« The Case Against (GM's) Bankruptcy | Main | Laws We Can’t Afford »

July 12, 2006


Feed You can follow this conversation by subscribing to the comment feed for this post.

Doug Lichtman

Randy -

The Family Movie Act makes this whole case hard to understand. As you say, that legislation allows for a very similar product, namely one that dynamically does the editing rather than saving the edited version in fixed form. But gosh, knowing that, what does Speilberg gain from winning this case? Not money, because as you point out "clean movies" are likely good for business. Not control, because families can use the other products to accomplish the exact same thing. Thus the case shuts down one business model but leaves intact another; and from afar, I don't see them as sufficiently different to warrant all the fuss. In short, Speilberg lost in Congress (surprising in and of itself) and that was the war.


One quibble with your analysis: It's Burger King where you can "Have it your way." McDonald's was averse to custom orders in the past, but has made recent strides.


It is hard to figure what the directors were so concerned about here, especially in light of the FMA. But if the issue is control--i.e., that movie makers simply don't want bootleg copies of their films to exist--then the fixation point might explain why they kept litigating in Clean Flicks. That is, the directors might not object to simply having families see transient, expurgated versions of their films, but they might be more concerned if those versions become fixed in a tangible medium of expression that can be sold or uploaded to the internet. So my guess is that Spielberg et al. aren't really worried about families seeing cleaned versions of their films, but about the slippery slope that Clean Flicks represents: the freedom for users to edit films without authorization and save them in fixed form so they can more easily be distributed or sold.

As for Randy's question about studios' refusal to license, one example from the music industry is Fisher v. Dees (9th Cir. 1986), where the owner of the rights to the song "When Sonny Gets Blue" flatly refused to license Rick Dees' parody version of the same. Dees performed the parody anyway, and the Ninth Circuit held that the parody was fair use. It's always hard to tell from these cases though whether the owner's purported position--"I won't license that use any any cost"--really just means "You haven't offered me enough money yet."

Keith Demko

I was surprised even to learn about the existence of Clean Flicks ... no matter how pure their motives might be, I just can't stomach the directors' hard work being tampered with like that, so I have to wholeheartedly support this decision


Yes, there is an infamous example of a director turning down TV money because of edits: Warren Beatty went to a DGA arbitration to stop ABC's edits of "Reds" for network airing and won. Cost the studio millions but Warren didn't get hurt. The picture was so unprofitable he would never see a penny anyway.

The Law Fairy

This is a really interesting issue, and thanks for highlighting the case. It almost sounds as though the court is scooting copyright analysis a bit closer to moral rights for, at least, multimedia and film content creators. I'd be interested to learn if the court even had a limiting principle for its holding. Specifically, I know that for an artist to qualify for protection under the extremely narrow Visual Artists Rights Act, two requirements are that his work be circulated in very limited release and that his reputation be damaged by the destruction of his work. The holding against CleanFlicks, however, seems to give exponentially broader rights to holders of movie copyrights.

The cynical analysis of this, as you note, is that it's not about creative vision, but about money. But I think this begs the question: under the Copyright Act, isn't the latter supposed to simply compensate the former (the motivation for which presumably exists independant of the compensation), rather than provide the entire motivation? And if so, why (other than the fact that starving artists don't have money to lobby the way Spielberg does) does basic copyright protection end up giving MORE rights to those who don't qualify under VARA?

Bruce Boyden

There may still be a practical impact here even if the FMA leaves the on-the-fly editers intact. First, are the on-the-fly editers as good? They may be poor substitutes for a fixed version. Second, even though there was no circumvention claim here, the opinion noted that the DVD-R copies lacked any content protection. Shutting them down may have been a way of closing that hole.

Interesting that there was no circumvention claim though.

Eric Rasmusen

I haven't read the opinion, but the result makes sense just as a matter of formalism. Cleanflicks, after all, copied the movies. They just raised, as a defense, that they bought and destroyed one movie for every copy they created. The statute doesn't give them that defense, nor do legal principles generally. I can't defend my stealing from you on the grounds that I did a big favor for you the next day.

Under the formalist approach, this is an entirely different case from on-the-fly modification (though the same, with an opposite outcome, as time shifting). Also, Cleanflicks could continue operating if it did the following: 1. bought a copy of the movie. 2. erased the dirty bits. 3. added software that closed up the gaps when the movie was viewed. In that case, there would be no copying, and hence no infringement.

We might compare to book publishing. Under Cleanflicks' past business practice, I could thwart price discrimination by (1) Buying a paperback, (2) burning it, (3) Issuing one copy of the book as a cheap hardcover.

families are forever

this is dumb. the directors say that it is taking away from their artistic freedom! that is the biggest piece of crap i have ever heard! sorry that i have to take away your "artistic freedom" so that my 5 year old doesnt have to hear the f bomb every other word.if that is what the world sees as artistic and creative and whatever, this world is really worse off than i thought.

Keith Hill

Let me lay out what I believe the whole "artistic work" process really goes like. Screenwriters are hired by a company to produce scripts. Those scripts are copyrighted by the company who hired the screenwriters. The company then hires the affronted director to "bring the film to life." So really, when it comes down to it, usually the director didn't even write the script ... and, usually, they don't even hold the copyright. Granted, they worked to bring the film together, even rewriting the script as they saw fit. They worked on the film, that's all. Why didn't the actors sue too? They worked on the film, too. They are the ones being edited out of the films. They must hate having their breasts and butts being cut out of movies, after all, think of all the emotional dialogue and acting that usually accompanies such a scene. Its a disgrace! How dare Clean Flicks! I want my breasts on screen and that's that!

Back to the poor, poor directors. They, appalled by the way Clean Flicks have censored their pure artistic dribble, feel they should get more money ... right? Why not? After all, it isn't like Clean Flicks didn't already pay for the copy it rented out, did they? It isn't as if customers, wanting the "creativity" removed from the films, rented and bought enough edited movies to keep them expanding, is it? When it comes down to it, the directors are just greedy. Almost every one of them don't mind their artistic creations "mutilated" for TV and for airplanes, if some more money makes it their way. Granted there have been exceptions, but not enough to count on both hands. Directors don't create for free, after all. That would be stage directors and writers. To get into the big movie biz, you have to want the money that comes with it. It doesn't matter that Clean Flicks was actually generating more revenue for the companies who sold the videos than they would have earned otherwise. Doesn't matter that they expanded the market. They changed things around. Shook things up. It isn't just for adults now! Kiddies can see Saving Private Ryan and parents don't need to worry about the emotional scars! The directors, quite obviously, didn't get a big enough bonus in their paycheck to make it worth the "mutilation" of their art.

Maybe, just maybe, some people out there did not want to watch the video with its full "artisitic value" intact, opting instead for the clean version, one where they don't feel guilty about watching. What is wrong with that? Helping others feel better about themselves? Shading the eyes of the public without actually shading their eyes? And have Kate's breasts actually become artistic freedom?

Its a great country we live in. Free to watch all the sex and violence we want, but heaven forbid we allow someone to cut out the gore and nudity for, and only for, the people who don't want to see it. Hear no, see no, speak no art.

The comments to this entry are closed.