“Clean Flicks” Infringe Copyrights
The motion picture industry scored a major victory with the decision in Clean Flicks of Colorado LLC v. Soderbergh, 433 F. Supp. 2d 1236 (D. Colo. 2006). In that case, a group of motion picture studios alleged that various companies were infringing the studios’ copyrights by creating and publicly distributing altered copies of the studios’ movies. The defendant companies created their infringing works by making a digital copy of a DVD of a film, editing out “sex, nudity, profanity and gory violence,” and then making a new DVD of the edited version. The new edited version DVDs were sold or rented to consumers. The defendant companies claimed that they were making “fair use” of the studios’ copyrighted works.
Section 107 of the Copyright Act provides that “fair use” of a copyrighted work, such as reproducing the work for the purpose of criticism, comment, news reporting, teaching, scholarship, or research, is not copyright infringement. In evaluating whether a particular use is a “fair use,” courts typically consider four factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
With regard to the first factor, the defendant companies argued that “they are criticizing the objectionable content commonly found in current movies and that they are providing more socially acceptable alternatives to enable families to view the films together, without exposing children to the presumed harmful effects emanating from the objectionable content.” The Court deemed this argument “inconsequential to copyright law and addressed in the wrong forum. This Court is not free to determine the social value of copyrighted works.” The Court then considered whether the defendant companies’ use could be considered “transformative,” that is, whether the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” The Court answered this question in the negative, noting that the deletions involved only small portions of the movies. The Court also observed that the challenged use was for commercial gain. The Court concluded that the first factor weighed in the favor of the studios.
Because the copies were non-transformative, in contrast to the creative nature of the original copyrighted works, the Court held that the second factor also weighed in favor of the studios. The third factor, which requires an examination of the quantitative and qualitative amount of the copyrighted material taken, also favored the studios, because the copies were almost identical to the originals.
With regard to the fourth factor, the defendant companies argued that their infringement actually benefited the studios, because the defendant companies purchased a copy of the original work for each edited copy made, and consumers who otherwise would not have purchased the original films were purchasing the edited versions. (It should be noted that defendant companies were not paying a license fee to the studios.) In holding that the “fair use” defense did not apply, the Court stated: “The argument has superficial appeal but it ignores the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public playing them on DVD in a home environment is more than merely a matter of marketing; it is a question of what audience the copyright owner wants to reach.”
The Court held that the defendant companies were not making fair use of the copyrighted motion pictures. The Court entered a permanent injunction barring the sale and distribution of the altered versions of the motion pictures. This case sends a clear message: be careful when altering someone else’s copyrighted work without authorization. Regardless of the motive, such alteration may result in liability for copyright infringement.