Monday, December 29, 2008
Demark - Hanhardt on Cinema at Reframe
John Hanhardt has a new blog over at Reframe, called Demark. Not unlike me, he'll be an infrequent contributor, but one with some in-depth thoughts on the cinema and it's transition to online - how we interact with the moving image and how things can newly be juxtaposed. Here's an excerpt from his latest post -
The history of world cinema is an open archive on the internet. It is a wonderful chance to explore and learn and experience some of the greatest works of the human imagination. In searching through the history of the moving image it is important to break out of the categories that characterize and promote the moving image. Film festivals and museums create categories, theatrical film, installation art, avant-garde film, video art, new media, that separate and do not acknowledge the connections between different moving image practices. The internet and the virtual archive of moving images are an open text of viewing opportunities that make it possible to link and disrupt the categories and conventions for viewing the moving image. It can become a means to engage the global scale and deep history of the moving image.
I love the moving image, whether it's movies, independent narratives and documentaries, avant-garde film, video art, animation, television shows, telenovelas, videogames, favorite YouTube pieces, installation art: all the genres and styles that make up the world of moving images are an open resource to be experienced. It is clear that the history of Twentieth Century art is going to be rewritten through the moving image. As we become a media culture the traditional institutions and practices of history writing, preservation, and museum exhibition are going to try and deny this large scale change. A true politics of reinvention has to begin by revisiting the moving image’s history and current practices to see the ways the whole experience of the text and its construction have challenged traditional categories of analysis. So I want to transcend these categories and begin to explore what we remember from a film, an installation, a television show. I remember films through ways that they push categories, transcend their story, and discover a moment that I never forget. Just like we remember plays for particular characters or scenes, paintings for a particular insight into a character or expressive brush stroke, the impression of the graphic pencil in a drawing, a sculpture seen from a particular point of view, a line in a poem, an uncanny moment in a videogames where the unexpected happens with a logic all its own, etc.
More here. And look in early January for a complete overhaul of the way Reframe works!
Sunday, November 30, 2008
Delusions of net neutrality
Odlyzko shows that ISPs and others are pushing for a world where the goals of the internet are reduced to streaming movies, in relatively walled envrionments, and that the costs to build a network capable of this demand that net neutrality be curtailed. As he states:
Service providers argue that if net neutrality is not enforced, they will have sufficient incentives to build special high-quality channels that will take the Internet to the next level of its evolution. But what if they do get their wish, net neutrality is consigned to the dustbin, and they do build their new services, but nobody uses them? If the networks that are built are the ones that
are publicly discussed, that is a likely prospect.
What service providers publicly promise to do, if they are given complete control of their networks, is to build special facilities for streaming movies. But there are two fatal defects to that promise. One is that movies are unlikely to offer all that much revenue. The other is that delivering movies in real-time streaming mode is the wrong solution, expensive and unnecessary.
He goes on to show why their argument is wrong and along the way, makes some astute analyses. I'll quote here, because his argument is better than what I could make:
What if you build it and they don’t come? ... that is almost bound to happen if net neutrality is blocked, and service providers do what they have been promising, namely build special facilities into their networks for streaming movies...The public stance of the service providers, a stance that appears to be accepted as valid by the press, research community, and decision makers in government and industry, is based on two delusions. Both delusions are neatly captured in a single sentence by Jim Cicconi, one of AT&T’s senior executives... He said that net neutrality “is about streaming movies.” The first delusion here is that movies are the most important material to be transmitted over the Internet, and will determine the future of data networking. But video, and more generally content (defined as material prepared by professionals for wide distribution, such as movies, music, newscasts, and so on), is not king, and has never been king. (italics added) While content has frequently dominated in terms of volume of traffic, connectivity has almost universally been valued much more highly and brought much higher revenues. Movies cannot be counted on to bring in anywhere near as much in revenues as voice services do today.
Even if we allow video the dominant role in shaping the future of the Internet, we have to cope with the second delusion captured in Cicconi’s quote, namely that movies should be streamed. This is an extremely widely shared assumption... However, there is an argument that except for a very small fraction of traffic (primarily phone calls and videoconferencing), multimedia should be delivered as faster-than-real-time progressive downloads (transfer of segments of files, each segment sent faster-than-real-time, with potential pauses between segments). That is what is used by many P2P services, as well as YouTube. This approach leads to far simpler and less expensive networks than real-time streaming.
The general conclusion is that the story presented by service providers, that they need to block net neutrality in order to be able to afford to construct special features in their networks for streaming movies, is simply not credible.
Pretty interesting for those of us who think about this. It's also interesting to me because I keep arguing with people about the value of streaming. We now offer it at Reframe, but only because currently an audience exists for it. But long-term, it seems a ridiculous option. I'd far prefer to get progressive downloads and be able to watch it again later on the plane, when not connected, and not have to rely on an internet connection.
I'm also interested because of his idea that video and content as such is not king. He says that people pay for connectivity (phone or twitter) not content. This seems counterintuitive in some ways, but he shows that in aggregate this is definitely true - i.e. more revenue comes from things like VoIP and phone than will ever come from Hollywood. "For all the hoopla about Hollywood, all the movie theater ticket sales and all the DVD sales in the U.S. for a full year do not come amount to even one month of the revenues of the telecom industry. And those telecom revenues are still over 70% based on voice, definitely a connectivity service."
Undoubtedly true, but as I deal in indie arenas, the little dollars matter. That said, what he says is true for me as a consumer - I value email, twitter, and other participatory communications on the web more than finding web content. What I like even more are ways to combine the two - conversations and participation with video content. I don't think it's as separate as he makes it seem.
In his conclusion, he has some interesting thoughts:
The two myths, that movies are a gold mine, and that they should be delivered in streaming mode, are very widely held. But at the same time, it seems clear that service providers are aware this is not even the most promising avenue to explore in search for new revenues and profits. They have been devoting a lot of attention to the potential of DPI (deep packet inspection). Now DPI is not needed if you believe that you cannot have a successful video service without special channels for streaming delivery. If you do believe that, then you just build a network in which you control access to those special features that enable quality streaming. On the other hand, you do need DPI in either of two situations:
– You want to prevent faster-than-real-time progressive downloads that provide low-cost alternative to your expensive service.
– You want to control low-bandwidth lucrative services that do not need the special video streaming features.
Communications service providers do have a problem. But it is not that of a flood of video.
He argues that all of this is a cover-up for what they really want to do, and I think he may be right. Anyway, Odlyzko's article has been discussed many places, but not in the film world, where it seems to really matter so I thought it was worth linking to from here.
Sunday, November 02, 2008
Stealing Films to save filmmakers
And guess what - it's made them money. They barely have a website, where they encourage donations, but they've gotten lots of responses thus far. According to Jamie, the film has been seen somewhere between 5 and 10 million times (estimates vary, but there seems to be agreement on this), and they've received at least $30,ooo pounds, which is roughly $50,000 US. This may not seem like a lot with so many people having seen the film, but think about it more. Most documentary filmmakers I know get an average of $10-15,000 US as an advance on their film if they are "lucky" enough to sell it to one of the better known doc distributors. This is a high number, by the way, with many distributors paying less and few more. They also seldom see more money than this. So Jamie and friends have built a better business model for their film by just giving it away and encouraging piracy!
You may think I'm joking, but I'm not - this is a model to explore. Of course, not every film fits this model, but with things increasingly trending towards free, and with the film world continuing to duplicate the mistakes of the music world, it's something worth exploring. Jamie is exploring it further. The first step is VoDo - for voluntary donation - a system to make it easy for people watching films on peer-to-peer sites to donate to the filmmakers. Not a requirement, just a voluntary, and anonymous, donation. From their site:
VODO’s aim is to provide a revenue stream for creators of media content, in a world in which the systems for distributing, copying and viewing that content are cross-territorial, rapidly changing and difficult to predict or control.
If the architecture we are working on proves workable, we will be able to let consumers of media shared through P2P networks make voluntary donations to creators. Our aim is to combine a series of technologies to smoothly connect would-be donors to creators wherever their works are shared.
Good goal, I think and worth further exploration. Jamie is working with several people to develop further business models around free, P2P and piracy, and I think it's worth following his movements. The technology isn't going away, piracy isn't going away (unless we wake up and make it legal and not piracy), P2P isn't going away, the film business isn't getting any better and at least one person is figuring out a new model Kudos to Jamie.
I have to close with a last thought from Jamie. In a conversation we had, he commented that he, and friends of his, often will hear about a film and wonder if it's any good. The first thing they do is search PirateBay - if the film isn't there, they figure it must suck - if no one is pirating it, it can't be worth watching. I don't think Jamie is alone in this, and filmmakers should acknowledge it and build upon it.
Wednesday, October 08, 2008
Fair Use in Morelia
I can't believe I haven't posted in over a month, but I've been traveling and delinquent on blogging. I am currently in Morelia at the lovely Morelia Film Festival (FICM). I've been visiting here for 4 years now, as we present the Media Arts Fellowships in Mexico annually at this festival (photos of winners at left). Today, after going to the mercado and stocking up on ancho chiles for cooking back home, I spoke on a panel at the Morelia Lab - a sidebar of the festival where 30 documentaty filmmakers from Latin America spend the week learning important things about documentaries, inluding international co-production, pitching and this year - the importance of Fair Use! Filmmaker Gordon Quinn and I led a two hour session on the struggle to re-establish the principles of Fair Use in the US, which has been led by Pat Aufderheide and Peter Jaszi with the creation of the Guide to Best Practices in Fair Use.
While neither of us could speak to specifics of the law in Mexico, Brazil or other Latin American countries, we had a great talk about what has been done in the US and how filmmakers here can use this resource in thinking about their own films, as well as in continuing the fair use movement abroad. Gordon showed some great realworld examples from Kartemquin of how they've used fair use, how for many years their creativity was curtailed by not understanding fair use and how the Statement of Best Practices has influenced how they now approach licensing in their films. It was a great panel, and I'm glad Morelia is forward thinking enough to make sure their lab participants are thinking progressively about their rights.
Morelia is a very special festival, and I am lucky to attend each year. Other highlights were tributes to Todd Haynes, Mexican film star Julio Aleman and to the festival "patron saint" so to speak, Pepe Escriche of the Huesca Film Festival, who recently, tragically died of cancer (he was an inspiration to the festival's founders and all guests). The photo here shows the plaque in his honor. Festival Director Daniela Michel, and President of the Festival's board, Alejandro Ramirez, really make this a special event, a must-stop on the festival circuit and an exemplar of hospitality that all fests should follow. Their film programming is stellar as well - retrospectives, important films from the circuit and many Mexican and Latin American premieres. They do a great job with free outdoor screenings for the public, and fill most screenings, even for obscure foreign work. Kudos to them on a great 6th anniversary.
I came here directly from the Woodstock Film Festival, where I moderated a panel on fundraising (though I somehow fell off the web page, I really did moderate it!). Woodstock is also a great festival with amazing staff and volunteers who really go the extra mile to make you feel at home. The film program was great as well, but I didn't get to see a single film. I was there for less than 24 hrs, much less, as I had a cold and had to get ready to leave for Morelia. Our panel had a great line-up with experienced producers, funders of film and film attorneys explaining new business models for funding your film. People were cautiously optimistic about raising funds in the current economic climate. We also had a lively chat both backstage and on about the importance of keeping your digital rights. Steven Beer pointed out that there's too much change out there to trust anyone with your rights if they want exclusive deals or long terms - a topic that needs more open discussion on the fest circuit IMHO. More on this soon, but I'm off now to Grantmakers in the Arts, Power to the Pixel and Scottish Audience Development Forum.
Monday, August 25, 2008
Chinatown Film Project
Kudos to my friend Karin Chien on the press she just received about her Chinatown Film Project. Karin's been working on this for awhile for the soon-to-be-opened Museum of Chinese in America on Centre Street. I walk past this building on my way to work every day, and am anxious to visit and see the architect, Maya Lin's work.
Karin first spoke to me about this project at Sundance a few years ago, and it's a great idea. She designed a 3 part series. In the first, several famous directors shoot projects about New York's Chinatown. She chose to work with (grantee) Jem Cohen, (board member) Sam Pollard, Jonas Mekas, Wayne Wang and several other notable directors. Their short films will be featured in an inaugural exhibition at the Museum before touring film fests and other museums. For part two, she asked that other international filmmakers make films about Chinatowns in other parts of the world. For part three, she is having anyone, from anywhere upload their own stories about Chinatown. This is the great part, and you can already check them out online now. I love the way she's mixed the top down masters with the "bottom up" UGC, making it a much more interesting participatory project. Can't wait to see more.
Thursday, July 24, 2008
Joe's Ode to Mobile Me
Sunday, July 13, 2008
Long tail not so debunked after-all
There’s been much ado about Anita Elberse’s article in the Harvard Business Review lately – where she seriously questions the validity of the long-tail theory. The press (and that includes bloggers, and me) love anything that runs contrary to a popular opinion in business and culture, and Chris Anderson’s The Long Tail, has certainly been influential. Within days of the issue hitting the stands, I started receiving emails from people making sure I had read it – mainly because they know my organization has launched a project working somewhat off the long-tail theory. I nuance this with the “somewhat;” however, as I’ve never agreed with most of what the adherents of the long-tail seem to believe. Pretty much everyone in the film world who has read it, and I meet someone everyday who hasn’t, seems to think that it says that obscure, niche content can now make more sales. These people believe that by building a better web system, doing more niche marketing or whatever, that their small movies can now become much bigger. This is false, of course, but became a popular belief because, hell, every filmmaker is in need of some golden business rule that can help them sway investors that their little movie can someday be big. A few people have even accused me of thinking this in relation to Reframe. (Which has never been true.)
But what they all miss, and what Elberse’s article doesn’t really address, is that the real truth of the long-tail is simply that in a business environment that allows for more long-tail content and transactions, more value will accrue to those companies that exploit an aggregate of long-tail content. Not more than hit-makers, but more than they made before the web. No single niche title (yes, there are a few exceptions) will become much more popular, but if you aggregate many of them, you can add up those small sales to something approaching profitability. This isn’t refuted by Elberse, and I’m still pretty bullish on the aggregate model; in fact, even more so in relation to this new study.
Elberse points out some very fascinating things about the nature of long-tail business, and while seemingly intuitive in retrospect, it’s great to have some data to back this up. First, she proves that yes, a hit is still a hit and that hits sell a lot more than niche titles. She also shows that this trend is growing. Importantly, however, she identifies two other trends – from 2000 to 2005 sales of the most obscure titles doubled their sales, but the number of titles that didn’t sell a single copy quadrupled. In short, more content is entering the marketplace (thanks, digital, thanks a lot) but not all of it is going to get purchased just because it is available. So, your small title won’t necessarily gain a huge audience just because it’s on every platform available, but you can expect a better marketplace than not to long ago. Those things with some value, however, are seeing an increase in sales due to digital availability. This is especially true on the thinner part of the tail. As Elberse says, “When I differentiate between artists on smaller, independent labels and those on major labels, I find that the former gain some market share at the tail end of the curve.” Clearly, more research is needed on the long end of the tail, but there is a marked increase in activity that you don’t see at the middle end – this is potentially good news for the smaller indies.
When Elberse investigates what does drive sales to the long tail, she finds some fascinating stuff. She analyzes the buying habits of people on Quickflix and finds that people who tend to buy long-tail, niche items buy a lot more of them than anyone else, and that they also buy a lot of popular product. She found that people who rent obscure titles tended to rent more than twice as many titles as those who didn’t (50 per 6 months vs. 20). I’ve always had this hunch, and we built it into Reframe’s design, but she has the data to prove it.
She goes further and shows data that debunks the idea that there is an audience that simply prefers obscure, niche titles – it turns out that even those who buy the most obscure films/music tend to give it much lower ratings than they give to more popular product. This is pretty profound – her data seems to debunk the idea of an “iconoclast” consumer who purchases/rents a lot of obscure media because they like it more. On the contrary, she found strong indications that they like such media less than popular media – they just like to consume a lot of media and therefore go further down the tail. She found this particularly true of consumers who tend to focus on a broad category or niche – perhaps a genre like horror or comedy. Consumers who really like a genre – and importantly, any genre – tend to seek out more obscure titles in this genre. Those who consume more media look for more titles than those who passively consume, but they feed off both popular and niche content. Yep, they read Lapham’s Quarterly and People, watch both Batman and Reminiscenses of a Journey to Lithuania and if they like Wanted a lot, they are more likely to hunt out more obscure titles from the same director, like Day Watch and Night Watch, and the most obsessive will seek out other films from the same region. But don’t think you can capitalize on this too easily, as Elberse cautions that “given that obscure products tend to be appreciated less than hits, it will be very difficult to earn any kind of price premium for them.” That’s an interesting thought in relation to the current model for educational sales!
She gives many scenarios of advice for both producers and distributors of content to consider, but the implications are pretty clear – the long-tail does exist, but the business models to best exploit it may not be what many in indie film have thought. It’s very clear that aggregators, online stores, etc. need to have a mix of both popular and niche content – there isn’t some mythical consumer that only values niche content, and your little film is much more likely to be found if someone can get there while investigating something much better known. This is nothing new of course. Film festival programmers have always used the strategy of mixing an experimental short, say, in front of a more popular feature to build audience for the more obscure title. It works this way online as well. Anyone thinking about how the long-tail impacts the indie film business -festivals, distribution, producing - should study these findings closely because it’s very possible that the idea of separating indie/niche content from popular content (i.e. current practice) is not a good idea in an online, interconnected world.
BTW - That her article is brilliant is not surprising – she is colleagues with and did part of this study with Felix Oberholzer-Gee, and his research has helped debunk the myth that piracy has been hurting sales of music. A couple of debunkers of popular internet myths like these are surely business-minded folks the film world would do well to listen to more clearly.
Sunday, June 29, 2008
Gill, Gibney and the Numbers
There’s been much ado lately about Mark Gill’s “Sky is Falling” speech. I read the speech, and the millions of other bloggers responding, but still have to ask – where’s the news here? And how does this apply to 99% of IndieWire readers?
In my job, I speak to filmmakers almost daily – young, old, established, emerging, successful, under-appreciated, good, spectacularly good, mediocre and incredibly bad. I’ve been doing this for more than 10 years now, and I have yet to meet the filmmaker that has had good things to say about the state of the industry – particularly as it relates to their film. Whether it’s the difficulty of raising funds, or the inability to make money back – even on films that are seen as successful – they all bemoan something. Even the
Mark Gill’s analysis, even the parts I would debate, is fairly accurate, but pretty much meaningless to 99% of the indies I (and you) know. For most of us – those making truly indie films, and those watching them – not one of Gill’s thirteen disaster points mean anything to us.
Picturehouse, Warner Independent, etc and all – wouldn’t distribute most of the films that I've seen and/or supported this year, have nothing to do with what we call Indie, and are for all intents and purposes meaningless to us. I’m not saying I haven’t liked any of their films, or that they haven’t been important to the movie business. I am saying that few of these companies would ever pick up 99% of the films accepted to Sundance (or any other fest) anyways, and that whether or not they tank has no real impact on the majority of indies I know. For them, they haven’t truly had a distributor for their films since perhaps the early 90s, if ever. And they’ll keep making their films, their audiences will keep finding ways to see them – be it at festivals or online or through a hand-me-down VHS tape. So, for the rest of us, points 1-13 add up to possibly one thing- less parties to try to get into at Sundance, but not much more in terms of indie film.
Everyone in the film business seems to be completely aware that the entire marketplace is changing as a result of digital and its attendant changes, and that we better do something or end up just like the music business, but no one seems to be offering any good answers yet. Gill essentially offers two bits of advice – “Make fewer better” (from Goldwyn) and make sure there’s an audience for the films. Well, we all know this, but newsflash – that’s not going to stop the wave of digital crap that Gill thinks has come from the digital revolution. Go ahead and hold your finger in that hole Mark, but the deluge is going to break through. There’s a good chance you’ll make fewer films, but not much that the world will. (Don’t take that as a slight against Gill, it can apply to anyone). And while I have no bad feelings against Gill (we’ve never met, and I’m glad this speech was published), I do have to take exception to the idea that the digital revolution sucks. While none of these are "films" in the strict sense, I’m very glad that my 8 year old nephew turned me on to lego Star Wars, Kill Vader and that so many amateurs could inspire and star in Weezer’s Pork & Beans. I’m sorry, but once you see this stuff you can’t put down the revolution, even if none of those hundreds of thousands of viewers add up to quarters for your Vegas trip. It all adds up to something pretty cool for our culture, and I can't imagine that more people having access and making more media won't be a good thing in the long run, even if it means we have to work harder to break through the clutter.
As suggested in this piece, we should look to the music industry - Well, we’re not seeing less music being made, and frankly, I’m glad to have so much stuff to wade through – my musical selections aren’t making anyone a lot of money, but neither I nor the people making the music I like are in this game to make a lot of money. (Trust me, Ken Vandermark knows he’ll never be famous.) Same with most of the filmmakers I know – they are passionate about making films, want an audience and would like to just make enough to live on. The suits are in it for the major profit, and for them the sky is falling – it actually fell a long time ago, but all that dumb money kept the eyes glazed enough not to notice it. So, from the rest of us to all of you just joining us – welcome to our party, it’s not making us any money, but some of us are still finding what we want and having fun. What we need now is gatekeepers, but not the old types that spent a lot of money to get us to see that which we could do without, or that think that unless a film can gross millions, it wasn’t worth being made. The new “gatekeepers” needed are those that can help us wade through the junk to find the gems, and these gatekeepers will probably be my friends (or maybe just my nephew) as often as some studio division head.
A more important article in IndieWire was their excellent piece on Alex Gibney’s suit against ThinkFilm. The most relevant part to this discussion was the money – Gibney received $150,000 for selling the film to Think for 20 years – that’s a long time in this age, btw – and a $50,000 bonus for winning the Oscar. This in itself should be a wake-up call to all the indies trying to make their films. I assure you that Gibney spent more than this making the film – while many indies can get by for less than 100K, ITVS still finds an average cost per hour of $500K for indie docs aimed for public television.
Note further that Think has made just $275,000 on the theatrical release of Taxi to the Dark Side. Don’t make the mistake of doing simple math and think they are $75K ahead of the game here – they probably spent more marketing this film and releasing it theatrically than they made back. That’s even if they did they poor job of releasing it that Gibney claims. Now, this is a tough film – a film about a war that most of
Now, we all know by now that theatrical only exists anymore to market the film. (I know, I know, and I love films in theaters as well). Most revenues will be made in ancillary, mainly
Bottom line- very few people are doing well in the film business. Kinda like in
I don’t have the answers here, but these articles did get me thinking – as well as many others who emailed me about them this week – that we need to really get some good heads together and think this stuff through, re-imagine what we are doing and come up with some new models. I’ve been speaking with many people about putting together some kind of forum for this soon, and if you want to be part of it, let me know.
Tuesday, June 03, 2008
Social Media - like ice cream
Sunday, May 11, 2008
Orphan Works Myths
For the past two years, several media organizations have been working on potential orphan works reform, and Congress is finally poised to take some action. What the heck is that, you ask? Filmmakers often encounter orphan works when they are making a documentary and need to use a clip for which they can't find the right's holder. Often, this person doesn't exist - maybe they died and the estate doesn't care about the work, or maybe they didn't register the work -there could be many reasons. As a filmmaker, you have no way to use this clip, no matter how important it is, because since you can't find the owner, you can't get permission and no one will insure the film or distribute it because the owner might surface and say - "hey bud, your film is famous now and you owe me a million bucks." Odds are likely that if you are a reasonable filmmaker and have done your research this won't happen, because you being a rights-holder yourself, you've looked far and wide and the person just doesn't exist.
Several groups have worked with the Copyright Office and proposed that if you do a reasonably diligent search, you should be able to use the clip - or any other orphan for that matter (writing, etc) - and if someone does show up and claim rightful ownership, the damages due to them should be limited - because you essentially exhausted all efforts. Congress seems to agree, and there is now legislation being considered which could remedy this situation. It would keep a balance of allowing use while protecting the rights of the creator. You can read all about it on Public Knowledge's excellent Orphan Works site.
Unfortunately, there's some folks out there who seem to be misunderstanding this whole legislation, and there's a lot of confusion about the effect of orphan works reform. Luckily, Alex Curtis of Public Knowledge (getting the sense this group is smart? You're correct) has posted a response to the myths out there. Read it on their blog or pasted below. Soon, several groups will be sending out info on how you can get involved, and when they do, I'll post the info here.
MYTHS AND FACTS ABOUT ORPHAN WORKS LEGISLATION – H.R. 5889 AND S. 2913
MYTH: The bills would take away copyright protection from every work a visual artist ever created!
FACT: The bills do not take away artists’ rights. The bills set a limit on damages for users of a copyrighted work where the copyright owner could not be found, despite a search conducted in accordance with detailed guidelines that the bills lays out. Under these guidelines, lack of identifying information on a work would not be an excuse to use a work. After such a diligent search, in the unlikely event that an owner came forward after the use had started, the user would have to pay him a “reasonable compensation” for the use. The owner would also be entitled to an injunction in situations where the work was not incorporated into a new work. The bottom line is that good faith users are shielded from liability, and owners are paid if they surface.
MYTH: The bills would mandate registration of all visual arts in expensive, private registries.
FACT: Neither bill contains such a mandate. Owners’ failure to register would not absolve users of their search obligations. The purpose behind the “visual registries” provisions is to help artists keep ownership information associated with their works and to help users find owners. In order to achieve this purpose, the bills contemplate the development of electronic databases of visual works in the market place. The bills do not require artists to use these services, nor do they require the services to charge a registration fee. Services that operate in the current marketplace, and provide services free of cost, could easily evolve into the visual registries contemplated by the bills. The bottom line is that the bills aim to encourage the market to solve a problem to help owners be found, but the bills do not require owners to register with these services.
MYTH: Unavailability of statutory damages means that owners cannot get compensated.
FACT: Both bills would require a user to pay a reasonable compensation to an emerging owner. This compensation is defined as the amount the parties would have agreed upon had they negotiated a license before the use began. If a user refuses to negotiate with the emerging owner in good faith or pay the compensation within a reasonable time, both bills currently provide that the user would be liable for all the remedies currently available under copyright law including statutory damages, which could be as high as $150,000 per work. Statutory damages of this sort are really punitive damages, and since owners will be reasonably compensated to be “made whole,” user communities have proposed limiting damages to at most paying the owner's attorneys fees. A user’s desire to avoid having to go to court and pay double attorneys fees (his own and the owner’s) would provide a good incentive to any user to negotiate an appropriate license. Thus, the bills would provide a fail-safe means of ensuring that owners get compensated.
MYTH: The bills would institute registration formalities in contravention to international treaty obligations.
The bills impose no new registration requirements on owners.. While existing law does not require owners to register their works to claim copyright, it does obligate owners to register their works prior to infringement in order to receive statutory damages. The orphan works bills do not mandate any additional registrations beyond current law, neither to the Copyright Office nor to registries certified by the Copyright Office. To qualify for protection under the bills, a user may have to search both of these sources for the information about the owner. However, a user's obligation to search these resources does not create any requirement on owners to register their work.
MYTH: Any user could fake a “diligent search” and use the orphan works limitation to infringe. Couldn’t a bad actor falsify the records of their search?
FACT: Orphan works legislation does not make an owner more vulnerable to bad actors, nor will it make infringement any easier for bad actors. A user must undertake a diligent effort to find an owner, and that effort must be documented. A user that fakes a diligent effort would be considered a bad faith user, and would be on the hook for the full panoply of remedies under copyright law. If a user is going to claim this orphan works limitation, he’s going to have to plead it up front in court, and again up front in the discovery process, and he must produce the documentation of the search. This prevents him from hiding information or prolonging discovery. Also, the “pleading with particularity” requirement means that the infringer’s lawyer must sign his name to the fraudulent conduct. Even in worst case scenario, where a court does not find fraud, the owner still recovers reasonable compensation. The fact that the infringer must pay reasonable compensation makes fraud extremely unlikely. Why perjure yourself in federal court about conducting a search, when you’ll still be required to pay compensation. If you’re going to lie, you’re best off claiming that you never copied the owner’s work in the first place, and any similarities between your work and his are coincidental.
Tuesday, April 29, 2008
DJ Spooky has a new book out. It's called Sound Unbound and it's about the art of the remix in music, film and the arts. The book has a great companion CD featuring such legends as Sonic Youth and Nam Jun Paik. He'll be discussing the book at a reading this Friday at McNally Robinson in SoHo, NYC.
In addition, we have him on a panel at Tribeca the day before - Reuse, Remix and Renew - the Renew in that title reflecting the fact that for the past two years, Renew Media (the org I've been running prior to our combination with TFI) has been working on a sampling license toolkit for filmmakers. Paul (DJ Spooky) will be speaking with representatives from the USC Law School IP Clinic who helped build the toolkit, Creative Commons who is collaborating on it and Tiffany Schlain, a filmmaker well versed in new ways of taking works out digitally. The toolkit is designed to help people use a CC sampling license for their films. Come find out why you should consider it.
Monday, April 21, 2008
Shoe Leather Launches
Over at my day job, we’ve launched a new blog called Shoe Leather, by Teri Tynes, that’s part of a new, bigger project called Reframe. While Reframe doesn’t launch to the public for a few more weeks, you can visit the site now to learn more about how it works, and we felt so sure that Teri would be a good blogger that we wanted to launch this blog right away. I've known Teri for years, having first met in South Carolina where she was the editor of the local weekly. She writes an amazing blog called Walking off the Big Apple, that is literally the best non-film blog I've read lately, so I've been wanting to have her write for us for some time now.
What does the world need with another film blog, you might ask? I think that Teri’s idea for the blog – presented to me over some amazing sushi with mutual friends – is a unique angle for discussing films, and one that should catch on. As Teri says in her intro to the blog today:
Think of me as a curator who hands out cultural street maps of the film-going experience.
While she’ll begin the blog by working “in-family” on the Tribeca Film Festival, this blog won’t be partial just to Tribeca, or Reframe, films and events, so stay tuned post-fest for some great new takes on film.
Here’s a bit from her intro to the blog:
Shoe Leather: An Introduction
Think how many scenes you've seen in the movies of a character or characters strolling down the sidewalk or walking down steps of a courthouse or quietly strolling through a park. "Shoe Leather," a term used in filmmaking, refers to these parts of a movie that precede other scenes and serve to make sense of the transitions. These sequences, while seemingly pedestrian, establish necessary continuities, open up the action to establish a sense of place, and give the viewer an understanding of how characters arrive at their destinations.
I'll be writing this blog, titled "Shoe Leather," for Reframe in much of the same spirit as these shoe leather sequences. With the occasion of the Tribeca Film Festival and in anticipation of the curated digital collections forthcoming from Reframe, I'll be seeing several of the films featured over the next ten days and then suggesting on this site related films that go down that same street, so to speak. The films that form the 2008 festival naturally group into shared subject matter, such as films by or about visual artists, narratives of immigration, stories of military and state terror, and documents of fading neighborhoods, to name just a few categories, and I'll point you to similar films worth seeing. Think of me as a curator who hands out cultural street maps of the film-going experience. Read more.
photo credit: WOTBA
Thursday, April 17, 2008
Smarter Way to think of Blogger/Critics
Bruce Sterling from Innovationsforum on Vimeo.
In thinking about something else, I stumbled upon this great video lecture from the science fiction writer Bruce Sterling addressing an interface and interaction design conference. The video is long, at close to 40 minutes, and the best stuff is at the middle and the end, but it's worth watching as he describes the possibilities of the future, and what we already have now, very well. At the end, he states (close to a quote) -
It used to be you were a print man or a TV man, and those distinctions don't matter anymore.... The net and its adjuncts are becoming a hybrid meta medium that connects everyone, everything ever place.... Art, Photography, Writing, Literature, Cinema, Design - we used to have all of these formal hierarchies of the creative disciplines that are now all coming violently apart, right in front of our eyes.
He's right, and the people its affecting don't seem to know what's going on, but it's all interconnected in new ways and we are fundamentally different for it. The hand-wringing we're seeing now over critics/bloggers will seem very quaint in just a few years.
Sunday, April 13, 2008
New Indie Coalition is so 90's
Anyone who knows me and my writing knows I care passionately about advocacy for artist's needs, but I am pretty sure that what is needed in this day and age is a new form of advocacy, and I'm pretty sure it should begin with more than a listserv, more than a mimeograph and more of a clue about the changing nature of advocacy in a digital age. Geesh, it's not like we don't have plenty of political examples to look at! Anyway, if you want to learn more, send an email to them at indiecoalition-subscribe at yahoogroups
In the meantime, I am thinking about how advocacy has changed, and will hopefully get to do something interesting about it as a result of our recently announced combination with the Tribeca Film Institute. It's keeping me too busy to blog - I am seriously humbled by some of my friends who can keep this up, but I hope to be back with more after the Tribeca Film Festival.
Tuesday, March 11, 2008
Help a filmmaker that rocks
+ SEE THE FILM!
+ SIGN THE FILM GUESTBOOK
+ SEND A DVD OF YOUR FILM
+ DONATE TO HELP COVER HIS MEDICAL EXPENSES
Find out more through Rooftop. And do see the film, it is amazing.
Sunday, February 24, 2008
Be Kind to Rewind
I rarely do movie reviews here, and it's even rarer that I like a Gondry film (I couldn’t watch Human Remains) but I’ve got to jump into the critical fray on Be Kind Rewind, as I thought it was a perfect movie for the times – a zeitgeist film (though not a Zeitgeist one). Be Kind plays as a cinematic homage to YouTube. It’s about many things that are playing out in interesting ways in the media world right now. While made by an auteur, it celebrates “amateur” filmmaking, pushes a model of community/participatory filmmaking as superb to
In addition to the homage to YouTube, the film picks up on the remix culture of sampling and remaking through the “sweded” videos, and it definitely comes down in favor of opening up copyright in order to stimulate creativity. The film even gets in some digs at the
It's interesting that Gondry picks Jazz as the underlying theme for the film – in the premiere he noted it's because he’s s fan, but I think it's more interesting because of the way Jazz has always been about re-mixing while paying homage; playing and improvising while still having rules; and riffing off established well-known tunes while building entirely new visions.
I think it's also interesting to see all the other realities of our society right now being dealt with so smartly. Witness the switch of power from the baby boomers to the new generation as Danny Glover and Mia Farrow – two real world activists from back in the day – begin giving up on their dreams just as the younger generation comes up with new ways to solve the problems. It shows the changing nature of our neighborhoods - not just the bad side of gentrification, which is very real in the film, but also in the possibility of working together. It also shows the continual decline of culture, even in the smallest ways, such as when local kids tag over the beautiful graffiti across from the store. Sure, it’s a joyous film and simplistic in some ways, but so are the opposing stereotypes. One of the best moments, and most hilarious, in the film is when Jack Black and Mos Def break into the rival, big-chain video store to steal a projector and find that behind the monolith is another struggling local businessman losing money. Nothing is as simple as it seems in this film.
Another example of its subtle complexity: I love that near the end of the film, we watch the audience watching the film. They are in a theater – in a sense – watching the film together. The glow of the film washes over their faces, and the obvious tribute to watching cinema together is prevalent. But what’s interesting is that they are watching the film they made, together, not the work of one auteur. That’s the film we’re watching of course, but it still suggests that the group will win out.
But this scene is touching to me for another reason – one many people may find hokey on the surface – as the screen has been hung up over the front window, and we find an entire community watching with them on the other side of the screen. I can’t imagine Gondry wasn’t aware that in this he was once again talking about race in this scene. Race plays throughout the film. At the screening I attended, Elvis Mitchell went on a bit too long about this, but one can’t deny that this is a very sophisticated look at the nuances of race relations, and their history. While the digs at Driving Miss Daisy get laughs, you can feel that the pain on Mos Def’s face is real when he lashes out at Jack Black for the continued humiliation. Gondry wanted to film a remake of Back to the Future which would have been hilarious, but couldn’t because of legal issues. Interestingly, the reason he wanted to do it was to change the part where a white man gives the idea of rock to a black man. That one scene angered many in the black community, and Gondry wanted to “right” it in the sweded version.
So, what’s so poignant about this last scene? Many people don’t know this, but it was once common practice in many movie theaters, especially in the segregated South, to have the black audience sit on the back side of the screen and watch the movie backwards. Theater owners often had double sided theaters – one for white and one for black – and I am willing to bet this was not just an interesting trick for the film, but one that brings up race once again, but to say – look, on the other side of that screen was a community, and now they are part of the story.
With Profits in News
Todays NYTimes has a great article on how many nonprofits are starting to take a much more business minded approach to what they do, how foundations are considering these new models and even how some nonprofits are switching to for profit endeavors to help society. I think we'll keep seeing more of this, and I for one think that more nonprofits in the media world should be thinking like this. We're the best positioned, as media folks, yet most of us continue the same tired formulas. We're launching Reframe soon at my organization, and it takes what I call a with profit approach - using for profit models for social aims. More on that, and some other ideas we have up our sleeves soon, but in the meantime check out how Epals does it.
Monday, February 11, 2008
A new Chapter for thinking on Content?
I think this could also help people "preview" other books - download a chapter to your Kindle or your laptop and if you like it, buy the entire book. Free would work better, but its a good experiment, and NewsCorp announced, sure enough, that they'll make some of their titles available for free for a certain time. This should help people sample a work and see if they want to buy the whole thing.
I think this is relevant to film because many users of film don't want the entire work. Many professors, for example, might only want the "chapters" (like DVD ones) of your film that apply to what they are teaching.And why stop them, if you could make a sale? Sure, some might use it as a way to censor something, but they could do that by not showing a certain scene to the class on videotape, so that's not a concern to me. Sure, it doesn't give them your full artistic intent - but these buyers won't come to you for that, so why not make an extra sale on the content they want to see. I can also imagine viewers that just want to see the action scenes, or (more likely) just the chapter where people get naked, but as a filmmaker, if you can make another sale, all the better for you!
Its another way of versioning your content, and a good model to explore in film.
Friday, February 08, 2008
PBS and NEA Cuts and Indies
Via the NYTimes, President Bush has proposed major cuts to both the NEA and PBS. No, this isn't that old hoax email going around again - according to the article, Bush's budget "would cut in half the $400 million allocated in advance by Congress for fiscal year 2009 and cut $220 million from the $420 million already planned for 2010" for PBS. Furthermore, "President Bush proposed eliminating advance funds for 2011, along with any additional funds in 2009 for stations to convert to digital transmission, which is federally mandated. They are the deepest cuts yet proposed by the administration."
This is just for PBS. He's also proposed cuts for the NEA. From the Times again: "the administration proposed a cut of $16.3 million — to $128.4 million from $144.7 million" for the NEA.
I don't usually post on NYTimes articles, but a quick perusal of some of my favorite film blogs tells me that perhaps this isn't getting enough coverage. Blame the strike, Sundance and Berlin jet-lag and the simple fact that this seems a familiar story. Personally, I actually wondered for a few minutes if I cared. The NEA hasn't been much of a force in indie film for awhile, and I can't remember the last time I just had to watch a PBS program. But, the reality is that the NEA is among the few funding sources left for both indie films and for the variety of orgs that support them - everyone from film festivals to regional nonprofits. I know the staff there, and they truly care about helping indie films, even if they have a limited budget. Public broadcasting includes gems like POV and ITVS, not to mention smaller groups that have even bigger impact in the field with tiny budgets, like NBPC and CAAM. I don't know how these cuts would impact their bottom line, but it can't be good.
More importantly, to me at least, these cuts come at a critical time for the field. PBS needs to be thinking about how to reinvent itself - it is sorely behind the time in terms of the digital transformation happening around us. Now, instead of focusing on being relevant in five years, they have to focus on keeping the pittance they get from Congress (much less than in other countries). The NEA has been consistently trying hard to do well, and they get cut while the Smithsonian - which seems to have broken every rule in the book - gets extra funding?? How does that happen?
The NEA remains a good source of support for the indie cause, and PBS maintains one of the few consistent outlets for indie film, so for that alone, people who care should be learning more and contacting those in power. Don't think it's going to just blow over. "Ken Stern, chief executive of National Public Radio, said in an interview that even though public broadcasters had been successful in fighting off past proposed cuts, this year could be different. “I worry that this gets lost in a whole lot of other issues,” he said, acknowledging that it was also “an incredibly tight budget year.”"
How do you get involved? Great question, and one which makes me think maybe they deserve this. Even as an informed person in the arts (I think), it took me fifteen minutes of advanced searching to find any action items regarding this. Awards go to Americans for the Arts for their action center regarding the NEA funding. I didn't find them on Google, but I had a hunch they'd be on top of things - lord help you if you just search for action links on Google. After searching for ten more minutes on every PBS site, and even their own activist orgs, I had to give up on PBS. Not encouraging.