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Censorship as Transformative Use – The “Clean Flicks” Case |
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Anonymous (Name Withheld on Advice of Counsel) writes "Julie Hilden, a FindLaw columnist, wrote in the beginning of September about the “Clean Flicks” case - the small video rental chain which purchases movies on tape, and edits everything its customers are expected to dislike – sex, violence and “bad” language, before renting the movies out to customers (THE "CLEAN FLICKS" CASE:
Is It Illegal To Rent Out A Copyrighted Video After Editing It To Omit "Objectionable" Content?).
According to Hilden’s column, Clean Flicks decided to base its legal strategy mainly on First Amendment rights. Ironic as it may sound – “the private censorship of films as a First Amendment right” – Clean Flicks is expected to find a considerable support from feminists` writings on the First Amendment. But wait until you hear Hilden’s analysis. According the Hilden, Clean Flicks’s actions may not be moral, but are still protected under the fair use exemption as a “transformative use”. If to use copyright’s law terms, it is indeed “original” to observe mere omitting of scenes from movies as “transformative”, especially when the new modified version added nothing to society’s creative commons. Apparently, in our post-modern world there is a thin line between censorship and creativity. Maybe its better to save the scarce resource called fair use for more appropriate circumstances.
Paradoxical as it may sound, Clean Flicks strongest supporters could be Hollywood’s studios who would be the big beneficiaries from having the First’s Amendment stamp on the absolute proprietary and editorial powers they already possess regarding their movies.
So maybe it is time that the United States would follow Europe’s long tradition and grant film directors and screenplay writers a statutory moral right of integrity, which itself would be subjected to a fair use exemption. That way, real parody would be permitted but real censorship would be prohibited. Under the current legal regime, film directors, who have transferred their copyrights to the studios, have no direct legal claim against Clean Flicks; except maybe an unfair competition claim under the Lehman Act which becomes doubtful whenever Clean Flicks declares its full responsibility for the omissions and disclaims any connection of the original creators for such a conduct. The "Clean Flicks" case is an interesting one and I've been planning to write about it. However, I couldn't disagree more strongly with the submitter that the US should adopt moral rights of integrity."
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Average Score: 4.33 Votes: 3

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"User's Login" | Login/Create an Account | 3 comments |
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Re: Censorship as Transformative Use – The “Clean Flicks” Case (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, September 17 @ 11:40:39 EDT | I don't see the problem with Clean Flicks. They are not stopping anyone from getting the "dirty" version. They give credit to the original creator, and I presume if they make any money they will pay the copyright owner for the use of the work.
After all we have abgridged books.
The bigger issue is whether anyone can take a digital work, edit it and put out his own version. Some digital works, like certain games, actually encourage this (i.e. design "boards" on which games are played).
The new technology is making new kinds of expression possible - what's wrong with that?
...richie |
[ Reply to This ]
Re: Censorship as Transformative Use – The “Clean Flicks” Case (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, September 17 @ 17:10:10 EDT | I don't think the trademark or unfair competition claims are very persuasive, given that consumers probably know what is going on here. (And by the way, I think the submitter meant the Lanham Act, with all due deference to Bruce Lehman as an important guy...)
The right to publicity claim is an interesting idea, but the article's author suggests no one has raised it.
I think the interesting question posed by Clean Flicks is whether a retail outlet can serve as a proxy for the editing intrests of numerous individual consumers.
Certainly we're all allowed to control the way we consume content -- e.g., we can read the last few pages of the book when we're half-way through the thing and then decide not to read the rest; we can FF past the salacious scenes of movies if they make us either socially unconfortable or bored. (The DMCA, of course, brings our ability to do this into question insofar as it involves "circumventing" something or another...) So what Clean Flicks is doing is something that the end user has the right to do, essentially, once the copy is rented.
Additionally, if a consumer purchased a copy of a movie (without some funny licensing agreement or some DMCA techno-wrap), she could presumably splice the thing herself under first sale rights. The problem for Clean Flicks, though, is that they're doing the splicing and then distributing the work (calling into question rights of distribution under copyrught law) + they apparently have agreed to some licensing provisions to obtain the movie in the first place.
Query: putting aside the law, what is the policy justification for forcing consumers to DIY when a substantial number of them would like to do the same thing with the product once they rent it, and have the right to do so?
Query II: what if the rental company was removing the advertisements placed at the beginning of the tape? Same analysis? |
[ Reply to This ]
Re: Censorship as Transformative Use – The “Clean Flicks” Case (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, September 18 @ 01:07:04 EDT | However, I couldn't disagree more strongly with the submitter that the US should adopt moral rights of integrity.
I'm a European, and I am at a loss finding any evidence that integrity rights has an adverse effect on the balance of copyright law.
Please enlighten a slow old-worlder fumbling in the dark. What's the big deal?
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