Category: Art

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.

Photographer Learns the “Value” of Exposure

We all know the cliche, right?  Free distribution made possible by Internet technology gives the artist exposure that will lead to otherwise hidden rewards; and so restricting use through ownership is anathema to the opportunity provided by social media.  Bullshit.  A friend just shared what may be the perfect real-life anecdote that gives lie to the culture of permissionlessness.  Photographer Rachel Scroggins tells a story on her blog that so clearly demonstrates what happens in a society in which the creator of a work can disappear amid the frenzy of sharing.

In September of 2013, Scroggins explains that she took a photo of supermodel Karlie Kloss in the act of taking a selfie with her smart phone.  Scroggins showed the photo to Kloss, who proceeded to share the image on Instagam without permission or a photo credit.  I’m sure Kloss was not being deliberately unkind but was merely acting like a typical citizen in a time when the very idea of permission or credit has been culturally bred out of everyone’s consciousness.  This degradation in the social contract is commonplace, but examples like this one don’t come along too often.  Because when a supermodel shares a photo, it has a tendency to go kinda viral.

As Scroggins watched her unattributed image rack up about fourteen thousand views, she could only imagine the potential good it might have done her had Kloss simply understood how essential that credit is.  Karlie Kloss did eventually apologize, but the image subsequently began to appear uncredited on numerous mainstream fashion websites all over the world.  Thus, Scroggins proceeded to spend time and energy in that new, thankless and unpaid second job of the digital-age artist — chasing down infringers of her works.  In some cases, she received apologies and compensation from the publications; but in many cases, she’s received little more than brush-offs and some reluctant acquiensce to her takedown requests.  And she’s still chasing the photo around the web, “All because, as she says, “Karlie Kloss used my photograph and neglected to credit me properly.”

So, on behalf of all the artists like Rachel Scroggins, spending countless hours pursuing thousands or millions of casual, unattributed and permissionless uses through cyberspace, I have to say to y’all who claim the “exposure” is worth abdicating copyright, that you are so completely full of shit.  Because while you — and I’m looking at you Mike Masnick — extoll the virtues of free, mass distribution for artists and creators, you simultaneously pimp out messages into the heads of beautiful users everywhere that the individual who made that work they’re “sharing” simply doesn’t exist anymore.  Pity the same phenomenon has yet to fully manifest among those of you promoting lame ideas about copyright.

Music Creators Seek Reform of Consent Decree

In his recent testimony before congress, songwriter and president of ASCAP Paul Williams remarked that it was astonishing to realize that he and fellow witness, songwriter Rosanne Cash, were subject to more government regulation than the multi-billion-dollar corporations whose interests were represented in the same hearing.  What Williams was referring to with that remark is the fact that licensing fees for certain public performances of works by composers and songwriters are still predicated on a WWII-era consent decree between ASCAP and the DOJ.  This decree granted a federal judge (aka the “rate court”) the sole right to set rates for these public performances, but for a market that looks nothing like the one we have today.

It is thanks to these outdated licensing terms that we continue to hear from various music composers and writers that, for instance, millions of plays of their songs on a streaming service like Spotify is worth less than a couple-hundred bucks.   And as the songwriters and composers presently lobby for change, we’ll surely be hearing plenty of hew and cry from Pandora, Spotify, and Google.  After all, when these tech companies evangelize new models, innovation, and disruption, they only really mean it if it’s good for their bottom line; so if a half-century-old law or system allows them to exploit someone else’s work in order to add a few million to their own coffers, then “old models” sound just fine. They won’t come out and say “leave the old system in place;” that would be too regressive-sounding and too bluntly honest.  Instead, they’ll try to scare consumers in one way or another that their streaming services will cease to operate or have to adopt new pay models or charge more for access, and so on; but the reality is that while these services dangle cheap and free in front of consumers in the short term, failure to reform the present system may result in higher prices, disenfranchised licensees, and/or decreased diversity in production over the long term.  Meanwhile, there’s no question songwriters and composers are getting pretty well hosed, shackled to an obsolete model from which they can neither effectively opt out nor negotiate within as free agents in a normal supply/demand market.

This matters now because streaming is how consumers want to listen to music, and why wouldn’t we?  If I’m in the mood to listen to a song I haven’t downloaded, I launch Spotify just like anyone else. Who wouldn’t want such on-demand convenience?  And for free?  But our convenience is presently subsidized by the dramatic underpayment of songwriters and composers who are increasingly dependent on revenue from this new way we want to listen to music. At the same time, these creators of the music we love are the folks without any other source of revenue.  They don’t tour, and they don’t sell merchandise.  Elton John is a big damn star and a knight and all that, but I don’t think anyone ever bought a Bernie Taupin tee shirt, if you know what I mean.

Music licensing can be confusing.  There are multiple ways to use music and different rights associated with each use as well as multiple stakeholders with any given track.  Readers will thank me for not attempting to wade too deeply into all the variables; I’d probably get some of it wrong, and it’s not exactly spellbinding.  Suffice to say that the rights associated with the consent decree and its reform are public performance rights covering uses like radio broadcasting, music streaming, live performance by musical artists, and uses in venues like bars, restaurants, and theaters.  Licenses for these types of use are granted automatically upon request, and they are generally bulk licenses covering tens of thousands of songs for a single, annual fee paid to a performing rights organization, commonly called a PRO.

ASCAP was the first PRO (founded in 1914) and is the largest of these organizations, followed by BMI, but in the present landscape, other PROs have emerged that are not subject to the consent decree.  Still, a PRO the size of ASCAP enables hundreds of billions of typical public performances for users through a collective licensing and fee structure that compensates the organization’s membership of composers, songwriters, and publishers.  For instance, the coffee house where I’m writing at the moment has a sign on the door with the logos of the three leading PROs because this place hosts open-mic nights and other live performances, and it has music playing continuously during normal hours.  A little venue like this pays a relatively low licensing fee that provides blanket coverage for this type of public performance, allowing any local musician to come in and play any cover she wants for whatever size crowd will fit in here.  In a similar way, if I wanted to use music incidentally on this blog site, I could get a license with the three major PROs for a few hundred bucks a year and have the use of just about every song in existence.

Without reform of the consent decree, the PROs could see the resignation of major publishers from membership, effectively abandoning collective licensing.  This would mean individual negotiations between publishers and new media services, which would almost certainly increase costs that would be passed on to consumers one way or another and would also create unnecessary burdens for traditional licensees like my local coffee house.  It is not hard to imagine a future in which the full adoption of music streaming wipes out a whole class of professional music creators. After all, nobody can argue that a sustainable market can be built on a model in which “success” in the primary market buys a half-order of groceries once in a while.  And regardless of what the Pandoras etc. may say in defense of the current system, there is simply no way they can promise that a world without professional songwriters and composers will not be a world devoid of the kind of music we’ve been lucky to enjoy so far.

Adding insult to injury, many start-up Internet companies offering music streams as the foundation of their business model are employing stall tactics to avoid paying any licensing fees at all.  The Silicon Valley culture has a long tradition of steal now, apologize and pay something later, and the PROs are seeing this first-hand with various web businesses.  Once the request for a license is made, it has to be granted; but then the PRO requests information about the applicant’s use, audience, etc. in order to set a fee.  ASCAP and the others are seeing a trend in which these companies stall on providing information and, therefore, stall on paying any fees while freely using all the music they want in order to grow their business.  (Man, I’d like to see somebody try that with construction and the cement supply company.  Just once.)  The recourse available to the PRO in this case is federal court, which is costly and time consuming.

Presently, the songwriters, composers, and publishers are proposing certain reforms to congress that release them from this outdated consent decree and enable them to negotiate (still through the PRO) more flexibly in response to current market realities.  For instance, ASCAP proposes shifting cases from the purview of the federal rate court to a more expedited process of private arbitration; and it calls for voluntary rather than compulsory licenses in order to create bundles of works, allowing the PRO to license music more complexly than the all-or-nothing model that exists now.   With these types of reforms, the PROs feel they can negotiate sustainable fees for songwriters and composers while keeping intact the collective licensing paradigm that keeps public performance licensing easy and affordable for tens of millions of users.