12 , 2004
| For years, all was peaceful in the house of Horovitz. Jed
Horovitz, a 53-year-old New Jersey entrepreneur with sharply chiseled
features and gleaming bald head, had been running a small video
operation called Video Pipeline that took Hollywood films, created
two-minute trailers to help promote them, and distributed them to
online retailers such as Netflix, BestBuy, and Barnes and Noble,
as well as public libraries. Then one day in 2000, the Walt Disney
Co. sent a cease-and-desist order, charging that Horovitz's company
was violating Disney's copyright by featuring portions of their
Horovitz was astonished that his seven-employee company--which,
after all, had always showcased Disney films in a favorable light--was
being bullied by a $90 billion behemoth. Horovitz decided to fight.
He filed suit, asking for a declaratory judgment. Disney filed a
countersuit--and quickly made clear they were playing for keeps.
They asked for $110 million in damages.
During litigation, his lawyers advised Horovitz to keep quiet.
But there was no reason he couldn't make a movie about his ordeal.
Earlier in his career he worked at Roger Corman's low-budget movie
factory, helping turn out such classics as Slumber Party Massacre
2 and Rock 'n' Roll High School Forever. Now he reached
back to his documentary roots to tell his own story.
Originally, he planned to call his new first-person film Mickey
and Me. But as he heard of other, similar incidents, he realized
the story had a larger context. He and a videographer then spent
several months and $15,000 canvassing the nation to create Willful
Infringement, a call-to-arms about the clash between free expression
and the ownership of ideas.
"My mother was a children's librarian, and she imbued me with a
world view that culture is a conversation, that you don't own stories,
you share them," he tells me. "What has happened over the past few
decades is that culture has become privatized to the point where
we're now facing a crisis. We need to remember we can still quote
and sample, we still have fair use. As a free culture, we're still
allowed to do things without permission."
In the film, artists, writers, musicians, scientists, and others
parade across his lens. Many of them have been threatened, sued,
fined, and put out of work in the name of copyright. Horovitz captures
it all in a video vérité style popularized
by Michael Moore in Roger & Me and Bowling for Columbine.
At various points, the iconoclastic Horovitz appears on camera,
appearing dumbfounded at the tales of a preschool director who said
she received letters warning that the school could not show videos
to her young charges without a license or hang protected cartoon
characters on the walls without permission. He also interviews members
of a Rolling Stones tribute band who perform under a legal cloud
and husband-and-wife party clowns in Anaheim, California, who were
warned not to create balloon animals for kids that looked too much
like Tigger, Barney, or the Aladdin genie.
Mazen Mawlawi explains how he and his friends thought it would
be cool to make their own twist on the Star Wars legend and
so spent two years to make a 35-minute film short, set between episodes
three and four, that staged new scenes, including laser sword fights
and Jedi knights blasting into space. The tribute film was forced
off the Internet by Lucasfilm attorneys.
Don Joyce of the counterculture band Negativland makes an impassioned
defense of using "found sound" in albums and argues, "Art
has to be able to use almost anything it wants to, without payment,
without permission. I think that would not hurt the world one bit."
Joyce also observes, "The whole culture of folk music is impossible
now because you can be sued for copying another song. But that's
what folk music was all about: hearing a song and making your own
version. That was folk music for centuries, copying what people
heard around the country. That's now seen as illegal, criminal,
uncreative, and a danger to corporate capitalism."
Walter Leaphart, manager of the rap group Public Enemy, also turns
up. Leaphart can't understand why all of us are permitted to quote
and sample each other in newspapers and magazines but not in records,
where even a two-second homage to a classic song is now forbidden
without permission. "We just flat out say from now on, no samples,
because we don't have the manpower or the legal power or the money
to deal with those issues. I'm still cleaning up sample issues from
1991 from Public Enemy."
One person who did not want to speak on camera was Alice Randall,
who wrote "The Wind Done Gone," a takeoff on the 1936
novel "Gone With the Wind" done from the slaves' point
of view. The heirs of author Margaret Mitchell, who died in 1949,
sued to stop publication, and after a lengthy court battle it was
released on free speech grounds. "She sounded fragile from
her ordeal," Horovitz says.
Months after Horovitz finished his film, a court ruled that Video
Pipeline may not make its own online trailers for Disney movies
because trailers are covered by copyright laws and fair use does
not apply. Horovitz dissolved the company and laid off his employees
Now Horovitz is figuring out what to do next. He has distributed
copies of his movie to university law schools and other venues,
but its central message has still not bubbled up into the mainstream
media. Willful Infringement was featured as part of the "Illegal
Art" exhibit in 2003.
"This all comes down to whether you believe culture should
be bottom up or a top-down approach imposed by the corporations,"
Horovitz says. "As it is now, copyright law has become the killing
fields of culture."
Lasica is a veteran journalist who writes frequently about
the impact of emerging technologies on our culture. He is currently
working on a book about the clash between entertainment companies
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