Is it copyright infringement to edit objectionable content out of a video?

Is it copyright infringement to edit objectionable content out of a video?

There is a diverse universe of media available to the public today.  Media producers around the world create thousands of movies a year. In the hopes of attracting an audience sometimes movies include material that could be considered objectionable content. For the purposes of this article objectionable content will mean content that is not illegal, but may contain bad language, gratuitous violence or sexual situations. While objectionable content may attract some people, others people may choose to avoid it. Parents have an interest in protecting their children from videos that contain objectionable content.  Some people choose to avoid objectionable content because they find it more upsetting than entertaining.

In the interest of making as much money as possible, media producers will sometimes release a revision of a popular movie that has had the objectionable content removed.  This edited version of the movie is intended to allow people who are sensitive to objectionable content to view the movie without having to view things what are upsetting to them.  If a media producer owns the copyright on a video and releases an edited version of the video which omits objectionable content, that is clearly not copyright infringement.  But what if a the copyright owner of a video refuses to release a version of the video with the objectionable content removed?  Is the distribution of a video with objectionable content removed copyright infringement?

Short answer: Yes, it would be copyright infringement if someone other than the copyright owner edited objectionable content out of a video and distributed the video.

Lets review the case of Clean Flicks of Colo., LLC v. Soderbergh, 433 F. Supp. 2d 1236 (D. Colo. 2006) –

In this case Clean Flicks used film editing techniques to remove what they considered objectionable content from copyrighted videos. Clean Flicks legally acquired defendants’ videos, primarily as DVDs, and then sold or rented their edited versions of the videos along with a legally obtained version of the original video. Plaintiffs asked the court for a declaratory judgment that they were not infringing defendants’ works.  Defendants, motion picture studios, counterclaimed that plaintiffs infringed their copyrights by editing their films to create and sell derivative works.

The court held that public distribution of edited versions of defendants’ videos for the purpose of eliminating objectionable content did not constitute fair use. It ruled that the edited versions of the videos were not transformative because Clean Flicks added nothing new to the original videos. The cout further held that the “amount and substantiality” factor weighed against a finding of fair use because the movies were copied in their entirety for non-transformative use. Regarding the fourth factor, Clean Flicks claimed that there was no adverse effect on the market for the films because they maintained a one-to-one ratio between original and edited films, and that but for their editing, the defendants would not have sold those particular original copies. The court, however, stated that this argument ignored the defendants’ “right to control the content of the copyrighted work,” and further remarked that “[w]hether these films should be edited in a
manner that would make them acceptable to more of the public … is a question of what audience the copyright owner wants to reach.” The court also found that editing the versions as a form of comment or criticism was a public policy argument that was not appropriately raised in the copyright context.

Distilled down to its most basic point, the Clean Flicks case seems to indicate that to be a fair use, to be a transformative work, there must be something added to the original copyrighted work.  Merely deleting content will considered a derivative work of the original copyrighted work and not fair use.

Copyright infringement is a serious legal matter that should be discussed with an attorney.  If you have questions about fair use or other copyright issues it is best to contact an experienced copyright attorney to advise you.