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Last week, LawMeme took a look at what the President of the Directors Guild of America (DGA), Martha Coolidge, had to say about the "Clean Flicks" case (DGA Pres to Duchamp: You Scoundrel!). In the second article in our ongoing series, LawMeme takes a look at what various members of the DGA have to say, as recounted in Ray Richmond's article in the September 2002 issue of DGA Magazine (They're Editing My Film!).
Mr. Richmond begins his article with the traditional parade of horribles: Rhett Butler saying, "Frankly, my dear, I don't give a hoot!"; the Sundance Kid shouting, "Shooooooooot!"; and the Saving Private Ryan Normandy Beach sequence edited to show no blood.
One might have expected Mr. Richmond to have used actual examples of so-called unauthorized editing. Unfortunately, from my review of the annotations available from the several companies being challenged by Mr. Richmond, I couldn't find a single one that has produced annotations for either Gone With the Wind or Butch Cassidy and the Sundance Kid. There are annotated versions of Saving Private Ryan, which I have not screened, but do these annotated versions really show only benignly bouncing bullets? Strange that in such a long piece, Mr. Richmond fails to provide any concrete examples of this "unauthorized editing" and two of his three references are to films that have not been annotated at all.
Of course, this only scratches the surface of why these three films are bad examples for Mr. Richmond's parade of horribles.
Really, are there people who are going to go out of there way to replace "Damn" with "Hoot" in GWTW? One might think such people would likely be more offended by the implied rape off screen. Someone familiar with copyright law might also be reticent to choose GWTW as an example of a work that should never be altered or seen in a different light. To me, it brings to mind the parody of GWTW, The Wind Done Gone, which Margaret Mitchell's estate attempted to suppress ("Wind Done Gone" Ruling Gives a Damn). Mr. Richmond seems to think that there should never be a "Wind Done Gone" version of Victor Fleming's film. I think such a parody would be a swell idea.
As far as editing out the "S-h-i-i-i-i-t-!" from BCATSK goes, I'm pretty sure that has already happened. You see, "shit" is one of the "Seven Dirty Words" that you couldn't say on broadcast television. Of course now, or since about 1999, you can get away with saying "shit" on television, at least in the late evening. Before that, however, saying "shit" on television was essentially verboten. Since BCATSK is a "Movies for a Saturday Afternoon" perennial, I find it very likely that "S-h-i-i-i-i-t-!" has been edited from BCATSK before, for television broadcast. Maybe it wasn't replaced with "Shooooot!", but it very easily could have been.
To mangle some other movie dialogue, just let me say that I'm surprised - surprised to find that Mr. Richmond hasn't found something a little more shocking than this purported revelation:
Imagine [being able to change dialogue or edit a movie] no more. That day is at hand.
I guess Mr. Richmond has been living under a rock somewhere in the vicinity of Mars. Apparently, he has never heard of dubbing or editing or never saw Forrest Gump or Contact. Strange that. Apparently it is permissible for director Robert Zemeckis to edit and digitally alter the image and voice of US Presidents so that they appear to be discussing extraterrestrials or conversing with blessed innocents, but not for the average consumer to make the most minor of alterations to a film for their own viewing pleasure.
You see, what Mr. Richmond is really upset with is not the technology (which has been around for decades), but the fact that the technology is now in the hands of consumers. It is okay for Hollywood to play with this technology, but heaven forbid the average citizen be permitted to use it.
Now, Mr. Richmond has done some pretty sorry imagining. Allow me to offer some imaginings of my own:
Imagine if Roger Ebert could provide downloadable commentaries for some of his favorite DVD movies - or if a comedy troupe provided an alternative, parodic soundtrack for a pretentious flop. And imagine if a film student produced annotations for Gone With The Wind that intercut images of what slavery on a plantation was really like as opposed to the romantic vision of the film.
None of my imagings exist yet, but the technology for creating them does. However, if the Directors Guild of America succeeds in achieving its self-defeating ends, such works with be illegal to create and/or distribute without permission, not of the directors, but of Hollywood studio executives. Now, I don't necessarily agree with the editing decisions many of the cited companies make. In fact, I probably would agree that the vast majority of the edited works are aesthetically inferior to the originals. However, that is not the point. The point is whether Hollywood will be permitted to control the creation of all annotations to their works.
Speaking of Hollywood executives control, I find the next quote from Mr. Richmond's article quite revealing:
They are able to neuter films of explicit or semi-explicit sex, language and violence, turning around and profiting by peddling to consumers radically revised editions that in many cases bear scant resemblance to a filmmaker's original work.
Now the "They" in the above quote refers to the post-market annotating companies, but could just as easily apply to studio executives. Mr. Richmond would probably reply that there is a difference, that the director might actually be consulted when a film is butchered for airline audiences or television broadcast. This is a weak justification for a distinction, especially when you are basing your theory on the romantic notion of authorship. There is a name for this. It is called "selling out" and is considered to be inconsistent with most theories of artistic integrity. Actually, the whole romantic notion of authorship needs to be looked at in depth. That will be saved for a later article in this series.
Why Directors Should Love this Technology
Let's look at two quotes from famed director and DGA First Vice President Steven Soderbergh. The first quote is from the current article under discussion, the second from another article on DVD commentaries:
We are appalled at the proliferation of companies that bypass the copyright holder and the filmmaker and arbitrarily alter the creative expression and hard work of the many artists involved in filmmaking.
and
Would I, growing up, like to have had access to stuff on DVDs like this? Oh, God, yeah! It's better than any film school I think. [From DGA Magazine, (DVD Special Editions: How to do an Audio Commentary (Part I))]
Audio commentaries can be "film schools in a can." They can provide a depth of understanding and education that can increase the film viewer's comprehension of the film and the collaborative process. The question is why restrict such additions and editing to what the studio permits. Soderbergh himself has been asked to provide commentary for a special edition DVD of Catch-22, a movie with which he was not involved in the production. Why should directors or other experts be restricted from providing such commentaries on their own, independent of the invitation of some studio executive?
Here's an interesting quote from the same article in which Soderbergh is enthusiastic about audio commentaries:
In the last round of creative rights negotiations, the DGA attempted to guarantee that directors would be asked to participate in the Special Edition. While it was not achieved in this contract, it is an issue the DGA will continue to vigorously pursue. The Writers Guild was able to get contract language that guaranteed that if a director gave a commentary, the writer would be given the opportunity to record one. What was particularly disturbing about the language was its restriction upon future director audio commentaries.
Hello - DGA! This technology allows directors to bypass the studios. You want to provide alternative commentaries without the studios permission? Go for it. On the outs with the studio? So what? The studio balking at the expense of a "Special Edition" DVD? Provide the DVD extras for the regular DVD separately. An LA Times (annoying reg. req.) article shows that Francis Ford Coppola gets it, "Once computers become married with film, the form becomes promiscuous, and that can bring about new ways of making movies that the studios can't control" (Press Play Access to the Future).
Back to Mr. Richmond's poor writing skills, where he talks about the "chilling effect that the debate is sparking." Does he even know what a "chilling effect" is? Generally, debates are the opposite of "chilling effects." Who and what is being chilled? Are directors afraid to make movies or something? If some are being chilled, they are the companies being sued by the DGA.
I laughed when I read this:
The business [of providing annotations and annotating technology] began to build steam in Utah and other religiously conservative parts of the country, spawning increasingly creative video-editing technology and marketing.
Only in Hollywood would increasing creativity be a bad thing (rimshot).
The DGA's View of the Issues
Appallingly, the plaintiffs rely on the right to free speech guaranteed by the First Amendment as their excuse to alter original works and pass them along - for profit - to the public.
What is appalling to me is that the DGA, which claims the protections of the First Amendment all the time, would find others use of it somehow illegitimate. Seems to me that the First Amendment arguments being raised are not obviously illegitimate and are, in fact, rather compelling. The " - for profit - " part is particularly hypocritical since the profit motive is not inconsistent with the First Amendment and virtually all Hollywood films are intended to be "for profit." How odd that the DGA should ape the rhetoric of those who accuse directors of controversial films of hiding behind the First Amendment. Here is a quote from famed director Oliver Stone:
In the Natural Born Killers case here in Louisiana, over the five years of the case, I began to understand that journalists were writing with the presumption that Hollywood people were seeking to hide behind the First Amendment’s free speech clauses, while we were really laughing and making money exploiting the public. I find this outrageously cynical. [Stone's Throw]
Who is being cynical now?
The DGA also has a rather cynical view of another constitutional clause:
Perhaps they [Clean Flicks, et al.] are unaware that the United States Constitution directed Congress to pass laws to ensure that the creators of original works had the "exclusive right" to their work and prohibited their unauthorized exploitation by others for financial gain.
I don't think so. Obviously, the DGA is unaware of what the Constitution actually says. For example, the Constitution doesn't direct Congress to pass copyright laws. The Constitution gives Congress the power to pass copyright laws, but does not require that they do so. Congress could obliterate copyright and, taking into account Fifth Amendment challenges, copyright would be history. No where does the Constitution talk about prohibiting unauthorized exploitation of works for financial gain. There are many ways that a person can exploit a work for financial gain without compensating the creator. Many of these ways are protected under the doctrines of "first sale" and "fair use," both of which the DGA's position would obiliterate.
Next we come to what, to the DGA, seems to be the crux of the issue:
At its most basic level, the issue surrounds the idea that all filmed entertainment should be made palpable and appropriate for all - even when it is clearly intended not to be so for children and/or teens, or even for some adults.
Sorry, no. The issue is whether Hollywood can dictate how a viewer experiences a movie in the privacy of his/her own home. The issue is whether Hollywood can determine who gets to make annotations to a movie. In other words, the issue is one of control. Hollywood wants law to dictate a control that technology has placed in the viewers hands.
Parents and consumers already have the most powerful tool available to them with regard to home videos and DVDs: choice. They can choose whether or not to buy or rent a given film, just as they can use their remote control to change a TV channel or turn off the box altogether.
I have news for the DGA, this is not very good rhetoric. You see, the DGA also has a choice with regard to home videos and DVDs. If the DGA doesn't want annotations for their movies then don't release them to the general public. You don't want annotations, then only permit your films to be shown in movie theaters where you can control how they are shown. Clean Flicks, et al., aren't trying to force the rest of the world to accept their versions of movies, or use their technology. The DGA is. Seems to me that, in such a case, the burden should be on the DGA to control their behavior, rather than ask law to control everyone else's.
Here is the next argument which the DGA has, predictably, backwards:
The operators of these editing services, however, opt to operate under the misguided notion of having one's cake and eating it too, planting the idea in consumers' heads that there should be no such animal as unsuitability.
Who is planting what ideas? The DGA is not afraid of consumers and "unsuitability," the DGA is afraid of consumer empowerment. The DGA is afraid that, in the words of Laurent Bouzereau, a maker of "Making of" documentaries, and quoted in the LA Times article cited above, "There is a risk of completely demystifying the [filmmaking] process, which is why it [DVD production] needs to be controlled by the filmmaker." The DGA wants to have their cake of sending a work out into consumer's homes and eating that cake by controlling how viewers experience the movie.
The DGA and Ratings Systems
In effect, they [the annotation services] say that there need not be a movie ratings system of NC-17, R, PG-13, PG and G but simply two designations: "A" (for "All") or "N" (for Nobody"). They assert that all ages and levels of taste, literacy and maturity should accede to a single disemboweled standard.
Again, the DGA simply does not get it. First, the DGA neglects to mention "edited for television" and "edited for airlines," two other significant rating systems. Second, these companies are not saying that there should be only one rating system. In fact, what they are doing is providing additional rating systems outside the control of the MPAA. Each of these companies is, in effect, creating their own ratings systems.
The DGA should be happy with this and support technology that makes this even easier to do. Wait a minute, the DGA does support such technology: We advocate a system (or systems) that would give parents and other consumers the most detailed information possible regarding the true nature and content of a film (or other media) and the reason for its rating, so that they can make informed decisions for themselves and for their children. [E! Online - Directors Call for New Ratings System]
The DGA is right to support such technology, but they must realize that people should be free to use the technology in ways the DGA does not approve. The more detailed the content ratings are, the easier it will be for technology to annotate the films and for these companies to become third party rating systems.
Apparently, the DGA doesn't understand that the availability of third party raters is a good thing: it will assist in protecting them from government censorship. The existence of the annotating companies is important when it comes to Hollywood defending itself from government enforced ratings systems. When movies are distributed online, the DGA will be able to point to these companies as options for parents to select when Congress inevitably attempts to write censorship laws like the Communications Decency Act. Why write laws requiring companies to censor their films when parents can, if they choose, go to one of these annotation companies?
Such systems also free the DGA from the MPAA's ratings tyranny:
One of the targets of the DGA's criticism has especially been the NC-17 rating, which the guild labeled "an abject failure." The task force cited many instances in which adult-themed movies were recut in order to avoid the NC-17 rating, considered a death-knell financially because most multiplexes refuse to screen films with the adult-only rating.
By forcing filmmakers to make changes to secure an R-rating, the guild contends many directors have had their vision compromised (à la the digital fig leafs in Stanley Kubrick's Eyes Wide Shut). Ironically, this has made it even easier for adult content to be seen by minors given the lax enforcement of the ratings system by exhibitors anyway, the filmmakers say. [E! Online - Directors Call for New Ratings System]
Talk about artist's rights and censorship. The annotation services aren't forcing great directors like the late Stanley Kubrick to alter their vision. By allowing third party raters to thrive, the DGA would reduce the power of the MPAA to determine ratings. Filmmakers could produce films in accordance with their vision, release them to the world, telling those who aren't happy with it to go to a wide variety of raters. These annotation systems will free members of the DGA, instead of forcing them into the five-sizes fit all rating system of the MPAA.
The transparency of the third party raters is also much greater. At least with the third party raters you can see exactly what decision they made when comparing the original to the annotated version. Compare this to the MPAA, which will not give clear guidance as to what the substance of their ratings are.
Silly Things Directors Say
"For any company or organization to arbitrarily change or edit a film to comply with its religious or political views is not only an infringement of copyright, it is a dangerous assault on the creative rights of authors and artists in America," echoed Norman Jewison, director of Fiddler on the Roof, Moonstruck, A Soldier's Story and Jesus Christ Superstar.
First, for the millionth time, no one is changing or editing an entire film. At worst, these companies are altering a single reproduction of a film. At best, they are providing annotations to a complete and unchanged reproduction of a film. Second, whether it is an infringement of copyright is a matter for the courts, not a director. There are many very plausible and compelling arguments against the claim that annotations are an infringement of copyright. Third, the dangerous assault on creative rights occurs when Hollywood attempts to control how people experience art in the privacy of their own home. Creativity will be stifled if "artists" are permitted to force their audience to experience a work of art only in ways that are "authorized" -- Sorry, you're not permitted to interact with a work of art in that way. Please wait quietly. The police have been summoned and will arrive at your home soon.
"It's a violation not only of our rights as directors but of what the audience has come to expect of a film or a filmmaker," [director Irwin] Winkler stressed. "When you buy a video or a DVD of a film, you expect to see the work re-created in its original form, not some bastardization for the sake of someone else's idea of morality. If you go into the museum and see the painting of the Three Graces, you don't expect them to be wearing bras because nudity offends some of the people who attend an exhibit with their children."
Of course, I'm not sure how this argument really applies when it is quite clear that the users of these services are obviously aware that what they are viewing is not the "authorized" version. That's the point. These services empower the audience. The audience isn't being lied to, they are being given a choice. It is the DGA that is attempting to prevent the audience from making that choice. Furthermore, the analogy is quite poor. A better analogy would note that this is not like people going to a museum to see the Three Graces, but like people bringing a reproduction of the Three Graces into their home. If they want the Three Graces to wear bras, I might disagree with their aesthetic judgement, but it is their choice.
Winkler continued, "All of us, from the director to the writer to the actors, the editors, all of the technicians, spent many hours, weeks and months on a film to bring it to the audience the best way we know how. For someone to arbitrarily change it invalidates the whole process of creating a film."
Wow, that's sad. Some family in Utah watches an annotated version of a film and invalidates all that work. Damn, I didn't realize that Hollywood was so fragile. Terrible reviews and bad box office might be painful, but someone essentially covering their eyes during a scene invalidates everything. Given the risks of your work being nullified, I don't know why any artists would continue to make films.
Kathryn Bigelow, director of K-19: The Widowmaker, added that the issue puts nothing less than an impacted director's future at risk. "The distortion and manipulation of a film by nameless, faceless programmers is the distortion and manipulation of the reputation and achievement of the director whose name is attached to that film," she believes.
Those evil nameless and faceless programmers. Perhaps if they were given credit, that would help. Come on. Let's take the example of Movie Mask. Ms. Bigelow presumes that people who go through the trouble of downloading Movie Mask software, then download the particular "mask" for a particular DVD, will somehow believe that the result is an accurate portrayal of the director's decisions. This also assumes, wrongly, that the people most important to a director's reputation would choose to watch such edited versions. Memo to Ms. Bigelow: frequent movie-goer/renters want to see the director's vision. Why do you think "Director's Cut" versions are so popular? Why do you think DVDs, with all the extras about the making of the movie and alternative audio commentary are so popular? This technology can be used to mutilate a director's vision, but not without people realizing it. More important however, is that this technology can be used to better achieve a director's vision. Ms. Bigelow should embrace this technology, not try to kill it.
Legal Expertise is Summoned
Of course, most of the above is just rhetoric. What really matters is what will happen in court (and, yes, LawMeme will analyze the filings - eventually). So, what evidence does Mr. Richmond provide to show that the DGA will prevail legally? Not much:
Many legal educators contacted believe that the conduct of CleanFlicks and the other unauthorized editing purveyors violates the Lanham Act by wrongly associating filmmakers and other DGA members with versions of their films that were never personally authorized - unlike, say, airline or network television versions.
All this talk about the First Amendment, copyright infringement and artists' rights of integrity, and we get trademark law? This is plain sad. It may be that some of these companies are engaged in deceptive business practices, but that doesn't make a lot of sense. After all these companies make money by making clear to the public that their annotations are different from what Hollywood is producing. It makes little business sense for them to hide the origins of their annotations. Furthermore, companies like Movie Mask and ClearPlay are providing entirely independent annotations, so it is very unclear how you can get customer confusion out of that.
Now the next quote from a legal expert starts off in the realm of copyright, but then veers right back into trademark law:
"It's a clear moral rights violation," observed Christine Haight Farley, an assistant professor of law at American University in Washington, D.C., who holds expertise in intellectual property law, trademark law, copyright law and art law. "When you bastardize the work of filmmakers - when you alter it, violate it and otherwise mutilate it against their will - and their name remains on it, the artistic integrity of that individual is fully compromised - I see it as rather like putting a Coke label on a Pepsi. You might be able to fool some people into believing that it's Coke, but you land yourself in an ethical quandary as a result. Because it's not Coke, and you shouldn't try to call it Coke."
Well, moral rights are generally considered part of copyright law (and moral rights are very limited in the United States). However, mislabling Coke and Pepsi would be a trademark case. Couldn't find any lawyers to make a straightup copyright argument, Mr. Richmond?
Ms. Farley continues:
I mean, there is a public interest in having The Godfather be The Godfather and not The Godfather Lite.
Sure, but what does this have to do with copyright? Moreover, what does it have to do with Movie Mask and ClearPlay? Perhaps the rest of the paragraph will enlighten:
You wouldn't want anyone to demolish the statue of David because you were offended by his genitalia. If the law doesn't take into account that basic moral right for moviemakers, then it would seem the law needs to be expanded and broadened.
No one is talking about smashing the original. At worst, people are altering reproductions. You wouldn't want to send people to jail for smashing reproductions of Michelangelo's David, would you?
One Last Quote From a Director
"If these companies are allowed to continue doing this, then I'm chilled by what it says about what's permissible and possible and acceptable," [Jon] Turteltaub said. "It tells us that all of the people who collaborate to make a film suddenly don't count after that film is released. It's saying that the film ceases to belong to them and that instead it belongs to anyone who thinks it should be his or her own. That's difficult to reconcile."
Precisely, Jon, precisely. Once you sell me a DVD, I own that film. I get to experience it the way I want. I should be able to share my annotations on the film with others, whether those annotations are digital or not. You may find it difficult to reconcile, but you should learn to love it, because it will free up an entire new realm of creativity for interacting with your work.
Coming soon: Software reviews and related technology
Previous articles on or related to Clean Flicks:
DGA Pres to Duchamp: You Scoundrel!
Rewind to the Future
The MST3K Syndrome - Coming Soon to a Home Near You?
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"User's Login" | Login/Create an Account | 28 comments |
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Re: Silly Things Directors Say (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Monday, September 30 @ 09:37:29 EDT | Since there are no moral rights under U.S. law (other than VARA), some courts, fishing for an equivalent, have looked to U.S. trademark law and found something analogous there.
An interesting point to make, though, which is implied by your discussion of the director's cut, is that the director usually not the legal author of the film. Default authorship in movies is really a mess -- see this case. If the directors aren't the only authors, then who gets to control whether we can blink or fast forward? The best boy? A corporate fiction?
Another point: this is primarily a critique of machiavellian rhetoric. The fact that rhetorical bubbles can be popped doesn't make rhetoric's use any less popular -- see, e.g., the advertising industry. Related point: some copyleft folks are adept at rhetoric as well... |
[ Reply to This ]
Re: Silly Things Directors Say (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Monday, September 30 @ 23:33:20 EDT | Buy a DVD and do anything you want with it - use it as a frisbee or play it backwards while standing on your head. Fine.
Satarize it, comment on it, play a credited excerpt. Fine.
Edit it, colorize it or dub it and then make money from it without permission?
Granted the studios may be missing a potential market here, but, work out a license deal that works for both sides. |
[ Reply to This ]
Re: Silly Things Directors Say (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Tuesday, October 01 @ 13:37:16 EDT | Another fair use rant on a clear copyright violation: the rights to edit an original work, and to distribute it for profit, are held by the rights holder only, by worldwide consensus. Congress eliminating copyright protection? Sure, next up the First Amendment. Film alterations, cuts, and splices as "annotations?" Excuse me, but I think you've been reading a few too many law review articles! |
[ Reply to This ]
Re: Silly Things Directors Say (Score: 2, Insighful) by NBarnes on Thursday, October 10 @ 05:15:09 EDT (User Info | Send a Message) | I suppose that they're just as afraid of the 'chilling effects' of allowing people to consume thier content while under the influence of drugs?
I mean, those frat boys out there watching flicks while roaring drunk are violating the director's artistic integrity in the most crude possible way. The director never meant for their movie to be viewed by intoxicated neanderthals, and their primitive interpretations won't just wash out with the rewind! |
[ Reply to This ]
How does CleanFlicks operate, anyway? (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 18 @ 12:32:56 EDT | Ignoring the rights of the author, etc., how does CleanFlicks operate in terms of basic copyright law?
Even if I edit a movie, I'm assuming it's illegal for me to pedal copies of my edited version on the street (otherwise, what would legally stop bootleggers from making trivial edits to a movie and then selling it to their heart's content?).
The bottom line, at least with the current line of DVD technology, is that, even to distribute a new soundtrack for a movie, you need to fab a whole new DVD, video stream and all. In other words, "Soundtrack sold separately" is still not a reality (well, at least my DVD player only has one DVD tray).
So, CleanFlicks makes their edit, and then what? Are they just burning DVDs of these edits and selling them? Copyright covers derivative works (at least those that don't fall under fair use or satire).
However, it seems to me that once you buy a copy of a work (i.e., license it from the author/owner/whoever), you should probably be allowed to do whatever you want to that copy---burn it, cut it up, paste it up, write on it, rearrange it, etc. The only act forbidden by copyright would be duplicating your copy in some way (even transcribing it by hand, if it's written) and distributing those duplicates to others. It seems as though copyright would also forbid distributing duplications of your modified copy, though you certainly could sell your modified copy to someone else---but just that one copy (it's a value-added copy).
So, to comply with the existing law, it seems like CleanFlicks must be buying a copy of a movie for each edited copy of the movie that they sell. The moment that they sell an edited copy, copyright law seems to forbid the sale of the corresponding unedited copy. So, what are they doing with all of these unedited copies? They certainly must be piling up.
Maybe they're avoiding this problem by simply paying a licensing fee to the copyright owners, but if this were the case, the DGA would have their solution: they could simply refuse to license to CleanFlicks, et al.
If CleanFlicks is not doing something like this (in other words, they are selling their edited copies without compensating the original copyright holders in some way), then they are certainly sunk, at least in terms of existing copyright law, since selling copies with minor (or major) edits does not count as either fair use or satire (for example, the abridged version of a book must be licensed). |
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