CleanFlicks v. Kate Winslet's Breasts

How Hollywood won a lawsuit while losing a cultural battle


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

Our story thus far: CleanFlicks is one of several companies that clean up sex and violence and foul language in movies and then sell the bowdlerized versions (which are clearly labeled as such) to their mostly religious customers. Among the sanitizers' most widely reported edits was the redaction of Winslet's breasts from the arty scenes in James Cameron's Titanic.

Such simple acts of repurposing content ran afoul of, among others, the Directors Guild of America, which claimed that such actions infringed on moviemakers' copyright protections. Now, according to an account at E! Online, "a federal judge in Denver has ordered several companies to cease and desist from editing out movie content they find offensive."

"[Moviemakers'] objective…is to stop the infringement because of its irreparable injury to the creative artistic expression in the copyrighted movies," the judge wrote. "There is a public interest in providing such protection. Their business is illegitimate." [Judge Richard P.] Matsch ordered CleanFlicks and the other defendants to hand over their entire inventory of scrubbed flicks to the five major Hollywood studios and stop "producing, manufacturing, creating" and renting the cleaned-up material within five days or face possible court action, including the likelihood of massive penalties.

"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," filmmaker and Director's Guild head Michael Apted told the press. I'll refrain from taking pot-shots at specific works made by Apted. Suffice it to say that his oeuvre contains some very good work and much, much more that most viewers—well, this viewer anyway—would want to edit down to a 30-second clip reel.

Which is exactly the point: 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. (Let's leave aside for the moment the legendary compromises all movie directors make on virtually every picture; and let's even leave aside whether that sort of often overbearing editorial oversight is a bad thing, though the short answer is that it sometimes is the only thing keeping a self-indulgent artist from producing total crap and losing his audience).

"These films carry our name and reflect our reputations," continued Apted. "So we have great passion about protecting our work…against unauthorized editing."

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.

Hollywood, of course, still has a ton of clout with audiences and, more important, with lawmakers and gadget makers. 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.

The breakdown of that 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 de-bundle albums forced on them by artists and record labels alike. 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 of content by the mere act of creating 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 and more—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 control, and Tivo, have radically altered the terms of consumption.

As for the case just decided in Denver: I have no problem with gratuitous nudity (is there any other kind in a movie?), foul language, and graphic violence; but I'm squarely on the side of the easily offended CleanFlicks' customers. They are doing precisely what technology is there for: to create the sort of art, music, video, and text that an individual or group of individuals wants to consume.

By all accounts, the CleanFlicks-type outfits weren't ripping off Hollywood in any way, shape, or form—they were paying full fees for content—and they weren't fooling anyone into thinking their versions were the originals; the whole selling point of CleanFlicks' Titanic is that it spared audiences the original movie's brief moment of full-frontal Winslet. CleanFlicks was simply part of a great and liberatory trend in which audiences are empowered to consume culture on their own terms—not the producers'. Big content providers may have prevailed in this specific case, but the sooner they understand and adapt to a much larger and more powerful cultural dynamic, the better they'll be at serving the audiences who are increasingly in control of what they watch, listen to, and read.