Now THIS Is Hypocrisy: Steven Soderbergh’s Copyright Exemption

Raiders_B and W

Few ethical concepts are as misidentified as hypocrisy, which is the opposite of integrity. The judge who secretly engages in crimes by night that he harshly sentences poor defendants for committing when he wears his black robe by day is a hypocrite; the parent who punishes his child for conduct she defiantly engaged in when she was the same age is not. The anti-hate speech zealot who uses what she would call hate speech in attacking others is a hypocrite; the closeted gay Baptist who opposes same-sex marriage is not. There is no danger of confusion where director Stephen Soderbergh’s copyright militancy is concerned, however. He’s a perfect hypocrite, one who distinguishes  right and wrong this way: if anyone other than  Soderbergh does it, it’s wrong.

Soderbergh is an outspoken copyright infringement hun who has testified  before Congress on behalf of the Director’s Guild of America, calling for tough legal penalties against online copyright infringers. He was also the lead plaintiff in the 2006 case of Soderbergh et al v. Clean Flicks of Colorado et al., seeking to shut down a company called Clean Flicks  that distributed versions of previously-released films edited by them to be more “family friendly.”

Soderbergh suit was successful, with the court ruling that the edited versions prepared by Clean Flicks violated his rights under sec 106(2) of the Copyright Act  by creating derivative versions 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”—and held that that Clean Flicks was responsible for “irreparable injury to the creative artistic expression in the copyrighted movies.”

But what’s this? Now Soderbergh is posting his own specially-edited versions of the classics “Psycho,” “Raiders of the Lost Ark,” and “2001: A Space Odyssey” on his own website. Want to see how good Raiders looks as a black-and-white film for example? Soderbergh’s color-free edit will show you. And how is editing the color out of the Lucas-Spielberg film ethically and legally distinct from editing out the naughty words and images from Soderbergh’s “Sex, Lies, and Videotape?”

I have no idea. Ask Soderbergh, whose answer, I suspect, will be “because I did it, not someone else.”



Pointer: Volokh

9 thoughts on “Now THIS Is Hypocrisy: Steven Soderbergh’s Copyright Exemption

  1. One difference is that CleanFlicks was a business and made money distributing edited versions of films. Soderbergh writes on his website that he is posting these films “for educational purposes only.”

    One could also argue that Soderbergh has created a new work of art (his “Raiders” has a new soundtrack as well as being B&W), and so his creation is protected by fair use as “transformative.”

  2. It’s not only hypocritical; it’s criminal film-laundering: Put Soderbergh together with Ted Turner in the lab and – abracadabra – one puts the color in and the other one takes it out.

  3. It is not necessarily hypocrisy to take advantage of loopholes in copyright laws while at the same time calling for Congress to close these loopholes. Nor would it be hypocrisy to seek legal redress ion the basis of a law one believes should be repealed. what makes this case hypocrisy is that Mr. Soderbergh did this while it was illegal. (for example, it is not wrong to take advantage of affirmative action programs even though one advocates their repeal, but it would be hypocrisy if one argues that it is immoral to benefit from affirmative action.)

    Jeff Jacoby makes this excellent point .

    What makes Buffett a hypocrite isn’t that he champions an immediate tax increase on the wealthy, yet donates nothing extra to Washington himself. Merely favoring a change in the law doesn’t oblige anyone to act as if the change has been enacted.

    But Buffett doesn’t just propose higher taxes on millionaires and billionaires as a matter of abstract policy. He argues that he personally (along with what he calls “my mega-rich friends”) has been “spared” any shared sacrifice, that he personally has “been coddled long enough,” that he personally shouldn’t get “extraordinary tax breaks” when so many Americans are struggling. He frames his call for higher taxes as an avowal of his own moral obligations. Were he to put his money where his mouth is and voluntarily send the Treasury a big check, his call for higher taxes would carry greater moral authority. His failure to do so is not just intellectually inconsistent, but hypocritical.

  4. When I was a kid, TV stations would edit films mercilessly and, of course, present the images in a truncated form in order to fit them on the small screen. Frankly, I don’t see how this is any different from what Clean Flicks of Colorado does except for the motive. They’ve edited out the family objectionable parts, it seems. But that’s also something television has done quite a bit of. Another thing: Whenever some Hollywood type starts to prattle on about “creative artistic expression” or something equally pompous, hang onto your wallet and rest assured that “art” has nothing to do with it.

    • But didn’t the TV station pay the movie company for the rights to do that editing and broadcast the edited for TV film? I’d be surprised if they didn’t, which means they have permission from the copyright holder for that use.

      Or, did the movie companies do the editing and provide a TV version of their films for broadcast? I’ve no idea.

      Either way, I’d bet they had the proper legal rights to do what they did.

  5. The court uses multiple factors to resolve copyright disputes:

    The Amount and Substantiality of the Portion Taken: Clean Flicks used Soderbergh’s film almost in its entirety (around 98%). Soderbergh’s silent version of Raiders removes the color, the soundtrack, and the dialogue, arguably a substantial portion of the original work.
    The Effect of the Use Upon the Potential Market: Clean Flicks’ version of Soderbergh’s film undermines a new or potential market for the copyrighted work, namely “family friendly” versions of Soderbergh’s films.
    The Transformative Factor (the Supreme Court emphasizes this factor as being a primary indicator of fair use): Soderbergh “transformed” (created a new work of art from) Spielberg’s film, whereas Clean Flicks primarily copied Soderbergh’s film, removing or altering small sections to make the film “family friendly.”
    Based on these factors, Soderbergh’s Raiders is not copyright infringement, while Clean Flicks’ version of Soderbergh’s film is.

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