It’s a bit weird to be writing a post about lawsuits that occurred and were resolved years ago, especially since I am not the lawyer that Burt is. But the cases I am writing about had a lasting effect on my view of politics and its followers. And rather than try to stuff everything into a single post, I am going to write about the cases here, and then later why these cases were significant to me.
Conflict:
Around the turn of the century, there was a push towards cleaning up movies. The push did not come from studios in Hollywood, but rather entrepreneurs in (mostly) Utah (one of which, I should add, was named Huntsman). The two highest profile companies were ClearPlay and CleanFlicks. Both of these companies, as well as a third and fourth, were based out of the Beehive State, so I will occasionally refer to them as “the Utah companies.”
ClearPlay sold DVD players that would (with programming) skip over the more unsavory parts of movies. They would have editors go through, clean up the dirty parts, while being sure not to interfere with the telling of the story. They originally boasted 150 movies with a couple dozen being added each month. Concerned parents would buy the DVD through a regular outlet, download the filters, and then be able to watch movies with their kids (or just by themselves) without fear of seeing something they would rather not see. CleanFlicks was slightly different, having opened up VHS/DVD stores and sold the clean versions directly. There was a third company, whose name I cannot find but will call ATC, wherein you would send in the VHS or DVD you bought, which they would destroy, and send you back a clean version.
Thsi created a lot of consternation in Hollywood, and before long, lawsuits were filed by both the Directors Guild Association (DGA) and a little bit later the Motion Picture Association of America (MPAA). Both rested their initial claim on Freedom of Speech. They were being censored. Their artistic vision was being tampered with. There were various op-eds suggesting that there was a danger in allowing people to automatically avoid exposure to things they found unsettling because there is artistic power in being unsettled.
The counterargument to this was rather simple: People should be allowed not to watch movies that they don’t want to watch. Third parties should be allowed to assist them in circumventing this process. To suggest that people should not have the right to skip over parts of a movie they dislike is to argue that a FFW button is a censorious device. That they skip over a scene because it contains elements that they do not prefer to watch rather than that it is a portion of the movie that they find boring is immaterial. In addition, ClearPlay and ATC could argue that there was no likelihood of confusion of the edited product with the original product since both mechanisms had to be affirmatively sought. This was a bit more difficult an argument for CleanFlicks, because somebody could walk in to one of their stores without realizing that they were being sold a different product.
It became apparent rather early on that the latter argument was winning. Whatever this was, directors were not being silenced. The MPAA and DGA arguments then shifted towards copyright infringement. Namely, these companies were making a profit off the studios’ product, without the studios’ permission. The MPAA argued that these companies would make it unfairly difficult for the studios, who actually created the material, to offer any like service.
Resolution:
It was primarily on the copyright argument that they made some headway and won their suit against CleanFlicks. Because CleanFlicks had pre-emptively sued, their case was further along. However, before a decision could ultimately be made with ClearPlay, congress clarified the copyright rules expressly to allow what ClearPlay was doing. ClearPlay is still around. CleanFlicks lost their business model and went under. Trilogy Studios, who had initially tried to sell their ClearPlay-like product directly to the studios, never tried to sell their product directly to consumers. If I recall correctly, ATC folded early under the pressure of the lawsuits and never got a ruling one way or another.
My Thoughts
In the abstract, I actually sided with the Utah companies on this. Which is to say, I believe that they were providing a service and a separate product from the studios (namely, a player). The only one I hesitated to that about is CleanFlicks (which I will get to in a minute). While it was the case that ClearPlay was making money around the studios’ works, the same can be said for the makers of DVD players in general. DVD player producers have to pay all sorts of patents to make their product, but as far as I know they do not have to pay the studios themselves. It is considered mutually beneficial. I doubt that there is even a contract involved. There is, however, an argument that they waived any right to money when they produced a product specifically to be played in a DVD player. I am not sure why that waver would not also apply to a ClearPlay DVD player, however.
With CleanFlicks it is a bit different. They were selling a product with someone else’s trademark on it, that was mostly full of someone else’s material. And they were making a profit by doing so without any sort of contract with the studio. What I don’t fully know is the extent to which you have to have a contract with a studio in order to sell their product, so long as you paid full retail price for the original. I know this applies to individuals (they can’t prevent me from selling my old DVDs) and I’m not sure how it is different for corporations.
CleanFlicks’s major liability, however, should be the original artistic integrity argument. Since ClearPlay and ATC both required an affirmative step and both involve possessing or having possessed the original product, it can be safely assumed that the person who purchases CP’s or ATC’s services are aware that they are not getting the original product. Meanwhile, someone can stumble into CleanFlicks without really knowing what they’re getting. I’m not sure the degree of disclosure required, but that we even have to talk about it makes me understand where the studios are coming from. So I could go either way on this one.
I would support, I suppose, a disclosure requirement for ClearPlay and (if they still existed) ATC, not only to remind people that they are getting an altered product but also so that the clean-up editor gets appropriate credit for his work. As that is an artistic enterprise, I do believe such disclosure should be appropriate. But, as they often do, I felt that the studios simply went too far. Not only failing to offer a service that people clearly wanted, but preventing anyone else from doing so. And as far as the copyright argument goes, while yes ClearPlay gets money off the deal, not a penny is denied to the studios that is owed to the studios for the product they provided. Their argument, to me, has the stench of their common argument that they have a right to control what someone does with a product after they purchase it. I believe this is true insofar as preventing people from copying-and-distributing, but that’s about the extent of it.
Several studios and SAG were also trying to have generic royalties added to blank VHS cassettes several years back. That didn’t go very far.
Most of my knowledge of copyright law is about thirty years old, but as I remember it…
There are several different rights that copyright law covers, and several different forms. Form PA is the form for songs, and Form TX for printed matter. Form SR covers sound recordings.
The fee structure has changed, but I believe the law concerning collections is still pretty much the same.
In the old days, you could copyright a collection for $20, then file a supplemental form for free to obtain the copyright for any particular piece in the collection. You have to pay for that now.
Anyway, and more to the point, these Utah companies were offering a derivative work, which requires licensing. If SR is obtained for a finished product (which fragments can also be copyrighted as fragments, but require the supplemental form), and the recording is of a copyrighted work, that involves some documents.
You can see where this gets really involved rather quickly.
Say you have a novel adapted for screenplay. The author copyrights his text before it goes to the agent, the editor at the publishing house makes his changes, and those changes have copyright. I’m not sure where the proofing fits into all of this. Then the film rights are sold of to whoever, and the screenplay is written, which has its own copyright; it just went from Form TX to Form PA. When the filming is completed, another copyright is secured with a different form. Now you have a product.
When that product goes to DVD, that DVD has to have copyright; otherwise only the film has copyright protection.
And the derivative work requires a whole chain of permissions, often from people uninvolved with the process.
Say if I had a demo with four songs on cassette that I was hawking. The masters would have copyright, and the cassette would have copyright. If I wanted to make one song available as a single on vinyl, the vinyl would need copyright. That’s the way mechanicals work.
That’s my outdated knowledge, fwiw.
Before they tried to connect generic royalties, they tried to prevent the VCR altogether. When it came to video tapes, they did a reasonable job of preventing unauthorized copying. As someone that would rent anime and then try to copy it, it got increasingly harder as time progressed. Much more difficult than going out nad downloading stuff today is.
I also remember the music industry trying to get generic royalties on blank CDs. They were unmoved when people pointed out that CDs were regularly used for things other than music. In fact, the CD consortium wanted CDs to not be known as a musical device but rather a storage system to replace the floppy.
Ahhhh, the floppy. Remember the floppy?
Isn’t “royalty fee on recordable media to cover the assumed level of piracy” what they do in Canada?
Many western nations incorporate the doctrine of moral right into their copyright laws by way of subscription to the appropriate portions of the Berne Convention. The United States does not, because it commoditizes and commercializes copyright. For the most part I think that’s a good decision on our part because it fosters derivative works, some of which demonstrate tremendous creativity and contribute to our culture in a big way. But in a nation with moral right, this wouldn’t be an issue; CleanFlick would be shut down ab initio for tampering with another artist’s work product.
That’s really interesting, Burt (I meant to say so sooner). I had thought that artistic integrity was indeed protected to some degree or another in the US. Interesting that other countries do so explicitly. I prefer our model. We seem to prevent things from going out of control, but it provides more latitude.
Can I reverse the wiring and watch only the dirty parts?
Believe it or not, Valenti used that theoretical possibility to try to squash the technology. I doubt it can be done, however.
Satire is dead.
So is Richard Nixon.
He lives on in Futurama. Happy voters enjoying some holiday cheer!
Contrast this to The Phantom Edit.
Actually, in the follow-up, I will! I am curious how you would, Duck.
Seems like it would fall under the same legal area as CleanFlicks.
Incidentally, see also the Despecialized Editions. Somewhat similar, although the introduction of “new” material (rather than cutting out existing material) puts it further along the “artistic interference” line. (as a side note, re-editing and reorganizing Star Wars has become something of a cult industry.)
Legally, I don’t think that CleanFlicks (or Star Wars edits) have a leg to stand on as far as redistribution of the edited product goes. They aren’t authorized to redistribute this product unless they can claim that it’s a derivative work sufficiently different from the original as to be legally distinct–and the whole point is that it’s not different from the original except in a few key particulars.
If there were some way they could do this without redistributing copyrighted content, that would be permissible. But then, someone else already did that.
As for artistic, I’ve never put much stock in “artist’s intent” other than to maybe look it up if I can’t puzzle out (or invent from whole cloth) a meaning for what I’m watching. I’ve spent quite some time creating my own personal versions of ebook files; books from authors I quite enjoy, but, y’know, the grammar’s a little off here, there’s a typo there, I don’t think that character would say this, it would be cooler if that other character did that instead…
*****
While we’re on a This Is Like That kick, compare ClearPlay and RiffTrax.
I think you’re right that CleanFlicks (& TPE folks) didn’t have a legal leg to stand on under the law. I’m not convinced that it is good law, though. It seems to me that as long as they are not depriving the original producers of original profits, they should be allowed to modify material. In order words, as long as CleanFlicks could demonstrate that they destroyed an original copy (which was fully paid for), I don’t see why they shouldn’t be able to sell their own. The original producers got their money. I think the purchaser might should have right-of-ownership at that point, to do with what they please (except, of course, distributing more copies than they purchased).
(My primary concern with CleanFlicks is confusion over whether or not the purchaser got the original product or a modified one. Since they had a storefront, that’s a bigger issue there than with the other one which required you send the original VHS in.)
Well, I’m not discussing what the law should be. What I think the law should be is that as long as the righstholder is getting compensated for the creation of a copy, then the modification of the content in that copy is irrelevant, so long as the buyer is aware of that modification.
I mean, movies get edited for TV (or airplane showing) all the time. It’s not like CleanFlicks invented the idea.
Yeah, we agree on what the law is. I was going to an area of potential disagreement. Turns out we agree there, too. How boring.
Was therea followup?
As it happens, “Roger”, there was.