And because Lynch said that, it MUST be true. Since when has Lynch been know for caring about something like that? Do believe every bit of marketing spin you are fed?

What is marketing spin about this?

I take it you didn't see the film theatrically. Once again, unblurred the film could have been PG-13 possibly. The PG rated SHEENA had as much nudity.

<marquee> 5/5! rotfl rotfl rotfl rotfl rotfl 5/5!</marquee>

Oh, that was hilarious.

And once again, I'm not talking about the films rating.

And yes, I did see the film theatrically.

Again, that general disclaimer doesn't inform the consumer as to what specific edits are modified and what specific elements of the film are left unchanged.

Perhaps you can cite where 15 USC § 1125(a)states that an overreaching label is not sufficient to avoid confusion regarding individual components? That when seeing such a label any reasonable person would assume that all edits are those of Cleanflicks unless indepdendely confirmed otherwise?

Off the top of my head, I can point to one exceedingly common practice in contradiction of your claim - computer systems advertising and labelling. The largest section of the market for PCs is what is known as "white-box" or otherwise generic PCs. The sellers do not pay for or in any other way license the trademarks of the cpu manufacturers such as Pentium or Athlon. Yet these white-box systems are consistently and primarily advertised simply as: "Intel Pentium xxGHz" or "NoNameBrand AMD Athlon XX." Yet:

a) The majority of the components are not the product of Intel or AMD, and the majority of customers are unable to disambiguate between manufacturers of individual components especially if they don't open the case in the course of regular usage.

b) Some of these systems are of terribly poor quality, the kind of quality that would certainly tarnish the reputation of a premium trademark such as Intel or AMD.

But the film still says "Directed by X" on it. Therefore, it depectively states an affiliation between the director and the edited version.

Uh no it doesn't. It says "Directed by X" and then it says "Edited by CleanFlicks"


The relevant origin is not the original of the piece of plastic, but rather the content. Putting the director's credit on a re-edited work causes confusion as to the edited work as having originated with the director. This has been basic stuff since Gilliam v. ABC, 538 F.2d 14 (2d Cir. 1976). Seeing you sloppily attempt to argue it now is pretty funn

The relevant origin is the original fixation of the content, see the expert opinion of the registrar of copyrights in testifying before congress regarding the Family Movie Act of 2004. Gilliam v. ABC is not relevant to this discussion because: a) They were rebroadcasting, i.e. making new copies not modifying an original copy in place. b) They did not label their new copies as being edited. Maybe the court would have ruled in your favor even if the new copies had been labelled, but that was not the case the court ruled on.

So what do you propose "dispose of" means? Simply anything you want it to?

Absolutely. ANYTHING I want to do to that original copy I can do.

Or do you really mean to argue that every used book with a page deliberately torn out, every commercial audiotape that the owner has partially recorded over, every sculpture that the owner has added his own modifications to, carved his own initials in and every painting or poster that has been drawn on, cut-up, or partially erased is is a violation of 106 because they are derivative works? If that were really the case, every household in America would be in violation. How silly.


Therefore, whatever "dispose of" means, it can't mean "copy," "create a derivative work," etc. Otherwise, there would be no need for a specific list of rights in 106, and we'd just have the all-encompassing "disposition" right.

Again and again with the derivative work bit. So far none of your citations is able to show any kind of justification for a modification of the original fixation to be the preparation of a derivative work. I don't need to refute your citations of statutory and case law because they are inapplicable to the specific circumstances of this case, that in itself is sufficient refutation. Otherwise I'd cite reader's digest as an example. But that would be just as irrelevant as what you have been able to come up with so far.

It's basic misunderstandings like these from clueless folk that keep such rampant copyright mythology going.

Since you can't seem to help but to constantly throw up red herrings instead of valid, applicable citations I guess deeply experienced and worldy lawyers aren't much help either.

And just because you are referencing an article that you don't have, we are supposed to believe your unsubstantiated claims? I will take the word of the director, who publicly has stated why it was blurred, over your third hand remembrance of a an article that may or may not exist.

Last time I was at Blockbuster was in the mid-90's. Rented BAD LIEUTENANT on VHS, it was edited all to h*ll. Never went back since.

We've gone THIS FAR, and nobody's mentioned:

http://www.millheiser.com/images/block_banner_final.gif

You still haven't refuted either citation in this example which he posted, both of which contradict you:

Originally posted by djtoell
In reality (read: not your invented desires), re-editing a film is a violation of the derivative work right. As the District Court of the Central Circuit of California held in Batjac v. Goodtimes, 964 F. Supp. 1416 (C.D.Ca. 1997), re-editing a film by panning and scanning it creates a derivative work because it involves creative editing choices. As the court laid out in that case, the re-editor "created the pan and scan version by 'making artistic decisions about the composition of each frame of the 1963 picture, determining which portions should stay and which should be 'chopped off.''" 964 F. Supp. at 1427-8. ... [MY ABRIDGEMENT] See also Roy Export Co. Establishment etc. v. Columbia Broadcasting System, Inc., 503 F. Supp. 1137 (S.D.N.Y. 1980), where a re-edited compilation of Charlie Chaplin films was held to be a derivative work.

Yes, that's what I'm saying. It's possible the studios print some sort of seperate UPC on product set aside for rentals, but I know for a fact that the product is exactly the same.

Blockbuster recieves their shipments rental ready in their own style of "yellow-locking" rental boxes with rental inserts, and also all the original keepcases (or snapper boxes) with the original inserts. For every piece of rental BBV puts out, there was a normal amaray box sent with it (which is what you see the rentals displayed behind on the shelf). Usually they break them down (remove inserts), throw away or store the amarays, and file the inserts. When it's time for a movie to be transferred from rental to pre-viewed sell-thru they just remove the rental insert from the lockbox, replace it with the original factory insert, then put if out for sale pre-viewed.

Both of those citations are not applicable because they involve the creation of new physical copies, not the modification of an original licensed copy.

But stay tuned...

It sure would be nice if someone else would pay for my searches on LexisNexis, but c'est la vie. (Ooh foreshadowing!)

Cases that deal with modification and resale of a legitimately purchased copy of a copyrighted work:[list=1][*]Mirage Editions Inc. v. Albuquerque A.R.T. Co. (CA 9) 8 USPQ2d 1171 (9/7/1988)[*]Munoz v. Albuquerque A.R.T. Co., 829 F.Supp. 309 (D. Alaska 1993), affirmed, 38 F.3d 1218 (9th Cir. 1994)[*]Lee v. Deck The Walls Inc. (DC NILL) 40 USPQ2d 1112 (5/1/1996), affirmed Lee v. A.R.T. Co. (CA 7) 44 USPQ2d 1153 (9/18/1997)[*]Théberge v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34[/list=1]
Note the first three cases involve the same defendent -- Albuquerque A.R.T. Co. All three also involve the exact same practice - the purchase of notecards and lithographs and the subsequent mounting of them on pieces of ceramic tile. Both times the 9th circuit court of appeals ruled, with little elaboration, that such a practice was indeed the creation of a derivative work.

Even the 7th circuit court of appeals, which heard the third case did not rule that re-use of an original licensed copy was sufficient grounds to avoid infringement claims. No. They side-stepped the issue and said that simply mounting a card onto a piece of wood or ceramic did not amount to enough of a creative endeavour to treat the finished product as a derivative work.

But, they did have this criticism of the 9th circuit court:

Furthermore, the 7th circuit is not alone in their criticism of the 9th's rulings on this matter: Goldstein § 5.3 at 5:81-82; Nimmer & Nimmer § 3.03; Wendy J. Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 Va. L. Rev. 149, 255 n.401 (1992); Edward A. Cavazos and Coe F. Miles, Ph.D., Copyright on the WWW: Linking and Liability, 4 RICH. J.L. & TECH. 3, n.23 (Winter 1997).

So, yeah Hollywood wants you to believe that the editing Cleanflicks does so completely changes the story that is essentially a new story. I expect that few others would agree. Especially the people who watch theatrical movies on broadcast television - authorized or not, those edits are very similar to what Cleanflicks does and those versions are promoted as being edited but essentially the same story as the original.

Meanwhile those guys in Canada have taken the bull by the horns with Théberge v. Galerie. The details of the case are reasonably comparable to the question at hand: The artist Claude Théberge sold a number of cards, photolithographs and posters to a group of galleries who subsequently transferred the images contained thereon to canvas, using a transfer process that lifted the ink from the original document and transferred it to a canvas, leaving the original document blank.

The Canadian Supreme Court ruled for the galleries and in the majority opinion they wrote:One very important point about the Canadian system of Copyright is that while it shares an anglo-saxon lineage with the American system of Copyright, it is primarily derived from French "la loi sur le droit dauteur" - the law of the right of the author. The French tradition is very one-sided with no concept of a "balance" between the rights of the author and the rights of the consumer -- an approach primarily rooted in the anglo-saxon interpretation.

So, that the Canadian supreme court should rule so decisively against the rights of the author suggests that in the American legal system, which is quite clearly based on the idea of a balance between parties in copyright, the Supreme Court would rule similarly. Not to mention that while under no obligation to do so, the supreme court has on numerous occasions taken into consideration the rulings of other courts in countries with similar legal systems, particularly in those of countries which are signatories to common treaties like Canada is with respect to copyright.

The part where it says "confusion." It's simply impossible for a viewer of an edited version to completely know what has been edited and what hasn't been. To know of the existence of a missing scene containing a necessary plot element, one would have to see the original version or otherwise be informed of its existence. The edited version on its own provides no notice of the existence of such missing scenes, so the viewer can't be anything but confused as to whether a missing plot element was the result of the work of the director or Clean Flicks. Each time I raise this, you avoid even attempting to refute it. Feel like finally making forward progress in the discussion instead of going in circles?

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Off the top of my head, I can point to one exceedingly common practice in contradiction of your claim - computer systems advertising and labelling. The largest section of the market for PCs is what is known as "white-box" or otherwise generic PCs. The sellers do not pay for or in any other way license the trademarks of the cpu manufacturers such as Pentium or Athlon. Yet these white-box systems are consistently and primarily advertised simply as: "Intel Pentium xxGHz" or "NoNameBrand AMD Athlon XX." Yet:

a) The majority of the components are not the product of Intel or AMD, and the majority of customers are unable to disambiguate between manufacturers of individual components especially if they don't open the case in the course of regular usage.

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Huh? The advertised boxes contain the brands of processors mentioned. There's no confusion. It doesn't remotely resemble the situation at hand. Now, if the processors in question had phyiscal elements removed or rearranged, it might have some relevance to this discussion. As it stands, however, it's just an excuse for you to read your own irrelevant blather.

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b) Some of these systems are of terribly poor quality, the kind of quality that would certainly tarnish the reputation of a premium trademark such as Intel or AMD.

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At best, that would be a trademark dilution issue, not a confusion of origin issue.

I said: "But the film still says "Directed by X" on it."

You said: "Uh no it doesn't. It says "Directed by X"..."

LOL

This is getting absurd.

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The relevant origin is the original fixation of the content, see the expert opinion of the registrar of copyrights in testifying before congress regarding the Family Movie Act of 2004.

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How about I see you actually make an argument to defend your claim? The "director" credit applies to the movie, not the fixed copy of the movie. Duh. Or do you really think that the director's credit means something completely different every time it's shown on different media?

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Gilliam v. ABC is not relevant to this discussion because: a) They were rebroadcasting, i.e. making new copies not modifying an original copy in place.

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Rebroadcasting doesn't necessarily create new copies. And the creation of new copies had no relevance to the Gilliam decision. You're raising a non-sequitur and acting like it ends the issue. Preposterous.

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b) They did not label their new copies as being edited. Maybe the court would have ruled in your favor even if the new copies had been labelled, but that was not the case the court ruled on.

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Maybe, but even if they only used a general disclaimer that the work had been re-edited, it couldn't possibly end all confusion, as I've already outlined for you multiple times.

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Absolutely. ANYTHING I want to do to that original copy I can do.

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So now First Sale also covers unauthorized copying? Wow. You'd get laughed out of a courtroom with garbage like that. Heck, you'd get laughed out of a law school classroom.

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Or do you really mean to argue that every used book with a page deliberately torn out, every commercial audiotape that the owner has partially recorded over, every sculpture that the owner has added his own modifications to, carved his own initials in and every painting or poster that has been drawn on, cut-up, or partially erased is is a violation of 106 because they are derivative works? If that were really the case, every household in America would be in violation. How silly.

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Not really very silly. Most of those examples would fall under fair use, and most would be far below the bar for any copyright holder to wish to litigate. Clean Flicks fails both of those tests. As to the examples of artists modifying their own works, aren't they the copyright holders in those situations, and can't they grant themselves the right to modify their own works? If so, then no violation of any right is occurring, as it is being done with the authorization of the copyright holder.

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Again and again with the derivative work bit. So far none of your citations is able to show any kind of justification for a modification of the original fixation to be the preparation of a derivative work.

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Hey, you found those cases on your own by now. Plus, it's simply irrelevant to the Clean Flicks situation. They don't simply modify the original fixation, they make a new copy. RTTF: " Yes, CleanFlicks offers you the option to purchase any of our DVDs. When you are adding a title in the queue, you will see a buy button along with the rent button, you can add the quantity you would like to purchase, and then click the buy button. We will then mail you the master and a brand new edited DVD." Clean Flicks creates a new copy. They send you back "the master," i.e., the original fixation, and a brand new copy of the edited version. This has to happen, as it's the only possible way for them to edit a DVD's content in the manner they do. Other similar vendors do the same thing, such as Family Flix: "Your original DVD will be disabled and a new edited DVD will be returned to you along with the original." All of this garbage about modifications to original fixations is completely off the mark and irrelevant. Gee, it's almost as if your last few posts have been completely pointless. What a surprise.

DJ

Someone's being owned :)

As much as I do not like Hollywood Video or Blockbuster(or Wal-Mart). I would at least get my facts straight before posting. I can not believe the paranoid conspiracy theories some people make up just because they hate the establishments!

BB does not 'edit' VHS(or dvd). That is another myth. I recall someone saying on another forum saying "Uh huh,go rent Full Metal Jacket on video from them,and you will see it is edited,all the language and violence is missing!!". I have rented Full Metal Jacket from BB before when I was a kid..and it was intact:D

The Mulholland Drive blur issue was not 'because' BB 'wouldn't carry it. It was exactly for the reasons the other people using common sense posted. The actress was concered about it,Lynth presumed horny bastards would pause the shot and post the clips online. Thus he choise to blur it out on home video.


The fact that the film passed with an R with the shot unblurred,gives BB no reason to 'censor' it. Requiem for a Dream was released unrated. BB would not carry an unrated only film(expect in rare cases)..so the edited R version was created(by the studio). Try finding Irreversible at either BB or Hollywood and it does not exist(may be fun to ask them for the film though,hehe). It was released unrated only,no R version was created. They refuse to stock it at all.


So stop spreading urban legends too attempt to sound 'smart'. It only makes you look stupid and irresponsible.


I will comment on one huge hypocrisy of both rental stores though. I have noticed Pink Flamingos NC-17 rating and all at both places. Meanwhile HV has pretty much gotten rid of most of their past unrated releases(replaced with R version only)...and refuse to carry anything unrated(or NC-17) anymore. Yet there was Pink Flamingos still on the shelf(in the new New Line release).

BB on the other hand only carries the tame cheapskate marketting gimmick 'unrated' releases like the American Pie films. Supposedly The Girl Next Door has some more explicit nudity NC-17 worthy stuff in the unrated release. BB has it,while HV refuses to carry Bad Santa 'unrated(which is actually R rated!).

Look for Sex & Lucia,and you will find the R rated version only. Search for The Cook,The Thief,His Wife....and you will find the 95 minute R rated version,instead of the proper 126 minute NC-17 version(now that is alot of cutting!). Look for various other movies that are nonmainstream which had heavily censored Rated versions,and uncensored Unrated versions. You will find the Rated version only.


So while both stores hide under the B.S. 'family values' banner. They both have Pink Flamingos..and really if they have that. What is stopping them from carrying far tamer NC-17 or unrated films?

I find it even more hilarious since I noticed neither placed stocked the unrated In The Cut,possibly because of the simulated 5 second oral sex shot. It's fake,a prothetic penis being pleased. Yet it could be considered 'hardcore' despite being simulated,so that is a no no Meanwhile Pink Flamingos has the same thing,only for real...and even more sickening,it's between a 'mother' and her 'son'...and even more disgusting,they are both ugly as hell! That was the one scene that really made me sick to my stomach while watching it. Yeesh,horrifying!

I wish I knew how to do the roll eyes symbol,since the morons in charge of forcing their morals on us,by picking and choosing what versions to stock,are not doing a good job. I think they are full of shit obviouslly and refuse to cater to either rental establishment:D


To the person who inquired about SPUN. That was released unrated theatrically and the R version was created for BB..and also shows up on Showtime. The unrated version runs the same length,but has all the language unbleeped..and all the sex/nudity/wharever 'objectionable' material all uncensored.

You are now ignoring the points I've made that directly contradict you. Lets review:

Hey, you found those cases on your own by now. Plus, it's simply irrelevant to the Clean Flicks situation. They don't simply modify the original fixation, they make a new copy. RTTF: "

How about you RTFT:

Now, you might try to argue that cleanflicks bought one licensed copy and then resold one and a half copies to their customers. But a) that's only because the medium is not directly editable, unlike a paper book, and b) if your entire position rests on that technicality, then cleanflicks can just superglue their edit directly onto the original disc - tada! ONE copy fixed in the same physical object that Cleanflicks originally purchased.

You also might try reading more closely where the Canadian supreme court said:
"Reproduction" has usually been defined as the act of producing additional or new copies of the work in any material form. I guess I have to spell it out for you ... the test for copyright infringement in Canada now incorporates a requirement that the works be multiplied in number. Don't bother with a "Canada's not the USA" retort, it would only show that yet again you could not remember a prior post.


Absolutely. ANYTHING I want to do to that original copy I can do.

So now First Sale also covers unauthorized copying? Wow. You'd get laughed out of a courtroom with garbage like that. Heck, you'd get laughed out of a law school classroom.

"Dispose of" is something you do to an object that changes its state. Copying is something you do with an object that does not change its state. There is a difference between "do to" and "do with." I carefully choose those words knowing full well that since you could not repudiate the original point, you would try to misdirect the argument.


To know of the existence of a missing scene containing a necessary plot element, one would have to see the original version or otherwise be informed of its existence.

So, you are attempting to argue that there will be confusion about the origin of something that is not there? Something that Cleanflicks did not copy? I guess that is your way of saying you have not heard of Dastar Corp. v. Twentieth Century Fox Film Corp. in which the supreme court ruled that:So, when I said: "If anything, that would be misrepresentation as to the origin of the copy ... the original disc didn't just materialize out of thin air, the studio sold it to cleanflicks," you really didn't get it.


Gilliam v. ABC

Big whoops - 106(1) - making copies, or 106(4) - public display via broadcast, either way ABC was not maintaining the original fixation, so obviously the court did not address the disposition of the fixation. Your continuing denial that fixation is relevant here is the non-sequitor.

Furthermore, the ruling in Gilliam relied on three points - 1) Lanham Act's confusion of origin; 2) Contractual agreements between the BBC and Gilliam and 3) the ability of the copyright holder to control derivative works. 1) Nullified by Dastar 2) Not applicable because Cleanflicks signed no contract and 3) Not applicable because there is no derivative work, maintaining the fixation is sufficient as suggested by the 7th circuit and determined by the Canadian supreme court.

More specifically, section 101 defines a "derivative work" as a "... form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship..."

Fixation more than covers the first part, "recast, transformed, or adapted" none of which occur when the fixation is maintained because there is no change in medium.

The second part "modification, which, as a whole, represent an original work of authorship" does not apply in Gilliam because the basis of his claim of derivative work was copyright in the unpublished script which was transformed into a motion picture version by the BBC under license. (i.e. "Since the scriptwriters' agreement explicitly retains for the group all rights not granted by the contract, omission of any terms concerning alterations in the program after recording must be read as reserving to appellants exclusive authority for such revisions.")


I said: "But the film still says "Directed by X" on it."

You said: "Uh no it doesn't. It says "Directed by X"..."

Great, you can edit what I wrote just like Cleanflicks.
But exactly how does that support your argument?

So either Clean Flicks edits only the original fixation, or they don't. Which is it? If Clean Flicks is creating a copy, they can't possibly simply be editing only the original fixation. Clean Flicks starts with the original copy. When they finish their editing, there are magically 2 copies. This means they are engaging in copying and not only editing the original fixation. You've been blown out of the water, kiddo.

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You also might try reading more closely where the Canadian supreme court said:

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The Canadian Supreme Court has about as much impact on the US Copyright Law as my dead Aunt Evelyn. And it certainly doesn't help your claim that Clean Flicks is only editing original fixations.

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"Dispose of" is something you do to an object that changes its state.

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Really? According to the American Heritage Dictionary, one definition of "dispose of" is simply "transfer" such as by "giving" or "selling" (hence its use in the First Sale statute in the first place). What change to an object's state occurs when it is handed to someone else?

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Copying is something you do with an object that does not change its state.

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It seems to me that it changes it just about as much as giving it to someone else.

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There is a difference between "do to" and "do with." I carefully choose those words knowing full well that since you could not repudiate the original point, you would try to misdirect the argument.

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There's only a difference if you want to invent one to attempt to boster an already shredded untenable position.

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So, you are attempting to argue that there will be confusion about the origin of something that is not there? Something that Cleanflicks did not copy? I guess that is your way of saying you have not heard of Dastar Corp. v. Twentieth Century Fox Film Corp. in which the supreme court ruled that:So, when I said: "If anything, that would be misrepresentation as to the origin of the copy ... the original disc didn't just materialize out of thin air, the studio sold it to cleanflicks," you really didn't get it.

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The origin of the uncopied scene is not the relevant origin in question. The relevant origin in question is the origin of the plot structure. Try again.

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Big whoops - 106(1) - making copies, or 106(4) - public display via broadcast, either way ABC was not maintaining the original fixation, so obviously the court did not address the disposition of the fixation. Your continuing denial that fixation is relevant here is the non-sequitor.

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You admit the court did not address it, but you tell me that denying its relevance is non sequitur? Huh? If the court didn't address it, it wasn't relevant to the decision.

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Furthermore, the ruling in Gilliam relied on three points - 1) Lanham Act's confusion of origin; 2) Contractual agreements between the BBC and Gilliam and 3) the ability of the copyright holder to control derivative works. 1) Nullified by Dastar

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Not by a long shot. Dastar involved a missing credit (as Justice Scalia framed the question in the opinion: "In this case, we are asked to decide whether § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), prevents the unaccredited copying of a work, and if so, whether a court may double a profit award under § 1117(a), in order to deter future infringing conduct."). Gilliam involved a present credit applying to an incorrect work. They're two ships passing in the night at best. Gilliam remains unchanged and in full force post-Dastar. Even if one reads Dastar to apply to the Gilliam situation, it only involves a reading of the word "origin" in 1125(a). But 1125(a) contains more than that. It also contains "sponsorship" and "approval," both of which are confusingly caused when a director's credit is applied to a re-edited film. If you'd like to claim victory over "origin," you've got it. The rest of 1125(a)(1)(A) provides more than enough for a cause of action on behalf of directors.

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2) Not applicable because Cleanflicks signed no contract and

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If anything, that would appear to me to make the Clean Flicks situation even worse for them. Plus, although it was present in Gilliam, it was not an element that actually contributed to § 1125(a) confusion, and so it's just a non sequitur.

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3) Not applicable because there is no derivative work, maintaining the fixation is sufficient as suggested by the 7th circuit and determined by the Canadian supreme court.

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First again, this wasn't actually a factor in § 1125(a) confusion, so it's a pure distraction on your part. Second, an irrelevant Canadian ruling and a 7th Circuit opinion that still says that a derivative work can still come out of an original fixation with sufficient creativity are of no help to your argument. Added together with the great weight of case law that modifications to original fixations can be derivative works, that edits of films are derivative works, and that Clean Flicks doesn't simply edit original fixations, anyway, you've got nothing left to stand on.

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Fixation more than covers the first part, "recast, transformed, or adapted" none of which occur when the fixation is maintained because there is no change in medium.

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Really? Transformation can't occur when the media remains the same? Funny then that Princeton's WordNet gives the following sentence as an example of the use of the word: "She transformed the clay into a beautiful sculpture."

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The second part "modification, which, as a whole, represent an original work of authorship" does not apply in Gilliam because the basis of his claim of derivative work was copyright in the unpublished script which was transformed into a motion picture version by the BBC under license. (i.e. "Since the scriptwriters' agreement explicitly retains for the group all rights not granted by the contract, omission of any terms concerning alterations in the program after recording must be read as reserving to appellants exclusive authority for such revisions.")

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OK. And the relevance to whether Clean Flicks causes confusion or creates derivative works is...?

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Great, you can edit what I wrote just like Cleanflicks.
But exactly how does that support your argument?

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Because first you said that the edited films don't have the director's credit ("Uh no it doesn't"), and you then proceeded to admit that it does contain a director's credit. Your position is so untenable that you can't maintain integrity long enough to be consistent between two sentences in the same paragraph.

DJ

You are very good at wrapping a bunch of baseless "no it's not" responses in full sentences with lots of unrelated verbiage. You clearly paid close attention in law school during 501 Deliberate Misdirection and Ignoring of the Obvious.

In your entire post, you made only a single point that was anything more than a baseless, "no it's not." Keep it up though and you will win through default, my time is more valuable than yours, especially when I don't spend it repeating the obvious to one who willfully chooses not to hear.

So either Clean Flicks edits only the original fixation, or they don't. Which is it? If Clean Flicks is creating a copy, they can't possibly simply be editing only the original fixation. Clean Flicks starts with the original copy. When they finish their editing, there are magically 2 copies. This means they are engaging in copying and not only editing the original fixation. You've been blown out of the water, kiddo.

As I said before, ultimately if redacting a paper book is legal, then logically it follows that redacting a work in some other medium is just as allowable when the end result is still one copy. I also said, if your case rests on the technicality of there being two copies at the end, then fixing the result to the original DVD is simple enough. Heck, even if your cases rests on the technicality of there being two copies during the process, they could superglue the blank DVD-R to an original DVD before the process starts, then at no time would there ever be more than the original number of copies. So much for your, "No it's not."

The Canadian Supreme Court has about as much impact on the US Copyright Law as my dead Aunt Evelyn. And it certainly doesn't help your claim that Clean Flicks is only editing original fixation.

You have yet to cite a case of infringement in the same fixation, proof by assertation seems to be your chief method of argument. Your "dead aunt Evelyn" is not a Berne signatory. Neither was she a party to Lawrence v. Texas nor Roper v. Simmons. I have already acknowledged that Canadian law is not a controlling authority in the USA, but given the similar legal systems and similar cultures, combined with the comments of the seventh circuit, it is indicative what sort of ruling is likely in the USA. So much for your, "No it's not."

What change to an object's state occurs when it is handed to someone else?

The state change is both location and possession. So much for your, "No it's not."

It seems to me that it changes it just about as much as giving it to someone else.

Ibid, more ignoring of the obvious and an attempt to argue in circles. So much for your, "No it's not."


There's only a difference if you want to invent one to attempt to boster an already shredded untenable position.

Misdirection, make a false claim and use that to justify another unsupported claim. So much for your, "No it's not."

The origin of the uncopied scene is not the relevant origin in question. The relevant origin in question is the origin of the plot structure. Try again.

Plot structure is intangible. SCOTUS says, "we conclude that the phrase [origin of goods] refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea." So much for your, "No it's not."

Gilliam involved a present credit applying to an incorrect work. They're two ships passing in the night at best. Gilliam remains unchanged and in full force post-Dastar.

Deliberate misdirection on your part - first you claimed that Gilliam was about confusion of origin - §43(a)(1)(A), but now you admit that it is really about misrepresentation - §43(a)(1)(B). Both Dastar and USCA1 03-1801 allow for the possibility of a claim of false authorship under §43(a)(1)(B) and explicitly not under §43(a)(1)(A).

Sponsorship and Approval
In Gilliam, a disclaimer at the start of broadcast is proposed as sufficient remedy, but then discarded because its temporary nature would mean it could only be seen by the audience who watched the start and that the audience, lacking access to either version once the broadcast finished would not be able to compare the versions for differences and see for themselves. Cleanflicks's disclaimer is not temporary, it is permanently attached to the box and made completely clear to the person purchasing the copy. Unedited copies of the movies Cleanflicks sells are abundant, even directly available from Cleanflicks, so there is no obstacle in comparing the approved and unapproved versions. Thus Cleanflicks's disclaimer satisifies the requirements under Gilliam and is sufficient remedy.

Since all of your other points regarding Gilliam explicitly rely on "confusion" in §43(a)(1)(A) they are either not relevent to Gilliam or nullified by the SCOTUS. So much for a bunch of "No it's not."


Really? Transformation can't occur when the media remains the same? Funny then that Princeton's WordNet gives the following sentence as an example of the use of the word: "She transformed the clay into a beautiful sculpture."

a) Raw Clay is not an artistic work, so "she" did not start with a copyrighted work
b) A sculpture requires that the clay be fired or otherwise dessicated, thus the water in the original is now gone
c) Misdirection on your part, Cleanflicks starts with a movie on DVD and ends up with the same movie minus some portions in the same medium, not transformative.
So much for your, "No it's not."


Because first you said that the edited films don't have the director's credit ("Uh no it doesn't"), and you then proceeded to admit that it does contain a director's credit. Your position is so untenable that you can't maintain integrity long enough to be consistent between two sentences in the same paragraph.

Ah, the old lawyer trick of asking a two part question and then requiring that only one answer be allowed and must apply to both parts. More deliberate misdirection. Watch a lot of 40's courtroom dramas, do you? If instead of answering with a literal example I had answered with "No, it contains a disclaimed director's credit" would you have then said:

I said: "It contains a director's credit."
You said: "No, it contains a" ... "director's credit."
LoL Look at me! I'm so clever!

First, you have yet to provide any case law supporting your colloquial "ripping pages out of a book" example (and, indeed, the great weight of case law explicitly denies that premise - and you claim that my method of argument is proof by assertion? Yours appears to be "proof by proving the opposite and still blindly making incorrect baseless assertions anyway".), so nothing "logically follows" from such a non-existent premise. In actuality, the exact opposite of your claims is what logically follows from statutory and case law. Furthermore, that final "one copy" in the Clean Flicks situation is not what you constantly refer to as "the original fixation." If what you say is true, then I could buy a 35mm print of a film, decide to do an entirely new remake of the film on 35mm, destroy the original, and still not violate the derivative work right. Even you can't actually believe your silliness at this point. And don't bother responding with the predictable "making a new movie is different than redacting a book" response - the great weight of case law, as cited to and admitted by you, holds that both can be derivative works with sufficient originality. There is not a single US case out there that says that "if only one copy in the same format as the original remains, it cannot be a derivative work." This legal precept exists solely in your imagination.

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I also said, if your case rests on the technicality of there being two copies at the end, then fixing the result to the original DVD is simple enough. Heck, even if your cases rests on the technicality of there being two copies during the process, they could superglue the blank DVD-R to an original DVD before the process starts, then at no time would there ever be more than the original number of copies. So much for your, "No it's not."

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Supergluing the two copies together doesn't make it a single copy. There are still two copies. Clean Flicks engages in the process of making a copy. It is not the case that only the original fixation is modified. You have been the one obsessed with the phrase "original fixation." Now it's clear that Clean Flicks does not modify original fixations. So how do account for this? By saying that your invented legal focus (unsupported in any case law, and completely decimated in other cases) doesn't matter because it's a technicality in one breath and then still focussing on the now-irrelevant phrase "original fixation" in the rest of your posts, anyway. The tortured leaps of logic you have to make you maintain any semblance of an argument is preposterous.

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You have yet to cite a case of infringement in the same fixation, proof by assertation seems to be your chief method of argument.

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First, the point is irrelevant since you acknowledge that Clean Flicks doesn't just modify "the same fixation." Even sttill, you already cited the various A.R.T. cases for me. Don't you remember? Did you read the cases you cited? "By borrowing and mounting the preexisting, copyrighted individual art images without the consent of the copyright proprietors -- Mirage and Dumas as to the art works and Van Der Marck as to the book -- appellant has prepared a derivative work and infringed the subject copyrights." Mirage v. A.R.T., 856 F.2d 1341 at 1343 (9th Cir. 1988). Even cases finding that A.R.T. does not create derivative works hold so only because they find a lack of creativity, not because modifications to original fixations are per se not derivative works: "The mundane act of placing notecards onto a ceramic tile falls into the narrow category of works in which no creative spark exists. Thus, the ceramic tiles are not a new and different original work, but the same exact work placed onto a different background." Lee v. A.R.T., 925 F. Supp. 576 (N.D.Il 1996). Neither the District Court nor the Court of Appeals created a per se rule against derivative works arising from modifications to original fixations. Creativity remains the test for derivative works.

Since sufficient creativity in modifying an original fixation clearly can constitute a derivative work, and since case law clearly holds that reediting a film constitutes sufficient creativity, Clean Flicks therefore creates derivative works, even if we choose to pretend that Clean Flicks is only modifying original fixations.

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Your "dead aunt Evelyn" is not a Berne signatory. Neither was she a party to Lawrence v. Texas nor Roper v. Simmons. I have already acknowledged that Canadian law is not a controlling authority in the USA, but given the similar legal systems and similar cultures, combined with the comments of the seventh circuit, it is indicative what sort of ruling is likely in the USA. So much for your, "No it's not."

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On the basis of being a Berne signatory and 2 cases in which they were cited, Canadian Supreme Court opinions are likely what the US Supreme Court would rule? You're just delusional at this point.

Even if we were to give the Canadian Supreme Court ruling any weight, that court was concerned solely with the defintion of "reproduction." Have you read what you've quoted? In the US Copyright Act, section 106 protects much more than simply "reproduction." Indeed, the derivative work right is completely separate from the reproduction right in 106. So even if the US Supreme Court were to accept the Canadian definition of "reproduction" as requiring the making of additional copies, it would not and could not have any impact whatsoever on the defintiion of "derivative work" in the US Copyright Act. The two rights are simply unconnected. One would have to throw logic and language out of the window to find otherwise, although we've seen that you have no problem doing both. And, once again, Clean Flicks is making reproductions, anyway (and unlike the Canadian case, the original 1s and 0s remain fixed on the original DVD), even if you want to dismiss that fact. Once again, you put the focus on something in one breath and dismiss it as a technicality in another.

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The state change is both location and possession. So much for your, "No it's not."

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And the state change in copying is from uncopied to copied.

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Deliberate misdirection on your part - first you claimed that Gilliam was about confusion of origin - §43(a)(1)(A), but now you admit that it is really about misrepresentation - §43(a)(1)(B).

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No misdirection. 1125(a)(1)(A) contains more than confusion of origin. Have you forgotten it already? It's not even remotely a chance in my position. Indeed, in my very first post on the subject, I cited 1125(a)(1)(A) and refered to "origin, sponsorship, or approval."

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Both Dastar and USCA1 03-1801 allow for the possibility of a claim of false authorship under §43(a)(1)(B) and explicitly not under §43(a)(1)(A).

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Dastar, with its focus on "origin" and a missing credit, did not rule on "sponsorship" and "approval" in 1125(a)(1)(A) as to an incorrect credit.

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In Gilliam, a disclaimer at the start of broadcast is proposed as sufficient remedy, but then discarded because its temporary nature would mean it could only be seen by the audience who watched the start and that the audience, lacking access to either version once the broadcast finished would not be able to compare the versions for differences and see for themselves. Cleanflicks's disclaimer is not temporary, it is permanently attached to the box and made completely clear to the person purchasing the copy.

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Wake me up when you finally decide to address the various times I have refuted this point.

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Unedited copies of the movies Cleanflicks sells are abundant, even directly available from Cleanflicks, so there is no obstacle in comparing the approved and unapproved versions. Thus Cleanflicks's disclaimer satisifies the requirements under Gilliam and is sufficient remedy.

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The consumer watching the edited version is confused. The entire point of the business of Clean Flicks and their ilk is that one buys or rents only the edited version. Family Flix, for example, even makes the original discs unwatchable. They don't want you to see the original to be able to compare it, as it would undercut their entire business. They want you to only see the edited version and thus be confused.

The consumer should not have to do research by re-buying the same product from another party or follow the chain of distribution in order to end that confusion, and the presence of a general and empty disclaimer can't create such a responsibility for them. It can only make sense to judge confusion based upon the limited situation presented by the junior user of the mark. Assuming perfect knowledge on the part of the consumer is preposteorus. Otherwise, there could never be any confusion in the marketplace; e.g., "A consumer shouldn't be confused that this Coach bag is a knock-off, because if the consumer just bought a real Coach bag and compared the two, they find differences, and if they just followed the trail back to the factory, they'd see that the factory did not have a license to produce that bag with a Coach label." Such a tortured reading of the Lanham Act would read it out of existence. Only someone with an axe to grind based upon a complete lack of legal information and experience would attempt to read it that way.

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Since all of your other points regarding Gilliam explicitly rely on "confusion" in §43(a)(1)(A) they are either not relevent to Gilliam or nullified by the SCOTUS. So much for a bunch of "No it's not."

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You have an empty, baseless, logically tortured, and legally confused "No, it's not" sentence and then attempt to make fun of me for it? LOL

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a) Raw Clay is not an artistic work, so "she" did not start with a copyrighted work

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So would "transform" really not apply if the clay had already been one sculpure to start and was then changed into another sculpture? You're killing me with this stuff.

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b) A sculpture requires that the clay be fired or otherwise dessicated, thus the water in the original is now gone

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It does? It's impossible to make a clay sculpture without firing it?

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c) Misdirection on your part, Cleanflicks starts with a movie on DVD and ends up with the same movie minus some portions in the same medium, not transformative.

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And a piece of clay starts off as a piece of clay in one shape and ends up as the same piece of clay in another shape in the same medium.

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Ah, the old lawyer trick of asking a two part question and then requiring that only one answer be allowed and must apply to both parts. More deliberate misdirection. Watch a lot of 40's courtroom dramas, do you? If instead of answering with a literal example I had answered with "No, it contains a disclaimed director's credit" would you have then said:

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So because your fevered imagination tells you that I would have edited your post to make you look sillier than usual if you actually posted correctly and truthfully, you purposely chose to say "No it doesn't" in a completely incorrect fashion? OK, chief. It's all my fault that you're an incompetent writer. Everything is my fault. You have no responsibility for your own blatant errors.

If only you were half as informed and honest as you are tenacious, this might make for an interesting discussion. As it is, however, it's like putting a vocal kindergartener in a college classroom.

DJ

This thread makes my head explode.

"For yet another thing, Blockbuster does not "edit" movies. To do so would be illegal, and lawsuits cost money. Instead, because they have enough outlets to give them considerable bargaining power, they negotiate with the distributors and studios to carry tamer, rated versions of unrated films"

Q: Does BLOCKBUSTER edit the movies in the store?
A: No, Blockbuster does not edit the content of its films. But whenever able, Blockbuster will order ‘edited for content’ versions from the studios that go light on displays of violent or sexual nature.

For years, Blockbuster has made it their business to edit movies that are carried in their stores. Though you may have never noticed it, many of the films on the shelves are edited. You are getting the gentrified, milk toast, lame, edited for television version. No shit. Go to your local Blockbuster now and rent Gus Van Sant's "Drugstore Cowboy." Edited. Cut. Scenes missing. In addition to demanding that video sellers offer an edited version for their stores, Blockbuster saves themselves the trouble of carrying an edited version by not carrying certain films at all.

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More discussion on BB editing videos/carrying videos that have been edited for content

DJ, I love everything you did in this thread but must regretably issue one small correction:

When Clean Flicks sells DVDs, they do, in fact, sell the original *and* a DVD-R with the edited copy. I don't think they do it when they rent, but when they sell, they definitely do; I assume it's because it wouldn't be legal to *just* sell the edited versions, for all the reasons you've cited.

How can you tell??? Also, does this mean the disc could be censored?

But you yourself previously agreed that Cleanflicks is distributing DVD-Rs with the newly edited films on them. What is a DVD-R if not a new physical copy?

It makes me laugh that you dismiss "authorization", which is the entire point. The difference, which is so obvious that I assume you're just pretending not to recognize it, is that broadcast TV versions are prepped by people connected to the film (often the director himself). Part of the initial contract a producer usually signs with a studio is to provide a "clean" version of their movie for television. If a network chooses to re-edit these versions further, the director has the option of removing their name from the film, an option Cleanflicks does not seem to offer.

For instance, when NBC showed 'Heat', Michael Mann removed his name from it because he was unhappy with their edits (he himself had prepared a clean version which they rejected). The Cleanflicks website, on the other hands, cites "written and directed by Michael Mann" and shows cover art with the same. This is a pretty clear difference, the very essence of the point. Mann did not approve of the version they're using his name to promote.

Look, I agree with you that there ought to be a legal way to do what Cleanflicks is trying to do. It seems to me that the "fast forward" button was a good one, but I also think that new player which takes care of censoring within the player, but does not affect the discs themselves, is a good idea. I don't think that would be a violation of the initial copyright, any more than choosing to watch an entire movie with the "slow motion" button on would be. But it doesn't seem as if Cleanflicks (or those other ones) is that legal option, and you've done nothing to prove it is. You haven't even been able to prove yet that you can rip out pages from a book and then re-sell it, and that's the foundation for your entire argument. Maybe, instead of spending money on LexusNexus, you should invest in a book about arguing point-by-point.

From my experience, some discs Netflix rents are imprinted with a logo "Produced for Netflix" or something similar, a *really* big Netflix logo which you can't miss.

As for censoring, I can't swear they couldn't. My understanding is, they sometimes drop features, so I imagine they could also, in theory, censor the movies, but I don't think it's very likely that they would.