Oh Look: Hollywood Doesn't Need To Break Your TV To Release PPV Movies Early

from the who-would-have-thunk-it? dept

For a while now, the MPAA and the major movie studios have been asking the FCC for permission to break your TV and DVR by enabling "selectable output control," which would block the recording of certain movies. The MPAA's claim for why they needed this is to add another "window" for releasing movies as video on demand prior to them being released on DVD. But that makes no sense. As we pointed out, when they first made this claim, there is absolutely nothing stopping them from releasing these movies earlier for VOD. There's nothing to stop them from doing so -- and it's not like SOC would actually block the movies from being online. Every movie ends up online around the same time (usually before) it gets into the theaters, so these movies would all be available for file sharing prior to the VOD release anyway. The MPAA keeps saying that it simply can't release the movies earlier without this form of DRM, but it appears that the studios own actions prove that we were right, and the MPAA was lying. Public Knowledge is pointing out that Warner Bros. has released two recent movies for VOD prior to DVD, even as the MPAA is still insisting that it's simply impossible. Oops.

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Warner Bros. Shuts Down Harry Potter Themed Dinner For Infringement

from the how-nice-of-them... dept

Last month, in discussing "derivative works" on the IP Colloquium podcast, the General Counsel of Warner Bros. studios, Jeremy Williams, talked up how Warner Bros. was really careful in not just going after fans for doing fun things with the Harry Potter character, but were careful to focus just on for-profit ventures. Either they're not that careful, or someone else didn't get the message, as Warner Bros. has apparently sent out the legal nastygrams to a woman in the UK who was planning on having a fun Harry Potter-themed dinner. The dinner was a non-profit event, and it sounds like it was done mainly to make the woman's daughter (a big Harry Potter fan) happy. The article notes that the woman has had other themed nights, with other brands being happy about it and supporting the effort. But, apparently, Hollywood doesn't roll that way.

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Looking At The Redbox Antitrust Fight

from the is-it-an-antitrust-issue-or-not? dept

Law.com has a nice article detailing the legal issues involved in the battles between Redbox and the various movie studios. The main question is whether or not it's an antitrust violation on the part of the studios to block distributors, wholesalers and retailers from selling DVDs to Redbox. The studios want (a) a revenue share from Redbox (b) Redbox not to offer new release DVD movies for rental and (c) Redbox not to sell used DVDs. The reasons are pretty obvious: Redbox is a much more competitive offering. Since it's a lot less labor intensive, it's able to offer the DVDs for much less (both rental and sale), and the movie studios are freaking out, because in their minds, their old revenue streams should never be allowed to decrease.

The statements from the studios on the dispute is incredibly disingenuous:

"The real complaint is Fox won't sell DVDs to Redbox on the terms Redbox demands, and that is not in our view an antitrust violation," said Watson, an antitrust expert who has teamed with Yosef Riemer, a litigation partner in Kirkland & Ellis' New York office, in representing Fox, part of News Corp.'s Fox Filmed Entertainment. "There's nothing in the law, antitrust or otherwise, that says a seller must sell its product at the price that the buyer demands on the date the buyer demands and through the distribution channel that the buyer demands."

Indeed, Watson is correct that no seller needs to offer the product at the price the buyer demands, but that's not what's being disputed here at all. Clearly, prior to Fox and some of the other studios throwing their hissy fit, the distributors had no problem selling DVDs to Redbox at the prices Redbox thought were reasonable. The studios sold the movies to the distributors at the usual price, and the distributors sold them to Redbox at the usual price. Everyone should be happy.

But... what happened now is that these studios (Fox, Universal and Warner Bros.) told not just the distributors (Ingram and Video Product Distribution) but also retailers like Best Buy and Wal-Mart to not sell to Redbox. That's restraint of trade. The studios have every right not to sell videos to whomever they want -- but those distributors and retailers can then sell to whomever they want. The studios should have no say in the downstream sales of the videos once they've been sold to the distributor, wholesaler or retailer. That's where the antitrust issue is. The studios are successfully controlling downstream sales.

The studios are either being disingenuous or are just playing dumb when they claim that there's no antitrust violation because end users can still rent movies from Blockbuster or Netflix. But, that's defining the wrong "user" for the market in question. The market is in being able to buy from the distributor/wholesaler, and the "customer" is a retailer like Redbox. And these studios have stopped that customer from being able to make a perfectly legitimate purchase. That's the antitrust issue, and it's amazing that the studios think anyone will believe their false market definition or this bizarre claim that this about Redbox demanding some special price. It's not. Hopefully the judge recognizes that and doesn't fall for the studios simply making stuff up.

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Copyright Insanity: Courts Continue To Try To Slice And Dice The Superman Copyright

from the who-gets-what-now? dept

For years, I've been watching the rather insane battle between the heirs of Superman co-creator Jerry Siegel and Warner Bros., over who owns what copyrights concerning Superman. The overall details of the case are honestly too bizarre and convoluted to get into all of the details as to how we got here, but suffice it to say, it's yet another example of how twisted copyright has become, in this specific instance, focused on "termination" rights when it comes to copyright. If you want a good detailed explanation of the history here, this is a pretty good summary. As it stands now, both parties own some of the rights to Superman, which makes for some awkward problems. BobinBaltimore alerts us to a short writeup concerning the latest ruling in the ongoing series of court cases, and just a quick summary should detail the insanity that we're dealing with:

The court ruled, for the most part, that the Siegels successfully recaptured most of the works at issue, including those first two weeks of daily Superman strips, as well as key sections of early Action Comics and Superman comics.This means the Siegels, repped by Warners' nemesis Marc Toberoff, now control depictions of Superman's origins from the planet Krypton, his parents Jor-El and Lora, Superman as an infant, the launching of the baby Superman into space and his landing on Earth in a fiery crash.

But Warners/DC still owns other elements, including Superman's ability to fly, the term "kryptonite," the villain Lex Luthor, Jimmy Olsen, and some of Superman's powers.

It's like a Solomon-like "splitting of the baby" to figure out who can actually do what. In the meantime... the idea that Superman can fly is covered by copyright? Yikes.

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Hollywood's War With Redbox Expanding To Netflix As Well?

from the shooting-the-foot dept

Hollywood really never learns, does it? Following 20th Century Fox's decision to try to stop Redbox from getting movies to rent via its kiosks (to which Redbox has responded by suing Fox), Warner Bros. has joined in as well, but isn't just trying to stop Redbox, but Netflix, too. It wants to force both companies not to rent DVDs until a month after the DVDs are actually released... unless the companies agree to share revenue from the rentals.

There's basically no legal basis for this move, which would only serve to piss off consumers (yet again). These companies are free to buy the DVDs and rent them out, but the studios want a cut of every rental. It's sort of like video game makes demanding a cut of every used game sale, or an artist demanding a cut every time a piece of his artwork is sold. It's entitlement society all over again. Nothing should happen without the original company getting paid. What they don't realize is how this limits them. Netflix and Redbox become less interested in promoting Warner Bros.' movies, because they're now a lot more expensive to those companies. Instead, Hollywood is handing incentives over to these companies to promote other films that don't demand their tithe.

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Movie Screening Phone Bans Reach Ridiculous Levels

from the oh-come-on... dept

For years, we've found it absolutely ridiculous that the movie studios have required that anyone attending early preview screenings remove and deposit their mobile phones in some (often unguarded) box. The entire policy has never made much sense. First of all, a mobile phone is unlikely to have a decent enough camera or enough memory to actually video tape a movie. Second... who cares? This is all part of studios stupidly overreacting to the idea that their movies might leak online before the official release date. Yet, as we've seen there's almost no evidence to support the idea that the availability of the movie online has any negative impact on box office proceeds. So, for the uncomprehendingly small chance that someone at a screening is able to record the movie with his or her phone and get it online, and that version of the film somehow destroys box office proceeds... Hollywood has decided it makes sense to treat everyone (including movie critics) who attend preview screenings as if they're criminals.

It's even being taken to more ridiculous levels now. Valleywag points out that Time Warner entertainment critic was stopped from watching a Warner Bros. (yes, owned by Time Warner...) screening, because he refused to give up his iPhone. Yes, the same iPhone that does not have a video recording function. Perhaps they were afraid he'd be playing games through the screening? Or maybe Twittering away a live commentary?

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Will Warner Bros. Studios Go After Everyone Offering The Christian Bale Rampage For Piracy?

from the so-says-the-director dept

In case you've been living under a pop-culture rock for the past week or so, you've probably heard the recording of Christian Bale's angry, curse-filled tirade on the set of his most recent movie. Apparently the tape was leaked after film execs sent the tape to the insurance company that had insured the film should Bale have bailed out on the role. That's not all that interesting. However, in an LA Times followup, in which Christian Bale provides his expected heartfelt apologies for going too far, there's a far more interesting quote from the movie's director, McG, concerning the leak of the tape:

"It's illegal, and the anti-piracy people at the studio are going to pursue it to the full extent of the law. You have got to have actors feel safe on the set, so they can transcend the things they do in their normal lives."

First of all, it's not clear which part he's talking about is illegal -- but it's telling that he thinks the "anti-piracy people" at the studio (in this case, Warner Bros.) who are dealing with this. Will they be going after TMZ for putting the tape online? Against all the other sites that have copied it? Is it "piracy" or is it news?

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As Expected, Warner Agrees To Fork Over Tons Of Cash To Fox For Watchmen

from the money-for-nothing dept

It will come as no surprise to anyone that Warner Bros. Studios and Fox have settled over the rights to Watchmen. It was pretty much a forgone conclusion once the court sided with Fox and said that Warner couldn't open the movie without agreeing to pay up. And, indeed, Warner will be paying a chunk of change, plus a percentage of the profits -- all for a movie that Fox had less than nothing to do with. Legally, it may be right, but from a common sense standpoint it makes no sense at all. Fox did everything possible to say that this movie should not be made. And it took none of the risks that Warner took... but now it gets a ton of money for it.

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Watchmen Producer Explains Why Fox Doesn't Deserve A Cut

from the hindering,-not-helping dept

There's been plenty of discussion over the fact that Fox is going to end up making money from the movie Watchmen, despite having absolutely nothing to do with the film itself. ChurchHatesTucker alerts us to an open letter, over at HitFix, from one of the producers of the movie, pointing out how ridiculous this is from a common sense approach. Basically, Fox pretty much did everything possible to not let the movie ever go into production, and then Warner took incredible risks, spending a ton of money on a script that Fox (and others) hated, giving it to a director without a commercial hit at the time, and casting no brand name stars. The point that Lloyd Levin is making is that, no matter what the law says, from a basic common sense standpoint, it's ridiculous that Fox should get any money at all. You should read the whole thing, but here's an excerpt:

Larry and I developed screenplays at five different studios. We had two false starts in production on the movie. We were involved with prominent and commercial directors. Big name stars were interested. In one instance hundreds of people were employed, sets were being built - An A-list director and top artists in the industry were given their walking papers when the studio financing the movie lost faith.

After all these years of rejection, this is the same project, the same movie, over which two studios are now spending millions of dollars contesting ownership. Irony indeed, and then some.

Through the years, inverse of the lack of studio faith has been the passionate belief by many many individuals - movie professionals who were also passionate fans of the graphic novel - who, yes, wanted to work on the film, but more for reasons of just wanting to see the movie get made, to see this movie get made and made right, donated their time and talent to help push the film forward: Writers gave us free screenplay drafts; conceptual art was supplied by illustrators, tests were performed gratis by highly respected actors and helped along and put together by editors, designers, prop makers and vfx artists; we were the recipients of donated studio and work space, lighting and camera equipment. Another irony, given the commercial stakes implied by the pitched legal dispute between Fox and Warners, is that for years Watchmen has been a project that has survived on the fumes of whatever could be begged, borrowed and stolen - A charity case for all intents and purposes. None of that effort, none of that passion and emotional involvement, is considered in the framework of this legal dispute.

From my point of view, the flashpoint of this dispute, came in late spring of 2005. Both Fox and Warner Brothers were offered the chance to make Watchmen. They were submitted the same package, at the same time. It included a cover letter describing the project and its history, budget information, a screenplay, the graphic novel, and it made mention that a top director was involved.

And it's at this point, where the response from both parties could not have been more radically different.

The response we got from Fox was a flat "pass." That's it. An internal Fox email documents that executives there felt the script was one of the most unintelligible pieces of shit they had read in years. Conversely, Warner Brothers called us after having read the script and said they were interested in the movie - yes, they were unsure of the screenplay, and had many questions, but wanted to set a meeting to discuss the project, which they promptly did. Did anyone at Fox ask to meet on the movie? No. Did anyone at Fox express any interest in the movie? No. Express even the slightest interest in the movie? Or the graphic novel? No.

From there, the executives at Warner Brothers, who weren't yet completely comfortable with the movie, made a deal to acquire the movie rights and we all started to creatively explore the possibility of making Watchmen. We discussed creative approaches and started offering the movie to directors, our former director having moved on by then. After a few director submissions, Zack Snyder came onboard, well before the release of his movie 300. In fact, well before its completion. This was a gut, creative call by Larry, me and the studio... Zack didn't have a huge commercial track record, yet we all felt he was the right guy for the movie.

Warner Brothers continued to support, both financially and creatively, the development of the movie. And eventually, after over a year of work, they agreed to make the film, based on a script that, for what it's worth, was by and large very similar to the one Fox initially read and deemed an unintelligible piece of shit.

Now here's the part that has to be fully appreciated, if for nothing more than providing insight into producing movies in Hollywood: The Watchmen script was way above the norm in length, near 150 pages, meaning the film could clock in at close to 3 hours, the movie would not only be R rated but a hard R - for graphic violence and explicit sex - would feature no stars, and had a budget north of $100M. We also asked Warner Brothers to support an additional 1 to 1.5 hours of content incurring additional cost that would tie in with the movie but only be featured in DVD iterations of the film. Warners supported the whole package and I cannot begin to emphasize how ballsy and unprecedented a move this was on the part of a major Hollywood studio. Unheard of. And would another studio in Hollywood, let alone a studio that didn't show one shred of interest in the movie, not one, have taken such a risk? Would they ever have made such a commitment, a commitment to a film that defied all conventional wisdom?

Only the executives at Fox can answer that question. But if they were to be honest, their answer would have to be "No."

Shouldn't Warner Brothers be entitled to the spoils - if any -- of the risk they took in supporting and making Watchmen? Should Fox have any claim on something they could have had but chose to neither support nor show any interest in?

Look at it another way... One reason the movie was made was because Warner Brothers spent the time, effort and money to engage with and develop the project. If Watchmen was at Fox the decision to make the movie would never have been made because there was no interest in moving forward with the project.

All in all, what Levin is saying is effectively the same point we've made about the innovation market over the years: the "idea" is a very tiny part. It's all about the execution. Fox wanted nothing to do with the execution and wasn't even that interested in the idea. Warner put up all the risk, and now Fox gets rewarded because at one point it bought the rights to just the idea. Once again, we're seeing society overvalue the idea and vastly undervalue the execution.

Of course, it's no surprise to see Fox's response is the same as plenty of patent holders in the same situation (paraphrased, obviously): "Tough noogies. The law is the law, and we win, so suck it." Wouldn't it be nice if, just once, we got to see common sense match up with what the law allows?

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Warner Bros. Make Up Your Mind: Are You Competing With Piracy Or Not?

from the mixed-messages dept

It really was just last week that we were somewhat impressed that movie studio Warner Bros. recognized that it needed to compete with piracy in China, and was doing so by offering super cheap movie downloads there. However, apparently that strategy isn't universal across Warner Bros., because, as a few readers have alerted us, the studio is acting in quite a different way in neighboring Korea. Rather than compete, Warner Bros., is apparently throwing in the towel and pulling out of Korea entirely.

To be honest, I'm quite confused as to how the same company could make both of those decisions in the course of a single week. Perhaps the situations are really different between China and Korea (though, I doubt it), but it's difficult to see why it would make sense to try to compete against widespread piracy in one country, and then insist it was impossible to do the same thing in another country.

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If You Can't Beat Them... Almost Join Them; Warner Offers Cheap Movie Downloads In China

from the but-nowhere-else-of-course dept

Well, at the very least, you have to hand it to Warner Bros. Studios for recognizing that pretending that it didn't have to somehow compete with pirated movies wasn't going to succeed as an overall strategy. The major Hollywood studio has now unveiled plans to offer a variety of movies for download in China priced at a dollar or less. Of course, it's unclear if the movies will have annoying DRM or any other inconvenience as well. Considering that unauthorized movies are already available pretty much anywhere, if Warner makes it difficult or annoying in any way, people are going to just stick with the unauthorized copies that don't create such problems. Still, this is definitely a step in the right direction: realizing that it isn't effective to pretend you can ignore unauthorized copies and still charge high prices.

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Judge Reminds Documentary Makers You Can't Copyright Facts

from the once-again...-with-feeling dept

In the past, we've discussed the oddity that moviemakers often purchase the rights to true stories before making movies about them. There's really no legal reason for them to do so -- as you can't copyright factual information. Anyone can make a movie based on a true story without purchasing any kinds of rights. Now, there may be some business reasons for doing so. Licensing the story from either those who were involved or who initially reported on it may allow you to have those people more involved in making the movie itself (though, that could just be handled by hiring them to advise, rather than "licensing" the story). Still, it did seem odd that it was so common for true stories to be "sold" this way.

Now a judge is reminding people that true stories aren't copyrightable. Rose M. Welch points out a ruling from a lawsuit filed by two filmmakers who had made a documentary called Ashes to Glory: The Tragedy and Triumph of Marshall Football, about the 1970 plane crash that killed the Marshall University football team, and the aftermath where the school tried to rebuild its football program. A few years ago, Warner Bros. made a (non-documentary) movie called We Are Marshall starring Matthew McConaughey about the same story. No one denies that Warner approached the documentary filmmakers about licensing their work -- but no agreement was reached.

The documentary makers then sued Warner for copyright infringement when their movie came out. However, a judge has dismissed the lawsuit, noting that you can't copyright facts, and most of the material in the film could easily have been gleaned from public news stories concerning the events. The judge also pointed out that We Are Marshall was heavily fictionalized and contains plenty that is unrelated to the documentary. As the judge noted: "Even though the two works have the same story as their subject, they are not substantially similar as the phrase is used in copyright jurisprudence."

It will be interesting to see if this leads studios to be less willing to license stories before making movies. This ruling also could mean bad news for the woman who claims to own the rights to the play Jersey Boys, as the situation there is pretty similar. Warner Bros. put out a statement saying how wonderful this decision was, though the company has its own history of overly aggressively trying to enforce its copyrights.

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