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.

Climate Disaster: A Rough Decade

This month is the tenth anniversary of The Illusion of More. Specifically, I believe the site launched on August 12, but I did not know what, if anything, I wanted to say to mark the occasion other than to thank readers for following and supporting the blog for a decade. And I am very grateful for that. But in light of the editorial focus of this blog and the state of the world, ouch. It’s been a rough ten years.

I asked in the intro to the first podcast in 2012 (an interview with journalist Christopher Dickey) whether digital technology was making things “suck faster,” whether the illusion of more access, engagement, and information would simply make otherwise reasonable people more rapidly and more virulently misinformed. For one contemporary answer to that question, read Francesca Tripodi’s recent article in Wired describing how Google’s changes to its “neutral” search engine can prioritize false information and reinforce a psychological vulnerability she calls the “IKEA effect,” (i.e., taking pride in something one has assembled). Tripodi writes:

Conspiracy theorists and propagandists are drawing on the same strategy, providing a tangible, do-it-yourself quality to the information they provide. Independently conducting a search on a given topic makes audiences feel like they are engaging in an act of self-discovery when they are actually participating in a scavenger-hunt engineered by those spreading the lies.

Or for a lighthearted version of the same principle, Craig Ferguson says in his Netflix special, “Tweet it, retweet it, retweet it again—fuckin’ true.”

As explained and reiterated in many posts on this blog, what began as a response to the lies and flood-the-zone tactics deployed in the anti-SOPA campaign of 2011/12 quickly encompassed a much broader concern about the major internet platforms (Big Tech) as a dangerous force that just might swallow democracy itself. This was not a popular view in 2012. Both official policy and public sentiment were predicated on a blind faith that more speech without restraint (i.e., direct democracy) had to be a good thing. That fallacy was central to rejecting the anti-piracy legislation just over a decade ago, and it persists today in, for instance, the Internet Archive’s rationales for its brand of book piracy.

Big Tech and its network of mostly left-leaning organizations said that harmful speech—from personal harassment to raving conspiracy—would be mitigated and safely marginalized by a fresh, invigorated dialogue enlightened by open access to information. Standing in the way of that utopian vision, they insisted, was “the government” in cahoots with corporate “gatekeepers” like the press, publishers, and Hollywood—all wielding the cudgel of copyright law to control what we are allowed to learn or experience. Meanwhile, the words of the prophets were written on the social media walls.

To suggest that, we seemed to be entering an age when information would be indistinguishable from bullshit, was to earn the title “luddite.” Even now, despite the overwhelming and terrifying events that have occurred in last ten years—all of it based on free access to deep wells of bullshit—the tech-utopians still believe in the illusion of more as surely as climate-change deniers refuse to see the science in the global havoc unfolding daily.

But lest anyone think that conspiratorial delusions are exclusively the opiate of the Trump cult, I would ask readers to remember the climate changes in our politics that were taking place before the Tiki Torch parade began. When the Ed Snowden story broke, and my friends on the left went nuts about those revelations, I wrote a post recommending calm, in which I opined, “While oversight is an essential, and believe it or not still extant, component of the American system, a universal and unwavering distrust in ‘the government’ is tantamount to distrust in one another, and this is the cancer that grows into a malignant threat to civil liberty.”

And here we are, witnessing real threats to the constitutional order of the United States, as the Former Republican Party (FRP) is consumed by a cult of personality, surfing waves of bullshit about the most basic mechanisms of government and law enforcement. On the other side, we share memes lampooning the “law and order” party for shrugging off credible threats to attack the FBI, the Attorney General, and a federal judge, but perhaps we choose to forget that this same conspiratorial rhetoric, comparing the American justice system to the KGB et al., was more universal before the election of 2016.

Like watching glaciers melt and rivers evaporate, it is easy to think that the erosion of trust in core institutions is beyond repair–that it is really just a question of who is doing the distrusting. And to believe that social platforms are not an underlying cause of this harm is as willfully ignorant as believing that easy access to firearms is not the key ingredient in mass shootings.

Social media offers some nice features, but on balance, it has made everything suck faster. It is a hallucinogen that produces twin chimeras named Information and Engagement, who gnaw on Common Sense and Humility until Narcissism and Arrogance prevail. Take for instance, this little collage made from responses to photographer Jeff Sedlik’s copyright lawsuit against tattoo artist Kat Von D:

I draw your attention to both the ignorance and the style in this hatecloud—not because it is rare, but because it is common to the point of predictable. This is how we talk now about almost everything. Those comments were made by ordinary individuals, probably decent people most of the time, but who would be unlikely to admit that they know less than nothing about the law or about Sedlik and his motives. And all that rancor directed at one individual, empowered by the technology designed to “connect people,” is just a response to a little copyright case. So, can we really be surprised that, by means of the same tech exploiting the same psychological frailties, tens of millions of people are easily duped into believing that an election was stolen, or that the U.S. Justice Department is indistinguishable from the Stasi?

In 2012, in that same intro to the first podcast, I quoted Mark Twain who said, “It’s not what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” A keen observer of human nature, Twain foretold the Big Tech Lie that is still flooding the zone with millions of other lies, which, like too much carbon in the atmosphere, may yet make the world uninhabitable.

Photo by: ole999

Doc Filmmakers Brief in AWF v. Goldsmith is Misguided

In both Andy Warhol Foundation v. Lynn Goldsmith (SCOTUS) and Hachette et al v. Internet Archive (SDNY), the amicus briefs are piling up fast. Not that I have any intention of writing about every argument presented in either case, but rummaging through the briefs in Warhol, one filed by a group of documentary filmmakers on behalf of AWF caught my attention. I support documentary filmmakers as much as any other type of creator, but the arguments presented to find fair use for AWF are inappropriate and ill-advised.

As a general critique, the filmmakers’ brief is too dramatic (and frankly dishonest), claiming that if SCOTUS affirms the Second Circuit’s finding against fair use for Warhol, the decision “could devastate the documentary film genre.” This hyperbole reveals the central flaw in the brief which implies that doc filmmakers have enjoyed a degree of certainty in fair use prior to the current ruling in Warhol and, therefore, argues that upholding the ruling will further disrupt that certainty. This is untrue.

If the filmmakers would have the Court believe that documentarians have thus far relied on the fair use rationale as applied by the district court in this case, history does not support this claim. On the contrary, if the Court were to agree with AWF’s reasoning as presented, it would create a novel presumption of certainty by broadening fair use to encompass almost any use that adds “something” to the world. Such a holding may seem attractive to many users of protected works, but it is incorrect to argue that this reasoning is consistent with fair use doctrine to date, and it is folly for any class of creator to be so eager to weaken their own copyright rights.

Doc Films Do Not Depend on the Question Presented

The filmmakers’ brief relies heavily on an accurate but incomplete portrait of the doc filmmaker as a paradigm among fair users. It is true that a documentary may fulfill several, or all, of the exemplary fair use purposes enumerated in the preamble of Section 107 of the Copyright Act. A film might be simultaneously commentary, criticism, education, and news reporting, which is why documentaries enjoy what the brief describes as a “favored” status in a fair use consideration.

But there is no foundation to argue that this status will be disturbed if the Court rejects AWF’s fair use theory, and the filmmakers’ brief does not present a compelling argument to the contrary. It merely alleges that such an outcome would be harmful, even though documentary filmmakers are in roughly in the same posture vis-à-vis fair use as they have been since 1978, if not earlier.

The filmmakers argue that if their work is subjected to the Second Circuit’s “side-by-side” search for transformativeness, this would expose many documentaries to unprecedented liability for infringement. But this claim is inapt as a matter of law and inconsistent with traditional doc film production in practice. As a legal matter, AWF v. Goldsmith is fundamentally (and frustratingly) about the conflict between transformation as fair use and transformation as protected derivative work, but this doctrinal tension is rarely present in a typical documentarian’s use of protected material, including most, if not all, of the examples cited in the brief.

Because documentaries tend to fulfill one or more of the paradigmatic purposes of fair use, they benefit from a legal pedigree that predates the “transformativeness” doctrine and much of the confusion it has spawned. Most fair uses of protected material in documentary films are relatively easy to identify without addressing the theoretical distinction between a transformative fair use and a derivative work. Consequently, the filmmakers’ concern that they will encounter new liability on the basis that works are often used in films “without alteration” is misplaced and a poor reading of classical fair use doctrine.

For instance, the filmmakers argue somewhat breathlessly that, “Relying on Warhol, at least one trial court has already held that brief uses of a photojournalist’s footage in documentary programming were not transformative as a matter of law because they were not altered and were thus “even less transformative than the use at issue in Andy Warhol.” (Emphasis added). But in fact, the opinion cited (Fioranelli v. CBS) reprises a litany of Second Circuit holdings dating back to 1997 and summarizes the court’s general view thus:

A common thread running through [Second Circuit visual art] cases is that, where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a “higher or different artistic use,” is insufficient to render a work transformative.

So, the holding in Fioranelli is not a direct result of Warhol, and the requirement to “comment on…” the original work is longstanding doctrine when considering factor one in a fair use analysis. Moreover, that lawsuit was triggered by multiple uses by sublicensees made in breach of the photojournalist’s original agreement with the network. This detail further weakens the filmmakers’ argument in Warhol because the defendant’s initial obligation to license in that case demonstrates that documentary films usually rely on a combination of licensed and fairly used materials. A finding for Goldsmith will not place an unprecedented burden on filmmakers to consider fair use for each work used in a project, and the filmmakers’ brief is instructive when it undermines its own argument, stating:

… many copyrighted excerpts in documentaries are clearly recognizable, and the new work often does not comment on or directly relate back to them. Rather, the borrowed works are generally presented in combination with other archival sources, original content, and commentary via narration or interviews. This is done to provide viewers with historical, cultural or social context, for the purpose—different from the originals’—of enhancing viewers’ comprehension of the films’ subject matter.

That description encompasses a spectrum of plausible fair uses under the same doctrine that rejects AWF’s theory. It may be that presenting a work “in combination” with other elements “to provide viewers with cultural or social context” meets the classical purpose of the fair use exception, particularly in a nonfiction work like a doc film. And maintaining this paradigm does not rely upon the question presented in this case, let alone a finding for Warhol.

Fair Use Remains a Case-by-Case Consideration

Fair use analyses are standard practice before the release of a documentary film. As the brief notes, producers typically obtain errors and omissions insurance, which may require a fair use assessment of the final film by an attorney. This analysis will not be made more difficult or uncertain by rejecting AWF’s fair use defense, and to the extent the filmmakers hope the Court may foster broader certainty by expanding fair use, I would caution them to be careful what they wish for. Under AWF’s theory, it would be substantially easier to infringe the copyright rights of the documentarian, too.

Documentary filmmakers are essential creators, but they do not require greater latitude in fair use considerations than the creators whose works they might use. If anything, the broad “favored” status enjoyed by documentary filmmakers obliges them to make a good-faith effort to understand which uses are reasonably fair use and which are not. There is ample guidance for the most common uses of works in nonfiction films, and where guidance is uncertain, licensing is available. In those instances where licensing may be unattainable, as alluded to in the brief, fair use is, as ever, a possible exemption but never a certainty.

Photo by: Gorodenkoff

Texas Church Allegedly Violates Copyright Law with “Hamilton” Performance

Copyright News

When copyright infringement to intersects religious zeal, things get weird fast. In 2014, the Westboro Baptists performed, recorded, and distributed an anti-Semitic version of “Hey Jude” they cleverly called “Hey Jews,” and although no legal action was taken,[1] I thought it was a pretty good example as to why “remix culture” is not always a positive thing and why copyright owners may enforce their rights for reasons other than financial harm.

This week it was reported that The Door Christian Fellowship Ministries of McAllen, Texas not only performed and livestreamed the musical Hamilton without a license, but the organization also took the liberty of revising some of the show’s lyrics to convey various religious messages and then ended the performance with a sermon that seems to equate homosexuality with alcoholism and drug addiction.

Allegations of homophobia notwithstanding, the copyright infringement is clear, and it is unknown whether the owners of Hamilton will take legal action beyond the Cease & Desist notice sent to The Door McAllen. For copyright watchers who may ask whether the church is entitled a religious exemption under the law, the relevant part of the statue (Section 110) states that the following is not an infringement of copyright:

(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of ser­vices at a place of worship or other religious assembly.

So, this exemption does not apply. Hamilton is a Dramatic Musical Work and is not a work of a religious nature. A license to perform the show is required, whether in a church or anywhere else, and changing the expressive elements of the work can only be done by permission of the copyright owner(s). Also, it is notable that Door McAllen is not some small-town church hosting bake sales to fix its roof before Winter. It appears to be one of many God, Inc. enterprises with satellites around the world, a substantial media/entertainment production capacity, and a slick website.

If the owners of Hamilton choose to take further legal action, Door McAllen does not have a reasonable defense as a matter of law, but given the climate in which we live, legal merit would not necessarily stop a potential litigation from becoming a PR circus. Because the statutory exemption under Section 110 does not apply, Door McAllen would presumably assert a fair use defense, claiming that its changes to the Hamilton book were “transformative” under factor one. This defense would, naturally, be entangled with strenuous appeals to the speech and religious exercise rights under the First Amendment, which just might confound at least a district court.

I know I’m speculating here, which my attorney friends would never do, but Door McAllen has already infringed the copyright rights attached to one of the most famous works in the world, and it is too sophisticated an organization to claim ignorance about the nature of its conduct. Further, Hollywood Reporter writes that pastor Roman Gutierrez, in addition to stating that the church is “not anti-LGBTQ,” did falsely claim that license was obtained to perform the show. At the very least, this implies that the church was aware that a license is required, and according to a spokesman for Hamilton, the producers “[do] not grant amateur or professional licenses for any stage productions and did not grant one to The Door Church.” 

We don’t know what, if anything, will happen next, but The Door McAllen already reveals certain behaviors we have seen in other parties who willfully infringe copyrighted works, and given the way “religious exercise” warps the principles of law for many folks (and judges), this may not be over. Wouldn’t that be a show? A constitutional demolition derby involving the biography of a constitutional framer. Sounds about right these days.

[1] Though at some point, the video was removed from YouTube.