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.

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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.

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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.

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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.

Calling All Creatives – Copyright Monkey Business in DC

While you’re busy actually creating the works of art that edify our culture and put food on your table, there’s monkey business going on in Washington, DC. Survey Monkey business, that is.

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This drama is over at the Copyright Office. The place you depend on to register your works and promote your right to own and control your work.

Back in October, the Librarian of Congress removed Maria Pallante, the Register of Copyrights, from her position. Pallante was generally regarded by the creative community as understanding the needs of creators and being an advocate for them. Her removal  happened suddenly and with a lot of confusion. No one is really sure why or what that means for copyright policy. Best case scenario, someone good is appointed. Worst case, the people  who want to use all the work of the creative community – for free – end up inserting their pick.

What do I do, you ask? Well the Librarian of Congress has taken the odd step of posting a Survey Monkey survey online to solicit responses about what the public would like the next Register to be like.

You can find it here.  It will only take a minute or two to fill it out.

 

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It’s an oddly vague survey, but here are some suggestions on what would be beneficial. We need someone who understands and appreciates the work and passion the creative community puts into their work. Someone who knows how hard it is to make it as a creative and is concerned when people take advantage of them by pirating their work. Someone who is forward thinking and sees the need for the Copyright Office to have updated technology (the system is incredibly outdated, as you know if you ever have tried to use the website to register your work). Someone who understands property rights, that if you create something you should benefit from it. That kind of person.

Often with online surveys in this contested area of policy, we see a lot of responses from the tech community, who tend to want everything to be free to everyone. Taking a minute to respond will keep them from drowning out creatives.

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More information here and here.

Photo used under a creative commons license by Alexandre Darth 

4 Reasons Conservatives Should Care About Strong Copyright Law

Ain’t nobody agreeing on policy these days. Heck, we don’t even agree with our own parties,  Democrats fighting Democrats and Republicans fighting Republicans all day long. Besides agreeing that Simone Biles is amazing, it seems Americans don’t have much to agree on.

Except copyright. People in red states, people in blue states, even people in red states turning blue, can agree that protecting creators’ ability to control and profit from their work benefits us all.

I’m a conservative myself. So, for my fellow right of center folks, here are reasons conservatives should care about protecting copyright.

Strong Intellectual Property Laws Encourage Innovation

America brought the world the automobile, rock n roll, and the desktop computer. We did it because we are a dynamic people, always looking for how we can improve the world. But not just that. People innovate because they think they see a spot in the market they can fill and make a buck, maybe a lot of bucks!

It’s all about incentives. Copyright protects the potential to profit off your innovation (as do copyright’s cousin – patents). If you do not think there is a chance you will make money, why invest time and effort writing a song or your great novel? How can anyone but the very rich invest decades mastering, say, an electric guitar if they won’t be able to support their families playing it? In fact, if copyright does not protect you, the incentive is to choose something safe to put food on the table rather than risk innovating.

Copyright protection promises that if your novel hits it big, like Harry Potter big, you will get the benefit of that success. It gives you a financial incentive to shoot for the stars.

People Should Benefit From Their Hard Work

Hard work leads to rewards. Those who don’t work hard do not deserve to get big rewards. This is a conservative mantra. We love scrappy small businesses who build something out of nothing. We love big corporations who employ millions (so long as they play by fair rules).

But what if your hard work is in making a film? Writing cookbooks? Composing songs to sing at church? Sometimes conservative circles do not see these types of innovations as deserving. After all, a girl messing around on the piano is hardly hauling hay for the afternoon feeding of the cattle. An author tapping away at Starbucks is hardly building a new skyscraper.

This is faulty thinking. If someone works hard, whether it be with brains or brawn, they deserve to benefit from that hard work. It takes decades, not to mention talent, to become a professional musician. It takes months of painful labor to write a book. An author is a businessman as much as a farmer and deserves to profit from his work. Conservatives don’t think there’s anything wrong with making an honest buck. Conservatives should be encouraging that in the creative arena as well as in the physical.

People Should Pay For Benefits They Receive

There’s nothing wrong with making an honest buck, but there is something wrong with freeloading. This is why conservatives oppose excessive entitlements, creeping socialism, and lawlessness. Stealing in any form undermines a society. It not only hurts the producers, but erodes the soul of the person freeloading. There is dignity in paying for what you want and need, even if that sometimes means you go without, but very little in accepting endless handouts.

Conservatives believe this strongly, except when it comes to the Internet and copyright infringement. People who would never take a welfare check do not balk at downloading a pirated movie. People who would never steal a paperclip from work don’t think twice about listening to unlicensed music.

It’s easy. It seems small. And it’s wrong. Stealing is stealing in any context. The true conservative value is that people should pay for any benefit they receive, the market should work freely, and stealing should be stopped. The Internet should be no exception. Strong copyright laws protect that value.

Copyright is in the Constitution

Article I, Section 8, Clause 8 empowers Congress to “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Conservatives are all about sticking to the Constitution. The Founding Fathers thought Copyright was important enough to specifically mention in the Constitution. They knew that protecting innovation would lead to a strong country. And they were right. Times may have changed, but the basic principles by which we live remain the same.

Take Action

Go ahead and speak up. The Copyright Alliance has posted an open letter to all 2016 Political Candidates, asking them to promote strong copyright laws. An easy way to support strong copyright is to go here and add your name to the petition.

IMG_4988About the Author: Rebecca Cusey is a writer and law student. She writes about movies and other things as a Senior Contributor for The Federalist and as a Policy Fellow at the American Conservative Union. She studies law at Antonin Scalia Law School at George Mason as a third-year student focusing on Intellectual Property. She lives near Washington, DC with her adorable husband and dashing children. 

header photo credit: Photo4Jenifer under a creative commons license.

It all Started with a Story

It all started with a story. I come from a long line of storytellers, my father telling the one about how he convinced his buddies Bigfoot was lurking in the high Sierras in the 1960s, my grandmother telling the one about my aunt vomiting all over the posh Claremont Hotel in front of  horrified society folks, my grandfather twisting gnarled fingers around his cane as he recounted his battle on WWII Peleleiu.

Some of the stories are true as a halftrack on the coral beach. Some grow like cloud castles from just a small grain of truth.

We do it in our own family, telling and retelling stories, sitting around the table, in the car, in front of friends. The time my husband was jailed in Peru (he got out), the time the house got struck by lightning (on our anniversary, no less!), the time the Dali Lama petted my husband’s cheek (he was quirky).

We love stories of others too: the books that inspire (Les Miserables) and amuse (Carry On, Jeeves); the movies that shine light (The Tree of Life) or help us through hard days (Galaxy Quest), the songs that excite (Hamilton’s The World Turned Upside Down) or soar (anything by Whitney Houston!).

As a television and movie critic, I am increasingly amazed at the passion, talent, earned skill, and old fashioned hard work that goes into making stories in the modern era. It takes decades of training, not to mention significant financial investment, to become a filmmaker, a photographer, a songwriter, a screenwriter, a graphic artist, a creator. I have come to deeply respect those who make art and/or entertainment. It’s not easy.

They tell our stories.

Stories can be shared. “You’ll never guess what happened to my aunt’s friend’s cousin!” They can be recommended. “Seriously. Watch ‘No Country for Old Men.'” But it just feels wrong if they are taken.

The Dali Lama petted my husband’s cheek, not someone else’s. Jean Valjean came out of the imagination of Victor Hugo, not some schmuck at a Starbucks.

I think this is why copyright matters to me. There is an integrity to it. An honesty to owning your own work, your own art, your own story, against all the world.

Sure there are nuances and edges to that right, and that’s where the fun comes in.

I’m Rebecca Cusey. I am a third year law student at Antonin Scalia Law School at George Mason, a writer, a lover of art, and a person fascinated with how the law intersects with that. I’ll be blogging here thanks to the good people at the Copyright Alliance. Here we go.