June 29, 2005
DVD-editing Software Raises Ire of Hollywood, Interest of Courts
CHAMPAIGN, Ill. -- What Hollywood studios call censorship and copyright infringement, software companies call freedom and parental choice. Any wonder that the legal issues raised by new film software is winding up in the courts and before Congress?
The technology that has Hollywood angry allows consumers to skip over scenes and mute words of copyrighted films. The technology comes in several forms. CleanFlicks Media offers more than 700 DVD movies that are digitally edited to remove profanity, nudity, graphic violence and sexual content. CleanFlicks says it complies with copyright law by buying a copy of each video it edits. The edited videos are then rented to consumers by the Utah-based video chain.On the other end of the software spectrum, ClearPlay licenses what it calls advanced parental control filters on DVD players. The filter skips movie frames based on a menu of options selected by the viewer, deleting scenes containing violence, sexual situations, vain references to God, ethnic slurs and other objectionable content. Unlike CleanFlicks, ClearPlay does not edit the movie; instead it sells software that controls how the movie is displayed on the home screen.
What the two companies share, however, is the contention that Hollywood studios, despite owning the copyrights to movies, "should not dictate what people watch in their own homes," writes Carrie A. Beyer in the University of Illinois Law Review.
"The studios, on the other hand, claim that third-party editors violate their copyrights by copying or altering the content of their movies," wrote Beyer, an editor at the law journal. The conflict between the parties is, at its essence, who controls movie content after it leaves the big screen.
Beyer pointed out that there is a long history of editing or censoring books for commercial as well as moral reasons. "Condensed books leave the major storyline intact, but remove words or descriptions that an editor deems superfluous."
Wal-Mart refuses to sell CDs that require the attachment of a parental advisory sticker. "Artists producing explicit music, therefore, must choose between creating a 'clean' version for Wal-Mart to sell and simply not selling the music through that particular retailer," Beyer wrote.
In the world of home-viewed movies, the next step could be changing an image on the screen to match a user's preference. In one display of the power of emerging technology, a company showed a revised version of the nude-sketch scene in "Titanic," in which the actress Kate Winslet appeared, not unclothed as in the original, but clad in a computer-generated image of a corset.
Needless to say, litigation is under way. In a pre-emptive move, CleanFlicks sued Martin Scorsese, Steven Spielberg, Robert Redford and other prominent directors in Colorado federal court seeking a declaratory judgment that its activities are lawful.
The directors countersued, for what they say are violations of the federal Lanham Act (for false designation of origin) and unfair competition under California law. They have included ClearPlay and other content filterers as counterclaim defendants.
The filmmakers charge that the companies are trading on their names by wrongly circulating versions of their movies that they never approved of. Hollywood studios, meanwhile, allege that the cleaned-up movies are both "second-generation copies" with inferior technical standards and "derivative works" of copyrighted material, thus violate the trademark-dilution provisions of the Lanham Act as well as U.S. copyright laws.
Analyzing the sundry legal arguments, Beyer concluded that copyright laws are elastic and that technology will continue to alter the boundaries of copyright infringement, leaving directors and studios a step behind third-party editors with the latest digital equipment.
"By releasing their own 'clean' versions of the films, the studios would meet the demands of consumers while maintaining control over the copyrighted work," Beyer wrote. "Studios could either produce an entirely separate DVD or include a 'clean' version on the same DVD as the original movie." By competing in the edited-movie market, she noted, the studios could undercut the fair-use defense of the editing companies and reassert a filmmaker's right to protect intellectual property. Filmmakers already cut big-screen movies for television programming and for "airline movies."
In April 2005, Congress clarified aspects of the dispute by passing the Family Entertainment and Copyright Act. The law made it a federal offense to videotape a movie in a movie theater and increased the criminal penalties for pirating material from a film, especially pre-release material.
On the other hand, Congress amended the copyright law to make it lawful for ClearPlay and other companies to distribute filters to a "household for private home viewing from an authorized copy of (a) motion picture."
The law, however, did not address the Lanham Act arguments against ClearPlay and others for dilution of a movie product, and did not protect film "masking" that adds or substitutes material to a film rather than skips over or mutes objectionable passages.
In short, expect more litigation as well as unforeseen consequences -- such as technology that takes the clothes off of actors in G-rated movies.
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