Fair Use and Cleaned Up Batman Porn

Holy rusty trombone Batman! They took out all the sex scenes! Holy rusty trombone Batman! They took out all the sex scenes!

For those who have ever had dirty thoughts about their favorite movie character, chances are there’s a porn parody to make all their naughty Hollywood dreams come true. Come on, you don’t have some version of “Anna” from Frozen in your spank bank? Whatever… Princess Leia… Teletubbies? Mr. Rogers? Don’t make me keep going. ADMIT IT!

Well, anyway, the porn industry leaves no market un-served when it comes to Rule 34.

We’re talking about actual plot-driven pornos with feature scripts, long set hours, and highly-paid actors and actresses. These porn parodies are produced by some of the most popular porn production companies and (I think) are protected under the fair use doctrine. There are rational arguments to the contrary, but thus far, I am not aware of any major movie studio that has brought a copyright infringement claim against a porn parody.

But, bizarrely enough, someone is has reversed the polarity on the batteries in this particular gyrating bead-filled sex toy by taking porn parodies, and editing out all the sex scenes, so what you have left is a porn parody without the porn.

Yes, Really.

Which begs the question, “Is a clean version of Batman XXX: A Porn Parody fair use?”

I think not.

In Clean Flicks of Colorado v. Soderbergh, Clean Flicks took commercial films and edited out the “sex, nudity, profanity, and gory violence” in original Hollywood movies, and created new tapes of the edited versions. The newly edited versions were then sold or rented to their customers. The movie studios claimed that these “clean” versions were copyright infringement.

In response to the studios’ counterclaim, Clean Flicks asserted they were “fair use” of the studios’ copyrighted works.

Section 107 of the Copyright Act provides “fair use” of a copyrighted work, such as reproducing the work for the purpose of criticism, comment, news reporting, teaching, scholarship, or research is not copyright infringement.

In evaluating whether a particular use is fair, we look to 17 U.S.C. § 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

With regard to the first factor, Clean Flicks argued it was merely criticizing the objectionable content commonly found in current movies by providing more socially acceptable alternatives. The Court deemed this argument was “inconsequential to copyright law” and held it was not the Court’s job to “determine the social value of copyrighted works.” The Court then considered whether Clean Flicks’ use could be considered “transformative,” meaning whether the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The work was not transformative because Clean Flicks added nothing new to the movies and merely deleted scenes and dialogue from them. The use was also for commercial gain, and the Court consequently concluded the first and second factors weighed in favor of the studios.

Based on the Clean Flicks case, I think that merely deleting scenes from a copyrighted film is not transformative, because there is no new expression, meaning, or message in the Batman XXX sans the XXX. I usually explain it like this — you get copyright by breathing life into something with your creative efforts. If you make new life using other people’s works, then that is probably fair use. But, this doesn’t seem to pass my “God blowing life into dust” test.

Looking at the quantitative and qualitative amount of the copyrighted material used, also favored the studios in the Clean Flicks case because the copies were almost identical to the originals, and used the entire original – except the naughty bits.

With regard to the most important factor in the fair use analysis, the effect on the market for the original, Clean Flicks trotted out the common infringer mantra, “but we’re helping you!” Clean Flicks argued that their infringement actually benefited the studios because Clean Flicks purchased a copy of the original work for each edited copy made, and consumers who otherwise would not have purchased the original films were purchasing the edited versions.

The Court stated, “The argument . . . ignores the intrinsic value of the right to control the content of the copyrighted work in 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 . . . is a question of what audience the copyright owner wants to reach.” Ultimately, the Court held that public distribution of edited versions of the studios’ films for the purpose of eliminating objectionable content did not constitute fair use.

In our porn parody scenario, the infringement seems even more clear. In Clean Flicks, at least they were buying a film, thus not depriving the copyright owner of a sale. However, in this situation, someone bought the video and now is distributing it for free – with the sex scenes taken out.

Who would want to watch a porn movie with no porn in it, you ask? Well, the original Batman XXX is actually a pretty great movie — playing up the 1960s campiness of the original Batman series. Sort of like how Tina Fey is actually a better Sarah Palin than the original Sarah, the Batman XXX is a refined, superior, interpretation of the original. And then there’s the bang scenes.

But, Youtube doesn’t allow bang scenes… so, here’s the non-fappable version… at least until someone DMCAs it.

This post originally appeared on Popehat. View it here.

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