Bowdlerization as Fair Use
Last week a federal district court in Colorado issued a ruling against CleanFlicks and similar companies who sell DVD versions of Hollywood movies that delete content judged to be offensive (including sexual language and nudity, violence, or profanity). These modern-day Thomas Bowdlers had claimed a fair use defense, but the judge rejected it.
That is probably the correct result. There is little doubt that the companies infringed on copyright – they copied the movies, distributed them, and at least arguably created derivative works from them. The real heart of the case (other than some side arguments that get dealt with quickly) is the fair use defense they raised. Unfortunately, the decision’s reasoning about the factors considered under the fair use doctrine is somewhat weak.
The bowdlerizers’ most important argument was that that their edits constitute a criticism of objectionable content in Hollywood movies. This contention has some plausibility. But the end result reproduces a huge portion of the underlying work, and these portions have no function in supporting the purported critique — remember the warning in the 2 Live Crew case that a parody must use enough of the original to “call it to mind” in order to have any critical force. Furthermore, the companies were engaged in a large-scale commercial enterprise aimed primarily at providing entertainment to families concerned about sex and violence in movies, rather than providing commentary, analysis, or parody.
These lines are very hard to draw, however, and the judge tried to sidestep these issues by holding simply that deletion of content is, by its nature, not transformative. That is much too broad a statement. I can imagine an edit that made only cuts, but in doing so added an entirely new message. Perhaps an edit of a very violent or sexual movie, by showing how little was left after cutting the bad stuff, might serve as a commentary and might qualify for fair use. Indeed, I suppose this case goes hand in hand with the famous “Phantom Edit” of the fourth Star Wars movie, in which some sagacious nerd deleted the hated Jar-Jar Binks from the film. I don’t think there was ever litigation in that case, and if there were I suspect the phantom editor would also lose. But it would be a similarly close call.
A couple of other interesting notes:
- While the case was going on, Congress and the President enacted legislation providing a new exemption under section 110 of the Copyright Act for the home use of products that achieve the same result as these bowdlerizations using different means. There, the consumer buys a DVD, and the software makes the edits as the disc plays – creating no fixed copy of the censored version. The court in this case emphasized that Congress considered and rejected the possibility of a broader exemption that would have covered CleanFlicks and similar companies that make and distribute hard copies of their new versions.
- The Hollywood studios did not bring a DMCA anticircumvention claim, but they certainly could have done so. CleanFlicks cracks the encryption on DVDs in order to make its new versions. As educators, librarians, and others have discovered to their dismay, there is no fair use exception to the DMCA, even if fair use immunizes you from copyright liability.
- The court cites and distinguishes the Second Circuit’s recent Bill Graham Archives case (discussed by Tim here). When that decision came out, some observers thought it would be a very significant and useful case, but I was more skeptical. The fact that the court felt compelled to deal with the case here – even though, since it’s from a different geographical circuit, it is not controlling – provides an early indication that I was wrong and that the Bill Graham case may come to be seen as a major precedent.
- The first new release listed on CleanFlicks’ web site at the moment is The Libertine, which I can only imagine — based on its title and subject matter — must last about seven minutes post-edit. It came out in 2004, so perhaps it took CleanFlicks two years to whittle it down.
Filed under: Copyright, Digital Media, Filtering, Media
The bowdlerizers’ most important argument was that that their edits constitute a criticism of objectionable content in Hollywood movies.
This sounds very reminiscent of the people who recut an episode of Family Guy to remove all the cutaways to show that the basic plots themselves aren’t funny (in their opinions).
The differences are that (a) CleanFlicks only pulled out the criticism argument when attacked (rather than marketing them as criticism in the first place), and (b) they were profiting from the derivative works.
That deletion is obviously transformative of information (yes, here’s my flag-waving about information qua information) should be obvious. Let’s delete all the “nots” in the judge’s opinion and ask him if it’s the same opinion. The Family Guy case clearly shows that “mere” deletion can easily be not only transformative, but honest criticism.
[...] William Patry has a post on the CleanFlicks decision. It’s consistent with my thoughts. He emphasizes the fact that “transformation” in the process of creating a derivative work is distinct from “transformativeness” in the fair use analysis — another matter on which the court included some unfortunate and confusing dicta. [...]
(a) Bowdlerization is not fair use. (b) I was trained as an intellectual property lawyer. (c) If devices hit the market that permit bowdlerization on-the-fly, in the comfort of your own home, I will definitely pull my film script off the market. Or, as an alternative to (d), I will have it rendered such that it can be played only in a special proprietary device which is not susceptible to personal editing.
Jonathan, such devices have already hit the market, and the legislation I note above immunizes them from copyright infringement liability. I suppose DRM to prevent bowdlerization would be possible, though.
I agree that a lot of bowdlerization is an unauthorized derivative work and not fair use. My broader point was that the judge here tried to define deletion of content as automatically outside the purview of fair use. While that would create a bright-line rule, it seems to me obviously wrong because it sidesteps and ignores the fact-sensitive judgments necessary to fair use analysis. Even if the judge reached the right result, that isn’t the correct reasoning.
More broadly still, I meant to point out that one person’s infringing edit is another’s parodic critique.