The "Dirt" on Digital "Sanitizing": Droit Moral, Artistic Integrity and the Directors Guild of America V. CleanFlicks et Al

Article excerpt

   "The very basis of all creative work lies in the protection of the
   right to create, which is a function of the right of individual
   liberty.... A corollary to this right to create is the right not
   to create, to refuse to create." (1)

I. INTRODUCTION

Imagine this scenario: an American parent sits down at his computer and points his Internet browser to www.CleanFlicks.com. (2) On this site, the parent can choose from over 400 films to purchase for his family's private use. (3) The movies are advertised with their original posters and publicity materials. (4) These films, however, are substantially different than the versions that were originally distributed in movie theaters across the world. (5) The company that operates the website, as well as a chain of almost 100 retail outlets around Utah and surrounding states, (6) has systematically edited out all instances of what its editors have deemed to be profane, violent, or otherwise objectionable material. (7) It not only edits popular American films but also packages and sells them at a premium under their original titles and packaging, all without the consent of the legal authors or the director-creators of these works. (8)

The above scenario is far from imaginary. In fact, any individual can currently visit such a site and purchase edited films. CleanFlicks indeed exists. The company pre-edits films in accordance with its own pre-established "sanitizing" criteria. (9)

It seems that as digital technology becomes increasingly sophisticated, so do the legal entanglements linked to this unprecedented innovation. For example, digital video disc players (which play films in the DVD format) have begun to proliferate across the United States and slowly supplant the hegemony of the family VCR. Once any work is transferred to a digital format, a technically savvy individual can alter it quite readily. (10) In fact, there are several companies in addition to CleanFlicks that currently offer technology that enables home users to effectively create edited versions of their favorite films after having secured a copy. (11)

For the purposes of the legal analysis in this Note, however, CleanFlicks is of central concern for several reasons. First, as will be explained in detail, U.S. copyright law clearly grants exclusive rights to the authors of the works that CleanFlicks has violated. (12) Furthermore, CleanFlicks is performing a sort of censorship that is qualitatively different from a service like ClearPlay, which offers home-editing opportunities to consumers.

For instance, whereas CleanFlicks makes specific decisions about what content to excise from popular films before selling the films in their original packaging, Clearplay simply works through software that does not permanently alter copyrighted films. (13) Rather, ClearPlay's software enables home users who are viewing DVDs on the family computer to mute sections of the film that might contain language unsuitable for children. ClearPlay users are left with an unaltered copy of the original film after employing the Clearplay software. In fact, ClearPlay might actually encourage parents to rent or purchase DVDs that they might not have, were it not for a digital assurance that their children would not be exposed to offensive or disturbing material (thereby increasing potential profits for movie studios). (14)

When customers visit the CleanFlicks website, they are giving business to a company that was founded in Utah to satisfy the demands of that state's conservative population, but that has since expanded its business to many other states. (15) The "myCleanFlicks" site is modeled after the Netflix.com site, a popular Internet movie rental service with over 600,000 subscribers. (16) This similar format in web page design could easily lead to a customer's misconception that he is shopping for movies in their original, unedited format. (17)

On the CleanFlicks website, the "About Us" page explains the company's controversial mission: to edit popular Hollywood films for "family" enjoyment. …