[Frameworks] Getting Paid

From: David Tetzlaff (email suppressed)
Date: Fri Oct 15 2010 - 15:10:49 PDT


Lawrence Daressa mistakes me for a _Wired_ style entrepreneurial
techno-libertarian. I am not. Nor am I any sort of booster for the
market. I am simply observing the economic principles at work. I am,
fairly obviously, a bit of a Benjaminian, and my analysis of the
politics of information is rooted in leftist traditions of alternative
media, critical theory, Situationism, etc.

> There is, in reality, no consensus that making films
> available for free increases or decreases net sales or revenues, only
> inconclusive anecdotal reports indicative of both.

That does not address my argument. Sales or rental revenues are too
narrow a gauge of the economic value of any form of 'information'. The
principle that the larger value of non-tangible goods usually
increases with circulation is well established and supported by much
more than anecdotal evidence. I would agree with Lawrence that it is
unclear how this applies to the distribution of film art specifically.
But that's not the point.

> 1. First, how important is it for me to be paid for my work? Am I
> looking for income, exposure or both?

The question is framed here in too limiting a way. The first question,
properly, would be "how important is it for me to be paid?" period.
But if I answer that it is imprtant, the next question must be "in
what ways can artistic practice lead to the generation of income?" and
the potential answers go way beyond the limited frame of commodity
exchange invoked by being "paid for my work."

> 2. How will people learn about my film? There's no point posting a
> film
> on the web if nobody knows it's there. One of the most common but
> baseless assumptions about the web is that there is a significant
> correlation between accessibility and viewership.

The last observation is mere straw and irrelevant to the question in
the first sentence. It's fairly obvious that any medium that makes
massive quantities of content accessible will not result in the
majority of that material receiving significant viewership. But we DO
have have evidence that simply posting a film on the web WILL lead to
people learning about it and viewing it (the viral YouTube video) --
IF it's the sort of thing people want to see. This is not particularly
good news for experimental film because such films generally do not
appeal to popular taste.

The question being ducked here is how art that does not lend itself to
commodity status or a mass culture aesthetic can be supported within a
market economy. And it is absolutely ludicrous to suggest that it is
piracy or UbuWeb that prevents such support occurring. There is not
now, nor has there ever been, a viable market for experimental films.
This is the reality this whole discussion has failed to address.

> 3. Following from that, how many viewers will Ubu attract to my film
> which I wouldn't reach through other avenues? This doesn't need
> guesswork. What are the metrics (visitors, bounces, viewing time, etc)
> for Ubu titles like your own?

A good question, but still too narrowly focused by considering only
direct connection between Ubu and your specific film, or rather a
false dichotomy between Ubu and 'other venues,' when their
relationship may be interactive and synergistic rather than discrete.
That is, your film might be on Ubu and generate no hits whatever, but
the work people do discover on Ubu may make them more likely to attend
a festival or screening series where you work will be shown. If you
examine national advertising, you will observe that only some of it
really touts the benefits of some specific product. A lot of it
promotes the consumption of a general class of commodities, or maybe
even just consumption in itself. A Coke ad doesn't need to ask 'don't
you want a Coke instead of a Pepsi?' Coke profits just fine, thanks,
by asking 'wouldn't you like a refreshing drink right now?. If Ubu
promotes avant garde art in general, that is (or should be)
significant to anyone who cares about that work.

> 4. How likely is it that these viewers will want to pay $24.95 to
> own a
> DVD of my film? How many simply want to screen it one (or more)
> times or
> pirate it from Ubu? Here a degree of humility is called for. .
> 4. An interesting option: would they pay $2.99 to rent it from an
> internet content aggregator (eg i-Tunes or Amazon)?
> 5. How many schools and museums would purchase a DVD and/or streaming
> license for my film(s)? How much would they pay (up to $500.)?
> 6. How likely are they simply to embed a link to Ubu in students'
> on-line syllabi or buy a home video DVD for $24.95?

So what if the answers are "not very," "most of them" "no" "only a
few" "not very much" and "very likely?" (Actually, I think a
significant number of people would pay small fees ala Netflix or
iTunes, though I doubt this would generate enough income for artists
to live on.) But let us also ask how any of this would be different if
Ubu and BitTorrent did not exist. Not much. So, back toward the real
issue: What are the ways fine arts practice has been enabled
throughout history, especially recently. How can experimental
filmmakers take better advantage of any of these strategies than they
do at present?

> There is no question that free distribution results in significant
> seepage into and dilution of consumer and institutional markets. -
> more
> than a 50% loss. And it's perfectly legal. So, a filmmaker has to
> ask:
> am I willing to risk that the sales I may gain by free delivery will
> exceed the ones I definitely will lose as a result of it?

No. No. No. No. No. And NO! The filmmaker has to ask: am I willing to
risk that the range of economic opportunities I may gain by free
distribution will compensate for the ones I will lose because of it.

> There have, of course, always been viable alternatives to Ubu for
> promoting experimental film to its core constituency.

Whoah there Lawrence. You just missed the point, big-time. The
question is "how does experimental film build and maintain a
constituency." Your formulation just reified that constituency to it's
existing core. The potential audience for experimental films may be
small, but it is not confined to cities or campuses that have
festivals, museums, screening series or any of your other 'viable
alternatives.' As such, there is a not-insignificant potential
constituency that remains largely untapped. One of the less charming
features of this list is how many posts here articulate an implicit f-
bomb to anyone who doesn't live in New York.

> Ubu could actually play a constructive role in this regard, though the
> creator of its eponym would roll over in his pataphysical grave. Ubu
> could offer both free and monetized content (or links to it) from the
> same site, using open source, e-commerce functionality. Filmmakers
> could
> then decide for themselves if and when they wanted their work to be
> freely available.

I don't think the people who run Ubu are interested in business or
handling money. For what you propose to happen, some distributor that
does commerce (e or otherwise) would probably have to partner with
Ubu. I doubt ya'all are lining up to volunteer for that...

> Certain Fair Use internet fundamentalists have tried to broaden this
> exemption to cover any screening, in whole or in part, of a
> copyrighted
> work in a non-commercial venue, eg. a classroom, an online course, a
> museum or Ubuweb, I suppose.

Really? Care to cite any significant exemplars? I happen to know a
good number of leading Fair Use advocates and activists and NONE of
them hold so radical an opinion.

[The rest of this post is a detailed discussion of Fair Use and Fair
Use activism, so unless you're interested in that, feel free to move
on...]

The only federal legislation relating to Fair Use is a short, general
and vague clause in the copyright law. Here it is, in full.

>> Notwithstanding the provisions of sections 106 and 106A, the fair
>> use of a copyrighted work, including such use by reproduction in
>> copies or phonorecords or by any other means specified by that
>> section, for purposes such as criticism, comment, news reporting,
>> teaching (including multiple copies for classroom use),
>> scholarship, or research, is not an infringement of copyright. In
>> determining whether the use made of a work in any particular case
>> is a fair use the factors to be considered shall includeŚ
>> (1) the purpose and character of the use, including whether such
>> use is of a commercial nature or is for nonprofit educational
>> purposes;
>> (2) the nature of the copyrighted work;
>> (3) the amount and substantiality of the portion used in relation
>> to the copyrighted work as a whole; and
>> (4) the effect of the use upon the potential market for or value of
>> the copyrighted work.
>> The fact that a work is unpublished shall not itself bar a finding
>> of fair use if such finding is made upon consideration of all the
>> above factors.

Note that nothing in this language demands 'transformative use.'
However, given the minimalism of this clause, Fair Use legality is not
so much a matter of fixed legislation, but of case law that is both
historically fluid, and inconsistently applied from one Federal Court
District to another. And the history of this case law, until very
recently, is that decision after decision has functioned to narrow the
exemption, to the benefit of corporate media. It is in this corpus
that the principle of 'transformative use' exists.

Of late, Fair Use activists have advocated a 'code of best practices'
that suggests Fair Use should allow for _some_ copyrighted works to be
posted on the web without permission, but only under certain limited
conditions. The full document is at http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-online-video
. Here are the sections relevant to Lawrence's assertion:

>> FOUR: REPRODUCING, REPOSTING, OR QUOTING IN ORDER TO MEMORIALIZE,
>> PRESERVE, OR RESCUE AN EXPERIENCE, AN EVENT, OR A CULTURAL PHENOMENON
>> DESCRIPTION: Repurposed copyrighted material is central to this
>> kind of video. For instance, someone may record their favorite
>> performance or document their own presence at a rock concert.
>> Someone may post a controversial or notorious moment from broadcast
>> television or a public event (a Stephen Colbert speech, a
>> presidential address, a celebrity blooper). Someone may reproduce
>> portions of a work that has been taken out of circulation, unjustly
>> in their opinion. Gamers may record their performances.
>>
>> PRINCIPLE: Video makers are using new technology to accomplish
>> culturally positive functions that are widely accepted--or even
>> celebrated--in the analog information environment. In other media
>> and platforms, creators regularly recollect, describe, catalog, and
>> preserve cultural expression for public memory. Written memoirs for
>> instance are valued for the specificity and accuracy of their
>> recollections; collectors of ephemeral material are valued for
>> creating archives for future users. Such memorializing transforms
>> the original in various ways--perhaps by putting the original work
>> in a different context, perhaps by putting it in juxtaposition with
>> other such works, perhaps by preserving it. This use also does not
>> impair the legitimate market for the original work.
>>
>> LIMITATION: Fair use reaches its limits when the entertainment
>> content is reproduced in amounts that are disproportionate to
>> purposes of documentation, or in the case of archiving, when the
>> material is readily available from authorized sources.
>>
>> FIVE: COPYING, REPOSTING, AND RECIRCULATING A WORK OR PART OF A
>> WORK FOR PURPOSES OF LAUNCHING A DISCUSSION
>> DESCRIPTION: Online video contributors often copy and post a work
>> or part of it because they love or hate it, or find it exemplary of
>> something they love or hate, or see it as the center of an existing
>> debate. They want to share that work or portion of a work because
>> they have a connection to it and want to spur a discussion about it
>> based on that connection. These works can be, among other things,
>> cultural (Worst Music Video Ever!, a controversial comedian's
>> performance), political (a campaign appearance or ad), social or
>> educational (a public service announcement, a presentation on a
>> school's drug policy).
>>
>> PRINCIPLE: Such uses are at the heart of freedom of expression and
>> demonstrate the importance of fair use to maintain this freedom.
>> When content that originally was offered to entertain or inform or
>> instruct is offered up with the distinct purpose of launching an
>> online conversation, its use has been transformed. When protected
>> works are selectively repurposed in this way, a fundamental goal
>> of the copyright system--to promote the republican ideal of robust
>> social discourse--is served.
>>
>> LIMITATIONS: The purpose of the copying and posting needs to be
>> clear; the viewer needs to know that the intent of the poster is to
>> spur discussion. The mere fact that a site permits comments is not
>> enough to indicate intent. The poster might title a work
>> appropriately so that it encourages comment, or provide context or
>> a spur to discussion with an initial comment on a site, or seek out
>> a site that encourages commentary.
>>
> They claim this would constitute a transformative use even if the
> film were made explicitly for educational
> or artistic viewing.

No, they don't. Note the limitations. These points were crafted in
part with the informal archiving of 'orphaned' works in mind and
designed NOT to infringe on the work of independent distributors.

> One can hardly imagine an academic incorporating an entire novel in
> a critical study of that novel as a "fair use."

Except academics HAVE incorporated entire works in critical studies
thereof (Google 'Roland Barthes'), though not to my knowledge, any
works protected by copyright.

> In any case, this argument is widely considered to have little legal
> merit;

Which argument? Your straw man hyperbole, or the actual Code of Best
Practices for Online Video? Yes, the extremist position you described
has no legal merit. It also has no serious advocates. The actual Best
Practices codes are endorsed by a number of top legal minds in the
field (Google 'Michael Donaldson').

> it is being advanced simply as a budget-cutting expedient to make
> artists rather than students, faculty or taxpayers pay for
> educational materials.

I hereby challenge you to provide any substantive evidence of specific
cases of academic institutions or individual academics acting in such
a clearly philistine manner. Put up or shut up.

The actual fact of the matter is that Fair Use advocacy has grown out
of the frustrations of independent artists - especially sociallly-
conscious documentarians - who have had their work short-circuited by
the 'intellectual property' claims of large corporations. A review of
copyright litigation (most of which does not go to court) reveals that
in almost all cases the most powerful and well-funded party prevails.
For example, the landmark 2 Live Crew case that enshrined parody as
Fair Use was a contest between a major recording artist of the past
(Roy Orbison) and a then-current cash cow for MCA, with predictable
results.

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