Cutting sex, violence, and profanity from movies is normally considered censorship. But if studios and directors like Steven Spielberg and Steven Soderbergh win a copyright suit against 11 small companies that permit consumers to avoid such scenes, free speech will be the loser, not the victor.
Most of the companies are based in Utah and offer families "clean" versions of popular films. Since they each use different methods for bypassing potentially offensive portions, the directors' and studios' claims against some are more legally compelling than others. Clean Flicks, for example, makes a master copy of Saving Private Ryan, editing out the bullet shots in the movie's first battle scene. It then duplicates the revised version for rental or purchase by the "members" of its franchises. Another company, ClearPlay, creates a software filter or mask that is downloaded to a special DVD player. Once a consumer pops an unaltered Erin Brockovich DVD in the player, the software simply instructs the player to mute Julia Roberts' foul language. Trilogy Studios of Salt Lake City takes this process one step further: Instead of skipping over the nude Kate Winslet posing for Leonardo DiCaprio in Titanic, its latest software tells the DVD player to display a picture of her body clothed with a corset.
Until last year, all of these companies' operations were so small-scale that no one in the motion picture industry bothered to challenge them. But last March, in a bid to attract Hollywood support for its software, Trilogy Studios displayed its set of substitutions to a group of elite directors, including Rob Reiner and Wes Craven. The directors saw the corset and were appalled. Around the same time, the Albertson's grocery chain announced nationwide plans to begin selling another one of the companies' "E-rated" edited movies. Those moves motivated the Directors Guild of America. The editing and scene-skipping companies "have decided what the vision of the movie is to be," said Carol Stogsdill of the directors' guild. "Copyright is about ownership, and these guys don't own it."
But the directors don't own the copyrights, either. Those are held by the studios. That left the directors charging trademark infringement, citing a 1976 court precedent in which the British theatrical group Monty Python successfully sued ABC for broadcasting a truncated version of its Flying Circus. But because customer confusion is central to proving a trademark violation, in the Clean Flicks case, the directors argue implausibly that a consumer who specifically sought out an edited version may have confused it with the original.
Although the studios were reluctant to get involved initially, they had a stronger case: They could legally claim copyright infringement if someone merely copied and redistributed a work—or made a modified "derivative work"—even when the consumer knew it is not the same as the studios' version. The studios' hesitance to join the suit could have led to a reprise of the colorization debate of the 1980s. There, directors had to fall back on arguments about their "moral right" to keep black and white films from being colorized, even after they had sold their rights in the intellectual property to corporate owners.
The French term droit moral,or"moral rights," is perhaps better translated as the right of personality. It implies that the artist's personal integrity is at stake in the way his works are seen and heard. It means that Steven Spielberg is personally harmed whenever someone knowingly views an altered copy of Saving Private Ryan. Theoretically, these rights stem from continental European philosophies, in which a copyright is a property right or a personality right of the artist, justified because his artwork springs from his creative genius. France has taken this to an extraordinary degree: An artist who sells a painting can still stop its owner from destroying it, and an author can force his publisher to stop selling a book if he no longer believes in it.
Traditionally, America has had little patience for such airy theories of copyright. Our law explicitly grounds copyrights (and patents) in the utilitarian bargain between a creator and her public—not in theories of intrinsic moral rights. Authors write books for the enjoyment of readers and for the advancement of public knowledge. In exchange for this benefit to the public, the Constitution empowers Congress to grant them certain exclusive rights for a limited period of time, so as to make money for their efforts. While the First Amendment protects artists from government censorship, it also protects those who would criticize or mock an artist's vision. The United States acceded to the Berne Convention—the main international copyright treaty in 1988—which subsequently granted limited moral rights to painters and sculptors, and this approach to copyright has in recent years been creeping into U.S. court decisions. This notion took another step forward last week when the U.S. Supreme Court ruled in Eldred v. Ashcroft that Congress' 20-year extension of copyright terms did no injustice to the copyright bargain. In a 7-2 decision, the court barely addressed First Amendment concerns about an expansive reading of copyright law.
The tensions between moral rights and free speech can't be avoided in the Clean Flicks lawsuit, where rival worldviews—copyright for "authors" versus copyright for "readers"—butt heads. Although the studios and directors charge all 11 companies with copyright and trademark infringement, the editing and filtering companies make different arguments in their defense. The Clean Flicks folks say they respect those copyrights by only making a single edited copy for each original video or DVD they purchase. Moreover, certain acts of copying can be excused under the "fair use" doctrine, which permits individuals and companies to make limited uses or noncommercial copies of others' copyrighted works. But recent court decisions have limited businesses' ability to claim "fair use" as a defense. In other words, it may be legal for a consumer to cut offensive scenes out of her own videotape, but illegal for a company to do it for her—even though Clean Flicks claims that it is merely offering a service for its "members."
Clean Flicks makes a broader point, too: They say they just want to show their families movies free from offensive content and claim that studios secretly support them even if the directors don't. In fact, it is possible that the studios were headed in that direction anyway. As consumers have flocked to the DVD format, studios have loaded on extra features like directors' interviews, wide-screen versions, and even (in Moulin Rouge) alternate camera angles. Just as they offer versions edited for airline flights or TV broadcast, the studios could easily recut many R-rated films as PG-13 or PG and even release them on the same disc. The recording industry already sells edited songs with sexually explicit lyrics side-by-side with the unexpurgated versions. But in Hollywood, directors have so much power—and see themselves largely as European auteurs—that they resist multiple versions of their work even when the studios think it could make them more money. In the end, directors may just be hurting themselves. As the best-selling author and screenwriter Michael Crichton has said, "The smart move is to release the bowdlerized versions yourself and make the money. The dumb move is to fight it."
Because ClearPlay and Trilogy Studios do nothing to physically copy or alter DVDs, they are not vulnerable to charges of copyright or trademark infringement. Even though the DVD viewed by a consumer is completely unaltered, a viewer sees it differently because he has bought the Trilogy or ClearPlay software and obtained a filter that tells his DVD player where in the movie it should skip over a scene. Although the studios call that a "derivative work," it is much more like a book review referencing certain pages and paragraphs in the book.
The only way to argue against this kind of skipping technology is to empower the director with the European-style moral right to force his audience to experience the movie only as he intended it. On the other hand, the filtering companies have a free-speech right to tell consumers at what point in a movie they will find offensive portions, and consumers have a right to heed them and press their remote controls. No law bars these software companies from taking the next step and creating tools to automate the process of avoiding offensive scenes.
The current lawsuit is a harbinger of exactly what could be precluded if "moral rights" continue to grow on U.S. soil: Much less freedom to play with our cultural heritage. Viewed in a different light, a victory for either Clean Flicks or Trilogy and Clear Play could unleash considerable creativity. Take the "Phantom Edit," an anonymous alteration of Star Wars: The Phantom Menace that cut 20 minutes from the film by deleting scenes with the universally annoying Jar Jar Binks. Traded widely on computer file-sharing services, the bowdlerized film would clearly run afoul of the current copyright law's bar on preparing "derivative works." And what a tragedy that would be. What about a software "mask" that instructs DVD players to simply skip over Jar Jar? Sounds pretty attractive, huh? Great things can be born from such small ideas.