Copyright and the movies

I came across an interesting article on director Steven Soderbergh courtsey of the Washington Post's Volokh Conspiracy blog yesterday:

Actor-director Steven Soderbergh has been getting a great deal of attention recently for posting his newly-edited versions of classic films [...]. But as Mike Masnick points out over at Techdirt, Soderbergh has been a prominent copyright maximalist, testifying before Congress on behalf of the Director's Guild of America in favor of a harsh "three strikes and you're out" policy for online copyright infringers.


And both more peculiar, and closer to the point here, Soderbergh was the lead plaintiff in the 2006 case of Soderbergh et al v. Clean Flicks of Colorado et al. (433 F.Supp.2d 1236). Clean Flicks (and the other defendants) were in the business of preparing and distributing edited versions designed to be more "family friendly" (i.e. with the nasty stuff edited out) of previously-released motion pictures....The plaintiffs—Soderbergh included—were successful at shutting the operation down, on the grounds that the edited versions prepared by Clean Flicks violated their rights under sec 106(2) of the Copyright Act to create "derivative works" of the films[....]

Now, one could ask questions about what constitutes fair use. If I post a screencap from a movie, I'm technically using copyrighted material without permission. But should it really be a violation of law to use a screencap to illustrate who a character looks, as I did yesterday with my photo of Montgomery Clift at the beginning of A Place in the Sun? Soderbergh and his defenders would argue that what he does is not for profit, although I'd suggest it's aiming at the ancillary benefits of publicity and future business by showing Soderbergh's skills at redirecting and re-editing movies. I'm reminded of the letterboxing piece on TCM where one of the directors says that when you're panning and scanning, you're technically redirecting the movie. One of the differences is that the studio would have owned the copyright, and would have been the ones making the print for broadcast TV.

One of the articles I read said that what Clean Flicks did required people to buy the original movie on DVD and then send that DVD in to the company to be edited. Or something like that; I'm not the sort of person who would have used such a service. The implication, however, is that the original copyright holder was getting the proceeds from the sale of the original DVD anyway. And there is a good question to be asked of, if you buy compyrighted material, can't you do what you want with it for your own private pleasure? Not that this necessarily makes Clean Flicks right, but the users of Clean Flicks are much less in the wrong. I'm reminded of what Melina Mercouri did with public domain material in the amphitheater scene in Never on Sunday

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And then there's the whole issue of copyright to begin with. Copyrights and patents are explicitly allowed in the Constitution as one of the functions that Congress was supposed to set up:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Note the use of the word "limited". Copyright lengths have consistently been going up. There's a good chart on Wikipedia in one of the copyright articles showing this. Before the copyright reform of, I believe, 1976, copyrights were for a term of 28 years, renewable for another 47, or 75 years in total. The failure to renew is how some movies wound up in the public domain for a time. But another reform about 15 years ago lengthened the copyright term. If they hadn't, stuff from 1940 would be entering the public domain this year. But now it's up to I think 120 years, with the copyrights being extended to stuff from 1923 and beyond. (Disney, who wanted to keep Steamboat Willie from entering the public domain, were one of the drivers behind the change.) So clearly there's a fluidity to what consititutes a copyright violation.