Monday, September 27, 2010

More on Fair Use and Letterman

Thanks to the comments in my post on Letterman/Phoenix and Fair Use, I found this great blog post from Roger Goff in response. I wrote a pretty lengthy response in his comment section, but Blogger/Google wouldn't allow it as it was too long. It's probably too long for most people, but if you care about this at all, read on:

Roger: I am glad you’ve taken this up to debate - even if we don’t yet agree. The main reason I wrote the post was that I didn’t find much discussion of the argument, even on my favorite blogs related to copyright and culture (a few have now appeared). As I’ve stated, I’m not an attorney, but I still (think) I disagree. Would love to hear more from you and other copyright experts, and will ultimately defer to consensus (if we get that far).

First, I don’t believe that Fair Use was intended to “allow journalists and educators to use small portions of copyrighted material in order to inform and educate the public.”  My layman’s understanding is that fair use is an acknowledgment that we need some leeway in the special considerations granted to creators via copyright to ensure the public good, so to speak. To allow certain creative, educational or other public goods while still respecting a creator’s general rights. I believe there have been many court cases that affirm a fair use right beyond what your above quote considers. Perhaps a small point, but I think it does matter.

Second, I don’t think that commerciality (or not) is a necessary requirement to qualify for fair use. Didn’t the Supreme Court decision in Campbell vs Acuff-Rose (aka the 2 Live Crew decision) specifically argue that it didn’t matter whether a work was commercial or not? My understanding is there are the “four tests” for fair use, but that being non-commercial is just one, and that not all of the tests must be matched to qualify. Granted, I am going by memory aided by Wikipedia, so perhaps I missed some nuance here.

Third, and going back to the 2 Live Crew decision, it seemed the Supreme Court acknowledged some special consideration for parody and some copyright folks generally extend this to social, political or cultural critique (reading here from the Fair Use Best Practices of CSM as well). If the “best practices” are correct, then I would gather that this mock/doc/whatever is pretty clearly falling in the cultural/social critique camp. Further, if these best practices are correct, then this also qualifies as a correct use of “archival material in historical sequences.”

Last, I think, I don’t see how the fact that an archival footage market exists is a problem - again, my reading of the news around the 2 Live Crew case is that the Court acknowledged that a market existed for rap samples, but still agreed that the usage was Fair Use.

I don’t honestly have a dog in this fight. Anyone who reads my blog knows that I am generally pretty “copy-left,” but I am not in favor of granting any fair use rights where they shouldn’t exist. I genuinely want to know whether many legal experts agree or disagree that this should be considered fair use - so feel free to attack these non-expert opinions. I think that one of the problems of fair use for creatives is that you have to defend it to claim it - there aren’t any clear legal guidelines, even with the good work that Pat Aufderheide, Peter Jaszi and Michael Donaldson (among many others) have been doing to try to clear this up.

Glad to continue the discussion.

Shared Film - Panel with Gregory Bayne at Open Video Conf.

This Saturday, I'll be attending the Open Video Conference to moderate an after screening talk with Gregory Bayne about his film Person of Interest. Bayne has been taking an alternative approach to releasing his film - he's toured it garage style, given it away for free, you can buy it in multiple formats on his website now and he's doing a bigger tour of the film beginning next year. You can read more about what he's done in this excellent Filmmaker Magazine post, but I'm most interested in getting his thoughts on how filmmakers (and other artists) can use Peer-to-Peer and other free mechanisms to build an audience and still make a living. I'm sure he'll have a lot to tell us, and I can't wait to finally sit down and talk with Gregory Bayne.  Check out the conference website to learn more about the events - two days of great speakers and some great films. Here's the trailer for Person of Interest:

Thursday, September 23, 2010

Fair Use, Mockumentary and Letterman

Wow. It’s not often that pop culture, the latest indie docs and my interest in copyright collide. It happens less often than I watch Letterman, which is just about never. But lo and behold, there I found myself last night watching Joaquin Phoenix return to Letterman and a whole riff about Fair Use comes up! Now that was a truly unexpected turn of events.

If you didn’t catch it - video is linked below - the general summary is that Letterman talks with Phoenix about his infamous last appearance on the show and how he wasn’t “in on the joke.” The footage from this appearance shows up in the new film “I’m Still Here,” and Letterman jokes that their lawyers wanted CBS to be paid for showing the footage in the film, but that the filmmakers claimed Fair Use. Letterman then quips that it wasn’t really a documentary but a “theatrical ruse” and therefore, Phoenix and Affleck owe him a “million bucks.” Letterman continues joking about this for the remainder of their talk, which by my unofficial tally makes this the single longest time that Fair Use has been talked about in the mainstream media ever, or at least since 2 Live Crew was last in the news for “Pretty Woman.”

I’m no lawyer, but I’d put forth that showing this footage in their film definitely qualifies as Fair Use. On Twitter, Scott Macaulay of Filmmaker Magazine asked if this use qualifies as Fair Use since it was a mockumentary. It doesn’t matter whether your film is a documentary or not. It doesn’t matter if it’s a mockumentary, experimental film or even a narrative film. What matters is how the work is used. I’ll avoid getting into the nitty gritty of Fair Use here, as there are many other places to read up on the topic, but essentially your creative reuse must pass a few tests to qualify as fair use. One of the components of that test is whether the reuse is “transformative” and in the 2 Live Crew case, the Supreme Court argued that an artist’s parody qualifies as transformative enough to pass muster - even if that work was commercial in nature. They also noted that the parody would likely not cause any “market harm” as the two works (the original and the parody) existed in different market-places.

I think this same argument applies to the Letterman footage as well. Affleck and Phoenix are commenting on the nature of celebrity. They were parodying the obsessions and presumptions of that celebrity culture, including the Letterman routine. The film itself uses the footage to demonstrate or comment upon how people were seeing Phoenix as he mocked the system. To my mind, this is clearly fair use.

I’m sure some copyright experts out there can put together a more nuanced argument about this, but for some strange reason, my brief search of the interwebs today hasn’t brought up much commentary on this issue. If any of you legal folks out there agree - or disagree - I’d love to hear your take on this.

here's the video:

Wednesday, September 22, 2010

Ai Wei Wei: Never Sorry and Muse

Of the many events I'll be participating in this Fall, I'm most looking forward to the Muse Film & Television Gala, focused this year on the film Ai Wei Wei: Never Sorry. (note, the website is a "holder" site, with a new one coming soon) directed by Alison Klayman. Big disclaimer: I am on the board of this nonprofit organization, so I am biased, but I can honestly say that I'd attend this Gala even if I wasn't. For those of you who don't know the Chinese artist Ai Wei Wei, he is one of the more important, and more well-known, living Chinese artists today. He is also a social activist, quite controversial and quite the Twitter user. From the Muse website:

Scholar, dissident, patriot, artist or activist— who is Ai Weiwei?  This much is certain: since his co-design of the Bird’s Nest Stadium for the Beijing Olympics, Ai Weiwei has catapulted to the forefront of the international art landscape, generating almost as much discomfort for his antics as admiration for his courage.

Whether smashing millenia-old Han Dynasty urns, or confronting Chinese police over a beating he received for investigating the Sichuan earthquake deaths, or turning a Twitter-advertised dinner party into a political action event, Ai Weiwei remains fearlessly outspoken, despite considerable danger to himself.  Willfully turning a blind eye to the very eye the Chinese government has relentlessly trained on him, he advocates for freedom of expression and access to information– principles all the more fragile and precious as China undergoes its remarkable internal transformation.

Ai Wei Wei was recently featured in an excellent New Yorker article, and I highly recommend you get to know his work. Actually, if you saw the Olympics, you already do - he was the co-designer of the Bird's Nest auditorium. This video ran with the article, and gives a good intro:

Ai Wei Wei will be attending the Gala, along with many other outstanding artists and art/film world folks. The tickets are expensive - it is a fundraiser after all, but they are tax deductible and benefit a great organization. Muse Film & Television is one of the only organizations dedicated to making films about art and artists. While this film has a "social issue" and technology bent to it, many of their films are less overtly political, but equally important. Muse is a producer of this film, and they have a great track record, so the film should be pretty incredible. The Gala will feature an auction of many great artworks, dinners, vacations and more. There will be an online auction at Charity Buzz, but I don't have that link yet. If you have time, join me at the Gala, and if not - follow the film from their website. Or, just follow Muse on Twitter - they send out some great news and info about art, artists and culture.

Thursday, September 16, 2010

Forget print, it's Journalism that is dead

As people continue to debate the possible futures for journalism and newspapers a common refrain is heard - it’s not newspapers that matter, it’s the quality journalism that goes into them. Everywhere one turns, it seems someone is bemoaning the future of this quality journalism. Where will poor Mrs. Journalism go? Consensus seems to be that we can lose the print, and maybe some respected daily newspapers won’t make the transition online due to the current small returns from online advertising, but we need to salvage quality journalism. Some have even suggested that the government get involved with some Pulitzerian Buyout scheme. This is all pretty curious stuff, however, considering just how low the public pegs their respect for journalists (and the media generally) in nearly every poll. Where did all this journalism love suddenly come from?

Whenever lots of people quickly agree on something that seems so evident, they are usually not only wrong, but also denying something painfully obvious that’s staring them right in the face. I think here it’s this whole notion of quality journalism existing at the major daily newspapers around the country. Now this is a tall order, and I’ll concede in advance that there are exceptions, but I think we need to call BS on this nonsense and focus our energies on creating something better.

I read two newspapers every day of the week. I read both the New York Times and the Wall Street Journal, in print, before I do anything else. I also read dozens of blogs, trade-journals, Tweets and other web media daily. I read a lot, mostly about film, old and new media, the arts and the nonprofit sector as my career has been focused in these areas. I care a lot about certain issues, like copyright, piracy, arts policy, technology, open source software, open education, film delivery systems and the general state of the film industry. On many of these issues, I would say that I am relatively well-versed in the arguments both for and against my position (when I even have one) and could easily tell you where to go if you want to hear the other side of whatever issue is being debated. I mention all this because whenever I read an article about ANY of these issues in the mainstream press (NYT, WSJ, USA Today, etc.) the journalist usually has the story completely wrong. Not sometimes, but usually, as in more often than not. They are either completely writing the press release of some special interest group, haven’t researched the issue well enough and missed the most important parts, have generalized it to the point of silliness either because they don’t trust their reader’s intelligence or want to not offend or done all of the above and worse. Out of all of the writers I read on these subjects, I can think of only one who doesn’t do this consistently, and that’s Walt Mossberg of the WSJ. But he is usually writing product reviews and answering tech questions, which doesn’t fall in the camp I am complaining about. When he does consider some larger issue in the industries he covers (like net neutrality), he usually gets it right, or at least intelligently writes about the different arguments so you can decide. That’s one reporter out of hundreds that I read consistently.

The problem is, if you start to talk to anyone in any field that is quite knowledgeable about a subject, they’ll usually agree with this complaint. My wife is in the healthcare field and whenever I point out an article I think is interesting about a subject, she can point out all the flaws and missing information in thirty seconds. I have friends in the business and banking worlds who say the same thing. Same with real estate, law and just about any profession I have informally surveyed. It appears that the journalism in the newspaper only seems good to those who don’t know much about a subject. I don’t know much about gold pricing, so am I to trust what the New York Times said about it this weekend? Not unless someone can tell me they know that better than they know copyright issues. I shudder to think about what is wrong with the political and war coverage, or anything else that really matters. Oh, wait, I do know about that quality - journalism’s incompetence in those arenas was proven pretty handily in the run-up to Iraq and again in the reporting of the lead-up to the last election.

Perhaps it’s time we start to acknowledge that it’s not just print that’s dead, but perhaps good journalism as well? Perhaps we should stop wringing our hands over the future of newspapers and magazines, and start thinking about how we can revive the best of earlier journalistic practices and nurture the few good examples we have out there from the new media. I’ve got a lot of thoughts about how this could begin, but this is a long post already - what do you think? Am I reading all the wrong things and missing all the great journalism out there? I’d love to hear your thoughts.

Tuesday, September 14, 2010

Sponsorship Blues

There’s a lot of talk out there about how the future of film’s financing lies in branding and sponsorship, but I very rarely hear much about the possible negative consequences. First, let me say up front - I’ve done a lot of sponsorship deals in the arts world and I’m actually in favor of such things. I’m not saying there’s anything wrong with it - some people make that argument and I respect it, but this isn’t a trash capitalism critique. Rather, I think that I keep going to conferences about the future of media and people are speaking a lot about advertising deals, leveraging brands, selling sponsorships, etc and no one seems to be thinking about the consequences of this - especially the potential downsides. There are many.
The first potential downside is that there’s probably no upside. It is highly unlikely that you will get any major brand to sponsor your film. Yes, there are examples and I can show them too, but “sponsorship” is the new elusive lottery prize for filmmakers that was once getting into Sundance or scoring a distribution deal - it’s always been the lucky few and this will hold true with sponsorship. As a friend of mine who is very high up in the marketing department of a major company told me - “if a filmmaker asks me for sponsorship, I would say they should pay me instead because they are gaining much more from my logo than I am gaining from them.” She doesn’t take meetings with filmmakers, this is hypothetical, but you get the point - good luck sister.

Monday, September 13, 2010

Reinventing the Film Festival - Webinar

This Wednesday, September 15, 2010 from 1-2pm EDT, I am giving an online presentation, or Webinar, on how film festivals might use technology to better engage with audiences. The webinar is for the International Film Festival Summit (IFFS) a trade organization for international film festivals. We chose a somewhat provocative title - "Reinventing the Film Festival," but it's more about how film festivals can learn from filmmakers and other artists to improve their online communications with their audiences. You can register online free and join us from anywhere this Wednesday. Here's the description from the website:

We hear a lot today about how filmmakers can use new technology - things like crowdfunding, social media or even transmedia - to build and engage with their audience. But what about film festivals? How can festivals use these same tools to build their audience (for each film and for their organization), raise money and develop innovative, new models for the field? This workshop will detail some of the the key directions of online behavior and offer some suggestions as to how film festivals might think about adapting these to our business practices, and possibly invent new ones.

Why attend?:

• Learn the basics of the changes in audience behavior and expectations online.
• Go beyond thinking of Facebook and Twitter as just marketing tools.
• Learn how we might collaborate to build better tools for ourselves, filmmakers and audiences.
• Learn how crowd-funding can be used for your fundraising and possibly to help filmmakers do the same.
• Get thoughts on how your curatorial expertise can translate to online success.
• Confirm your belief that local festivals still matter in a DIY world.

Thursday, September 09, 2010

My DIY Days Innovation Speech edited into an actual video!

For a long time my friends in the media world have been razzing me about how I present my talks online. I always post the slides to Slideshare and on this blog, and whenever someone videotapes the speech, I’ll link to their video. The problem is, none of these combine the two - it’s difficult to know what I’m talking about because I often use the slides more as a visual counterpoint than for explication. Unfortunately, while I often talk about new technology, I don’t use it when it comes to video. While I could edit in college - quite well IMHO - that was way back with linear editing and I never learned any of the current nonlinear systems. My 8 year old nephew can do it, but I haven’t even tried to use iMovie. So, I asked my good friend Jen Fineran, a professional editor, to edit one of speeches together with the slides. She’s a great editor and can be reached here. She too had a vacation recently, and was then able to catch up and help me with this. Many thanks to her, and to the person who captured this for DIY Days - Raffi Asdourian - a filmmaker himself who can be found here.

Here’s the new edit of the presentation:

DIY Days - Reinventing Innovation Speech from Brian Newman on Vimeo.

Tuesday, September 07, 2010

Back from vacation(s)

Well, I’m back from my vacations - plural, because there was a real, physical vacation (to Cape Ann, MA) and a social media vacation as well, where I took a break from all social media for an entire month. I didn’t leave email for the whole month, just the blogging, Facebook, Twitter, FourSquare, etc. I left email for almost a solid ten days, only answering two “emergency” emails that were brought to my attention via cell phone messages. I survived. In fact, I thrived.

Why did I do this? I don’t believe any of the crap out there about the negative effects of social media, or any other new technology thing, on our brains, our attention spans, our ability to think deeply, or any of the other nonsense people are selling these days. It seems like I read some ridiculous article about this every other day now, and if anything it just convinces me that in spite of this wondrous web, reporters still don’t have enough real news to report about, or enough ways to find counter-arguments to these bogus claims. All in all, I get a lot out of some of my social media. I get more useful info and news from the people I follow on Twitter - in a timelier fashion - than I get from the New York Times now. But the problem is that “some” in the equation - not all of my social media gives me much of any use. More importantly, I could see that I was using my time on social media as a way to avoid doing things I really needed to do - like my own creative projects. I’m not saying that everyone does this, nor am I saying that it’s not possible to read all the news on Twitter and still write a screenplay or paint a picture. But if you’re anything like me, you have very limited time each day for personal projects, and every minute I was spending on social media was a minute I wasn’t spending on things that were frankly much more important to me. So, I took a break.

I did suffer some serious withdrawal for a couple of days. Sometimes I would find myself just staring at the computer screen doing nothing - I wasn’t checking Twitter, but what was I doing? To some extent, this is just natural. When I managed a large staff of people, I never cracked down on use of social media or the web generally during office hours. I believe that people are going to waste a certain amount of time daily, and it will either be on Facebook, on the street corner with a cigarette or just staring at your screen, so I don’t see this as a problem. Our minds just need a break. Luckily, I got over this pretty soon, and would use these bits of down time for my own projects. If I couldn’t focus on these various projects and really needed to procrastinate, I would read. The old fashioned way - a book, magazine or print newspapers. I read a lot, and I got a lot done. Hopefully, you’ll be seeing some of the fruits of this project soon - in new blog posts, articles and some other things before too long.

I also confirmed what I had suspected all along - that I was getting value from only some of my social media, and that those will be the only ones I return to now. What won out? Just Twitter, really. While this can be a time sink, I do get very valuable information and news in a timely fashion from it, and I think it’s worth the time spent. I’ll likely check in less often - at least for a little while - but it has real value. Facebook, FourSquare, Linked-In and all the others....not so much. Unfortunately, I get a lot of work-related inquiries on Facebook. If I could I would leave it, because beyond that I find it worthless and annoying. I’ll continue to cross-post my tweets and stuff there, and answer any friend requests and messages, but I won’t really be there anymore. I’m not deleting my profile from it, but I am not going back to FourSquare. I’ve only found it useful once - when I was visiting a city, hadn’t bothered to look online for restaurant reviews and was able to read mini-reviews on Four-Square and quickly find the best item on a menu near my location. I may use it for that again, but only if I am visiting unprepared again. I believe there’s a strong future for location based apps, and for checking in not just to locations but also to movies, music, etc but for now, I get nothing out of it. I’ll still read some blogs, but I’ll be thinning out my RSS reader a fair bit. I’d love to get rid of LinkedIn, as it is utterly useless to me, but again some people (they tend to be older and/or less tech savvy) still contact me on it, so I’m stuck there a bit longer.

Will I do this again? Yes. I don’t think anyone needs an entire month off from social media, but let’s face it - August is a slow news month and as good a time as any to redirect one’s energies to their own pet projects. I can’t afford to jitney off to the Hamptons for the month, but I can easily afford missing a few tweets for awhile.

Photo: Gloucester Fisherman