Ted Kelterborn is a member of the KNOWlaw group of the Toronto law firm McMillan Binch. This article was prepared with the assistance of kathy johns and laurie sargent.

Like a lot of video store owners, Don Biesinger of American Fork, Utah was expecting to cash in on the recent video release of the blockbuster movie Titanic. That was until he discovered that most of his customers were only willing to rent or buy a ‘clean’ version of the film, free from any profanity, nudity or violence.

American Fork is located in Utah County, which is arguably one of the most conservative counties in the u.s.

Having received some legal advice that he could not directly rent or sell edited versions of the film, Biesinger has come up with a novel solution to this problem. For a small fee, he will snip the offensive bits out of video copies of Titanic that his customers have acquired from other sources.

Biesinger has apparently sanitized about 1,700 copies of Titanic to date and feels that he is completely within his rights to do so. Once purchased, he claims that a tape becomes the personal property of the purchaser and the purchaser is free to do whatever he or she likes with it. He has plans to offer his editing services for other videos too.

While at first blush Mr. Biesinger’s argument certainly appears persuasive, on closer examination you might begin to question whether he and/or his customers are actually infringing the rights of the owner of copyright in the films being edited.

Copyright

Under both u.s. and Canadian copyright law the owner of copyright in a work such as the movie Titanic has the exclusive right to reproduce that work or to make derivative works based on that work and the right to authorize others to do so.

In fact, the warning that appears on a prerecorded videocassette will typically spell out in no uncertain terms ‘the motion picture contained on this videocassette is sold for home use only and all other rights are expressly reserved by the copyright owner’ and that ‘any copying or public performance is strictly prohibited.’

This being the case, if the ‘editing’ process employed by Biesinger requires him at any time to copy any part of the original tape provided by a customer (which would appear to be the only way to avoid leaving a lot of dead air where offensive scenes are erased) this would be a clear infringement of copyright.

It would also be an infringement of copyright if the modifications to a customer’s copy of the original film are extensive enough that the finished product could actually be said to be a new work derived from the original.

This isn’t the first time that residents of Utah County have taken copyright law (and a big pair of scissors) into their own hands. Until recently, the Varsity Theatre at Brigham Young University showed sanitized versions of first-run movies, edited so as not to offend Mormon sensibilities. The Varsity stopped this practice soon after Paramount Pictures, the distributor of Titanic, prevented another theater in the same county from showing an edited version of the film.

Not surprisingly, Paramount is also closely scrutinizing Biesinger’s activities. It has reportedly not yet taken any formal legal action, but has been in touch with Biesinger and has asked him to stop his unauthorized editing.

Moral rights

If Titanic was the subject of Canadian copyright law, Biesinger would also have the problem of moral rights to deal with.

In Canada, as in many European countries, the various contributors to a film, such as the screenwriter, director, producer, composer and the set designer, all have moral rights in their particular contribution to the film. Moral rights give authors the right to restrain unauthorized distortion, manipulation, or other modification of their work that would be prejudicial to their honor or reputation.

Although Canadian courts have not had much of a chance to deal with moral rights issues, a relatively recent case has set a fairly high threshold for proof of prejudice to honor or reputation.

The case involved a Quebec publisher, Guerin Ltee., which published an unauthorized excerpt from the novel La vengeance de l’original by Doric Germain. The Federal Court of Canada recognized that the author had suffered subjective harm in the form of frustration and disappointment due to the publication of a distorted version of his work.

The court also required, however, that there be an objective aspect to this harm, such as some form of damage to his reputation among his colleagues. The author could not give any examples of any mockery or criticism by his colleagues resulting from the publication of the excerpt, and on this basis, the court decided not to award him any damages.

Coming back to the situation at hand, one really has to wonder whether any of James Cameron’s colleagues could possibly think any less of him if they saw a shorter version of Titanic. Fortunately for all concerned, we don’t have to decide the issue as under u.s. copyright law moral rights apply only in respect of works of visual art, such as sculpture and painting, and not in respect of motion pictures.

All of this should be of great interest to anyone who has an interest in keeping the content whole on prerecorded videocassettes destined for home use. After all, if Biesinger is correct in his analysis and Paramount backs down, enterprising ‘editors’ will undoubtedly sprout up all over the place, not only offering to free video owners of ‘coarse language’ and ‘adult situations,’ but also of those tedious head and tail credits and endless trailers for coming attractions.

We’ll keep our eyes on this one.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)