Emphasizing the Copy in Copyright: Why Noncopying Alterations Do Not Prepare Infringing Derivative Works

I. INTRODUCTION Utilizing new digital editing technologies, an infant industry began supplying home-video consumers with the option of viewing edited versions of popular movies. These "sanitized" versions removed content deemed objectionable by some consumers, including profanity, sexual content, and violence. Many within the motion picture industry, however, found such unauthorized editing to be objectionable. Fearing that the motion picture industry would bring a lawsuit to end their business operation, a franchisee of the popular video-editing company CleanFlicks sued sixteen Hollywood directors for declaratory relief.1 Before long, many major motion picture studios came to the defense of the directors, countersuing the entire home-video-editing industry for, inter alia, copyright infringement. Some home-video editors, however, never copied the original motion pictures in order to provide edited versions-instead they produced filters that altered copies of the original movies during real-time playback-making claims of copyright infringement unintuitive. Displeased with the edited affect, regardless of the noncopying method employed, the motion picture studios alleged that video filterers infringed their copyrights by preparing derivative works2 of their protected movies. Conflicting precedent regarding other noncopying alterations made resolution of the case unpredictable. Before the district court reached a ruling on motions for summary judgment, the issue became moot when Congress enacted the Family Movie Act of 2005,3 which expressly authorizes video-filtering technologies.4 Litigation over video filtering is the most recent addition to a growing list of unpredictable controversies arising from noncopying alterations of copyrighted works. Prior to the 1976 Copyright Act (hereinafter "Act" or "1976 Act"), courts consistently rejected attempts to prohibit mere unauthorized alterations of protected works unless there was evidence that those works were copied5 in one form or another. Since the 1976 Act, however, some courts have prohibited unauthorized alterations even absent any evidence of copying, finding that these noncopying alterations infringed the exclusive right of copyright owners to prepare derivative works. Although rudimentary forms of the derivative right date back to the 1870 Copyright Act, the 1976 Act redefined the right very broadly, granting copyright owners the right to prohibit the creation of any work based upon the owners' preexisting works. Relying on this broad definition of the Act, plaintiffs have alleged that respective defendants created derivative works merely by altering lawfully purchased copies of a work or by manufacturing component devices that alter the appearance of a work in real time. Defendants in these cases have included commercial art stores, video-game and other toy producers, clothing manufacturers, software engineers, webpage advertisers, and, most recently, home-video filterers. Although evidence of copying is elementary to copyright infringement in general, no court deciding a noncopying-alteration case has specifically addressed whether evidence of copying is necessary to prove infringement of the derivative right. Courts have addressed, instead, various other issues, which has resulted in confusing and contradictory federal case law. Supreme Court review is ripe in order to resolve conflicting decisions among the circuit courts and to avoid special congressional intervention, such as the Family Movie Act of 2005. To remedy the current dilemma, courts must directly address whether unauthorized, noncopying alterations prepare infringing derivative works. This Comment concludes that there is no infringement of a copyright owner's exclusive right to prepare derivative works unless the defendant copied the owner's copyrighted work or its elements. Part II describes the gradual expansion of copyright, which has led to the current controversy over whether noncopying alterations prepare infringing derivative works. …