The Magazine

What a Bleeping Shame

Hollywood wins a copyright victory.

Jul 31, 2006, Vol. 11, No. 43 • By JONATHAN V. LAST
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THE CLEANFLICKS business model was relatively straightforward. When it launched in June 2000, the Utah-based movie-rental company would buy a popular film on DVD (or VHS tape, in the early days) and make a digital copy of it on a computer. They would then use video editing software to remove or obscure portions they deemed not suitable for family viewing. According to company literature, this meant excising nudity, graphic violence, sexual content, and bad language ("the B-words, H-word when not referring to the place, D-word, S-word, F-word, etc." and the "G-word and JC-words" when used in a non religious context).

CleanFlicks would copy this edited version and rent (or sell) it to customers, either through a mail-in service or at a retail branch. CleanFlicks kept one purchased original DVD for every edited DVD they rented, and, when they sold an edited movie, they sold it bundled with the original. The editing process used state-of-the-art technology--a combination of redacting, blending, cropping, and fogging. By 2006, CleanFlicks boasted a library of more than 700 popular titles, some of which must have taken quite a bit of work to render family-friendly. On July 14, for example, the number one movie on CleanFlicks' Top Rentals list was the excellent 2005 raunch-fest Wedding Crashers.

Shortly after CleanFlicks opened for business, Hollywood came after it for copyright infringement. The Directors Guild of America, the eight major studios, and a cadre of 16 star directors (with 10 Oscars among them) filed suit against CleanFlicks and its competitors in the family video-editing market. And on July 6, after years of legal wrangling, Judge Richard P. Matsch of the Colorado District Court put the copiers all out of business. As a matter of law, the case did not set any new precedents, but it did open a window onto the soul of Hollywood.

The law takes copyright seriously. It's one of the few rights actually enshrined in the Constitution. But, like every right, it is qualified, and CleanFlicks and its codefendants rested their case on three shaky claims.

First, CleanFlicks argued that they were making "fair use" of the movies because their edits constituted "criticism" of and "commentary" on the originals. (This is the exception to copyright that allows reviewers, for instance, to reproduce passages from a book under review without the permission of the author or publisher.) CleanFlicks and its codefendants, Judge Matsch observed, sought "to establish a public policy test that they are criticizing objectionable content commonly found in current movies and that they are providing more socially acceptable alternatives to enable families to view the films together."

But on this count, they had already been rebuffed by Congress, which, in the Family Movie Act passed in 2005, provided an explicit fair use exemption for people who wanted to edit movies in the privacy of their own homes. This right to create a "criticized" version of a movie was not, however, extended to commercial businesses.

The second defense was a contention that CleanFlicks' edited versions were "transformative," rather than "derivative," works. The 1994 case Campbell v. Acuff-Rose Music provided that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." (The transformative work allowed in that case was a 2 Live Crew rap parody of Roy Orbison's "Oh, Pretty Woman.")

CleanFlicks argued that their edits transformed the movies, but that was a stretch. Transformation, Campbell explained, arises from a use that "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message." As Judge Matsch noted, CleanFlicks sought not to add, but to delete. And as for altering the message of the movies, CleanFlicks promised not to do that, nor was that what its customers were looking for: As its website boasted, "You will not realize you have watched an edited movie except for the realization that it contained no offensive content."

The final defense was more moral than statutory. The defendants asked, with some bewilderment, why the Directors Guild and the studios would want to shut down their operation since, after all, they were helping them sell DVDs. Remember, CleanFlicks purchased a new copy of a DVD for every edited copy they created. And given their customers' interests, it seems reasonable to assume that these DVDs would not otherwise have been bought or rented. At a time when the costs of making movies are steadily increasing and box office receipts are gradually declining, you'd think the suits in Hollywood would be thrilled with an additional revenue stream.