Re: Clean Flicks and derivative works

To oversimplify my agreement with your assessment, a work may be transfomed in order to make a non-transformative use, and a use may be transformative though the work remained intact.

John
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John T. Mitchell
http://interactionlaw.com
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 ..... Original Message .......
On Thu, 13 Jul 2006 12:35:33 -0400 Kevin L Smith <kevin.l.smith[_at_]duke.edu> wrote:
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>I have been reading the District Court opinion in the Clean Flicks case enjoining the creation and distribution of editing version of feature films, from which sex, profanity and violence have been excised. Although I think Judge Matsch largely got it right, there is one part of the opinion that puzzles me -- the discussion of transformative versus derivative works. Judge Matsch rejects both the Studio’s claim that Clean Flicks is violating their right to create derivative works and Clean Flicks’ fair use defense that their versions are transformative using the same argument. He apparently assumes, based on the presence of the word “transformed” in the definition of a derivative work, that if a work is not transformative, it can not be a derivative work. He calls both sides “inconsistent” because the Studios argue that the edited versions are derivative but not transformation, while Clean Flicks argues that their versions are transformative but not derivative.
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>It seems to me that both the Studios’ argument and that of Clean Flicks could be correct, given the breadth of the definition of a derivative work. If the Court held that the edited versions were abridgements or adaptations, for example, it could find that they were non-transformative (because nothing “new” was added, following Campbell) derivative works. On the other hand, and admittedly somewhat less convincingly, Clean Flicks argued that its editing was criticism, and therefore transformative, but not a derivative work since it added no new creative expression. Regardless of their merits, neither of these arguments seems inconsistent or impossible based on the language of the statute and the precedents.
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>Do others read Judge Matsch’s opinion this way? Does it seem wrong to anyone else; collapsing a complicated distinction into an easy identification? Or have I misunderstood something? Finally, if Judge Matsch’s reading is too simple, any thoughts about how to sort out the derivative / transformative relationship?
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>I am inclined to think that a transformative use will always, or at least usually, be a derivative work, although it is much more likely to be excusable based on fair use. But I also think that there can be other derivative uses that are not transformative. Therefore, if the District Court did not think that the edited versions of the films were transformative, it nevertheless could have granted the Studio’s motion for partial summary judgment based on a derivative works claim, as it did on the reproduction and distribution claims.
>
>Kevin L. Smith
>Scholarly Communications Officer
>Perkins Library, Duke University
>PO Box 90193
>Durham, NC 27708
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>kevin.l.smith[_at_]duke.edu
Received on Fri Jul 14 2006 - 05:25:00 GMT