Morals, movies, and the law: can today's copyright protect a director's masterpiece from bowdlerization?

• Author: McCarroll, Christine

1. INTRODUCTION

   Imagine popping in the DVD of Gone with the Wind, and to your dismay or pleasure, Rhett tells Scarlett, "Frankly my dear, I don't give a [mute]." (1) Movies are increasingly littered with profanity, sensuality, gore and violence. (2) Due to innovations of the digital revolution, such offensive content can be edited out, muted, or simply filtered out, in order to provide a more family friendly film. (3) Several commercial entities, without permission of the copyright owners, provide either the technology to bypass the offensive content, or supply their own edited version of the films, despite the fact that the original movies are copyrighted. (4) These practices have the movie industry in an uproar, and present copyright law with new challenges in the digital millennium.

   This note explores the content-editing case Huntsman v. Soderbergh, (5) which presents a fundamental question concerning the degree of control copyright owners have over how consumers may enjoy their protected works. The case also highlights the need to balance the interests and rights of creators on the one hand, and the rights of society to use technology to enhance their viewing experience of copyrighted films on the other hand. While companies that physically and permanently edit out content are most likely copyright infringers, others that provide software to merely filter out the content while leaving the film in its original form present a more difficult issue.

2. HISTORY

   1. Origins and Purpose of American Copyright Law, Derivative Works, and the Application of the Fair Use Doctrine.

      The origins of American copyright law are found in the United States Constitution, which provides that Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (6) Copyright law, however, originated several centuries prior to the drafting of the Constitution, with the invention of the printing press. (7) As new innovations arise, Congress creates new laws necessitated by the technology, resulting in an evolving body of law. (8) Due to the conversion from analog to digital technology and the speed at which such technology changes, more pages of copyright law have been added to the United States Code in the past decade than in the years since the Copyright Act was adopted in 1790. (9)

      Copyright's purpose is to stimulate creative activity of authors and inventors by rewarding them with a limited monopoly and allowing society to access the products of their genius. (10) Copyright protection "subsists ... in original works of authorship fixed in any tangible medium of expression." (11) While the copyright holder does not have absolute control over his work, he does have six exclusive rights, including the right to reproduce copyrighted works, perform the copyrighted work publicly, and prepare derivative works. (12) Currently, American copyright law only extends to these rights, reserving all remaining uses to the public. (13) In addition, it does not give authors moral rights in their original works. (14) Therefore, an unlicensed use of a copyright is not an infringement unless it violates one of the exclusive rights. (15)

      A potential source of infringement involves a derivative work, or one "based upon one or more preexisting works, such as a ... motion picture version, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." (16) A derivative work must, depending on the analysis used, incorporate a protected work in some concrete or permanent "form" or be fixed in any tangible medium of expression. (17) The right of the copyright holder to prepare derivative works, however, is limited by the rule that no infringement occurs unless the alleged derivative work is substantially similar to the copyrighted work. (18)

      Another potential source of infringement involves a public performance, which entails performing a work (1) at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. (19) The right of the copyright holder to perform a work is limited by the word "publicly," and therefore, while watching a TV show at home with family and friends, or singing in the shower constitute performances, they are not public, and no infringement occurs. (20)

      The copyright owner's exclusive rights are also limited by the fair use doctrine, which allows the legal use of copyrighted works under certain circumstances, including criticism, comment, news reporting, teaching, scholarship, or research. (21) In analyzing whether a use constitutes a fair use, four factors come into play: (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. (22) These factors should be weighed together, in light of the purpose of copyright, and not judged by which party has a majority of the factors in their favor. (23)

      Under the first factor, the more commercial the use, the less likely there is to be a finding of fair use. (24) The purpose and character of the use also focuses on whether the new work merely replaces the object of the original creation or instead adds a further purpose or different character. (25) Essentially, whether and to what extent is the new work "transformative." (26) If a work is transformative, it alters the original work and gives it new expression, meaning, or message. (27)

      The second fair use factor recognizes that the law generally acknowledges a greater need to disseminate factual works than works of fiction or fantasy, and that works of a creative nature are closer to the core of intended copyright protection. (28) An author may not copyright his ideas or the facts he narrates. (29) This second factor, however, is not too significant in the overall fair use balancing analysis. (30)

      Under the third fair use factor, wholesale copying does not preclude fair use per se, but copying an entire work weighs against a finding of fair use. (31) Even copying an insubstantial portion of a work can, in effect, be substantial if the heart of the work is taken. (32) Therefore, quantitative and qualitative tests must be applied in order to determine the amount and substantiality of the material used in relation to the copyrighted work. (33) The extent of permissible copying varies with the purpose and character of the use. (34)

      The fourth fair use factor--the effect of the use upon the potential market for or value of the copyrighted work--is the most important element in a fair use analysis. (35) Both the extent of market harm caused by the infringing work and whether unrestricted and widespread dissemination would hurt the potential market for the original and its derivatives must be considered. (36) Courts strive for a balance between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied. (37) The less adverse effect that the alleged infringing use has on the copyright owner's expectation of gain, the less public benefit need be shown to justify the use. (38) An essential question is whether the infringing work is a substitute for the original. (39)

      Two cases illustrate how the Supreme Court has applied the fair use analysis, which allows insight into the relevant inquiries. In Sony Corp of America v. Universal City Studios, Inc., Sony, manufacturer of the Betamax, successfully argued that their consumers' private home recordings of copyrighted TV shows and movies were fair use and therefore it was not liable for contributory infringement of Universal's copyrights. (40) Consumers used the Betamax to record movies and TV shows so that they could watch it at a later time, and presumably, to erase the show after viewing ("time-shifting"). (41) In determining the purpose and character of the use, the Court found that time-shifting was not a commercial use because it was a private activity that took place in the consumers' homes. (42) As the dissent notes, the second statutory factor was basically ignored by the Court. (43) Even though viewers copied entire programs, the third fair use factor weighed in Sony's favor because consumers were invited to view the programs in their entirety free of charge. (44) In addressing the effect of the use upon the potential market for or value of the copyrighted work, a noncommercial use requires proof that either the use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. (45) Actual present harm does not have to be shown and future harm does not have to be shown with certainty. (46) The copyright owners failed to show actual or potential harm because there was no factual basis for their assumptions that live TV, movie, and/or rerun audiences would decrease. (47) Weighing all of the factors, the Court concluded that time shifting was a fair use. (48)

      In Campbell v. Acuff-Rose Music, Inc., the Court considered whether the rap group 2 Live Crew's parody of Roy Orbison's song, "Oh, Pretty Woman," constituted copyright infringement. (49) The second work must comment upon or criticize the original copyrighted work to qualify as a...