In this transcription of a symposium on the changing rights of the artist, Jonathan Band (partner at Morrison and Foerster), Rebecca Tushnet (Asst. Professor at NYU Law School), and Eugene Mopsik (Executive Director of the American Society of Media Photographers) discuss the rights of the directors whose films are edited by ClearPlay technology. Band recounts the comments of various lobbyists and political figures testifying on the Family Entertainment and Copyright Act, stating that the Register of Copyrights argued against the bill because users have the choice to buy a product and should simply refrain from buying an offensive product rather than disrespect the vision of the author. Jack Valente also testified against the bill because he felt that the technology indeed infringes on the derivative work right because the software could be designed to skip not just offensive content, but any content. Mopsik addresses the concern that viewers attribute the features and feel of the edited work to the director’s vision. Lastly, Tushnet acknowledged that there is a “spectrum” of acceptable editing (ClearPlay is acceptable while CleanFlicks is not), and that consumers watching a CleanFlicks DVD have the same experience as consumers watching a ClearPlay DVD.

This piece supports my thesis as it discusses some of the immediate political reaction to the legislation that legalized ClearPlay. Even though FECA is now a law, the arguments made above against the legislation are still valid, particularly Valente’s argument. Mopsik’s discussion of attribution is more in depth than those in other articles, which mostly discuss whether or not a consumer knows the film is edited, and instead analyzes who the vision belongs to rather than who has the right to decide the vision.

In “Feca Matter,” which appeared in the John Marshall Review of Intellectual Property Law, Jacob Armstrong states that arguments for DVD-editing technology like ClearPlay have favored consumer rights over artist rights, and that artists rights must be protected. Armstrong, an attorney and legal scholar, argues that regardless of why or how a film is edited, the resulting film changes the expression of the copyrighted work that the director intended. While consumers may want the right to change the way a film is viewed at home using a specialized DVD player like ClearPlay rather than a remote control, artists want the intended meaning of their work to be preserved. Furthermore, the passage of FECA violates the U.S.’s presence in the Berne Convention, which states that members must have moral rights in their legislative understanding of copyright law.

Armstrong’s article supports my thesis, as it makes a strong, clear case for artists’ rights and shows a coherent path towards moral rights, rather than simply proposing them as necessary for the illegalization of ClearPlay. Furthermore, Armstrong points out that companies like ClearPlay have claimed in court that they are not creating anything new from the film; that they are therefore preserving the film and therefore not violating artists’ rights. However, if such is the case, then ClearPlay is not fair use because it does not transform the work and it takes most of the film (or the “heart” of the work).

In this article, which appeared in the Santa Clara Computer and High Technology
Law Journal, Aaron Clark argues that even if moral rights were applied to video filters like ClearPlay, the technology would not infringe on those rights. Clark quotes the case in which moral rights were first defined using the Lanham Act: “The purpose of the Lanham Act is to prevent misrepresentations, such that the author of an original work is not “present[ed] to the public as the creator of a work not his own, and thus [keep him from being] subject to criticism for work he has not done” (Gilliam, 538 F2d at 24 as qtd. in Clark 70). Under that definition, it seems that ClearPlay is violating the Lanham Act. However, Clark explains that this case was the only one in which moral rights were defined in this way, meaning that any application of the Lanham Act would be an unlikely exception to the rule. In fact, the argument was really only valid in that case because ABC did not tell viewers they were editing the piece in question and viewers might miss a disclaimer aired at the beginning of the special, and because the viewers could not compare the edited and non-edited versions. ClearPlay, on the other hand, makes it clear that the films are edited. 

This article complicates my thesis, especially in its dissection of the first use of the Lanham Act in defending moral rights. While it is difficult to argue that consumers do not know the film is being edited—they may buy the film because they know ClearPlay will edit it—it may not be possible for them to compare the edited and non-edited versions. In fact, this argument is particularly true when the intended consumer is imagined: it is not just the parent, likely familiar with the film, that watches the film, but the child who may not know anything of the original film or know that anything is missing. In fact, the child viewer may not even know that he or she is watching an edited film. Although the child is not the one buying the film, he or she is largely the reason the technology was created, and the effect on them of the film’s edits should not be forgotten.

Gail H. Cline’s 2004 article from the Hastings Communication and Entertainment Law Journal objects to the use of ClearPlay, arguing that the use of such technology violates the Lanham Act, thereby adversely affecting directors’ reputations. Cline, an attorney, does not believe that ClearPlay is fair use, and that the company is in fact guilty of contributory liability for aiding consumers in creating derivative works. Cline believes that in editing films, ClearPlay changes those things that mark a work as that of a particular director, thereby changing the way viewers identify the film and the director. Because the credits are left unchanged at the end of the film, a viewer may assume that the people listed created the filtered film rather than—or along with—the vision expressed in the unfiltered film. Furthermore, because the RAM technology of the machines creates a short-term derivative work, ClearPlay encourages consumers’ infringement.

This article supports my thesis as it argues expressly for the rights of the author/director. Not only does Cline argue that the transformations ClearPlay makes ruin a director’s artistic vision, but she also insists that this transformation does not make the technology fair use because it takes most (or the “heart”) of the film, and it seizes the studio’s potential market for creating sanitized versions of its own films.

However, this article also complicates my thesis, as it was written before the passage of the Family Rights and Entertainment Act. In fact, the existence of this law is perhaps the biggest complication for my argument in general—how is it possible to argue for the rights of the director when legislation has already deemed ClearPlay legal? However, because ClearPlay is not mentioned by name in the legislation, it is still possible to argue against the technology with the Act in place.

Philip Vineyard’s article, from the Tulane Journal of Technology and Intellectual Property, argues against the introduction of moral rights into U.S. copyright law. Vineyard believes that, considering the country’s relationship to the Statute of Anne, “A court should balance ‘societal benefits [in] expand[ing] public access’ to an authors’ works against the likelihood that too much expansion ‘might reduce the supply and variety of original works available by impairing the incentives for their creation’” (Lunney as qtd. in Vineyard 232). Whereas Cline’s previously discussed argument raises concerns that ClearPlay changes a consumer’s reputation because they may believe the director has approved the technology’s edits, Vineyard believes that the consumer knows that material is being skipped over and therefore the Lanham Act is not applicable. Furthermore, the availability of ClearPlay will, if anything, benefit the public interest by making more films viewable for consumers.

This argument complicates my thesis in a positive way because although an argument for moral rights is a tempting one to make against ClearPlay, it is both too simplistic and too difficult to make. The likelihood of moral rights legislature being introduced in order to protect films is low, especially after copyright law has existed for so long without it. It is difficult to say whether or not the consumer knows that material is being skipped over, and to what extent. This raises an interesting point of contention with the technology: do the consumers buy the film knowing that there is lewd content and if so, do they know how much is present? Is it assumed that the person buying the film has seen it before (such as a parent), and is going to show the film via ClearPlay to someone unfamiliar with the film and the director’s work (a child)? If so, ClearPlay is indeed infringing on the director’s reputation under the Lanham Act, regardless of moral rights.