University of Chicago law professor Randy Picker persuasively argues that -- put aside the usual confusions about fair use and derivative works (which Bill Patry nicely captures here) -- what the Clean Flicks decision was really about is creative control. As he notes, the opinion "comes down strongly in favor of copyright creator control":
"[Clean Flicks's] argument has superficial appeal but it ignores the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public playing them on DVD in a home environment is more than a matter of marketing; it is a question of what audience the copyright owner wants to reach" (emphasis supplied).
Meanwhile, count Edward Lee as among those who are not impressed with the opinion's derivative works discussion:
"The Court's analysis seems just wrong to me. CleanFlicks made an edited copy of the movie and distributed it to the public. This kind of splicing of copyrighted works is reminiscent of the abridgment of books charged as piracy in early 18th century England by the likes of Daniel Dafoe. Today, the copyright holder certainly holds the right to make derivative works, including abridgments. 17 U.S.C. 101 (definition of 'derivative work' includes 'abridgment'). Just think of the famous Monty Python case, in which ABC edited scenes from Monty Python without authorization."
