Peter Decherney

Decherney, who not incidentally was instrumental in achieving the first context-specific exemption for ripping DVDs (for use in teaching film studies), has a sharp eye for the way the movie industry has exploited and reacted to law as part of its business models over time. He suggests that the usual reaction of the industry to legal rulings has been self-regulation either to confirm or to avoid the formal law, depending on what works best for the guys in charge. The relationship between technological measures designed to prevent copying and unauthorized copying, for example, goes back to the start of moviemaking, when different producers used film with different sprocket holes; the incompatibility led people who wanted to show movies to make their own copies to fit on their own equipment, just as it still does today.

Early in the movies’ history, it was unclear whether the performances therein qualified for copyright, either because they weren’t considered sufficiently dramatic or because they were perhaps immoral—as is consistently the case with copyright, sex confounds the law. It was also unclear who was responsible for a recorded performance, assuming that infringed someone else’s right; in one important case, a film company claimed that it wasn’t responsible for infringing the novel Ben-Hur because it had merely filmed a chariot race staged by the Brooklyn Fire Department—apparently the novel sparked a vogue for such recreations; fandom is everywhere!

Later, studios fought with directors over artistic control. When films were first being edited for television broadcast, critics often worried over their “emasculation,” a loaded word indeed. As Decherney points out, the passage of time turns outrages against art into high art; just as directors for years fended off charges that they were mutilating novels and plays in their adaptations, now directors became believers in the inviolability of their own art.

Hollywood’s history with copyright law is full of these ironies, including the studios’ fear of the VCR that ultimately brought them great riches (Decherney notes that Disney, one of the great opponents, was a niche studio until the profits enabled by videotape sales gave it the capital to fund its next great wave of films).

More recently, Decherney argues, the 1970s avant-garde developed in the context of various assumptions about what could legitimately be done, especially with music. Even when these assumptions didn’t exactly follow the law, they shaped behavior. “Underground” works were ignored by copyright owners, but still used music cautiously, and their makers licensed rights in order to show them at international festivals or on TV. Kenneth Anger’s “avant-garde classic Scorpio Rising (1964) … freely used old film clips, advertisements, and cartoons. Some viewers were shocked by the sexual situations depicted in the film. Many filmmakers were more surprised by Anger’s flagrant use of popular music to create counterpoint and commentary. Anger’s 30-minute film used a ‘wall-to-wall’ string of poular hits ….” What they didn’t know was that Anger had actually cleared the rights for the songs (though apparently for nothing else); it more than doubled his budget and cost more than the total budget of most avant-garde films. Martin Scorcese watched and was shocked—his NYU professors had always told him not to use music in a student film. He said: “That gave me the idea to use whatever music I really needed.” While the gatekeepers enforced the rules on music, setting the fair use options at zero, Scorcese decided to use unlicensed music in his own student films, which got him ready to make breakthrough uses of music, this time licensed, in his later feature films. Among the complicated lessons here is that “misinformation can be as powerful as accurate information.”

Decherney also tells the story of the unusual case in which experimental video was suppressed by copyright owners: Todd Haynes’s 1987 Superstar: The Karen Carpenter Story, blocked not by Mattel but by Richard Carpenter. Haynes decided to proceed without licensing the music—based in part on his beliefs about Scorpio Rising--but was ultimately forced to stop allowing it to be shown. Of course, this all made Superstar more attractive as a bootleg, and it’s still pretty easy to find. Haynes’s story created its own myths about copyright and trademark overreaching among filmmakers, even though Decherney didn’t find any other instances of such legal threats until the rise of online video sites like YouTube. Hollywood in general hasn’t been very aggressive about pursuing self-proclaimed video artists, in part, Decherney suggests, because the law of fair use is “underdeveloped and highly unpredictable” in this area, as well as because the economic harm is realistically nonexistent and the public relations risks real.

YouTube was a disruptive technology not because it created a video-sharing culture; plenty of people were primed to share their videos already. Instead, Decherney suggests, YouTube brought a number of different videomaking cultures—and their expectations around copyright and fair use—into contact and occasional conflict, and made them all more visible to each other and to copyright owners. “The fans, avant-garde artists, home video makers, and other fair use communities had spent decades learning when they should worry about attracting the attention of copyright holders…. They all became subject to increased surveillance, and their cultures of fair use were homogenized as large media companies sought one-size-fits-all solutions to employing the DMCA to control copyright infringement.” (And the OTW gets a shout-out for its advocacy, yay!)… (altro)