The issue of companies that technologically filter the sludge that oozes out of Hollywood in order to preserve a semblance of entertainment or enlightenment in that product line, while perserving other sensibilities, is bubbling up. We addressed it earlier; naturally, it’s now being litigated. This is a fascinating topic and one that is addressed very thoroughly in an article in the New York Law Journal (registration required).
Here’s the heart of the matter:
Making copies of a movie and offering them for sale or rent, of course, is a plain violation of copyright law. To avoid this problem, editing companies buy multiple legal copies of each movie they offer so that they always retain a one-to-one ratio of ‘cleaned-up’ copies to originals. Some editing companies package the original DVD along with the edited copy — sometimes in disabled form –so it is clear that each sanitized copy is backed up by a legitimately purchased original. Under this scheme, the editing companies argue that they cannot be doing harm to content owners. In fact, they assert that, by establishing a new audience for these movies, they are actually increasing revenues to the content owners. This argument ignores the fact that a copyright owner has the exclusive right to create and sell derivative works from its content. If a market exists for cleaned-up movies sold at a premium, the studios argue that it belongs to them, not the editors.
The other solution is the use of a hardware filter. Here, again, is a powerful excerpt on what’s at stake:
In a now infamous display of the power of that technology a few years ago, one company showed a revised version of the “nude sketch” scene in “Titanic,” in which Kate Winslet magically appeared, not naked as in the original, but demurely clad in a virtual corset. Hollywood, it appears, was not amused and some commentators have suggested that this demo was one of the sparks for the current litigation. But because masking and filtering occur inside the DVD player and do not result in any actual copying of anything, ClearPlay would seem to be in a better position to avoid an infringement claim than a company that sells edited copies. . . . the Family Entertainment and Copyright Act makes that intuition explicitly a part of copyright law.
The piece suggests that while the copyright issues are a “close question” — especially considering the new legislation — the trademark dilution claims by the studios against the companies that sell repackaged, edited films aren’t. I would tend to agree.
But the cultural issues being played out here are at least as interesting as the IP issues. There are people out there who want to see Titanic and who are even comfortable with a pretty young woman in a corset on the screen, just not a buck naked one. This is considered heresy, fundamentalism, in Hollywood. Hollywood’s art demands nudity at this juncture (I guess; I didn’t see the movie). Here the market is screaming, put a shmatteh on the young lady and we’ll rent your video — and this, Hollywood finds offensive. Because the scene, the art, just would not work with clothes on, you know? No sense telling a story about an ocean liner that hits an iceberg without a cute naked chick, is there?
Yes, Hollywood. That’s the ticket: Move some chairs around on that deck…