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.
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.
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?