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.

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.

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.

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.