“Star Wars is still Star Wars, even without Princess Leia’s bikini scene,” said federal Circuit Judge Andrew D. Hurwitz in denying an appeal by the movie-filtering service VidAngel to lift an injunction that has kept its technology off the market since December 2016. Disney Enterprises v. VidAngel Inc., 16-56843. The U.S. Court of Appeals for the Ninth Circuit unanimously upheld an injunction entered by the Central District of California on the request of three Hollywood studios: Disney, 20th Century Fox and Warner Bros. The order prevents VidAngel from selling its technology that allows people to filter movies to remove content the user finds offensive.
Most operations at the Provo, UT-based VidAngel have been on hold since U.S. District Judge Andre Birotte Jr. ruled last year that the three studios and Star Wars production company LucasFilm were likely to prevail in a suit claiming their copyrights were infringed. See, “Movie Filtering Company Is Told To Shut Down,” in our January 2017 issue.
“We’re disappointed,” said Peter Stris of Stris & Maher who represented VidAngel, “and will review our strategy for moving forward.”
VidAngel claimed that because it legally buys a DVD, which it then decrypts and filters for its service, it owns the rights to the new — by virtue of the alterations — material. The company claimed it was legal under the 2005 Family Movie Act (FMA) authored by U.S. Sen. Orrin Hatch (R-UT) that provides a copyright infringement exception for content alterations by private households, and under the fair use provision of the U.S. Copyright Act.
Circuit Judge Hurwitz noted, however: “VidAngel’s interpretation would create a giant loophole in copyright law, sanctioning infringement so long as it filters some content and a copy of the work was lawfully purchased at some point. But, virtually all piracy of movies originates in some way from a legitimate copy. If the mere purchase of an authorized copy alone precluded infringement liability under the FMA, the statute would severely erode the commercial value of the public performance right in the digital context, permitting, for example, unlicensed streams which filter out only a movie’s credits.”
“Although removing objectionable content may permit a viewer to enjoy a film, this does not necessarily ‘add something new’ or change the ‘expression, meaning, or message’ of the film” that would make it a transformative use under §107 of the Copyright Act, the circuit judge further wrote.
A week after the injunction was issued by the district court in December, VidAngel launched a similar service offering sanitized versions of material taken from Netflix and Amazon. Immediately after the Ninth Circuit’s ruling, VidAngel CEO Neal Harmon said court’s decision would have no bearing on that service.
“We remain open for business,” Harmon said. “While all of the legal back-and-forth plays out, we know our customers are grateful to still have a way to protect their kids and filter harmful content. On the legal front, we are just getting started. We will fight for a family’s right to filter on modern technology all the way.”
***** Todd Cunningham covers entertainment, media and sports law in Los Angeles for The Recorder, an ALM sibling of Entertainment Law & Finance.
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.