Can a company edit a feature film into something new and sell it for financial gain?
On August 24, the 9th Circuit Court of Appeals left standing a lower court’s order barring the Utah-based company VidAngel from providing its customers with “filtered” versions of feature films. (Deseret News of Salt Lake City has covered this story extensively.) The filtering technology lets viewers remove potentially objectionable content, such as depictions of sex, violence, and strong language.
Simply speaking, some movie viewers would rather have less of one aspect or another – e.g. less sex, less profanity, less violence – in the movies they opt to watch. Back in 2005, Congress helped these folks out through the Family Entertainment and Copyright Act, and its companion, the 2005 Family Movie Act (FMA). This narrowly-written provision allows for the development of ‘skipping ahead ‘ and on-the-fly functionality for DVDs played in the home. This legislation arose out of legal questions concerning a company and technology known as ClearPlay, which enables content filtering through in-line hardware devices, layered between the DVD and the video display.
It’s important to understand that VidAngel’s current issues do not arise out of a vacuum.
VidAngel meets Deadpool
As recently as 2015, VidAngel simply ripped DVDs without licensing for commercial reuse, and provided their own filtered version of the films. (This implicated the First Sale Doctrine of copyright in an interesting way, but since this version of the service has been shuttered, it is now a moot point.) This procedure did not pass legal muster, and now VidAngel provides its filtered versions through a streaming technology, like Netflix or Amazon accounts. The legitimacy of this procedure is also disputed, and one could argue that the continued efforts of VidAngel are simply explained as “looking for loopholes” in the memorable phrasing often attributed to W.C. Fields.
Example: 20th Century Fox Films and Marvel Entertainment (a subsidiary of The Walt Disney company) were the studios responsible for 2016’s Deadpool, an R-rated superhero-genre film featuring an eponymous main character, i.e., a back-talking, vulgar mercenary assassin. The theatrical release included lots of violence, and a modicum of steamy scenes.(Common Sense Media: “All of that said, the story does ultimately promote teamwork, collaboration, and love.”)
The studio and the production company worked hard across several years to hit just the balance they sought between a bland, sanitized version of the character – which would surely disappoint fans – and one that went over-the-top with lewdness. But while the popularity of the film is evidence that Marvel and Fox found that balance, there is presumably a category of pre-teens who would also wish to view it, if only their parents would let them. If a filtered version were available, likely it would find an audience. But, should that audience be gained at the cost of the integrity of the film itself? Putting it another way, is Goodfellas without the swearing and violence still Goodfellas?
Filtering and the Film Industry
This ‘filtering’ process – another word for cutting or suppressing a movie’s content – is considered controversial, or even unacceptable by many studios and directors. ‘Filtering’ isn’t new – the literary word for this action is “Bowdlerizing,” a 19th-century process in which an author’s text was cut or emended by others to suit the presumed tastes of a pre-Victorian audience. (Thomas and Henrietta Bowdler published “The Family Shakespeare,” in 1807, making such substitutions as “Out crimson spot!” for Shakespear’s original, “Out, damned spot!” That stuff apparently got the audiences of Jane Austen’s time all worked up.) As it turns out, for decades many major studios have made “clean versions” available for showing during air travel, or over broadcast television, their rationale being that the potential sensitivities of the “passenger in the next seat” ought to be given some consideration. In the domain of recorded music, this is known as the “radio edit.”
So, is there a clear difference between content-filtering ClearPlay technology and VidAngel’s services? ClearPlay has been operating for more than a decade without much hindrance, while VidAngel just lost a round at the appeals court in the Ninth Circuit and has had to again adjust their technology and business model.
Essentially, courts have found that while ClearPlay “colors within the lines” of the FMA, creating no new copies of the films it filters, VidAngel continues to violate one or more sections of Title 17 (the U.S. copyright act), including sections of the DMCA,and therefore it doesn’t qualify for FMA exceptions. (The DMCA, which became law in 1998, is that part of Title 17 dealing with issues such as anti-circumvention and certain exemptions for internet service providers. Jim Burger and Mark Sableman, of Thomson Coburn LLP, have provided an excellent overview of the issue from their perspective.) In June, Senator Orrin Hatch of Utah wrote to the studio’s trade association, the Motion Picture Association of America (MPAA), suggesting that if an industry solution is not in the works, a legislative patch to the FMA, one which explicitly authorizes such filtering in the context of streaming, is a possibility he might ask Congress to consider. (Variety, June 21, 2017.)
The lingering question is: Is this legal?
As of August 31, 2017, VidAngel made motions requesting that courts in Utah and California provide rulings that their streaming and filtering approach is presumptively legitimate. On the side of the angels, one might say.
We’ll see. Assuming these issues can be successfully resolved, good luck to them.
View some of my commentary on other copyright issues here: