Category: Intellectual Property

Zoë Keating Ponders YouTube Service

I have to direct readers’ attention to this blog post by composer and cellist Zoë Keating.  It is the clearest articulation I have yet read about the rock-and-hard-place terms demanded of artists who are considering participation in YouTube’s paid streaming service Music Key.  Keating outlines some of the non-negotiable terms she doesn’t like, for instance that her entire catalog becomes fair game anywhere on YouTube and that she must release new work on Music Key simultaneous with any other release. And if Keating or any other artist does not wish to participate in Music Key, no problem, Google will simply throw your work to the wolves.

What does that mean?

Presently, Keating and other artists participate in YouTube’s Content ID program. The way it works is when someone uploads a video with Keating’s music on it, robots identify the track and send her a notice giving her options, including an option to monetize the video.  Many artists, Keating included, choose either to let the video remain without ads, or choose to monetize it with ads; and they typically only seek removal of offensive or unlicensed commercial uses.  But for all the noise people like to make about “new business models,” the Content ID program cannot generally be called an opportunity for artists, so much as it is a band-aid applied long after the bleeding of music’s value had begun.  It’s YouTube saying, “Well, people are going to use your music online and we’re going to monetize that, and there’s not much you can do about it, so here’s a slice of the pie.”  But nobody should think for a minute that Content ID is a revenue stream that most artists consider a portion of sustainable income. Still, it does provide artists a view of where their music is being used on the service, and this certainly has value.

But along comes Music Key with terms artists don’t like — last year there were several reports about the meager revenue shares in the offer — but an artist who declines to participate in Music Key will automatically lose his/her Content ID account.  As Zoë Keating describes, this puts her in the unfortunate position of potentially removing almost 10,000 videos and upsetting thousands of fans, or gritting her teeth and accepting YouTube’s exploitative terms for Music Key. But, the implication here is actually worse…

If an artist were to decline the Music Key deal, and next month there were 40,000 videos using her music, she could neither participate in the revenue nor very effectively remove those videos due to the slow and cumbersome DMCA notice-and-takedown process. Plus, Google’s bots are no longer identifying her music for her because she’s had that account revoked.  And if she did avail herself of DMCA for removal of any videos, YouTube will show users its frowny face icon, and the EFF will catalog the removal with the Chilling Effects database, making the artist look like she’s being a greedy, mean, censor.  See, it’s not so much a new model as it is a very old model coming back into vogue.

But Zoë Keating makes a very important point in her article about copyright itself.  If you pay attention to the facts she lays out — and she’s much friendlier about it than others, including me — you will notice that the central conflict she has with the YouTube predicament is the limiting of her choices as an artist.  This is something people continue to overlook:  that in most cases, what the artist wants is to retain his or her right to decide how works are used — by whom, for compensation or not, the timing and manner of presentation and distribution, etc.  People talk about copyright as though its last remaining use is for big media corporations to scrape every nickel out of a property it bought forty years ago. And they like to make generalizations like, “the labels have screwed artists for years.” But no label was ever able to say, “Hey, take this deal, or I’ll just give your music away and sell ads to the crowds I draw.” Here’s Keating on the comparison between the old boss and the new boss:

“But I want to decide what to do when. That is a major reason why I decided in 2005 to self-publish rather than chase after a record deal. I am independent because I didn’t want a bunch of men in suits deciding how I should release my music. For 10 years I have managed to bushwhack a circuitous path around them but now I’ve got to find a away around the men in hoodies and crocs . . .”

Others have said it before, and Keating is saying it again. The new boss wears a new uniform, but he’s just another boss. Only this time he has a worse deal in one pocket and a rock in the other.  Or as Keating puts it, having been an early evangelist of the Internet’s cultural potential, “the revolution has been corporatized.”

Assessing piracy harm is like climate science.

Ernesto (no last name) at TorrentFreak published a slightly sarcastic article about the fact that pre-release piracy did not do any apparent harm to the box office bonanza for the makers of American Sniper.  I have personally criticized pre-release piracy as a distinctly egregious form of theft and have stood by the principle that the behavior can cause harm to the primary release window of a motion picture.  Most specifically, though, I called pre-release piracy a “dick move,” and I’ll stand by that without apology whether it does financial harm to any particular film or not.

Ernesto points to the indisputable fact that some movie industry professionals blamed the widely reported pre-release leak of Expendables III for that film’s poor performance at the box office. He then rhetorically suggests that the contradiction in the case of pre-release piracy of American Sniper, which is doing very well, is a mystery.  Even with the sarcasm, TorrentFreak often presents articles in a fairly balanced manner, as follows:

First of all, the impressive opening doesn’t necessarily mean that the pre-release piracy had no impact at all. Perhaps the film would have raked in an additional $5 million without piracy.

On the other hand, some may argue that piracy may even have helped to promote the film through word-of-mouth advertising. In the end we simply don’t know what effect piracy had on the opening weekend.

I’ll agree with Ernesto enough to say that we don’t know, but I will say that the answer, (or answers) is likely a little more complex than the obvious fact that the two films being compared are like chalk and cheese.  Yes, American Sniper is a big deal film getting all sorts of accolades from critics and stirring up all forms of chatter on social media, while Expendables III was a typical example of a franchise being beaten to death and would never have attracted that degree of critical or audience attention in its wildest ambitions.  So, the success of the former and floppage of the latter is not inherently about piracy, but that has nothing to do with whether or not piracy is harmful in the aggregate, which is the more important question.

Regarding the economic harm done, if you view piracy the way Ernesto is viewing it on TorrentFreak, you’re what we call a climate science denier.  You look outside and the weather is okay. In fact, there’s snow on ground!  Global warming?  Ha!  This is the myopia we often encounter from a variety of idiots or vested interests incapable or unwilling to accept that the climate is a very large, very complex system and that climatology takes a much broader and more comprehensive view than our day-to-day peek at the weather.  Now, I’m not calling Ernesto an idiot.  As I say, I think TF can be fairly balanced, and I think his question is posed honestly.  But, trying to assess the harm, or potential harm, done to films by piracy through examination of two or three movies is like trying to study the global climate by looking at the ski report.

The reason I say this is that, like the climate, there are a variety of factors at play, including a significant amount of uncertainty, when it comes to averaging the successes and failures of motion pictures.  And one of those uncertain factors  is the fact that studio executives have believed since the days of two-reelers that they actually understand all the other unruly factors for success.

Ernesto is right that we won’t really know the harm/benefit of piracy on American Sniper, but there are a lot of other things we won’t know either.  We won’t know who went to see the film that wouldn’t have if not for some of the controversy it stirred.  We may not know — and I suspect this is the case — whether or not this film drew a demographic out to the theaters different from the demographic that typically engages in piracy.  Ernesto speculates that perhaps the blockbuster would have made an additional $5 million without piracy, but one can just as easily theorize that an above average audience of 55+ year-olds offset the losses of piracy to the tune of $5 million.  Eastwood’s name alone is worth a segment of audience that doesn’t even know how to pirate and doesn’t always go out to the movies these days.

Multiply all the factors for success by the total number of films made at every level and you have a data set that needs a climate scientist’s computer to begin to make predictions about the motion picture environment.  But what we can know without a whole lot of complex research is that there is always a finite pool of money available to invest in motion pictures, and we can know that investors generally like returns and hate risk.  And film is always risky, even the “sure things.”  So, the most distinctive films, the ones that surprise us, are the riskiest ones of all, not only with regard to subject matter or style, but because they almost always operate on much smaller margins. These films are historically less attractive to investors even without added risk.   Moreover, some production companies spread their bets across a wide range of fare, some presumably more commercial, others more creatively daring.  Hence, even a loss on a commercial film that some piracy rationalizers may presume to call marginal, might have been the seed money for that other product.  In the larger economic climate, this is certainly the case.

So, if we want to make assumptions about the prospective harm done to movies by piracy, it is insufficient to compare and contrast a big movie that has a lot of reasons to flop with a big movie that has a lot of reasons to win big.  We need to look instead at the prospect that piracy, like carbon in the atmosphere, adds substantial risk to investment across the broad range of distinctive films that are produced in the middle by independent filmmakers who survive on relatively modest returns.  Those are the films we’re mostly likely to lose in the long run.

Not that this means I condone piracy of the big movies.  No, that’s still a dick move.

On Rights and Accuracy in Movies

We all know the common criticism that a film adaptation is never “as good as the book.”  There are a number of reasons, some of them very subtle, why fans of source materials are easily disappointed by films based on them.  Not only is it mandatory that a feature film script leave out a considerable amount of detail from a novel or a biography, for instance, but the medium itself is at a disadvantage when competing with the subconscious, mental activity that occurs while reading.  It isn’t merely that a film has a hard time competing with the act of imagining, which it does; but a movie must also fill in details that very often neither a book author nor the reader ever bothered to imagine in the first place.  For instance, a room we never thoroughly pictured while reading, now that it is on screen, has colors and fabrics and lighting and furnishings that a production designer has chosen in collaboration with a cinematographer and a director. Not only is this image different from what we might have imagined, but it actually contains dozens or hundreds of elements we hadn’t bothered to picture at all.  And because a feature film is composed of thousands of these creative choices, each combining to produce images and sounds that trigger emotional responses, I believe that on a subconscious level, any film based on any expectation is inherently climbing a pretty tough hill.

So, what makes a good film adaptation of fiction or history or biography? In all cases, there is an obvious tendency to assume truth to source material is the basis of this work, but the filmmaker has to admit that cinema is probably the most manipulative and fundamentally untrue of all creative media.  To be clear, I believe all art “lies”in one way or another — and we know that even non-fiction is subject to the whims and imperfections of its authors — but I think cinema’s ability to conjure the illusion of reality makes it the biggest “liar” of them all. Accepting this premise doesn’t mean the filmmaker does not have an obligation to convey any truth in adaptation, but rather that he or she consciously makes choices in the service of some chosen truth, usually a theme, that is a fair portrayal in order to give the audience an experience that justifies whatever liberties have been taken.  It would be wrong, for instance, to make a Civil War film in which the confederates win at Gettysburg; but it would not be wrong to invent fictional scenes dramatizing Lee’s affection for his soldiers and contrast these with fictional scenes dramatizing Grant’s lack of that same affection.

Of course the filmmaker’s challenge in this regard depends a great deal on general awareness of the source material. For instance, it stands to reason that he hurdle of overcoming expectations is far greater for the makers of Selma than for the makers of The Imitation Game because, for many people around the world, The Imitation Game will be their first introduction to Alan Turing. By contrast, Selma must strive to be both a good film and withstand the scrutiny of everyone’s notions about who Martin Luther King, Jr. was.  On the other hand, in the age of social media, criticism often arises well before a film is even completed. As Don Steinberg describes in this article for the Wall Street Journal, producer Teddy Schwartzman had to spend considerable time on social media dispelling rumors that The Imitation Game would gloss over Turing’s homosexuality.  To the contrary, from what I’ve read (and I’m eager to see it), the filmmakers have appropriately used the theme of imitation to link Turing’s early work in artificial intelligence with his deeply painful need to pretend to be someone he was not.  These core truths make rich, dramatic soil, but not everything that grows out of that soil should strive to be a literal truth.

Steinberg writes about the trend in biopics to selectively draw upon the record of a subject’s life in the service of tight, dramatic narrative rather than an encyclopedic life story.  I believe this is the best way to approach a biopic (or an adaptation of fiction for that matter), but it is also inevitable that one invites critics to say, “You got it wrong.”  And with regard to Selma, there have been a number of articles debating the film’s “accuracy,” the most resounding complaints  in regard to the portrayal of LBJ as an antagonist to King. Certainly, this reeks of revisionist history that I would agree is not appropriate license for filmmakers to take. Dramatic narrative needs an antagonist, but where historic record is available, it is not okay to radically alter the motives or actions of real people in order to recast them in needed dramatic roles.  More subtly, however, is the question of “accuracy” with regard to the fact that Dr. King’s verbatim speeches are not used in Selma and were not licensed by the producers from the King estate.  In fact, those licenses were not even sought because they were not available, having already been sold several years ago in a development deal with Steven Spielberg and DreamWorks.

The fact that King’s words remain protected by copyrights owned by the King family has been cause for some emotionally-triggered criticism by those who say that “King’s words belong to the world.”  This may feel instinctively true, but it is not literally true, and neither should we want it to be. Because even if they were made “the property of the world” by entering the public domain, they would be exploited for profit-making ventures regardless of taste or context.  As such, why should any entity other than the family be entitled to control and/or to financially exploit those works?  And certainly, no one can claim with any integrity that King’s words are somehow inaccessible to us because they remain under copyright.

Still, the subject did spark a conversation with friends as to the relevance of the speech accuracy in the case of a film like Selma.  Were it my own patriarch’s legacy to manage, I might be torn.  On the one hand, when motion pictures are popular and award-winning and all that, they do have a tendency to become the history people remember.  As such, I would be inclined to want my father’s or grandfather’s words portrayed accurately. On the other hand, as a filmmaker, I may want to produce a biopic that deals with real aspects of a famous individual’s life that the family may not find comfortable; and I may want to make any number of stylistic creative choices that some may find controversial. In that regard, do I relinquish some creative control for the sake of making a deal on licensing my subject’s works? When assessing the values of the film, which “truth” is the most important?  Selma director Ava DuVernay, as reported by Ann Hornaday in The Washington Post, says of paraphrasing King’s words “…we found a way to do it where we didn’t have to ask for permission, because with those rights came a certain collaboration.”

The copyright critic might say that one should not preclude the other, that the subject’s creative or intellectual property should be free to use and that the copyrights should not stifle the filmmaker’s ability to make a movie that is both “accurate” and that dramatically portrays uncomfortable truths.  But that doesn’t really feel quite right. If a movie gets sold to a big studio and makes a hundred million dollars, the subject’s estate deserves nothing?  Moreover, if the words are free to use, what’s to prevent a filmmaker from “remixing” them just enough until they sound like a bad translation? In many cases, it may best serve both the film and the source material to thoughtfully fictionalize everything in the service of a truth that is more important than the literal.  Too literal, and all one has is a reenactment, which is very dull filmmaking.

Working around a copyright itself usually forces creativity rather than stifles it.  This may sound counterintuitive in context to the first feature film that attempts to portray King the man rather than King the myth, but not to the film artist who is fully aware that her medium is all illusion to begin with and that she is trying to find an emotional truth in the complexities and imperfections of a mortal man who was more than “slain civil rights leader.”  In concluding her article, Hornaday implies that Selma succeeds in attaining this kind of truth when she quotes former U.N. ambassador, and one-time King colleague, Andrew Young telling DuVernay, “Congratulations. You did it.”  The implication is, “You brought the flesh-and-blood man I knew to  life on screen.”

By contrast, the DreamWorks film, with its rights to King’s words, may dramatize any number of literal accuracies and yet fail to convey much truth at all.  It’s not fair to judge a movie before it’s made, of course, but Spielberg himself can be rather sentimental for my taste; and according to Variety, Oliver Stone dropped out of the project last January over conflicts regarding his own script revisions, which sound as though he was trying to humanize the man behind the legend. So, once this other film is finally produced, will it be more true than Selma or will it get to some other truth, equally valid but very different than Selma?  

Going back to the original premise that it is the nature of all movies to lie to us one way or another, I think good adaptation can only succeed in getting to a truth without any reasonable expectation of getting to the truth.  As such, the notion of accuracy in movies should never be used as a rationale for presuming to judge decisions made by rights holders who license their works for this purpose.  There is no guarantee any creator making derivative use of a work will live up to all, or even any, expectations of the audience.  Likewise, there is no guarantee a creator without a license to source materials will not do something better (or more true) than a creator who has those rights.  It’s all a crap shoot frankly.  So, the only fair thing to do is to leave the copyrights in possession of the families and judge each derivative work on its own artistic merits.