Media Critic Solomon Pushes Limits of Fair-Use in New Documentary
The new documentary “War Made Easy” isn’t just a searing critique of how administrations over the past 40 years have manipulated the media to build support for war. The 72-minute film is a media provocation itself - a challenge to federal copyright laws.
Based on a 2005 book by Bay Area media critic Norman Solomon and narrated by actor Sean Penn, roughly 90 percent of “War Made Easy” consists of archival news footage from major television networks that would cost a ton of money to license - if the filmmakers had paid for all of it; they bought only about 60 percent from distributors. 0817 01
The filmmakers say they are protected under the “fair use” provision of federal copyright law, a measure that is being tested in ways unimagined when it was codified 30 years ago.
The film arrives at a time when some major media companies are rethinking the value of their copyrighted material and how much of it they’re willing to share with videomakers and documentarians like Solomon. While media giant Viacom is suing the online video-sharing site YouTube and its parent company Google for hosting clips to which Viacom holds copyright, other media companies are slowly loosening their hold as the gatekeepers of information.
Over the past few weeks, CNN, ABC and NBC have announced they will allow footage of the presidential debates that they broadcast to be used on other media platforms under certain conditions. For example, NBC requests that debate footage not be used for commercial purposes, that the network’s moderators or journalists not be used in campaign advertising and that its logo be prominently displayed when a clip is used.
But while some of those provisions sound similar to what’s in federal copyright law, what is fair use remains the subject of debate.
“The similarities in all this is that we’re all feeling our way in the digital era in the area of fair use,” said Patrick Ross, executive director of the newly formed Copyright Alliance, a Washington trade group whose supporters include movie studios, television networks and artists interested in preserving copyright protection.
The networks’ decisions “are fantastic for anybody who has anything to say about the presidential race,” said Anthony Falzone, executive director of the Fair Use Project at the Center for the Internet and Society at Stanford University. “What you’re going to see in this election cycle is an explosion of people expressing themselves in different ways using video. This is going to get more people participating in the process.”
After seeing how debate clips turned up on YouTube and blogs - and were mashed up into parodies - “the networks realized that you can either work with people or you can fight them,” said Jason Schultz, an attorney specializing in intellectual property law at the Electronic Frontier Foundation in San Francisco.
“This also shows the power of popular marketing on the Internet. How word-of-mouth spread online is being recognized as a legitimate marketing tool,” Schultz said.
But the networks’ generosity with political debate coverage doesn’t extend to their entertainment content, where the big money is made.
Recently, unaired pilot episodes of new series like NBC’s remake of “Bionic Woman” and CW’s “The Reaper” found their way online through several video-sharing sites. Some in the television industry whispered that the networks had intentionally leaked the episodes to generate buzz for their new shows before they premiered on TV. Networks representatives vehemently deny doing so.
An ABC executive said his network wouldn’t leak a show online because it wouldn’t want to risk losing any viewers who might tune into the show’s broadcast premiere. The network, like others, doles out bits of its entertainment programming on its online site and on other platforms with the goal of luring audiences to its broadcasts - where ratings are measured and advertising dollars are made.
“I look at (sampling content for free online) in the same way that I see Coca-Cola sampling its product,” said Michael Benson, executive vice president of advertising, marketing and promotion at ABC Entertainment. “You give people a taste. You don’t give them a whole six-pack.”
Political programming is a different, less profitable, beast. Most presidential debates don’t draw the audience that a network entertainment show does - even for the show’s repeats.
Free content is being pitched as a civic offering, as CNN announced May 7: “The presidential debates are an integral part of our system of government, in which the American people have the opportunity to make informed choices about who will serve them. We believe this is good for the country and good for the electoral process.”
In recent weeks, other networks - including NBC and ABC - have changed their policies to allow use of footage from the presidential debates. NBC’s policy went into effect after last week’s AFL-CIO debate in Chicago, which was broadcast on MSNBC.
Getting the networks to release their debate footage is a rare example of bipartisan media organizing; liberal organizations like MoveOn.org and conservative commentators like Michelle Malkin joined forces to pressure the networks.
“We know that people are going to do it. This just legitimizes it,” said Mike Krempasky, a conservative who founded RedStateblogs.com.
But industry advocate Ross doesn’t think this will lead to the networks releasing more entertainment programs online.
“You don’t see NBC-Universal releasing ‘The Bourne Ultimatum’ for free online because there is still a tremendous amount of value in that,” Ross said. “I’m not clear how much value there is in a political debate as the campaign wears on.”
Solomon, a media critic who has written 12 books, was dubious about the value of the debate footage, which he described as containing “an overdose of rhetoric and fogging language. What we are sharing with the public are the political equivalent of cooked books,” he said.
Even so, not every network is on board with sharing. CBS, which isn’t scheduled to broadcast a presidential debate until December, declined to comment on its plans. Fox News has no plans to offer unlimited use of its debate content.
“That, to me, is giving up too much control to somebody who didn’t create the content and who can then turn around and monetize it,” said Chris Silvestri, vice president of legal and business affairs at Fox News.
Silvestri hadn’t seen Solomon’s film, which uses content from Fox and the other major networks, nor had any other network representatives that were contacted. The question of whether to pursue legal action against a documentary “is always tricky in a fair-use case,” Silvestri said. If just a few seconds of clips are used in a larger, “transformative” way, as the law states, then that’s generally OK.
“But if more than that are used, that’s when it gets harder. Do you fight the fight? Or do you let something like this go? Every case is different,” he said. He invites documentarians to use whatever they think they can, “but they’d better be prepared to defend what they use in court.”
The financial considerations of fair-use law can be even murkier.
While “War Made Easy” was made by a nonprofit company, federal law prohibits the use of copyrighted material for commercial purposes. The film’s national theatrical premiere will be Aug. 24 at the Roxie Cinema in San Francisco.
“The film is definitely a challenge to the fair-use laws,” said “War Made Easy” producer and co-writer Loretta Alper. “But we think we are on solid legal ground. This is criticism, and you can’t do criticism without showing what you’re criticizing.”
And there’s plenty of criticism in “War Made Easy.” It includes the 1968 clip of a commentary by iconic CBS anchor Walter Cronkite, a piece long-lauded for turning public opinion against the Vietnam War.
But it also shows a CBS news segment from 1965 when Cronkite accompanied U.S armed service personnel in Vietnam on a bombing mission near Da Nang. After his in-flight description of how the plane detonated its bombs on those below, Cronkite steps out of the plane, turns to a crew member and says, “Well, Colonel, it’s a great way to go to war.”
Some in audience groaned at the scene at a recent screening of the film at the Grand Lake Theater in Oakland.
Solomon describes Cronkite’s comment as part of a continuing legacy of the media “idolizing” the military during war. “You need to have the clips to show that in a continuum,” Solomon said.
And after a lifetime as a print journalist and author, Solomon has discovered “the visceral thrill” of video. Provided there are no lawsuits involved.
© 2007 Hearst Communications Inc.
did the SF Chronicle discuss Solomon’s film in some other context (a review, e.g.) than potential copyright infringement?
“Solomon makes a film to chronicle MSM propagandizing thru *public broadcast spectrum* for the slaughter of millions upon millions, but he ’stole’ some footage from us so we are gonna f– his s—.”
nexis showed a few datebook “openings” in a quick search. but no review, just that it was going to play at this theater or that theater. there was also a promo blurb for a talk he was giving at a showing here in the bay area.
jzjs: That was my first thought as well, but no, they didn’t discuss the film in any other context (though perhaps there will be a review once it’s formally released). So Solomon’s entire film is reduced to a discussion of copyright issues.
The San Francisco Chronicle is my hometown paper, and I’m used to seeing this kind of thing from them. My favorite example: in 2004 they ran multiple front page stories about the donations Ralph Nader had received from Republicans–e.g. “GOP donors funding Nader / Bush supporters give independent’s bid a financial lift”. That article was actually their headline for that day in the print edition–because, of course, there was no bigger news at the time. I wrote to them to comment on how odd it was that they’d spend so much newsprint examining the relatively tiny amount of Republican contributions to a small candidate like Nader while ignoring the far larger amount of Republican money received by John Kerry, and to request that they fix this imbalance; the response was “I am sorry you have disagreed with our reporting of financial issues regarding the campaign of Ralph Nader, an independent candidate for president. We appreciate your views, and we thank you for reading the Chronicle.”
So they regularly wear their corporate, centrist Democrat interests on their sleeve.
© 2007 Hearst Communications Inc.
’nuff said.
News Corps are the biggest free loaders of them all. People make news, not news corporations.
In the Viacom case, I personally believe that their real goal was to remove Jon Stewart and Stephen Colbert from YouTube. I favor the more sinister explanation that they didn’t want that past record available - because it would really show how dishonest the corporate media has been. The economic argument is just silly - they’re worried about lack of advertising revenue from their own Comedy Central site?
The fact is that they don’t archive the shows at their site - only the most recent ones. Yes - it’s the Orwellian memory hole. This is particularly true in the case of video news. For newspapers, you can usually access past issues, to a certain point - and even in this area, news companies have been limiting access to their older articles online.
This is a real shame, since the print and video record is so historically important. However, US media corporations live in a historical bubble that only extends a few years into the past - and they do this deliberately, for the very reasons that George Orwell outlined in 1984. “He who controls the past, controls the present” - or something like that.
It really is a great shame that we don’t have access to the complete record of Daily Show videos - but that was a deliberate action by Viacom. Very Orwellian, isn’t it?
“Fox News has no plans to offer unlimited use of its debate content.”
Oh no, Fox. Please…anything but that. Please don’t cut people off from using a lot of your content. Please, Fox, I’m not kidding. Please… I beg you.
““That, to me, is giving up too much control to somebody who didn’t create the content and who can then turn around and monetize it,” said Chris Silvestri, vice president of legal and business affairs at Fox News.”
Mr. Silvestri then went on to add, “And I tink anywon who does that…” [sniffle] “Is a dupid head..” [sniffle] “and a poopy butt…” [crying]
How about No Intellectual Property Rights at all? Used to register the product to establish origin. Fraud if claimed by someone else. Just no power to control production or distribution.
If all IP protected products were available to be produced or freely modified there would be an enormous amount of new innovations and a lowering of prices and a redistribution of power and wealth.
Why do you think it is such a big deal? And why wouldn’t “it work” to the treasury of human inventiveness open to fair use?
Political debate has to be free to all after the broadcast. Other shows are more of a problem, but a small payment based on the amount made on the sampled content, the age of the content etc. should be negotiated.
In a functioning government with democratic tendencies this could be done.
Buy the movie here and show it to the publi:
http://pdamerica.org/articles/misc/2007-06-11-21-45-40-misc.php
We are using the public library to show it on Aug. 22. We always have an action associated with a movie night.
While you are at it, sign PDA’s Fall Offensive Peace Pledge here:
http://pdamerica.org/articles/news/2007-08-11-10-40-27-news.php
Onward!
Distribution is key to getting the word out. When corporate owned theaters decide that they are not going to show a film, they will say that the audience is too small. They make sure that it is too small by refusing to show it.
The SF Chronicle is a local rag ( i wouldnt call it a ‘news’paper). Its essentially a bundle of crap, literally, as the local homeless people use it as a substitute for toilet paper. In all fairness there are a few good columnists like Mike Morford. But almost always and fairly consistently they are on the side of Big Business which is to be expected of a Hearst Corp paper and the majority of their readership is in the suburbs and not the city of San Francisco.
Thanks MichaelPDA! I think I just might!
The “News” that is being presented by the major providers is nothing more than “Entertainment” in content and not an accurate representation of current events. Selective construction of a mosaic that fits a marketing profile designed for sales. Until a distinction is defined between “entertainment” and “Property of the people” we will be saddled by the burden of “We own your past, We own your future. Enjoy.”
I have to echo lunafish
© 2007 Hearst Communications Inc.
In case you wondering why the SF Chronicle - supposedly a liberal rag according to right wing radio shills like Boortz, Limbaugh and Colter - could be concerned about misusing the fair act.
Good luck Solomon. My guess is that this current Reichstag will not smile favorably upon you. You are to be applauded as one with courage among a sea of feckless and spineless jellyfish.
I have shown the movie in my home . I will continue to show it as often as needed until many people in my community(Sonoma,CA. ) see it!
Normon called in and answered everyones questions.
Thank you Normon for doing this work.
It is up to us to extend his work. He can not do it alone. Pickup a copy,ask friends ,neighbors and family to come to your home and see it. Ask everyone(Republicans and Democrats) to bring a snack and drinks and you will be united by this very powerful and moving documentary.