Copyright

Steven Soderbergh, Copyright Hypocrite?

The filmmaker takes one approach to intellectual property in court, another in his own work.

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David Post notes an odd inconsistency from a famous filmmaker:

"Steven, I don't understand why you're doing this to me. I have the greatest enthusiasm for the mission. You are destroying Stanley Kubrick's vision. Don't you understand?"
Warner Bros.

Actor-director Steven Soderbergh has been getting a great deal of attention recently for posting his newly-edited versions of classic films: Psycho, Raiders of the Lost Ark, and, most recently, 2001: A Space Odyssey. Interesting and creative stuff, indeed. 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—defined as "works based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted."

So I guess I don't understand where Soderbergh is coming from here. It's a little odd that he doesn't even mention the underlying copyright question(s) on his website—which he calls a "one-of-a-kind marketplace." Under the Clean Flicks case (which, presumably, he knows about) his activities here are pretty clearly infringing the copyrights in the original films. Is he just a hypocrite, who thinks that he has some kind of "artistic license" to do what he denies to others, that his creativity is somehow more valuable than the creativity of others?

There are differences between what CleanFlicks did and what Soderbergh is doing, starting with the fact that the former was a commercial enterprise while Soderbergh has been posting his edits online for free. But I can't think of any differences that make Soderbergh's edits acceptable under the arguments he endorsed in the CleanFlicks case. (Indeed, I could imagine a copyright enthusiast preferring CleanFlicks' model to Soderbergh's, since CleanFlicks made its revisions only for people who first purchased the DVD and sent it to the company. You needn't buy anything but an Internet connection to see Soderbergh's efforts.)

My guess is that Soderbergh is operating on the it's-better-to-ask-for-forgiveness-than-permission principle. His Heaven's Gate edit begins with the words "I acknowledge that what I have done with this film is both immoral and illegal," and his written intro to his Raiders of the Lost Ark edit says "I'm not saying I'm like, ALLOWED to do this." And he has now taken down his 2001 edit "at the request of Warner Bros. and the Stanley Kubrick estate." Too bad. I was looking forward to seeing what he did with the picture.

The rest of Post's post is here, and the rest of Masnick's post is here. Soderbergh's website is here. My favorite Soderbergh movie is here. The first and longest article I ever wrote about fair use and related IP issues is here.

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  1. Steven Soderbergh has been getting a great deal of attention recently for posting his newly-edited versions of classic films … most recently, 2001: A Space Odyssey.

    Did he take the dull out?

    1. Dull or Dullea?

      1. “Keir Dullea, gone tomorrow”

        –No?l Coward on Dullea, with whom he worked in Bunny Lake Is Missing

    2. This is Soderbergh we’re talking about. So, no.

      All roles are now played by George Clooney, though, if you’re into that.

      1. his best movie ever, unfortunately, stars clooney.

        out of sight- elmore leonard made it great… soderbergh didn’t screw it up.

        1. What’s wrong with Clooney?

        2. I prefer The Limey. Should be required viewing for aspiring filmmakers to learn how to make a tightly edited, compelling movie that runs under 90 minutes.

          1. yeah, but he story in out of sight was amazing.

            There’s nothing “wrong” with clooney.. except that, with few exceptions, he plays clooney.

            1. True… sort of the problem talking to people who follow movies based on actors instead of directors. Hey, you should see this Clooney-JLo flick! does not ring true to most people.

              1. “people who follow movies based on actors”

                You mean people who ask you if you’ve seen the new Nicholas Cage movie

          2. I like The Limey but there’s a hugely obnoxious bit in the director’s commentary where he’s talking about “how sick it is” that Americans can privately own firearms, blah blah blah, and that he wanted to have the eponymous limey acquire his gun from a gun show, but, surprise surprise, they didn’t want to let him in to film that, so he has him buy it from some gangbangers instead.

            When I heard that the first thing that came to mind was Matt Damon using a privately owned firearm to defend his daughter’s life in Contagion.

    3. Did he take the dull out?

      Philistine!

  2. the former was a commercial enterprise while Soderbergh has been posting his edits online for free.

    Isn’t Soderbergh using these edits to promote himself, presumably to get hired for money? Sounds commercial to me.

    1. Well, he says he’s doing it “for educational purposes.” Obviously the edits can have additional career-enhancing effects (though his reputation is such that I don’t think he’d have trouble getting work without them…).

    2. meh. i see it as a fan edit. he’s a fan that also happens to be a pro- I’d err on the side of leniency.

      He is, however, also a hypocrite.

  3. Is he just a hypocrite,

    Yes.

  4. You lunchtime derp: another musical interpretation of Obama’s speech

    https://www.youtube.com/watch?v=M_3RldiXlHA

    1. oopsy- should be “your”

      1. Hey Derpetologist, I found something wonderful for you the other day, but I don’t think you saw that thread. You’ve got to see this. Scroll down to the comment by “KristenLedlow2” and enjoy!

        1. I saw it. That’s some top shelf word salad that is.

          I hereby dub thee Sir Papaya- Knight of the Derp Table.

  5. Too bad he can’t set his sight on that travesty of cinema that is Star Trek II: The Wrath of Khan.

    Though really, Soderbergh, Spielberg, Scorcese and the preserved brains of Lucas, Welles and Hitchcock couldn’t even begin to make that abomination watchable.

    1. I haven’t watched it, but it wouldn’t surprise me at all if it sucked. Pre-Abrams Trek: just pretend it’s not there.

      1. Who wants complex plots about aging men recognizing their limitations and the consequences of their mistakes as young men? I just want shoot-bangs and stupid storylines to move the characters between bad action scenes.

        /Cytotoxic

        1. I want actors who can act, especially when they are the lead. Like NOT SHATNER.

          1. Because nothing says ‘actors who can act’ like Chris “I’m standing as rigid as possible and SHOUTING TO SHOW I’M ANGRY” Pine.

            1. That being said he plays an excellent murderous redneck in Smokin’ Aces.

            2. Still more ability than Shatner or just about anyone else on the TOS set.

          2. Oddly, Shatner is fantastic in TWOK.

            1. Really? So he. Didn’t. Talk like there’s. A hyperplasia. Of periods in his sentences?

              1. Have you actually watched Star Trek?

                1. ProL, are you suggesting that Cytotoxic ignore the pop-culture approved caricature? Why, I’d bet Sean Connery was as ridiculous in the Bond movies as he was portrayed by Will Ferrell in SNL’s Jeopardy sketches!

                  By this standard, Al Pacino must be a terrible actor, too.

                2. No, he hasn’t. His idea of Shatner’s acting is entirely based on stereotypes rather than Shatner’s actual capabilities.

                  Shatner was not that bad an actor. The claims about how terrible he was are all exaggerated.

                  1. The Shat did some really good work on Boston Legal. The episode “Son of the Defender” was especially good.

                  2. He was a pretty well-respected actor in the 60s. His move to self-camp came after TOS, mostly because he had to overcome the icon he did much to create. I think he did an excellent job of portraying a hero in a world where violence isn’t supposed to be the go-to solution and where intelligence and ethics are a big deal.

                  3. Okay, maybe it was also the bad dialogue that made TOS unmatchable. And the terrible plots (Planet Capone? WTF?)

                    1. Well, I don’t agree that the dialogue was bad, but the settings that used some Earth trope were strictly a matter of budget. They were forced to use sets and props that existed, versus ones they made up, at least some of the time.

                      It’s fun to watch Mission: Impossible, which was shot at an adjoining set at Desilu/Paramount, and spot the common props and guest stars.

      2. BTW Cytoxic, thanks to Abrams’ shameless rip-off the nature of parallel universes, you have already watched one very key scene in Wrath of Khan by watching Into Darkness.

        1. What you call ‘shameless rip off’ others know is a beautiful inversion.

    2. Show us on the doll where you become head injured.

      1. I think it was those things they put in my ear.

        1. *Show us on the doll where he HURT you, and wishes to go on…HURTING you.

    3. Star Trek II: The Wrath of Khan is one of the best movies ever made.

      Full. Fucking. Stop.

      1. Counterfly was left marooned for all eternity in the center of a dead planet. He’s touchy about that.

        1. +1 buried aliiiiiiiive

      2. ^ This.

  6. Rather than focusing on Soderbergh’s hypocrisy, I’ll note that this a good example of why his position is wrong and there really is a need for genuine IP reform. What he did may have been illegal. But, I see no reason to think it was immoral. He took pieces that probably should have been in the public domain and added his own creative flourish to them. You may be able to make the case that the originators of the material deserve some compensation for producing the raw material he worked with. But, it seems silly to me to say that he didn’t actually create something new with their use. Does anyone think that the audience for these re-editings would have consumed the originals but for Soderbergh’s versions?

    1. Excellent points.

    2. Does anyone think that the audience for these re-editings would have consumed the originals but for Soderbergh’s versions?

      And this is the ‘If the system worked…’ outcome. The real outcome was a magnate artist used the law to bludgeon a small business that he didn’t like to death.

      Soderbergh obviously has/had the time, skills, and capital to strangle Clean Flicks in the market. Instead, the taxpayer saved him time and money by letting him use the hammer of law.

      1. I was referring to the versions Soderbergh edited and made available, not the CleanFlicks pieces.

        But, I do concur with your point. He was wrong to do what he did in the case of CleanFlicks. What they were doing was no more immoral. And using the law to shut them down was wrong.

  7. There are differences between what CleanFlicks did and what Soderbergh is doing, starting with the fact that the former was a commercial enterprise while Soderbergh has been posting his edits online for free.

    I don’t see the difference. A “robber” can take my stuff and give it to the poor for free or he can sell it at a flea market for a profit. It is still thievery.

    But, what am I doing? Asking for logical consistency from IPers? I should have my head examined!

    1. What Clean Flicks was doing is no different than any fully-legitimate customization service. You buy a fully-licensed film and ship it to them and they edit out the adult bits.

      I dislike the notion of ‘robbery’ WRT data, but Soderbergh’s acts are far closer. If robbery is occuring, Soderbergh is robbing people of their right to do business as they see fit.

      1. Yes, I gathered all of that.

        The issue I have is with the assumption that IP itself is a legitimate legal concept. If it is the case, then Jesse Walker is making a meaningless and unwarranted distinction between Soderbergh’s motives and Clean Flicks’ motives to justify the legal actions against the latter (or at least explain them). If IP was a valid legal concept, then Soderbergh’s actions SHOULD be taken as a violation of property just the same.

        Instead, if the distinction made is correct according to Copyright law or IP, then that strips the concept of Copyright and IP of its universality. A moral or legal concept that cannot be applied universally is bogus; for one, it violates the concept of Rule of Law and Equality Under The Law. Second, it leaves the application of such concept to subjectivity.

        So either a Copyright violation exists, or it does NOT exist. You can’t suddenly say it exists in ONE instance but not the other because the motives of the perpetrator are pure and perfect.

        1. If IP was a valid legal concept, then Soderbergh’s actions SHOULD be taken as a violation of property just the same.

          Sorry, we’re pointing at opposite sides of the same coin. *If* you buy into IP/Copyright whole hog, what Clean Flicks did, in no way, violates it.

        2. If it is the case, then Jesse Walker is making a meaningless and unwarranted distinction between Soderbergh’s motives and Clean Flicks’ motives to justify the legal actions against the latter (or at least explain them).

          It seems weird that I should have to spell this out, but I am opposed to what Soderbergh & co. did to CleanFlicks. I noted the distinction because some prominent people in the IP debate have argued that noncommercial use should enjoy protections that commercial use does not. I don’t support that position myself, and it’s not obvious to me that Soderbergh does either, but it’s a part of the debate and I’m acknowledging it.

  8. So I guess the big question is whether Soderbergh was going after Clean Flicks because they were Christians or because he’s a megalomaniacal cry-baby who feels that Erin Brockovich and Haywire just aren’t the same with out all the curse words in them.

  9. All property is intellectual property. If you don’t believe in one you don’t believe in the other.

    1. Re: Cytotoxic,

      All property is intellectual property.

      And you are certainly showing ownership of that equivocation.

      1. It’s still true.

    2. If you don’t believe in one you don’t believe in the other.

      You’ve never been told to wish in one hand and shit in the other have you?

      1. No. I have literally never heard that saying. I never wish into my hand and never thought to.

        1. I’ve never seen this movie and never intend to. But they make use of an inexhaustible resource that was invented long before film existed and paid nothing to use it.

          1. Santa Claus is a resource?

          2. I’m not usually drawn to raunchy movies, but I love that movie. Billy Bob Thornton is at his best. Also Terry Zwigoff adds intelligence so it’s not the usual dumb shock value type film.

            1. Yeah, it grew on me too.

          3. Why in the world would you avoid a great movie like Bad Santa on purpose?

            1. Q:Why in the world would you avoid a great movie like Bad Santa on purpose?

              A:Billy Bob Thornton is at his best.

              He always strikes me as an irritating non-entity acting-wise. Take any ‘loosely-skilled’, type-cast actor, remove their singular talent, and you get Billy Bob. He’s not talentless, but modestly better than Clive Owen at best.

              1. I have a soft spot for Clive Owen because he was the lead (the player character in the videos, that is) in Privateer 2: The Darkening. The cast for that game, incidentally, is nothing short of incredible, including John Hurt, J?rgen Prochnow, David Warner, David McCallum, Brian Blessed, Christopher Walken, several other “name” actors, and, just for Episiarch, the naked chick from Lifeforce.

                1. What I never understood was why they didn’t try for actors like that rather than Freddie Prince Jr and Matthew Lillard in the terrible Wing Commander movie.

                  1. I’ve heard that they were able to land a bunch of decent names in the early days of “theatrical” video games because those fell completely outside of the guild restrictions, and a lot of actors wanted to have that option.

              2. Is Clive Owen supposed to be an example of a bad actor? His films are inconsistent, maybe, but he was great in Closer.

                1. I also thought he was good in Sin City and Children of Men

                2. Is Clive Owen supposed to be an example of a bad actor? His films are inconsistent, maybe, but he was great in Closer.

                  I haven’t seen Closer. I can only imagine he will sap all the sexiness out of the movie. It would be interesting to see if Clive Owen could make Julia Roberts seem talented by comparison.

                  IMO, his best performance was as a brainwashed assassin for hire in The Bourne Identity and his performance was enhanced by his characters’ robust silence and expedient death.

                3. Closer.

                  Easily one of the worst movies I’ve ever seen. On top of just being terrible it was about the dozenth movie over the course of almost a decade that was supposed to herald Natalie Portman’s arrival as a “serious actress.”

                  No, I haven’t seen Ishtar.

    3. Physical property is incompatible with intellectual property. You can’t believe in both.

      1. Yes you can. They are both products of my efforts and intellect.

        1. You can’t believe in both.

          This is incorrect. You can believe in both all you like, that’s the problem.

          The problem is one is the product of effort and the other is the product of arbitrary speculation that carries no intrinsic weight other than the force of law.

          Nothing says freedom like advocating that property should transact freely without government interference, but *thought* should be explicitly credentialed and rigorously controlled.

          1. The products of my thought-my inventions and the like-are every bit as much a product of effort and mine as my wallet, my money, and my house. All property is intellectual property.

            1. Ok, so when you speak your thoughts into the air and they enter someone else’s ears, they become the other person’s thoughts too. When you make a paper airplane in a shape that no one else has made before and someone else sees it, they now have that same paper airplane design in their head too. You both have the same (or very similar) thoughts in your head. Do you own the copy of that thought that resides in the other person’s head?

              1. Thoughts aren’t property but a specific idea can be. “I’m lovin’ it’ isn’t a specific idea and isn’t property. The most recent Hep C treatment/border line cure is, and copying and selling that company’s medicine is theft.

            2. The products of my thought-my inventions and the like-are every bit as much a product of effort and mine as my wallet, my money, and my house.

              Am I free to copy your wallet to my heart’s content as long as I don’t deprive you of your wallet, or no?

              1. You can made your own, but you can’t sell it if the wallet’s design/features are an original idea that belongs to someone else.

                1. Because I stole their thoughts?

                  1. Otherwise, theft is theft. Whether I keep it for myself or sell it on down the line.

                    Unless there is some fundamental difference between property as material good and intellectual property. A difference rather specifically limited to transmission and/or fungibility.

        2. I legitimately own a hunk of iron and other metals. You think I shouldn’t be able to shape it into some particular shape or form, given that you thought of that particular shape or form first, and have filled out the requisite paper work with some bureaucracy.

          You don’t really believe in physical property rights.

          1. You can shape it, just don’t sell it if it copies my original specific idea.

            1. So I don’t really own it any more.

              Like I said. You don’t really believe in physical property rights.

  10. I thought in Hollywood it was perfectly acceptable to wear a Je Suis Charlie button while insisting on the film Pyongyang being pulled and using the power of Government to silence people who say hurtful, politically-incorrect stuff.

    freedom for We, none for Thee

  11. Soderbergh is an odd one. Almost all of his more successful films, and a majority of all of them, are based on other people’s works. Several of his films are based on books, which is very common and not unusual. But some of his biggest hits–Oceans 11, Traffic, Solaris (the last wasn’t much of a hit, granted)–are all remakes of someone else’s work. He seems to have a definite propensity for “improving” or “adapting” the work of others. So these edits aren’t surprising.

    Some directors ego out about the work of other directors, and Soderbergh seems to be one of them. He can do what they did better than they could, in his mind. Plenty of directors fall into this trap, for example when they remake already classic films, like Gus Van Zant with Psycho or Peter Jackson with King Kong. These are amazing movies in the first place; why do these directors think they can “improve” them?

    1. why do these directors think they can “improve” them?

      Ego.

      1. They just want to bring them to a new audience! You know, the unwashed masses who are too dumb to watch British TV, over-rated Russian movies and icky black and white classics.

      2. Partly. But, it also can’t be denied that remakes have an advantage in marketing. Often, there’s a pre-existing audience for the product.

    2. By default, I avoid any remake of classic films like the plague.

      They are going to suck, without fail. Either through poorly thought out and over-produced schlock or just piss-poor “re-imagining” that gives you shitty screenplays. Or, in the case of Burton’s Planet of the Apes, both.

      1. By default, I avoid any remake of classic films like the plague.

        If only to cut down on detritus. If

      2. True Grit was excellent.

        1. Sure, but remakes as a whole *never* rise to “50% improvement, 50% of the time”. So, even if originals are solid gold, 100% of the time (which they aren’t), a majority of the time you’re covering up the good stuff with garbage.

          Certainly there are gems and some are remakes, but watching remakes as a matter of process is for people who aren’t out find gems but for the love of shovelling garbage.

          1. True Grit was also based a little more closely on the book, though I’m going to just say right now that I still prefer the John Wayne version.

            1. But John Wayne sucks.

              1. See, this is how we know you’re not an American. I suppose you hate Clint Eastwood, too?

            2. Wayne played Rooster Cogburn.

              Bridges was Rooster Cogburn.

              Props to Bridges for having the balls to play an iconic character so strongly linked to a hollywood star. It’s not life and death, but for an actor….that’s a pretty big roll of the dice.

              1. Absolutely. And he did a good job.

      3. By default, I avoid any remake of classic films like the plague.

        Ricardo Cortez is the ultimate Sam Spade!

    3. To be fair, in regards to King Kong, Peter Jackson was a massive King Kong geek who was offered the chance to direct a remake of it, turned it down, and then changed his mind when he become horrified that someone else might screw it up. So there’s plenty of ego, but also some nerdish love thrown in there.

      1. Sure, and Peter Jackson has done such good work in the past that it’s hard to think badly of him for it. But there is still unquestionably the impulse in a lot of directors and producers to remake things that are already great. There’s partly a financial desire to capitalize on the known property, but there is usually also ego involved in that the new director can “fix” flaws and improve the product.

        1. True, ultimately the studios are a part of this as well, wanting to remake older, familiar in pop culture films because half their advertising is already done for them. Nowadays video games are doing the same thing with old 90s games, there’s been some successes and extreme failures.

          1. Huh, a friend played Syndicate and claimed it was very good. The plot was written by Richard K. Morgan, author of the excellent Takeshi Kovacs novels (don’t read any of his other stuff though, it sucks). I would posit that Duke Nukem Forever was a better example of extreme failure.

            1. I was speaking more in terms of financial successes, Syndicate did not do as well as expected sales-wise. I suppose another example is the two XCOM games that came out in the past couple years. One was fairly well received and the other one was largely ignored.

              Duke Nukem Forever is more a product of being stuck in development hell for over a decade. It was still being worked on by the original developer.

      2. Then the movie sucked.

        1. I like the Jackson version of Kong.

          1. You have bad taste.

  12. I’m not a Soderbergh fan, but The Limey is an exception. That’s a damned good movie, which I kneel before.

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