Why Movie Theaters Suck and How To Fix Them

Today I'm going to discuss something near and dear to my heart, so I hope you'll treat what I'm about to say with the respect and gravitas it deserves... modern movie theaters suck.  Last week my wife and I went to see The Master and these are some of the myriad distractions that prevented me from engaging with the film:

1. The lady sitting behind me kept kicking my seat and futzing with her cell phone.
2. An old man several seats away kept mumbling to himself throughout the film.
3. A middle-aged lady kept shushing the old man to keep quiet, and when the shushing didn't work, she outright yelled at him.
4. That same middle-aged woman left the film after an hour (along with her two companions) never to return.  They made quite a ruckus when leaving.
5. A woman came in 3/4 of the way through the movie and sat in a seat next to me.  She started munching loudly on some snacks that she had smuggled in from home, and shifted in her seat.  She then left the theater after 10 minutes.
6. Halfway through the film, five ushers came in and stood at the entrance crunching on popcorn and talking loudly to each other.

For a long time, movies were my religion and the cineplex was my temple.  I worshipped frequently: with friends, family, and often by myself.  While I noticed the decline in the viewing experience over the years, I kept going because I wanted to give my business to films that needed and deserved my support.  Nowadays, I've largely become a theater expat.  Why?  I don't remember the last time I went to see a movie and didn't have the entire experience ruined by people talking and texting, children yammering at age-inappropriate films, and the relentless stickiness of every surface.  Movie theaters have become a wholly unpleasant way to spend a few hours.  When I go now, it's only for the films that I've been hotly anticipating or that demand a 50 foot screen.  For the rest, my home theater will do quite nicely.  Like me, many of you have stopped going with regularity.  The figures certainly bear that out... despite this summer seeing two films that annihilated the box office (The Avengers and The Dark Knight Rises), summer movie ticket sales have declined by $100 million since 2002 and movie ticket sales as a whole are at their lowest in decades.

There's a great article over at Fast Company that discusses how design is the key to improving the theater experience and increasing ticket sales.  The crux of their argument is that theater owners are trying to compete with home theaters, Netflix, Hulu, Apple TV, and Blu-ray.  That means buying the latest digital projectors, sound systems, and investing in 3D and Imax technologies.  Except, home movie watching isn't competing with theaters for business.  Rather, movie theaters are really in competition with Friday night social venues - such as clubs, restaurants, bars, bowling alleys, etc. - and Fast Company argues that theater owners should be rebuilding the entire movie-going experience around that social engine.  Some of their suggestions are fascinating and could work really well: liquor bars, private viewing boxes for large groups, intimate lounge areas near the actual theater.  One of their most intriguing ideas is to set up a "trailer lounge" where you can gather with your friends in a comfortable seating area and watch the latest trailers and discuss them without fear of being shushed.  [I personally suggest instituting a tiered pricing system and assigned seating...the Arclight Theater in Hollywood does this.]

I applaud this out-of-the-box approach and I sincerely hope that some intrepid theater owner will be willing to embrace these innovative ideas.  For anyone fed up with the state of the modern movie theater, the article is a must read.  But Fast Company only gets at part of the problem.  You see, while the act of "going" to a movie is generally a social activity, the "watching" of the movie is decidedly solitary; after all, you are compelled to sit in silence for two hours. So while theater owners can gussy up the pre- and post-show experiences, the movie-watching experience remains largely unchanged.  And that's precisely the problem: the movie-watching experience has been substantially compromised by strangers bereft of cinema etiquette.  Personally, I don't care if the lobby is nice or that the film is being projected with the latest digital technology.  All the amenities in the world can't make me enjoy a film that I can't hear or see because of inconsiderate theater-goers.   Tim League, owner of the Austin-based Alamo Drafthouse theater, agrees.

A year ago, League earned some fame by ejecting a customer who texted during a movie despite two warnings to stop (because of theater policy, the customer was not refunded her money).  League blogged about that incident here.  The customer was so incensed that she left a voicemail at the Drafthouse, which League turned into a "Don't Talk or Text PSA."  Here it is in all it's hilarious glory.

[youtube http://www.youtube.com/watch?v=1L3eeC2lJZs&w=560&h=315]

League has hit upon exactly the right strategy for making the movie-watching experience better (and thus more appealing to customers): TOSS THE BUMS OUT!   It is so simple, so affordable, and so effective that I can't believe no one has implemented it in any meaningful way.  In the golden age of cinema, theaters employed uniformed ushers to patrol the theater and remove the riff-raff.  Most theaters don't do that anymore and I can't figure out why.  After all, there's virtually no legal downside.  Businesses can't discriminate on the basis of race, gender, disability, age, etc., but they can generally pick and choose with whom they wish to do business.  Furthermore, businesses are allowed to expel customers from their property for just about any reason.  When you go to a movie, you are being invited onto private property.  Such an invitation is revocable anytime by the business owner because your presence on the property is a privilege, not a right... even if you paid to be there.

Theater chains must know that if they were sued by expelled theater goers they would almost certainly be judgment proof.  So if there's no fear of a lawsuit, why don't they just kick out unruly patrons?  Are they afraid of bad press?  Are they afraid of physical confrontations?  In my opinion, it's most likely inertia combined with a deep-seated apathy; once they have your money, they don't care if you have a pleasant experience.  In fact, some chains, namely Regal and Imax, are doubling down on the bad experience angle by creating "texting friendly theaters"!!  League has spoken out about that here.  He writes that

"By introducing screenings where people are free to text during the movie, you will be creating unhappy customers at every single session.  It really boils down to the undeniable fact that texting in a movie theater is rude, selfish, and adversely affects everyone within view of your glowing device.  The only answer to this debate is taking a hard line.  Texting and talking can not be allowed in movie theaters.  Our spaces are sacred spaces for movie fans... To me, the leniency towards talking and texting is a greater threat to our industry."

I agree with that sentiment and I think most of you agree with it too.  There's a reason why theater ticket sales are down, and I wager it's mostly because going to the movies has become intolerable.  If the theaters don't care about my experience, then why should I pay for that experience?  In response to the rude texter who he ejected, Tim League wrote,  "you may be free to text in all the other theaters... but here at our 'little crappy ass theater,' you are not.  Why you may ask?  Well, we actually do give a f*$k."  I think that more amenities, features, and radical design makeovers will definitely help to increase ticket sales, but undoubtedly the future of the movie theater industry will rest on whether theater owners start giving an old-fashioned f*$k.

Lululemon is Literally Suing The Pants Off Calvin Klein: Intellectual Property Upheaval in The Fashion Industry

It will come as a surprise to no one that I don't know thing one about fashion or the fashion industry.  In fact, I recently suggested to my wife that she start a blog called "Things I Make My Husband Wear" that would chronicle her efforts to teach me about the importance of clothing and turn me from someone who looks like  a shiftless farmhand into a professional adult.  Time will tell if she decides to take on this monumental endeavor.

But even I know when something strange is afoot at the Circle K*, and the month of September has seen the rumblings of a shift in the way the fashion industry operates, as designers scramble to protect their work in ways that have historically been off-limits.  A few weeks ago, my friend Lauren sent me this link explaining how popular yoga-pant trafficker Lululemon is suing Calvin Klein for infringing its patent by copying its "Astro" pant design; specifically, the lawsuit alleges that Calvin Klein ripped off the Astro's waistband as well as two other design elements.

Here are the pants in question:

The lawsuit is surprising, since copycatting in the fashion design industry is so generally accepted.  In the fashion world, suing a copycat over patent infringement is uncommon because design patents are so hard to obtain in the first place and even harder to protect.  There are two kinds of patents: Design patents which protect "original and ornamental design" and utility patents which are far more common and protect physical inventions that possess some level of usefulness. [Copyright law doesn't apply here since copyright protects forms of expression, whereas patent law protects items that are functional.]  So why are design patents so hard to get in the fashion world?  According to attorney Adrian Pruetz, "[i]t's very hard to come up with something that's new and that hasn't just been part of the clothing vernacular."  After all, everyone wear some variation of pants, shirts, and shoes, and finding something unique is difficult because the history of clothing design extends back for over a thousand years.

The copycatting has gotten so out of control that NY Senator Chuck Schumer sponsored a bill** that would provide some intellectual property protections for designers.  The bill, which just passed out of the Senate Judiciary Committee last week, would aim to protect fashion designs that are unique, distinguishable, non-trivial, and non-utilitarian.  Schumer, of course, has some selfish reasons for sponsoring this bill: New York is considered by many to be the nation's fashion capital, employing over 200,000 people in the industry, so this bill is as much about protecting jobs as it is about protecting patentable innovation.

Enough of the news, here's my take: I'm all for the Schumer bill and any reasonable patent protections for fashion designers in general.  A running theme in this blog is my support for protecting the work of artists, and I see no reason to deviate from that now.  But some people have argued that design patents are more trouble than they're worth and should be limited or even abolished.  Ilse Metchek, President of the California Fashion Association, says "[t]his whole notion that you'd grant a patent to anyone who adds a seam or two to a waistband is quite problematic. It's only going to create more litigation, and that's hardly something the fashion industry needs more of."  I can see her concern.  Clothes are a necessity of life and if you permit designers to repeatedly sue other designers for infringement, you affect not just other fashion houses, but literally everyone.  Clothes would become much more expensive and only the companies who could afford to withstand lawsuits would survive.  That would stifle artistic expression and innovation.  Bad medicine indeed.

Which is why the Schumer bill is a good start: its patent protections are very limited and would only extend to designs that are extremely unique and distinguishable.  Furthermore, the protection would only last for three years from the date of publication, would provide certain liability limitations (such as no liability for someone who copies a design for home use only), and would force plaintiffs to plead detailed facts in their initial complaints in order to limit frivolous lawsuits.  Designs that predate the bill's enactment would not be eligible for protection and would thus be public domain.  The entire bill smacks of reasonableness, which frankly means that everyone will hate it.  But the bill is designed around an industry that is built on copying others and it recognizes that reality.  In my opinion, it's a good way to let people protect their work, while still allowing room for copying designs not unique enough for protection.

As for the Lululemon/ Calvin Klein row, I won't debate the merits of the case here since I haven't seen the court documents. I will say that Lululemon is clearly making a stand here against Calvin Klein, Gap, and any other retail chain that threatens its business. I have no dog in this fight, but there are plenty in the fashion industry that do.  It should be interesting to see what happens.

* Sixty quatloos to the person who gets this reference.  Please state your answer in the comments section below.

** Thank you to my lovely wife for pointing out the existence of this bill!

Microsoft And The Amazing Technicolor Trade Dress Infringement

"Good artists copy.  Great artists steal." - Steve Jobs

By that logic, the boys in Redmond are pretty great.  A few weeks ago, I was walking through the Prudential Center in Boston and came across the newly opened Microsoft Retail Store.  If you've seen one, then you probably thought the same thing I did: they totally ripped off the Apple Store!  Here's a picture I took the other day:

And for comparison's sake, here's a picture of the Apple Store I worked at three years ago:

Aside from the visual similarities to the store exteriors, both include well-lit, spartan layouts with wooden tables featuring hands-on product displays.  Both stores are divided by product type: MP3 players, smart phones, tablets, laptops, desktops, accessories. They both feature Genius bars where customers can get immediate tech assistance.  Employees in both stores wear brightly colored T-shirts and lanyards, and walk around with touchscreen tablets to ring up customers.  While Microsoft's store is generally more colorful inside, the design language is obviously Apple's.

"Why hasn't Apple sued them into oblivion?" I thought.  [I must admit a little bias and outrage since I'm a rabid Apple partisan]. The resemblance between the stores was uncanny.  Curiosity compelled me to look into it and this is what I found: Microsoft can get away with ripping off Apple because no one is walking into a Microsoft Store to buy Apple products.

You see, U.S. Trademark Law protects something called "trade dress" which is defined as "the total image or overall design or appearance of a product or its packaging."  Trade dress also includes design and layout of a retail space or restaurant.  In an effort to protect its store designs from theft, Apple registered those designs with the United States Patent and Trademark Office (USPTO).  This past May, the USPTO approved Apple's registration; you can see those documents here.  In response, Microsoft filed an objection to that registration, claiming that Apple's store designs aren't distinct enough to be protectable (so we may actually see a fight over this issue soon).

The distinctiveness issue aside, you can understand why Apple would want to prevent Microsoft from using its store designs.  But if Apple sues Microsoft for trade dress infringement, Apple will lose.  That's because Apple can only prevail by showing, among other things, that the Microsoft Store is so similar that people are likely to get confused and walk in thinking it's an Apple Store.  Frankly, that's a losing argument for the following reason.

In a trade dress infringement case, courts can weigh a variety of factors on the confusion issue, including the relationship between the brands in the minds of the consumers.  In this case, Apple and Microsoft are two of the largest corporations in the world (Apple just passed Microsoft as the world's biggest company as measured by stock market value).  Both companies were founded by men who are/were world-famous geniuses.  People are aware that the two companies are in direct competition with one another and know the Apple logo the same way they recognize the Disney logo, the Coca-Cola logo, or the Superman emblem.  Apple is the world leader in electronics sales, specifically when it comes to the iPod (which revolutionized the MP3 player market) and touchscreen devices like the iPad and iPhone - Last quarter alone, Apple sold 17 million iPads and 2 million iPhone 5's... and the phone hasn't even been released yet!  These devices are synonymous with Apple.  Furthermore, Apple's entire line of notebooks and desktops contain the same well-known design scheme, aluminum casing with black accents and a glowing Apple logo.  By the same token, the public recognizes Microsoft's logo from daily use, since 95% of the world's computers run its Windows operating system.  Nearly every business in the world uses Microsoft Word and Excel.  Microsoft is also the creator of the Xbox 360, one of the most successful video game consoles of all time.

If someone did walk into a Microsoft Store looking for an Apple product, they would immediately discover that they were in the wrong place due to the absence of Apple's logo and dearth of Apple products.  Based on these facts, I think Apple is in no danger of losing sales to Microsoft just because the stores look the same.  That is, after all, the whole point of suing for trade dress infringement... that someone has purposely confused the customer in order to draw sales away from the trade dress owner.

In short, the public knows who Apple and Microsoft are, and no one's mistaking one for the other.  Because the likelihood of confusion between the stores is negligible, it's no shock that Apple hasn't commenced a lawsuit against Microsoft.  Microsoft made its retail store plans public back in 2009, and while I wouldn't completely rule out a legal fight over this at some point, I think Apple knows it doesn't have much of a leg to stand on.

[Author's Note: I dramatically over-simplified the trade dress analysis for a few reasons.  First, for the sake of brevity; second, because it can get extremely convoluted and you probably don't care that much; and third, because at the end of the day I truly believe that this case would hinge on the confusion issue.  Of course, if there are any trademark lawyers out there who take issue with my analysis, please feel free to tell me why I got it wrong!]

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.

When The Movies Get It Right: A Courtroom Scene With True Grit

If you're writing a screenplay that features a pivotal courtroom scene and you want to figure out how to write it, you could buy "Basic Trial Advocacy," a trial practice manual by Peter Murray.  I used this book during my second year of law school and it's really fantastic.  Well explained and easy to understand.  Or you can just watch True Grit (The Coen Brothers 2010 remake).  It has one of the most accurate portrayals of a legal proceeding I have ever seen in a Hollywood production.

About 15 minutes into the film, we meet protagonist, Marshal Reuben J. "Rooster" Cogburn (played by Jeff Bridges as a violent, cocksure, slurring drunkard) giving testimony at the trial of Odus Wharton.  The scene is played for humor and as an introduction to Cogburn's predilection for killing his suspects.  The dialogue is classic Coen Brothers: pithy, wry, and rhythmic.  It's also delivered by magnificent actors like Bridges who have the ear to turn that dialogue from a garbled mess into something almost musical.

But beyond the masterful writing and acting, the scene plays because the Coens clearly did research on what a trial actually feels like.  I don't know whether they picked up a trial advocacy book like the one I mentioned above, whether they sat in on real trials, or hired a lawyer to write that scene, but whatever they did worked.  So often I get the impression that Hollywood writers don't do the research, or would rather indulge their dramatic proclivities instead of going for something accurate.  If you've been reading this blog, then you know I am a firm believer that drama and realism need not be mutually exclusive.  

Let's look at what makes this scene authentic.  [This is going to be a bit long-winded, so bear with me.  Take a look at my Dark Knight Rises post if you're looking for something short.  I praised that film as well for its legal veracity.]  As the prosecutor, Mr. Barlow, conducts his direct-examination on Cogburn, the defense attorney Mr. Goudy, played with a great deal of huff by actor Joe Stevens, objects to the questions (I've highlighted the objections in red).

Mr. Barlow

What did you do then?

Cogburn

Me and Marshal Potter went out to the smokehouse and that rock had been moved and that jar was gone.

Mr. Goudy

Objection. Speculative.

Judge

Sustained.

Mr. Barlow

You found a flat gray rock at the corner of the smokehouse with a hollowed-out space under it?

Mr. Goudy

If the prosecutor is going to give evidence I suggest that he be sworn.

Mr. Barlow

Marshal Cogburn, what did you find, if anything, at the corner of the smokehouse?

Then later on:

Mr. Barlow

Did you find the jar with the hundred and twenty dollars in it?

Mr. Goudy

Leading.

Judge

Sustained.

Mr. Barlow

What happened then?

Cogburn

I found the jar with a hundred and twenty dollars in it.

Mr. Barlow

And what happened to Marshal Potter?

Cogburn

Died. Leaves a wife and six babies.

Mr. Goudy

Objection.

Judge

Strike the comment.

It's difficult to tell just from reading the passage, but the interactions between Mr. Goudy and Mr. Barlow weren't underscored by tension, animosity, or high drama.  There  was no attempt to cast Mr. Barlow as the good guy and Mr. Goudy as the villain.  The two men continued their questioning as if these things just happen.  And you know what?  They do.  All the time.  I've seen my fair share of trials; good lawyers often ask speculative or leading questions, sometimes by accident and sometimes on purpose.  The other side objects because they're supposed to.  In real life, there's no seething anger or hatred between them.  Yes, both sides fight hard (sometimes viciously) for their clients, but there's generally a sense of deference between attorneys.  That deference played out in this scene.  What no one tells you is that real trials are very structured.  Both sides generally know what the other side is going to ask, so they plan accordingly, which is why those dramatic "gotcha" moments happen so rarely.  The Coens understood that in a way that few people who haven't sat through a real trial would.

Here's another reason why this scene works: the Coens got the language and legal theory right.  Look at this interaction once Mr. Goudy began to cross-examine Cogburn.

Mr. Goudy

In your four years as U.S. marshal, Mr. Cogburn, how many men have you shot?

Mr. Barlow

Objection.

Mr. Goudy

There is more to this shooting than meets the eye, Judge Parker. I will establish the bias of this witness.

Judge

Objection is overruled.

Mr. Goudy

How many, Mr. Cogburn?

Cogburn

I never shot nobody I didn't have to.

Mr. Goudy

That was not the question. How many?

Cogburn

. . . Shot or killed?

Mr. Goudy

Let us restrict it to "killed" so that we may have a manageable figure.

Cogburn

Around twelve or fifteen. Stopping men in flight, defending myself, et cetera.

Mr. Goudy

Around twelve or fifteen. So many that you cannot keep a precise count. Remember, you are under oath. I have examined the records and can supply the accurate figure.

Cogburn

I believe them two Whartons make twenty-three.

Mr. Goudy

Twenty-three dead men in four years.

Cogburn

It is a dangerous business.

Mr. Goudy

How many members of this one family, the Wharton family, have you killed?

Cogburn

Immediate, or--

Mr. Barlow

Your honor, perhaps counsel should be advised that the marshal is not the defendant in this action.

Mr. Goudy

The history is relevant your honor. Goes to Cogburn's methods and animosities.

Notice the different way each attorney questioned Cogburn.  In the first excerpts, Mr. Barlow questioned Cogburn, his own witness.  Since Cogburn was the prosecutor's witness, Mr. Barlow was limited to asking "then what happened" style open-ended questions.  This gives the witness control over the story and prevents the lawyer from feeding answers to a favorable witness.  That's why every time Mr. Barlow tried to focus Cogburn's testimony by asking closed questions, he got smacked by Mr. Goudy and the judge.  So far so good.

Then a shift occurred.  When Mr. Barlow finished his line of questioning, the defense attorney, Mr. Goudy, asked Cogburn a series of leading, sometimes attacking questions on cross-examination (a leading question is one that has the answer already in it). This is because Cogburn was an adverse witness to Mr. Goudy's client and Mr. Goudy was trying to discredit Cogburn by poking holes in his story.  Attorney's are allowed to "lead" adverse witnesses and even make them look like liars.  During his questioning, Mr. Goudy got quite aggressive with Cogburn, but it wasn't played for high drama.  Rather it was treated as an attorney trying to get answers out of an uncooperative witness.  The Coens also got this dynamic right.

Let's talk about the legal theory. Mr. Goudy pushed Cogburn to admit how many men he's killed.  His line of questioning alerted Mr. Barlow who stood up to ask the judge to stop it. Why?  Because Mr. Goudy was about to do a big no-no in trial practice: he was about to attack Cogburn's character.  Under Rule of Evidence 404 in most states, you cannot admit evidence of a person's character for the sole purpose of showing that he is the kind of person who normally does this kind of thing.  From the passage, you can see that Mr. Goudy's questions were designed to show that Cogburn is a man of poor character because he shoots first - therefore he is an unreliable witness.  But the judge allowed it because under Rule 404, you CAN admit evidence of a person's character to show motive, intent, bias, animosity, modus operandi, etc.  Here, Mr. Goudy wished to show that Cogburn had a bias against the Wharton family as is evidenced by his history of gunning down the Whartons. And as Mr. Goudy continued his questioning, we discovered that Cogburn had indeed shot two members of the Wharton before the current altercation, bringing the total to four dead Whartons killed by one man.  The script followed the rules of evidence to a T.

The scene lasted a total of about 7-8 minutes, but in it, we got a sense of the deference between competing sides, the reality of the atmosphere in a real courtroom (and the lack of heightened drama), the correct use of evidentiary rules, and proper trial practice technique. I have to admit bias here.  I am an unabashed admirer of the Coen Brothers and especially their 2010 remake of the John Wayne classic.  I even love the Coen films that I hate.  No one makes movies like these guys.  But bias notwithstanding, I think that you can learn nearly everything you'd need to know about proper trial advocacy from this scene.

Also, yes, I watched the Blu-ray three times so I could transcribe this scene for you.

Filmmaker-2-Filmmaker: Tip 2 - Copyrighting Your Writing

[Author's Note: this post contains legal information but is not intended as legal advice. All the legal information contained in this blog post is public domain and available to everyone.]

Between high school and law school, I wrote 21 screenplays - 5 features, and 16 shorts.  Like many creative types, I only had a vague idea of what copyright was and had no concept of how to use copyright to protect that work.  As a result, I was too scared to show my writing to anyone for fear of theft.  Those scripts sat collecting dust for a very long time.

So when I get a question like this - "If I want to copyright a movie script in the U.S., how do I do it? And do I have to be a citizen?" - I feel compelled to pass on the knowledge and experience that I have been blessed with since that time.  This particular question came from my cousin, a man who is as much a movie buff as I am, and with whom I've spent countless hours geeking out over a wide variety of films.  And while the citizenship question is not one that most of you will face, it does tap into the fundamentals of U.S. Copyright Law.  So let's get to it!

U.S. Copyright Law is really an artist’s dream because there are so many devices built into it that help artists protect their work.  Here are some good ones:

1. The moment you create a work of artistic expression, such as a screenplay, and that work is fixed in a tangible form (i.e. you wrote it down), that work is copyrighted.  No registration of any kind is required.  You don't need official documentation to copyright something and, believe it or not, you don't even need to put that little © on the work (although it’s still advisable… the more information there is to demonstrate authorship and date of creation, the better you can protect yourself).  Basically, the moment you put pen to paper, you are the owner of that intellectual property (minus some exceptions that I won't go into here).
2. Just about everything creative qualifies for copyright protection (you can’t, however, copyright ideas or concepts). For those interested in the specifics, Section 102 of the Copyright Law outlines what is covered.  The list is not exhaustive and is left wide open for future types of artistic expression.
3. If you create a work, then you, your children, your grandchildren, and maybe even your great-grandchildren can benefit financially from it.  Most copyrights last for the life of the author plus 70 years.
4. If someone steals your work, you can sue for quite a bit of money.  Damages range from $750.00, to $150,000 for each infringed work!
5. And yes, even if you’re not a U.S. citizen, you can still benefit from U.S. Copyright Law protections.  According to the U.S. Copyright Office, “Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States.”

But even with all these protections, U.S. Copyright Law can’t prevent someone from stealing your hard work.  And if you end up in a situation where someone is claiming your writing as their own, you need to show that your work predates theirs.  For that, you need documented proof.  So although your artistic expression is copyrighted from the moment it’s created, registering it with the Copyright Office or the Writers Guild of America (WGA) is the best way to create that proof and take advantage of all those great benefits I just outlined.

True story: in 2003, I went to pitch several TV shows to development execs at a Hollywood production company that I had freelanced for.  The ideas were fairly detailed, but I had not written them down.  The execs politely informed me that the ideas weren't right for them and sent me on my way.  A few months later, I went back to interview for another low paid freelance position at that company, only to discover that I was interviewing for a job on a new show that bore a suspicious resemblance to one I had pitched them months before.  I put up a fight and, as you might expect, wasn’t hired by them again.  I felt angry and helpless, mostly because I didn’t have any proof that I had come up with the ideas myself.

If I had typed up my ideas into “treatments” and registered those treatments with the Copyright Office and the WGA, I could have sued for theft of my copyright because the registrations would have created a public record showing that my idea had existed before their show.

There are three main ways to register, they're all relatively painless, and you can do as many or as few as you want:

1. Register your work with the U.S. Copyright Office.  You can register online at the Copyright Office website. There’s a $35 filing fee (per work) and the processing time is roughly between 2-3 months.
2. Register your work with the Writers Guild of America.  You can register online at the WGA East or WGA West.  The filing fees for non-members are $25 per work for WGA East and $20 per work for WGA West.  You can also register with either by mail if you prefer.  I’ve registered works with both the Copyright Office and the WGA and the protections are comparable.  The whole point is to make sure that there’s an official record of your work somewhere in case you need to prove it.
3. The last option is known as the “poor man’s copyright.”  If you wish to have evidence that your work came first, but cannot pay the filing fees (remember, at the Copyright Office or the WGA, you must pay the fee FOR EACH WORK registered), you can mail yourself a copy of the work.  The envelope will be stamped with a date and that date will be the proof of origin.  Of course, the envelope must remain sealed once you receive it.  To open it would be to eradicate the purpose of sending it yourself (if the envelope remains sealed, no one can tamper with the contents). In my experience, the “poor man’s copyright” isn’t nearly as effective as the first two, mostly because people forget that they’re not supposed to open the envelope.  One time, I mailed myself my own screenplay (it cost $10 to mail).  A week later, I received it in the mail.  I was so excited to get a package that I neglected to look at the sender's address (MINE!) and tore open the envelope to find my own script.  Whoops!  Suffice to say, that was not $10 well spent.

Speaking from personal experience, registering my writing gave me the peace of mind I needed to feel comfortable showing it to others without fear of it being stolen.  My feeling is, if I can’t prove that I own the copyright, I can’t prove theft and thus, can’t win in a lawsuit.

As an aside: the Copyright Office is a great resource for artists and writers looking for information on how the law works.  It also contains the complete copyright law for you to peruse.

Quincy Jones: Steve Wynn Did Not Threaten to Kill Joe Francis and Bury Him in the Desert

Here's something fun for a Friday!  This is the opening paragraph of Yahoo's report on the on-going legal feud between Las Vegas casino magnate Steve Wynn and Girls Gone Wild auteur Joe Francis:

"Music mogul Quincy Jones testified Thursday that he never told "Girls Gone Wild" creator Joe Francis that casino mogul Steve Wynn had threatened to kill the soft-porn producer and have him buried in the desert."

I think that may be the greatest sentence ever written... Kudos to Yahoo's Anthony McCartney!  For the record, I have no desire to become gossip blogger, but sometimes the goings-on in the entertainment industry are so ludicrous that I can't help but report on them.   According to this LA Times piece, Francis made the death threat accusation while fighting with Wynn over an alleged $2 million gambling debt owed to Wynn's casino.  Francis further accused Wynn of plying him with prostitutes to keep him gambling in the hopes of luring high rollers to the casino. A Nevada judge awarded Wynn $7.5 million in a defamation lawsuit over that claim.

Anyone who has paid attention to Hollywood over the past decade knows that the entertainment industry is on the precipice.  Movie ticket sales are down, the networks are hemorrhaging money because of technological advances in time and space shifting (i.e. DVRs, iTunes, iPad, etc.), and there are overreaching attempts by the major media companies to kill websites that display their copyrighted works.  But I guess sometimes we all need a distraction from the bad news facing the industry.  And who knows, maybe there's a killer movie in here somewhere.  I say Zach Braff could play Francis and Laurence Fishburne could play Quincy Jones!

Who would you cast?

Hugo No Go: Why Copyright Net Bots Just Don't Work [Updated!]

Three days ago, fans of science fiction television, film, and literature were watching the online broadcast of the Hugo Awards on video streaming service Ustream. Midway through the broadcast – just as novelist Neil Gaiman was accepting an award for an episode of Dr. Who he had scripted – the broadcast went dark and viewers were confronted with the notice “banned due to copyright infringement.” The program never returned and a torrent of anger and frustration filled the twittersphere. You can read about the whole situation at io9 (thanks to Adam Doyle for the link). So why did this happen?

Because a net bot employed by Ustream determined that the Hugo Awards broadcast violated several copyrights and did what it was programmed to do: shut it down. See, like all awards ceremonies, the Hugos used brief clips of the nominated shows and films. The net bot (just a fancy word for “software”) determined that these clips infringed on the clip owners’ copyrights and cut off the feed. As it later turned out, no infringements had actually been made. The clips had been provided by the rights holders for use in the ceremony and, according to Ustream’s CEO, the net bot hadn’t been calibrated properly to filter out works that were permitted.

Maybe this was a simple case of bad programming, or maybe the bot was doing exactly what it was supposed to do. Either way, this little technical hiccup illustrates a growing problem in the online world: major copyright holders (often they are corporations), in attempting to prevent the unlawful use of their copyrighted material, are turning to net bots to automatically find and disrupt websites that display those materials. Unfortunately, the net bots are taking down lawful works because they can’t tell the difference between works that are in the public domain and those that are copyrighted.

In 2007, Cory Doctorow of The Guardian warned of this impending problem. His main thesis in opposition to these net bots is the difficulty in programming them to take down actually pirated works, while differentiating them from lawful uses. Because these programs cannot tell the difference, they have the potential to disrupt how we communicate. According to Doctorow, the bots “would [] have to be nearly perfect in regards to false positives - every time it misidentified a home movie of your kids' first steps or your gran's 85th birthday as Police Academy 29 or Star Wars: Episode 0, Jedi Teen Academy, your own right to use the Internet to communicate with your friends and family would be compromised.”

Five years later, Doctorow has been proven right. Last month, Youtube briefly removed video of the Curiosity Mars rover landing because it was flagged as an infringing use of copyrighted work by Youtube’s Content ID system, even though the video was uploaded by NASA and was in the public domain. A similar occurrence happened this past February when a man received a bogus takedown notice from Youtube because his nature video contained singing birds in the background, content that Rumblefish had deemed to be copyrighted.

These articles at Ars Technica and Motherboard explain how Youtube’s Content ID system works, and have nice breakdowns as to why the system is so flawed. Part of the reason appears to be a simple technical inability to program the bots to tell the difference between lawful and unlawful uses of copyrighted works. But there's also an element of corruption: automated systems like Youtube’s Content ID heavily favor large copyright holders because they pressured Youtube into having an automated system that went beyond the notice-and-takedown regime established under the current law (the Digital Millennium Copyright Act).

Because of this, Motherboard claims that the system encourages copyright holders to cast a wide net over a vast array of works, some of which are only tangentially related or completely unrelated to their copyrights. “YouTube’s system is [] heavily biased in favor of claimants, and [] is increasingly controlling of content that has serious educational or scientific value... many of Martin Luther King, Jr.‘s speeches are no longer available on YouTube thanks to automatic and manual copyright claims by the owner of King’s speeches, the British music giant EMI Publishing."  

Obviously the benefits to an automated system are cost effectiveness and speedy removal of copyrighted works from a website. But because there is no human being at the other end making determinations as to whether or not a work is being infringed, the little guy often suffers. Forget fair use of someone else's copyright, some people have had their own copyrighted work taken down because it was claimed to be owned by someone else – just two months ago, comedian Brian Kamerer had his video taken down from Youtube because NBC claimed it owned the copyright, despite the fact that Kamerer had made the video and it had been used (without his permission) on The Tonight Show.

I think that copyright law one of the things that make America truly great. Seriously. It sends a message that we as a society prize originality and expression. It says that we understand the value of independence and innovation. It shows that we are willing to allow the fruits of your work to be protected from theft. Certainly, we can all quibble over the specifics of the law, such as duration of the life of the copyright, how much in damages an infringer should pay, or the types of works protected; there are legitimate policy discussions to be had about these things. Even with all that room to argue, I think copyright protections are good for artists, good for innovators, and good for our country as a whole. But when a system isn’t monitored properly or at all, it can start to lay waste to everything it should be protecting. Copyright law is no exception.

[Update: 9:30am, September 5, 2012] Youtube has taken down Michelle Obama's DNC speech from last night because it triggered Youtube's copyright infringement filters.  Ugh.

An Artist's Work Is Never Done

One of the greatest lessons I learned about art was during my freshman year at RISD.  As a young artist, I was not confident in my abilities and had a tendency to overwork my art... I never knew when I was done.  One of my professors, Gareth Jones, pulled me aside one day and told me how to stop.  He explained that in time, I would develop enough self-knowledge to know when I was done with the art, rather than when the art was done.  In the meantime, he instructed, I should churn out as much work as I could; instead of trying to perfect the piece I'm working on now, I should move on and put that energy into starting a new project (practice makes perfect, after all).  I think his view was that unfinished art was preferable to art that was taken too far, and that interesting things were hidden in the imperfections.

It was wise advice and as 18 year-olds often do, I ignored it.  As a result, I spent many more years perfecting, and thus destroying, my own work before coming around to his point of view.

I still have not fully learned this lesson.  As some of you may have noticed, I have been messing around with the look of the website as well as revising and rewriting posts days after I've published them.  Heck, not ten minutes ago, I almost completely rewrote the last paragraph of my Aziz Ansari post!  I understand how annoying that can be, so I just wanted you all to know that I am aware of this foible and am working hard to overcome it.  Gareth was right... it's better to start something new than to revise something into oblivion.  That means you can expect a lot of new content in the coming weeks and months.  For the filmmakers, please check out my Resources For Filmmakers page: there's some really helpful stuff up there and there will be new content soon.

Please also check out the website of my good friend Adam Doyle.  He's a talented artist and illustrator and designed for me the beautiful painterly logo you now see above you.

In the meantime, keep checking back for more goodies, as well as a contest or two.

Excelsior!

- Greg

Protecting The Brand: Aziz Ansari Case Study

Artists need to know how to protect their brand, and there are a lot of ways the law can help you do that: non-competes, licensing fees, lawsuits, etc.  But there are plenty of  non-legal ways to protect yourself, and I think comedian Aziz Ansari set a high bar for other artists.

Back in May, my wife and I went to see Aziz live at the Wilbur Theater in Boston.  As we expected, he killed it.  My cheeks hurt from laughing and I had a headache for days.  But Aziz did something unexpectedly impressive.  Before starting his act, he allowed the audience to spend 2-3 minutes taking pictures of him.  He even posed as if he were in the middle of telling a joke or interacting with audience members.  Although it wasn't really a part of the act, it was still quite funny and the crowd ate it up.  If I hadn't been in the cheap seats, I would have taken the opportunity to snap some pics myself.

[I've tried to find a clip of it online, but I've had no such luck.  If memory serves, he also did this at the beginning of his "Dangerously Delicious" concert; for $5.00, you can download the whole thing from his website.  I highly suggest checking it out!  He's hilarious.]

Logistically, it made sense to get the pictures out of the way up front: can you imagine how hard it is to do your act when little flashes are constantly going off in the near distance and your jokes are interrupted by the simulated "click" of a digital camera?  But the more I thought about it, the more I realized how brilliant this move actually was.  You see, Aziz knew that people were going to take pictures or video of him anyway, whether there was permission or not.  He understood that if he wanted to cut down on situations where his likeness would be misappropriated, or his act would be surreptitiously filmed without his permission (thus violating his copyright), he would have to control the opportunities in which the audience could make those infringements.

And it worked!  I was sitting in the balcony and I didn't see a single camera or iPhone light up once the photo-op ended.   But leveraging control over the situation was just part of the reason it worked; the other reason was because Aziz framed the situation as an implicit contract with the crowd. "I'll give you a great hour of comedy if you promise not to steal from me."  And because Aziz framed it like that, and then played into it seamlessly (and with humor), he got the audience to live up to their side of a contract they never realized had been made.  It was really amazing.  He did it his way and on his terms, and in so doing, he protected his brand without coming off like a money-hungry a-hole.