Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Russian Filmmaker Sees Piracy as Path to Obscurity

With few exceptions, a short film has almost no market value today.  Certainly, a short can be the occasional prelude to work that might have market value—either as a calling card for the filmmaker or as a “proof-of-concept” draft for a would-be feature.  But in general, most of the best short films are in a category of their own—conceived and executed as purely artistic expressions with small audiences and limited avenues for revenue-based distribution.

So, when a short film is nominated for an Academy Award, it’s a really big deal.  Particularly at a time when the Academy is justifiably being criticized for a lack of diversity among feature-film nominees, the shorts, documentaries, and foreign films are at least three Oscar categories in which recognition is better immunized against the PR machine that influences the bigger movies.  Almost more importantly, the festival circuit matters a lot. It’s where a short can be seen on a big screen by audiences who truly love cinema, including fellow filmmakers with whom the film’s creator wants to network.  All of this activity ultimately produces more great works through various collaborations and exchanges of ideas.

As reported this week, Russian filmmaker Konstantin Bronzit is literally begging fellow Russians not to pirate his Oscar-nominated short We Can’t Live Without Cosmos, after a festival screener was stolen, digitized and uploaded onto Russian social media.   Of course, Bronzit’s plea isn’t about financial loss, but rather that his film can be disqualified from various festivals around the world.  This is because many of the major festivals have fairly strict entry requirements, limiting the types of exhibition a film is allowed to have before being shown at their venues. And on this matter Bronzit’s choice of words as they appear in the Hollywood Reporter are revealing:

Bronzit called on Russian users to stop illegitimate distribution of We Can’t Live Without Cosmos. “Without festival play, the film will just go into obscurity,” the director said. “Save my film and my work of four years.”

Obscurity.  I’ve heard that word somewhere before. It’s that market purgatory from which piracy supposedly rescues all manner of creative works.  We’ve heard the cliché repeated many of times, even by some creators:  “My problem isn’t piracy, it’s obscurity.”  Yet, here is a filmmaker who offers one very concrete example as to why piracy can damn his film to obscurity, even if lots of people see it online. Counter-intuitive?  Not if you understand the filmmaker’s needs or can at least respect them. Clearly, the standard rationalization for piracy—the rich movie studio trope—doesn’t apply to Bronzit, and since the filmmaker himself is saying he doesn’t want piracy’s “promotional help,” maybe that particular justification for “sharing” his film doesn’t hold water either.

Meanwhile, Adam Leipzig reports for Cultural Weekly, that a new study on the estimated cost of piracy to independent film reveals measurable, economic harm.  Because these smaller films can expect relatively narrow margins–a factor I have cited repeatedly on this blog–the conservative estimates used in the study reflect tangible losses of what Leipzig calls “life and death money for an indie filmmaker.”

Of course, what Konstantin Bronzit’s story throws into sharp relief—and this a basic concept piracy apologists simply cannot seem to grasp—is that what the media pirate and its users do in every single case, regardless of money, is rob the author of his right to choose.  And, if the sanctimonious, faux-progressive, sharing-economy piracy proponents can produce a rationalization for doing that, maybe it’s time they just admit they don’t give a damn about the works or their creators.

Music on the Campaign Trail

In the Fall of 1977, just weeks before gay rights activist Harvey Milk won a seat on the San Francisco Board of Supervisors, the English rock band Queen released the album News of the World. The LP included a short, heavily-rhythmic single called “We Will Rock You”, which typically segues into the anthemic “We Are the Champions”. Written by Queen’s lead guitarist Brian May, “We Will Rock You” was recorded in an abandoned church in north London because the band liked the acoustics. And as Seth Wickersham, writing for ESPN reports, “For weeks, Mercury and May took turns stomping on old pews and clapping, until they got the right sound.”

Nearly four decades later, “We Will Rock You” remains the number one track played at American sporting events—a fact that has intrigued me as much as I imagine it’s made a few structural engineers nervous since the trend began. Forgive the generalized stereotype implicit in this observation, but to watch, for instance, forty thousand Dallas Cowboys fans sing along with gay Freddie Mercury in virile support of their football team is  exactly the kind of cultural counterpoint I appreciate when it happens. The song was literally born in a church; it was sung by an incredible artist whose identity was at least somewhat restrained by the semi-tolerant limbo of homosexuality through the 1980s and the AIDS crisis; and then it became the Sunday hymnal of some of the most mainstream and socially conservative Americans, all rallied into chorus by May’s thump-thump-clap rhythm.

The fact that the verses of “We Will Rock You” are about loss and futility only adds another layer of irony to its role in sports fandom; but this is generally what we make of music anyway. The chorus and the rhythm fit our moods of triumph, sorrow, defiance, momentum, heartbreak, and so on, even if the lyrics and melody tell a very different story. And this relationship to music often comes into sharp relief when political candidates use a popular song—almost always because of the chorus—at campaign events.

In particular, when candidates represent or evangelize a point of view that is anathema to the authors’ beliefs—or even in direct opposition to what a song itself might be about—it has lately become a regular feature of our politics to hear of artists either asking or demanding that politicians not use their works. These stories, of course, lead to all manner of confusion about copyright, fair use, and the control an artist may or may not exert in these contexts. In most cases, people seem to side with artists, which is certainly encouraging, though hatred of a political candidate and love of a musician isn’t necessarily the clearest lens through which one might view these conflicts.

When Neil Young demanded that Donald Trump stop using his song “Rockin’ in the Free World” at campaign events, fans praised Young, though it’s not clear that he was on solid legal ground at the time. In general, a campaign is covered as long as the venue or the campaign itself has paid fees to Performing Rights Organization (PRO) like ASCAP, BMI, or SESAC (or all three) to license the use of nearly any song for public performance. The campaign has a responsibility to ensure the venue has these licenses (or to get its own), but as long as the PROs are covered, the artists and songwriters generally have no say, from a legal perspective, about the context in which their songs may be used at live events.

Artists may certainly ask a political candidate not to use a song, and they are free to publicly criticize the use as much as they want, but they can’t rely on copyright law to stop a politician from making this kind of use if the licenses are up to date. In another context, however, if a candidate makes repeated use of a song to the extent that it starts to become his/her theme music, the artist may see this as unlicensed endorsement and seek to enforce his/her right of publicity in order to stop the use. I’m not sure what the legal facts were in the Trump/Young kerfuffle; I’m guessing the campaign was most likely in the clear but decided to let the song go rather than allow a public fight with Neil Young to distract from its core message at the time of hating on Mexicans. One must prioritize.

Mike Huckabee Uses Eye of the Tiger at Kentucky Rally

In a different—and slightly bizarre—circumstance, the organization Huckabee for President, Inc. is facing a lawsuit by publisher Rude Music for copyright infringement stemming from a public performance of the song “Eye of the Tiger”, co-authored by Rude Music’s owner Frank Sullivan for the 1982 motion picture Rocky III. Approximately one quarter of the four-minute song was played outdoors at a rally in Grayson, KY on September 8, 2015 immediately after candidate Huckabee introduced Kim Davis to the podium following her release from the Carter County Detention Center, where she had been jailed for her refusal to issue marriage licenses to same-sex couples. It’s a safe bet the county jail hadn’t paid any PRO licenses as they probably don’t host a lot of parties or other events requiring music. Ostensibly, this suggests the Huckabee campaign messed up in one way or another, and the defense presented in their case seems a little odd.

The attorney for Huckabee has presented affirmative fair use defenses addressing all four factors, including a less-frequently-cited exception for use of music at a religious assembly. In fact, the defense states that the candidate was only in attendance as an evangelical Christian in support of a rally called the “We Stand With God Pro Family Rally”, organized by a religious group and not the Huckabee campaign. What seems odd to me, though—and speaking as a layman of course—is that the foundation of Huckabee’s defense would appear to be that the Grayson event simply was not his show—that their operatives did not publicly perform “Eye of the Tiger” as part of the Huckabee for President campaign. And the reason I say this is odd is that if this fact can be proven—or cannot be disproven—then the fair use defenses presented would be moot.  If Huckabee for President, Inc. did not publicly perform the song, then it cannot have infringed, which begs the question of offering any fair use defenses at all. If a use by a defendant does not exist, then there is no question of fairness to be judged.

So, the defense of religious assembly is irrelevant if it was not Huckabee’s assembly; and if it was in any way his assembly, he will have to prove that it was a purely religious gathering having nothing to do with the campaign. How he might hope to make that distinction, particularly when Mike Huckabee barely recognizes a separation between church and state, would appear to require a rather fine legal scalpel.

In particular, as mentioned, the candidate introduced Kim Davis to the stage and then somebody pushed Play on “Eye of the Tiger”; so even if this coordinated bit of theater came together impromptu, it looks an awful lot like the event became a Huckabee for President moment, regardless of whether it began as a religious assembly. One way or another—whether professionally planned or divinely arranged—candidate Huckabee certainly ended up with a neatly choreographed moment—shared via amateur video online—in which Davis joins him at the podium to the beat and triumphant lyrics of Sullivan’s famous comeback song. The fact that this particular visual is just one of many reasons Mike Huckabee will never be president has of course no bearing on the infringement case.

As our politics have become more divisive, and side-show happenings can gain wider exposure than in pre-Internet years, politicians’ use of popular music is likely to produce more frequent points of contention for both artists and their fans. And, as I say, while the particulars of these cases often sow confusion about copyright and its limitations, the emotional response is anything but irrelevant. That bile-in-the-throat feeling one might get if Donald Trump played Bowie’s “Heroes” at a campaign rally is neither petty nor dismissible. Because music is more powerful than either the smartest or the dumbest thing any political figure has ever said. It is simultaneously more primal and more enlightened. It’s why Brian May’s rhythm can induce Pavlovian harmony among millions of sports fans, who in another context might have righteously trampled Freddie Mercury’s civil rights. Maybe music for politicians should come with a label:  WARNING. CONTENTS MAY ROCK YOU. USE WITH CAUTION.

On Piracy and Promotion

Charlie:  Dad, how can you hate The Colonel?

Stuart (Scottish accent):  Because he puts an addictive chemical in his chicken that makes you crave it fortnightly, Smart Ass!

– So I Married an Axe Murderer (1993) –

As mentioned in much older posts, my father was an advertising professional, principally a creative director but also a manager.  And one lesson he preached to his colleagues, employees, students, and even to his clients was that good advertising can only sell a bad product one time.  In particular, there was one client I remember that probably danced with every agency in Los Angeles at one time or another, convinced that a fresh campaign could sell a particular offering to a certain audience they were simply never going to attract.

I think Dad’s axiom remains sound. If consumers really don’t want something, advertising can’t make them want it—at least not more than once.  In fact, I imagine this principle is more acutely understood in the digital age, given the diffuse nature of all communications; scattered consumer attention; and the capacity of social media to provide rapid-response word-of-mouth that either endorses or criticizes a specific product or service.  This does not mean, of course, that advertising is unnecessary.  Apple, which is arguably in a class by itself as a brand, also had a reported advertising budget of $1 billion as of early 2013.  Anyone who thinks Apple can just turn that spigot off and let social media platforms enable consumers to “market for them” is smoking both ends of his crack pipe.

Interestingly, marketing a theatrical feature film is a bit like selling a product just one time. The production cost of big movies can be so high and the attention span of the market so brief, that opening weekend, box-office revenue has become an even more critical threshold for many films than it was just ten years ago.  Naturally, Hollywood studios did not create the pressures of this market alone; they had help from the same digital technologies that today provide us consumers with myriad other options to entertain ourselves on any given weekend—or even the opportunity to pirate films rather than to see them in theaters.  So, yes, the marketing urgency is fraught with the need to capture the fickle audiences that remain willing to go to the movies. But advertising is still not going to drive consumers to do anything they don’t want to do.

Nevertheless, a strange, complementary sentiment to the trope that piracy is good for promoting movies is one that wants to believe that the official marketing of theatrical features is nothing but a grotesquely expensive effort to “cram lousy entertainment down people’s throats.”* Some readers may immediately notice the contradiction that if the entertainment product itself is assumed to be lousy and unwanted, there’s really no point in discussing its promotion, either by traditional or piratical means. Yet, this rather obvious hypocrisy is overlooked when the pirate user or promoter effectively says,  “I hate Hollywood and its terrible movies, and besides piracy is good for promotion.”

Surely, if both of these statements are true, then one would want to avoid “helping” the industry one hates. But of course both statements are not necessarily true; and in a macro sense, neither statement is true.  If millions of viewers had, for example, no interest in seeing Quentin Tarantino’s Hateful Eight, these same uninterested viewers would surely not be eager to watch ripped versions of the film on little screens. No, the reason the widely reported, pre-release piracy of this movie was a big deal is because the film is already a big deal—and it’s not the piracy that made it big.  Tarantino’s track record and his cast of famous actors were not exactly suffering from obscurity when the group calling itself Hive-CM8 decided to leak the film ahead of its theatrical release. And the suggestion that this kind of blockbuster film needs the pirates to “promote” their movie is adorably silly.

Fueling this rationale, though, it seems it has become more common for consumers—or at least piracy apologists—to feel they have been “ripped off” whenever a film is disappointing.  This trend, if it is a trend, is a strange way to approach the experience of moviegoing.  A film isn’t a fifteen-hundred-dollar appliance you rely on in your home every day; it’s two hours of entertainment shared with family or a date or friends.  It’s an experience that, even if it’s bad, provides a basis for discussion or thought or criticism or ridicule. I say this as someone who likes far less mainstream fare than many viewers; and so I don’t really understand the “consumer protection” attitude being applied to entertainment through the filter of rationalizing piracy.  After all, I would never walk into an Avengers film expecting anything other than spectacle and fight scenes and banter; but I would also never walk into a Spike Jonze movie thinking, “Man if he doesn’t deliver as well as his last film, I’m going to demand my money back.”  That just isn’t how it works.

When I took the family to see the new Star Wars film, I was exactly as entertained and ambivalent as I expected to be because I have never been a big Star Wars fan (cue hate mail). Yet, despite knowing this about my expectations when I entered the theater, I didn’t haggle with the guy at the ticket booth and say, “Look, I’m only half as eager to see this film as that dude wearing the wookie shirt, so I think I should pay half price.” Neither did I go see The Force Awakens against my will because its marketing made me do it. General curiosity and something to do with the kids is ample reason to go to the damn movies.

Cultural experiences, whether high or low-brow, don’t come with warranties. They are, by nature, experimental.  And, it’s very rare to find creators who produce great stuff without also producing not-so-great stuff. Meanwhile, audiences differ on their views about the “best work” anyway. So, as with most advertising, motion picture marketing is largely about letting consumers know the product is out there, while a prospective viewer often knows his/her own interest level the moment a film is announced to be in pre-production or even development.  Beyond that, it’s a huge damn gamble, and when it comes time to release, the marketing professionals are asking themselves, “How do we get a critical mass in the seats on opening weekend?” But they still know that if that first wave of viewers walks out tweeting “This film sucked,” that’s the ballgame.  A $100 million investment that can be DOA in a single night—whether you love or hate the film itself—is a marketing challenge predicated on exactly the opposite logic of “forcing” unwanted products onto the consumer. It’s knowing the consumer will make or break you with the swipe of a thumb and praying you’ve met or exceeded her expectations.

If piracy were really about promotion or exposure, then the pirate sites would ignore Hollywood blockbusters and pre-releases of big films—which are apparently all bad products “forced” onto the public anyway—and the most-pirated films would be independent, small, and obscure works that are simply never going to be hugely popular. (Not that I advocate pirating these works; I’m simply alluding to a hypocrisy in the promotion argument.)  I recognize of course that there are viewers who use pirate sites to access harder-to-find or “out-of-print” titles, but if the piracy market were limited to these audiences alone, the entire ecosystem would shrink by orders of magnitude overnight; and this whole conversation would be very different.  As it stands today, though, there would be no movie piracy without Hollywood blockbusters; and those films really don’t need help with their marketing.

*One finds this theme more often in comments sections than in the body of articles and posts, but it is not an uncommon theme.