Nov. 9th, 2007 08:33 pm
Copyright and fair play
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textualdevianceA few words about the WGA strike and Prince suing fansites...
I'm absolutely tickled to see how much of fandom is jumping on the strike support bandwagon. I think that's something that the studios hadn't counted on. They probably thought the public would all be upset and whiny at losing their constant IV drip of entertainment, but nope. At least not from the hardcore fans, who represent such a huge revenue stream in the first place.
It's sad that this is further evidence that the studios haven't yet hit the 21st century. The Net is a massive opportunity for revenue, but because they're so panicked about piracy, they have yet to fully take advantage of it. The RIAA, even though they finally got their shit together, is still smarting from a decade of ignoring the potential of single-song digital sales. Now said sales represent a huge chunk of their annual revenue.
I do hope, however, that all this fervor with fans supporting their favorite writers trickles down into them understanding the purpose of unions in non-glam professions as well. I would very much like to see people stop bitching about the "inconveniences" when other workers strike, and acknowledge that the ownership class, were it not for unions threatening said strikes, would be paying us all a dollar a day and working us 60 hours a week (kind of like how they do it in developing countries that don't yet have labor laws or unions.)
The free marketeer libertarian sector likes to go on about how governmental regulation limits business, blah blah, yet they're also against unions. And the thing is: unions are not a governmental regulation. They are private organizations; groups of workers who know that they have no bargaining power with management as individuals. Theoretically, in a free market, each party to a business transaction is free to negotiate for the best price. But that's simply impossible when you have monopoly and monopsony situations. Just as the sole seller of, say, toilet paper in a small town can get away with charging whatever they like because there are no other options, the sole or largest employer in a small town can get away with paying its workers next to nothing and treating them like garbage. Without unions and governmental regulations to fight for these workers and consumers, we'd be screwed.
There are excesses in some unions, but the overall concept of them is sound, and cases like the current one should make it clear that they are necessary.
There are a couple of different issues in the Prince case. I don't know who the particular defendants are in this case, but there are a few legal principles here that apply.
1. Still and filmed images, music and lyrics, works of art (regardless of medium) and any other product that generates from a creator or creators are all subject to copyright the instant they are created. One cannot copyright an idea, but one does have copyright to the execution of that idea.
2. The creator, unless he or she has signed copyright over to someone else (say, a distributor or publisher), owns the sole copyright to his or her creation, and has the sole discretion on whether and how the work may be reproduced and distributed.
3. Additionally, people also own the right to their own person. Other people cannot make money from your image, name or voice without your permission. For example, one can't use an image of Bono or a U2 song to sell tires unless one has permission (and usually payment contracts.)
There are a few exceptions to all of the above, usually boiled down to what's called "fair use." A small image used to illustrate a news story, for instance, is fair. Selling your own photos of a celeb at a public event is also fair (though you can't use those images to advertise other things.) Legitimate parody (as fanfic usually is considered) is also fair use.
What this generally means for many fan sites is that yes, the images, lyrics, songs, video and other materials you post are copyright violations, and often also trademark violations. Ever seen someone selling "crafts" with copyrighted images or words on them? That's a violation. Seen someone begging for money for video bandwidth? That's a violation. Songs on someone's MySpace? Violation. Technically speaking, the icon on this post is a violation.
By and large, most fans and fan sites don't get pestered by copyright or trademark owners because they're small time and therefore not worth pursuing. When I was running BEI, neither New Line nor any of the photo agencies ever complained about what I did. My interpretation of fair use at the time was that since I wasn't making any money from what I did (the few ads on the site didn't even cover hosting costs, much less other production costs) then I wasn't interrupting the potential revenue stream for the studio or the photo agencies.
But technically, I was. It could be argued that my site was diverting audience from other media who were legitimately purchasing the agencies' images, therefore drying up the revenue stream for said agencies. I didn't have to actually make any money from the site to be making a dent in their bottom line. Why, for instance, buy a copy of Entertainment Weekly with a huge spread of red carpet pics if you could get the same pics for free on my site?
The same issue wasn't necessarily true for the studio stills I posted. Technically, those are considered promotional images, and therefore I honestly was just giving them free publicity. So the copyright issue--in terms of interrupting the revenue stream--wasn't really anything big there. But what WAS an issue was the way I used the photos. The fact that there was plenty of controversial content on BEI, juxtaposed directly with New Line's images, meant that I was using their trademarked material in a way that they could legitimately claim was not how their marketing team would have wanted.
All of this is part of why I closed my sites. Once I realized that no, what I did didn't qualify as fair use, I closed up shop and deleted everything. Given that I wanted to pursue a legit journalism career, it wouldn't have been terribly kosher to violate copyright laws. ;)
Personally, I think Prince doing this is shooting himself in the foot, and I do think fans ought to have some better means of legal access to the stuff they want (see below), but the sad truth is that yes, he does have a legal case for what he's doing, and there's no sense in whining about it.
Now, as for why I chose to put these two things together in one post: They are related.
It's rather ironic that fans are so heartily supporting the WGA when almost every day, most of fandom violates copyright for what those writers produce. Arguments (legitimate) about how much studios/publishers screw over talent aside, if we really want to support our favorite artists, why do we constantly steal their work? It's true that writers are getting only a tiny fraction of, say, DVD sales, but every time you BitTorrent a movie, you're taking that .03% away from the writers of that production. Stealing is not the way to send a message to the studios that their contracts with talent suck.
And in fact, this stealing is one of the reasons why these contracts are so lousy in the first place. Because of a decade of digital piracy, the studios panicked, and aren't adapting to digital distribution the way they should.
Sure, we can argue that a few fans snagging video and photos don't really matter, but we do add up. Honestly: if we expect our collective voices to make enough of a difference to the studios that they'll reconsider the WGA contract, then we are a large enough group to create financial problems with piracy.
I realize that fans don't intend to violate copyright in a way that hurts artists. Generally speaking, the largest segment of piracy comes from people who either want something for nothing (under the idea that art "should" be free--apparently this means artists "should" starve) or actual big-time pirates who make a ton of money selling bootlegs overseas.
Most fans I know, when they violate copyright, do so for one of two reasons: Either they can't wait until a release date for something and they gottahaveitnownownow or they can't get exactly what they want in the right format. Who wants to be stuck having to go to a noisy, smelly cinema when you have a kickass home theater system and the ability to download an entire film in 5 minutes? If provided with legal means to do this, fans are willing to pay for it. I know I am. I happily spend $3.99 to order On Demand movies from Comcast instead of dealing with the hassles and delays of theaters, video stores (even Netflix) or cable channel schedules.
I think the studios are starting to understand this. They're understanding that people just aren't willing to get their entertainment on a specific feeding schedule. And they're understanding that what general-purpose media provide in the way of promotional materials and such is only a mere fraction of what hardcore fans really want. When red carpet photogs take 112 pics of Hottie du Jour, and only three of them make it into In Touch, of course your average fan of Mr. du Jour is going to go hit the fansite with the 112 pics instead of the magazine.
Full disclosure and pimpage: My new employer is actually a hell of a great source for stills and red carpet pics. Perhaps not the largest collections, but we do have a ton of stuff--far more than you'll find almost anywhere else. And if I have anything to do with it, we'll have even more stuff as we continue to grow.)
But... what if that fan of Mr. du Jour could go to WireImage or Getty and actually purchase her own copies of those 112 photos? What if membership at these agencies wasn't restricted to only "legit" media, but could also be open to the general public? What if there was a public account that gave access to downloads of low-res, relatively small (say, a max of 480px wide) photos? If fans could get their own accounts there and either pay a monthly fee for this or pay for each photo individually (say, a dollar each), the photo agency would not only not be hurt by piracy, but would have an entirely new revenue stream. If only ten thousand fans each paid $100 for their very own collection of red carpet pics, that's a nice chunk of cash for the agency. Cash they wouldn't have had otherwise. And the mainstream press would still get business because they'd have higher-res pics and better editorial content. This distribution model already works for other media. There's no reason it can't work for filmed or photographic works.
Instant, flexible-size, direct digital distribution isn't the future, it's the present. But copyright holders just aren't taking advantage of this the way they should. In an ideal world, most of the middlemen who are sucking fans' money and not giving it to the artists should be cut out. Their original purpose--to negotiate with media manufacturers, theaters and such--has been eclipsed. Musical artists don't need people to produce and manage vast warehouses of CDs. They can just throw their new album up for download on their own site. TV producers don't need networks. They can post streaming video of their stuff. About the only thing that labels and studios are still good for is promotion, and these days, fans are doing plenty of that themselves, being enlisted by artists as "street teams" to pimp their stuff.
Some level of management is and always will be necessary--artists should be spending their time creating, not worrying about accounting and retaining legal teams--but the bloated major media conglomerate model is about to collapse under its own weight. I hope that this strike wakes the studios up to this fact before things get even more out of hand.
But if stability in the entertainment industry is going to happen, both fans and studios are going to have to get some big sticks out of their asses. Fans are going to have to demonstrate that they are willing to pay for their entertainment, as long as they can otherwise get it on their terms, and the studios are going to have to demonstrate that they are willing to set up distribution models to do this--ones that are fair to both audiences and talent.
I'm absolutely tickled to see how much of fandom is jumping on the strike support bandwagon. I think that's something that the studios hadn't counted on. They probably thought the public would all be upset and whiny at losing their constant IV drip of entertainment, but nope. At least not from the hardcore fans, who represent such a huge revenue stream in the first place.
It's sad that this is further evidence that the studios haven't yet hit the 21st century. The Net is a massive opportunity for revenue, but because they're so panicked about piracy, they have yet to fully take advantage of it. The RIAA, even though they finally got their shit together, is still smarting from a decade of ignoring the potential of single-song digital sales. Now said sales represent a huge chunk of their annual revenue.
I do hope, however, that all this fervor with fans supporting their favorite writers trickles down into them understanding the purpose of unions in non-glam professions as well. I would very much like to see people stop bitching about the "inconveniences" when other workers strike, and acknowledge that the ownership class, were it not for unions threatening said strikes, would be paying us all a dollar a day and working us 60 hours a week (kind of like how they do it in developing countries that don't yet have labor laws or unions.)
The free marketeer libertarian sector likes to go on about how governmental regulation limits business, blah blah, yet they're also against unions. And the thing is: unions are not a governmental regulation. They are private organizations; groups of workers who know that they have no bargaining power with management as individuals. Theoretically, in a free market, each party to a business transaction is free to negotiate for the best price. But that's simply impossible when you have monopoly and monopsony situations. Just as the sole seller of, say, toilet paper in a small town can get away with charging whatever they like because there are no other options, the sole or largest employer in a small town can get away with paying its workers next to nothing and treating them like garbage. Without unions and governmental regulations to fight for these workers and consumers, we'd be screwed.
There are excesses in some unions, but the overall concept of them is sound, and cases like the current one should make it clear that they are necessary.
There are a couple of different issues in the Prince case. I don't know who the particular defendants are in this case, but there are a few legal principles here that apply.
1. Still and filmed images, music and lyrics, works of art (regardless of medium) and any other product that generates from a creator or creators are all subject to copyright the instant they are created. One cannot copyright an idea, but one does have copyright to the execution of that idea.
2. The creator, unless he or she has signed copyright over to someone else (say, a distributor or publisher), owns the sole copyright to his or her creation, and has the sole discretion on whether and how the work may be reproduced and distributed.
3. Additionally, people also own the right to their own person. Other people cannot make money from your image, name or voice without your permission. For example, one can't use an image of Bono or a U2 song to sell tires unless one has permission (and usually payment contracts.)
There are a few exceptions to all of the above, usually boiled down to what's called "fair use." A small image used to illustrate a news story, for instance, is fair. Selling your own photos of a celeb at a public event is also fair (though you can't use those images to advertise other things.) Legitimate parody (as fanfic usually is considered) is also fair use.
What this generally means for many fan sites is that yes, the images, lyrics, songs, video and other materials you post are copyright violations, and often also trademark violations. Ever seen someone selling "crafts" with copyrighted images or words on them? That's a violation. Seen someone begging for money for video bandwidth? That's a violation. Songs on someone's MySpace? Violation. Technically speaking, the icon on this post is a violation.
By and large, most fans and fan sites don't get pestered by copyright or trademark owners because they're small time and therefore not worth pursuing. When I was running BEI, neither New Line nor any of the photo agencies ever complained about what I did. My interpretation of fair use at the time was that since I wasn't making any money from what I did (the few ads on the site didn't even cover hosting costs, much less other production costs) then I wasn't interrupting the potential revenue stream for the studio or the photo agencies.
But technically, I was. It could be argued that my site was diverting audience from other media who were legitimately purchasing the agencies' images, therefore drying up the revenue stream for said agencies. I didn't have to actually make any money from the site to be making a dent in their bottom line. Why, for instance, buy a copy of Entertainment Weekly with a huge spread of red carpet pics if you could get the same pics for free on my site?
The same issue wasn't necessarily true for the studio stills I posted. Technically, those are considered promotional images, and therefore I honestly was just giving them free publicity. So the copyright issue--in terms of interrupting the revenue stream--wasn't really anything big there. But what WAS an issue was the way I used the photos. The fact that there was plenty of controversial content on BEI, juxtaposed directly with New Line's images, meant that I was using their trademarked material in a way that they could legitimately claim was not how their marketing team would have wanted.
All of this is part of why I closed my sites. Once I realized that no, what I did didn't qualify as fair use, I closed up shop and deleted everything. Given that I wanted to pursue a legit journalism career, it wouldn't have been terribly kosher to violate copyright laws. ;)
Personally, I think Prince doing this is shooting himself in the foot, and I do think fans ought to have some better means of legal access to the stuff they want (see below), but the sad truth is that yes, he does have a legal case for what he's doing, and there's no sense in whining about it.
Now, as for why I chose to put these two things together in one post: They are related.
It's rather ironic that fans are so heartily supporting the WGA when almost every day, most of fandom violates copyright for what those writers produce. Arguments (legitimate) about how much studios/publishers screw over talent aside, if we really want to support our favorite artists, why do we constantly steal their work? It's true that writers are getting only a tiny fraction of, say, DVD sales, but every time you BitTorrent a movie, you're taking that .03% away from the writers of that production. Stealing is not the way to send a message to the studios that their contracts with talent suck.
And in fact, this stealing is one of the reasons why these contracts are so lousy in the first place. Because of a decade of digital piracy, the studios panicked, and aren't adapting to digital distribution the way they should.
Sure, we can argue that a few fans snagging video and photos don't really matter, but we do add up. Honestly: if we expect our collective voices to make enough of a difference to the studios that they'll reconsider the WGA contract, then we are a large enough group to create financial problems with piracy.
I realize that fans don't intend to violate copyright in a way that hurts artists. Generally speaking, the largest segment of piracy comes from people who either want something for nothing (under the idea that art "should" be free--apparently this means artists "should" starve) or actual big-time pirates who make a ton of money selling bootlegs overseas.
Most fans I know, when they violate copyright, do so for one of two reasons: Either they can't wait until a release date for something and they gottahaveitnownownow or they can't get exactly what they want in the right format. Who wants to be stuck having to go to a noisy, smelly cinema when you have a kickass home theater system and the ability to download an entire film in 5 minutes? If provided with legal means to do this, fans are willing to pay for it. I know I am. I happily spend $3.99 to order On Demand movies from Comcast instead of dealing with the hassles and delays of theaters, video stores (even Netflix) or cable channel schedules.
I think the studios are starting to understand this. They're understanding that people just aren't willing to get their entertainment on a specific feeding schedule. And they're understanding that what general-purpose media provide in the way of promotional materials and such is only a mere fraction of what hardcore fans really want. When red carpet photogs take 112 pics of Hottie du Jour, and only three of them make it into In Touch, of course your average fan of Mr. du Jour is going to go hit the fansite with the 112 pics instead of the magazine.
Full disclosure and pimpage: My new employer is actually a hell of a great source for stills and red carpet pics. Perhaps not the largest collections, but we do have a ton of stuff--far more than you'll find almost anywhere else. And if I have anything to do with it, we'll have even more stuff as we continue to grow.)
But... what if that fan of Mr. du Jour could go to WireImage or Getty and actually purchase her own copies of those 112 photos? What if membership at these agencies wasn't restricted to only "legit" media, but could also be open to the general public? What if there was a public account that gave access to downloads of low-res, relatively small (say, a max of 480px wide) photos? If fans could get their own accounts there and either pay a monthly fee for this or pay for each photo individually (say, a dollar each), the photo agency would not only not be hurt by piracy, but would have an entirely new revenue stream. If only ten thousand fans each paid $100 for their very own collection of red carpet pics, that's a nice chunk of cash for the agency. Cash they wouldn't have had otherwise. And the mainstream press would still get business because they'd have higher-res pics and better editorial content. This distribution model already works for other media. There's no reason it can't work for filmed or photographic works.
Instant, flexible-size, direct digital distribution isn't the future, it's the present. But copyright holders just aren't taking advantage of this the way they should. In an ideal world, most of the middlemen who are sucking fans' money and not giving it to the artists should be cut out. Their original purpose--to negotiate with media manufacturers, theaters and such--has been eclipsed. Musical artists don't need people to produce and manage vast warehouses of CDs. They can just throw their new album up for download on their own site. TV producers don't need networks. They can post streaming video of their stuff. About the only thing that labels and studios are still good for is promotion, and these days, fans are doing plenty of that themselves, being enlisted by artists as "street teams" to pimp their stuff.
Some level of management is and always will be necessary--artists should be spending their time creating, not worrying about accounting and retaining legal teams--but the bloated major media conglomerate model is about to collapse under its own weight. I hope that this strike wakes the studios up to this fact before things get even more out of hand.
But if stability in the entertainment industry is going to happen, both fans and studios are going to have to get some big sticks out of their asses. Fans are going to have to demonstrate that they are willing to pay for their entertainment, as long as they can otherwise get it on their terms, and the studios are going to have to demonstrate that they are willing to set up distribution models to do this--ones that are fair to both audiences and talent.
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