterations on that work for
their own personal use. (75)
In addition to any Lanham Act or quasi-moral rights claims it has
against these software companies, the DGA might also attempt to sue the
companies for contributory infringement. Any discussion of contributory
copyright infringement claims must commence with an examination of the
landmark 1984 United States Supreme Court case, Sony Corp. of America v.
Universal City Studios, Inc. (76)
In Sony, the owners of television programs sued Sony, asserting a
contributory copyright infringement claim involving the company's
new and popular Betamax videocassette recorder. (77) Initially, the
Court reasoned that copyright owners do not have the right to control
all possible uses of their work. (78) Justice Stevens, writing for the
majority, balanced copyright law's delicate tension between
embracing emerging technologies and protecting existing copyrights. (79)
He called the plaintiffs' contributory copyright infringement claim
"unprecedented." (80)
Justice Stevens proceeded to draft what has become one of the most
heavily cited portions of the Sony opinion. (81) This language has
become so significant in United States copyright law because it defined
a new standard of evaluating whether a new technological innovation
could be withheld from the public due simply to its capacity to infringe
on valid copyrights. (82)
The "commercially significant noninfringing uses"
language arose from Stevens's opinion in Sony. (83) Stevens
concluded that because the plaintiffs had not established that the
recording of programs would cause any likelihood of "non-minimal
harm," Sony could not be held liable for contributory infringement.
(84)
The Supreme Court might have decided Sony in favor of allowing the
VCR's copying abilities because it found that
"time-shifting" was performed on shows that were widely
available to the public such as news and sports programs. (85)
In their counterclaim, the DGA members are attempting to enjoin all
unauthorized editing of their films. However, in light of the Sony
ruling and the "commercially significant noninfringing uses"
test for emerging technologies, the DGA could face great challenges in
convincing a judge of its arguments in favor of an injunction. While the
permanent alteration of films and subsequent offer of them for rent or
sale (the challenged conduct of CleanFlicks) represents an actionable
form of infringement, edits done within one's home might qualify as
a fair use under copyright law. (86) To prevail on this argument (for a
contributory infringement claim seems unlikely to succeed), the
directors might need to resort to the highly controversial doctrine of
moral right.
III. THE PROBLEM WITH MORAL RIGHT
Moral right, or droit moral, "can be distinguished from
traditional property rights in that it purports to protect the personal
fights of creative artists, as distinguished from their merely economic
rights" and strives to protect artists' integrity. (87) The
right of integrity in this context can be viewed as protecting artists
from actions to their art that alter or sully the artists'
personalities as expressed in their work. (88) Since Gilliam, scholars
have pushed for an official incorporation of the doctrine of moral right
into American copyright law. (89) The CleanFlicks dispute could
potentially provide the challenge to finally accepting droit moral for
artist copyright-holders in the United States.
France has long recognized an artist's interest in preserving
the integrity of his work. (90) The DGA counterclaimants, having been
historically denied specific control over what happens to their films,
will argue that the state of digital technology in 2002 has advanced to
such a sophisticated level that eventually all copyrights will be at
risk for digital alteration. (91)
Moral right doctrine was born in nineteenth-century France to help
artists preserve the integrity of their creative output even once it was
out of their possession. (92) The law developed in France (93) under the
supposition that the art was an expression of the artist's soul and
under no circumstances should be diluted or altered without consent.
(94) In the literature that explores the boundaries and limitations of
moral right doctrine, the example of Marcel Duchamp's famous
re-interpretation of Leonardo DaVinci's Mona Lisa has been
referenced: If both artists were alive in a jurisdiction that recognized
moral right doctrine, DaVinci might have an actionable claim for the
degradation of his original work's integrity because Duchamp
painted a mustache on the subject of his famous portrait. (95)
As discussed above, American courts have long resisted recognizing
this body of rights. (96) This resistance to moral right, however, was
softened somewhat with Congress' adoption of the Visual Artists
Rights Act ("VARA") in 1990. (97) As Dane Ciolino explains,
under VARA:
American artists now have the right (1) to claim authorship of
their own works of visual art and to prevent the use of their
names on works that they did not create (right of attribution)
and (2) to prevent the "distortion, mutilation or modification" of
their works under certain circumstances (right of integrity). (98)
VARA, however, is limited in its actual effect upon United States
copyright law. As Natalie Suhl suggests, VARA is rarely invoked because
it only applies to works of "visual art." (99) Furthermore,
resistance to moral right in the United States, even when the 101st
Congress passed VARA, stems from a traditional and strict respect for
economic rights in property. (100) However, VARA has been praised as a
"remarkable piece of legislation" (101) that "open[s] the
door to a federally protected moral right" (102) in the United
States.
The United States is a signatory of the Berne Convention. (103)
However, member countries have great freedom in designating the extent
of moral right protection they will accord to artists. (104) This
discretion is rooted in Article 6(bis) of the Berne Convention. (105)
Congress' recognition of moral right would allow American
artists to maintain a connection to their work even after they no longer
own the rights to that work. (106) If filmmakers can have recognized
rights in the integrity of their films as they were intended to be seen,
they could own a bundle of vested rights that would in some ways be more
impactful than their rights as owners of copyrights to the films. (107)
Furthermore, if federal legislators adopt a moral right regime into U.S.
copyright law, the U.S. will be one step closer to complying with the
Berne Convention. (108)
Moral right recognition allowing some degree of control over
changes made to films would be a significant step forward for the rights
of all American artists. (109) In the dispute between the DGA and
CleanFlicks, the digital editing practices at issue present what is in
some ways an unprecedented legal dilemma. Directors in the United
States, having historically lacked ownership of a copyright in their
works, have responded with growing outrage to the application of new
digital technologies to alter the content of their films.
However, the CleanFlicks dilemma presents a sort of digital
intervention that borders on mutilation. By contrast, colorization, the
practice by which color is added to historic films, can be objectively
viewed as a tolerable interference with the integrity of a historic
film. Colorization does not change anything but an aesthetic quality of
the film that, in the long term, does not alter the
director-author's unique vision for that film. (110)
When CleanFlicks, however, proudly "edits" a popular film
and sells it as the original film, they are committing the sort of
unauthorized and substantial alteration that digital technology has not
enabled thus far. (111)
IV. CONCLUSION
Moral right must have force beyond the boundaries of Continental
Europe. In the United States, in spite of some measurable advances,
moral rights remain nothing more than a "favorite of
academics." (112) Congress must learn from the current landscape of
digital technology and allow for artists to control their reputation by
controlling changes made to their work. As Martin Roeder writes:
[Moral right] is a tort doctrine granting unique protection to the
honor and reputation of the personality of creators as such and
as expressed in their works, and protecting the cultural heritage
of civilization. It presents itself in several different aspects,
and may be defined as the right of the creator to create, to
present his creation to the public in any desired form or to
withhold it, and to demand from everyone respect for his
personality as creator and for his works. (113)
Success in enjoining the CleanFlicks enterprise is not only
critical for the rights of American filmmakers, but for the
"cultural heritage of civilization." (114) What actually hangs
in the balance is the United States' reputation as a nation that
embraces and shelters the freedom of artistic expression. After having
established an elaborate system of incentives for artistic creation in
the form of copyright law, the United States must provide some assurance
to artists that their work, once subjected to "the ravages"
(115) of public scrutiny, will not be vulnerable to abuses that
compromise the very ideas they sought to express through their art.
(1.) Martin Roeder, The Doctrine of Moral Right: A Study in the Law
of Artists, Authors and Creators, 53 HARV. L. REV. 554, 558 (1940).
(2.) When visiting the CleanFlicks website, a web user could easily
think that he was buying an original copy of a film rather than an
edited version.
(3.) See Bob Baker, Who Can Edit a Movie?, L.A. TIMES, Sept. 21,
2002, at Calendar, pt. 6, at 1 (describing the nature of the CleanFlicks
website).
(4.) See CleanFlicks, Inc., Welcome to CleanFlicks.com, at
http://www.CleanFlicks.com (last visited Jan. 27, 2004) (on file with
the Rutgers Computer and Technology Law Journal).
(5.) See Baker, supra note 3.
(6.) CleanFlicks seems to be prospering and expanding its business
as a result of its success. See Baker, supra note 3 (reporting that in
2000, CleanFlicks had 2 stores but by 2002 had expanded to 76 stores in
18 different states).
(7.) See Larry Williams, Cleaning Up Hollywood, CHL TRIB., Oct. 1,
2002, at 3C. Williams gives the example of CleanFlicks editing the film
"Good Will Hunting" by removing "139 f-words, 29 s-words
and assorted other vulgarities[.]" Id.
(8.) Id.
(9.) See CleanFlicks, Inc., supra note 4.
(10.) See Matthew J. McDonough, Note, Moral Rights and the Movies:
The Threat and Challenge of the Digital Domain, 31 SUFFOLK U. L. REV.
455,456-57 (1997) (asserting that directors should expect increasingly
frequent alterations to their films with the advancement of digital
editing techniques).
(11.) Among these companies are: 1) CleanFlicks and its Interact
store, myCleanFlicks.com, which both offer rental and purchase of
digitally edited films; 2) Family Safe Media sells edited VHS tapes or
will edit customer tapes. This company also sells the $99.95
"TVGuardian" which "edits profanity from video
soundtracks" and is compatible with most DVD players. One can also
purchase a DVD player already equipped with "TVGuardian"
technology. 3) ClearPlay sells a software program for $9.95 a month that
cuts sounds and scenes from DVDs played on a computer; One can purchase
a ClearPlay-equipped DVD player for $699.00. 4) MovieMask sells a
software program that functions similar to ClearPlay; 5) Family Shield
Technologies offers the MovieShield for $239.99. It censors pictures on
the TV using codes downloaded from the Internet. See Williams, supra
note 7; see also Proposed Amended Countercl. at 25, Huntsman and
CleanFlicks of Colo. L.L.C.v. Soderbergh, et al., Civ. Action No.
02-M-1662 (MJW) [hereinafter "DGA Countercl"], available at
www.dga.org/NewFiles/pdfs/proposed%20Amended%20Counterclaim.pdf. (last
visited Feb. 17, 2004) (on file with the Rutgers Computer and Technology
Law Journal).
(12.) See infra Section 11.
(13.) ClearPlay works by using "ClearPlay filters." As
explained on their website, "[w]hen a user activates ClearPlay on a
DVD player, [software] [g]uides instruct the DVD player how to present
the movie so that PG-13 or R rated content is 'skipped over'
or muted during playback." ClearPlay, at
http://www.ClearPlay.com/what.asp (last visited Jan. 28, 2004) (on file
with the Rutgers Computer and Technology Law Journal). According to
ClearPlay's carefully-worded description, "[g]reat care and
effort is taken to ensure that although a scene or word is removed, the
continuity of the story is maintained, and the presentation retains its
entertaining value." Id. ClearPlay likens the final result to
watching "an airline or television presentation of the movie."
Id.
(14.) This is most certainly ClearPlay's contention. See id.
(15.) See generally Williams, supra note 7. In 1998, a video store
in Utah removed a nude scene from James Cameron's
"Titanic" and "eliminat[ed] what for its many Mormon
customers was the only reason not to watch the movie." Id. This was
the inspiration for the CleanFlicks enterprise. See id. This is not the
most meddlesome editing of "Titanic" that has been reported.
Distributors of TVGuardian, a foul-language filter, altered a hymn in
the film from "Nearer My God to Thee" to "Nearer my Man
to Thee." Mark Eddington, Director's" Cut? Try
Censor's Cut, SALT LAKE TRIB., Apr. 14, 2002, available at
http://www.CleanFlicks.com/ company/files/SLCTribune.pdf (last visited
Jan. 20, 2004) (on file with the Rutgers Computer and Technology Law
Journal). Despite its critical tone, CleanFlicks elected to post the
Eddington article on its "About Us" page in the "Press
Releases" section. (CleanFlicks has since modified the Cleanflicks
website and the Eddington article is no longer accessible on it).
(16.) Williams, supra note 7, at 3C.
(17.) U.S. directors are charging CleanFlicks with facilitating
this possibility of confusion which is one element of trademark
infringement. See generally DGA Countercl, supra note 11.
(18.) The website explained that "CleanFlicks is a
family-oriented company based in Pleasant Grove, Utah. We love movies,
but prefer to watch them without the sex, nudity, profanity or extreme
violence. Because we recognize that others may have a similar desire, we
provide this editing service to you. Our mission is to provide access to
Hollywood entertainment free from objectionable elements, thus helping
maintain high moral values." See CleanFlicks, Inc., About Us, at
http://www.CleanFlicks.com/company/index.php?file=overview (last visited
Feb. 20, 2004) (on file with the Rutgers Computer and Technology Law
Journal). The "About Us" section has since been removed from
the company's website.
(19.) See Patrik Jonsson, No Sex, No Lies, But a Lot of
'Clean' Videotape, CHRISTIAN SCL MONITOR, Apr. 26, 2002, at 1,
available at http://esmonitor.com/2002/ 0426/p01s02-ussc.htm (last
visited Feb. 2, 2004) (on file with the Rutgers Computer and Technology
Law Journal).
(20.) See Brian McTavish, Movie 'Cleaning' Raises a
Flicker of Protest, KAN. CITY STAR, Sept. 27, 2002, at 1.
(21.) In the late 1980's, directors were concerned about the
rapidly growing practice of "colorizing" classic
black-and-white films. See generally Craig A. Wagner, Note, Motion
Picture Colorization, Authenticity, and the Elusive Moral Right, 64
N.Y.U. L. REV. 628 (1989).
(22.) In establishing the National Film Preservation Board as a
result of the debate over colorizing classic black-and-white movies,
Congress declared:
(1) motion pictures are an indigenous American art form that have
been emulated throughout the world;
(2) certain motion pictures represent an enduring part of our
Nation's historical and cultural heritage; and
(3) it is appropriate and necessary for the Federal Government to
recognize motion pictures as a significant American art form deserving
of protection.
See Wagner, supra note 21, at 631 n.22 (citing Dep't of the
Interior and Related Agencies Act, 1989, Pub. L. No. 100-466,
[subsection] 1-13, 102 Stat. 1782, 1782-88 (1988)).
(23.) See generally Wagner, supra note 21 (presenting the
impediments that exist between a director and the protection of the
integrity of his film and the resulting frustration for directors).
(24.) CleanFlicks has expanded rapidly across the U.S. See Jonsson,
supra note 19 (reporting that CleanFlicks aspired to have a presence in
every state by the end of 2002).
(25.) Rick Lyman, Hollywood Balks at High Tech Sanitizers: Some
Video Customers Want Tamer Films, and Entrepreneurs Rush to Comply, N.Y.
TIMES, Sept. 19, 2002, at E1.
(26.) See DGA Countercl., supra note 11, at 27-42.
(27.) Id. at 34, 39-42.
(28.) See Motion To Compel Joinder of Third-Party Copyright Holders
as Necessary Parties Pursuant to Fed. R. Civ. P. 19 and 17 U.S.C.
[section] 501(b), Huntsman and CleanFlicks of Colo. L.L.C. v.
Soderbergh, et al., Civ. Action No. 02-M-1662 (MJW), available at
http://www.dga.org/NewFiles/pdfs/Motion%20to%20join%20Studios.pdf (last
visited Feb. 17, 2004) (on file with the Rutgers Computer and Technology
Law Journal).
(29.) Litigation Updates; DGA Responds and Counterclaims Against
Robert Huntsman and CleanFlicks, INTELL. PROP. TODAY, Oct. 2002, at 22.
(30.) DGA Countercl., supra note 11, at 31.
(31.) See id.
(32.) See John Anderson, Questions of Cleaning Up, NEWSDAY, Nov. 3,
2002, at D7.
(33.) See Eddington, supra note 15 (late in the year 2000,
Congressional hearings were held concerning the growing violence in
American films).
(34.) See 17 U.S.C. [section] 101 et seq. (2000 & Supp. I
2003). In contrast, directors in Europe are recognized as the authors of
their films and can consequently exercise much greater control in what
happens to the films once they are released to the public. See generally
European Union Report says recognizing directors as 'author'
no barrier to trade, at http://www.dga.org/news/pr_expand.php3?287
(quoting Rep. From the comm'n to the Council, the European Pad. And
the Econ. And Soc. Comm. On the question of authorship of
cinematographic or audiovisual works in the cnty.), (Dec. 9, 2002) (last
visited Feb. 2, 2004) (on file with the Rutgers Computer and Technology
Law Journal).
(35.) See discussion infra Section II, pp. 12-15, explaining U.S.
copyright law and the notion of "works made for hire."
(36.) See Anderson, supra note 32, at D7. It is possible that the
major motion picture studios were initially reluctant to join the
DGA's suit because they saw a growing market for the sale of edited
films as a potential place for the expansion of business. See id. Patrik
Jonsson reports that New Line Cinema had recently released "family
edited" films that had been recut by the directors of the films.
Jonsson, supra note 19. This sort of director-supervised editing is of
course substantially different than the unauthorized editing that
CleanFlicks has been performing for many months.
(37.) DGA Magazine: CleanFlicks Update, available at
http://www.dga.org/news/ v27_5/news_digitalpiracy3.php3 (last visited
Jan. 23, 2004) (on file with the Rutgers Computer and Technology Law
Journal).
(38.) Id. In a statement, the studios wrote that the altered 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 customers as to the source' of the edited
films." Id.
(39.) 17 U.S.C. [section] 102(a).
(40.) See Raffi Zerounian, Comment, Bonneville International v.
Peters, 17 BERKELEY TECH. L.J. 47, 47 (2002) (stating that
"[c]opyright law is a creature of technology.... [a]s technology
has evolved, so has copyright doctrine").
(41.) Fair use doctrine has historically provided an exception to a
copyright owner's property rights in his copyrighted expression.
The copyright act codifies an authors' right to make use of another
author's earlier work and defines fair use in 17 U.S.C. [section]
107. Fair use allows for de minimis uses or references to a copyrighted
work if necessary for purposes of some sort of new form of original
expression (parody is a good example of an instance where an author can
make limited use of a pre-existing copyrighted work). See id. Fair use
doctrine reinforces the fact that copyright owners by no means own
exclusive rights in their works. Fair use also reinforces the bedrock
principle of intellectual property law that copyright laws are meant
"to increase and not to impede the harvest of knowledge."
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 545
(1985); cf. generally Dane S. Ciolino, Rethinking the Compatibility of
Moral Rights and Fair Use, 54 WASH. & LEE L. REV. 33, 33 (1997)
(arguing that "the fair use doctrine is inherently incompatible
with federal moral rights" codified in the 1990 Visual Artists
Rights Act); see also McDonough, supra note 10. In a helpful summary of
copyright's grant of non-exclusive rights to authors, McDonough
explains "[a]lthough copyright protection casts a wide net, such
protection does not extend to ideas, procedures, processes, systems,
methods of operation, concepts, principles or discoveries." Id. at
460.
(42.) Moral right, or droit moral, stands in tension with fair use
because moral right would seem to expand a copyright owner's rights
in his work. This is because moral right allows for artists to protect
rights of attribution and paternity in their works. Moral right doctrine
allows artists limited rights in their works, even after ownership
rights have been transferred. See generally Roeder, supra note I. Moral
right allows the continuing right to prevent alterations and
misattributions. See id. at 561-62, 565.
(43.) See infra Section II for a detailed discussion of Gilliam v.
Am. Broad. Cos.
(44.) Roeder, supra note I, at 565.
(45.) U.S. CONST. art. I, [section] 8, cl. 8. The Copyright Clause
of the Constitution authorizes Congress "[t]o promote the Progress
of Science and the useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and
Discoveries[.]" Id. There are exceptions to these exclusive rights
to the work. See 17 U.S.C. [subsection] 107-112. There are certain de
minimis uses of a copyrighted work that may qualify as "fair
use" under federal law. Id. [section] 107.
(46.) 17 U.S.C. [section] 102(a) (2000).
(47.) [section] 106. The exclusive rights accorded to a copyright
holder "are to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental, lease,
or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works, to
perform the copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other audiovisual
work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission.
Id.
(48.) 17 U.S.C. [section] 302(c) (2000 & Supp. I 2003).
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