Note: LawMeme considers the Clean Flicks case so important that we've created a new "Clean Flicks" topic and intend to post an extended series of articles closely following this case. For the most part this series will concentrate on only one of the companies involved: Trilogy Studios, developer of Movie Mask. The reason is that Movie Mask is the most transformative of the various technologies involved in this case (an indepth review of the software is in the works).
This article is the first in the series. The topic icon is supposed to be a bar of soap - Clean Flicks, soap (hey, what can I say? I'm neither a comedian nor a graphic artist).
Article the first, in which the President of the Directors Guild of America, Martha Coolidge, disses giants of the art world in a misbegotten attack on new annotating technologies.
After speaking out in a number of different venues against the annotating/editing practices of a several companies, inlcuding Clean Flicks, ClearPlay, MovieShield and Movie Mask, Ms. Coolidge uses her platform in the DGA's bimonthly magazine to provide depth for her position (Letter from the President September 2002). Her reasoning is faulty, to say the least, and LawMeme points out the flaws...
What [the above companies] all have in common is that they are taking films and using technology to alter them without permission from either their directors or their copyright holders.
And this is wrong, because...? Simply by cutting and pasting from Ms. Coolidge's letter, I have altered it without the permission of the copyright holder. When I printed out the article in order to write some notes on it, I highlighted the above paragraph (again, a most heinous alteration). Memo to Ms. Coolidge: Altering copyrighted works without permission is not always wrong. In any case, the language used here is exceedingly imprecise and misleading for other reasons.
Let's take the case of Movie Mask for example. How does Movie Mask alter films? The Trilogy Studios developers do not break into Hollywood's vaults and start cutting celluloid (or invade the AVID digital editing suites). Movie Mask software does not (because it cannot) alter a single bit on a physical DVD purchased by the consumer. So, in fact, Movie Mask is not altering the film at all, it is altering how a consumer experiences the film, which is an entirely different thing.
In fact, what Ms. Coolidge is claiming is not the right to prevent alteration of a work, but the right to control how an individual experiences and interacts with a work. I am reminded of the scene in A Clockwork Orange in which Alex is forced to experience a film in a manner similar to what the DGA seems to desire (Alex_Eyes_Open.jpg). This also brings to mind the idiotic comments of Jamie Kellner, chairman and CEO of Turner Broadcasting, who claimed that going to the bathroom during television shows was barely tolerable as a violation of the viewer's contract with the broadcaster (Top Ten New Copyright Crimes).
Is it right to take finished films that have been created by someone else, change them to suit your whims, then profit by the commerce of these grossly altered products - and at the same time portray these versions as still being the works of their original directors?
Well, when you put it that way. However, this language is, again, misleading. How, I ask, is Movie Mask doing this? Movie Mask is not selling any altered products (grossly or otherwise). Hollywood sells the DVD; Movie Mask provides entirely independent annotations. The annotation and the DVD are put together by the consumer. Furthermore, is there any question that the consumer does not realize that they are experiencing the work in a way different than intended? Movie Mask does not surreptitiously alter the playback of the DVD, it must be consciously told to do so by the consumer.
Four Really Bad Examples
After repeating the above point, Ms. Coolidge then goes on to provide the heart of her argument and undermine it all at the same time:
Regardless of the motives of those who perform these alterations, it is wrong for them to do so. All creative works, whether they are films, novels, paintings or comic books, are the output of their creators, and stand as representatives of their creators' intentions. These intentions could be to inform, to instruct, or merely to entertain - it doesn't matter. Da Vinci's "Mona Lisa," Spielberg's Saving Private Ryan, Twain's Huckleberry Finn and Frank Miller's The Dark Knight are all equal in the sense that they are what their creators wanted them to be.
Strange that Ms. Coolidge doesn't mention music when she lists creative works. You see, songwriters have no rights when it comes to how their works are interpreted, as long as they are payed for it. This is what explains William Shatner's discography, including his classic version of Lucy in the Sky with Diamonds [Real]. I expect that Ms. Coolidge will insist that directors get the verbal permission of the songwriter before putting their songs in a movie, rather then simply relying on the mechanical license.
Of course, a film stands as a representatives of its creator's intentions. However, that doesn't mean a whole lot when the film encounters the viewer. Again, this isn't about altering films (which doesn't occur) but of controlling how a viewer experiences a film. If I talk to my friend as we watch a DVD, that alters how we experience it. So what? Is this some violation of the "creator's moral rights."
Damn right the intentions of the creator don't matter. The creator may intend a film to instruct or inform, but the viewer may choose to be entertained instead. Apparently, this is wrong. Bad viewer, bad.
You know, if I were going to make an argument opposing adulterating art on moral grounds, I would certainly not pick the list of
works Ms. Coolidge has chosen. Real poor choices, Ms. Coolidge, real poor:
DaVinci's Mona Lisa. Ever heard of Marcel "She has a hot ass" Duchamp, Salvador Dali, or Andy Warhol? Do I even have to go into the artistic importance of Marcel Duchamp's "desecration" of the world's most celebrated portrait? Perhaps I can suggest Art for Dummies?
Marcel Duchamp's revolutionary work is also relevant in another sense. Duchamp did not deface the original La Gioconda, he drew in pencil on a cheap postcard reproduction. In fact, he defaced a number of different postcards. There is a moral difference between altering a work, and altering reproductions of a work. Even more of a diffence if you are merely providing annotations for a reproduction of a work like Movie Mask (which would have been like Duchamp providing transparent overlays of a mustache that you could put on your own postcard reproduction of the Mona Lisa).
Steven Spielberg's Saving Private Ryan. Jon Katz wrote a very interesting review of this great movie, in which he "suggested that the hype preceding the release of the movie had altered the ability of most people to approach it in a fresh or detached way" (Reconsidering Saving Private Ryan). Katz makes a good point: the marketing of a movie can change how the audience experiences the film. From this it would follow that directors have a moral right to creative control over trailers (which are often highly edited versions of the film) as well as all marketing (which generally uses images from the movie). Logically, there follows a moral imperative that all reviews be approved by the director; else the viewer might experience the film in a manner not intended by the director (especially if the reviewer might reveal a "plot twist").
Ms. Coolidge's submission also raises the question of the "Director's Cut." If the movie is as the creator intended, why are there "Director's Cut" versions of DVDs?
There is also the question of which director should have control of the movie. Should today's Spielberg be permitted to alter the artistic vision of the younger Spielberg? Changing a word in E.T., for example, from "terrorist" to "hippy"? Which is the authentic version? Should it be permitted, using a variation on Movie Mask's technology perchance, for a director to change works when he/she decides that an older version isn't what they would prefer? That way those original ET videos can be changed after they've already made their way into the viewers home. That's the only moral solution, isn't it?
Frankly, the DGA doesn't get it. Movie Mask is an opportunity for the movie making community. Costume designers aren't going to be offered many opportunities to provide commentary tracks on those "Special Edition" DVDs. Movie Mask let's them provide their own commentary that young, aspiring designers can download for educational purposes. Directors can easily revisit older movies and provide perspective. Maybe the studio is not interested in the expense of creating and pressing a new DVD. Movie Mask means that you don't need studio permission to enhance the movie on DVD.
Mark Twain's Huckleberry Finn. Has there been a book more often butchered by Ms. Coolidge's colleagues than this, the finest American novel written? One could write a PhD thesis on the racial cowardice and interpretational idiocy of the many different film and TV versions made of this novel. Which brings up the point of adaptations. What is moral about adapting any work without the creator's permission? Is it because Twain is dead and copyright has expired that makes the difference? Does Ms. Coolidge have a consistent theory of moral rights? Why do directors get final say with regard to the creativity of everyone who works on a film?
Frank Miller's The Dark Knight. Perhaps Ms. Coolidge doesn't realize this, but Frank Miller did not create Batman, Bob Kane did. Batman is now a property owned by DC Comics, and has been drawn and interpreted by many different artists. To some extent, "dark" interpretations of Batman (in the Tim Burton movies, for example) stand as a representative of Frank Miller's interpretation of Batman. How much creative control did Frank Miller have with regard to the movies?
Hollywood Plays the Hypocrisy/Morality Card?!
It is hard not to laugh when a major Hollywood player talks about hypocrisy and morality, but I will try to type through my chortling. Here are Ms. Coolidge's words:
Further, to alter these creations in the name of "morality" or "family values" is the height of hypocrisy. What kind of morality and values does it teach our children when we say it is OK to cut scenes from a film, to cover up part of a painting or rip pages out of a book, simply because we don't like the way something was portrayed or said by somebody else?
I don't know, that parental choice and guidance are things to be respected? Say my high school teenager is writing a report on former President Jimmy Carter and wants to cite the famous interview in Playboy. Apparently, it would be inappropriate of me, as a parent, to photocopy the pages of the interview from the magazine and hand them to my child. I would be a hypocrite if I didn't let the teenager have access to the entire Playboy magazine.
Perhaps the lesson is that as responsible and free human beings, we are permitted and expected to make independent judgements regarding what we read, see and hear. We might also learn that freedom of thought requires the ability to select and filter information. On the other hand, I suppose it could be hypocritcal and morally heinous to give your children history lessons concerning WWII by showing portions of Jerry Bruckheimer's, ahem, Michael Bay's Pearl Harbor without also showing the tedious soap-opera romantic triangle.
Of course, I am concerned with what it teaches our children when supposedly responsible adults demonstrate atrocious logic:
What does it teach our children about America if we allow technicians to remove five minutes from the Normandy landing scene of Saving Private Ryan to make it more "palatable," when Spielberg's overriding intent was to portray in graphic detail the horrors our fathers and grandfathers went through in order to literally save the world?
Perhaps Ms. Coolidge needs to be introduced to a little concept known as "proximate cause." You see, under the doctrine of proximate cause, it isn't the "technicians" that cause children to miss out on a few gory details, it is the parents decision to use such technologies that causes the footage to be removed. If the parents didn't use this technology, then the children would not miss out on a few scenes from Saving Private Ryan. That makes the parents, not the technicians, responsible.
Of course, Ms. Coolidge can't say that it is the parents fault, since they wouldn't get very far suing parents.
Again with the intent of the creator. Didn't we already decide that it was irrelevant? After all, what if a parent thinks that, instead of showing the horror of war, Spielberg has created a gory, poetic ballet of special effects?
Furthermore, what if the person making the decision is one of our veterans? I can imagine a grandfather wanting to teach his grandchildren about his experience of the war, but wanting to tone down the gore somewhat. (Hey, I can make cheap rhetorical appeals to the dignity of our veterans too, can't I?)
Speaking of cheap rhetorical appeals, Ms. Coolidge ends her polemic by citing some of the best work of some of our best directors whose work has been altered. Although her argument is based on the equal value of all artists moral rights, she makes her argument more appealing by invoking some of the classics. Here is her argument without the associated big names:
It is a clear misrepresentation to rent or sell films that, despite whatever blinders have been put on their vision, will always be associated with their directors - yet, this is exactly what these companies are doing, and exactly how they are making their money.
Please explain to me how Movie Mask, which provides independent annotations that must be associated with the DVD by the viewer, misrepresents the directors works. How stupid does Ms. Coolidge presume viewers to be? Scratch that last question, she works in Hollywood. Explain to me how making money providing independent annotations is wrong. If making independent annotations is wrong, we can start going after every author who has ever written about particular movies.
What seems wrong to me are the clear misrepresentations put forth by the President of the Directors Guild of America.
Coming Next: Some silly things directors say.