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Commentary

Commercial Movie Censors Violate Copyright Law

(July 11, 2006) - Last week, a federal court in Colorado ruled that "CleanFlicks" and other companies that delete supposedly offensive words and images from films, then market the sanitized versions for profit, are guilty of copyright infringement. The court rejected the companies' claims that they qualify for the "fair use" defense under copyright law because their hatchet jobs are an implicit critique of sexual scenes, vulgar words, use of the Lord's name in vain, and other film content of which they disapprove.

Fair use generally requires some element of originality, Judge Richard Matsch explained in his ruling against CleanFlicks, Family Flix, and Play It Clean Video. (The copyright law lists commentary, criticism, news reporting, and scholarship among typical examples of fair use.1) Courts assessing a fair use defense often ask whether the use of a copyrighted work is "transformative" - that is, whether it creates something original and new.

In this case, as Judge Matsch found, the sanitizers add nothing new or creative; they simply cut, blur, and purge disfavored words and images. Their marketing of mutilated movies thus violated the copyright owners' "reproduction" and "distribution" rights.2

According to Judge Matsch, however, the sanitized films did not violate the copyright owners' exclusive rights to create or license "derivative works." Here, the judge got confused, understandably, between the term "transformed," as it is used in the part of the law defining "derivative works," and "transformative," as the Supreme Court and commentators have used it to describe the essence of fair use.

Copyright law defines "derivative work" to include an "abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." If interpreted broadly, this could include any parody or other form of commentary that incorporates substantial chunks of a preexisting work. But the fair use section of the law specifically allows copying in these situations. The conundrum is resolved by accepting that "transform" has different meanings for purposes of defining a derivative work, and for purposes of analyzing fair use.

That is, copyright law prohibits making derivative works without the consent of the owner, unless they are sufficiently "transformative" to qualify as fair use.

Some advocates who believe the copyright balance has been radically distorted in recent years, in favor of owners and against fair users, supported CleanFlicks' claim to fair use. After all, they say, a book purchaser can black out passages he doesn't like, and anyone who buys a video can cut it apart and paste it back together in a different way.

These privacy-of-the-home activities don't implicate copyright law because there's no distribution (and often no reproduction), and because the "first sale" rule allows a buyer of a book, video, or other work to do what she pleases with that copy. But the large-scale commercial distribution of mutilated movies is a far cry from such small-scale exercises in do-it-yourself censorship.

It's often said that U.S. copyright law is only concerned with economic rights and doesn't embrace "moral rights" as they exist in European countries - that is, doesn't recognize that the law should protect both the market value and the integrity of creative works. But there is room in U.S. copyright law for some recognition of the right of integrity, even while limiting that right so that owners can't interfere with scholarship and commentary by denying copyright permission whenever they disagree with the user's point of view.

As I argued last year when Congress was about to legalize movie-sanitizing software: "Unlike the fair uses that artists and scholars make of copyright-protected works for purposes like criticism or parody, uses that are creative and transformative, there is nothing creative, nothing that promotes the broad goals of our copyright system, in the bowdlerization of a film."3

Marjorie Heins

NOTES

1. See Will Fair Use Surive? Free Expression in the Age of Copyright Control, and also the explanations at www.fairusenetwork.org

2. CleanFlicks of Colorado v. Steven Soderbergh et al., Civil Action No. 02cv01662RPM (D. Colo. July 6, 2006).

3. Marjorie Heins, BLEEP: CENSORING HOLLYWOOD? National Press Club, April 18, 2005. The legislation, called the Family Movie Act of 2005, only addresses software programs that people can use at home to delete designated categories of content from DVDs as they watch them; it doesn't immunize companies that actually create and sell sanitized copies of films.


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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