Category: Art

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.

I Never Saw David Bowie Play Live

And I’ve never owned a David Bowie tee-shirt.  Or any Bowie merchandise other than his albums. But like tens of millions around the world, who are today mourning the loss of one of music’s best loved, most diverse, and most influential artists, I sure as hell have long been a fan.

Oddly enough, I had in mind to buy Bowie’s new and final album Blackstar over the weekend. I didn’t get a chance to do it and was as stunned as everyone else to wake this morning to headlines reporting the artist’s passing.  No doubt plenty will be written by better critics than I about the new album and the entire Bowie oeuvre in the days to come.  But by way of continuing the theme from the post I wrote about recorded music being the most valuable, can anyone really imagine the world of recorded music without David Bowie?

Neither can I. And that’s why I will continue to argue that today’s digital-media cheerleaders who claim to be copyright critics are fundamentally cultural cynics.  They tell us that the next David Bowie no longer needs a copyright in his own work because technology has enabled the artist to bypass traditional investment models. But the fact is that neither the people who say this—nor most of us fans for that matter—have a clue how one produces the sounds of Ziggy Stardust, Aladdin Sane, Diamond Dogs, and so on.

These same cynics say “the world doesn’t owe the artist a career,” which is both true and entirely beside the point.  I mean does anyone, who is today sharing his or her personal Bowie moments on social media begrudge the man so much as a dime’s worth of his success?  Whatever his net worth was as of this morning, it’s meager compensation relative to the tens of billions of emotional impressions he gave to the world.  Laurent Rejtö, co-founder of the Woodstock Film Festival, wrote on his Facebook wall this morning, “He made me a better person through his art and by proving, as he did throughout his life, that you don’t have to be a cog in the machine.”  How much is that worth exactly?

The truly galling irony, of course, is that this particular talking point—that we should presume to reevaluate in the digital market what the artist “deserves”—has been injected into the public consciousness specifically by tech billionaires, who actually do believe we are all cogs in their machine.  This is probably the most offensive theme in what many so generously call the “copyright debate”. The truth is so much of the chatter isn’t a debate at all, really; it’s just a collective heavy sigh, patiently tolerating a lot of silly ideas.

After all, we’d have Internet search with or without Google’s more unsavory practices; and we may all get bored one day and abandon Facebook and Twitter; and we’ll have music streaming one way or another; but can you actually imagine having lived the past 30-40 years of your life without your personal soundtrack including songs by David Bowie?  Neither can I.

Rest in peace, Ziggy.