Copyright

Does U.S. Copyright Law Sanction Film Censorship?

VidAngel

Censorship is illegal in this country. So if copyright infringement. So why is it okay that some companies are censoring films with obscene content by cutting those scenes out, thereby violating a filmmaker’s copyright protections in the process?

A lawsuit filed by four of the country’s largest movie studios could further endanger the censorship of copyrighted materials, which can have substantial repercussions on creativity. The outcome of the lawsuit will most certainly have an impact on how filmmaker and artist content are redistributed to the masses, while also having some broader implications for the amount of control artists and creators have over their work.

Streaming service VidAngel brands itself as an opportunity for families to eliminate unwanted content from their movies and TV. The streaming service boasts technology that allows parents to filter through brackets of content – from foul language, violence, nudity, or steamy sex scenes – and decides what’s acceptable and what’s not. Once a parent has decided what they want to be filtered out, VidAngel delivers the sanitized content to its viewer.

Based on what we know about copyright laws, this practice is an infringement of a filmmaker’s copyright protection, right? Not exactly. While it’s true that U.S. Copyright Laws grant exclusive rights to the copyright holder to reproduce, distribute, perform or create derivative works of their copyrighted content, U.S. lawmakers have carved out an exception for content sanitization.

clearplay

In 2005, Congress passed the Family Home Movie Act, a law that exempts liability from companies creating technology that edits movies to create censored versions. The law was passed thanks to a lawsuit that a number of Hollywood studios and directors filed against ClearPlay and several other video censoring companies. ClearPlay is a Salt Lake City-based company that was marketing its censoring technology to at-home consumers of DVDs. While the law does allow users to cut out scenes they don’t wish to see, it doesn’t permit users to create a completely new hardcopy of that film in its censored format. Additionally, users can’t ‘replace’ the censored content, but rather they can only skip over it altogether. Meaning that, a company can’t market this new-and-improved censored version of a film, but it can give its users the option of cutting and shaping the movies themselves.

So why are Warner Bros., Lucasfilm, Disney, and 20th Century Fox suing the service for copyright infringement? We’ll discuss below.

Breaking Down the Court’s Interpretation of Copyright Law in ClearPlay

To understand why VidAngel is being sued by these studios, it’s important to have some legal context. The U.S. Copyright Act was designed to allow freedom of creative expression, and protect artists from the inability to profit and have control over their work. When a filmmaker, director, or actor takes on a project, the finished product is an expression of their creativity. It’s safe to say that the creator intended for this version, and this version only, to be presented to the world.

When these Hollywood Studios sued ClearPlay, CleanFlicks, and other companies for their video censoring service, they argued that allowing these companies to edit their films for obscenity significantly altered the work. What the viewer was seeing is not what the director intended for them to see – even if it only meant that certain offensive content was being cut from the film.

The directors, filmmakers, and actors affected by these censoring companies tackled their copyright infringement arguments by focusing on two central tenets of copyright law: derivative works, and an artist’s right to profit from their work.

As we’ve reviewed extensively in our e-book, artists and creators hold the exclusive rights to create derivative works of their copyrights. Work becomes “derivative” when it’s modified or altered in any way. Only the copyright holder has permission to do that, and only the copyright holder can grant permission to someone else to do so.

The directors and filmmakers in the ClearPlay suit alleged that ClearPlay’s software creates derivative works, and therefore infringes upon their exclusive rights to make or license any other version of their copyrighted material. ClearPlay, in turn, argued that they are not liable for copyright infringement since they offer software that allows users to edit and not a hard copy file of an edited film.

Additionally, the filmmakers and studios contended they should be the only ones allowed to profit from their work, as the sole owners of the copyright in these works and the creators that invested the time and money to ensure the film got made. They argued that while the right to profit from their work isn’t immediately codified in copyright law, it is the reason why these protections exist in the first place.

VidAngel
Clean Flicks: A Film By Jennifer Van Eenenaam

In addressing the question, the court considered whether ClearPlay’s service constituted a derivative work since it wasn’t fixed in a tangible medium. ClearPlay delivers its service through a USB device that users connect to their TVs. They set their desired filters to their ‘FilterStik,’ which automatically recognizes the player’s settings and eliminates the objectionable content.

ClearPlay’s software fillers didn’t forever alter and create a new movie; rather, the software filters merely edited out the content for that one particular household’s one-time viewing pleasure. Additionally, while it can be argued that profitability is a critical component of copyright law, it can also be argued that innovation is another – and in fact, the Court found ClearPlay to be adding to a movie’s profitability because it widened the audience pool that’d be willing to watch the film.

Another named party to the suit, CleanFlicks, didn’t get off so easily. Unlike ClearPlay, CleanFlicks was purchasing and editing the films in question, and offering them to users at their brick-and-mortar locations. Since CleanFlicks was creating a ‘fixed form’ that constituted an unlawful derivative work, the Court shut them down.

Hollywood Studios Are Taking Issue with the VidAngel Operational Model

To determine how the VidAngel suit might play out, we have to understand the differences in their delivery mode versus ClearPlay’s, which is sanctioned as legal under U.S. law.

As we outlined above, ClearPlay delivers its service through a USB device that users connect to their TVs. They set their desired filters, and their ‘FilterStik’ eliminates the objectionable content. ClearPlay allows users to choose from a library of 4,500 movies that users stream through Google Play.

VidAngel works a little bit differently. VidAngel purchased and owned scores of films as part of its video library, which it purchased directly from licensed distributors of these studio’s works. VidAngel “sells” the movie to the consumer for $20, but allows them the option to sell it back for $19 once they’ve watched it, making the cost of viewing the movie just $1. Once VidAngel has sold the movie to the customer, VidAngel customizes the film according to the user’s preference for censoring it. They deliver the film through streaming services like Roku, Google Play, and Amazon.

VidAngel says what they’re doing is perfectly legal under the Family Movie Legal Act, but is it? They are creating copies of works and customizing their content for sale to the public. The studios and directors suing VidAngel say that’s infringement, citing that VidAngel would “need copyright owner consent to circumvent access controls on protected discs, make copies of that content, and stream performances of the content to the public.” Are they right?

The Overarching Problem if  VidAngel is Allowed to Continue its Practice

There’s a lot at stake if a court decides that VidAngel’s business model doesn’t constitute copyright infringement. VidAngel is copying and editing content that belongs to someone else. Even though the act of in-home censorship has been sanctioned by Congress, it has allowed the practice under a very specific set of facts. To widen that law to allow the blatant copying and editing of another person’s work could result in a windfall of copyright infringement cases. Just imagine an artist who takes nude photographs or creates paintings featuring nude subjects. What would stop a service from censoring those aspects of the artwork for consumption on the internet, if the practice is deemed to be legal as long as its viewed ‘within the privacy of the viewer’s home?’ An artist’s right to express themselves would be severely limited if the intention of his work gets lost on the way to becoming ‘user-friendly.’

While every person has a right to choose what they consume, we’re not necessarily sure we agree with VidAngel providing a watered-down version of an artist’s vision in the first place.

Let us know how you feel about film censorship in the comments. Do you think it constitutes copyright infringement?

 

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

5 Comments

Click here to post a comment

Your email address will not be published. Required fields are marked *

  • I love VidAngel because it has allowed our family to watch movies we would never watch otherwise. The whole purpose of artists, directors and movie studios is to make money for themselves and their stockholders. They should allow VidAngel to license their movies and everyone would make more money because they would gain so many more paying viewers. The majority of movies on the market need editing to meet moral values of many religions. It is discriminatory to deprive so many people to watch many great movies because they can’t edit out objectionable materials. Most movies still have the same story line that gets through whether they are edited or not. When the court said people don’t need VidAngel because they can use Clear Play, that is ridiculous. We tried using Clear Play and it is terrible and a giant hassle to use. We usually would just give up and not watch a movie at all. It is way to complicated. VidAngel is the greatest thing that has ever happened for the movie industry and it would be a tragedy to put them out of business.

  • I’m a big fan of VidAngel’s services. With their editing services, I can enjoy a blockbuster action movie at home with my tweens and teenagers without the words and scenes I deem to be objectionable. If someone else wants to view those same movies without filtering, they can, but now we don’t have to. It is no different than if I was to watch the movie at home with remote in hand, ready to mute the volume or skip a scene that I don’t want my kids to see. Movie studios are getting paid for their work when Vidangel purchased the thousands of legal copies of the movie. If it’s an artistic license question, ultimately, no director can force me to watch the movie exactly as he/she intended, since I can close my eyes, stick my fingers in my ears, or walk out of a theater any time I want. If I order a hamburger, I reserve the right to remove the pickles, because I don’t like pickles, and no chef/cook is going to refuse me service because I didn’t consume the hamburger the way he intended. A director or producer could try to assert that I should just not watch the movie if I’m afraid of being offended, but I’m pretty sure he or she didn’t make the movie with hopes that few people watch it. I am against piracy and breaking copyright laws, but I don’t see any laws being broken by Vidangel, especially since Vidangel tried several ways of paying the studios for the streaming license only to be rebuffed due to their disdain for edited movies (see the Vidangel blog). I only see a money-grab by the studios here i.e. they don’t just want the initial purchase revenues, they want streaming revenues, too.

    • I’ve been looking into this a little. Dale brings up some good points. What he doesn’t address is the decoding that Vidangel does. The breaking through security measures to protect the copyrighted movies. In my mind this is like breaking into someone’s home to get an item that I left there. Just because I left my jacket in the home and its legally mine, does not give me the right to break into the home to retrieve it. None the less the courts will have their fist look at this case at the end of October 2016.

  • Your article isn’t completely accurate. I am a VidAngel customer and they allow consumers to pick from 100s of specific filtering choices specific to each movie. I believe this is completely in compliance with the Family Home Movie Act, but VidAngel is getting sued primarily because they are purchasing DVDs and streaming copies over the internet without licensing to do so.

    It would be a long shot for VidAngel to win as it looks like they are probably not in compliance with the DCMA act of 98. If RedBox can purchase DVDs and rent them to private viewers without special licensing, I don’t understand why streaming purchased DVDs over the internet can’t be made legal though.