Kate Winslet's performance in Titanic helped propel the movie to become the highest grossing film of all time. (1) One of her scenes in particular also begat an industry, and now a copyright controversy, when a small video store in Utah started snipping her nude scene out of customers' videocassettes of the movie. Since then, the number of businesses offering edited VHS and DVD movies has increased dramatically. For at least as long as these new businesses have been editing movies, the directors of such movies have condemned the practice as violative of their moral rights to maintain the artistic integrity of their movies. Additionally, the practices of the edited movie industry also implicate potential copyright law violations, (2) specifically regarding potential infringement of the movie studios' exclusive right to prepare derivative works.
The current CleanFlicks litigation in the Federal District Court of Colorado and the recently signed Family Movie Act look to offer definitive answers to the immediate questions of whether the current editing practices infringe the Studios' and Directors' moral rights or copyright protections. Those answers, though, will implicate more than the future viability of the edited movie industry. They also promise to add another chapter to American copyright law regarding the legitimacy of moral rights claims for works not specifically protected by statute, as well as the expansion or limitation of a copyright holder's control over the preparation of derivative works of her product.
This paper gauges the impact of the CleanFlicks case and the Family Movie Act on both sets of questions. Part II briefly examines the background of American copyright law involving the doctrine of moral rights and the fight to prepare derivative works. Part III details the rise of the edited movie industry, the current technologies of digital editing and player control filtering, and the litigation both have provoked. Part IV then evaluates the moral rights and derivative works infringement claims raised in the CleanFlicks litigation, concluding that the Directors' and Studios' moral rights based Lanham Act Claims will likely fail, as well as the Studios' allegations of copyright infringement by the Player Control Parties. The copyright claims raised against the Digital Editors, however, ultimately require a fair use evaluation, which slightly favors the Digital Editors. These conclusions are then considered in light of the potential impact of the Family Movie Act, which grants superfluous protection to the Player Control Parties and potentially negatively impacts the Digital Editors' fair use claim. Finally, Part V evaluates the impact of the likely resolution of the CleanFlicks case on American copyright law and argues that the case portends the extinguishment of moral rights claims outside explicit statutory protection.
With regards to a copyright holder's right to prepare derivative works, the case should reinforce the bar against a first sale defense of derivative works infringement claims, but otherwise lead to greater restrictions. While the full extent of those restrictions rest upon the success or failure of the Digital Editors' fair use claim, the current litigation and legislation at a minimum will restrict the definition of infringing derivative works to those that 1) possess some level of originality, and 2) have fixed the incorporated underlying work.
II. BACKGROUND LAW ON MORAL RIGHTS AND DERIVATIVE WORKS
A. Moral Rights
The doctrine of "moral rights," or droit moral, concerns a copyright holder's rights of attribution, as well as the right to protect the integrity of her works, or copies of her works, once they are no longer in her control. (3) It originated in France, where an artist's work was said to embody an expression of the artist's soul. (4) Thus any distortion or alteration of that work, even after the work was no longer in the artist's possession, required the permission of the artist. …