Sony Wins "Midnight in Paris" Lawsuit, Inadvertently Proves My Case About Copyright Duration

"The court has viewed Woody Allen’s movie, 'Midnight in Paris,' read the book, 'Requiem for a Nun,' and is thankful that the parties did not ask the court to compare 'The Sound and The Fury' with 'Sharknado.'" - District Court Judge Michael P. Mills

*****

Last October, William Faulkner's estate sued Sony Pictures Classics, the distributor of the hit Woody Allen film Midnight in Paris, claiming that a line used by Owen Wilson's character in the film was pulled straight from Faulkner's 1950 novel Requiem for a Nun without permission from the estate.  Such a use, the estate argued, constituted both copyright and trademark infringement.

Just for comparison's sake, here's the line from the book: "The past is never dead. It's not even past."

And here's the line from the film, said by Owen Wilson's character Gil Pender: "The past is not dead! Actually, it's not even past.  You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

When I heard about the lawsuit, I rolled my eyes.  "This is exactly the kind of frivolous lawsuit that makes people hate lawyers," I groused to my wife.  The line was so minimal and seemed like a clear-cut case of fair use.  The suit didn't seem like a credible attempt to protect Faulkner's legacy; it looked like a cynical ploy designed to cash in on a box-office hit.  Judge Mills, as evidenced by the above quote, agreed.  In an opinion issued yesterday, he dismissed the Faulkner case against Sony, finding that film's use of the Faulkner quote fell within the fair use exception to copyright infringement.

But the content of the opinion interests me less than what this case means to copyright policy.  Because whether Judge Mills intended it or not, the dismissal speaks volumes about a problem with the way this country shields copyright holders from piracy.  Namely, that copyrights are allowed to live for too long and that results in too many lawsuits.

Back in April, I wrote this Sherlock Holmes piece discussing why the current scheme of copyright duration should be changed to better serve the current copyright landscape. Right now, any work of art fixed in a tangible medium is protected by U.S. Copyright Law for the life of the author plus 70 years.  I argued that allowing copyrights to last for so long actually stifles creativity and innovation in the following ways:

1. Artists are less incentivized to create new works because of the looming spectre of legal action
2. Owners of profitable copyrights like Sherlock are less incentivized to create new works of art as long as they can continue to profit from those copyrights
3. Copyright owners like the Faulkner estate are incentivized to pursue legal action against even the most minimal use of their copyright because the length of the copyright's life acts as a mandate to keep the work protected at all costs

And that's exactly what happened here.  Under our current copyright law, Requiem for a Nun is still protected 62 years after publishing and 50 years after the death of the novel's author.  It will continue to be protected until 2032.  This permits the descendants of the author to pursue all uses of that work anytime they see green and to concoct unreasonable arguments in defense of that green (the Faulkner estate, as part of its now dismissed trademark claim, argued that the use of William Faulkner's name in the film is likely to deceive the audience into believing that an affiliation exists between Faulkner and Sony).  And while the verdict in this case was proper, it won't be the last time this happens.

A shorter copyright duration is better because it allows the author and his immediate family to profit from his creation, but it also devalues the property after the author's death by coming into the public domain sooner.  And that's a good thing.  If Faulkner is no longer profitable, then that frees up people to use his characters in new and interesting ways, while also incentivizing the estate to create something new.  Someone argued with me once, claiming that letting the work into the public domain would open it to bastardization, copying, and retread.   But I fail to see how that's a bad thing.  If a filmmaker wants to stage a remake of Sherlock Holmes starring Justin Bieber as Sherlock and Chester Cheetah as Watson, well sure that will probably suck big time, but that doesn't diminish Conan Doyle's original writings.  Those remain untouched and intact.  And anyway, the integrity and profitability of a work are not often related.  If they were, the Broccolis would never have greenlit a James Bond movie where Denise Richards played a nuclear scientist.

The purpose of copyright protection isn't to provide a golden parachute for the author and his beneficiaries until the end of time.  It's mean to foster originality and ingenuity for the betterment of society.  Hell, even the head of the Copyright Office, Maria Pallante, suggests shortening the duration of copyright to life of the author plus 50 years.

The point is, until we revamp our copyright law to stop favoring the corporate copyright holders, we're going to continue seeing lawsuits like Faulkner v. Sony any time a large copyright owner sees a potential conflict with its interest.  When I look at Judge Mills' decision, I don't see a single judge smacking a plaintiff for filing a frivolous lawsuit.  I see an indictment of a system that allows the suit to be brought in the first place.

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.

Robin Hood And The Much Needed Change In Copyright Policy

A few years ago, Ridley Scott decided to direct a big budget Robin Hood film from an original script by Ethan Reiff and Cyrus Voris. The script was called Nottingham and it was a particularly unique take on the Robin Hood mythos: it was to be a medieval police procedural where the protagonist, the Sheriff of Nottingham, used forensic analysis and new investigation techniques to hunt down Robin (my understanding was that Robin would've been a fairly minor role, played almost like a movie monster). Well that's new! The take on the story wowed Scott and when he got involved, he hired writer Brian Helgeland to do a page-one rewrite of the script... because in Hollywood, the best way to show you love and appreciate someone's work is to scrap it altogether and replace it wholesale with something else. Anyway, the new collaboration yielded an even more intriguing concept: what if the Sheriff and Robin Hood were the same person but didn't know it?!! The story would be a Fight Club-esque exploration of personality disorders couched in the language of a medieval action film.

Like 'em or not, both of those concepts were definitely unique takes on the subject matter. But somewhere between the numerous rewrites and day one of principal photography, the story lost these elements and became 2010's Robin Hood, a fairly sober three hour origin story about the rights of landowners, following a middle-aged Robin as he tried to get King John to sign the Magna Carta.  Snore. The Sheriff himself showed up for about five minutes and was played as a bumbling ass.

Sadly, we'll probably never see Nottingham since the copyright to that script is now owned by Universal Pictures and they'll never let it out of their death grip. In Hollywood, when a writer pens a spec script (that is, an original, non-commissioned, unsolicited screenplay), the studio will always acquire the copyright from the writer before the script goes in front of the cameras. There are two ways this can happen: the first is through an "option." The studio pays the writer a nominal fee for the exclusive right to turn that script into a film for a stated period of time. The writer will retain ownership over the copyright until the script goes into production, at which point the studio will buy it outright (as always, I'm speaking in generalities and the specifics of each deal will depend on a number of different factors, such as the writer's reputation, the studio's negotiating tactics, etc). The second way is that the studio bypasses the option and buys the script directly from the writer.

Either way, the copyright eventually passes to the studio, and the studios tend not to be shy about exercising complete dominion over the work. They can shelve the script entirely or rewrite it from page one, changing literally everything that makes that script distinctive: the title, character names, thematic subtext, you name it. Even if the original writer is kept on board to do those rewrites, he is no longer working on his own property. He's just a hired gun and has no say over the changes demanded by the studio. Imagine getting fired from your own script because you didn't like the changes being made to it and you have a sense of how F'd up Hollywood can be sometimes. And this kind of thing happens all the time, where the final film bears so little resemblance to the original work that it becomes a functionally different entity altogether. And the saddest part is that these original screenplays languish forever in dusty studio vaults, never to be seen or heard from again.

So I'm 500 words into this essay and I haven't even stated why I'm writing it. Well honestly, I'm a film fan and I want to see Nottingham, which means that I'd like to see Reiff and Voris get another crack at having their script made. The fact that this will never happen is a creative travesty and I personally believe it violates the spirit of copyright. The protections given to copyright holders in the Constitution weren't meant to give them unassailable right to prevent others from using their work. Sure, there were protections against infringement, but the real purpose of the law was to promote artistic progress for the betterment of society, not for individual profit. Article I, Section 8 of the U.S. Constitution reads that:

“Congress shall have the power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Just check out Title 17, Chapter 1 of the U.S. Copyright Law to see what I'm talking about. There are whole species of escape hatches and exceptions built into the law that are designed to give artists leeway in using and relying on the works of others.  Fair use is a great and popular example of that.  In other words, the "exclusive rights" given to copyright holders under the law aren't so exclusive when you step back and look at the law in its entirety. But over time, the copyright policy in this country shifted away from innovation for the greater good to favor the copyright holder, which in many cases tend to be giant corporations. These corporate copyright holders are granted a wide latitude when protecting their work, often at the expense of individual artists. Hell, just this past week the new Copyright Alert System went into effect - a system intended to prevent online piracy of copyrighted works. Now fighting piracy is a decent (if not noble) intention, but this new law was backed by the RIAA, an organization that spent 10 years suing teenagers and dead people for downloading music from peer-to-peer sites, so you have to wonder what their motivations truly are. Just a small example: as a result of an RIAA lawsuit, Joel Tenenbaum of Massachusetts owes the record companies $675,000 for downloading 22 songs.

I'm on record saying that this type of one-sided treatment needs to stop, which is why I think the copyright laws in the country should be revised to better reflect the needs of individual artists. In particular, I would support a change that would permit copyright to automatically revert back to the original author after a certain period of time - say 10 years - if it went unused or was otherwise changed to such a degree that it could no longer be considered a derivate work. In practice, this system would allow the studio to use the screenplay it had just purchased and try to make it into a film. If the script underwent dramatic changes (as with Nottingham), the original script could revert back to the screenwriters, who could then have another chance to make the film they envisioned.

I'm sure there are lots of kinks to work out with the change I've envisioned; namely, how to enforce the automatic reversion, determining what is considered "use" of the material, and how continuous that usage must be over the 10 year period, but I think this is a conversation worth having. There's no reason why Nottingham and Robin Hood can't co-exist. Especially in light of the fact that A) Robin Hood bombed, and B) a revisionist take on the material favoring the Sheriff as a medieval detective could have enormous franchise potential. If Universal doesn't want a piece of that pie, there's no reason it has to throw the entire thing in the trash.

[Author's note: I realize that I've posted two entries in a 3 week period bagging on Ridley Scott films, but I'm actually a big fan. I think Kingdom of Heaven is a masterpiece.]

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.

When The Movies Get It Right: Good Cops, Bad Cops, and American Gangsters

In the pantheon of 70's style American crime films, Ridley Scott's 2007 American Gangster is a solid entry, but it's not great, and certainly no all-timer. There's a kind of undercooked quality to it that prevents it from rising to the level of French Connection, an inspiration American Gangster clearly wears on it's sleeve. That's partly because the film doesn't know if it wants to glorify or criticize the gangster lifestyle, and partly because Sir Ridley, while a talented filmmaker, simply doesn't understand American social mores, so the racial aspects of the story (out of which a significant amount of the drama flows) feel half-thought out. It also doesn't help that Scott wants every outdoor scene to take place in the middle of a snow flurry, even though the film was clearly shot sometime in August (seriously man, have the courtesy to digitally erase the green tree leaves if you're trying to convince me that it's the middle of December).

What keeps the film from cracking under the weight of its own dopey seriousness is the raw thundering power of Denzel Washington's mobster Frank Lucas, the understated badassitude of Russell Crowe's incorruptible cop Richie Roberts, and Josh Brolin's mustache. Also there's a conversation that occurs between Frank and Richie near the end of the film that just floors me every time I watch it. Frank Lucas has been finally captured and it turns out that he's become the biggest heroin dealer in New York, by far outclassing the Italian Mafioso's who want Frank's head on a platter. Richie, who has spent the past two years trying to nail Frank, finally has his chance to interrogate him.

Frank

What do you want me to do? Snitch, huh? I know you don't want me to give up no cops. What do you want? You want gangsters? Pick one. Jew gangsters? Mick gangsters? Guineas? They've been bleeding Harlem dry since they got off the boat, Richie. I don't give a fuck about no crime figures. You can have them.

Richie

I'll take them, too.

Frank

You'll take them, too? No, you didn't. You're talking about police. You want police? You want your own kind?

Richie

They're not my kind. They're in business with you, Frank, they ain't my kind. They ain't my kind like the Italians are not yours.

Take that Frank! The films take great pains to show us that Richie has a reputation as an untouchable, especially in comparison to Brolin's Detective Trupo who is basically selling the French Connection dope on the side to afford his big house and sporty car. To illustrate: early in the film, Richie and his partner discover almost a million dollars in cash stuffed in the trunk of a car. Instead of skimming a little off the top, like most cops in the early 70's would have, Richie turns it all in. Every cent. And that kind of incorruptibility makes him a target. His partner leaves him and no one will work with him.  Eventually Richie is hired to head up a federal narco task force made up of other good cops and together they go after Frank.  As a result of the above-conversation between Richie and Frank, 3/4 of the entire NYPD narcotics division is arrested for corruption.

And you know how they do it?  Through good cop work.  Investigations based on probable cause.  Arrests based on valid warrants.  Interrogations that don't violate the suspects' Miranda rights.   I've seen the film about a dozen times and I haven't seen a single 4th, 5th, or 6th Amendment right being violated.

Now for those of you who don't know me very well, I am - by all accounts - a big square.  Like any rational person, I don't like bad cops. But I also don't support films where bad cops are celebrated.  The only cops and robbers movie that dares get close yet still earns my respect is L.A. Confidential.  The film is an absolute classic in a way that American Gangster will never be, but in L.A. Confidential, the good guy Ed Exley, ends up shooting the bad guy in the back AFTER THE BAD GUY SURRENDERED!!! The only reason I can even remotely tolerate that is because the bad guy turned out to be L.A. Police Captain Dudley Smith, who was also secretly running the mob and indiscriminately killing civilians and police detectives over 25 pounds of heroin.  Exley probably didn't need to shoot Smith in the back, but I can understand that letting Smith go would be a non-starter (Smith's cache with the Police Chief and District Attorney would almost certainly result in him getting his charges dismissed and leaving him free to exact revenge on Exley).  Now to be fair, while I can justify killing Smith, I feel icky about the mental gymnastics required of me to make that moral choice... thank God it's only a movie!

So while American Gangster isn't a great film and sometimes feels like two halves of two different stories, I can get on board with it because it has cojones to be square, to not celebrate shooting the bad guy in the back, to celebrate good cop work, like another 2007 crime drama I wrote about a few months ago, David Fincher's Zodiac.   The fact that Richie was able to take down all those bad cops by doing good cop work in real life is icing on the cake, and gives me hope for our men and women walking the thin blue line.