Filmmaker and critic Kevin B. Lee, of Shooting Down Pictures has been posting video essays and shorts on YouTube for three years. Until yesterday, when the site pulled all his work -- more than 40 pieces totaling over 300 minutes -- on grounds of "copyright infringement" because he included clips from the films he was discussing. This is a travesty of the principles of intellectual freedom that the Fair Use doctrine is designed to protect and encourage under US Copyright Law.
Matt Zoller Seitz also had a run-in with YouTube recently. (See his splendid Busby Berkeley reverie here.) I can't improve on the eloquent case he makes at The House Next Door, where Lee has been a regular contributor:
Can a critic argue without clips? Sure. Film criticism has largely done without external accompaniments for a century and can continue to do without them. But it's important to note that clips and still frames have been a central part of cinema studies since its inception. Anyone who's attended a film history or theory course knows how valuable they are. Clips often determine the difference between learning something and truly understanding it. They're quotes from the source text deployed to make a case. Take them away, and you're left with the critic saying, "Well, I can't show you exactly what I mean, so I'll describe it as best I can and hope you believe me."
This, in a nutshell, is the defining difference between criticism pre- and post-millennium. For the first time ever, when someone says to a critic, "Show me the evidence," the critic doesn't need to unlock a film archive vault or even haul out a DVD player to produce it. He can call it up online anytime, anywhere, for anybody.
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There's also an unspoken class bias at work here, a bully mentality that chooses its targets based on who's likely to fight back and win. Consider commercial TV, which is filled with programs that routinely air copyrighted material without permission for purposes of journalism, satire or simple entertainment. "The Daily Show" and "The Colbert Report" don't ask permission to air any of the news clips they slice and dice each night for yuks; they consider a network's onscreen logo to be acknowledgment enough, and their assumption is almost never challenged. Talk shows don't think twice about airing a rival network's news footage or clips from a popular or notorious TV program in order to spark a discussion or anchor a satirical montage....
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There should be a way to distinguish between piracy-for-profit (or unauthorized, free redistribution) and creative, interpretive, critical or political work that happens to use copyrighted material. And there must be an alternative to unilateral takedowns. The issues aren't just legal, they're practical. History has demonstrated that there's no copyright protection that can't be defeated, no corporate edict that can't be subverted. And given the technological sophistication that permits digital watermarking, there ought to be a way to make sampling of any sort, authorized or not, scaled to suit the filmmakers' means, profitable for the rights holders, and as fully automated as the copyright-infringement-scouring that's currently happening all over the Internet.
Read all of Matt's piece here.
Seitz nails it when he says: "There should be a way to distinguish between piracy-for-profit (or unauthorized, free redistribution) and creative, interpretive, critical or political work that happens to use copyrighted material."
Kevin B. Lee clearly wasn't using the clips for profit; if anything, he gave the films some free publicity. INA must be really bored.
I fail to see what this has do with The Dark Knight but anyway...
Was there anything deemed illegal about Lee's work or was this just an act of corporate cowardice on the part of Youtube to avoid even a hint of trouble?
The Fair Use act is so vague or at least vaguely understood. I know that sometimes film techers have to get a clearance for the stills they use in text books - other times, not.
Take this away from internet film critics and you've taken away one of the primary tools uniquely available to online criticism.
JE: When I was the editor of Cinemania at Microsoft, studios wanted much dinero for licensing images, and even more for clips. But we were publishing them on a CD-ROM. Things changed a little when we moved onto the web and could use images or clips from new releases the way any newspaper or TV station could. As for textbooks, David Bordwell and Kristin Thompson were pioneers in using frame grabs in textbooks instead of stills taken by studio photographers. Not only did the frame images represent what was actually in the film itself, but they represented an insignificant part of the entire running time -- each being only 1/24th of a second in a film that may have had many, many thousands of frames. That represented a triumph for academic freedom.
Now what needs to happen is for him to fight the case in court. See, there are some very heavy penalties the court can invoke for false accusations of copyright infringement. For example, they can mandate that the studios not file any more copyright infringement suits for a given period. And if they start making examples of studios who unfairly bully people like this, it will stop.
The same thing happened to Rob Ager. He created a new account and reposted them all.
Access to the clips has opened up the possibility of criticism. I don't know how many books and essays I've read, written before the days video (or prior to a film's home release), in which the writer describes a shot and/or scene and doesn't get it quite right. With essays like Lee's, we can see exactly what he's discussing, and draw our own conclusions.
As I understand it, Lee already had "two strikes" against him from posting straight movie clips that shouldn't technically have been protected under fair-use. When they received one more complaint, this time about a video essay, he no longer had any warnings left, and YouTube terminated his account. This latest complaint wasn't valid, but alas, Lee had already put himself in a bad position.
Wow these people are thick skulled. I mean a five year old could tell the difference between illegally downloading movies and tv shows and sampling clips for film criticism or just because you genuinely enjoy a video clip and want to share it with the world. Every time Viacom gets a South Park clip taken down, 30 more people illegally torrent it. I'm usually not much of a social darwinist but these music and movie companies deserve to go the way of the dodo.
I'm Drew Morton, a PhD student in Cinema and Media Studies at the University of California-Los Angeles. I'm pleased to note that this format of criticism is also alive and well at my university. Under the supervision of Prof. Janet Bergstrom (whose visual essays have often been included on DVD editions of F.W. Murnau's work), roughly ten to fifteen projects are completed each academic year. Topics have ranged from reflexivity in the work of Wes Anderson to my own study of comic book adaptations (which can be found here: http://flowtv.org/?p=240). There are more and more online journals looking towards this format, including our own academic journal "Mediascape" (http://www.tft.ucla.edu/mediascape/) as well as the "International Journal of Communication." If this sort of criticism strikes you, I encourage you to check them out. Thanks to Jim for putting the spotlight on Film Criticism 2.0!
I personally get nervous any time a scene is shown out of context. True context is achieved by seeing the film. It's like they say about statistics- with the right ones you can prove almost any theory. I prefer criticism to reviewing and I think it is fruitless to read a critical essay of a work you haven't seen.
Like all new uses of media I feel the value of video clips in reviewing depends on the skill of the author using the clips. I have only recently started following Kevin's essays and I like them a great deal. Kevin and other skillful and reputable critics can add value to and generate interest in a worthwhile work. Unfortunately there are more hacks than there are Kevins and Jims.
Though I enjoy well made clips, I find it more temporally efficient to obtain a critic's ideas about a film by reading them than by watching a clip. Most people do not speak and write equally well. A notable exception to this would be Paul Schrader. Jim, I liked your year end "best of" clip all the more precisely because it let me really watch the pieces instead of dividing my attention.
Of course the merit of the use is a very individual determination and should not be taking into account when judging the legality of the use. That's censorship and it hurts everyone. Fair use is fair use and unauthorized use for commercial gain is unauthorized use for commercial gain. That said, Google (YouTube) is a for profit corporation. If this is a distribution problem and not a legality problem how can it be remedied?