CleanFlicks v. Kate Winslet's Breasts

How Hollywood won a legal battle while losing a cultural war

Welcome to the landmark legal case of CleanFlicks et al. v. Kate Winslet's Titanic Breasts.

Utah-based CleanFlicks is one of a dozen or so companies that delete sex, violence, and profanity from movies and then distribute the bowdlerized versions (which are clearly labeled as such) to their mostly religious customers. Among the sanitizers' most widely reported edits was the pixelation of Winslet's bare breasts in James Cameron's blockbuster Titanic.

Such revisions upset, among others, the Directors Guild of America, which filed suit four years ago, arguing that the expurgations violate copyright protections. In July a U.S. District Court judge agreed that CleanFlicks-style editing causes "irreparable injury to the creative artistic expression in the copyrighted movies" and that "there is a public interest in providing such protection."

As a matter of copyright law, there seems little question that CleanFlicks and its kin are screwed. They weren't accused of piracy; they legally bought all the movies they doctored and distributed. But they almost certainly exceeded the actions permitted by the "first-sale doctrine," which allows you to resell a copyrighted work without the permission of the copyright holder. You can, for instance, buy a book, rip out some of its pages, and then resell it. If you rip out the pages and create a new copy of the expurgated version and distribute that without permission, you're in trouble. CleanFlicks et al. were doing the latter.

But this case is less interesting as a legal dispute than as an indicator of how stupid entertainment providers are when it comes to serving their audiences. "Audiences can now be assured that the films they buy or rent are the vision of the filmmakers who made them and not the arbitrary choices of a third-party editor," said Directors Guild head Michael Apted after the ruling. "We have great passion about protecting our work…against unauthorized editing."

As a writer, I sympathize with Apted's sense of creative ownership and his fear of losing control of his work. But as a viewer, I already act as an editor of his—and every other director's—films. 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 has a mind of its own, and that mind doesn't care very much about the creator's intentions.

What might be called the "old romantic genius" model described by Apted, in which a visionary creator produces and an audience passively consumes culture as intended, is over. In fact, that model never reflected the way culture worked (Reefer Madness, anyone?). But even the pretense to such audience control is finished in today's environment, in which individuals have an ever-increasing ability to produce and consume culture on their own terms.

The breakdown of the old model has been seen most clearly in the music industry, where unauthorized file-sharing programs such as Napster and Grokster allowed listeners to easily debundle the albums pushed on them by artists and record labels. For all the discussion about the legal issues surrounding file sharing, the truly important element was the way it shifted power from producers to consumers, who in turn became their own producers by the mere act of creating hyper-personal playlists.

From this perspective, file sharing was simply another in a long line of technologies —cheap cassette-tape decks, for instance, not to mention sampling programs that facilitate mash-ups—that have brought the artist down from on high and placed him right next to his audience. When it comes to film and video, a host of technologies, including VCRs, remote controls, and TiVo, have radically altered the terms of consumption.

I have no problem with gratuitous nudity (is there any other kind in a movie?), graphic violence, or foul language. But in the matter of CleanFlicks v. Kate Winslet's Breasts, I'm on the side of the skittish viewers. They are doing precisely what technology is there for: creating the sort of art, music, video, and text people want. CleanFlicks' business future may be as hazy as a pixelated pec, but the company remains part of a great, liberatory trend in which audiences are empowered to consume culture on their own terms, not the producers'.

Big content providers have prevailed in this case, but the sooner they understand and adapt to a powerful and ultimately unstoppable cultural and technological dynamic, the better they'll be at serving the audiences who are increasingly in control of what they watch, listen to, and read.