This paper was presented at the Association for Education in Journalism and
Mass Communication in San Antonio, Texas August 2005.
If you have questions about this paper, please contact the author
directly. If you have questions about the archives, email
rakyat [ at ] eparker.org. For an explanation of the subject line,
send email to
[log in to unmask] with just the four words, "get help info aejmc," in the
body (drop the "").
(Feb 2006)
Thank you.
Elliott Parker
====================================================================
ABSTRACT
The paper offers an analysis of the recent phenomenon, enabled
largely by digital technology, of editing motion pictures to remove
graphic violence, sexual situations and foul language for the home
viewing market. The paper argues that, especially in the context of
the increasing fortification of intellectual property laws, coupled
with the concentration of media ownership in a handful of
corporations, third-party editing should be found to be a
non-infringing use of legally acquired media content.
[Bleep], Lies and Videotape
[Bleep], Lies and Videotape: Motion Pictures Edited for Content as a
Window on the Control of Culture
Joshua Lewis
Candidate for the Master's of Mass Communication degree at
Louisiana State University, Baton Rouge
9965 E. Inniswold Rd.
Baton Rouge, LA 70809
(225) 291-7530, (225) 978-1734
[log in to unmask]
[Bleep], Lies and Videotape: Motion Pictures Edited for Content as a
Window on the Control of Culture
See, white folk—y'all call it piracy. Black people call it a remix,
you understand what I'm sayin'?[1]
Last time I checked, I owned those films.[2]
Romance without sex. Death without violence. Conflict without
cursing. This is the stuff of motion pictures edited for content. It
is also the source of litigation between the directors and studios
that produce motion pictures and the third-party editing companies
that clean them up or carve them up, depending upon one's
perspective. Scholars have written a substantial amount on this
controversy; most come down in favor of the directors and the
studios, asserting some combination of copyright and trademark
violation by the third party editors. This article aims to contribute
a perspective novel among those offered so far: that all forms of
third party editing for home viewing[3] should be found legal for a
number of reasons. Central among them: copyright law in the United
States is about giving creators a financial incentive to create, and
the directors and studios are being financially rewarded for their
work; more broadly and importantly, intellectual property law in
general has broken loose from its Constitutional moorings and now
hinders, as much or more than it promotes, "the Progress of Science
and useful Arts."[4] The case at hand, Huntsman v. Soderbergh[5],
offers the court an opportunity for beginning to return intellectual
property law to its original, Constitutional mission.
The business of editing of motion pictures for home viewing embarked
with director James Cameron's 1997 film, "Titanic." Reportedly the
most expensive motion picture ever made up to that time, "Titanic"
became the highest grossing film ever.[6] It was also the first movie
edited for the home video market[7] by someone whom neither the
director nor the studio had authorized to do so. The majority of the
public did not see the edited version—only the customers of Sunset
Video in American Fork, Utah, a heavily Mormon area, who brought in
their copies of the movie to have what they considered a more
family-friendly version created. The owners of the store accomplished
this by performing two simple excisions—of the glimpse of Kate
Winslet's nude body in repose as Leonardo DiCaprio's character makes
a drawing of her and of another scene suggesting the characters
making love. Between 5,000 and 10,000 copies of the film were thus
edited.[8] Sunset Video had found a Pandora's box for the digital
age and opened it wide.[9] The "Titanic" enterprise gave rise to
CleanFlicks, a company dedicated to providing films edited to remove
sexual and violent content and language.[10] The company now offers
more than 700 edited movie titles through its web site.[11]
CleanFlicks in turn spawned a host of competitors.[12] The web site
for Clean Films[13] features a logo with a halo over the "e" in its
name. Its slogan until recently was "Hollywood…Purified."[14]
CleanFlicks has faced so much competition in fact that until recently
it billed itself as "The Original Alternative." Its current slogan is
"It's About Choice."[15]
Having learned of imminent legal action by the Directors Guild of
America,[16] CleanFlicks filed a preemptive lawsuit against the DGA,
asking a federal court for a declaratory judgment that their business
activities were legal.[17] The DGA filed a counterclaim[18] and the
case awaits resolution in federal district court in Denver. In its
suit, CleanFlicks defended its actions on a variety of grounds,
including the first sale and fair use doctrines of copyright law and
the First Amendment.[19] In turn, the directors and studios maintain
that the actions of CleanFlicks, et al., violate several intellectual
property laws as well as the artistic rights of the creators.[20] In
their counterclaim, the defendants sought to join other businesses
that provided edited movies like those of CleanFlicks. They went a
step further as well, joining in the counterclaim the activities of
companies like ClearPlay, which offers software filters that work in
conjunction with a special DVD player to create an edited version of
a movie, though the original copy of the DVD is never altered,[21] a
crucial distinction in most analyses.[22] Perhaps the most important
difference of all, however, is that legislation explicitly legalizing
the activities of companies like ClearPlay, while not protecting
CleanFlicks-style editing, passed both houses of the Congress in
2004, though unrelated attachments to the legislation nixed its final
passage.[23] Undeterred, the Senate approved the Family Movie Act
again in January 2005.[24] The legislation was introduced by Senator
Orrin Hatch (R-Utah), whose historic deference to entertainment
industry legislative desires[25] suggests the political popularity of
people, especially families with children, being able to control the
content of movies played in their own homes.
Some scholars, too, have understandably found the ClearPlay business
model easier to defend than the CleanFlicks model, since ClearPlay
does not create fixed copies of the altered works. Michael Glasser
proffers this analysis, arguing that ClearPlay is defensible not only
on copyright but on trademark grounds as well.[26] The Register of
Copyrights, too, has also offered an analysis supporting the legality
of ClearPlay-style movie filters.[27]
In addition to copyright concerns, some analysts weigh the
implications of trademark law embodied in the Lanham Act. Here too,
predictions differ. One frequent FindLaw commentator acknowledges
both sides in the case have compelling arguments.[28] In addition to
the technical, legal aspects of the dispute, other more values-based,
philosophical considerations come into play. Several scholars discuss
the implications of asserting moral right (droit moral)[29] for
motion picture directors. What the literature so far has not
addressed, and what this paper endeavors to contribute to the
deliberation, is the extent to which large media conglomerates should
be able to dictate absolutely the use of the motion pictures and
other cultural texts[30] they produce. The CleanFlicks, et al.,
controversy seems at first blush to be a fairly narrow case affecting
a relatively small segment of the population: people who wish to
avoid profanity, nudity and violence in home entertainment on the one
hand, and directors of certain motion pictures on the other. In fact,
several scholars recommend as their solution to the conflict that the
studios and directors simply provide their own edited versions of
motion pictures for the home video market, much as they already do
for the television and airline markets.[31] What these pragmatic, if
somewhat superficial, recommendations ignore is that the CleanFlicks
case provides a window on a broader issue worthy of consideration:
the ever-escalating efforts by corporations to control their every
manifestation in the culture, from trademarks, logos and public image
right down to how their products can be used, even after being
legally acquired, as though intellectual property were an absolute,
natural right of the creator and not granted by the Constitution.[32]
As Duke law professor James Boyle writes, "Intellectual property
rights are limited monopolies conferred in order to produce present
and future public benefit. For the purposes of achieving those goals,
the 'limitations' on the right are just as important as the grant of
the right itself."[33] Boyle proposes a form of "environmentalism"
for culture, arguing that society must be aware of and take steps to
prevent the unintended consequences of intellectual property law,
much as it would take steps to prevent the unintended consequences of
a pesticide in the natural environment.[34] Lawrence Lessig
elaborates the analogy, offering the example of the insecticide DDT.
While the chemical had beneficial uses preventing malaria and other
diseases and boosting crops yields, years later it was discovered to
wreak ecological havoc by, among other consequences, preventing some
birds from being able to reproduce.[35] DDT is off the market now as
a result. Likewise, laws with devastating consequences for the
cultural environment should be removed from the books. One such law
is the Digital Millennium Copyright Act, whose provisions against
defeating anti-circumvention technology alone undermine previously
established fair use doctrine, perhaps the most important set of
limitations on the monopoly of copyright and a critical part of the
legal rationale for allowing third party editing of motion pictures.[36]
Just as destructive, perhaps more so, to the vibrancy of the culture
are the consequences of an intellectual property climate in which
allegations of infringement, no matter how ungrounded in the law, can
be acted upon to squelch expression and dialogue. The case of digital
artist Francis Hwang is illustrative. After Apple Computer released a
special edition of its popular iPod portable digital music player
featuring the band U2, Hwang bought one and customized it as the
unauthorized "Negativland vs. U2 iPod special edition,"[37] a parody
referring to the famous legal clash between the two music groups when
Negativland was sued for using an unauthorized sample of a U2
song.[38] Hwang customized the iPod packaging, placing pictures of
Negativland band members in a mirror image of their U2 counterparts.
He also loaded the iPod with copies of Negativland's albums he had
purchased. One day before the auction on eBay was to have ended,
Hwang received notification from the online auctioneer that his item
had been removed because of complaints of "copyright, trademark and
other violations" from Apple Computer. An attorney from the consumer
digital rights advocacy organization Electronic Frontier Foundation
assured Hwang the company had no intellectual property claims, since
Hwang stated clearly that the changes to the product were his, not
Apple's, and first sale doctrine protected his right to dispose of
that particular copy of Apple's product as he wished.[39] Hwang
eventually auctioned the item on his own web site. Though the
"famously litigious" Apple[40] succeeded in having the item removed
from eBay, the corporation never sued Hwang perhaps because they
realized they had no case or because they realized that the public
relations damage could be considerable. The irony is thick, of
course, that a corporation would use intellectual property claims to
attempt to beat down a commentary on another case in which a
corporation used intellectual property claims to beat down expression
that likely would have been protected by fair use doctrine.[41]
Francis Hwang's single, customized iPod is also indicative of an
intellectual property regime gone awry.
Section I of this paper details how the theoretically temporary
monopoly of copyright has been extended again and again to the
detriment of a rich public domain. What is equally problematic, if
not more so, is that the structure of the entertainment industry that
supplies motion pictures is an oligopoly, an arena of "controlled
competition with few players."[42] Oligopolies control not only the
price structure of a market but also the choices available to
consumers,[43] the factor most directly relevant to the CleanFlicks
case. One of the common charges by opponents of third party movie
editing is that if people don't like the movies that are available,
they can make their own movies. Most people, or organizations even,
do not have access to $80 million, the price tag of producing and
marketing the average movie in 2000.[44]
Section I will also examine the statutory copyright issues relevant
to the discussion and provide a brief history of copyright law in the
United States leading up to the most recent, controversial, and
relevant addition, the Digital Millennium Copyright Act. The section
will demonstrate that the DMCA has enabled and is itself exemplary of
how members of the intellectual property regime, namely a handful of
giant media corporations, have ridden copyright laws to the extreme
and show no signs of abating in their push for complete control of
digital media content, eroding long-held balances against the
monopoly of copyright, such as fair use doctrine. Section II will
examine how trademark law in the Lanham Act has been used in the
copyright context as a defense against excessive editing of a motion
picture in Gilliam v. American Broadcasting Cos. and whether that
case has any bearing on the one at hand, as lawyers for the directors
and studios suggest it should. Section III will offer a brief history
of moral right doctrine as it has been applied to filmmakers and
examine the possibility of assigning authorship in a medium as
collaborative as filmmaking and the implications for third-party
editing. Section IV sums up the above legal and often philosophical
issues surrounding the activities of CleanFlicks, et al., to
reinforce the conclusion that these practices must find protection
under the law.
Section I. Copyright Issues Related to CleanFlicks, et al.
United States copyright law has its basis in Article 1, Section 8 of
the U.S. Constitution: "The Congress shall have Power…To promote the
Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective
Writings and Discoveries."[45] Congress exercised that authority in
1790, creating a statute similar to a British law that came to be
known as the Statute of Eight Anne, which governed the American
colonies before independence.[46] The motivation for the British
statute 80 years earlier was the Crown's recognition that, in order
to encourage creation, creators must be guaranteed some means of
compensation for their works if they are to have any incentive to
create.[47] The motive of the Founders in the Constitution is
similar: "To promote the Progress of Science and useful Arts…."
Perhaps the most controversial part of Article 1, Section 8, are the
next five words, "by securing for limited Times." The "limited Times"
accorded by Congress in copyright law have become less and less
limited since the original 28-year period allowed for protection of
books, maps and charts. Revised in 1909, 1976 and again in 1998 with
the Sony Bono Copyright Extension Act, the duration of copyright
protection is now 70 years from the death of the author and, for
"works made for hire," 95 years from first publication or 120 years,
whichever comes first.[48] Some critics of the most recent extension
derided it as the "Disney Copyright Extension Act" since many of that
company's famous and profitable characters were set to enter the
public domain not long after Congress passed the law.[49] In Eldred
v. Ashcroft, the Supreme Court upheld the constitutionality of the
extension, emphasizing the article's assignation of authority
regarding copyright to Congress, casting aside the criticism that for
all practical purposes, the "limited Times" stipulation was being
flouted.[50] Many commentators believe this extension has the effect
of granting copyright in perpetuity[51] effectively sealing off the
public domain, especially given the pattern of continued copyright
extension. In effect, copyright law has broken loose from its
constitutional moorings. The consequences of Eldred do not apply
directly to the case of CleanFlicks, et al., but demonstrate clearly
the "insatiable hunger of the entertainment conglomerates for ever
increasing monopoly control of artistic creation,"[52] a hunger for
control that clearly informs the motivations of the motion picture
industry in its action against the movie editing companies.
Copyright law provides six exclusive rights to the copyright holder:
the right of reproduction of the work; of preparation of derivative
works; and of distribution, public performance and display of the
work, as well as public digital performance of a sound recording. The
first two rights involving reproduction and derivative works are the
ones relevant to the discussion at hand.[53] Central to the dispute
between the movie editing companies and the studios is the question
of whether copies of the movies are being made. For the examination
of this particular question, it is useful to separate the companies
like CleanFlicks, which indeed makes altered, physical copies of
movies, and companies like ClearPlay, which uses software and special
DVD players to alter the way the movie is viewed but never alters the
original or makes a copy, physical or digital.[54] The question of
making copies clearly applies only to CleanFlicks-style editing.[55]
In its complaint,[56] CleanFlicks outlined the ways in which it edits DVDs:
"a. Methodology CleanFlicks 1A: The original and edited versions are
distributed to the viewer together, allowing the viewer to choose to
watch either or both versions according to his or her own personal
tastes. b. Methodology CleanFlicks 1B: The original is preserved but
rendered inoperable and replaced with the edited version. c.
Methodology CleanFlicks 1C: Movies are purchased by a consortium of
viewers who cause an edited version to be made solely for their own
personal viewing in the privacy of their own home." Attorneys for the
company maintain that "[i]n all these methodologies, an original copy
is purchased, and there is a one-to-one relationship to the number of
purchased original versions and the number of corresponding edited
versions."[57] So CleanFlicks is making copies in violation of the
copyright holder's exclusive right to do so. Or is it?
Courts have established balances against the theoretically temporary
monopolies of copyright holders in fair use doctrine. Fair use has
been outlined by one court as balancing "the author's right to
compensation for his work…against the public's interest in the widest
possible dissemination of ideas and information…."[58] The concept is
central to the CleanFlicks defense.[59] Fair use doctrine encompasses
four factors: the purpose and character of the use; the nature of the
copyrighted work; the amount and substantiality of the work taken in
relation to the whole; and the effect on the potential market of the
copyrighted work.[60] Other scholars have provided analyses of how
the fair use factors apply in this case[61] and make clear that, at
bottom, the interpretation of the fair use factors must be decided on
a case-by-case basis.[62] Indeed the lack of certainty in applying
the fair use test is a major criticism of it.[63] The first and
fourth factors of the test address whether the use of the copyrighted
work is commercial and are generally considered to be the most
heavily weighted parts of the test.[64] If users of copyrighted works
are making money off of the use, it is more likely to be considered
infringement, though this is not always the case.[65] CleanFlicks is
clearly making money off of its use of the copyrighted works. What
may be more important, however, is the fourth factor: does the
CleanFlicks enterprise damage the market for the original product?
Indeed, in their complaint, CleanFlicks' attorneys argue that rather
than competing with the market for the original product, they have
created or begun to serve an entirely new market that the original
product did not supply.[66] Evidence has suggested that in the
absence of movies edited to remove content that is offensive to them,
some audiences will simply stop watching those movies, supporting the
notion of a separate market.[67] If the CleanFlicks videos can be
demonstrated to serve a separate, untapped market, this arguably
weightiest of the fair use factors may prevail in the court's
judgment. This argument could only be strengthened by noting that the
original market for the movies is bolstered simultaneously as the new
market is served, since the companies take care to purchase one
original copy of the movie for every edited one they release.[68]
Other sections of the copyright law imply support for CleanFlicks'
use of copyrighted material. For example, the first sale doctrine
embodied in 17 U.S.C. 109 provides that "the owner of a particular
copy…lawfully made under this title, or any person authorized by such
owner, is entitled, without the authority of the copyright owner, to
sell or otherwise dispose of the possession of that copy…."[69] In
other words, the fate of that particular copy of the copyrighted work
is no longer in the hands of the copyright owner, who has been
completely compensated for it. The reward as incentive for creation
has been given—the utilitarian philosophical underpinnings of
American copyright law have been satisfied.[70] One of the common
analogies offered in arguing against the activities of the third
party editors is that one cannot rip pages or an entire chapter out
of a book and sell it as the same book.[71] In short, the reply is,
yes one can. As long as the product is labeled clearly[72] or is not
misrepresented to the consumer in some way, a person interested in
selling such an abridged copy and a person interested in buying one
are free to do so. As noted intellectual property author Lawrence
Lessig writes, "Never has Congress embraced or the Supreme Court
permitted a regime that guaranteed a perfect control by copyright
owners over the use of their copyrighted material. As the Supreme
Court has said, '[T]he Copyright Act does not give a copyright holder
control over all uses of his copyrighted work.'[73]
The principles underlying the compulsory licensing right also weigh
in favor of finding CleanFlicks' enterprise noninfringing. In
legislation responding to the Supreme Court's decision in favor of
piano roll manufacturers in 1908,[74] "Congress gave authors the
exclusive right to decide whether and on what terms a recording of
their music could be made. But once a recording had been made, others
had the right (upon paying two cents per copy) to make subsequent
recordings of the same music—whether or not the original author
granted permission. … [The measure assured] that the original owners
of the copyrighted works would not acquire too much control over
subsequent innovation with that work."[75]
Furthermore, examples of what has been deemed fair use in the past
can shed light on how the doctrine is to be applied in this case.
Perhaps the prime example is what is commonly known as a "mixed
tape," a term that dates to the pre-digital days, a recording of
several of one's favorite songs on a tape or CD. The mixed tape is
generally made not simply for convenience but also perhaps as an
expression of one's personality. Back-up copies of software are
deemed fair use, in addition to recording television broadcasts on a
VCR or a digital video recorder like TiVo, a practice known as
"time-shifting."[76] Like the CleanFlicks movies, all of these
potentially illegal and, in some cases, altered copies are for
personal, noncommercial use and, therefore, are contained under the
"penumbra of rights"[77] related to fair use. Much of this fair use
tradition is threatened, however, with the advent of the Digital
Millennium Copyright Act.
The DMCA represents the media conglomerates' greatest victory in
their bid to control access to content in the digital age and,
therefore, also offers some of the best evidence of their troubling
bid for cultural hegemony. The starkest consequence of the DMCA,
passed in 1998, is that it makes the mere circumvention of any copy
protection technology a crime in itself. So while it may be legal,
according to fair use doctrine, to possess, for example, a back-up
copy of a music CD, it is illegal to defeat the copy protection
device in order to make that copy. This is also the case for home
video: the right to have the back-up copy is not in dispute; only
there is no legal way to make such a copy under the current law.
CleanFlicks clearly violates the DMCA for the simple reason that they
must make copies of DVDs in order to do the editing their customers'
desire. The question is, however, is it the practice that is so
wrong, or the law itself? As Lawrence Lessig puts it: "If copyright
law must protect fair use—meaning the law cannot protect copyrighted
material without leaving space for fair use—then laws protecting code
protecting copyrighted material should also leave room for fair use.
You can't do indirectly (protect fair-use-denying-code protecting
copyright) what you can't do directly (protect copyright without
protecting fair use)."[78]
The uses to which the DMCA has been put in its short history suggest
that the law can and will be used wantonly to beat down whatever
activities, legitimate or otherwise, a company protected under the
DMCA sees fit.
The case of the movie industry's Content Scramble System is
illustrative. CSS was designed to limit the types of machines that
could be used to play a DVD. Sometimes misconstrued as a
copy-protection measure, it wasn't this at all. It limited DVDs to
being played on machines that could descramble the CSS code—such as
Macintosh and Windows computers. CSS did not allow for other types of
machines, namely Linux-based computers, to play DVDs encoded with
it.[79] So, it came to pass that users with Linux machines wanted to
be able to play DVDs that they had legally acquired but discovered
wouldn't play in their machines. So a group of hackers wrote a code
called DeCSS, which is exactly what it sounds like: code to disable
CSS and enable the DVD to be used in any machine.[80] Through the
Motion Picture Association of America, the industry immediately sued,
prevailing in federal district court "without ever showing that DeCSS
or any of the defendants had actually contributed to the infringement
of any copyright or the distribution of any video. [Under the DMCA]
the plaintiffs merely had to show that the code decrypted CSS and was
thus a device intended to circumvent an access control system."[81]
More troubling about the case than the ability of a few Linux
computer users to play their DVDs were the free speech implications
of the case. The web site for the hacker magazine 2600 ran articles
about DeCSS and the code involved and almost immediately received an
injunction from a federal judge at the request of the MPAA. The web
site then removed the article and code and instead posted hyperlinks
to where readers could find the information. This won the site an
injunction, too. At the appellate level, "the court ruled that
Congress had a compelling interest in preventing piracy (even though
CSS does not prevent piracy, DeCSS does not enable it, and no piracy
was alleged)."[82] The DeCSS case demonstrates perfectly that media
content providers wish to extend copyright protection well beyond its
intended objective of ensuring remuneration for creators that will in
turn ensure the promotion of science and the arts, to absolute
control over how and when legally acquired, copyrighted material can
be used. As Lessig puts it, "[T]he importance of the case is…the
signal that Hollywood sends: any system that threatens its control
will be threatened with an army of Hollywood lawyers."[83] The
disposition of the courts certainly does not seem to favor the case
of CleanFlicks-style movie editing companies against that army of
lawyers; if, however, one accepts that the courts have erred in
enforcing the wildly overbroad DMCA, then one might be convinced that
the CleanFlicks activities deserve protection from the DMCA as well.
At least the DeCSS case had some remote connection to the concept of
"intellectual property," though the vagueness of that term and the
broadness of the DMCA has allowed a number of suits to be brought
well beyond the parameters of what has been considered copyrightable
material. Take the case of Lexmark International, a manufacturer of
computer printers. Lexmark sued a competitor, Static Control,
claiming copyright infringement and violation of the DMCA because
Static Control was selling computer chips that allowed cheaper,
remanufactured laser toner cartridges to work in Lexmark printers.
Lexmark's claim lay in the fact that it had created a computer chip
meant to prevent any cartridges other than Lexmark cartridges from
working in the printer. Because Static Control made a chip of their
own to override Lexmark's, the latter claimed violation of the DMCA.
A U.S. District court judge had issued a temporary injunction against
Static Control, which was later overturned on appeal. As Static
Control's president Ed Swartz proclaimed (if somewhat
hyperbolically), "This is a landmark precedent-setting case and the
courts have spoken—companies cannot abuse copyright laws to create
electronic monopolies and take advantage of the citizens of this
great country."[84] This is certain, however, not to be the last
instance where the already overbroad DMCA is stretched further by
corporations seeking to further their interests. In another instance,
auto dealers tried to use the DMCA to prevent independent garage
operators from buying equipment to analyze a car's engine because the
diagnostic codes were copyrighted.[85] As commentator Andrew Cantor
writes, "The Digital Millennium Copyright Act is the rallying cry for
any company or organization that wants to make any kind of copyright
claim, no matter how absurd. It makes it illegal not only to break
someone's copyright (e.g., sell a bootleg CD), but to develop a way
to break it, to tell others about that way, or to make that way
available."[86] It really smacks heavily of Orwell's thought police,
only this time, it's the corporations in control; the government is
just their enforcer. The DMCA's overbroad provisions continue not
only to stifle innovation and competition in the corporate world,
they threaten to do so in the academic and research realms as well,
especially as large media corporations push ever more steadily to a
"pay-per-view" model of information distribution.[87] Several
scholars have chronicled the danger of the DMCA for higher
education.[88] The DMCA even threatens to lock down information that
is already in the public domain. As cultural texts like movies and
songs are increasingly created, preserved and transmitted in digital
format, the DMCA will for all intents and purposes destroy the
accepted notion of fair use.
Section II. Use of the Lanham Act as a Defense Against CleanFlicks, et al.
The second prong of the DGA's attack in its counterclaim against
CleanFlicks, et al., is its contention that the activities violate
section 43(a) of the Lanham Act, citing specifically the court's use
of the act to find for the plaintiff in Gilliam v. American
Broadcasting Cos.[89] In the Gilliam case,[90] the Monty Python
comedy troupe sought an injunction against ABC for severely editing
one of its programs for broadcast in the 1970s. The case is often
analyzed as one of the first instances in which a court has
recognized an artist's moral right, though the court itself denied
using the Lanham Act to establish moral right.[91] Still, in Gilliam
the court established that the law could be used to "provide a remedy
for artists against third parties that have substantially altered
their work without permission."[92] It is this notion of presenting
an artist's work as his own when it is not that makes the Gilliam
case relevant to the CleanFlicks, et al., case. Unlike examination
under the copyright framework, where companies like ClearPlay stand
to be exonerated from any responsibility because they do not make
copies of the copyrighted works, under the Lanham Act framework, the
software filtering companies are implicated equally with the movie
editing companies that make physical copies of the movies. The
products of all of the companies in question alter the presentation
of the movie intended by the creator.
There are difficulties in applying the Gilliam case to the
CleanFlicks, et al., situation, however. The main problem lies in
that the remedies afforded by the Lanham Act center around whether
the offending party has created confusion in the mind of the
consumer.[93] The court could find that this was the case in Gilliam,
because ABC broadcast the edited programs indiscriminately to the
public while representing it as the work of Monty Python. In the case
of CleanFlicks, et al., however, the consumers are seeking out edited
videos or editing software/hardware systems exactly because of the
difference between the altered products and the originals. In such a
circumstance, it would be hard for the defense to argue that
confusion has been created in the mind of the consumer.
There is another sticking point in applying Gilliam to the
CleanFlicks, et al., case. While ABC properly licensed the Monty
Python broadcasts from the BBC, where they originated, the comedy
troupe still owned the underlying copyrights to the scripts. This
allowed the court to find that the ABC broadcast would be an
unauthorized derivative work and, therefore, impermissible.[94] In
the case of CleanFlicks, et al., however, the directors almost never
hold the copyright to their films, much less the underlying scripts.
Their artistic efforts are "work made for hire"[95] by the studios;
thus, the studios hold the copyright. If anyone has a claim to false
designation under the Lanham Act, then, it is the studios, not the
directors. Yet in their counterclaim, attorneys for the DGA and
studios place their emphasis on the directors' rights,[96] holding up
Gilliam as an example of such rights, when, in fact, it may not
apply. The attorneys write: "Counterdefendants' aforementioned
conduct violates the intellectual property and artistic rights of the
DGA members who directed those films…."[97] Yet without holding the
copyright to their movies, the directors have no intellectual
property rights associated with the movie. And, as we shall see in
the next section, in the utilitarian framework of American copyright
law, "artistic rights" has little or no meaning at all, especially
for film directors.
Section III. Moral Right of Directors As a Defense Against Third-Party Editing
Moral right (droit moral) is the notion that an artist's rights to
her work do not end with her economic rights.[98] Perhaps translated
more accurately as the "right of personality,"[99] moral right gives
the artist power to control the use of his art even after he has been
duly compensated for it. The concept has enjoyed very little support
in American jurisprudence, with the exception of the Visual Artists
Rights Act of 1990, which only offers limited protection to
one-of-a-kind or limited-reproduction works and specifically excludes
motions pictures and other audiovisual works.[100] That hasn't
stopped scholars from arguing for a greater assertion of moral right
doctrine in American law for the authors of motion pictures.[101]
That last phrase, however, "authors of motion pictures," proves to be
problematic. How does one assign authorship to a creation as
collaborative as a motion picture? If the sole author cannot be
established, who then will assert moral right over the picture? The
historical answer has been that the director is the author of a
motion picture; indeed, he is the "auteur," as the French say. In
fact, France is where the concept of moral right finds its greatest
assertion in the law.
Perhaps the most renowned controversy involving moral right and
motion pictures emerged when a technique to colorize old, black and
white films was invented. Turner Broadcasting had created a colorized
version of John Huston's classic heist movie, "The Asphalt
Jungle."[102] Before he died, Huston had expressed his utter outrage
at the concept of colorization, and when Turner made plans in the
1980s to broadcast the colorized version of "The Asphalt Jungle" in
France, Huston's estate sued to enjoin the broadcast on the basis of
the creator's moral right. Ultimately, France's highest court found
in favor of Huston. "In general, 'common law countries assume that
the director of a film works for hire, and that the producer holds
the copyright to the film, while the civil-law countries generally
assume that the director of a film is an 'author' and as such has
moral rights in the film….'"[103]
But what of that decision to assert the director as the author of a
motion picture? It has currency today even in America. Directors
receive a "possessory" credit for the pictures they direct. It is "A
Film by So-and-So" or "A So-and-So Film." Director John Singleton
declares, "Filmmaking is a director's medium. You have all these
different people involved in the process, but the director is the
general."[104] As the power of the studio system disintegrated
throughout the 1950s and 1960s, directors gained increased control
and responsibility in filmmaking.[105] "The director is the boss, but
that's by the nature of the way film is made. It doesn't say that the
director is smarter than the writer or smarter than the producer. But
the director is the only one in contact with every aspect of the
film. You can only have one vision," says director Arthur
Hiller.[106] One film editor describes the director not so much in
terms of what he chooses but of what he rejects: "The director is the
immune system of the film."[107]
Unsurprisingly, it isn't hard to find differing opinions, especially
among producers. "It is kind of a general perception, I think borne
out of the 1960s 'auteur' concept, that the directors are the person
[sic] who determine what the movie is. That's just a lot of
malarkey."[108] One scholar posits that independent producers
operating outside of the major studio system ought to retain the
moral right to the pictures they produce.[109]
What is clear, however, irrespective of who controls the copyright,
is the difficulty of assigning a sole author to a work that involves
the creative input of so many individuals: director, producers,
actors, editors, composers, production designers, cinematographer,
camera operators, costumers, hair and make-up designers,
choreographers, etc. Even the copyright considerations of all of
these contributions can be Byzantine if strict "work made for hire"
contracts are not executed prior to production of a motion
picture.[110] A great film is often "a perfect accident," as one
critic recently described "Chinatown" during a retrospective of the
film.[111] It's a fairly common metaphor for filmmaking. The opposite
is the perfect disaster, the film that has all the right ingredients:
stars, a hot director, a big budget, a solid script; and somehow
fails to gel. Witness "Ishtar" or, more recently, "Gigli." To lay the
success or failure of the complex collaboration (among people and
fate) that a motion picture embodies at the feet of one person seems
simplistic at best. Any argument, therefore, that a director
(especially one who doesn't own the copyright to the film, which is
most) is the sole author of that film and, as a result, should be
able to determine how that film should be experienced by the viewer
is fundamentally flawed.
Section IV. Conclusion
Repudiating the doctrine of moral right is not to dismiss the artist
and his endeavors. Rather, it is to balance that need for creative
control with the need for the audience—the consumers of media content
increasingly controlled by half a dozen corporations—to be able to
control how they experience that content, how they want to interact
with those cultural texts as McLeod calls them. Increasingly,
copyright law, especially in the digital age through the DMCA, is
being used by media corporations to shut down the options people have
for interacting with those texts. Though the case of the motion
picture edited for objectionable content may seem like a trivial
skirmish, it is indicative of the larger battle for a free and open
culture. Especially as cultural texts are increasingly digital, with
LPs long gone and VHS not far behind, the consequences of laws like
the DMCA stand to become ever harsher and detrimental to society as a
whole. One man's offensive content is another man's poetry. But the
key in an open society based on the ideals of the free exchange and
use of ideas is that every individual can decide how they interact
with those ideas. It really is all about choice, like the edited
movie companies suggest. We cannot create an artistic or cultural
thought police, whether initiated by the government or initiated by
corporations in the name of ownership and enforced by the government.
The very notion is antithetical to creative spirit of both art and
free expression.
[1] Comedian D.L. Hughley, while guest-hosting the "Late Late Show"
on CBS, Nov. 14, 2004, discussing some of the differences between
whites and blacks. The joke got a laugh but may well be grounded in
tradition. See Kembrew McLeod, Owning Culture: Authorship, Ownership
and Intellectual Property Law (2001), especially Chapter 3,
"Copyright, Authorship and African-American Culture" (arguing that
hip-hop and rap music, which have historically relied heavily on
sampling, grow out of a cultural tradition in which "the borrowing of
words and ideas was not considered to be the theft of another's
property") at 28. One author, however, argues that this black/white
dichotomy regarding property is an oversimplification. The real
struggle in the music business is between "established entities and
"those trying to get established." That is, those in positions of
power want the law to protect their power, as is the case in the
motion picture industry. See Siva Vaidyanathan, Copyrights and
Copywrongs: The Rise of Intellectual Property and How It Threatens
Creativity 133 (2001).
[2] Media mogul Ted Turner, regarding the film colorization scandal
of the late 1980s he helped fuel. See William H. Honan, Artists,
Newly Militant, Fight for Their Rights, New York Times, Mar. 3, 1988,
at C29. The comment sums up succinctly the utilitarian attitude of
the intellectual property regime regarding copyright law and artistic
works. See infra Section III, Moral Right of Directors as a Defense
against Third-Party Editing.
[3] As elaborated infra, the third party editors, depending on the
method of editing, either purchase an original copy of a motion
picture on DVD for every edited one they release or use software
filters that create an edited playback when used with an original
copy of the film. Either way, the studios have been compensated for
their copyrighted product. It should go without saying that this
article does not advocate piracy of motion pictures; rather it argues
that once the utilitarian demands of copyright have been met, as with
the sale of a DVD copy of a motion picture, creators have no further
control over the copy sold. The first sale doctrine of copyright and
related issues are elaborated infra Section I.
[4] Article 1, Section 8 of the United States Constitution provides
the basis for copyright law: ""The Congress shall have Power…To
promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries." See generally Siva
Vaidyanathan, The Anarchist in the Library (2004).
[5] Huntsman v. Soderbergh, No. 02-M-1662 (D. Colo, filed Aug. 29, 2002).
[6] See http://movieweb.com/movies/box_office/alltime.php.
[7] See Nicole Griffin Farrell, Frankly, We Do Give a ... Darn!
Hollywood's Battle Against Unauthorized Editing of Motion Pictures:
The "CleanFlicks" Case, 2003 Utah L. Rev. 1041, (2003) at 1042. Prior
to the editing of "Titanic" for home viewers, the Varsity Theater at
Brigham Young University, run by the Church of Jesus Christ of
Latter-Day Saints (Mormons), had screened edited versions of R-rated
movies until ceasing in the late 1990s after objections from director
Stephen Spielberg and Sony Corp. After it stopped editing movies for
content, attendance dropped and the theater went out of business,
offering possible corroboration for the argument that the edited
films serve a unique market and consumers who desire these products
will simply avoid movies altogether if edited versions are
unavailable. See infra Section II.
[8] See Sharon Weinberg Nokes, E-Rated Movies: Coming Soon to a Home
Theater Near You?, 92 Geo. L.J. 611, (2004) at 612 (putting the
number at 5,000 copies edited by 1999) and Michael P. Glasser, "To
Clean or Not to Clean": An Analysis of the Copyright and Trademark
Issues Surrounding the Legal Battle Between Third Party Film Editors
and the Film Industry, 22 Cardozo Arts & Ent LJ 129, (2004) at note
23 (putting the number at more than 10,000 total).
[9] Though the editing in this case was of copies on VHS tape, the
popularization of the DVD format soon after would make the editing
purely digital.
[10] See supra note 7 at 3.
[11] See www.cleanflicks.com (last visited March 23, 2005). This
figure represents an increase of 200 titles since the author visited
the site several months prior.
[12] A search of the Internet using terms such as "edited films" or
"cleaned films" yields about half a dozen such enterprises, such as
http://cleanfilms.com/ and http://familyflix.net/. At least one such
provider, Family Safe Media, has ceased offering edited movies,
citing the litigation with the DGA. See
www.familysafemedia.com/edited_videos.html (last visited March 23, 2005).
[13] See www.cleanfilms.com.
[14] Id. This slogan was on the web site in the fall of 2004 and has
since been removed (last visited March 23, 2005).
[15] The web site of ClearPlay, a company that offers movie-editing
filters that can be utilized on a specialized DVD player (See infra,
introduction.) until recently used the phrase, "It's all about
choice." See http://www.clearplay.com/. (last visited March 23,
2005). Indeed, the use of these legally acquired media is all about
consumer choice, as this paper will demonstrate. See infra
Introduction and Section IV, Conclusion.
[16] A memo posted on the Directors Guild of America web site, since
removed, declared the organization's intent to sue editing companies
like CleanFlicks after another company, Trilogy Studios, invited
directors to view and comment on alterations they'd made to their
movies. See supra note 5 at 4.
[17] See Complaint and Jury Demand, Robert Huntsman and CleanFlicks
v. Steven Soderbergh, et al. (D. Colo. Sept. 20, 2002) (No.
02-M-1662). Available at
http://viewerfreedom.org/legal/20020829CF/complaint.html.
[18] See Defendants' Proposed Amended Counterclaim, Huntsman v.
Soderbergh (D. Colo. Sept. 20, 2002) (No. 02-M-1662). Available at
http://viewerfreedom.org/legal/20020920DGA/Proposed_Amended_Counterclaim.pdf
(last visited March 24, 2005.) It is also important to acknowledge
the well-known, inherent tension between intellectual property
protection and the First Amendment; that tension is beyond the scope
of this article, though the continuing increased expansion of the
intellectual property regime may soon demand judicial scrutiny of the
substantial private censorship that can occur because of
government-enforced intellectual property laws. See for example James
Boyle, A Politics of Intellectual Property: Environmentalism for the
Net?, 47 Duke L.J. 87 (1997) at 89, highlighting the Church of
Scientology's use of copyright to suppress criticism by former church members.
[19] See supra note 17. See also, Matthew S. Bethards, Can Moral
Rights Be Used to Protect Immorality? Editing Motion Pictures to
Remove Objectionable Content, 3 Va. Sports & Ent. L.J. 1, (2003),
(arguing that the activities of CleanFlicks, et al., indeed
constitute fair use) at 13.
[20] See supra note 18 at 16.
[21] Id.
[22] See supra note 7 at 4. See also, infra Section IV, Conclusion
(arguing that the difference is irrelevant to the broader issue of
consumer control of media content in the digital age). There is
another distinction worth considering, too. Whereas the services of
the companies providing edited movies for rental requires a
membership or the purchase of a video at a premium price above normal
retail, ClearPlay's specialized DVD player, pre-loaded with dozens of
software movie filters that allow a consumer to use a normal DVD
purchased or rented from anywhere, is available at mass retailers
like Wal-Mart for around $70 (see
http://www.walmart.com/catalog/product.gsp?product_id=2598456), a
fact of the marketplace which may soon render academic the legal
distinction between ClearPlay and the other video editing companies.
[23] See Robert Gehrke, ClearPlay's future suddenly muddy; Facing
lawsuits: A bill that would have protected the film-censoring company
is tied up in Congress, Salt Lake Tribune, 11/25/04 at C2.
[24] See www.clearplay.com/FamilyMovieAct.aspx.
[25] See Andrew Kantor, Hard to Lower Pirate Flag While Legal
Alternatives Still Lacking, available at
http://www.usatoday.com/tech/columnist/andrewkantor/2005-03-25-kantor_x.htm?POE=click-refer,
(last visited March 25, 2005) noting that Hatch once suggested the
remote destruction of the computers of people who were suspected of
piracy. As Kantor commented wryly, "Due process, schmue process."
[26] See generally Glasser supra note 8.
[27] See Statement of Marybeth Peters, Register of Copyrights,
before the Subcommittee on Courts, the Internet, and Intellectual
Property, of the House Committee on the Judiciary, 108th Congress, 2d
Session, June 17, 2004, available at
http://www.copyright.gov/docs/regstat061704.html (last visited March
25, 2005). It should be noted that while Peters finds the practice of
third party editing repugnant she did not find it illegal; also,
since she did not find it illegal, Peters stated her belief that the
Family Movie Act was unnecessary legislation.
[28] See Julie Hilden, The "CleanFlicks" Case: Is It Illegal to Rent
Out a Copyrighted Video After Editing It to Remove "Objectionable"
Content?, FindLaw, 9/03/02.
[29] Moral right doctrine assigns to creators artistic rights to
their works independent of their economic right. See Martin A.
Roeder, The Doctrine of Moral Right: A Study in the Law of Artists,
Authors and Creators, 53 Harvard L. Rev. 554 (1940) (for the classic
analysis of the doctrine). Only select visual artists, not including
motion picture directors, enjoy statutory protection of these rights
in the United States under the Visual Artists Rights Act of 1990. See
Sheldon W. Halpern, Of Moral Right and Righteousness, 1 Marq. Intell.
Prop. L. Rev. 65, (1997) at 67. Some have argued that this phrase
would be better translated into English as "right of personality."
See Drew Clark, Bowdlerizing for Columbine? Why American directors
have no moral rights to their movies, available at
http://slate.msn.com/id/2077192/. (last visited March 23, 2005). See
also infra Section III.
[30] See supra note 1, McLeod at XIII (defining cultural texts as "a
broad term that refers to songs, television shows, motion pictures,
web sites and a variety of other forms of cultural expression").
[31] See supra note 4 at 1074. See also supra note 5 at 176. The
simplicity of this solution, though sensible and not totally
unappealing, belies the avowal of at least one edited-movie company,
FamilyFlix, to go well beyond the editing required for television and
airlines. See http://www.familyflix.net/, homepage, "Our Stand on
Standards" (last visited Nov. 26, 2004). Notable, however, is New
Line Cinema's deal with The Dove Foundation, a non-profit
organization dedicated to "wholesome family entertainment," to
release several home videos of motion pictures that "carry the Dove
'Family-Edited' seal of approval on [the] spine and face." See
http://www.dove.org/frames.asp?URL=news/ep010510.htm (last visited
March 23, 2005.)
[32] See James Boyle, A Politics of Intellectual Property:
Environmentalism for the Net?, 47 Duke L.J. 87 (1997) at 105.
[33] Id.
[34] Id. cited in Lawrence Lessig, Free Culture: How Big Media Uses
Technology and the Law to Lock Down Culture and Control Creativity 129 (2004).
[35] Id.
[36] See infra Section I, where this criticism is elaborated.
[37] See David Cohn, Positive About Negativland iPod, available at
http://www.wired.com/news/culture/0,1284,66725,00.html (last visited
March 25, 2005).
[38] For a full account of the Negativland-U2 conflict, see
Negativland, Fair Use: The Story of the Letter U and the Numeral 2 (1995).
[39] See supra note 37.
[40] Id.
[41] The Negativland legal battle never went to trial and occurred
before the Supreme Court's landmark ruling in Campbell v. Acuff-Rose
Music, Inc. 114 S. Ct.1164 (1994), permitting the commercial use of a
copyrighted work for the purposes of parody.
[42] See Ronald V. Bettig & Jeanne Lynn Hall, Big Media, Big Money:
Cultural Texts and Political Economy 45 (2003).
[43] Id. at 46.
[44] Id. at 46. The precise figure is $82.1 million.
[45] Cited in Don R. Pember & Clay Calvert, Mass Media Law 503 (2005).
[46] Id.
[47] Id.
[48] 17 U.S.C. 302.
[49] See supra note 24 at 512. See also Chris Sprigman, The Mouse
That Ate the Public Domain, available at
http://writ.corporate.findlaw.com/commentary/20020305_sprigman.html
(last visited Mar. 23, 2005).
[50] Eldred v. Ashcroft, 123 S. Ct. 769, 2003, majority opinion
written by Justice Ruth Bader Ginsburg.
[51] See David Maizenberg, The Cultural Future of Copyright
Monopolies, available at
http://practice.findlaw.com/archives/feature_0503.html (last visited
Mar. 23, 2005).
[52] Id.
[53] See supra note 24 at 504.
[54] See introduction and supra note 17 at 16.
[55] The allegations against ClearPlay and other software editing
companies is that their products create derivative works of
copyrighted material. See infra this section.
[56] See supra note 13.
[57] Id. This fact is also used by CleanFlicks in its claim to the
first sale defense. See infra this section.
[58] Triangle Publications v. Knight-Ridder, 626 F. 2d 1171 (1980)
cited in Don R. Pember & Clay Calvert, Mass Media Law 513 (2005).
[59] See infra note 17.
[60] 17 U.S.C. 107.
[61] See supra note 15 at 11 and Christina Mitakis, FILM & TV: The
E-rated Industry: Fair Use Sheep or Infringing Goat?, 6 Vand. J. Ent.
L. & Prac. 291, (2004) at 298.
[62] Id. Mitakis. See also See Lloyd L. Rich, Fair Use:
Interpretation & Guidelines--The Fair Use Doctrine, Part II,
available at
http://library.lp.findlaw.com/articles/file/00102/006976/title/Subject/topic/Intellectual%20Property_Copyrights/filename/intellectualproperty_2_4512v
(last visited Nov. 24, 2004) (asserting that "[t]here is no
certainty, when copying another copyrighted work without permission,
that a court will interpret the specific circumstances as fair use.
Ultimately, whether a court will determine a specific use to be fair
use will be dependent upon the circumstances and the court's analysis
of the four fair use factors enumerated in Section 107 of the Copyright Act").
[63] The uncertainty of how courts will apply the fair use test
often results in a chilling effect on the promotion of knowledge and
cultural discourse. Companies such as book publishers are often
unwilling to go to bat for creators who have failed to obtain
permission for copyrighted materials, even when those materials fall
reasonably within the previously established bounds of fair use,
because of the great expense involved in litigating intellectual
property cases. This uncertainty can easily be seen as running
counter to the Constitution's purpose of "promoting Science and the
useful Arts." See McLeod supra note 1 at XIII-XIV.
[64] Though the subjectivity of the entire fair use test dictates
caution in assigning relative importance to the factors, the
commercial aspects of the use, especially the consideration of the
impact on the market for the original copyrighted work, are generally
given more weight by the courts. See supra note 24 at 523.
[65] See Campbell v. Acuff Rose Music, Inc. 114 S. Ct.1164 (1994).
[66] See supra note 17.
[67] See supra note 7.
[68] See supra note 17.
[69] 17 U.S.C. 109(a) (2003).
[70] In the utilitarian copyright law of the United States,
virtually no protection is afforded for an artist to control the use
of his creation, as it has been in the moral right (droit moral)
doctrine enforced to varying degrees in Europe. See supra note 21 and
infra Section III.
[71] See Michael Kurzer, Who Has the Right to Edit a Movie?: An
Analysis of Hollywood's Efforts to Stop Companies from Cleaning up
Their Works of Art, 11 UCLA Ent. L. Rev. 41, (2004) at note 9
(quoting the analogy by director Steven Soderbergh).
[72] The issue of clear labeling to avoid confusion figures more
prominently in the discussion of trademark issues involving the
Lanham Act. See infra Section II.
[73] See Lawrence Lessig, The Future of Ideas: The Fate of the
Commons in a Connected World 108 (2001) (citing Twentieth Century
Music Corp. et al. v. Aiken, 422 U.S. 151, 154-55 (1975).
[74] White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 21 (1908).
[75] See supra note 73 Lessig at 108-9.
[76] See Siva Vaidhyanathan, The Anarchist in the Library: How the
Clash Between Freedom and Control Is Hacking the Real World and
Crashing the System 74 (2004). See also Sony Corp. v. Universal City
Studios, Inc., 464 U.S. 417 (1984).
[77] Id. Vaidhyanathan at 74.
[78] See supra note 73 at 188.
[79] Id. at 189.
[80] See supra note 76 at 70-72.
[81] Id.
[82] Id.
[83] See supra note 73 at 190.
[84] See Court overturns Lexmark DMCA case injunction, available at
http://www.usatoday.com/tech/news/techpolicy/2004-10-27-lexmark-dmca_x.htm.
[85] See Andrew Kantor, CyberSpeak: There's little right with
today's copyright laws, available at
http://www.usatoday.com/tech/columnist/andrewkantor/2004-11-19-kantor_x.htm.
[86] Id.
[87] See Scott Carlson, In the Copyright Wars, This Scholar Sides
with the Anarchists, The Chronicle of Higher Education, Nov. 19, 2004
at 29 (quoting Siva Vaidhyanathan, arguing that database companies
like Reed Elsevier and Thomson are oligarchic and maintain control of
and access to information.)
[88] See John R. Therien, Exorcising the Specter of a "Pay-Per-Use"
Society: Toward Preserving Fair Use and the Public Domain in the
Digital Age, 16 Berkeley Tech. L.J. 979 (2001) and Laura L.
Mendelson, Privatizing Knowledge: The Demise of Fair Use and the
Public University, 13 Alb. L.J. Sci. & Tech. 593 (2003).
[89] See supra note 18 at 16.
[90] Gilliam v. Am. Broad. Cos., 538 F.2d 14 (2d Cir. 1976).
[91] Eric B. Hiatt, The "Dirt" on Digital "Sanitizing": Droit Moral,
Artistic Integrity and the Directors Guild of America v. CleanFlicks
et al., 30 Rutgers Computer & Tech. L.J. 375, (2004) at 385-7.
[92] Id.
[93] The Lanham Act states: "Any person who, on or in connection
with any goods or services, or any container for goods, uses in
commerce any word, term, name, symbol, or device, or any combination
thereof, or any false designation or origin, false or misleading
representation of fact, which—(A) is likely to cause confusion, or to
cause mistake, or to deceive as to the affiliation, connection, or
association of such person with another person, or as to the origin,
sponsorship, or approval of his or her goods or services, or
commercial activities by another person, or (B) in commercial
advertising or promotion, misrepresents the nature, characteristics,
qualities, or geographic origin of his or her or another person's
goods, services, or commercial activities, shall be liable in a civil
action by any person who believes that he or she is likely to be
damaged by such act." 15 U.S.C. 1125(a)(1)(B) (2003).
[94] See supra note 21, Halpern at 74.
[95] See infra Section III, Moral Right.
[96] See supra note 18 at 16-17. "63. Because directors and their
names are closely associated with the content of the movies they
direct, Counterdefendants' conduct is particularly injurious to
directors. Indeed, Counterdefendants are undoing, undermining and
superseding the artistic work in which a director has invested
considerable time, effort and talent, and with which the director has
become closely associated by the public. 64. Counterdefendants'
presumptuous conduct is even more injurious because, by its
commercial nature, it associates directors with altered versions of
films which the directors simply did not create. This causes further
injuries, as consumers associate directors with films the directors
did not create and did not authorize."
[97] Id.
[98] See supra note 29, Roeder.
[99] Id. and supra note 29, Clark.
[100] See Natalie C. Suhl, Moral Rights Protection in the United
States Under the Berne Convention: A Fictional Work?, 12 Fordham
Intell. Prop. Media & Ent. L.J. 1203, (2002).
[101] Id. and supra note 91.
[102] See supra note 29, Halpern at 70.
[103] Id.
[104] Lesli Klainberg, Directed by Alan Smithee, Wellspring, 2003.
[105] Id.
[106] Id.
[107] See Michael Ondaatje, The Conversations: Walter Murch and the
Art of Editing Film, 28 (2002).
[108] See supra note 104 quoting producer John Morrissey.
[109] Stuart K. Kauffman, Motion Pictures, Moral Rights, and the
Incentive Theory of Copyright: The Independent Film Producer as
"Author", 17 Cardozo Arts & Ent LJ 749, (1999).
[110] See generally F. Jay Dougherty, Not a Spike Lee Joint? Issues
in the Authorship of Motion Pictures Under U.S. Copyright Law, 49
UCLA L. Rev. 225 (holding up as an example Spike Lee's picture
'Malcolm X' on which Dougherty argues Lee received significant
copyrightable contributions from a consultant whose "work for hire"
status was not established and who later claimed authorship of the film).
[111] See Arthur Spiegelman, 'Chinatown' Makers Recall How Classic
Made, available at
http://story.news.yahoo.com/news?tmpl=story&u=/nm/20041209/us_nm/leisure_chinatown_dc.
|
