Three Cheers for Fair Use From a Movie Critic

Hooray for the fair use doctrine! As a movie critic, I rely on it the way Hollywood relies on comic book sequels: Constantly and without shame.

Copyright keeps the ownership of a movie with the people who made it, allowing them to control where it’s shown and profit from it. Fair use protects my right to call the movie an indulgent, narcissistic journey through the director’s surprisingly uninteresting psyche.

giphy-9

Everybody wins.

The movie critic gig works like this: I get invited to screen a movie, either through a big PR firm (most big studios), a smaller PR firm (most indie movies), or direct invitation of the moviemaker (very tiny indie movies with no promotion budget).  I then see the movie, usually in a theater but sometimes via DVD at home. Sometimes the PR folks will pitch an interview with someone involved in the making of the movie, a director (usually fascinating), a writer (also fascinating), or an actor (often far less fascinating).

Then I write.

Usually a review is straightforward:  a dismal reflection on the state of the arts in America today or (more rarely) a blissful ode to joy and all that is wonderful. The structure usually includes a basic reaction with a brief description of the plot and characters, an analysis of the strengths and weaknesses of the movie, a bit of warning about content for parents to consider, and a general endorsement or lack thereof. Sometimes, however, the movie critic muse strikes and one writes a review in the voice of a character or from an alternative universe, something along those lines.

giphy-10

 

When the review is published, whether online or in print, it is often accompanied by a photo or two,  or often with a movie clip. When the review is on camera, either on TV or online, it will often include clips of scenes from the movie or the trailer.

The people promoting a movie usually make photos and video available for use by critics. They essentially grant a free license to use the materials with certain limitations, often that the material be used for criticism, that it not be sold commercially, and that the material be attributed to them. Fancy outlets will sometimes alter the photos to fit a certain visual theme. Most of us hardscrabble critics don’t have the staff or time for that. Almost all on camera reviews edit the video to fit with the spoken part of the reviews.

All that’s left is to upload the link to Rotten Tomatoes and respond to the anonymous internet folk calling you a know-nothing idiot or a bought-off hack (if only..still waiting for that cash to flow in).

The big studios are very professional about bad reviews. They generally knew when they had a stinker, although they won’t admit it. I guess they figure if you don’t like Captain America VIII, Captain America IX will be along soon enough.

But sometimes you review a film into which some poor dear has poured all her passion and energy, not to mention money. Passion + energy + money sometimes makes a good film, but you need talent in the mix too. Every once in a while, a filmmaker will threaten legal action because they are not happy with the review you wrote. Defamation is a big threat, and copyright infringement sometimes enters too.

That’s when it’s great to point out (or have the lawyers point out) a little thing called the First Amendment and its little sister, the Fair Use defense.

giphy-11

What the doctrine does not allow me to do is to use the characters or images in my own work that is not criticism or parody. I can’t make a better indulgent, narcissistic journey through a boring psyche using the same characters or plot. Believe me, there are plenty of boring psyches to go around, anyway. I can’t sell t-shirts with a screenshot of the movie on them. And I certainly can’t bootleg the movie to show friends how bad it is.

In other words, I can point out that the filmmaker made a movie that sucks, but I can’t take actions to substitute my product for theirs. It’s not a hard distinction in the movie critic world and it should not be in other areas as well.

So here’s to Fair Use, keeping everyone in their lanes and balancing the interests of ownership with the interests of speech.