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Is It Illegal To Rent Out A Copyrighted Video After Editing It To Omit "Objectionable" Content?

Tuesday, Sep. 03, 2002

Clean Flicks purchases movies on tape, and then edits out all the sex, violence, and "bad" language before renting them out to customers. The rental chain is seeking a court declaration that its practices are perfectly legal - and not a violation of federal copyright law, as the directors reportedly believe.

The chain has emphasized its First Amendment rights. But the government is not a party to the case, as is generally required under the First Amendment; it is the directors, not the state, who the chain anticipates will try to stop its editing practices. Accordingly, the chain's best defense probably does not come directly from the First Amendment. Rather, it derives from the First-Amendment-inspired "fair use" exception to the copyright law, and similar exceptions to related laws under which the directors can sue.

Unsurprisingly, The Directors' Guild of America believes that what Clean Flicks is doing is far from "fair use." Indeed, it has decried the suit as an effort "to legitimize the unauthorized editing and alteration of movies."

Which side is correct? Does Clean Flicks have the right to edit properly purchased movies as it sees fit, before renting them out? Or does a director have the right to ensure that a movie remains edited in the ways he or she has approved?

Put another way, what Clean Flicks is doing may be anathema from an artistic point of view (I certainly believe that to be the case), but is it also illegal? I will argue that the legal question is much more difficult than it may seem at first, because Clean Flicks's practices resemble many long-accepted examples of "fair use" in important ways.

The Directors, Studios, and Actors Have Strong Legal Claims

Since the DGA has not yet filed a countersuit, it is not clear exactly which claims it will bring against Clean Flicks. But it has already raised a number of possible bases for a suit, several of which appear to be strong.

First, the DGA can argue that Clean Flicks' business amounts to an ongoing violation of copyright laws. By editing out content from certain movies before renting them out, Clean Flicks arguably exceeds its license to use the copyrighted movies it had purchased.

Second, the DGA can argue that Clean Flicks, in marketing its edited films, violates trademarks. Phrases such as the studio's name, or a certain tag line used to promote the movie on the video box, are trademarked, and Clean Flicks is arguably using them deceptively if it connects them with a movie edited to be substantially different from the one the studio made.

Nevertheless, the directors can still argue that using their movie titles can be deceptive and amount to false advertising if the editing is so extensive the resulting edited movie is, in effect a different product. (Think, for instance, of "Natural Born Killers" with all the violence edited out, or "Dangerous Liaisons" without the sexual content.)

Fourth and finally, there is another possible claim the directors, or others sympathetic to them, could make - though to my knowledge, this has not yet been raised. That is a "right of publicity" claim.

The right of publicity is the right by anyone whose name is used for commercial purposes to control the use of one's name and image. (As I discussed in an earlier column, actors also can invoke it.) For instance, if you walk down the street and someone snaps your photo and puts it in an ad, then they must get your consent and pay you an agreed-upon sum. Otherwise, they will have violated your right to publicity.

Not only the directors, but also the actors in the films Clean Flicks edits can thus complain of the commercial use of their names in connection with an edited film that is not the film they made. Indeed, every single person listed in the end credits, even if they are not featured prominently, could theoretically make this argument; each has had his name used for commercial purposes in an unauthorized way.

Why Clean Flicks's Practices Look a Lot Like Other Examples of "Fair Use"

How can Clean Flicks respond to such strong arguments? Its first strategy might be to point out that while it has always been anathema to an artist when someone else makes mincemeat of his or her carefully-crafted work - selecting only some parts, and excising others - that is often just what the "fair use" doctrine allows.

Consider parody, a classic example of fair use. Parody appropriates portions of the original in order to mock it - the ultimate insult to the artist. One good example is the novel "The Wind Done Gone," a "Gone with the Wind" parody that aggravated the Margaret Mitchell estate so much that it sued the author. The estate won before the trial court but lost on appeal - as I argued in a prior column should happen - and the book is now available for any who is interested in reading it, without a cent going to the estate.

Or think of a book, movie, or music review - another classic "fair use" example. Such reviews can legitimately sample the work upon which they provide comment, and do so selectively - using quotations of text, lyrics or dialogue, or even sampling more literally if, for instance, Internet technology allows.

Moreover, reviews can appropriate chunks of the original work even if, by doing so, they anger the artist by misconstruing and unfairly criticizing the work, and thus harm the future market for all of his or her later works. Short of a libel claim, the artist has little remedy - except that he or she can try to strike back with a reply to a review or by blasting the reviewer in the press.

After all, the editing's transformative quality is exactly what is aggrieving the directors: They made a sexy, violent film and Clean Flicks is selling an unsexy, quiet, dull alternative that they believe perverts their intent. Moreover, it's doing so precisely to fit a very different sensibility than the one the director was appealing to - in much the way that a parodist, or a harsh reviewer, tries to cater to an audience that loves mockery, rather than an audience that loves artistic sincerity.

I believe what Clean Flicks is doing is morally objectionable. It tames a director's vision, ruins his or her movie, and mangles its artist intent. But ironically, Clean Flicks's very aggressiveness and destructiveness may mean it is protected by law - for the "fair use" doctrine tends to shelter the very kind of antithetical use of a work that the artist would never voluntarily license, and, indeed, will probably detest.

Both sides have strong cases, though, and stories that will each elicit sympathy - with the directors' need for artistic vision and integrity pitted against Clean Flicks's wish to make life easier for families who want to watch videos (and not just "Stuart Little Two" fifty times) with their kids.

For all these reasons, it will be interesting to see what the court will do in this challenging case.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her first novel, Three, will be published in the U.S. in summer 2003 by Plume, and in French translation by Actes Sud.

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