Steven Soderbergh Turns Raiders of the Lost Ark Into Silent B&W Fan Film, No One Sues

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A long time ago, I was a young aspiring filmmaker and wanted to learn - really learn - how to make good films. So I went to a family friend who had some connections in the entertainment business and asked him what to do. He said "watch a lot of films."

So I did. And I became a colossal movie nerd. And even though the filmmaking part of my life is over, I still watch movies to learn from them. It's nice to know I'm not alone.

The other day, Steven Soderbergh, one of the most interesting mainstream filmmakers working today, posted on his blog a version of Raiders of the Lost Ark that he recut into a silent B+W film as an exercise to learn about film staging from Steven Spielberg, a "filmmaker [who] forgot more about staging by the time he made his first feature than I know to this day." He also replaced the classic John Williams score with the score from The Social Network, by Trent Reznor and Atticus Ross to strip away everything familiar about the film and "aid you in your quest to just study the visual staging aspect." For Soderbergh, staging is important because it "refers to how all the various elements of a given scene or piece are aligned, arranged, and coordinated...I value the ability to stage something well because when it’s done well its pleasures are huge, and most people don’t do it well, which indicates it must not be easy to master."

In other words, "I operate under the theory a movie should work with the sound off, and under that theory, staging becomes paramount."

As a movie nerd, I love that Soderbergh did this. As a lawyer, I'm cool with it too. In his blog post, Soderbergh strikes a defensive, almost sheepish, tone, saying that he's aware he's not allowed to recut Raiders, but did it anyway as a learning exercise. This hedging caught me off guard a bit, since it stands in opposition to the confidence he displays in the rest of the piece. Nevertheless, if I was his attorney, I'd tell him not to worry; as far as I'm concerned, this is a classic fair use scenario. I've spoken about the pitfalls of relying on a fair use defense in the past. My chief concern is that it's not a cut and dried thing. You have to weigh different factors based on the particulars of your case. To complicate matters, fair use is an "affirmative defense" which means you have to wait until you're sued for copyright infringement in order to assert it. It's a tough legal doctrine to use and even tougher to use well.

That doesn't mean you always need to ground the flight before it takes off, however. There are some pretty useful questions you can ask ahead of time to gauge whether using someone else's work without their permission is a risk you want to take. For starters, understand that the issue is less "what" are you doing to the already copyrighted work than "why" and "to what end?" If you're trying to make money from it or impinge on the owner's right to profit from it, that's the kind of thing a court would smack you for. But if you're using the work to inform and educate, or if your use says something critical about the work, those are the classic fair uses scenarios. In this case, that's exactly what Soderbergh is doing. He recut the film in order to say something about a crucial aspect of filmmaking. The fact that he's using Raiders to comment and teach is critical to the analysis, and it helps douse a potential lawsuit before it ever arises.

Don't forget the politics of this either. It's doubtful that Paramount (the film's copyright holder) or Spielberg would want to drag him through a legal proceeding. Soderbergh is a respected and beloved filmmaker, still at the height of his power (The Knick, anyone?). He's a potential collaborator and some of his movies made real money - i.e. the Oceans Trilogy. That's not a gift horse you look in the mouth. And let's be honest, this is precisely the kind of nerding around that Spielberg would probably appreciate.

Raiders of the Lost Ark is my all-time favorite film and Steven Soderbergh relied on fair use to recut it and show us just how great it is. In some alternate universe where I'm still 19-years old, I'm over the moon excited to watch and learn from it. Hell, 34-year old me still is.

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

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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:

IMG_0903

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.

Advice From Attorney > Info From Internet > Nothing

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Infographic_CanIUseThatPicture4.jpg

Happy Friday dear readers! I had a post planned this week about the whole GamerGate debacle sweeping through Twitter like wildfire, but then my wife went into labor on Monday night and long story short, I'm a dad now and all my energy has been spent taking care of my wife and infant daughter Hannah.

But in the very little downtime I've had at the hospital, I found this chart online and thought I'd share it with you. It lays out in fairly clear terms when you can and cannot use someone else's copyrighted work. I initially hesitated to share this chart because while the information is generally correct, the law in reality is never this clear cut, and reducing it to a simple phrase or image can be a dangerous proposition. As I wrote last October:

I like to give away lots of free legal information on this blog because I think it’s important for artists to have a basic understanding about how the law interacts with them. I was once in your shoes. I’ve had my ideas stolen, my copyrights compromised, and been in situations where a little legal knowledge could have saved me from a jam or two. At the same time, you can’t cut lawyers entirely out of the equation simply because you possess that knowledge. Legal information without analysis is just raw data. It can’t give you advice or insight. It can’t examine your specific situation and provide you with synthesized options based on that data (i.e. just because you know the fair use factors doesn’t mean you know how to apply them). No two situations are the same and everyone’s needs will differ depending on a variety of unforeseeable factors. Only a properly trained lawyer familiar with your circumstances will be able to navigate that minefield.

This is a reasonable view and I stand by it. Law without anlysis is just data, and data without analysis is useless. That said, I'm sharing this chart anyway because some of you may not have the finances to hire a lawyer, and having some information is better than having none. In fact, I've whittled it down to a pretty simple formula.

Advice From Attorney > Info From Internet > Nothing

So hang onto this chart and use it when you need to, but just remember that this is only part of the story and it may not apply to your situation. Be careful out there and call me or another qualified attorney if you have any questions about what this all means.

I'll be back soon with my thoughts on GamerGate and some other recent news items. Until then, Cheers!

If Art Can Be Used To Harm Artists, What Are We Fighting For? A Brief Rant

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With all the injustices going on in the world (Ferguson, Gaza, Ebola, Boko Haram, Net Neutrality, the Emmy's being held on a Monday night, etc.) it's hard to gin up outrage over anything else... but my parents didn't raise me to be a quitter.

Today's outrage comes courtesy of Ultra Records. Last month, Michelle Phan, a Youtube Makeup Tutorial Star (a profession that certainly did NOT exist ten years ago), was sued by Ultra Records for using the music of some of its artist in her videos; specifically, the music of Kaskade, Late Night Alumni, Deadmau5 and Haley. Ultra claims that Phan used over 50 songs without their permission, an allegation her spokesperson denies.

If the story stopped there, I would be plenty mad. Even if Phan did use the songs without permission, why is it necessary for a corporation to gang up on her and drag her into the legal system? Why are they suing her for $150K for each infringed work, the maximum statutory amount (totaling over $7 million in damages)? In most cases, a simple cease-and-desist would have been enough to resolve the issue. By suing her for that much money, Ultra isn’t even trying to disguise its greenlust. It’s the equivalent of going pheasant hunting with an elephant gun.

What pushes this case into the realm of the absurd is that Kaskade, one of the musicians Phan is accused of infringing, doesn’t support the lawsuit. In a series of tweets, he’s come out in support of Phan, stating that “[c]opyright law is a dinosaur, ill-suited for the landscape of today’s media.”

Maybe he’s right. It's ridiculous that someone like Phan could be held accountable for millions of dollars for infractions that amount to little more than being a music fan. And whether or not a court finds her liable, the mere fact of being dragged through this process can be debilitating for someone like her who is trying to find a modicum of success on her own. What can be changed? How can copyright law better address a world where media is much easier to use and reuse? I don't really have an answer, although I suspect that disincentivizing lawsuits and shortening copyright term limits are ways to get the ball rolling.

Look, I know it’s hard out there for independent record labels. Being in the business of art is difficult enough in the best of times, and we are not in the best of times. When you factor in illegal torrenting, uncountable revenue streams, and strong-arm tactics by larger companies, you don’t always think straight. And the result is that labels like Ultra and organizations like the RIAA end up brutalizing the little guy in a show of force that that far exceeds the initial infraction.

That’s why I spend so much time railing against these large corporate copyright holders on this blog. Copyright law was never meant to be used a bludgeon to ground out the petty infringers, although that’s how it’s often used. It was designed to make society better and, while we’re at it, throw a little patronage to creators of valuable intellectual property to show them that their toiling hasn’t gone unnoticed.

I know this doesn’t seem like a big problem in light of everything going on in the world right now, but I think it’s yet another clear indicator that our priorities in this country are far afield: focusing on the privilege of the big over the rights of the small. And if we don’t pay attention to this problem, it’ll just get pulverized by something bigger and louder. In times like these, I like to remind myself of a quote that’s often misattributed to Winston Churchill. And even though he didn’t say it, I think it perfectly sums up the battle before us. When Churchill was asked to cut arts funding in favour of the war effort, he simply replied "then what are we fighting for?"

My God! It's Full of Stars! The [Legal] Artist Enters The Terrible Twos

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August 17th is a momentous day in the Kanaan household for two reasons. The first and most important: it's the anniversary of my first date with my wife. Thirteen years ago I went on my last first date with a woman who would later marry me and encourage me to follow that crazy idea I had one day to go to law school. I love you Steph!

The second is that today is the two year anniversary of the beginning of this blog. That's right! The [Legal] Artist™ is now a toddler: running around shrieking, smacking pots and pans together, drawing on the walls, and putting its finger into electrical sockets. I am shocked the blog made it this far. When I started it back in 2012, I had just taken the bar exam and was looking for something to kill time until I got a *real* job. I fully expected that my blog would bounce around within my peer group, never to be read by outsiders. Boy was I wrong. The longevity of this blog has everything to do with you, dear readers. You read my musings. You commented on them. You argued with me about my conclusions. You passed these posts around to other artists who really need the information. If it wasn't for you, I doubt I'd still be writing. So for that I thank you from the bottom of my heart.

I've reprinted below my favorite fourteen posts from the last year in no particular order (because I couldn't limit it to just ten). Feel free to take a spin through these and help me rack up some more page views!

 

I look forward to making year three great, and I hope you continue reading and giving me your feedback to make this blog even better.

Excelsior!

My Take On The Great Monkey-Selfie Copyright Controversy

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Happy Friday friends! No doubt you've all heard about the Monkey-Selfie heard 'round the world and I thought I'd weigh in briefly with my take. In 2011, nature photographer David Slater set up his camera in the Indonesian rain forest to photograph the indigenous fauna. When he turned his back for a moment, a black crested macaque took the camera and started snapping selfies. That photo (possibly the greatest selfie in history) was later placed up on Wikimedia Commons and Slater sued to have it taken down, claiming copyright infringement.

Wikipedia, the company behind Wikimedia Commons refused to remove it, however, because it argues that Slater doesn't own the copyright and thus cannot enforce his claim. According to Wikipedia, the monkey took the photo, and because a monkey cannot own and enforce a copyright, the photo is owned by no one and exists in the public domain. Slater of course disagrees, and has spent thousands fighting this case. He even claims that it's even starting to ruin his business.

The case has sparked an interesting discussion online and I've seen many arguments in favor of Slater (it was his camera equipment, he did all the legwork required to get the photo and pressing the shutter was only the final step in a long series of steps that he, and only he, participated in, etc.) and as many against (ownership of the equipment doesn't impute copyright ownership, Slater didn't press the shutter and that's all that matters, there was a lack of intent and creativity on Slater's part, etc.). There's a rundown at Slate from a bunch of law professors explaining why Slater will lose.

Far be it from me to quarrel with a law professor, but I think Slater will win this fight for one very simple reason: copyright laws in this country prioritize financial reward for creativity above other rights. Chris Sprigman, a law professor at New York University, says in the Slate article that, “copyright’s not there to reward people for their labor—it's to incentivize people to create new books or poems." While I agree with Professor Sprigman that the original intent of including copyright protection in the U.S. Constitution was for the benefit of society as a whole, I don't think the legislative history really supports that argument very well these days... especially as far as corporate copyright holders are concerned. The Mickey Mouse Act extending copyright term limits is a great example of Congress prioritizing economic rights over moral rights.

And boy oh boy, if Slater wins, there's a ton of money to be had in monkey selfies. When you consider the fact that the only party in this case that could be financially harmed would be the monkey (who, for obvious reasons, cannot represent himself or be represented in the case), there's really no downside in granting the copyright to Slater. All the rest is window-dressing that a court can easily rationalize away.

What do you think?

Weird Al and Parody: Why It's Better To Ask Permission Than Beg Forgiveness

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There’s a saying that’s become popular in recent years: "it’s better to beg forgiveness than ask permission.” There’s a lot of appeal there for the Type-A, take-charge types and I completely understand it... if you want results, just do it since apologizing after the fact will be easier than fighting through red tape beforehand. Grace Murray Hopper, a former Navy admiral coined the term and you can see why. She was a career military woman and computer scientist and likely spent a great deal of time fighting through bureaucracy and institutional misogyny to get anything done.

In that context, the phrase has a lot of cache. As a lawyer who advises artists, however, I think it's a one-way ticket to bankruptcy. I've said as much before, but I bring it up again because Weird Al Yankovic is back with his latest album Mandatory Fun, and as always happens when Weird Al resurfaces, people are amazed to discover that he asks permission from other artists to parody their songs. Here's a snippet from a recent NPR interview with him:

NPR: Is it true that you don't need permission to do a parody of a song?

Weird Al: Legally, I say it's a gray area. I could get away with not getting permission, but I've never wanted to get away with that. I think it's more taking the high road to make sure that the artist feels like they're in on the joke. I want them to know that it is in fact an homage, it's a tribute. Like I say, it's more a poke in the ribs than a kick in the butt.

Not only is that an ethically sound practice, but it’s also correct from a legal standpoint. It’s generally understood in the entertainment world that parody - the art form Weird Al trades in - is considered fair use (i.e. it's not considered infringement under U.S. copyright laws). That's because a parody is designed to poke fun of a work of art rather than directly profit from it.

HOWEVER! That’s not the whole story. There are gray areas when dealing with fair use, and Weird Al gets that. He knows that parody alone doesn't give him unlimited permission to use someone else's copyright without permission. There are other factors weighed by the courts in determining if something is fair use, such as the commercial nature of the parody (i.e. is it financially profitable?), and the effect it has on the market for the work that's being parodied (i.e. does the mere existence of the parody cause consumers to stop buying the original work?). Depending on these and other factors, Weird Al knows that his work could, in some situations, be considered copyright infringement.

So he doesn't leave it up to chance and say "Whoops my bad" whenever he gets caught. He asks permission up front and if an artist refuses, he doesn't parody the work (here's a list of artists who refused to let Weird Al parody them). What Weird Al knows - and other artists out there would do well to remember - is that when your livelihood depends on using the copyrighted works of others, sometimes it's truly better to ask permission than to beg forgiveness. With money on the line, they may not be so inclined to forgive you.

Watching Out For Satisfaction Clauses In Freelancer Contracts

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Happy Friday friends! I wanted to drop in with a quick tip for enforcing your right to get paid. If you're a regular reader of this blog (thank you!), or you've attended one of my seminars (double thank you!), or you've hired me to represent you (hooray!), then you know my stance on getting paid for your work: It's a right. Not a privilege, not a luxury, a RIGHT. As crucial and necessary as breathable air and potable water.

The best way to enforce that right - the first line of defense, really - is to get the terms of any job you're hired for in writing. Every time. Without fail. In fact, I say this so much my wife cringes every time the phrase comes out of my mouth, but it's probably the most important thing you can do to protect yourself. But even when you get it in writing, that's not the end of the story; you can still get screwed out of your rightful payment. If you sign a contract that contains a satisfaction clause, you are basically telling the client that they can have your work for free. This is so common and so easy to overlook that I'm betting each of you reading this has signed at least one contract with this type of clause.

A satisfaction clause is a contract provision that allows the client to refuse payment if he or she is not subjectively satisfied with your work. In the law, we call this an "illusory promise" because the client actually has no legal burden to pay you. Now generally speaking, the courts don't like these types of clauses and permit them only in limited scenarios. In most cases, they'll try to ensure that the client acts in good faith and is genuinely unhappy with the work in order to enforce the validity of the satisfaction clause. But that's damn hard to do in reality because you're dealing with a subjective test of quality. After all, how can you really tell if the client dislikes your work or is just saying he does so doesn't have to pay you? See what I mean? That's why I hate these provisions with the fiery heat of 1000 suns.

If your contract contains a satisfaction clause, DO NOT UNDER ANY CIRCUMSTANCES SIGN IT. Period.

There are many other strategies you can adopt to ensure that you get paid for your work. In that light, I wanted to share this article I found a few months ago on Fast Company. It lists ten tips on ensuring that you won't get stiffed by a client. I don't agree with all of these (specifically, number 6: avoid working for friends and family seems unreasonable if you have a generally good relationship with them), and some of these may not be applicable, but I think these are generally pretty sound strategies.

Good luck and have a happy weekend!

The Supreme Court Kills Aereo Because It Found a Loophole

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In the aftermath of Wednesday's 6-3 Supreme Court decision stating that Aereo was in violation of the U.S. Copyright Act, there arose in the tech world an amount of hand-wringing that would make Helen Lovejoy green with envy.

When the decision came down, most media outlets proclaimed the demise of the innovative tech start-up. Others lamented the decision and lashed out at the bipartisan group of justices that wrote for the majority. Still others rushed to argue that no, the decision didn't mean the end of Aereo. A friend of mine, a subscriber to Aereo's service, is in the midst of the traditional five stages of grief. In a single day, he's cycled through denial, anger, depression, and now he's onto the bargaining stage, devising solutions to save the company so convoluted you'd need to divert physicists from the Large Hadron Collider to fully comprehend them.

The dust still hasn't settled and it will be a while before we know if Aereo can survive, but here's what we do know: Aereo used a series of antennaes to pull live broadcast signals out of the air and stream them to its subscribers. It did this without paying licensing fees to the networks who own the shows, unlike other broadcasters. Aereo argued that it was merely an equipment provider and not a broadcaster and therefore didn't need to pay licensing fees (hence why their rates are $8 a month as opposed to Comcast's $99). Six of the SCOTUS justices didn't buy it. Roberts, Ginsberg, Kennedy, Breyer, Kagan, and Sotomayor found that despite the technological back-end that made Aereo so unique, Aereo still functioned largely as a broadcaster of copyrighted material as defined by the 1976 amendment to the Copyright Act. They also said that Aereo was a "public performer" of the copyrighted materials. Taken together, these issues meant that Aereo has been violating copyright law since its inception two years ago.

Clearly, a lot of people don't agree with the decision, and this TechDirt article explains why. In essence, they claim that the SCOTUS used a "looks like something that infringes test" to get to their desired result. They looked at the surface and, without really understanding how the technology works, decided that it must be a broadcaster. Critics of this approach cite this as another example of the anti-technology, intellectual laziness that's hung over this particular line-up of justices for some time.

The critics are right in one regard: in determining a case, the justices should always try their best to understand how a particular technology works. Simply relying on a "looks like" approach is not the way the highest court in the land should operate.

But I'm not convinced that's what happened here. I've read this decision cover to cover (unlike other SCOTUS decisions which can be punishingly long, this one clocks in at a reasonable 35 pages). I wanted to hate the outcome. But to my eyes the justices did in fact understand Aereo's technology. They simply weren't convinced that the technology stood far enough apart from those of more traditional broadcasters to exempt Aereo from having to comply with the Copyright Act. This decision doesn't read like a "if it looks like a broadcaster then it must be" approach. It seems much more logical and considered than that.

However well considered the intentions though, bad law can still come out of it. Whether the Court intended it or not, the decision effectively gives cable companies and broadcasters - powerhouses that already lord over us - even more authority to run the board however they want. As I write this, Fox is using the three-day old Aereo decision as leverage in its legal battle against Dish Network.

It also raises a question of legitimacy, as do most of the recent decisions from this heavily partisan Court. In the decision, the justices state that the decision is narrowly tailored towards rectifying Aereo's specific actions rather than attacking technological advances by other start-ups in general. In other words, it looks like the Court is singling out Aereo for punishment, rather than deciding the law. And it does raise the question as to whether this case was really about technology, or whether it was a facade for something more sinister: loopholes (Scalia says as much in his dissent). Aereo thought it found a technological loophole so that it wouldn't have to pay licensing fees to the networks like Comcast, Time Warner, and AT&T have to. Was this a case of revenge? Were the broadcasters expecting the Supreme Court to act as a bludgeon for their interests? If so, that's the bigger concern.