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In the movie “Matchstick Men,” a neurotic con artist played by Nicolas Cage gets flustered when anyone curses. Movie viewers with similar sensitivities will now find it easier to avoid profanity. RCA recently began producing a DVD player that includes software by ClearPlay Inc. that is preprogrammed to filter out nudity, sex, violence and harsh language from hundreds of movies ranging from “Lost in Translation” to “The Cat in the Hat.” The technology has created a furor in Hollywood, prompting a group of 16 prominent directors, including Steven Spielberg, Martin Scorsese, Robert Redford and Steven Soderbergh to team up with seven motion picture studios to get it off the market. The directors claim the editing violates their trademarks by mutilating and diluting their movies while the studios argue that it infringes their copyrights by creating derivative works. Litigation between the directors and studios and several filtering companies, including ClearPlay, began nearly two years ago. But RCA’s DVD player has put the legal drama back in the headlines. Ever since Sony introduced its Betamax video tape recorder in the 1970s, Hollywood talent has tangled with technology. But past disputes focused on technology that allowed for unauthorized copying. Now it’s about creative control, which has brought new litigation players into the scene: the directors. “This may be the first case in which the Directors Guild and directors are directly involved,” says Ernest Getto, a partner at Latham & Watkins who is representing the directors. ClearPlay, based in Salt Lake City, says the directors are trying to extend their artistic control from the movie set to the living room. “In my view it’s no different from having a remote control or having an equalizer that allows you to change the sound balance on a CD,” says Andrew Bridges, a partner in Winston & Strawn’s San Francisco office who represents ClearPlay. “Consumers get to make certain choices about the experience they wish to have with consumer entertainment products they bought for use in the home.” Getto rejects the comparison. “What they’re offering is not like a remote control,” he says. “They make the decision for the viewer [as to] what scenes, what language, what footage is taken out through their various filters.” ClearPlay has a staff of about 10 people who watch a movie and decide what to leave on the cutting-room floor. They then create software that skips over or mutes content deemed offensive during playback of the movie. Consumers subscribe to software filters on a movie-by-movie basis. Until RCA’s product hit stores, filtered movies could only be seen on computer screens. But while the RCA player is the first to reach the market, Bill Aho, ClearPlay’s chief executive officer, says other brands would be available later this year. He also expects to see a demand for such filtering devices because of consumers’ concerns about levels of violence, sex and nudity in movies. Filtering technology first attracted the ire of Hollywood’s leading directors in 2002. But before the directors filed suit, one of the inventors and a company called Clean Flicks beat them to the punch with a suit filed in Denver federal court that asked for a declaratory judgment that they were not violating the law. The directors, in turn, enlisted the support of the studios and jointly brought a countersuit against several DVD editing companies, including ClearPlay. The companies’ request for summary judgment in Huntsman v. Soderbergh, 02-1662, is now pending before Denver U.S. District Judge Richard Matsch. The directors claim the unauthorized editing of their works violates their trademark rights under the Lanham Act. Specifically, they say the editing dilutes and mutilates their mark and is likely to create confusion in the minds of consumers as to whether the directors originated or authorized these versions of their films. Robert Rosen, dean of the UCLA School of Theatre, Film and Television, submitted a declaration in support of the directors. Rosen analyzed several movies edited by ClearPlay and other companies involved in the litigation and described how the cuts had altered the meaning of the works. For example, in its version of Spielberg’s “Minority Report,” ClearPlay deletes a scene in which police send robotic “spiders” into people’s apartments where they film a couple engaged in a sexual encounter, a man on a toilet and individuals in a domestic conflict. These images are pivotal to the film’s “depiction of a society so profoundly concerned with the prevention of crime that it oversteps long-established standards of due process and constitutionally protected rights to personal privacy,” wrote Rosen. “ClearPlay’s edits mutilate and distort the movie.” The movie studios, for their part, claim that the edited movies are derivative works, which are based upon and incorporate their copyrighted material. ClearPlay is arguing that protected works must be “fixed” in a permanent form to be derivative, citing a 1992 Ninth Circuit decision in Lewis Galoob Toys Inc. v. Nintendo of America Inc., 964 F.2d 965. Jonathan Zavin, a partner in the New York office of Loeb & Loeb who is representing the film studios, argued in a brief to the court that the Copyright Act does not require a derivative work to be “fixed” in order to be infringed. He said the Ninth Circuit revisited the standard in its 1998 decision in Micro Star v. FormGen Inc., 154 F.3d 1107, and made clear that infringing derivative works such as modified audiovisual displays were in fact “embodied in permanent or concrete form.” Intel Corp. has also jumped into the fray, filing an amicus curiae brief in support of the filtering companies’ request for summary judgment. Intel argued that a finding in favor of the studios would chill innovation and stifle the development of new products. The Electronic Frontier Foundation, a digital rights organization, also weighed in with an amicus brief that likens the filtering technology to a friendly neighbor’s advice to avoid a movie or skip certain scenes. “It is fully consistent with copyright law and policy to enable a parent to take advantage of modern technology and, instead of having to personally implement the instructions of a trusted neighbor who has seen the film, allows computer code to implement the instructions of a trusted company to adjust a private performance to the parent’s preferences,” EFF wrote in its brief. Brenda Sandburg is a senior writer at The Recorder , where she covers developments in patent law and other intellectual property matters.

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