• Removal of "Sex, Nudity, Profanity and Gory Violence" Not Fair Use
  • December 6, 2006 | Authors: Robert J. Labate; Trisha M. Rich
  • Law Firm: Holland & Knight LLP - Chicago Office
  • A recent decision by a Colorado District Court in Clean Flicks of Colorado, LLC v. Soderbergh, et al., held that the “fair use” doctrine does not permit companies to create or distribute so-called family friendly movies simply by removing sex, nudity, profanity and gory violence from already existing films. In a declaratory judgment action, a group of movie studios and producers filed copyright infringement counterclaims against alleged infringers who sold and rented edited versions of videos.

    These companies were in the business of creating and distributing “clean films,” which required deletions from both the audio and visual portions of existing movies. The editing techniques included redaction of audio content, replacing redactions with ambient noise, blending of audio and visual content to provide transition of edited scenes, cropping, fogging, or using a black bar to obscure visual content. The companies argued that their altered movies were justified under recognized exceptions to copyright law, and that the Family Movie Act of 2005 (FMA) should be extended to protect activities like these. Relying on the fair use doctrine, the companies argued that the benefits to the public of the clean films outweighed any commercial gain, that no per se rule existed against copying an entire copyrighted work, and that the altered movies amounted to the highest form of criticism against the movie studios’ allegedly unnecessary use of sex, violence, nudity and obscene language in feature films.

    Finally, the companies argued that the fair use doctrine codified as 17 U.S.C. § 109 precluded the studios’ claim for infringement based on specific facts regarding the distribution of the clean films. For example, they argued their products were not substantial variations of the original movies, and thus not derivative works, and that the clean movies were simply “repackaged” movies.

    The movie studios largely contended that their works held valid copyrights, and that the studios held the exclusive rights granted by the Copyright Act to sell or otherwise distribute the movies. The studios further argued that the clean films were in fact transformative, and thus derivative works.

    In its July 6, 2006, decision, the district court rejected the defensive assertions that the actions were protected under the fair use doctrine or the FMA. In doing so, the court held that the legislative history of the act showed that Congress did not intend to cover activities like these, and that the fair use doctrine was not relevant to their case. The district court found that the companies’ cleansing of the films did not meet the factors required by Section 107 for fair use: namely, (a) the purpose and character of the use; (b) the nature of the copyrighted work; (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) the effect of the use upon the potential market for or value of the copyrighted work. The court analyzed each of these four factors and sided with the studios on each, ultimately determining that Section 107’s fair use defense was “not applicable to this case.”

    Therefore, the district court concluded that the companies had infringed the movie studios’ copyrights and had reproduced and distributed copies of the original movies in violation of the Copyright Act. The court entered an order that awarded the studios partial summary judgment, and it entered an injunction that permanently restrains the companies from any production, sale, rent or marketing of any performance-altered copies of any of the studios’ films.