A Court Rules That Privately Editing Films for Content Violates Studios' Copyright: The Decision in Clean Flicks v. Steven Soderbergh and Its Cultural Context

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Jul. 13, 2006

On July 6, in Clean Flicks v. Steven Soderbergh, a federal district court in Utah held that companies that "sanitize" -- or, more appropriately, "bowdlerize" -- motion pictures by removing sex, profanity, and violence, violate the motion picture studios' copyright. (The plaintiffs included powerhouse studios like Metro-Goldwyn-Mayer, Twentieth Century Fox, Paramount, Universal City, and Dreamworks as well as a number of directors, including, besides Soderbergh, Robert Altman, Steven Spielberg, and Robert Redford.)

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.

The Copyright Question: Why the Studios and Directors Won Easily

Under copyright law, the copyright owner owns, among other rights, the right to prohibit reproduction of its works. It was easy for the plaintiffs to establish a violation of the law; the only real question was whether there was a valid defense. The defendants claimed what they had done was "fair use" - but the facts belied that claim.

Clean Flicks and the other defendants, Family Flix and Play It Clean, typically copied the entirety of a motion picture, deleted "offensive" materials, and then sold the sanitized version. Accordingly, two key "fair use" factors - factors that, in practice, are almost always outcome-determinative -- cut sharply against them: They copied a substantial portion of the films, then made commercial use of what they had copied.

With no legal leg to stand on, the defendants resorted to public policy arguments. According to them, they were engaging in social criticism of the movies from a "family values" perspective. But the court quite properly explained to them that public policy is a matter for the legislature, and that Congress had chosen to give a limited right to alter motion pictures in the home setting, in a non-permanent form, but had not given any broad right to sanitize for profit.

The defendants also argued that they were protected by the so-called "first sale" doctrine, which stands for the proposition that once you buy a fixed copy of a copyrighted work, you can do what you want with that fixed version. For example, you can sell your old vinyl records to collectors without copyright consequences. Again, defendants failed to win on this affirmative defense, because they were not just dealing in the hard copy, but rather making copies of it. Sure, they paid for the real-world DVDs, but they never paid for the separate (and much more expensive) right to make copies or alterations of those DVDs.

The court, therefore, enjoined Clean Flicks, Family Flix, and Play It Clean from copying and distributing altered versions of motion pictures. The plaintiffs had asked for no damages - just this injunction.

The clarity of the law in this case forces me to ask how three companies could believe that such a business plan was legal, or likely to be successful. Did they not consult attorneys before sinking their lives (and perhaps their fortunes) into these businesses? Surely, they must have. So they must have known they were skating on very thin legal ice. Why did they go ahead anyway?

The Cultural Context of the Defendants' Actions

I believe there is a larger cultural horizon under which we can make sense of their actions. Some might look to the massive copying carried on in the music industry in the Internet era as an indicator that copyright law is simply breaking down. As I argued in a 2001 column, however, copyright continues to be a productive engine for creativity and an enforceable norm, and there is little reason to plan its funeral just yet.

Those early calls for information to "be free" - meaning, free of copyright protection - were wrongheaded. And court decisions in the years since my initial column have borne out this view. Napster, for example, was forced to stop operating illegally. And copyright is alive and well. Perhaps most significantly, in 2003, in Eldred v. Ashcroft, the Supreme Court decisively rebuffed the argument - pushed by many Internet area copyright opponents -- that lengthy copyright extension legislation violated the Copyright Clause and the First Amendment.

I suspect there is a much more insidious problem at play here: In contemporary America, entities and individuals motivated by religious or moral faith have come to believe that the law should not apply to them when it conflicts with their particular interests and world view.

Here, the world-view was that Hollywood makes some very entertaining movies, but its handling of issues is largely corrupt, so why not just "clean up" the mess? Though the law might be settled, and the "clean-up" plainly illegal, there was a higher moral value at stake.

When It Comes to Copyright, the Ends Do Not Justify the Means

In other words, the defendants must have thought that the end justified the means. But that claim forgets the value of copyright to the larger culture - and actually shortchanges the market that would demand "sanitized" fare.

Copyright spurs creative output by making it possible for artists to get paid for those works that make a meaningful contribution to the culture. Artists may not copy others' work without permission, and, therefore, are ever forced into new territory. That is the universe of the motion picture industry, which is constantly looking for the next new story or special effect to bring to the public.

Clean Flicks and its cohorts defended themselves in court by, among other strategies, producing communication from pleased customers grateful for the family- friendly films they provided. The problem here is that Clean Flicks and the others took a radical shortcut. They saw demand, and they filled it by maiming existing artistic works, rather than introducing new works altogether.

I too would welcome the addition of more wholesome fare to the mix. But not this way. If such demand really does exist -- and I believe it does -- then the copyright system will reward those who produce original works that express and honor family values. And if those new works hit the mark, these new contributors will be handsomely rewarded.

Clean Flicks satiated that demand through copying. But society would benefit far more from those who would satisfy the same demand through independent creativity. Thus, not only does the end not justify the means, but the means seriously undermine the end!

For those who decry the corruption of American culture, especially in Hollywood, the answer is emphatically not to cut and paste pre-existing material. Rather, new entities need to come to the marketplace with a product that competes with Hollywood's offerings. Of course, the problem here is that Hollywood has produced some pretty great stuff, enjoyed by millions of Americans. The beauty of the American market, though, is that there is always room for excellence, in all its various forms.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005). Her email address is Hamilton02@aol.com.

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