It's a mix-master world out there
Posted by aogThursday, 13 July 2006 at 16:19 TrackBack Ping URL

Via Daimnation! is a reference over to Relapsed Catholic and the court case over CleanFlicks.

The set up is the CleanFlicks buys movies, edits them to “clean them up” and then re-sells the modified versions. Hollywood et. al. thinks that nobody should be allowed to modify their content, even after they have sold it.

A common (but wrong) claim is that CleanFlicks was violating copyright by duplicating content. That’s simply wrong, as CleanFlicks bought an original version for each modified version sold. I do not see any difference between this and after market text books that are pre-marked with notes and highlights. CleanFlicks is exactly the same thing, so I wonder if the text book manufacturers will now be able to shut down such used book sellers.

Shaidle at Relapsed Catholic makes arguments that are not flat out wrong like that, but seem to me to be weak at best. One of her primary argument is

what if there was a company called Dirty Flicks that added nudity and swearing to movies like Because of Winn Dixie or whatever it was called, to make them more appealing to non-Christians?

Then how would you feel?

No different and that seems like such a no-brainer that I feel I must be missing something basic about the point. Yet this is brought up in two of her three posts, so it clearly seems like a good one to her.

Slightly better is this:

The idea that some third party would make unauthorized changes to a work of art by me or anyone else is utterly. Absolutely. Disgusting.

At first I thought Shaidle was thinking that CleanFlicks was altering customer’s DVDs without their permission, but that’s not what she meant. Elsewhere she writes:

It is not my copy of the Titanic. It is James Cameron’s film no matter how many millions of copies there are. And it cannot be changed without his consent.

[…]

You are focused too much on copyright and broadcasting and so forth and not on the inviable integrity of the physical artifact. Because you are not an artist you do not understand this issue on an intimate level.

I simply don’t believe that even a little bit. It was never Cameron’s because the original content belonged to the investment consortium / movie studio that paid for the film. And past that, a copy ceased to be even their property once it was sold.

But even taking it at face value, it still fails in so many ways that I can’t take it seriously.

What about the actors, other producers, crew, etc. Don’t they get a share as well? Is unanimous approval needed for a change? What if I just wanted to change some sound effects, would I need to get the sound crew, or can Cameron approve for them?

If this kind of “inviolable integrity” is granted to Cameron, who else gets it for which works? Can Teen Beat magazine have teenage girls arrested for cutting up the magazine and thereby violating the physical artifact? If not, why not? As another person mentioned, what about the films altered by MST3K? What about the photographers whose work was violated by AllahPundit and his photoshop satires? Should this integrity prevent people from fast forwarding over commercials and violating the artistic choices of the broadcast network programmers1?

Oh, but that’s different.

You can’t explain why, can you?

Oh, wait, sorry, I am re-using part of Shaidle’s artistic work and violating its physical integrity. But it’s too late, because I’ve already done selective quotes instead of her entire, integral posts. I can see how this rule would make it a bit hard to have any sort of cross-weblog discussions.

This leads us to another point made by others but worth repeating, is that it’s not possible to distinguish in a clear way between personal edits and edits made on behalf of a person by a third party. What, really, is the difference between a CleanFlicks customer and the same person hitting “SKIP” on the DVD control every time the scene is about to play? Only personal convenience and being on the other side of that argument is a guaranteed losing place to be.

Ultimately, of course, it comes down to Shaidle’s wounded asthetic sense, as the phrase “you are not an artist” demonstrates. Shaidle has no way of knowing that about me, other than I disagree with her on this point. It is the (perceived) asthetic quality of the work that makes Titanic different from Teen Beat. In that regard, if Shaidle wants to simply say that the bowdlerizers are low brow hoi polloi who do not appreciate true art, fine. I don’t know if I could argue against that, at least not in my case2. But that’s not the issue here, it is whether such gutter level appreciation should be legal. On that point, Shaidle is arguing that if the work passes some ineffable level of aesthetic quality, then it should have legal protection. When that level becomes effable, let me know, until then I don’t see how that can be enforced.

In a bigger view, as Nick Gillespie has been pointing out for years, the re-use of artistic content is a tradition that is older than written history. Even Homer got his basic material from other people, not to mention what the Council of Nicea did to earlier Christian artistic content. It is only the recently inflated egos of Hollywood that creates the idea that it should be any different. I intend to enjoy re-hashed content regardless — just think of me as one of the low class rabble hanging out at the Globe Theatre at the turn of the 16th century.


1 Not to mention that the artists being defended have muddied the waters themselves, with all the “special edition” and “director’s cut” output, which simply demonstrates the lack of any true physical integrity to the work. And who should know better, right?

2 Who is to say that my code isn’t artistic? I certainly put a lot of creativity in to it, and I have also seen it degraded, modified, and hacked in to ugly little bits after hundreds of hours of intense effort spent creating it. Been there, had it done to me, not persuaded. I also think it’s telling how “art” means “cinema” and not other forms of creativity.

Comments — Formatting by Textile
Marina Thursday, 13 July 2006 at 18:19

I don’t want to spend a lot of time going into the ins and outs of copyright law, nor am I an expert at the subject, but I’ve read a lot about it, and here is a brief synopsis of my understanding of the subject.

Copyright law came into effect before movies or Hollywood. Originally, it was to protect inventions and written works; only later did the law expand to cover the newer kinds of media.

In a nutshell, copyright law protects the content of a copyrighted work for a period of time for the purpose of encouraging the creators of that work to continue to produce unique works. The idea is that the creator(s) should be the only ones making money off the item for a period of time, after which that work passes into the public domain, where it can then be used by anyone. Otherwise, the thinking went, if anyone could take and sell a creator’s work as their own as soon as that work was published (or otherwise produced), then other people would profit off the creator’s hard work at the cost of the creator, and creators would not be as inclined to create. Therefore, protect the work and you encourage creativity and invention. However, at some point the creator has presumably made enough money off the work, and at that point it becomes the property of everyone. Or no one, depending on how you look at it.

In short, purchasing a work (a book, a movie, a CD, etc.) does not grant you the copyright to it.

There is a a thing called fair use. Fair use states that the purchaser of a work is entitled to make a few copies of that work for their own use (such as for backup purposes), as long as they don’t sell any copies or otherwise distribute copies in such a way that it infringes on the author’s ability to make money. For example, let’s say you purchased an LP long ago and you want it on CD. You are perfectly within your rights to make a CD of that LP (or a tape, if anyone still uses tape). You can burn that CD to your computer, and put the contents on your iPod or other music player. Or, to use the textbook example, you can buy a textbook and read it, underline it, make marginal comments, and otherwise use that copy as you like. You can even tear out pages or burn it if you like. Those are all allowed activities. But you cannot use that book or even large portions of that book in your own “work” and sell the results. In the case of the LP, you cannot make multiple copies of that LP and sell them yourself, or take some of the contents of that LP, mix it into your own music, and sell the results (unless you obtained permission from the original artist).

Specific types of exceptions are made for libraries and schools. For libraries, when copying machines became common, there was a concern that, en masse, the potentially vast numbers of copies made from a single work by various users of the library might exceed the limits stated in the fair use clauses. Common sense asserted itself to state that, while collectively there might potentially be large amounts of copies made, in practice there seldom are and when there are, those copies are each one per an individual, each of whom is exercising their fair use rights on the library’s copy of the work. I have never myself been sure why it is that teachers are supposedly allowed to make, say, 100 copies of a copyrighted work and distribute it to their students, but I am pretty sure that the copyright law does allow that as well. (No profit being made, perhaps? But the author still isn’t profiting from their work.)

What fair use and copyright laws mean in practical terms is that you are entitled to make copies for yourself of your purchased movies and CDs, for example, but you couldn’t sell those copies, nor are you even supposed to give copies to your friends (on the presumption that you are preventing your friend from buying their own copies). Nor could you, for example, take the contents of a favorite book, edit it as you like, then re-sell it as your own work.

Parodies are excepted from this rule: If you make, say, a flash animation that mocks some aspect of the Star Wars movies, and you use characters, locations, events, etc. that would otherwise be covered under copyright, you are protected as long as it is clear that it is a parody.

For example, a few years back, an author used most of the text of “Gone With The Wind” in her own book. She wrote additional scenes using the servants and slaves. Initially, this was promoted as a more PC version of “Gone With The Wind,” one that focused on those whose lives were also affected by slavery and the Civil War but whom the author felt had been overlooked or marginalized in GWTW. When the owners of the copyright on GWTW sued, the author and publishing house changed their tune and claimed it was a parody, which it clearly was not. They lost the case and were forced to stop selling the new version of GWTW.

However, although copyright protects works, it is not only possible but is quite often done to obtain permission to use pieces of other people’s copyrighted works in your own work; this is especially prevalent in the pop music field. The idea here is that the authors still have control over the content: They can say “no,” for example, if they don’t want their work associated with the proposed new work, or changed in the way the person asking permission wants to change it. They also still retain the copyright on that part of the new work that is theirs. The key here is that permission was sought and granted. If you look carefully at the tiny, tiny print on CD inserts, you should be able to find copyright statements to the effect that “Song A uses Song A’, which is copyright Artist A. Song B copyright Recording Company B. Artist C used with permission from Other Recording Company D,” and so on.

As for who the owner of the copyright is: Unless the actors and other people involved in a work have a contract that states otherwise, most such people are not the holders of the copyright, but have instead done their part of the work as a “work for hire,” which means they get paid right away for their work, but can’t expect to receive royalties on the work. The person who invests his or her money in creating the work, hoping to make a profit but not guaranteed any income at all, is taking a big risk. The person accepting payment right away for their work is not taking that risk, and is therefore usually (but not always) excluded from profiting from that work later. Take the famous example of the original Star Trek’s cast and crew: They made not cent one off those early shows beyond what they were paid at the time. Nowadays, partly because of that example, it is much more possible to get royalty rights written into your contract.

All sorts of things are copyrightable, including software. If you look carefully at the EULAs that we all “sign” when installing new software, you’ll see that you are being granted a license to use the software; you don’t actually own the software itself. That is how software companies help protect their copyrights. This means that your code is copyrightable too. I believe that the rule is that if code is changed 20% or more, then it is considered new and no longer the original copyrighted piece, but that is quite old information and the law may have changed on that since I last read about it.

Of course, whether one agrees with copyright law is another issue entirely.

This is probably way too much information on one hand, and not nearly enough on the other. Also remember I am not an expert, but I am fairly confident that what I have said is true. You can look into it yourself if you like.

Annoying Old Guy Thursday, 13 July 2006 at 19:06

I think that’s basically correct, but not particularly relevant. The key point is that CleanFlicks didn’t sell copies. The copyright holders recieved full payment for every DVD sold by CleanFlicks. CleanFlicks would buy a DVD just like anyone else, modify it, then re-sell that DVD. No different than selling used books, which doesn’t seem to violate copyright law.

This is in contrast to the GWTW example, where the people selling the book sold copies. Had they purchased original GWTW books, inserted addition pages, then sold the books, do you think they would have violated copyright law?

I am belaboring this because it seems to be a very common misconception about the case.

P.S. As for my code, I didn’t own the stuff that got mangled, my former employer did (much as the movie studio owned Titanic, not Cameron). I learned to live with it.

cjm Thursday, 13 July 2006 at 19:29

i notice the studios and directors don’t have a problem with tv stations buthcering their work and bleeping out profanity. let’s pass a law that says a movie or song can never be played except in its original form, and watch all that easy money drain away. bastards.

cjm Thursday, 13 July 2006 at 19:30

oh, is that a “Tremors” reference (re: mix-master) ?

Annoying Old Guy Thursday, 13 July 2006 at 19:48

Uh, yeah, let’s go with that.

Michael Herdegen Thursday, 13 July 2006 at 22:58

And the studios wonder why they’re selling fewer tickets every year.

“Hollywood” is destined to have been a 20th century phenom. Technological advances have reduced the capital costs of becoming a professional studio to something within the reach of any middle-class American, and actors are literally a dime a dozen. Only 3% of SAG members are working at any given time, and no more than 10% of those who would like to be professional actors have earned SAG cards.

Since there’s not much advantage anymore to concentrating the industry in one location, and the barriers to entry are now very low, the only thing that “Hollywood” has left is their distribution system - which the ‘net will put paid to within a decade. (Probably).

Which is not to say that today’s major studios will necessarily wither away. They’ll still have talent, facilities, financing, and a large advertising budget.

However, they’ll no longer be able to ignore America’s feedback about their product. If they continue with the “my way or the highway” diva act, they’ll go down the same painful path that the American auto manufacturers did.

Andrea Harris Saturday, 15 July 2006 at 11:09

I think what really bothers her is the fact that these are her fellow Christians doing what too many Christians do — hiding or deleting unpleasant facts because they aren’t “nice,” and because they might raise too many questions about the nature of God and the problem of evil in the minds of the buyers’ offspring — and in their own minds. As another Christian writer pointed out in a related article on Flannery O’Connor (who had fellow Christians complain that her stories were too un-nice for proper Christians to read), actual Christian doctrine doesn’t give its followers permission to “make things nice.” But essentially this is a religious argument. Though I will say I grew up watching bowdlerized movies on network tv and I hated it — the laughably fake dubbings and the clumsy editing out of “non-family-friendly” scenes made me feel like I’d asked for cereal and was given the empty box. Maybe they don’t do this to movies for tv in Canada (where Kathy is from) — though they get the Sci-Fi channel now and I can tell you that Sci-Fi shows the chopped and hacked “safe” versions of theatrical movies even if they show them after 9pm.

Jeff Guinn Saturday, 15 July 2006 at 20:14

I remember the first time Monty Python and the Holy Grail was shown on network TV.

The Black Knight’s every de-limbing was excised, rendering the whole scene nearly inchoherent. The whole bowdlerization exercise was kind of mystifying, given the deliberate cartoonishness of the violence, which was no worse than your garden variety Tom & Jerry episode.

Marina:

Very nice precis on copyright law — thanks.

Annoying Old Guy Saturday, 15 July 2006 at 21:03

Ms. Harris;

That’s a reasonable viewpoint, perhaps she should have actually argued it :-). She was the one who dragged copyright law in to the discussion, by starting with a court case about copyright law.

However, I still think it’s more about snobbery than religion, primarily because of comments like “you’re not an artist, you can’t understand”. Artist, not Catholic / Christian.

Andrea Harris Saturday, 15 July 2006 at 21:16

Yeah, there is that artist thing too, which I thought about later but I had to run some errands. On the one hand, I can sympathize with her viewpoint — it is very irritating to the artistically enclined to be reminded day in and day out that basically the things they give their hearts and soul to don’t matter to the majority of people. Heck, I empathize — I fancy myself one of those artistically inclined people and too much contact with the bulk of my fellow beings and their love of bland junk food in place of caviar* is like torture to me. But on the other hand, when it comes to works like movies, that have in general been passed through so many hands that the end products are often barely recognizable from what their creator(s) had intended to produce, I am not sure these qualify entirely as pristine objects that we should reverence. And even unchangeable works of art like the Mona Lisa have been used in ways Leonardo surely did not intend, though the actual painting itself is unaltered.

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