Steady Diet of Film

News round up

The legal edition! Some interesting things happened this week in the thorny world of intellectual property rights.

The US Court of Appeals for the Tenth Circuit overturned the lower court's decision from last year's Golan v. Gonzales, stating that Congress did not violate the First Amendment with the the Uruguay Round Agreements Act. The URAA was a trade treaty that restored copyright protection to thousands of books, films, songs and other creative works that had previously been held in the public domain.

This outcome is disappointing for a number of reasons, the first being that all of these works will immediately become prohibitively expensive for filmmakers and artists to use in their works. Also, the predicate decision in Golan v. Gonzales was the first time a court had taken the stance that aspects of the Copyright Act violate the First Amendment. This decision also grants an astonishing amount of discretion to Congress about when/if/which materials should be held to the previous Public Domain standard.

Full text is available here. TechDirt (via Laure Parsons) pulled out this nugget from the court's decision:

In undertaking this review, we “must accord substantial deference to the predictive judgments of Congress. Our sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.”

“[S]ubstantiality is to be measured in this context by a standard more deferential than we accord to judgments of an administrative agency.” This deferential standard is warranted for two important reasons. First, Congress is “far better equipped” as an institution “to amass and evaluate the vast amounts of data bearing upon the legislative questions.” Second, we owe Congress “an additional measure of deference out of respect for its authority to exercise the legislative power.”
Even in the realm of First Amendment questions where Congress must base its conclusions upon substantial evidence, deference must be accorded to its findings as to the harm to be avoided and to the remedial measures adopted for that end, lest we infringe on traditional legislative authority to make predictive judgments.

Which is buffered a bit later on:

The idea/expression dichotomy ensures that only particular expressions, and not ideas themselves, are subject to copyright protection.... Additionally, the fair use defense allows individuals to use expressions contained in a copyrighted work under certain circumstances, including "criticism, comment, news reporting, teaching . . . scholarship, or research . . . and even for parody." ... Section 514 does not disturb these traditional, built-in protections, and thus, such protected speech remains unburdened.

Ultimately this case boils down to yet another sloppy, vague precedent instead of establishing a clearer understanding of what reasonable copyright protections are in an increasingly technologized world. It also spreads authority to interpret and enforce copyright standards to a group of political representatives who -- not for nothing -- due to a recent Supreme Court ruling can now be plied with limitless lobbyist dollars by special interest groups who have a vested interest in the most regressive protections possible.

On a brighter note, YouTube won a $1B copyright lawsuit against Viacom this week. A judge ruled that since the site had enacted policies making good faith efforts to keep copyrighted materials off the site they qualify for safe harbor protections under the Digital Millenium Copyright Act. Viacom has promised to appeal the ruling and after reading some of the e-mail conversations that were released in the evidentiary findings Mark Cuban is dumbfounded they even lost in the first place. USA Today sifted through the 30-page decision for the more tawdry bits. Such as the one below, wherein Viacom execs deal with the paradox caused by being involved with a lawsuit accusing YouTube of making millions on ad revenues from illegally obtained videos but that because of that high traffic their individual properties also benefit individual shows to keep clips on such a high traffic site and threatening the site with takedown notices began to alienate their own audiences.

"Viacom has altered its own videos to make them appear stolen." Indeed, Google says that a former president of MTV, not named, testified that Viacom didn't take down clips from The Daily Show and The Colbert Report because "we were concerned that Jon Stewart and Stephen Colbert believed that their presence on YouTube was important for their ratings as well as for their relationship with their audience."

LOLz! Maybe the appeal process will reveal how long it took Viacom to figure out they could put their own properties, on their own sites, charge advertisers and eliminate the need for lawsuits (not to mention the epic amounts of crab-apple e-mailing between CEOs).

 
Guest posting over at Documentary Television, Fair Use guru Pat Aufderheide sees a break in the clouds. She credits the Center for Social Media's creation of the Documentary Filmmakers’ Statement of Best Practices in Fair Use for fewer insurance claims being filed for copyright lawsuits and includes hard data indicating documentary filmmakers are still using loads of copyrighted material, now with a greater understanding of Fair Use.

It's certainly encouraging to know that corporations are finding new revenue sources besides blanket litigation which is causing fewer production insurance claims to be filed and undoubtedly, fewer headaches for producers. But I've been told (off the record) what some of these filmmakers paid just for the festival licenses to show their films with copyright-protected footage (typically broadcast news coverage) and in every case it far exceeded all other production costs.

Nor does it inspire a cozy feeling that these numbers were provided by a law firm who have recently developed a speciality in protecting filmmakers from IP lawsuits. But perhaps I'm still feeling drained by the 10th circuit thing.

Finally, earlier this week indieWIRE and The Film Panel Notetaker attended a benefit screening of Joe Berlinger's latest documentary Crude. Proceeds from the event will go towards Berlinger's mounting legal fees as he fends of a subpoena from Chevron who claim that they are entitled to his 600+ hours of footage to defend themselves against a recent class action lawsuit depicted in the film. From indieWIRE:

“What’s at stake is the basic trust between a journalist and a source. ... It is American media versus corporate interests and defense attorneys,” Berlinger said at IFC Center, previewing the battle that is brewing over the filmmaker’s footage. He called the coming battle an, “amazing squaring off of the media against corporations.”

“Outtakes are the same as a reporter’s notes,” responded WGA East President Michael Winship, on stage after the Stranger Than Fiction series screening in downtown Manhattan. Seated on the same panel, filmmaker Morgan Spurlock, who squared off against McDonalds in his own film, “Super Size Me,” also warned of the ramifications of a judgement forcing Berlinger to hand over his footage. Spurlock said it would send filmmakers and journalists down a path that would hinder news gathering and filmmaking. “It’s going to affect everyone,” Spurlock said.

Let's all balm our spirits with a happy little seizure, brought to you by the opening title sequence of Gaspar Noe's latest, Enter the Void:

Why the financial collapse is good for documentary film

Inspired by the recent fury directed at Treasury Secretary Tim Geithner we here at Steady Diet of Film have elected to take a brief break from dwelling on the misfortune and anxiety of the present economic climate. Instead, let us examine some of the good news for documentary/independent film-makers within the crisis.

1a. Venture capital removed from the financing process

Back when the economy was (artificially) good and there were millions of dollars in hedge fund proceeds with nowhere to go, many independent film producers found themselves on the receiving end of no- to low-strings attached investments. This money came from people with little to no interest in long-term careers in the film industry but who were excited to see their name listed as an Executive Producer on the big screen and the VIP treatment they received when visiting a film set. Unfortunately the projects that were most likely to attract this kind of investment were the ones generated from the odious and rapidly failing "Sundance model" of attaching A-list actors and actresses to projects imbued (not always legitimately) with credibility due to their lower budgets and quirky subject matter (thereby insulating the actor's reputation when they chose to follow up by doing movies with talking dogs). Films produced under these circumstances were unofficially dubbed the Sundance model because producers hoped their films would springboard from the annual Park City film festival to plush studio distribution deals.

In recent years, the viability of this model weakened. Fewer films were recouping their enormous purchasing prices. A few examples of spectacular Sundance failures are chronicled by the Onion AV Club here. As the Sundance model began losing steam in the narrative film market it was being applied to the documentary form with mixed results. A-list celebrities began doing voiceovers, on-camera appearances and promotional tours for documentaries with which they seemed to have little conceptual involvement.

Distribution is an incredibly lop-sided business tilting towards DVD sales. Very few films recoup their production, print and marketing costs theatrically. Yet they are forced to have some kind of run in theaters in order to garner press attention and avoid the stigma of going straight to DVD. Smaller films work with even tighter margins to ensure successful DVD sales. Ancillary revenues (such as television rights, pay-per-view as well as the embryonic but generally optimistic world of digital streams) pay out a much larger proportion of a film's final proceeds.

In the mid-aughts celebrity involvement was being courted more heavily to bring more immediate attention to documentaries. Theoretically, the hope was to elongate the theatrical runs and create more interest in follow up sales. In practice it proved somewhat effective for Nadia Conners and Leila Conners Petersen's environmental documentary 11th Hour featuring Leonardo DiCaprio which took in just under $1M at the box office. But this strategy fell flat for Nicole Kidman with I Have Never Forgotten You: The Life and Legacy of Simon Wiesenthal, Don Cheadle with Darfur Now and Joan Allen with The Rape of Europa. While celebrities are human beings, perfectly entitled to personal investments in social and historical causes the present climate of celebrity culture is inextricably enmeshed with crass commercialism. This makes it difficult for the public to distinguish between an endorsement of a social issue and a line of Louis Vuitton handbags.

1b. No new social networks.
According to a recent report from the BBC Facebook's user base is up 25% from last year. The user base of Twitter, the recently en vogue micro-blogging startup is up 1689% (the only services with that kind of growth in this economic climate are food banks). Without venture capital money at the ready to be poured into new and exciting (but completely profit-adverse) social networking ventures, it's safe to say that already exisiting sites are going to continue to be the main online avenues people use to connect with friends, meet people and learn all about your awesome film.

Independent film-makers having been sternly lectured to by distributors, festival panelists and filmmakers from the trenches that their MySpace/YouTube/website presence is the troika of their (necessitated) internet presence. Having a closer relationship with your audience will also give film-makers a greater stake in how the embryonic but generally optimistic world of digital streams will take shape over the coming years.

2. Newspapers are on their way out and people need to get information somewhere.

As print journalism dies a slow and painful death, news consumption is actually soaring in the United States. The Project for Excellence in Journalism released its annual State of the News Media report earlier this month. They found that not only are audiences gravitating towards individual journalists (and away from institutions of journalism) but that cable news networks have become perfectly acceptable venues for political discourse. Audiences have become too cynical to expect objectivity from reportage, but with increased access to their own universe of fact checking they are willing to give smaller outlets the benefit of the doubt. This creates a climate of receptivity to informative, thoughtful documentary work that critically engages its audience.

3. Audiences still pay to see movies

People are responding to economic uncertainty by cutting back on a lot of non-essential expenses like dining out and elaborate cell phone plans. But they're not willing to be bored no matter how bad it gets. The number of movie tickets sold dropped slightly last year, but it's worth noting that the gross revenues increased because movie-goers were willing to pay higher ticket prices than they had in previous years. The online movie rental giant Netflix hit 10 million subscribers in February 2009. In their 4th quarter for 2008 (when housing, insurance and stock markets hit crisis status), they posted profits up 19% from the previous year. Even Sony's pricey gaming console the Playstation 3 (starting at $400) trounced its top competitor the xBox360 (which starts at $250) in large part due to its built-in BluRay player.

4. Ken Burns is out of a job

No offense to the Emmy-winning documentarian who re-invented the slow pan of the still image, but the news that floundering auto giant General-Motors was ending their 22-year commitment to the film-maker signals great opportunity for film-makers down the food chain. Consider that Burns's previous films (covering the subjects of Jazz, WW2, Baseball, the formation of the West and the Civil War) have a combined runtime of 76.5 hours and have been PBS staples for the last 20 years. After Burns' six-part series on the national parks system airs this fall there will be an enormous gap in public television programming nationwide. Some of the larger PBS affiliates may respond by following in the steps of HBO Documentary and acquire more films from the festival circuits. Smaller affiliates may see this situation as an opportunity to work with more local filmmakers. Which brings us to my final point...

5. Film-makers will be forced to focus on their own backyards.

We do not need more western gonzo filmmakers heading to warzones to make documentaries  about the experience of being a western gonzo documentary film-maker in a warzone. These films are at best shallow, slight works and at worst self-congratulatory. They shamelessly exploiting the suffering of others for the sake of adding more mediocrity to the world. It's the film world's contribution to cultural imperialism and it simply needs to stop.

In a perfect world, these films couldn't get funding. In today's troubled economy, they might not, which might allow for film-makers indigenous to these regions and conflicts to speak for themselves. But really the chief concern needs to be the cessation of crappy gonzo docs.

Far be it for me to make light of events that are causing anyone anxiety or suffering. But in a time of chaos, when the systems we know are quickly eroding, there is opportunity for us to seize upon, adapt and destroy what doesn't work for us.

Mark Kermode threatens to quit over Bride Wars

BBC5 film critic Mark Kermode announced [direct .ram link] earlier today that if Bride Wars [trailer below] was not one of the 10 worst films of 2009 he would quit film criticism. Meaning if in the next 356 days (the film comes out January 9th) there are more than nine films produced that are worse than Bride Wars he will end his nearly 30 year career as a film reviewer. For any fan of pithy (but never glib) film criticism this is cause for great concern.

He goes on to outline some of the movie's grimmer offenses:

• "Some people will tell you this is a chick flick, only in the sense that if you ground it up and fed it to battery hens it might be better served than running it through a projector."
• Kermode affects an exaggerated American lisp to ponder whether the ultra-skinny Kate Hudson takes up less physical or intellectual space in the ether.
• He then goes through the entire Kubler-Ross gambit of emotion determining whether or not the film is an existential homage to Harold Pinter, satire or just terrible.
• The show is broadcast live, and a listener writes in with an idea for a possible Bride Wars sequel, combining the concept with Steve McQueen's film Hunger about the 1981 IRA hunger strikes in which 10 prisoners died.

Film industry, I implore you, we cannot lose a critic who can summon (and inspire) such delightful observations from a film that's clearly blasé as Bride Wars. Pick up your game, chowderheads!

Robert DeNiro to indie film-makers: Here's Your Future, It's Gonna Rain.

 

By way of Agnes Varnum, the Tribeca Film Institute has commissioned a report on "The Economics of Independent Film and Video Distribution in the Digital Age". The report consists of semi-on the record interviews with considerable names in producing, directing and distribution but does not specifically identify quotes or anecdotes to specific parties. It's a fairly standard mix of doom, gloom and  blindingly positive (though mostly undefined) optimism about the impact the internet will have on independent film-making.

Two points stuck out to me about this report. The first being the discontent academic-exclusive distributors have about the "life of the product" licensing fees they reap (which according to this report can be upwards of $100,000). Ideas are being bandied about by distributors for a pay-per-stream model but that probably seems like Blade Runner territory for the people still ordering VHS copies of educational films.

The other issue is a passage on the issue of copyright, intellectual property protections and Fair Use precedent.

[S]everal filmmakers noted that that foundations are beginning to advocate more explicitly for broadening access in the grants they make for media production. There is a sense that the filmic community has to engage in more testing of copyright boundaries and fair use, and that foundations are exploring how to encourage and facilitate greater experimentation among their grantees.

In other words, foundations are seeking out film-makers to use as legal test cases. I am loathe to be in the business of defending people who get into agreements they don't fully understand, but the potential for exploitation here is downright frightening.  

A film-maker trying to make a film on a credit card while working a series of temp jobs is going to have a difficult time turning down a $100,000 grant, but getting involved with a legal battle with one of the major six film studios could be a commitment of that film-maker's natural life. A lot of film-makers count on a mix of the Fair Use precedent and "flying below the radar" for legal cover if they want to use copyrighted material. But once you cash an organization's check that is now officially on the record of courting test cases, you are no longer under the radar.

And while no specific case study is provided, it can't be ignored that one of the foundations listed as being interested in testing these boundaries is the Gates Foundation. As in Bill Gates. As in Microsoft. A company that has been to federal and civil court dozens of times trying to preserve every last strand of intellectual property protections and has been sued by the European Union for monopolistic practices. So now the profits from those legal endeavors will be funneled into busting and changing the laws that helped make Microsoft so successful? There's something is rotten in the state of Denmark, people.

And in the interest of full disclosure, I run a documentary distribution company and we take a no-risk, highly conservative read on the Fair Use precedent. I have a lot of respect for people who put their time and money into being test cases for laws that are protectionist at best and collusive at worst -- but I do not intend to be one of them.

Michelle Pfeiffer goes straight to hell on a dvd.

A recent issue of Entertainment Weekly featured a story titled "Would You Dump This Woman?" (beside a full-page close up photo of Michelle Pfeiffer) to open an article detailing the twisted saga of how I Could Never Be Your Woman was made.  The film started out as a modest romantic comedy with two bankable stars (Pfeiffer and Judd Apatow go-to, Paul Rudd) from a well-known director (Amy Heckerling of Clueless and Fast Times at Ridgemont High) but through an alarming number of bad producing decisions and ego plays wound up being declared a failure before it ever opened theatrically and sent to dvd.

EW's Missy Schwartz, while not giving producer Phillipe Martinez a pass on his bad choices, accepts MGM's excuses that a film centered on a middle-aged woman simply cannot be marketed and without the dvd and television sales (Martinez had parsed all ancillary rights to Miramax) to cushion the inevitable box office blow, the $15M production budget as well as any marketing costs would be completely lost.

Schwartz also blithely states that Pfeiffer has "been MIA since 2002's White Oleander", uhm don't tell that to anyone who saw Hairspray or Stardust (totaling $335M worldwide).

This "Dumped" article is also published just one week after the New York Times ran its piece "Direct to DVD Releases Shed Their Loser Label" about how lucrative the dvd market can be for films with budgets around $10M. 

But writers like Schwartz would also do well to remember the critical duds like Crash and Must Love Dogs that became enormous commercial successes ($156M worldwide) bolstered by women Michelle Pfeiffer's age. Each of these films' successes were followed by a crush of news articles about what a surprise it was that women over 30 go to the movies. All the more audacious considering the article is run in the same issue that declares that Juno heralds a return of the "girl anti-hero" (hinting that every striking writer is going home at night and working on a script to hit the moody, pregnant teenage girl rom-com jackpot). Tacitly telling women, "enjoy these stories now because as soon as your clock strikes thirty you go back to being a pumpkin."

I Could Never Be Your Woman will be available on a bare-bones dvd February 12th. See the trailer. 

What's a girl to do?

Mary McNamara at the LA Times has a great piece this week (with follow up commentary from the brilliant Jezebel) about actresses of substance (read: over 35 with minimal plastic surgery) who are signing on to television gigs.  She reports this not as a renaissance for television but as yet another nail in the movie industry's coffin and a denigration of one of our finest national resources, our actresses. 

I'm taking a glass is half full approach, have you ever talked to a fan of Kyra Sedgwick's TNT series the Closer? When phrases like "the greatest television character ever created" are being tossed around (not to mention the show's record breaking ratings it's hard to see this as a downgrade -- especially when such admiration is rare for film character of any ange or gender.   

Then let's consider that women over 35 are a demographic that's been essentially written off by Hollywood -- but shows like Weeds, Desperate Housewives, Damages and the Starter Wife are giving ladies something to watch in a summer of Superbads and Simpson Movies (both of which I loved, but my mom wouldn't watch on a bet) that's still meatier than re-runs of Extreme Makeover: Home Edition or Two and a Half Men.  And let's face it, whenever the sitcoms lose, America wins.

This is a point I've been making (to many guffaws from film lovers) since Buffy the Vampire Slayer ended.  Is it any wonder viewers felt so invested in Buffy Summers's future enough to rally its creative team to create an additional 'season' in a series of graphic novels (not to mention make minor hits out of some of the horrible films actress Sarah Michelle Gellar made post-Buffy)?   After spending an aggregate 104.8 hours, that's 6.5 seasons minus commercial breaks, with her we probably know her better than we do our own families.

And Greg Braxton reports today (also with slideshow!) that young black women may have it even worse:

The [Black Best Friend] syndrome isn't something that Hollywood likes to talk about, even as it continues to be a winking in-joke among blacks in the industry. One African American actress said that she and her actress friends tease one another about forming a support group for characters who had to help out their "woefully helpless white girls."

Though I feel I must defend Merrin Dungey's presence in Alias.  Francie had the emotional and romantic life that protagonist Sydney Bristow was never able to (life/work balance was a constant theme of the series).  And when Dungey's character was killed off she was brought back as one of the best villains the show ever had, an evil spy who's had massive surgery to resemble Bristow's best friend and infiltrate her life.  Which culminated in what had to be the greatest fight scenes ever committed to whatever they shoot television on:

Maybe she just got her period..?

Karina Longworth at Spout blog brought this sad story to my attention about the scuffle going on between Sony Pictures, director Julie Taymor and Revolution Studios producer Joe Roth over the final edit for Beatles teen rock opera Across the Universe.  Now I don't know anything about Julie Taymor, every word of this article may be true but it seems very odd that so many people are allowed to comment (anonymously, natch) on her mental health as well as what her representatives at CAA are thinking with nary a call put in for a 'no comment' from their camp.

No one's mental instability can be demonstrated by the simple fact that they once got into a screaming match with Harvey "the douche against which all douches shall be measured" Weinstein.  I'm pretty sure the New England Journal of Medicine has mentioned him by name.   

I do enjoy that the writer illustrates how much of this clusterfuck was caused by all the convoluted deals made with free agent producers and the revolving door culture of executives at corporate studios.  It's a combination that makes constant miscommunications and weird grudges become inevitable, even if this article couches it all in this "everyone just wants to be NICE" noise.

There is hope for humanity...

It appears that good taste and the all powerful "women's groups" prevailed at the box office this weekend.  Captivity, the latest installment in the torture porn genre, bombed. Which is, predictably, leading many bloggers (I'm sorry, entertainment journalists) are predicting the downfall of gore porn and the entire genre of horror. Allow me to lay out a few alternate explanations:

• Audiences (especially the younger viewers that horror film-makers target) are increasingly media savvy.  When your film is getting more attention for the controversy around your posters and release parties it's clear that something is rotten in the state of Denmark.
• Reviewers are now publicly calling out films that don't bother hosting press screenings.  It's catty but I love it.  Also, the list of films that have done this is an all-star team for the Razzie nominations. 
• Anything that appeals to people's sense of 'the extreme' is either going to burn out or become so mainstream that no one will care anymore.  Captivity is sort of the victim of both of these things.  Roland Joffe is an Oscar-nominated director (lolz) and Elisha Cuthbert is a famous television actress -- sort of sears away a lot of horror film cred that have appealed to the purists.
• Any genre where Eli Roth is setting the high watermark sucks, Suck, SUCKS!  So don't look so surprised. 
• PR Flacks are (allegedly!) resorting to making their interns post positive comments in the metaCritic comment section (double lolz).

So clearly you should just go see Paris Je'Taime instead!   

Just let me live in your brand, Matt Groening!

Despite some of the inherent smarminess of its conception I'm shocked by how positively I'm responding to the marketing campaign for the Simpsons Movie!

+Giving a select few 7/11 locations a makeover to look like Apu's Kwik-E-Marts is so much cooler than those cheesy product tie-ins of Spiderman and Star Wars collectible soda cups.
 
+Mr. Burns guest-blogging for Jet Blue airlines:

Mind your profit margins, man. Your rates make a mockery of the corporate greed our great confederacy was built upon. Who taught you to be a robber baron? Mother Teresa?

+Make your own Simpsons avatar!  Here's mine.

+Raffle for a limited edition xBox360 designed as a Homer head.

+Having Springfields from around the world compete to host the premiere.

+A couture fashion spread in Bazaar magazine.

+Paint cornfields.

Though to be honest, all this time and money has been wasted on me.  As an Evergreen alum I always support our few famous geoducks (uhm, except for when they go on crazy, racist tirades).  Springfield, ahoy-hoy!

I'm starting a rumor!

Warner Bros. Pictures has purchased the film rights to Rachel Boynton's documentary Our Brand Is Crisis for George Clooney's production company/family dining establishment Smoke House to produce.  Could this mean Clooney will star as the Raging Cajun who 'took all the credit for getting charisma machine Bill Clinton elected'* and then spent years pissing, whining and crying before exporting his mad skills to destroy third world democracies ?

Good luck, Clooney, those are mighty big shoes Billy Bob Thornton has left for you to fill. 

*thanks, Sarah.