Comments on: Bowdlerization as Fair Use

By: William McGeveran

William McGeveran — Mon, 14 Aug 2006 02:42:09 +0000

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.

By: Jonathan Burdick

Jonathan Burdick — Sun, 13 Aug 2006 10:14:36 +0000

(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.

By: Info/Law » Fair Use: Rickety?

Info/Law » Fair Use: Rickety? — Wed, 12 Jul 2006 16:09:42 +0000

[...] 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. [...]

By: John Armstrong

John Armstrong — Tue, 11 Jul 2006 22:15:21 +0000

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.