There’s been a fair use decision in favor of Midnight in Paris in the lawsuit brought against it for the use of a Faulkner quote. While it seems obvious that the paraphrased and attributed use of “The past is never dead. It’s not even past,” by a character who claimed to have met Faulkner meets several qualifying conditions of the fair use test, this is apparently the first ruling of its kind. Filmmaker Magazine’s reporting raises two interesting points: first, fair use is a hard case to make in fiction, and second, think carefully about the length, attribution, and context of the copyrighted work being used, because it matters to the reasonable interpretation of your intent.
PBS Digital’s Idea Channel takes on the beneficial side of piracy. Not totally a new idea – SF writer Cory Doctorow has been a champion of artists growing their audience with Creative Commons-licensed free digital distribution for many years – but for major studios and networks, it increasingly looks as though their revenue model and accounting of gains and losses is incomplete without a more nuanced take on the benefits and income they get from pirated media.
Two quick takeaways: First, you’d imagine that dedicated anti-piracy advocates would have a vested interest in working to combat the “we can’t pay you, but you’ll get lots of publicity from it” model that’s traditional for interns and even low-level freelancers in a lot of media fields, since they’re also being hit by the expectation that publicity value is equivalent to payment. And second, the main shift in revenue model once you take piracy-as-benefit into consideration is that you’re shifting from a known rate of payment (one view, one payment) to a probabilistic one (10 views, n/10 payments). That revenue model can certainly work, and I can’t imagine it’s too complicated for an industry that already manages massive probabilistic risk in terms of securing an audience in traditional distribution, but it’s a difficult shift in thinking to make, particularly when Hollywood no longer makes sub-$10 million test-balloon films that it could use to fine-tune its accounting math. When you have a quarter of a billion dollars on the line, you don’t dabble with new ways of modelling your revenues, even when the old way is outdated, which may give TV networks the advantage in figuring out the new financial math.
Johanna Blakely’s TED talk on the lack of intellectual property protections in the fashion industry, and why it thrives regardless, is an interesting watch for those interested in industries where copyright seems less enforceable than in pre-digital days.
The key quote, to my mind: “We don’t really recognize a book as something that sits on our shelf, or music as a physical object we can hold. It’s a digital file, it’s barely tethered to any sort of physical reality in our minds, and these things, because we can copy and transmit them so easily, actually circulate in our culture a lot more like ideas than like physically instantiated objects.” Which is tricky; that’s a little unlike most of the industries she discusses like fashion, cars, and furniture, where the copying of objects isn’t done at the consumer level. She’s discussing, in almost every case, industries that don’t protect creators from copying by other creators – designer versus designer, comedian versus comedian, musician versus musician – and how that spurs innovation, rather than industries that don’t protect creators from copying by consumers. While her points are good ones – I certainly support them, as a supporter of open source, of remixing, and of the artistic and scientific leaps that happen in open environments – very few of her examples are discussing a creator-consumer relationship. The bar to entry is different, for one thing. Downloading a movie is very different than making a knockoff jacket.
Open source was a good call, though, because that is a case of consumers freely copying something provided by the creator. Panera’s “pay what you want” restaurant experiment is another interesting data point, of a creator making their product freely available to the consumer. I think there are very good reasons to rethink the role of intellectual property control in the creator-audience relationship, but I don’t view it as the same issue as protecting your creative work from copying by other creators. Continue reading