The problem I'm having with Kickstarter

I'm a fan of Kickstarter and their team. I've used it for films I've helped as a consultant, and I've contributed to several projects (not all of them film related) through it. There's nothing wrong with supporting projects you love, and yes, there's a little bit of a funding revolution going on as a result. That's all well and good, but...

I've been thinking a lot lately about the unintended negative consequences of it, and particularly how these relate to our current political situation and the future of both funding for the arts and of what types of projects get support. We build our society and our future with little decisions. We tend to make them quickly and just focus on the novelty of new mechanisms, instead of thinking about their bigger implications. This critique isn't a thesis, but rather my initial thoughts on the subject.

On the face of it, Kickstarter is pretty harmless, and I think the founder's intentions are good. It's great that people can raise money for cool things from the crowd. It's hard to raise money, especially for the arts, and there have always been a lot of gatekeepers in the way. Now, the people can decide what gets funded.

I fear, however, that this particular phenomenon fits a little too squarely with the right-wing agenda in the US (and elsewhere, actually). Government support for the arts has always been miniscule, but it's now disappearing rapidly, with many states moving to cut their state arts commissions and one that already has. This year, we saw more attacks on the NEA, CPB and other public funding for media and the arts. Yes, crowdfunding helps bridge the increasing gap, but I'd be much more excited if I received calls to action to support public funding for the arts every five minutes, instead of another email announcing a Kickstarter campaign I can help fund.

Why should I need to help fund some filmmaker I love, when I pay taxes that I believe should support the arts, but don't. This smacks of the "big society" ideas going around in the UK to me. The government doesn't need to help the people anymore, the people can help the people. While contributing to a Kickstarter campaign doesn't make you a right-wing, arts-cutting person, by any means, the adoption of such trends can be detrimental to the argument for public funding of the arts.

Now, I'm not sure that's such a bad thing, to play devil's advocate. Heck, the State Arts Agencies are probably a lost cause, and the NEA hasn't been very effective (although their new leadership is trying hard). A crowdfunding system is better than no system at all, and I've seen multiple projects raise more money in less time through Kickstarter than the average government grant. But I'm also weary of some other things this trend reinforces.

First, I've already witnessed the following:

• Funders who have already determined that they don't need to fund production and distribution, because anyone can shoot a film for cheap and give it away on YouTube, who now also add that it's easy to fund a movie, so why should they? Trust me, I've heard these arguments already.
• Funders who understand that good films can be expensive to make and distribute, but who think that you should show them a successful crowdfunding campaign, to show community support. I'm all for the power of the audience, but some art isn't necessarily popular, and making it a popularity contest won't make better, or more effective, art.
• Funders who don't know anything about any of this, but they smell a trendy subject easily, and are easily swayed. Many of these are now asking how your campaign went, even though they've never even looked at Kickstarter.

My biggest concern, however is this - guess who usually gets help when the people help the people? The rich and connected people. That's who. They've traditionally been the ones able to make indie films, by the way, even though people don't like to talk about it. This isn't exclusively true, of course, but it tends to be true - filmmaking has been a rich person's game for most of its history. In addition, the doc community is nothing if not an insider's clique, and Kickstarter isn't changing that much. There's a big danger, and it's a very likely scenario, that we'll just get more of the same in terms of what and who gets funded.

Take a look at who you hear from and support on Kickstarter. Unless you are an exceptional scout, I'm willing to bet the list is disproportionately Western, White and middle-class or above. Take a look at the most funded projects on Kickstarter, again it appears (from an unscientific survey) to hold up these assumptions.

Perhaps this will change. Perhaps I am wrong. Perhaps we'll live in a crowd-funded world in the future and it won't look like this. I'm not so sure. Are you? I, for one, would like to see things mature to something different - government funding for the arts, that is accountable to, open to and influenced by the people. Perhaps augmented by the crowd, but not solely supported by it. Diverse in both projects funded and who funds them.

In the meantime, I'll keep supporting the projects I love on Kickstarter. Perhaps someone will start a Kickstarter campaign to build an arts agency that takes the place of the NEA someday. I'll contribute to that too!

Conclusion to 7 Trends for the Future of the Arts

Over the past week, I've been posting every few days about the future of the arts. None of what I brought up here was meant to be ground-breaking, but rather, was meant to be a summary of some key trends of the current moment that will likely have a profound impact on the arts (even if the trends aren't in and of themselves all that profound). I was hoping to spark some interest in the topic, and in the book where these thoughts first appeared: 20 Under 40.

In the original chapter for 20 Under 40, I ended with a conclusion that I won't print in its entirety here. Briefly, I argued that with these changes and trends come great responsibility for artists and arts organizations. We have a chance now to help shape the future not just of the arts, but of society. As I said in the book:

Perhaps the greatest threat to the digital future is society’s lack of imagination. What is needed most now is an ability to imagine what might come next, instead of trying to bend digital change to fit preconceived notions of the world. Herein lies the heart of why the arts sector must take the lead in these debates by experimenting with what’s next in technology.

The arts sector is well positioned to put forth innovations that harness the demand for participatory culture, for relationship and community building, and for connecting audiences more directly with artists. Such innovations can help people find the art and culture they desire and curate experiences that lead to discovery. They can help insure that democratic critical discourse remains an important facet of our cultural experience. Unless the arts sector takes an active role in creating the future, a new era of digital sameness may be the best we get, and our society will be the poorer for it.

My hope is that this chapter, and this series of articles on it will help spark some dialogue about the role of the arts in our future. You can check out each of the posts here, or buy the 20 Under 40 anthology here.

Editors Note: Oops, I forgot that I had promised to hint at three more key trends that I didn't cover in the book. This last bit was added after my original post:

I didn't have space in the chapter to cover the 10 things I think are vital changes. Here's the final three:

8. Diversity - The US is much more diverse than its current cultural marketplace. Arts organizations pay lip service to diversity all the time, but not enough is being done and audiences are changing and expect more options.

9. Global - We are a globally interconnected society now. I have more in common with people who share my tastes and cultural interests in Iceland (or Kenya, or....) than I do with my neighbors. Arts organizations need to think of whether they serve a global audience (not all will) and how they can do this more easily. Corporations ignore the state now, and perhaps so should we. In addition, we learn about and expect to interact with more global culture.

10. Remix - It's not just for music and video. Remix as a concept is seeping into other areas of culture and needs to be explored, encouraged and embraced by more arts organizations.

Bonus 11. Mobile - Ok, this one is obvious. Do I need to explain further?

Downsized and Merged - Trend 1 of 7 for the Future of the Arts

This is part two in an ongoing series of posts on 7 Trends for the Future of the Arts. Originally published (and partially reprinted here with permission of the publisher) in the book: 20 Under 40: Reinventing the Arts and Arts Education for the 21st Century. I'm presenting selections from each trend, and you can follow the whole post series from here. If you are interested in these arguments, check out and think about purchasing the book here.

Trend One: Downsized and Merged

The economy continues to bring bad news to the arts sector, but the real news is that is isn’t going to get better. The budget battles we see now in the US are only just beginning (and are spreading globally, but that’s another conversation). Already, state governments, and the IRS, in search of increased revenues are contemplating vast changes to the benefits of nonprofit status, and many foundations have had to curb support for such supposedly “non-essential” activities as arts and culture due to declines in their endowments. While many may agree that such cuts wouldn’t be necessary if it weren’t for specific policies being pushed to shrink government (such as tax cuts to the wealthiest few), the fact remains that such cuts are likely to continue.

In addition, digital technology fundamentally changes business practices, and is downsizing once large industries rapidly. Craigslist upended the entire business model of the newspaper industry, effectively downsizing an entire $1 billion sector to one $100-million company. We are seeing this now in other cultural industries, and we’re also seeing more companies avoiding state taxes by being entirely web based. The resultant decline in tax revenues from these shrinking sectors will greatly limit the ability of government to maintain minimum service levels, much less support the arts (regardless of whether this is the correct argument, it is what will be used), and foundations will look to pick up the slack from government – also at the expense of the arts.

As government and foundation revenue shrinks, arts institutions will increasingly look to earned income, but fundamental shifts in consumer behavior make this a challenging arena as well. Consumers have less overall spending power, and more options for their cultural and entertainment experiences. As consumers increasingly find their content online, they expect to find yours there as well, watching your performance online instead of attending it live. While this itself can be a revenue stream, it is also one where consumers expectations are for free and/or cheaper access, meaning online profit margins will likely be lower than any reduction in overhead costs. As these stresses combine, the nonprofit arts sector will likely have to rethink business practices, and contend with radically different economics.

Unfortunately, it’s not a stretch to say the nonprofit arts sector looks like a field of zombies—undead, potentially harmful shells of their former selves, haunting the landscape, unable to live or to die. Quite simply, funders, board members, and leaders in the arts need to take a hard look at reality and make some painful decisions. More organizations need to merge to save costs, end duplicative services, and achieve greater impact. Many more organizations need to be shut down entirely, having either served their mission well or having long ago abandoned any real hope of having a meaningful impact. These conversations aren’t easy, but they need to be had on a field-wide level. Even those organizations that are healthy enough to survive will need to consider downsizing their costs and refocusing their energies as the dwindling support for the cultural sector is likely a permanent shift away from robust public, foundation, and individual financing of the arts.

A thinned-out and downsized nonprofit arts sector is probably inevitable and may actually bring greater good. Strategically downsized organizations will more readily make this transition and might create more sustainable arts businesses. Mergers are often thought of as drastic measures to cut expenses or end duplicative services, but they can also be planned for to better prepare organizations to face new economic and cultural realities, fill strategic gaps, and lead to new programming and greater services.

Of course, downsized organizations will only become stronger, remain competitive, and possibly lead change through rigorous planning. Yet, these conversations are being resisted at precisely the time they need to be had. I explore some ideas for such change in my chapter, and there’s a lively discussion online now, sparked by NEA Chairman Rocco Landesman's recent comments on "Supply and Demand" (that's #supplydemand) and I gave my thoughts here. Love to hear more of your thoughts on this in the comments below.

In my next installment, I’ll speak about the rise of both for-profit and what I call with-profit endeavors in the arts.

Save the NEA

It's that time again, when we get to play another round of "Culture Wars: Extreme Nincompoop, Edition X." That's right, you thought that we were done with the cretins who think the arts are a bunch of fluff and that they shouldn't be supported by tax payers money, but we're not. They were just napping, folks, and the culture war still rages.

I'm not going to explain why the arts matter, how little of our money goes to support the arts, how they finally have a rocking staff in place at the NEA or any of those things. I'm assuming my readers aren't dumb (try getting that respect from the regular media) and that you're up to speed on such matters, but perhaps have been so consumed keeping track of the revolutions going on in the Middle East via Al Jazeera English that you have missed the latest developments. That's the only reason I can think of for why we're not hearing more about this from the arts community. Hmmm, what's going on here.

Okay, anyway, here's the quick and dirty: Many State arts agencies have been recently cut - yes, entirely - in a few states and a few more are rumored to be following shortly. Now, the Republicans are threatening to eliminate the NEA entirely (and CPB) from the budget. Yes, it's true. You can read about it here and get active here (just don't expect a hip website or interesting campaign, mind you). I'm also linking some text Sundance sent out about it below.

You should care, you should get active, but I think we need to do more. I'm worried, however, that we can't or won't have much real impact, even if we keep their funding. I've been arguing that arts organizations need to prepare for this for quite some time, and I even wrote a chapter about it recently. I've suggested the field needs to make radical change, because such cuts aren't going to stop. I believe this strongly, yet I consistently get responses back from otherwise rational beings that I am supporting the Republican's arguments by calling attention to these problems and arguing we should change our business models. Good grief people - pointing out reality is not supporting their arguments, it is being practical. Part of that realism involves noticing things like the fact that when Obama came to office he appointed a big, gigantic brain trust of arts people to suggest policy changes. They recommended big things. Nothing happened. It means realizing that if Americans for the Arts only has an email campaign list of 50,000 people (thanks Leonard), we're in serious trouble. It means that everything we've done in terms of advocacy for the arts has largely been a waste of time.

We need more creative responses. Perhaps we need to put the artists in charge for once. Perhaps we need to recognize that not only do we need to rally and support the NEA, but that culture might just be the only thing that can pull us out of the continuing malaise in this country (you know, the one everyone but Wall Street is still in) and will definitely be the only thing remembered about this country when we're no longer relevant (I give that about 50 years, if it didn't pass 5 years ago....).

Yes, that's why the Republicans want to kill art - because it truly matters more than any of their bloviating nonsense. So, I'd really like to hear some good ideas for how to change the conversation. How to win this war. How to get a video about the need for the arts to go as viral as some kid biting his brother's finger. How to get a Kickstarter campaign started for a new, true Endowment for the Arts untouched by the grubby hands of either party.

That would be pretty cool.

In the meantime, listen to Keri Putnam of Sundance and do the following (from her email blast):

"

What you and I can and must do:

1. Call your member of Congress NOW at 202-225-3121 and tell your representative that you oppose any and all amendments to cut NEA funding.
   
   If you are uncertain as to who represents you in Congress, click here.
   
   Remember! Congress is made up of ELECTED officials. They are there to represent us.
   
   
2. Share this email with your friends, family, neighbors, colleagues... everyone.

On behalf of the staff, alumni and Board of Trustees of Sundance Institute, and artists everywhere, thank you for taking action."

11 Things on My Mind for Twenty11

photo © 2009 Karola Riegler | more info (via: Wylio)
It’s that time of year when everyone makes their top ten lists, and I’ve done it before and am adding my 11 cents here now. I could just paste in last year’s list below, as all of them are still relevant, but that’s too easy...except for number 1, policy. Unfortunately, this one is much the same as last year, so to make up for this repeat, I’m giving eleven thoughts here. Most of these aren’t predictions, but are instead just a few things I’m thinking about as we head into the New Year.

1. Will the film industry start to take policy seriously? I doubt it. Policy turns people off, but if we don’t pay more attention and get active in these debates, the possible future for indie film might get turned off. It’s hard to imagine a world where the internet no longer works like it does now, but take one look at this graphic of what the industry wants and you quickly get a sense of what could become of the internet. This will be the year that this story gets framed to the public in a big way. The Right is already trying to paint the FCC’s recent ruling as “regulating” the internet. Filmmakers are story tellers. We need better stories about why this issue is important. There’s quite a role here for creatives, and I hope a few of them take this issue head-on in 2011.
2. Will Apple become a rights-broker? When talk turns to Apple these days, it’s usually about the Ipad, and when it might come to Verizon. What interests me more is this excellent interview with Michael Whalen about their purchase of a huge cloud computing facility down in NC, and what it might mean for the future. It’s becoming increasingly clear that ownership of content isn’t as important as controlling the experience around content. Apple is already doing well with consumers accessing content. They could also handle rights licensing pretty well - imagine if any artist could post their content (film, music, writing) and set terms and publishers and others licensed that content through a system built by Apple - in the cloud. As Whalen says in the article about their possible plans "What if iTunes or whatever AAPL calls their new streaming service is broken into TWO parts - the actual delivery and streaming of the programs, etc. and on the other side - - the administration of the copyrights in the digital realm including collecting fees and licenses from OTHER PLATFORMS." While this isn’t talked about much, it’s an interesting theory and worthy of some speculation.
3. Which indies will embrace the prequel? I’ve been speaking for a long time about how filmmakers can use short video as a way to build interest in their films before the film is released. Karol Martesko-Fenster has put a name on it with the idea of the prequel, and you can see a great example of how it can work for a documentary film with Bengali Detective which is premiering at Sundance. Lots of room here for other formats - building up certain characters or plot points in a narrative film, for example, and a great way to build audience.
4. Which indie transmedia experiments will succeed? A lot of indies are starting to experiment with developing their story across multiple entry points. Lance Weiler has a transmedia project premiering at Sundance and another in the works (or maybe several). Liz Rosenthal and Tishna Molla are pushing the field forward by holding excellent conferences and labs with Power to the Pixel, and rumor has it some other big entities are getting into this soon. Wendy Levy at BAVC is helping filmmakers learn more about it as well through the BAVC Labs. I don’t think 2011 will be a big year for transmedia - it will probably start gaining more momentum in both indie and Hollywood circles (and elsewhere), but it will probably be 2012 at earliest before the “big embrace,” but maybe I’m wrong.
5. Who will figure out mobile, social, check-in, rewards and indie film? There’s a few companies operating in this space, but no one has put it together well yet. This will be a gold mine (or three) someday and I can’t wait to see what launches and develops in 2011.
6. Will YouTube figure out what it’s doing? If any company could use a strategy, this is the one. I could give them a million ways to do what they’re doing better. I’m sure you could too. They obviously have the whole mass adoption thing down, but when it comes to working with long form film and changing the distribution paradigm, they need some work. They ran some half-assed experiments in releasing films last year, and have been making some interesting moves lately, but this is probably the year when they need to put up or ....
7. Will film festivals figure out social? Yes, they are all on Twitter. Marketing themselves constantly. Oh, wait, sorry, just constantly as the festival approaches or to hit me up to support some fundraising campaign they’re doing. Film festivals, through their curation, are better positioned than almost anyone to build a better relationship with audiences and help change the indie film paradigm. But only if they take social media seriously and start using it to help me (as an audience member) discover films year-round, and not just the ones they programmed. There’s value in the opinions and curations of your programmers. Lots of value, but only if you get smart about social (hint: see 5).
8. Which trades will die? The last couple of year’s have brought us a whole host of new trades - almost completely online - and some new business model experiments. The problem is, we’re not getting any better information. In fact, if you put a bunch of random people who use the Net in a room and asked them to list the top 100 worst ideas for a film trade journal, you’d find all of them represented somewhere in the mix of Variety, HR, The Wrap, Deadline Hollywood, MCN, etc. (I am missing many here, I know). I imagine Variety will survive, if only because enough of Hollywood will pay for it behind their pay-wall, but it’s long been irrelevant. I actually think the HR strategy to become more consumer focused could have worked, but as it is being executed it’s like they are aiming for Delta Sky Magazine level work. That said, they have some new advertisers that might keep them afloat. IndieWire is in good hands now with Dana Harris (Eugene, who did an amazing job, recently left), and she, and the good crew there, might turn this into something even more interesting. At least one of the others will die - that’s one prediction for this year. I was speaking with a media investor the other day, and we both agreed - this space is ripe for some disruption, and I hope someone launches something new (or redirects course), because man, we need something better.
9. Could someone start a fund for creative storytelling? Yes, I know there’s things like Creative Capital, but what I want is an IMPACT Partners for narrative films with no redeeming social value. Okay, just kidding, I know that all films have social value, and I actually believe that narrative storytelling is a better way to have impact on social issues than through docs, but you get my point. We need funding for narrative filmmakers with good ideas.
10. Who will be the new filmmakers who break through and reach an audience? Who will tell the best stories? While most of this post is about business stuff, what I really like is discovering a new voice, or seeing an established artist go in a new direction, or just stay in a tried and true direction with a great new story. Many of these films won’t make it to a large audience, so I’m also interested to see which ones can break through enough to enter the cultural conversation. From what I’ve heard about many films in development or even premiering this January, we might have a great year ahead of us.
11. Who will launch the next big thing? There’s a lot of people at work behind the scenes trying to build new film companies, transmedia companies, tech companies in this sector and similar new endeavors. I feel like I meet with someone about to launch the next big thing almost every day. Here’s to hoping that 2011 is a successful year for all of them!

note: I corrected the title of Bengali Detective (I had it wrong, as Bombay Detective....oops) and fixed the links.

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.

Creative Rights & Artists

I'm spending this week over at the ArtsJournal Blog Network, taking part in a conversation with 20 other bloggers on artists, culture and policy.  The idea is for us to discuss the following topic for an entire week:

"Arts and culture are a cornerstone of American society. But arts and culture workers are often left out of important policy conversations concerning technology and creative rights even though the outcomes will have a profound impact on our world. Is it benign neglect? Or did we miss an essential call to action and engagement? With a new administration moving full speed ahead on technology and copyright issues, do artists even know what the priorities are? Can they recognize opportunities to make a case for what their work needs to thrive, and how it impacts society? Join us as we examine what exactly does it take to bring arts and culture to the table, and how our field can become more proactive to carve out a more powerful place for the arts in 21st century America"

There's already a fair amount of conversation on today, day one of the topic. I've posted my first thoughts here, and I hope you can join us on the blog and contribute your thoughts. Too lazy to link over? My basic argument, thus far, is that we're not interesting artists in the policy debate because it isn't positioned artfully. Perhaps if we gave artists the tools to create (and some dough), they might create a more powerful message about the importance of arts to policy and vice versa.

10 ideas on the future of the arts (20<40)

My recent post about possible leaders in the arts under 40 (20<40) ended up getting some traction. The idea it was based on wasn't mine, but rather comes from an upcoming book on 20 new ideas by emerging leaders in the arts who are all under 40. I've been selected to submit a chapter, and hope to do so soon. The idea of the book isn't to discuss who are the leaders, but to listen to their ideas about the future of the field.  In the spirit of openness, I submit my idea below for your feedback and advice. The chapter I am contemplating writing (and I have to do it soon) is about some key changes in the arts. Not the most cutting edge changes, mind you, but those that I think will have the most impact in the next few years. These ideas will be old-hat to anyone who thinks about these matters a lot, but I think they bring together some of the more important changes we face in the arts in general - and of course to film, particularly as that's where I work. So, tell me what you agree with, disagree with, think is more important, etc. I promise that I'll consider all responses before submitting my final chapter. So here's what I think:

Can film leapfrog music to success?

Everyone says that the movie industry should not repeat the mistakes of the music industry when it comes to digital. Many argue that we have already repeated these mistakes and continue to do so. I think we need to start thinking about this equation differently. We need to think more actively. The real failure of the music industry wasn’t just to make mistakes, but to not envision the totality of change and respond not according to how it looked on that day, but how things would look 10 years down the road. We need to not just repeat their mistakes, but also come up with solutions that are responding not to where we (and they) are today, but where we’ll be way down the line.

So I propose that we can’t start comparing anything we do until we’ve leapfrogged their current solutions. Until then, we are repeating all of the same mistakes.

For the MPAA, this seems to mean we haven’t succeeded unless we do more than the RIAA did. The RIAA stopped with relatively minor stuff - they try to sue their fans into submission. The MPAA decides it’s going for the jugular and will bypass American and all other laws and work on secret international treaties to rewrite copyright law in their favor.

This is not learning from the mistakes of the past.  It’s just going nuclear.

They may make some major changes, but they will fail at reinventing their model. This is also my main complaint with 3D. It’s not a new response - in fact, the last time the industry felt threatened they turned to 3D to solve their problems. More of the same, updated for today is not a paradigm shift.

In the DIY world, we’re still looking to the music world for answers. We look at what indie musicians have been doing with crowdsourcing, making cool apps to request a band, experimenting with free leading to fee, etc. and try to duplicate them for the film world. These are great experiments, but again, not paradigmatic changes.

Until it’s the other way around - the music world looks to the film world for novel solutions -  we’re still behind. Not repeating the mistakes means leapfrogging them, and until we do, we’re just repeating.

I’m not saying we (film) can’t learn from music folks, or that we shouldn’t be looking for many overlaps and lessons from multiple industries. This is good. But I do think we need to think bigger. All of the things I’ve seen so far look more like band-aids than laser surgery approaches to staunching the bleeding. I don’t know what the “leapfrog solution” is, but I’m thinking about this a lot, and would love your thoughts.

10 Things I'm thinking about for Twenty10

Ok, now I'm on this damn list machine, luckily there's less than 12 hrs left for making end of year lists. I don't have any predictions for film and media in 2010, but I am wondering about a few things:


1. Who will be the exciting new storytellers? 
Who will we be talking about post Sun/Slamdance, Berlin, etc.? I'm always excited to discover new talent, and while there's always great new works by established folks, I can predict with confidence that there will be at least one new discovery this year. But I also predict that like the last couple of years, the new voices I discover won't come from a fest or even a proper film, but from mash-ups, remix, machinima and plain old viral video online. Can't wait.

2. OpenIndie. 
What will it be? I donated to this thing and I still don't completely understand it. But, I have faith that the two folks behind it will make something cool that probably won't change the world (as they hope) but will likely change it just enough to matter.


3. Will fest launches work?
This is the year that many people think filmmakers will really start thinking of festivals as their path to finding an audience instead of finding a distributor. At least one filmmaker is using Sundance as their launch. I can't wait to see how many others do this and what degree of success they have.

Recommended Reads

There's been a lot of great writing both in print and online (and at times, both) for filmmakers this year. It's late in the year, but I thought I'd give my quick summary of some great titles that I think are required reading for any filmmaker - or any person in the film business, really - and most are good for other artists as well. These are in no particular order, and while I know some of the authors and am quoted in some of these, I tried to be unbiased and stand to make no financial gain. Most were written this year, but some came out earlier (even much earlier) but I just got around to reading them, and near the end are a few that aren't even film/media books but that I still highly recommend.

Open Video Conference Speech

I'm speaking at the Open Video Conference tomorrow, and then immediately boarding a plane for Edinburgh to speak (3 times) at the Power to the Pixel event at the film festival and at a Shooting People event. Then I take some much needed vacation in the Highlands. So, I am posting for all (4) of you lucky web readers, my open video presentation the day before. Wow, look out! it's short, they call it a "lighting talk" ... and it is at 5 minutes.

It's very simplistic, almost like a beginner's powerpoint. It's a style I borrowed from Jenny Toomey of the Ford Foundation, because I was about to present without any slides, but decided a few simple ones could help the flow. Nothing fancy needed here. I'm going to be pretty much ad-libbing about what I see as failures of the open video movement - mainly a lack of attention to the bigger picture, of which open video is just a tiny part. As well as a complete lack of real business models, and an unhealthy disrespect of the "dinoasurs" of old media, who are quite ready to beat the open folks into submission. Don't get me wrong, I'm on the open side, with a dose of realism against the utopianism, but when I looked at the schedule, it seemed like a bit of a love fest in need of a reality check. Here it is, and the Edinburgh ones soon:

Open Video Conference Present.

View more OpenOffice presentations from Brian Newman.

Thoughts on the death of newspapers

Yesterday, I attended a great panel/workshop at Philanthropy New York, an organization of foundations and other philanthropists, on the future of the newspaper. It was titled "Internet to Newspapers - Drop Dead" but that was just the lead, teasing you in for a good discussion. The panelists were a pretty smart bunch -

• Steve Coll, President of New America Foundation, and a staff writer at The New Yorker magazine
• Nicholas Lemann, Dean and Henry R. Luce Professor, Graduate School of Journalism at Columbia University
• Victor Pickard, Senior Research Fellow, Free Press
• Vincent Stehle, Program Director, Surdna Foundation (moderator)

Although I hope they don't represent the future of newspaper's diversity as a bunch of white men (sorry, but this is an ongoing problem on these panels), I do think they had good thoughts on the future. Two of them are well respected journalists, one a leader of a big journalism school, one a leading researcher on the field, one whose organization cares greatly about the future of democracy and one who helps support all of this as a funder and advocate. The audience was a great mix (and relatively diverse) - with journalists, heads of major foundations, heads of newspapers and community leaders, so the discussion was pretty good.

Essentially, everyone seems to agree that good journalism is important to our civil society and to democracy and that it needs to exist. No one seemed to really care if that takes the form of an actual newspaper, or some new type of news organization although it seemed many in the room still like print, they're pretty much over it if need be. There's also pretty general agreement that the model of newspapers is failed. I don't think I have to summarize any of these arguments, as that's all pretty self-explanatory.

What no one can agree upon is a solution, or whether the current solutions being proposed are worth much. The most comprehensive look at possible solutions just came out last week as a report from the group FreePress and is available here as a PDF. I think it's worth a read, because many of the struggles of news organizations are the same as those faced in film. One newspaper owner in the room said that while all media is suffering, the death knell at newspapers is palpable, to which I responded that these fears are just as palpable in the film world, we just don't get to write our own news about it.

While I am greatly simplifying the possible strategies, they seem to boil down to these (mainly from the report, but some from in the room):

1. Allow new ownership structures - this would mainly allow newspapers to become nonprofit organizations and/or low-profit L3C alternatives. No one was saying that every paper should be a nonprofit, but rather that in all other media we have a mixture of both, commercial and non, for profit and non and the tax code needs to allow for this conversion in newspapers. There are some good models already, my favorite being the newspaper I grew up with, the St Petersburg Times owned by the nonprofit Poynter Institute. This would allow newspapers to get certain tax breaks, receive donations and foundation grants, etc. Many people seem to favor this model, but I am not so sure (see below). Senator Benjamin Cardin has introduced a bill that would allow this, so it's getting some traction.

2. Have the government subsidize newspapers. The government would give tax breaks and direct monetary support to the sector. This would recognize their value to our government. While this has big problems - how free would such a press be to report on said government, etc - it's being heavily promoted now and is being seriously considered. It's worth noting that government support isn't actually new - the press has been subsidized in the past, and continues to be - free airwave spectrum to broadcasters, reduced postage for mailings, etc.

3. Give incentives for divesture - this essentially means that you'd encourage local ownership, diverse ownership, and other new structures through structured bankruptcies of dying media. They may actually consider it, because the owner's shares are becoming worthless;

4. Put up a pay wall - The ongoing call for this is ridiculous, but so often repeated that I must address it here. The idea is that you'll pay a subscription or micro-payment for newspaper content. While many are skeptical this will work at all (and the Free Press report addresses these arguments well), it will definitely only work if every newspaper/print/online news org does it at the same time. This means they'll need antitrust exemptions. The newspaper owner in the room felt that nearly every paper could be saved "if only people were charged and would pay a fair price." Yep, that's exactly the dilemma... and thus far nothing has worked.

5. Fund journalism training - Train journalists better with more funding, whether they are writing for a big media company or a little blog;

6. Create an R&D fund for journalistic innovation -this idea is one I like. Essentially, government and foundations, etc would invest in experiments in new models. One major, very major, journalis funder in the room confided that he's tried to get traditional big media companies to experiment, with their underwriting, and none would do it, they're just too resistant to change. But such a fund would allow for more experimentation, and lord knows we need some new models, so this idea is great;

7. Fund new public media - transform public broadcasting by greater investment, so you ensure a robust journalistic environment. No one thought public media was doing a good job, but all thought there was a chance for some improvement.

I was not so sure any of these answers will work. My frank assessment, which I shared with the group is that if these are the best ideas we can come up with for journalism, then perhaps we should let them all fail and just invest in the new folks coming up with supportable models. As someone who runs a nonprofit, I can say that the nonprofit model is seriously broken - I continually preach that what we need more of is for-profit/nonprofit collaboration and thinking, mixing the best of both models. So sure, let's explore some hybrids, and thus the Cardin bill is a good first step, but to think that becoming nonprofit will solve your woes is wrong. If your underlying business model - using news as a way to sell cars - isn't working, then you will just as surely fail as a nonprofit as a for profit. Nonprofits also must make money, they just don't give it back to shareholders. And in case you haven't noticed, foundations are struggling so don't count on them for a bailout. On top of that, there's plenty of bad management in nonprofits, so that won't solve your management problems. Nonprofits must also raise lots of earned income - many now bring in more than 50% through sales - of tickets, tshirts, cookies, etc. So, newspapers will still need to earn a profit from some form of sales (although perhaps ancillary items, not news).

I also don't think going to the government will work so well right now. If we think of the government as the representative of the people, then you've got a lot of funders/public who think that journalism failed them recently in the lead-up to Iraq, and the lead up to the financial crisis, etc. There may be good journalism and journalists out there, but try telling that to a general public that usually rates journalists as just barely above Dick Cheney in the admiration and trust columns. Seriously, passing this by the American public won't be easy. Not to mention all those freedom of the press worries, etc. So, we should try some government subsidies, but only if they support really innovative strategies, not the status quo.

This public support will also lead to a very real question - if good journalism is so important to our democracy, important enough for the taxppayer to help foot the bill through taxes, tax breaks, etc then why do you want me to pay for it twice by then paying a micropayment or subscription? Not that I will, or that anyone likely will, but there goes that business strategy. But this is the real kicker of the whole debate - payment. Real news gathering (not the opinion pages, and the like) is expensive to produce and someone has to pay for it. The industry keeps saying the public must pay, but sorry folks, as much as we want micropayments and subscriptions to work, they just don't.

Advertising has fallen, and it may not even work very well, but this is capitalism babe, and it ain't disappearing altogether. And while people may not pay for your content the same way as before, at the same levels, they will pay for very valuable content. What's becoming increasingly clear is that journalism can survive, and even a new version of a newspaper, perhaps a news organization that uses multiple delivery mechanisms, but it may not make enough to keep a small monarchy system in place. I know that in my field, film, I could easily spend very little money and hire some of the best film writers out there and within months put the leading industry publications out of business just by being more nimble, having low overhead and by being willing to experiment more. I don't have time for that, but someone will soon. The "big media" in film, Variety and Hollywood Reporter, just can't get it right, and have bloated costs from their legacy models. If you can do this in one industry, I'm sure you could do the same for international news. Yes, you'd face the eyeball problem - getting the eyeballs that a New York Times has, but look at how quickly eyeballs have accumulated on many a start-up from YouTube to Twitter. You don't need a printing press, don't need a fancy new building, don't need a subscription team bugging me every day, don't need a network of delivery drivers who miss my delivery half the time, don't need a lot of things. I'm being very simplistic, but you get my drift.

The problems facing newspapers are not unlike those facing film and other content media. We all know the digital problems and possible solutions. But they're also similar in another way - both suffer from some incredibly bad management and inability to change. Many of the problems facing newspapers have nothing to do with digital, they are legacy problems - things like focusing on gossip instead of hard news, declining readership as people have more options, media consolidation that favored less quality work, the fact that haf of advertising doesn't work, and we're learning through better metrics what half that is, etc. Frankly, however, there's been a lot of inertia because in most towns things settled into a system where one paper ruled the day, and if you owned a printing press you could essentially print money. Lots of it. You had no reason to change, no reason to think about the future. No reason to invest in the future. And if you were making money hand over fist on soft news, who cares about the "public good" of good journalism. Now that the economy has, in the words of Warren Buffet, taken the tide out and shown us who is wearing clothes and who isn't, many a bad business model is being exposed.

I obvously don't have all the answers, and I don't expect them to have all the answers either, but this is their industry and someone in it should be able to come up with a business plan that's better than trying to put the genie in the bottle and start charging micropayments for their content. They've tried it before and failed. So if we're going to think of giving newspapers a foundation or government lifeline,then we need new thinkers with better models. I read the New York Times and the Wall Street Journal in print every morning before I start work and I care about good journalism and its importance to civil society, but I don't think we should suffer fools for long. While there are many great employees at many newspapers, there's an awful lot of bad thinking at the top (and I know there are exceptions). So that's why I think the smarter investment in our future is in the start-ups and the more nimble, usually smaller, press around the country. I don't expect all the big media to implode, and don't want some of them to go away, but I do think that the most profound changes will likely be too hard for the big guys to stomach - to embrace those changes, they'll need to undercut their existing model even more. I do think that the crisis is serious enough to warrant some intervention, but like the recent bailout, any such intervention should come with some serious strings attached that ensure that what media survives isn't just more of the same old schlock, but more of the journalism we need.

These aren't my final thoughts on the subject, just my initial ones from yesterday's conversation. Got any good ideas on what should be done? Leave some comments.

Photo Credit - Thomas Hawk

My using new tools 2.0 speeches online

When I gave my recent speech at TAA, several people asked me for links to some of my other talks. Here's a short snippet of the talk I gave in Scotland to Creative Scotland, a new org mixing the Scottish Arts Council and Scottish Screen. The crowd was general arts groups, not just film.


Find more videos like this on Partnerships 2.0


Here's the link to part one of my talk, and you can find all of them (and those of my co-presenters) here. I'm looking forward to a return trip to Edinburgh where I'll be speaking at the Power to the Pixel event at the Festival on June 23/24th.

Open Access Hijinks

Just learned this from Lessig's blog - John Conyers has reintroduced an insanely stupid bill that would outlaw any public agency from requiring that tax payer funded research be made available free. Instead, you'd have to pay a publisher for it. From Lessig:

The Huffington Post is running a piece about H.R. 801, the latest version of John Conyers' awful idea. The law would forbid entities like the NIH from requiring that recipients of government grants make the product of their research openly accessible. (The current practice requires articles be freely accessible after 12 months.) Instead, Conyers' proposal would require that after the American taxpayer has paid for the research, the American taxpayer must pay publishers to get access to the product of the research.

The first important word to emphasize in the last sentence is "publishers." For unlike the ordinary market for creative work, here, the author isn't paid for his work through the copyright system.

This is a ridiculous bill. The simple reality is that the science publishers aren't needed anymore. Of course, no one likes to hear that their jobs aren't needed, and this group is smart enough to run to Congress and try to pre-empt technology from changing their business. This isn't directly related to film, but I'm pretty passionate about the need for open access to educational resources, especially those funded by taxpayers. I'm also pretty sure that what happens here will impact what can happen in the future with access to films. So, for example, the movement to make fully-funded PBS films available to the public for free could be made illegal by a similar act.

Anyway, if you care about this, you can find more info at the Open Access News blog which also tells you how to take action.

Delusions of net neutrality

A mathematics professor at the University of Minnesota, Andrew Odlyzko, has a pretty blistering critique of Internet Service Provider's (ISPs) arguments against net neutrality and about their love of streaming over download. It's worth a read of the abstract if nothing more - his paper, The delusions of net neutrality (caution, links to a pdf) destroys many a myth of the internet and video. Having been to many a conference lately where the best minds in the room can only imagine the internet making a better tv, I appreciate some astute analysis of the reality.

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.

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.

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.

Film Rules Reconsidered

This just in - the NYTimes reports that the Mayor's Office of Film is reconsidering the rules they proposed, and will reopen the comment period. Kudos to Picture NY, Jem Cohen, NYCLU, IFP and all the others that worked on this - and special kudos to the Mayor's Office who did listen. Let's work with them to come up with something better.

Picture NY and Grassroots Advocacy

Plenty has been written (as well as broadcasted) about the new group Picture NY, which formed somewhat spontaneously in response to the misguided NY Mayor's Office restrictions (links to PDF) on free speech by proposing new rules covering filming and photographing in the city. You can read all about it elsewhere.

What I find most interesting, and inspiring, about all of this has been the way that NY filmmakers came together, without any established group taking the lead, to protest this nonsense. I've written a lot about the death of AIVF and what it means for advocacy, and this is a perfect example of something AIVF would have taken the lead on in the past. It's great to see that when it really matters, some good old grass-roots organizing can make a difference. In about three days, Picture NY has been able to raise over 7,000 signatures on their petition (this is as of Sunday at 2pm). That's astounding. More than 400 people showed up in Union Square for their protest (and this during the Simpsons movie premiere!), and they may actually make real changes to the rules.

I attended the beginning of the rally on Friday (...there was that Simpsons movie), and I was really enthused by the energy. I saw many familiar faces, and was quite proud of Jem Cohen, whose email really helped kick this campaign into action. While I am aware that some organizations are working behind the scenes on this issue (IFP being the leader in this regard, kudos to them), their efforts pale in comparison to this grass roots advocacy, and this shows that filmmakers do care about policy concerns after all, especially when it affects such fundamental issues. I look forward to seeing whether this group leads to something more.