The rights of the author

Nevermind copyright for the moment. I want to look instead at creators’ rights.

A federal judge just ruled against CleanFlicks’ sanitizing of movies, editing out the allegedly naughty bits and then selling cleansed copies. The judge said this was a violation of copyright. The Salt Lake Tribune’s coverage adds: “The ruling does not affect another Utah company, ClearPlay, which has developed technology in DVD players that edits movies on the fly as they play.” So this ruling does come down to copyright — the right to copy — yet it also raises other issues.

Out of this news comes to opposing views from two web authors. (I love it when that happens. The web should be a neverending Oxford debate; may the best argument win.) Nick Gillespie, editor of Reason, takes CleanFlicks’ side, arguing that it’s our right to remix. Infotainment rules, on the other hand, argues that in this case copyright is a good thing for it is keeping bad things from happening to creative work.

I’m not entirely sure where I come down (yes, mark this day in your history books). On the one hand, I’m encouraging media people to submit their creations to the great remix out there: If you’re remixed, you’re part of the conversation, I say, and the conversation is the new distribution. But on the other hand, I would hate it if something I created under my name were mangled: I hate editors; that’s why I blog.

So get past the rights of ownership to the rights of authorship. When you create something, what rights should you have — ethically and legally — to maintain your creation in its full form, to protect your ideas and thoughts from bastardization?

When I wrote for People magazine, way back when, I wrote a favorable review of Concealed Enemies, a PBS miniseries. As I told the story here, the then editor-in-chief of Time Inc. took it upon himself to change not just the words but the opinions in my review (to make it favorable to his friend and mentor, Whitaker Chambers). He tried to put opinions that were not mine under my name. I said I would resign rather than let that happen. I saw it as a journalistic and ethical right to protect my views and my reputation with them. I won, by the way.

So what if someone took something I wrote here and changed my opinions utterly? What if the so-called Parents Television Council took a post of mine and made me an enemy of the First Amendment and Howard Stern? What if Dell made me into a satisfied customer?

Steven Spielberg wouldn’t allow so much as one “fuck” to be taken out of his Saving Private Ryan and that’s why some stations refused to be caught in a vice between him and the threat of an FCC fine and so they didn’t air the movie. Was that Spielberg’s right? I’d say so. He would rather that his movie not be seen than mangled by someone else.

So in one sense, the CleanFlicks decision is just a copyright fight: You can’t copy and sell a movie. But it raises these issues of authors’ rights. And so does that other technology that takes out the dirty bits for you.

But on the other hand, if you bought a DVD of Private Ryan, don’t you have some rights of use and ownership? Couldn’t you hit a dump button every time the F bomb is dropped if your kids are in the room? How do your rights of ownership clash with Spielberg’s rights of authorship and ownership?

And what if you’re a TV station reporting on the controversy over Ryan and you go into the movie and compile all the scenes with no-no words but show it on the air with bleeps. You do this to avoid FCC fines. Or what if you’re a comedy news show and you take all the bleep words and turned them into jokes: “Motherflower… Goddogged…” You do this to make fair comment on something in the news.

All this is timely around here as I talk about the need to reinvent the book, not to mention the rest of media; the need to get into a conversation; the need to be collaborative, the benefit of the remix; the value of the direct link. And the question often is raised: What is the role of the author in this new world? In journalism, I say that the author becomes more of a moderator, and when you’re seeking facts and information, that makes sense.

But in art, the author is the creator and has rights surrounding that creation. But that may change, too, as art itself becomes more collaborative. So what are the rights of the author? Do copyright and Creative Commons protect those rights? And what are the ethics of the remix? Is linking to the original sufficient? Is permission required? Is fair use a license to quote and thus to comment? Aren’t selection and alteration forms of comment? What rights does the audience have to change? In an age of the permalink and the deep link and the ability to track and compile consumption, in an age when consumption becomes an act of creation, isn’t that ability to just get to the good bits the audience likes a form of editing?

Here’s what Gillespie says:

As a viewer, I am already acting as a “third-party editor” to Apted’s–and every other directors’–films. As a writer, I can sympathize with Apted’s sense of creative ownership and his fear of losing control of his work. . . .

But here’s the rub. There is only unauthorized editing whenever a piece of culture is put in front of an audience. The individuals watching in the darkened theater, the family room, or on a computer screen are constantly making choices, skipping over stuff, misinterpreting things, and more. The audience, alas, has a mind of its own, and that mind doesn’t care about the creator’s intentions. . . .

But the old model, in which a producer produces and an audience passively consumes culture, is over. To be completely honest, that old model was never the way culture worked anyway, but even the pretense of full artistic control is finished in today’s environment, in which individuals have an ever-increasing ability to produce and consume culture on their own terms.

And here is Infotainment’s argument:

In the conversation about the coming digital revolution in books, I argued that many authors will want to keep their books whole–not to cling to copyright for its own sake but rather because sometimes it is the integrity of the work that makes a particular book exceptional: it is of a piece, and every word is essential to making it what it is, so altering it takes something away from the work. Books like that exist. Let’s say, for the sake of the argument, J.D. Salinger’s The Catcher in the Rye and E.L. Doctorow’s Ragtime. Others will have their own examples.

So too with films. Whether you’re colorizing them to get eyeballs not used to black-and-white or chopping them up to make them Palatable for the Pious, you’re destroying their integrity.

It’s a valid argument, and an argument we need to be clear on–and one we will need to stand up for–as the digital revolution continues apace and the Moral Marauders start to take advantage of it

What’s yours?

  • Jimmy

    I am firmly on the side of the creator here. I’m firmly of the opinion that if you don’t like something, don’t partake of it. If the little bit of nudity in Titanic bothers you, don’t watch it; or have your children avert their eyes while you fast forward. The problem with this sanitizing is where does it all end? I guess I can get that movies can be edited for content on the public airwaves, that’s necessary to appease the “christians” and their FCC, but isn’t that done with the creators’ approval? Can you really edit a movie like Saving Private Ryan and still keep the overall feel of the film? I don’t think so. This film was commended by the people who there on D-Day for being realistic in all its forms — language included. To edit in a few “dangs” and “darns” to appease an extreme minority of people destroys the work and should offend those it attempts to recognize for their valor. Could the nude scene in Titanic be removed without upsetting the balance of that horrid film? Sure, but why should it? I mean, what is it these people want? If there was such a huge market for G and PG films wouldn’t more of them be successful? Wouldn’t more people watch Seventh Heaven? This whole thing is ridiculous. What these people want is to impose their minority world view on the majority, and it’s wrong.

  • Joseph

    I don’t see this ruling standing on appeal. If TV stations can edit movies for content then it is inherently contradictory to prohibit individuals or companies from doing the same.

    Now if someone edited “Saving Private Ryan” in a way that fundamentally changed the story that is another matter entirely, even though Hollywood does this routinely to the works of authors and screenwriters. But if the PTC or Dell edited your comments to make you appear to be in favor of them then that would constitute fraud and you could sue them, and rightly so. You never sold that right preventing someone from fundamentally changing your work like authors and screenwriters routinely have to do when selling their material to Hollywood.

    But if “colorizing” a black and white film harms its “artistic integrity” then should we require all films to be letterboxed under the same argument?

    What about the artistic integrity of the original author or screenwriter who most times sees their work mangled beyond recognition by some director or studio executive who thinks he knows better? When they sell the rights to their work to a studio they apparently are giving away any right to how their work is ultimately presented. So how is this any different from what happens when the right to sell a movie is transferred to another company or individual? Don’t they also have the right to alter that work, without changing its message (which is a courtesy that authors and screenwriters don’t typically receive from Hollywood) to suit the sensibilities of their market or family as well?

    This ruling is just silly and sets up a very slippery slope that I don’t think anyone will be able to ultimately stand on.

  • http://robertdfeinman.com/society Robert Feinman

    Random thoughts:
    1. I assume most bleeping on TV is done with the permission of the copyright holder. That is, there is some sort of basc agreement which covers all, or specific films, which are broadcast and gives the station the discretion to do what it thinks fit. So this is not a copyright issue, but a contractual one.

    2. Underlying the issue of obscenity/indecency is buried the religious concept of blasphemy. This is so internalized in most cultures that the connection is not even noticed. The concept that saying or thinking something is inherently so dangerous that it will bring permanent harm to those hearing the words. I personally don’t like unnecessary vulgarity during broadcasts. But my objection has to do with its use because of its shock value, rather than for any other reason. Most people are upset by similar vulgarity in the workplace, for example. Profanity in the middle of a war movie doesn’t bother me. I think that children shouldn’t be watching this type of fare because of the strong emotions involved. Bleeping is the least of the issues.

    3. The real travesty over copyright is the way the creators are treated. Because of the need for marketing and promotion most “artists” get the short end of the stick when the financial rewards are handed out. A young artist sells a painting for $100 and twenty years later it gets resold for one million, how much of that does the artist see – zilch.

    In the UK there is a fund that libraries pay into which is used to compensate authors for the loss of revenue for their books being loaned rather than bought. We could use something like that, or perhaps even more comprehensive, in the US.

    4. Copyright abuse is another area. People now trying to copyright everything including building exteriors. Imagine trying to get clearance to sell a photo of the NYC skyline. The length of copyright coverage and the assigning of it to corporations is also a distortion of the original intent.

  • http://www.jasonlefkowitz.net Jason Lefkowitz

    This doesn’t seem all that complicated to me.

    If you want to take your copy of Saving Private Ryan, edit out all the bad words, and watch it in the privacy of your home, there’s no problem.

    If you want to take your copy of Saving Private Ryan, edit out all the bad words, and sell your edited copy to other people, that’s a problem.

    In other words, you cross the line when you take a creator’s work, make a few changes, and then profit from that altered work without obtaining the creator’s consent and fairly compensating them. Every copy of the CleanFlix version of SPR sold is potentially a copy that Steven Spielberg isn’t selling. That’s harm done directly to the creator of the original work.

    (You say that CleanFlix buyers would never have bought an unedited copy of SPR? I say that some might not, but others — those whose feelings about the profanity are lightly held — if presented with the choice of SPR as originally created or no SPR at all, would have bought the original version.)

    Had CleanFlix obtained the creator’s approval for their edits before chopping up the films, there’d be no problem. But they didn’t, probably because they knew most filmmakers would never consent. They crossed a line when they decided to go ahead and sell the edited versions anyway.

    (If you want a less clear situation, imagine that CleanFlix, rather than being a business selling their edited copies, had been a group of volunteers posting the edited versions to the Net for anyone to freely download. That would have been morally and legally fuzzier, since the editors would not be making money off someone else’s original work.)

  • Old Grouch

    Jason, as I understand it CleanFlix bought a copy of each film to match every edited one they sold/had in rental circulation. If that’s correct, there’s no question about potential lost sales or “fairly compensating” the creators: The film companies wound up selling just as many DVDs as they would have if CleanFlix had simply been in the sale/rental business.

    The decision raises an interesting question, in that it seems to say that copyright law prevents me from hiring someone else to do something that I’m allowed to do myself. There are implications beyond the case: For example, there are commercial services that convert people’s CD libraries into MP3 files. (You send them the CDs, they send them back, along with a disc of MP3s.) They are copying/modifying. Does this decision mean that they are violating copyright?

    My own thoughts: If the studios had any sense, they would have been doing this themselves to begin with. They already do “edited for TV” versions (and also do edits for some markets), and they already permit individual stations (purchasers of movie packages for broadcast) to do substantial cutting, usually with little or no supervision. Why not satisfy a potential market, and at the same time give the creator some say in the process.

    Ethics of the remix? Make it clear that your edit isn’t the original. See that the creator gets his compensation. Then let the market decide.

  • anonymous

    Suppose I buy a painting, and then I take it home and paint over it. Is that a problem? Suppose I buy a book and rip out some of the pages. Is that a problem? Suppose I buy a movie and edit out all the dirty bits? Suppose I pay someone to edit the dirty bits for me? I say no problem.

    Copyright doesn’t ensure that your work might not be changed by a purchaser. What it protects is your right to sell your own work as is, and not have someone else cut you out of selling your own work.

  • Ed Rusch

    your problem, Jeffo, is that you want to retain copyright for yourself and strip it from others.

  • Hunter McDaniel

    This is another example of the “continental” concept of copyright (a right of authors to control their creations) infecting the US tradition of copyright (a utilitarian incentive to spur creation and innvoation). Count me firmly on the side of the US tradition here. I don’t see any difference between what CleanFlicks does vs. what a van conversion shop does to Ford panel trucks they bought off the line.

    If Spielberg wants total control over a movie, he can spend the $50M it takes and show it to friends in his basement. But if he wants to put it out in public and still control our experience, then he can f**k off. He is already being compensated well enough, without our being required to bow down before his art.

    I also find it amusing to see how IMPORTANT these guys feel it is to make sure we hear every last fuck and that we get to see Kate Winslet’s breasts. Well, I’m ok with the latter.

  • http://www.our-hometown.com Stephen Larson

    If creators are allowed to prevent changes AND allowed to allow changes, then all creators will contribute. If creators MUST allow changes, some creators will opt to not create.

  • bill

    I believe that CleanFlick included a FULL legitimate purchased disc in the same pack along with their edited version. So no one was out any thing per se. Plus as stated every TV show of a movie is edited every night.

  • http://how-infotaining.com hepzeeba

    Thanks for the link, Jeff. And you raise a lot of interesting questions.

    Gillespie has got to be kidding. And he muddies the waters by bringing the audience’s meaning-making contribution into the argument. (I’m sympathetic to the argument, but not in this context: a “cultural commodity”–book, movie, piece of music—isn’t altered by our experiencing it.)

    Of course there should be creators’ rights—if not for money than for the credit. In particular, artists seek immortality—it’s a strong motivator (particularlly since there’s usually no money!). If you deny them the moral right to authorship, you remove the motivator.

    We should own our own words and inventions, and we should be the ones to decide the extent to which we want to share them for the remix culture. We should have many (paying) long-tail-type options for remixing it.

    Particularly now that we civilians have our own means of production, creators shouldn’t have to license their creations exclusively or in perpetuity to the organizations that finance them (which is how copyright works in the movie business; in the book business, authors grant exclusive rights to publishers for their [the author’s] lifetime plus 76 years—as long as the work remains in print; if it goes out of print, the author can request to have the rights reverted.

    Movie directors can exercise their creators’ rights (such as they are) only through movie studios. Obviously, the CleanFlicks case wasn’t fought for creators’ rights. If there’s money to be made from sanitizing movies, the studio, conveniently the copyright holder, wants to be the one making the money. But it’s still a victory for the good guys, because in a sanitized version made by the studio, the directors would have been able to exercise some control over the final product.

    Presumably. If they cared. And even if they didn’t care, we should. Because that same right guarantees that our words and inventions can’t be exploited for, say, evil political reasons.

  • Alan

    Jason got it right, couldn’t say it better, except the net example, that is very clear cut to me, it is a copyright violation, edited or not.

  • Chas

    What arrogance! This is like saying “if you want to buy my book, you’re required to read all the pages. Otherwise you won’t be appreciating the full scope of my brilliance.” The copyright issue is simple: the creator is entitled to be paid for each copy, including each “derivative work.” That’s not the issue here. The issue here is vanity. I can’t believe that people who see the mass media as old time, and appreciate the implications of blogging, don’t see this.

  • http://www.InklingBooks.com/ Mike Perry

    Not only arrogant, hypocritical. Artistic integrity has never kept Hollywood from editing movies to make more money. That’s perhaps the real rub here. Because these parents already owned the DVD, fair use meant that they need not pay a penny to make a trunciated copy, any more than I need to do so when I copy part of a music CD to my iPod. Hence this most unAmerican appeal to artistic integrity. It’s France, homeland of the world’s dullest films, that fusses over that sort of thing.

    Hollywood has always let greed trump artistic integrity. If I remember right, “Casablanca” was edited to make it more palitable in Facist Italy and “Independence Day” to cater to Arab anti-Semites. Perhaps the best scene in “Rainmaker,” the one where they’re at the airport in Chicago and the plane crashes of airline after airline get enumerated, was cut from the version to be shown on airplanes. Worst of all, movies are routinely chopped up in dreadful ways to allow more ads to fit into the two-hour slot given to movies that even without ads run longer than that. That mutilation of the movie makers’ art is one reason why I quit watching movies on commercial TV. But note how that bothers the film industry not a bit. Did I mention they were greedy?

    No, the particulars of this case are very important. Between 1960 and 1975, religious bigotry replaced racial bigotry in places such as Hollywood. This is an classic example of kicking the new target of elite bigotry. Religious parents having replaced black parents as the ones where offending is not only acceptable but required. The “F” word has replaced the “N” word.

    Keep in mind what these parents, whether Jewish, Protestant, Catholic, or Morman, are doing. They don’t want their kids to be cut off from our mass media and conversations with their friends, but they also don’t want to trash their young minds what Hollywood considers sophistication (i.e. the “F” word) and which they quite rightly consider childish. After all, it’s a rebellious and immature child who wants to do something just because some adult doesn’t want them to do it. Steven Spielberg wants his “F” word in “Private Ryan,” and if he can’t keep it there, he’ll roll on the floor, kick wildly and hold his breath until he turns blue. Grow up little boy.

    Although I think the logic of this case dictates that selective copy of a CD to an iPod or of a DVD to a video iPod is also a violation, I’m not sure the required greed factor is there to drive Hollywood to sue and without that, the courts will be silent. Like it or not, the future of music distribution is online and digital. Today’s young adults won’t accept anything else.

    The real danger is that, if not overturned, this decision will fix in law an already nasty practice with DVDs–the forced can’t skip and can’t fast forward dictates. As a writer who has to retain my audience by keeping them interested, I don’t have any respect for a movie industry that wants to dictate through technology what viewers must watch down to the last second. What this country needs is a law that requires all DVD players to have a switch on the back. When flipped, all studio dictates are deactivated. Users can skip and fast-forward to their heart’s content. The politicians who put that law on the books will be be loved everywhere but Tinseltown.

    After all, imposing our views on top of a creator’s work is what we’ve always been able to do with books, magazines and newspapers. It goes to the very heart of personal freedom. Why should movies be any different? If we can criticise an author in the margins of a book and even rip out pages we find disgusting and then sell that book to others quite legally, why can’t we do the same with a movie? If Hollywood’s movie directors don’t want something cut, they can make it so good no one wants to cut it.

    –Mike Perry, Seattle, Editor of The School of Journalism by Joseph Pulitzer.

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