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INTRODUCTION

In 1998, two American Fork, Utah entertainment businesses instigated a national debate over expressive values, morality, property rights, and copyright infringement when they deleted two provocative scenes from the Academy Award-winning movie Titanic.1 When Paramount Pictures learned that the Towne Cinema was advertising and playing a sanitized version of the PG-13-rated film,2 the Hollywood studio promptly barred the small theater from showing edited movies, claiming that the theater's editing process violated trademark and copyright laws.3 Several months later, when Titanic was released on videotape, Sunrise Family Video offered to cut the same three minutes of material from videotapes that were purchased by individual customers.4 The response far exceeded the proprietors' expectations: Shortly after they posted the sign, "We Will Edit Your 'Titanic' For $5.00," outside the tiny video store, requests to snip the suggestive scenes came in torrents.5 Sunrise edited more than 1,700 Titanic videotapes in 1998;6 by March 1999, it had "cleaned up" more than 5,000 copies.7 Business was brisk and although the store received letters from Paramount Pictures threatening legal action, none followed.8 Thus, the cottage industry of edited movies (hereinafter "E-rated movies" or "E-movies"9) was born.10

Over the past five years, this mom-and-pop endeavor has evolved into big business. Presently there are more than ten companies offering edited movies in various media formats both in stores and via the Internet;" what began as a Utah phenomenon now reaches consumers in all fifty states. Without first securing the consent of the directors or film studios, E-movie establishments have cleaned up more than 500 titles12-including, for example, the highly-acclaimed Rain Man,13 The English Patient,14 and Lord of the Rings: The Return of the King15-and new titles appear in sanitized form each week.16

To create "family-friendly" flicks, editors screen each original movie and then excise strong language, graphic violence, sexual content, and other mature material. The number of alterations made to a single movie can range from one or two, as in Titanic, to hundreds,17 as in the E-rated Saving Private Ryan;18 accordingly, the effect that this third party editing has on the underlying film's message and content varies widely. At times, editorial decisions to tone down a film's language, sex or gore, might minimally impact Hollywood's original product. For example, the E-rated versions of Planes, Trains and Automobiles and Good Will Hunting19 mute hundreds of profanities, but leave the films' plots intact.20 Similarly, in The Matrix Reloaded,21 "Neo and Trinity kiss longingly, and then-blink!-instantly appear sweaty and tousled, chatting in bed. [Although the editors] just sent three and a half minutes to the cutting room floor," the viewer can follow the plot with ease.22 And the E-rated version of The Patriot23 "required minimal editing[;] [t]here was virtually no language, [and] no nudity, [so only] a few graphic scenes," were eliminated.24

Other films are more substantially affected by the E-moviemakers' editorial decisions, which can alter the original story, impact, or message. Consider the E-rated Saving Private Ryan, in which editors cut a full five minutes from the "[twenty-five] minute opening scene depicting the Americans' landing on Omaha Beach"25; in this version, "soldiers die, but they do not bleed a lot."26 In an equally hard-hitting move, editors deleted a scene from The Horse Whisperer21 that showed Robert Redford and Kirsten Scott Thomas enveloped in a tender slow dance. "Thomas' character is married to another man, and the [E-rated] cut . . . completely eliminates this dance, despite its import in illustrating her character's struggle with her marriage and her attraction to another man."28

The most aggressive edits arguably amount to revisionist history. For example, viewers of the E-rated Frida29 can meet "the new-and-improved, [and] no longer bisexual Frida Kahlo," thanks to an editor's decision to eliminate one crucial scene.30 And Steven Spielberg's haunting portrayal of the Holocaust31 has been recast by at least one E-movie editor:

Working on "Schindler's List," [the] story of one German's effort to protect a group of Jews from execution, [one editor] decided to alter scenes of people in concentration camps . . . because he felt their appearance overstated their dehumanization. "Every teenager in America should see that film," he said. "But I don't think my daughters should see naked old men, running around in circles. You can watch that film and know people were humiliated, traumatized and put through hell even after we cut out what we cut out."32

Not surprisingly, this unauthorized editing of Hollywood releases has ignited a heated legal debate over whether a consumer's right to control the on-screen images she and her family view in their home trumps a movie studio's or film director's right under U.S. copyright law to create the "final cut" version of that film. Over the past five years, this intellectual property dispute has spilled past Utah's borders-to California, Colorado, and across the country to Washington, D.C.-as attorneys and legislators take up the E-movie mantle, both in the courtroom and on the floor of Congress, in what has come to be known as "the CleanFlicks Case."33

This Note explores the various methods used to edit and distribute E-rated versions of commercial movies, and assesses the legal viability of each one under current copyright law. Part I introduces the key players in the E-movie market and describes the three primary techniques used to edit and distribute edited copies of copyrighted films: splicing videocassettes, digitally editing videocassettes and DVDs, and utilizing "Customized Video Playback" software to virtually edit the playback of a DVD on the fly. Part II traces the E-movie businesses' complex legal battle with Hollywood's most influential directors and motion picture studios and surveys Congress' proposed solution to the dilemma. Part III presents the legal arguments offered by E-movie editors and Hollywood directors and movie studios to support their respective positions on E-movies, and Part IV examines the copyright principles that govern this dilemma, including the anticircumvention provisions of the Digital Millennium Copyright Act and the limited moral rights protection afforded by the Visual Artists Rights Act.

Finally, Part V analyzes the legal implications of this controversial editing practice-with surprising results: Although the longstanding practice of editing VHS and DVD copies of films likely violates fundamental principles of copyright law, notably the copyright holder's exclusive right to prepare derivative works, some-but not all-customized video playback technologies likely will survive legal attack. Because some virtual editing technologies remain viable, this Note concludes that federal legislation is neither appropriate nor necessary to protect E-movie companies and consumers. Rather, it recommends that Congress reexamine the limited moral rights protections afforded film directors in the digital age, and enact legislation that more effectively balances the interests of creators and consumers of this uniquely malleable art form.

I. (DELETING) SEX SELLS: THE RISE OF THE E-MOVIE INDUSTRY

The third party editing of motion pictures is not a new phenomenon. For decades, directors and studios have collaborated with airlines and television networks to produce versions of blockbuster films that are appropriate for a broadcast audience that might include children.34 More recently, with the advent of home digital video editing technologies, amateur editors have created private "fan films," altering movie releases to express their displeasure with the originals and sharing their revisions free-of-charge with other fans via the Internet.35

Despite the longstanding technological feasibility of creating E-rated versions of movies for private home viewing, Hollywood motion picture studios have declined to do so-with one exception. In 2002,

[t]he Dove Foundation of Michigan, a media watchdog group with ties to Christian publishing, announced an agreement . . . with Warner Bros.' studio, New Line Cinema, [in which the studio would endorse Dove's E-rated] versions of the studio's films . . . . The edited versions are marketed in Target and Wal-Mart stores with a Dove 'Family Edited' label.36