History Loop: Film & Copyright

Last weekend marked an anniversary in copyright and film history.  On August 24, 1912, the 1909 Copyright Act was amended under the leadership of New Jersey congressman Edward Townsend to protect motion pictures as a medium distinct from photographic works.  In the century that has since passed, filmed entertainment became, and continues to be, among the most important products made in the United States, both culturally and economically.  That extending copyrights to protect the medium itself was a legislative move of unprecedented value to society is, I believe, beyond question.  Yet, for those who know their film history, 1912 does unavoidably draw the mind to American cinema’s uniquely turbulent beginnings.  While it may be tempting, as certain critics read what follows, to vilify copyright law because of the players involved at the time, that would be missing the more subtle idea that we may be witnessing a historical remake of sorts with a very different cast of characters.

From the earliest days of working motion picture technology, the craft, the business, even the film stock itself was volatile.  “The flickers,” as they were called literally used to explode, but people made and watched them anyway, with projection booths lined by sandbags to mitigate potential mayhem.  What better metaphor could one possibly find to express the passion Americans feel about their movies?  Just as they were called “vulgar” at the turn of the last century while audiences viewed them in secret, today we still love the movies even when we’re complaining about them. And the number of Americans who work in some way related to the technology of moving images is far too varied and nationally dispersed to be described by the single word Hollywood.

But before there was a Hollywood, the center of American motion picture production was indeed New Jersey, and the major producers grew as extensions of the manufacturers and patent holders on the technologies that made film possible.  There is no getting past the fact that these business owners were ruthless men or that the Townsend Amendment, proposed as it was by a New Jersey representative, was almost certainly one component of a tactical design to maintain exclusive ownership of all production and distribution.  While it is not unreasonable to say that contemporary, independent filmmakers are courageous, it’s worth noting that around 1912, being “indie” could get you killed.  In fact, the studios we think of today as “Hollywood” were all founded by independent filmmakers, some who risked life and limb to defy an illegal cabal known as The Patents Company, comprising producers like Edison, Vitagraph, Biograph, Kalem, and Selig.  Also known as The Edison Trust, these producers attempted to use injunctive power to control production based on certain patent claims.  One particularly flimsy claim was ownership of a process called The Latham Loop, which rationally parallel’s the contemporary move by Amazon to patent the process of photographing items on a white background.

Anyone who has ever loaded a film camera or projector knows that one must make loops above and below the film gate in order for the celluloid to pass smoothly, advancing one frame at a time.  The Patents Company to claim to ownership of this process — a claim that was rejected — and since they could not rule by law, they employed other methods, including intimidation and violence to stop independent projects by such filmmakers as Carl Laemmle, founder of Universal Pictures.  A common practice, according to the pioneer director Allan Dwan, was the use of snipers to fire at the cameras to disable production, but there were also assaults and shooting of production workers.

The storybook version of film’s migration to California is all about sunshine and the accessibility of varied locations, but a more acute motivation for the westward trek was the independents’ need to get away from the Patents Company and their heavies. Allan Dwan is among the best witnesses to this transitional time, beginning his career on the East Coast, then establishing one of the earliest California studios, Flying “A” Studio in La Mesa, CA.  He explains in Peter Bogdanovich’s wonderful collection of interviews Who the Devil Made It? that it was smart practice to film scenes in remote locations because proximity to a railroad put your crew within reach of Patents Company goons sent across country to break up the shoot.  Additionally, because of this persistent threat, many of the gun-wielding cowboys and gangsters in those two-reelers were in fact gun-wielding cowboys and gangsters, who served as both production security and as background characters.  Dwan tells the story of one encounter with a Patents Company thug, who arrived one day in La Mesa:

 “We took a walk up the road to talk it over.  I hadn’t been out of college for too long and was in good physical shape. So I wanted to get him far enough out of town to see if I couldn’t beat his brains out. We stopped at a bridge over an arroyo where people had thrown some tin cans.  There was a bright one sitting out there, so to impress me he whipped a gun out of his shoulder holster and shot at the can and missed it by about five yards. I pulled out my gun and hit the can twice, and that afternoon he left town. He was accompanied to the depot by my well-armed cowboys.”

Of course, Dwan and his contemporaries went on to become part of the studio system, which produced just about every classic motion picture that ever made a fan or  budding filmmaker fall in love with the movies.  Yes, business was still business, and as in all business, there were villains and heroes and plenty of prosperity and heartbreak to go around; but the important shift with the triumph of Hollywood over the Edison Trust was a move away from technology-based claims on the right to produce toward competition among the studios predicated on the talent they could get under contract. And from the late 1930s to the late 1960s, this system produced an extraordinary volume of films, including at least a few titles that will be on any enthusiast’s desert-island list.  This contract-based system laid the foundation for the next inevitable phase in the industry — name recognition and the transfer of power to individual artists.  Yes, this began with movie stars, and to be sure, not every actor is a great director or producer, but the breakup of the studio system coincides with the ability of individual artists in several disciplines who could draw a crowd.  As a result, most feature films today are produced by hundreds, if not thousands, of independent production companies.

A century and some change since the Townsend Amendment, we’re reviewing copyright and arguing about its relative value in a time antithetical to all that the Latham Loop represents.  Where once manufacturers who held patents on technology tried to hyperextend their control on creative works, today’s manufacturers and technologists are driven to put more and more means of production in the hands of every prospective filmmaker in the world.  As such, arguments made in the blogosphere and in congressional chambers say that low-cost digital capture technology combined with Internet-enabled distribution models means that copyright loses relevance in this “new market.”  But what I find interesting at this moment in history is that it seems to me those who assert such claims are making the same mistake as the Patents Trust Company — looking at films as though they are produced by the tools rather than the people who wield the tools.  Affordable, digital cameras and free distribution on YouTube have nothing to do with the value of a film being protected under copyright. What’s being protected by copyright is what a film makes us feel; and so this recent anniversary, though it pays some reluctant homage to men of dubious intent, is indeed a celebration of the American filmmaker.

Posted in Copyright, Film | Tagged , , | 13 Comments

Remix Culture & Food?

It was while sneaking one of my guilty pleasure foods, a small bag of Cool Ranch Doritios, that I read this article in the New York Times “Rethinking Eating” by Kate Murphy in which she reports that Silicon Valley is getting into the food business.  Well, the sustenance business anyway.  I’m not sure food is the goal in any of the cultural, social, or personal connotative senses of that word.  But technologists getting into the sustenance game isn’t necessarily a bad thing, applying algorithmic genius to the task of creating nutritional, and maybe experiential, substitutes for animal protein based foods.  Certainly, your vegetarian friends will remind you that animal-protein foods come with myriad downsides, ranging from environmental impact to cruel treatment of the animals themselves to any number of potential health hazards for the eater.  At the same time, too much of the still-growing world population remains hungry, and so it is not inconceivable that computer scientists mucking about in the world of algae and protein could be the legacy of Norman Borlaug, winner of the 1970 Nobel Peace Prize for inventing the hybrid “dwarf wheat,” credited with saving a billion lives.

As Murphy reports, “Instead of the go-to ingredients previously used in animal protein substitutes — soy, wheat gluten, vegetable starches — Food 2.0 companies are using computer algorithms to analyze hundreds of thousands of plant species to find out what compounds can be stripped out and recombined to create what they say are more delicious and sustainable sources of protein.”  No question, it’s an interesting area of research, and in all likelihood, this experimentation will yield some benefit the scientists aren’t even seeking.  Isn’t that part of the fun of science?

On the other hand, food scientists still trying to understand Food 1.0 have only just begun to seriously explore the microbial biodiversity of the human gut.  It is understood, for instance, that the innards of typical Western citizens are home to a more homogenous microbiome than they likely were in the past, while societies still living and eating more “primitively” show signs of a greater diversity of microbes.  How exactly certain microbes benefit humans — and thus how their absence may be harmful — is still science in its infancy, but researchers theorize that an increase in certain diseases in the developed world may be manifestations of our unwittingly killing off symbiotic species of bacteria and the like.  And since research in this area is so new, I’m going to assume that the algorithms being tested in Food 2.0 labs cannot account for these myriad chemical interactions between man and his meat, as it were.

At a glance, the efforts of these food tech entrepreneurs appear contrary to contemporary trends in culinary wisdom, which seeks food sources unsullied by mass production processes that often strip the very elements our bodies need in the first place.  While gut biodiversity science is still nascent, the general consensus among the food conscious is to follow the wisdom of experts like Michael Pollan who advises (if I may paraphrase), “Eat food and enough of it, and don’t eat that which is not food.” (My Cool Ranch Doritios definitely belong in the “not food” category.)  In short, we don’t necessarily need to know what every microbe does so much as we understand generally that we need to consume a fairly broad range of foods that are not over-sanitized because different symbiotic microbes thrive on different elements in the diet.  This is why the Western diet that is a bit too protein and sugar-rich has sustained certain microbes and killed off others.

And of course nobody needs me to tell them that, at its best, food feeds the soul, which may be much harder to factor into any equation than the probable influence of a single microbe.  So, it will certainly be interesting to see what comes from this new line of R&D, but historically, technology has a way of tasting like technology.  Anyone who has ever eaten a grocery-store tomato alongside a farm-stand tomato knows what I mean.  If this research leads to solutions that address world hunger and/or environmental and health hazards associated with current food production models, bring it on.  But if it’s a bunch of guys developing yet another way to treat food like a necessary evil that gets in the way of work or some other activity, that may not be progress for the human experience.

We like what appear to be ready solutions — like eCigarettes, which are so far unregulated on the assumption that they’re safe and are, therefore, being marketed to kids with sugary flavors like snicker doodle (yeah, I was surprised by that myself). So, perhaps these food tech guys are onto something, but they certainly appear to be investing in the opposite proposal that suggest maybe we just stop poisoning the apples and eat the damn apples.

Posted in Digital Culture | Tagged , , | 8 Comments

Helen Wong Shares Views on Piracy

Dear Helen Wong and especially the Editors of The Daily Californian:

On today’s opinion page, I see that you have decided to share your thoughts (we’ll call them thoughts) on the subject of piracy, predicated on your desire to see the film Captain America: The Winter Soldier.  After trying unsuccessfully to view this film through a legal and relatively cheap channel, you found yourself forced to pirate the film via a torrent site, a technology you say you’ve come to rather late. Indeed.  This experience prompted you write some of your observations on the subject of piracy, and the editors of your newspaper thought these worthy of publication.  But, Helen, not only are you late to the game of using pirate sites, you’re even later to the game of expounding on your bullshit rationalizations for doing so.  I mean, Girl, your statements from beginning to end are so six years ago.  I quote:

“Theft refers to the removal of the original material, while piracy means making a copy. If music were to be treated as physical property, then laws that absolutely prohibit illegal downloading would have to be passed. That’s not the case.”

This is how your whole article reads.  It’s filled with careless generalizations like these three little sentences that suggest you’ve found a tattered copy of the pirate manifesto somewhere but haven’t bothered to do any research or even more than a few minutes thinking on the issues implied.  “laws that prohibit illegal downloading would have to be passed?”  Does it occur to you that if there were no such laws, the downloading would not be illegal? That’s just careless writing.  But tell me you’re not late to using Google because you certainly might have expended just bit of effort checking to see if, for instance, Amanda Palmer’s “success story” has any holes in it, or discovered that Radiohead’s Thom Yorke has actually been very vocal in recent years about some challenges in the digital age. Most importantly, a bit of research might have shown you that the subject of piracy as a promotional vehicle is, at best, controversial but that most producers of works don’t see it that way.  In fact, in your offhand and typical comment about “Marvel and Disney having made enough money,”  as a justification for your actions, you didn’t even bother to check that Disney is not a producer of the film but is a distributor.*  This information is freely available on a website called IMDB.

Now, I know I’m being unkind and that everything implied in the paragraph above would require some effort.  You would have to ask yourself journalistic questions like, Do I have my facts straight?  Is what I’m writing current or outdated?  And in so doing you would have to spend up to several hours coming up to speed on the subject of piracy and perhaps then offer some original observations on the matter.  Had you done this, Helen, the most important lesson you would have learned is that journalistic writing, like filmmaking and other creative crafts, require work to do well, and that work has value.  Had the makers of Captain America skimped on process as you did in this article, it would not be a film you’d be interested in seeing, which brings us to the matter of its presently limited distribution.

Captain America:  The Winter Soldier cost $170 million to produce, and if you think that’s too much, perhaps they should cut some corners like skip the process of compositing.  You don’t know what compositing is? Let’s just say that it’s one of several hundred steps performed by skilled professionals in order to make this film something you were eager to see in the first place.  All those steps cost lots and lots of money — 170 million dollars lots — and you are in absolutely no position to know whether or not the investors have made the kind of return required thus far for them to invest in the next Marvel project.  It may seem greedy for the film’s owners to limit the distribution to sales for the time being, but there’s a window of opportunity when a film like this recoups its investment from a big pie chart of revenue streams (e.g. DVD sales), and then the film becomes available through cheaper channels.  You’ll find this is a pattern consistent with the distribution of many products.

Here’s a thought, Helen.  While waiting for this or any other film to become available as a low-price rental, I might suggest checking out any of several thousand movie titles you have yet to see in your young life that are available right now through various affordable and free channels.  Alternatively, you might also Google the word “library,” and discover that you very likely have one of these mythical facilities in your community and that they either have or can get you a DVD of Captain America: The Winter Soldier that they will let you borrow for free.  But I know you wanted to stream it to your computer in the very moment you felt the whim to see it.  I hear that.  My kids do the same thing sometimes.  They want what they want when they want it.  But sometimes they have to wait for what they want, and in the meantime, they often have other experiences of equal or greater value.  In the meantime, they learn to be citizens.  Just like my twelve-year-old has to do her homework, she’ll one day learn that somebody has to do a thing called compositing in order for her to enjoy a high-tech action movie and that journalists have to do some research before they write articles worth reading.

*Disney does own Marvel Studios. I should clarify the point that it is all too easy to just point to big names and forget that there are multiple entities with real-life employees involved in these types of films.

Posted in Copyright, Digital Culture, Piracy | Tagged , , | 24 Comments

Lionsgate Aggressively Pursues Leak of Expendables III

Well, what have we learned about pre-release piracy and its likely impact on this past weekend’s lackluster performance of Expendables III at the box office?  About two weeks ago, someone who had access to a DVD-quality file of the franchise’s latest installment leaked that file for the purpose of upload to illegal file-sharing sites; and prior to film’s release on August 15, it had been viewed an estimated 2.2 million times.  Some industry watchers will say that piracy clearly played a role in this case, damaging critical opening-weekend sales; others will point to the possibility of “franchise fatigue” and say that, with or without piracy, fans of the original Expendables might not have turned out for Number Three in profitable volume anyway.

For sure, we can expect folks to solidly assert one view or another depending on their opinions about piracy (and perhaps of the franchise itself), but the truth is that we probably can’t know with any certainty how many ticket sales did not materialize due to the leak.  What we can know, however, is that is that it shouldn’t bloody matter with regard to the larger conversation about piracy.  I say conversation generously because it isn’t a conversation any more than arguing with my seven year-old about bedtime is a conversation.  As I said in my last post about this story, pre-release piracy is a dick move; and if nothing else, it would be grand if stories like this leak would help place this narrative that piracy is “about something” into the lunatic fringe where it belongs.

I’d like to point out that the two million plus “fans” who chose to watch this film before its release will not be the targets of Lionsgate’s aggressive legal pursuit of the players responsible for the leak.  As such, it would be great if we could mothball this tedious tale writ by the whiny defenders of piracy (including Peter-I-hate-prison-because-they-don’t-serve-vegan-Sunde) that continues to cast individual viewers as victims in this context.  To the contrary, Lionsgate is very much out for blood it seems, but they’re gunning for the people who actually stole from them and profited by doing so.  In fact, the production company last week was granted permission by District Court Judge Margaret Meadows to force the likes of Google and GoDaddy to provide the identities of site operators who had been hosting copies of the film, and a round of subpoenas was sent out.  This was in addition to Lionsgate already filing suit against six file-sharing sites for hosting copies of the leaked film.

There’s more, and there will be more to come from this story.  This kind of piracy is a particularly big deal.  It begins with an act akin to embezzlement, someone in the production chain taking a product with a $90-million-dollar price tag and selling it to a black market before it even reaches the legitimate market. That’s not a social agenda in action. It’s not about diffusion of culture or the democratization of access or free speech. It isn’t a response to “Hollywood’s failure to adopt new distribution methods.” Whoever stole the original file wasn’t thinking about any of that crap, he was just doing it for money.  And he stole from his friends and colleagues.  That’s all this is about.

So, no, the viewers of  the pirated Expendables III will almost certainly not find themselves in the crosshairs of Lionsgate’s lawyers, but there’s no avoiding the fact that without their participation, piracy-for-profit simply wouldn’t exist.  If you don’t want to see a movie, don’t see it.  Let films like any other product live or die in a legitimate market on their own merits.  If you do want to see a film so badly that you just have to watch it online before its release and without paying for it, then at least have the decency to shut up about it. Because it’s just a dick move. Nothing more.

Posted in Film, Piracy | Tagged | 40 Comments

What is Parody?

Every once in a while, a story emerges, usually involving the use of music in either a humorous, provocative, or even offensive context that is then assumed by many to be an example of fair use in the form of parody. Aside from the fact that parody itself does not automatically guarantee a use would be judged fair in an actual court case — there are several other factors — the word parody itself is frequently used as a catch-all description for a variety of works that are not, in fact, parody.  Most notably this year, the case involving Goldie Blox’s use of the Beastie Boys’  song “Girls,” though ruled in favor of the Beasties*, has left some lingering confusion about the nature of parody.

The other night, my kids showed me this video by an obviously very talented young performer named Jon Cozart. He takes four famous Disney songs based on four famous Disney princess movies and sings a medley of four new narratives expressing his own jaundiced view as to what happens after happily ever after.  They’re funny, he has a great voice, and I’m not surprised this video has over 37 million views; but it isn’t parody even though it calls itself “parody” on YouTube, and I was even tempted to call it parody myself.  (Note that I am using Cozart’s excellent video as an example and am expressing opinions.  There is no case involving his work.)

A parody must lampoon the original work itself. So, merely writing new words to accompany a popular melody, or even riffing on the sounds of the original words, does not make the new work a parody unless the new work directly targets the content and soul of the original.  Thus, Cozart’s rendition of “Under the Sea,” which conveys a narrative in which a mermaid suffers the deprivations of ocean pollution, is a work of social satire and not parody.  In fact, the works of the most famous artist in this genre, Weird Al Yankovic, are largely not parodies either because the original songs are not the targets (or victims) of the joke. For instance, in the early 80s, when Al turned Joan Jett’s “I Love Rock n’ Roll” into a song about ice cream gluttony called “I Love Rocky Road,” he used wordplay and the familiar refrain to create a brand new comic piece, but he did not parody or comment on the mood, attitude, spirit, or content of the original song or its creator(s). This is why, even if it were not Al’s standard M.O., he would have had to pay for a mechanical license to produce the new song as well as a synch license for the video.

This video by producer The Key of Awesome, mocking Lorde’s song and video “Royals” is a far better example of actual parody.  In fact, near as I can tell, this producer primarily makes legit parodies.  The new lyrics (and new visuals) directly mock Lorde, her song, the original video, and even the spirit of the song and its performer. (Sorry, Lorde, nothing personal.)  This is a very different animal than taking the melody of “Royals” and writing lyrics to express something, comic or not, that is external to the original work.  For example, I wrote a few weeks ago about the Westboro Baptist Church borrowing Paul McCartney’s “Hey Jude” to write, perform, and distribute a video of themselves singing an anti-semitic rant called “Hey Jews.” My own kid commented that, offensive or not, the song was probably fair use as a parody, and I had to administer a dope slap. Again, in order for the Westboro Baptists to produce a parody, they would have to rewrite the lyrics to directly mock McCartney’s message to young Julian Lennon, or at least attempt to mock some intrinsic meaning in the original work that, I guess, also expresses how much they hate jews. I have no idea what that would sound like, but that’s what it would have to be to accurately be called a parody.

And that brings us to what I believe is confusing about what happened in the Goldie Blox v Beastie Boys case.  For that video, which was really a commercial, the producers rewrote the lyrics to “Girls.” Had they produced the song as a stand-alone work without the video, one might be able to call it a parody because the original lyrics were misogynistic, and the new lyrics were about female empowerment. But even then, there are a few factors that muddy those waters.

For starters, the original “Girls” is arguably a satire of misogyny, and so parodying that work technically conveys a pro-misogyny message, which was certainly not Goldie Blox’s intended communication. And this notion of an expectation that an audience will understand when a parody is being conveyed is actually relevant, both legally and creatively. As established in the landmark case Leibovitz v Paramount, the parody maker must have a reasonable expectation that a broad segment of the public will get the joke, that the work being targeted needs to be in the contemporary, public consciousness to the extent that the parody itself will be broadly understood. This isn’t simply a legal precedent; there is no point in making a parodic joke for which the intended audience has no frame of reference. “Girls” is a 20-year-old song that doesn’t get a lot of contemporary airplay or use in other media; and it is very probable, therefore, that Goldie Blox’s audience of parents, likely to be in their early to mid-30s, may not have the song present in their consciousness. Thus, that segment of viewers would not be immediately aware that any attempt at parody was at play.

Confusing this aspect even further is the video itself. We see young girls building an elaborate contraption and looking brainy, nothing that conveys mockery of anything at all. So, by experiencing the video in conjunction with the song, but without any knowledge of the original “Girls,” the viewer is completely ignorant of any attempt at parodying anything whatsoever. Rewriting the words to an existing song in order to promote a broader message about girl power, especially for the purpose of promoting a business, might arguably produce a piece of social commentary, but it deviates very far from targeting the content of the original work for the sake of parody.

Even in the age of the Internet, words still have meaning. And just because there are market forces at play that would like to see every form of remix and reuse classified as a fair use, this is no reason to abandon our ability to make literate distinctions among various types of works. It isn’t simply a matter of policy or law, but is a matter of cultural understanding.

*CORRECTION:  Thanks to commenters for jarring my memory.  GoldieBlox settled without a court ruling.  They paid a fine to the Beastie Boys, who donated the money toward some cause related to empowering young girls.

Posted in Copyright | Tagged , , , , , | 20 Comments