When The Movies Get It Right: Probable Cause and David Fincher's Zodiac

[Originally published June 1,  2013. Since today is the 10th Anniversary of the release of this classic crime film, I'm re-upping it. Enjoy!]

When Dirty Harry opened in 1971, it became a box office success and critical darling. It solidified Clint Eastwood's rising star and proved that gritty cop dramas like Bullitt, and The French Connection were legitimate sources of entertainment to a world that grew tired of psychedelic, experimental, 60s era musicals and comedies. The film was very loosely based on the real life (and in 1971, still ongoing) Zodiac murders; likewise, Eastwood's character was based on the police officer assigned to track down the Zodiac, San Francisco Police Inspector David Toschi. Dirty Harry ends with Harry Callahan getting the drop on the film's villain, Scorpio, in a San Francisco junkyard where Eastwood delivers his famous "do you feel lucky" speech. Then he blows Scorpio away with his .357 magnum revolver... a gun so powerful it can carve a hole in solid concrete. Of course the real Zodiac never got to be on the receiving end of such rough justice and Dave Toschi retired in 1983 having never arrested the most famous unknown serial killer in American history.

Dirty Harry has many charms: an iconic antihero, one of the great movie quotes of all time, topical relevancy, and a well-staged, taughtly paced finale. But it was a hit precisely because it allowed the American public to get closure on a national terror that would never resolve. For that same reason, the film left me cold. As you already know, I'm a big supporter of verisimilitude in film. I don't believe that filmmakers need to sacrifice reality on the alter of drama. And while I understand why the filmmakers of Dirty Harry killed off Scorpio, I don't have to tell you that gunning down the bad guy - even if he deserves it - is pretty shoddy police work.

That's why David Fincher's epic crime film Zodiac - a richly detailed chronicle of the Zodiac case - is one of my all-time favorite films. It understands to its very core what good police work is and how good policemen investigate crimes. About halfway through the film, Toschi (played in a career-making turn by Mark Ruffalo), exits a policeman's only screening of Dirty Harry, after years of being stymied in his investigation. Toschi is so torn up about his inability to catch the Zodiac and the movie's unabashed twisting of the truth that he can't watch the whole thing... he just paces and smokes in the lobby. When the movie lets out, the police commissioner approaches him and says, "Dave, that Harry Callahan did a hell of a job closing your case!"

Toschi's response: "Yeah, no need for due process, right?" Zing!

You see, everyone gets due process in this country. Everyone. Regardless of age, race, gender, sexual orientation, national origin, ethnicity, class, or any other category you can devise. Killers, rapists, thieves, and bad men all still get due process because it's written in the Constitution, the highest law of the land. Due process can mean a lot of things, but in the context of a criminal case, it means that you can't be punished without a fair trial and a proper investigation. And to conduct a proper investigation, police need to investigate clues, gather evidence, and then make arrests based on that evidence. That evidence, if properly gathered, catalogued, and analyzed, results in Probable Cause, a foundational element of criminal investigations that allows an officer to make an arrest based on that evidence. You can't make an arrest without Probable Cause and if you do, the suspect will be freed before you can say "kicked off the force."

To drive that point home, Zodiac shows Toschi and his partner Bill Armstrong investigating Arthur Leigh Allen, a very promising candidate for the Zodiac. Allen had been implicated by a former coworker for saying things that later showed up in the Zodiac letters. Allen had the same glove size, boot size, and general appearance as the Zodiac. He owned the same types of guns, had the same military training, lived nearby one of the Zodiac victims, and even owned a Zodiac brand watch with the infamous crosshairs insignia that the Zodiac killer signed his letters with. But despite eliciting high interest from the police, Allen was never arrested. How can that be, you might ask? Because even though there was an abundance of evidence, it was all circumstantial - in other words, the evidence was  highly inconclusive, no matter how suggestive it was of Allen's guilt. In order to justify a probable cause arrest that would stand up to judicial scrutiny (i.e. not get thrown out of court), they needed something much more concrete to tie Allen to the Zodiac killings. That's why the film kept harping on DNA and handwriting samples (the Zodiac hand wrote nearly all of his letters). And when they got both from Allen, they didn't match the Zodiac.  The film takes great pains to show us Toschi and Armstrong gathering evidence, going through the motions of getting a search warrant to Allen's house. They fail because, according to proper 4th Amendment procedures, the evidence to get a search warrant issued had to be based on probable cause, which the issuing judge didn't believe existed. They do finally get the warrant when Allen moves to a different jurisdiction with a judge who is willing to issue the warrant. The scene where they toss Allen's trailer is one of the creepiest scenes in the film.

Toschi and Armstrong believed in Allen's guilt to such a degree that when they're told that Allen's handwriting isn't a match for the Zodiac, they're visibly destroyed. Toschi's career takes a nosedive (at one point, he's suspended from the force after being implicated in the news as the writer of some of the Zodiac letters. He was later exonerated) and Armstrong transfers out of the department. Without the handwriting match, they don't have probable cause, and without probable cause, there's no arrest, and without the arrest, they can't investigate Allen further. The case hits a dead-end. And rightfully so. Allen may have been the killer, but there just wasn't enough evidence to get him in front of a judge.

Do you know what Toschi and Armstrong didn't do? They didn't follow Allen against their Captain's orders. They didn't bug his phone without a warrant. They didn't catch him in the act and gun him down after a dramatic chase.

One of the things that makes Zodiac a great film is that it eschews a lot of the easy choices that screenwriters make when adapting from real events. Often, screenwriters will eliminate, compress, or invent characters and events to suit the narrative structure rather than be truthful to reality. But that didn't happen with Zodiac. The film takes time to explain what probable cause is, why it's important, and why Toschi's and Armstrong's case against Allen dies on the vine without it. Later in the film, when cartoonist Robert Graysmith picks up the investigation on his own, he's instructed by various law enforcement officials, including Toschi, to stay away from the circumstantial evidence and stick with the DNA and handwriting samples because they're concrete and will hold up in court. The rest is just window dressing.

The film treats police procedure with respect, it treats cops and their investigative methods with respect. It doesn't take the easy way out, and it knows that you can still build drama and tension without twisting reality. More than that, it understands why due process is important and why, sometimes, you have to let the bad guy go if you want to honor the Constitution.

Apple Announces New iPhone, Smartwatch, and The End of Personal Privacy

Last Tuesday, we all sat glued to our twitter feeds and livestreams as Apple wowed us with the iPhone 6 and 6 Plus and the Apple Watch. But if you paid close attention, you may have noticed that Apple didn’t just grace us with some fancy new baubles. They announced a third big reveal… every iTunes account holder was given a free copy of U2’s new album Songs of Innocence. I think Apple was hoping that everyone would be like “Oh, some free stuff. Free stuff is great. Thanks Apple!”

Instead, everyone freaked the hell out because while it was intended to be a nice gesture, it actually said a lot about how Apple (and every other tech company and even the government) views our right to privacy. Namely, that it doesn’t. The problem, of course, isn’t that Apple gave everyone a free copy of a new U2 album (which I’m sure is perfectly fine). It’s HOW they did it. They could have given iTunes users a link to the free download, but instead they went ahead and automatically downloaded the album onto your iPhone and iPad!

Just to reiterate. Apple downloaded an album onto your phone without your consent. If you haven’t already, go ahead and check your phone. I’ll wait. You should see a screen that looks a lot like this:

If you’re like me, you didn’t put it there. This intrusion concerns me because it's such a brazen statement about the state of privacy in this country. Between Facebook’s repeated privacy grabs and manipulations, and the NSAs long-storied collection of personal data, our individual privacy has been under aggressive assault for some time. This is just the latest - albeit a mostly benign - example.

Americans heavily prize their privacy, which makes it ground zero for parties that view individual privacy as a barrier to financial ascendancy or homeland security. These parties use the contentious legal status of privacy as leverage to intrude into your life without your consent. And believe it or not, privacy is a contentious issue... In fact, the Constitution does not mention privacy as a given right. Our modern understanding of the right to privacy is implied from other rights, specifically the 1st Amendment (right of belief), 3rd Amendment (privacy of the home), 4th Amendment (privacy of person and possessions), 5th Amendment (right against self-incrimination), 9th Amendment (no denial of other implicit rights), and the liberty clause of the 14th Amendment.  These amendments all touch on privacy in their own way, but never address is explicitly. The Supreme Court calls these implications “penumbras” and “emanations.” That is, the right of privacy implicitly emanates from these other rights. And I think that lack of explicitness is why privacy is always a moving target.

And let’s face it, as a society, our sense of privacy (and it’s inextricable little brother, consent) is always shifting. A few weeks ago, the iCloud accounts of Jennifer Lawrence and other celebrities were hacked and their private nude photos leaked. When the photos were taken down from various sites, a cry rang out from certain corners of the internet who believed they should have access to those photos even though they were always intended to be private.

So I ask you, is privacy a relic of the 20th century? And if not, what can be done to curtail its utter demise? No one should be forced to own something just because it’s free, but soon enough it may not even be an option.

Don't Throw Out The Baby With The Bathwater: Changing Laws, The "I Have A Dream" Speech, And Copyright Policy

This Wednesday is the 50th anniversary of Martin Luther King's "I Have A Dream" speech. If you're like me, then you've probably seen snippets of that speech a hundred times, but never seen the full unedited version. That's because the speech is protected under copyright law until 2038, and anyone who copies, distributes, shares, or posts a video of the speech online will be violating copyright law and will legally owe restitution to the video's owner... Sony.* [Like when Sony ordered advocacy group Fight For The Future to remove the video from its website.]

Am I the only who thinks this is terrible? What kind of policy allows a major corporation to sue someone who wants to share with others THE ICONIC CIVIL RIGHTS MOMENT OF OUR TIME? Who is this policy protecting?

You may have noticed that I'm pretty vocal when I think changes should be made to U.S. policy, specifically copyright law. As a result, I've been accused several times of pursuing a "throw out the baby with the bathwater" agenda. But that's not really accurate since I've never called for scrapping laws wholesale. I have, on the other hand, advocated for revising laws that don't work as intended. I personally see advocating for better and smarter laws as my duty, not just as a lawyer, but as an American citizen (which, not so ironically, was kind of the point of Dr. King's speech).

And what's wrong with supporting change anyway? Not to be overly dramatic here, but America was founded on this whole idea of "it's not working out, so let's do something better." We went to war with England because we didn't like the way they governed us. We constructed a republican system of government that permits us to remove and replace politicians we don't like. We gave Congress the power to revise, update, and repeal laws because we recognized that people are imperfect and they will pass imperfect laws. When a law doesn't achieve its goal, it should absolutely be amended. The U.S. Copyright Act alone has been amended at least 10 times since 1790.

I keep saying it, but it bears repeating: copyright law wasn't created solely for the purpose of rewarding the artist. It was also designed to foster originality and ingenuity for the betterment of society (the founding fathers didn't measure capitalist success purely through personal wealth. Community prosperity was also a driving factor) and to shield artists from theft. It wasn't intended to be used as a weapon to attack others. Which is why the problem isn't that Sony owns the copyright to Dr. King's speech; the problem is what it can do to harm individuals who wish to share it. Simply put, Sony has the muscle and will to litigate against anyone who posts the video, regardless of the intent of the individual or their ability to fight back. And I don't think that's right.

In that spirit, here are two ideas that I think will be effective in revamping copyright law to better serve the American people.

1. Shorten the term limits on copyrights. Yeah, I've talked about this a lot. That just shows you how much I care about this issue. Copyright law was not designed to allow copyright owners to make money off a work in perpetuity. In fact, under the Copyright Act of 1790, copyright terms were set by the founders for a mere 14 years, specifically to prevent perpetual ownership. By shortening copyright terms, major corporate copyright owners such as Sony won't be able to bully individuals when they share something as innocuous and educational as Dr. King's speech. You can read a more complete take on that here.
2. Create exemptions in our copyright laws for works that hold special historical significance. The "I Have A Dream" speech literally changed lives and shaped events in the 20th Century. Yet under our current copyright law, it's treated like every other work of artistic expression. A work of such historic stature shouldn't be owned by any one entity. It belongs to all Americans in the same way the Declaration of Independence and the Emancipation Proclamation do and it should be available to everyone, free of charge.

Change is in our national DNA. History has borne that out repeatedly, so why fight it? Dr. King believed that. Who are we to assume differently?

*****

* Dr. King himself owned the copyright and even sued to prevent unlawful reproductions of the speech so that he could distribute profits from it to civil rights causes. After his death, the copyright passed to his family, who sold the copyright to EMI in 2009. EMI was purchased by Sony in 2011.

Death of the Unpaid Internship, Part 2: Black Swan's Revenge

Two weeks ago, my wife and I were driving home from an unsuccessful apartment hunting trip.  In an attempt to get my mind off the stress of looking for a new home, she asked me what I thought about the recent ruling in the Black Swan internship case.

For those who don't know: Eric Glatt and Alexander Footman, two interns who worked on Darren Aronofsky's Black Swan sued the film’s distributor Fox Searchlight, claiming that the company’s unpaid internship program violated minimum wage and overtime laws.  They argue that they were wrongly classified as unpaid interns when they should have been paid employees.  Well about three weeks ago Federal Judge William H. Pauley III ruled in favor of Glatt and Footman, stating the two should have been paid for their work, and the failure to pay them was a violation of the Fair Labor Standards Act (FLSA).  In his opinion, Judge Pauley said that Glatt and Footman

worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training. The benefits they may have received - such as knowledge of how a production or accounting office functions or references for future jobs - are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer. They received nothing approximating the education they would receive in an academic setting or vocational school. 

Which essentially means that Glatt and Footman did not fall under the federal definition of "intern" and should have been paid as employees as a result.  Judge Pauley went on to say that even though Glatt and Footman knew what they were signing on for, the FLSA

does not allow employees to waive their entitlement to wages.... An employer is not to be allowed to gain a competitive advantage by reason of the fact that his employees are more willing to waive [FLSA claims] than are those of his competitor.

You can read the whole decision here if you like.  It's a pretty big deal and I'd be lying if I said I didn't make a celebratory fist-pump when I read the news.  [For the record, I'm only talking about internships taken by non-students, not educational internships, or volunteerism/ pro bono work]. I've made it known in the past that I'm no fan of the unpaid internship for adults who are no longer in college, which is why my wonderful and patient wife didn't bat an eyelash when, stressed out from looking at a string of ugly apartments, I snapped back, "Any company that refuses to pay employees for their work doesn't deserve to exist!"

That's a pretty militant proclamation and having some distance from the heat of the moment, I've decided that I support the content, even if the delivery and word choice don't properly communicate how I truly feel.  I shudder at the idea of being labeled an anti-corporate socialist (although I'm sure someone will accuse me of it), so allow me to clarify my stance.

1. Unpaid internships for non-educational purposes are bad for employees because experience cannot pay the rent.
2. Unpaid internships for non-educational purposes are bad for the market because they force entry-level workers to work for nothing, suppressing wages for everyone up the ladder, and thus reducing taxable and spendable income for workers.
3. Unpaid internships for non-educational purposes are bad for our culture because they perpetuate the [absolutely wrong] belief that being taken advantage of is somehow the same thing as "paying your dues."

When a company elects not to pay an intern while profiting off his or her work, that tells the world that it's okay to get something for nothing, and that's not how capitalism is supposed to work.  I know first-hand what Glatt and Footman have gone through, taken advantage of and then cut loose.  The last time I wrote about this, a friend asked me if it was okay to accept an unpaid internship in the same industry she had already been working in for several years.  She had just moved to a new city and was concerned that she was an unknown commodity in her new location, despite her years of experience.  To her, the unpaid work would be a good way to break into the industry in that city and build a name.  While I understood her thought process, I strongly disagreed with her and told her to hold out for actual paying work.   To me, her willingness to go without pay signaled something rotten about how exclusionary our industries have become (especially the glamour industries like entertainment, publishing, and fashion), even to people who have experience within those industries.  Here is someone with six years of direct expertise in her field, who has skills that are immediately transferable and applicable, yet she felt that her only recourse was to start over from the bottom, as if she were a 19-year old freshman.

The longer I think about it, the less flexible I become on the matter.  Are there ever good reasons to accept unpaid work?  I'm sure someone will argue that building a reputation at the beginning of a career is a worthwhile excuse.  A few months ago I might have even been convinced.  Obviously every free-thinking adult should consider all the options before committing to a potential income drought and weigh those options based on the facts of each individual situation.  But looking at it from the macro view, I find those arguments unconvincing in the light of Judge Pauley's ruling - I personally believe you're better off finding a mentor and/or developing your own projects... you're going to be unpaid anyway, might as well develop some entrepreneurial skills while you're at it.  That's why I align myself behind the FLSA standards (found here) and feel comfortable stating categorically that unpaid internships are only acceptable when done for college credit and in conjunction with a legitimate educational institution.  The rest of the working world is starting to catch up too.  Two weeks ago, three former interns sued Gawker Media for violating the FLSA, and a few weeks before that, a former Condé Nast intern sued the company for paying her $1.00 an hour under its internship program.  Hell, one law firm is specializing in these Fair Labor internship cases by identifying individuals who held unpaid internships and reviewing the conditions of their employment for possible wage-and-hour violations.

So this is all good news right?  Well anything is possible.  It's certainly possible that the Black Swan case and all the subsequent unpaid internship cases might cause a sea change in the way employers run their internship programs.  It's possible that they'll start paying interns for their work.

But I don't really think that's going to happen.  My fear is that the current system will just continue to lurch forward in spite of the Black Swan ruling.  Or worse, companies will strip out any real work or educational opportunities and relegate interns to picking up coffee, dry cleaning, and lunch orders.  Lord knows there are enough people out there willing to bet that an unpaid internship is a lesser evil than complete and utter unemployment... I can understand that.  But the system only changes if we all make the commitment together.  I hope Glatt and Footman's win is the beginning of that change.

Protecting The Brand: Beyonce Knowles vs. The First Amendment

Remember when Beyoncé performed during the Super Bowl halftime show and this hilarious meme-birthing picture was taken?

And then she flipped out and tried to have it scrubbed from the entire internet?  Well, three months later and Queen Bey is back at it.  She's currently on her Mrs. Carter Show World Tour and she completely banned outside photographers, while releasing only pre-approved flattering pics to various news outlets.  Beyoncé's goal  is to have total control over her image, so instead of newspapers and websites running photos of her looking like She Hulk, she'll instead look like this:

Reasonable minds can argue whether the kind of control she's attempting is even possible in the internet age (hint: it isn't).  But I'm more curious about the effect that this kind of totalitarianism will have on her brand.  The conventional wisdom is that Beyoncé isn't doing herself any favors by limiting press access to her and having relentless control over the pressers that do get access.  On the face of it, it makes her seem out of touch with reality.  But is that harmful to her brand?  I'm not so sure. The people who love Beyoncé are already convinced of her beauty, talent, and semi-royal status and are willing to write off the unflattering pics as aberrations.  And the people who don't love her?  Well they certainly won't be convinced by these autocratic methods, but I don't think she's trying to win them over anyway. Beyoncé knows herself and her audience, and as long as they keep her rich and famous, that's probably enough.

I've seen it argued that Beyoncé's grasp on her self-awareness is tenuous at best if she thinks she can control her image to this degree, but I would argue that she's read the situation better than we giver her credit for.  After all, she hasn't sued anyone to take down the unflattering pictures (to my knowledge, she only sent polite email requests to various outlets), and that fact tells me that she knows where the line is between egomania and villainy and she's not willing to cross it.

So my guess is that while this probably won't make her MORE popular, her brand is as safe as any celebrity brand can be.  But I say that with one caveat: she should avoid alienating the press, because they're the ones who can bring about her destruction.  If you've seen Beyoncé in interviews - as well as the remarkably self-serving HBO documentary she directed about herself - it's clear that she is a person of extreme self-confidence.  And the confidence she has in her abilities has driven some of the press to turn on her and lose their own grasps on reality.

In particular, the National Press Photographers Association.  They're claiming that the restrictions placed on them by Beyoncé and her management team is preventing them from doing their jobs, and that violates the First Amendment.   No, sorry fellas.  I understand that you're angry at having your access to Beyoncé cut off, but the First Amendment isn't applicable here.  Constitutional Law 101 tells us that the First Amendment only prevents the federal government (and state governments through a process known as incorporation) from restricting your freedoms of speech, press, religion, etc.  It says nothing about whether a person or organization can restrict your First Amendment rights... because they can!  Behold the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As you can see, not a word leading you to believe that individuals (like Beyoncé!) or corporations (like Beyoncé!) can't place restrictions on the press at events.  In fact, all of the Amendments in the Bill of Rights are there to prevent the government from limiting your rights.  But they apply only to the government.  So while Beyoncé's ban on photogs at her concerts may not be the best PR move, there's no legal reason she can't do it.

When Below-The-Line Goes Over The Cliff: Class Warfare In Hollywood

If you have a friend or family member who works in the entertainment industry, then you've probably seen them change their Facebook profile picture or other social media avatar to this:

This image represents a green screen, a necessary tool for digital visual effects designers, the latest Hollywood sub-industry that's about to fall off its own fiscal cliff.  Most people don't know that Sunday's Oscar ceremony was picketed by members of the visual effects community trying to raise awareness about the financial hardships many in that industry face.  You see, Hollywood studios have basically been involved in a class war against below-the-line talent (like visual effects artists, writers, prop people, production designers, etc.) for some time now.  With movie budgets ballooning past all semblance of reality, many of the studios have started outsourcing the VFX work to cheaper locales overseas in order to take advantage of significant savings in cost and manpower, as well as tax breaks and subsidies.  For the artist who's slaved over a hot computer for years in order to make the physically impossible digitally possible, this relentless "cut costs at all costs" approach has resulted in long hours, poor working conditions, bad pay, no respect, and potential job loss.  Too make matters worse, most of the artists and the companies they work for don't get to participate in any profit sharing if the film is a hit.

When I lived in LA, I interned at two separate digital effects houses, one of them did the VFX for Smallville and the other was finishing up some VFX for Pirates of the Caribbean: Dead Man's Chest.  I saw first hand just what they went through.  Say what you want about the Pirates franchise, but there's no denying that the visual effects were stunning.  I think Davy Jones is the most perfectly realized digital villain ever made because of the blood sweat and tears those animators poured into him for 20 hours a day, seven days a week, for months on end without a break.  When the project ended, their pay was barely better than mine!

Anyway, this above-the-line/ below-the-line rivalry came to a head during this Sunday's Oscar telecast when Bill Westenhofer, a VFX supervisor for Rhythm and Hues, accepted the award his company won for their work on Life of Pi and had his mic cut when he started to talk about the financial difficulties facing his company.  In fact, Rhythm and Hues, the powerhouse FX company behind Babe, Happy Feet, The Incredible Hulk, 300, The Chronicles of Narnia, and The Hunger Games just filed for bankruptcy because it kept getting underbid by oversea FX houses.  It didn't help matters when Ang Lee failed to thank the VFX guys in his Best Director speech and actively undermined the entire VFX industry a few days ago by publicly wishing that visual effects were cheaper.

IO9 has a nice write up here about the situation.  You should also read this piece by Drew McWeeny of HitFix, one of the best film critics on the web today. They explain better than I do why this is important.

As a film fan, this bugs the hell out of me because I want to see quality work made by people who are good at their jobs.  As a producer it frustrates me because I've seen too many people boxed out of deserving financial reward because they weren't powerful enough to fight for their rights.  As a human being and American, it angers me because this schism in the entertainment world pretty accurately mirrors the class war going on in the rest of the economy. And as a lawyer, it incenses me because there are so few legal avenues available for these guys to fight back, even if they are willing.

As a general matter, our current law is somewhere between 10-15 years behind the times; for all intents and purposes it's stuck in 1997. When it comes to protected groups, this country has done a good job legislating to protect people against discrimination based on race, gender, national origin, age, and disability.  But it's clear that Congress does not recognize any class division in this country and thus has no intention to protect class through legislation.  And make no mistake, above-the-line types like executives, directors, and producers are in a wholly separate financial class than the below-the-line talent like VFX artists and writers.  They're the ones living paycheck to paycheck.  They're the ones going without medical coverage so they afford gas to drive their kids to school, they're the ones who never know where the next paycheck is coming from and as a result rent their homes instead of owning because they could lose their job like *that* and heaven help them pay property taxes in LA with no money coming in.  So when the high muck-a-mucks make a decision to freeze out the VFX artists from getting any kind of financial or personal recognition, much like they did during 2007's Writer's Strike, it means that their legal options are few and far between.  In short, the VFX artists don't have any legal rights to fall back on outside of any contractual ones that might have been breached.

Devin Faraci over at Badass Digest (another of the web's best film journalists) suggested that it's time for the VFX artists to unionize, and I like that idea. But Devin also recognized that as a culture we've largely moved past that.  And really, it's not like belonging to the WGA helped the writers in 2007.  So what else can the artists do?  Well, raising awareness and generating public support is certainly key if they want to increase their bargaining power.  But to be honest, I don't really think they have a strong legal challenge here, and that pisses me off.  Our current law is just not adequately designed to help those who earn less than others, and now the VFX artists in Hollywood are going to be the next casualty.

147 Years Later, Lincoln is Still Relevant

[Author's Note: I discuss what may be considered spoilers below, so if you haven't seen Lincoln, or don't want to wikipedia the events surrounding the 13th Amendment's passage, read no further.]

There are two moments towards the end of Lincoln that made me realize why the film should be shown in every high school civics class.

In the first, Lincoln is surrounded by his advisers and they warn him that passing the 13th Amendment at the expense of a negotiated peace with the south is impossible.  In fact, it is tantamount to political suicide. By this point, however, Lincoln is exhausted from all the jabbering and naysaying and decides to put an end to it.  He doesn't want to hear why they CAN'T pass the Amendment, he wants to hear HOW they can pass the Amendment.  He wants to get his way, come hell or high water.  For only the second time in the film, Honest Abe loses his temper and thunders the most quotable line in the movie: "I am the President of the United States of America! Clothed in immense power!" The room goes silent and the point is clear: there is only one item on the President's legislative agenda that matters, passage of the 13th Amendment.

Shortly after, Lincoln goes to meet with the three negotiators hired by Secretary of State William Seward to get the 22 democratic votes needed in the House of Representatives to pass the Amendment. Lincoln not so subtly discusses with the negotiators - played by John Hawkes, Tim Blake Nelson, and James Spader - exactly how to "convince" these democrats how to vote across party lines in favor of the Amendment. Some of those convincing techniques involve bribery, threats, and favors to lame duck congressmen who weren't reelected (one settles for becoming the postmaster of his county).

Taken together, these scenes perfectly encapsulate the thematic bottom line of Lincoln: that politics is about getting things done, even if it means breaking the law to do it. Certainly the film has a lot more on its mind... bravery, morality, how little our political system has changed over the centuries. But make no mistake, Lincoln wants us to see how the sausage gets made, so to speak, and come away with the realization that lawmaking isn't a zero sum game. Just because your bill is righteous and takes the moral high ground doesn't mean it will pass automatically.  It is okay (and often necessary) to do a little evil in order to do a great good. Lincoln certainly believed that during his political life. The 13th Amendment, the largest progressive restructuring of America's social contract, happened mainly because palms were greased, wheels were dealed, and favors doled out... all at the order of the President of the United States (at one point, the vote on the Amendment is stalled when rumors arise that delegates from the south have come to seek a peace. Lincoln writes a note to be delivered to the Speaker of the House denying that such an event has happened... even though it is in fact true.  Lincoln's aide refuses to deliver the fraudulent note. Lincoln smiles, takes the note, tenderly holds the hand of his aide as if to say "I understand", and then gently hands it to another aide to deliver, who promptly sprints back to the Capitol building to deliver it.)

Today, the media saturates the American public with all the ups and downs, and ins and outs of our political system. As a result, we feel like we see a lot about how our laws are passed in this country. We understand that politicians vote along the party line and do not cross the aisle unless they are compelled to do so for a moral reason or because they've been "convinced." Lincoln argues this is indeed the case, but maybe that isn't a bad thing. Lincoln and his supporters have no compunction about buying the votes they needed in a flawed and messy system because they knew that the future of the country depends on the Amendment's passage. And while it's easy to get discouraged by the apparent lack of progress in this country, the film argues that America's system of passing and amending laws is painfully slow by design. It prevents zealots from taking over and changing the nation's social, political, and class structure on a whim. Real change takes a magnanimous effort to overcome the significant political inertia that's built up over time.  The result is this: when that change comes, it's here to stay.

Lincoln knew why the 13th Amendment was so important.  Like a canonball to the gut, it signaled that America was finally on the path towards achieving the heart and soul of the Declaration of Independence: "we hold these truths to be self-evident, that all men are created equal." That's a battle we're still fighting today, but at least we're winning it. Even still, Lincoln doesn't shy away from the messiness of that balancing act. In one scene, he discusses the 'slipperiness' of his interpretation of his powers. In yet another scene, he acknowledges to another character that he has no idea what's in store for the country or it's black population after the Amendment passes. But he knows that this is a battle that needed to be fought, and he was going to use every tool in his arsenal (regardless of its legality) to win that battle.

It's a pragmatic view. It's a realistic view. It's a view that understands morality has a place in politics, but should not get in the way of politics. It is completely unromantic and it cuts against the moral righteousness and manifest certainty we are taught about our country. And that's exactly why it should be taught in our schools. We need to have a much more sophisticated understanding of how our government works. Only then can we get our government to truly work for the people. Lincoln is a masterpiece because it doesn't coddle us and give us the 5th grade version of things. It's a masterpiece because it understands that we can still do great things, even when we do them wrongly.

You Have The Right To Be Paid: Death of the Unpaid Internship

Over the life of this blog I will probably spend a lot of time talking about lawsuits that affect the arts and entertainment world.  You may find some of them boring and some of them engaging.  But even if you decide that talking about pending legal cases isn't fun or interesting, I implore you to pay attention to these two, since they deal with a subject we can all get behind: getting paid for your work.

Last year, Eric Glatt and Alexander Footman, two interns who worked on the film Black Swan, sued the film's distributor Fox Searchlight, claiming that the company's unpaid internship program violated minimum wage and overtime laws.  They argue that they went unpaid, even though they were required to fill out I-9 forms, sign confidentiality agreements and were deemed "employees" covered under workers' compensation laws.  They're now trying to have the case turned into class action.  You can read about the case here and here.  Fox has since amended its program to begin paying interns $8.00 per hour.

Likewise, earlier this year, Diana Wang, a former intern of Harper's Bazaar Magazine filed a suit against the publisher, Hearst Inc., for failing to pay her despite working a full-time schedule (upwards of 55 hours per week).  That case has recently been granted class action status.  Both cases hope to be the death knell for the unpaid internship.

According to Glatt, he took the internship at Fox because he was trying to break into the film business and was told by numerous people that taking an unpaid internship was a necessary stepping stone to eventual paid work.  In fact, due to the Great Recession and persistent jobless claims, unpaid adult internships have been on the rise nationally and have spilled over into a number of industries, not just the glamorous ones like publishing and entertainment.  Glatt argues that unpaid internships are detrimental because "they disrupt the labor market for entry-level workers by forcing people at the beginning of their careers to work for no pay and suppressing wages for people who have been on the job for several years."

I've personally seen the effects Glatt is talking about and he's totally right: entry-level workers get paid in "experience" and mid-level worker pay rates drop to entry-level rates.  When I first started producing television, a producer's day rate was somewhere between $250-350 per day.  As unpaid internships proliferated, producer rates fell to the average day rate of a production assistant - $100-200 per day (for those not in the know, a production assistant is the lowest rung on the entertainment ladder.  The only thing lower than a production assistant is... you guessed it, an unpaid intern).  As a result, production assistant rates dropped and those positions often became filled with interns willing to do the job for free.

This is why I believe the outcome of these cases will be really important:  first, if Glatt, Footman, and Wang win, those victories may stabilize the markets for new and experienced workers alike by preventing drops in wages; second, companies will be forced to scale down their unpaid internship programs or take greater care to make sure they conform to the law (more on this in a bit); lastly, they will validate an area of law that is well established, but rarely gets enforced because so few people are willing to stand up against the companies that employ armies of unpaid interns.  Under the Fair Labor Standards Act (FSLA), internships are considered regular employment unless they meet these six criteria outlined by the Department of Labor:

1. The internship... is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer... derives no immediate advantage from the activities of the intern...
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If the internship meets all six criteria, then the employer is not responsible to pay the intern as a regular employee.  Of course, Glatt, Footman, and Wang are arguing that the criteria were not met and they should have been paid as regular employees. [Side note: as with many of the federal websites, the Department of Labor is a very useful resource for people who want to know if their employer is violating their rights].

I think there is some legitimacy to unpaid internships if there is an actual educational component; mostly as a real-world training tableau for students.  During my first year in Los Angeles, I took 7 unpaid internships.  Some of them were beneficial and I learned a lot.  I was taught how to edit, direct, and produce (sometimes just by watching, but sometimes I was lucky enough to have a mentor who taught me).  More often than not, however, the internships were a flimsy pretext for free labor.  Often, I was relegated to picking up coffee and taking lunch orders.  I frequently used my car to make deliveries and was compensated neither for the miles I drove nor the gasoline I expended.  I once spent an entire month at a Venice-based editing studio and not a single person there learned my name (they kept calling me Marcus for some reason).  I even worked unpaid on a decent-sized film for 96 straight hours without a break.  I did all this in the hopes of making a name and eventually getting paid work.  And while paying gigs did eventually come, there's no reason I had to accept unpaid work to get there.

In the coming months, I'll be working on a project called "The Artist's Bill of Rights," a resource for artists to learn their rights. I don't mind spoiling the First Amendment which is, in my opinion, the most important:

YOU HAVE THE RIGHT TO BE PAID

After all, as an artist, your work is your livelihood, and being paid for your work is a statement about your worth to yourself and to the project.  Directors, producers, and publishers don't work for free; neither should you.  But if the circumstances are right and you are willing to give away your work, you should know exactly what you're getting in return.  Most young artists will take an unpaid internship at one point in their careers and if they do, I hope the information I posted above will help them make smart decisions about what they can expect out of the internship.  And hopefully, if these cases find in favor of the plaintiffs, the days of interns fetching coffee and dry-cleaning without pay are numbered.

The Legal Implausibility of Crimson Tide, or How To Find Drama Within The Constraints of Reality

(Author's note: when I first heard about Tony Scott's death last night, it got me thinking very critically about his body of work.  I've often been a fan and I think that Crimson Tide, Enemy of the State, and Spy Game emerge as a near perfect trifecta of paranoid-intellectual popcorn cinema.  They're action films with a brain.  As I got to thinking about his films and the various legal issues surrounding them, there was one that I couldn't shake, and that is the subject of this post.   Whatever Scott's demons, he was an inventive and visually kinetic director who knew how to direct actors, create tension, and weave propulsive narratives.  He may never be considered the auteur that his brother Ridley was, but his is a voice that will sorely be missed).

About two years ago, in response to criticism that his script for “The Social Network” deviated from the reality of Facebook’s founding, Aaron Sorkin said, “I don't want my fidelity to be to the truth; I want it to be to storytelling.”  It was right for him to say this because the job of Hollywood is to tell stories.  Sorkin and director David Fincher were not, after all, making a documentary about Mark Zuckerberg.  They were telling a story, the driving force of which is drama.  I think that most people generally accept this.  They know that they’re not watching something that is literally true; they understand that when they see the words “based on a true story”, the real story is an inspirational launch-point for what they are about to see and not a word-for-word retelling.  I am one of those people.

But sometimes the demands of creating drama, conflict, and tension distort reality to such a degree that I must fundamentally reject what I am seeing on screen.  This happened to me with the 1995 submarine action film Crimson Tide.

Before I get started with the legal analysis, I want to say first that Crimson Tide is, above all else, a Masters-level course on pacing, tension, and drama.  Any filmmaker who desires to make tightly scripted thrillers should add Crimson Tide to his or her diet.  Furthermore, despite the legal impossibility of the film’s ending, it is still a fantastic yarn filled with excellent performances by Gene Hackman (my all-time favorite actor) and Denzel Washington.  The score, by Hans Zimmer, is what we in the film industry refer to as “awesome.”  Tony Scott's direction is as clear as it's ever been.  Even after what I am about to say, I will still watch Crimson Tide and enjoy the first 111 minutes of its 116-minute run time.

The ending is what we in the legal field refer to as “total garbage.”  The film, as you may remember revolves around a mutiny on board the U.S.S. Alabama, a nuclear attack sub.  The mutiny is led by Denzel’s dashing and popular Lt. Commander Ron Hunter against Hackman’s gruff but respected Captain Frank Ramsey.  During a skirmish with a Russian sub, communications between the Alabama and the National Command Authority are cut off.  The Captain believes that the Alabama has been ordered to fire its nuclear payload, while Commander Hunter wants to wait and reestablish communications to find out if the Alabama has been ordered to launch.  Time, as you might expect, is not on their side.  A Russian splinter group has taken control of that country’s nuclear stockpile and has threatened to launch its own missiles against Washington D.C. within the hour. (I love this movie so much that I just typed the entire plot of the film from memory, not once referring to Wikipedia).

The problem with the movie occurs in the last ten minutes of the film.  The standoff between Hunter and Ramsey ends when a cadre of sailors loyal to Hunter reestablish communications with the National Command Authority and discover that the Alabama has been ordered to stand down.  The Russian splinter group has been defeated by the Russian army and the nuclear stockpile has fallen back into the hands of U.S. allies.  Despite tearing the ship’s crew apart, Hunter has just saved the world from nuclear annihilation.  A few weeks later, Ramsey and Hunter stand before a dais of admirals who chew them out over the mutiny.  Instead of being court-martialed, however, Hunter learns that Captain Ramsey recommended that Hunter be promoted and given his next command at the next possible convenience.  The two men shake hands and literally walk off into the sunset! Pardon my legal jargon, but WHAT THE HELL?!!

Hunter had just led a mutiny aboard a U.S. Navy vessel in a time of war.  I refused to believe that he would have gotten off without so much as a slap on the wrist.  So I looked into it and here’s what I found:

Article 94 of the Uniform Code of Military Justice (UCMJ) states that “any person… who…with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny….” For those who are interested, the provable elements for mutiny can be found here.  I won’t spend this time analyzing whether Hunter’s actions constituted mutiny since pretty much every major character within the film admitted that it was in fact mutiny; For the sake of brevity, I’ll take the film at its word.

What I’m much more interested in here is the punishment.  Article 94 says that, “[a] person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.”  The text of the UCMJ isn’t helpful in determining what factors a court-martial would use in sentencing a mutineer, so I dug around further and discovered that there has never been a documented case of mutiny on a United States naval vessel.  Thus, there is no precedent in the modern era for determining how a mutineer on a U.S. naval vessel during a time of war would be charged and sentenced under Article 94.  Since I'm not a military man, I wanted to get a military perspective on the situation, so I posed this question to my friend and colleague Matt Brecher who had worked in the U.S. Army Judge Advocate General Corps. This is what he said:

“The maximum punishment is death, however [the mutiny] would more likely be punished by a dishonorable discharge and a lengthy prison sentence in a military prison, loss of all rank, and forfeiture of all pay.  Aggravating factors leaning toward life imprisonment or death would include mutiny during a time of war.  However, it may be a defense to such a charge if an order or leadership is unlawful, or if the person committing such act is acting pursuant to a regulation or order authorizing their act.”

Matt goes on to say that, “[g]enerally, if he were actually charged with mutiny, I would expect a General Court Martial (as opposed to a special or summary court martial), meaning that the court is empowered to issue any type of punishment authorized under the UCMJ, including death, life in prison, and dishonorable discharge.  The factors to consider would be the legality of the original commander's actions as commander, and whether there were legal grounds for the "mutinous activity."  This might include the commander becoming unfit for command, but would likely require a naval regulation authorizing his relief."

Surprisingly, Matt does not think that Hunter would be court-martialed for mutiny.  "I would not expect a mutiny charge, but rather a charge of disobeying a lawful order, disrespecting a commissioned officer, and other lesser included offenses.  They would likely each receive a letter of reprimand in their permanent fiche at the very least.”

While reasonable minds can disagree on the severity of the punishment and the type of administrative hearing Hunter would receive, he would certainly have received some sort of punishment.  Just because Ramsey liked the guy and recommended him for promotion wouldn’t absolve him of guilt.

So Scott flubbed the ending in an attempt to give the audience a happy ending.  This makes total sense… when you’ve just put the audience through a non-stop tension-filled thrill ride where nuclear Armageddon was imminent, you understand that the audience needs a catharsis.  But being a film-buff and also a shameless revisionist, I believe such a catharsis could have been reached while still maintaining some semblance of reality.

Obviously, we can’t have Hunter given the maximum punishment (death) because Denzel is our protagonist and we like him.  Furthermore, the final scene demonstrates that Scott was keen on showing that Ramsey developed a profound respect for Hunter because Hunter bucked authority to do what he thought was right – he was his own man. My preferred ending to Crimson Tide ends thusly:

Ramsey meets Hunter for coffee two years after the incident.  Hunter has just been released from a military prison.  It is revealed in their conversation that Ramsey visited Hunter often in prison, bringing him books on military history (including a copy of Von Kriege by Carl Von Clausewitz - callback to an earlier scene!) and had grown to respect Hunter for standing up for what he believes in.  It is also revealed that Hunter was given a significantly reduced sentence (including a dishonorable discharge) because of his stellar record, because his actions averted nuclear catastrophe, and because Ramsey testified at the court-martial defending Hunter’s actions.

The benefit of such a scene would bring full circle a theme that the film played with tangentially in the early going: how a man’s will intersects with the rigid structure of the military.  An ending like this could show that Hunter was too willful to be a military man (something the film toyed with in Denzel’s early scenes with Hackman) and that being his own man in a world of rules and regulations would cost him dearly.  It would also have the desired effect, showing the growing friendship between two former enemies.  Lastly, an ending like this would have kept the happy ending the audience craved, been truer to real life, and helped an already excellent action film become a Great Film.  Full stop.