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Budweiser, Stolichnaya Seek Removal From 'Flight' Movie


Two well-known liquor brands, Budweiser beer and Stolichnaya vodka, found themselves in a PR pickle when the feature film Flight, starring Denzel Washington as an alcoholic pilot, was released — featuring the brands just a bit too prominently for their liking. Now, the brands have asked Paramount Pictures to blur the drinks' images in the film.

In a letter to Paramount, Anheuser-Busch VP Robert Mccarthy said that he nor the brand had any idea Budweiser would be so prominently featured in the film. The brands are upset that the booze is being "misused." "We would never condone the misuse of our products, and have a long history of promoting responsible drinking and preventing drunk driving," wrote McCarthy in the email. Stoli reps also told the media that they were upset about the portrayal of the brand. "Considering the subject matter of this film, it is not something in which we would have participated," said one Stoli exec to the Associated Press.

Though Stoli has made no formal move to be removed from the movie, Anheuser-Busch asked that the Bud logo be removed or blurred in future digital copies and video-on-demand releases. Other liquor brands in the movies, like Absolut and Smirnoff, have not yet commented on the film.

However, as Hollywood Reporter points out, Paramount doesn't really have to do anything for their demands. Filmmakers can get around trademark and copyright laws for using brand logos, thanks to "fair use" privileges under federal laws.


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APNewsBreak: Budweiser seeks removal from ‘Flight’

Denzel Washington’s character in “Flight” drinks a lot throughout the film, but his portrayal of a highly functioning alcoholic pilot isn’t going down well with brewing company Anheuser-Busch or the distributor of Stolichnaya vodka.

Anheuser-Busch said Monday that it has asked Paramount Pictures Corp. to obscure or remove the Budweiser logo from the film, which at one point shows Washington’s character drinking the beer while behind the wheel.

Budweiser is hardly the only alcoholic beverage shown in “Flight,” which earned $25 million in its debut weekend and is likely to remain popular with audiences. Washington’s character frequently drinks vodka throughout the film, with several different brands represented. William Grant & Sons, which distributes Stolichnaya in the United States, also said it didn’t license its brand for inclusion in the film and wouldn’t have given permission if asked.

Although product placement, where companies pay producers to have their brands seen on-camera, have become ubiquitous in movies and television, experts say studios are not obligated to get permission before featuring a product in their work.

Rob McCarthy, vice president of Budweiser, wrote in a statement to The Associated Press that the company wasn’t contacted by Paramount or the production company of director Robert Zemeckis for permission to use the beer in “Flight.”

“We would never condone the misuse of our products, and have a long history of promoting responsible drinking and preventing drunk driving,” McCarthy wrote. “We have asked the studio to obscure the Budweiser trademark in current digital copies of the movie and on all subsequent adaptations of the film, including DVD, On Demand, streaming and additional prints not yet distributed to theaters.”

A spokesman for Zemeckis referred questions to Paramount, which did not return an email message seeking comment.

James Curich, a spokesman for Stoli distributor William Grant & Sons, said the company has a strict code for how the vodka is portrayed in films and is committed to marketing it responsibly. “Considering the subject matter of this film, it is not something in which we would have participated,” he wrote in an email.

Despite the companies’ dissatisfaction with their inclusion in the film, experts say there is little they can do about it legally.

Trademark laws “don’t exist to give companies the right to control and censor movies and TV shows that might happen to include real-world items,” said Daniel Nazer, a resident fellow at Stanford Law School’s Fair Use Project. “It is the case that often filmmakers get paid by companies to include their products. I think that’s sort of led to a culture where they expect they’ll have control. That’s not a right the trademark law gives them.”

Jay Dougherty, a professor at Loyola Law School, said the use of brands in films has generally been protected by the courts, even when the companies aren’t pleased with the portrayals.

“It wouldn’t have been as effective a film if they used a bunch of non-generic brands,” said Dougherty, who is also the director of the school’s Entertainment & Media Law Institute. “In a normal situation, if the alcohol were just there as a smaller part of the movie, they might have created an artificial brand for it.”

Other vodka brands, including Absolut and Smirnoff, are also included in the film. Representatives of those companies did not return messages seeking comment.

Paramount has some experience with a company upset with its inclusion in a film. In 2003 the studio won a case after the makers of the “Slip `N Slide” sued over the use of the product in the film “Dickie Roberts: Former Child Star.”

In that case, a court found that requiring Paramount to alter the film and its marketing would “generate more hardship than it alleviates.”

Dougherty and Mark Partridge, a Chicago intellectual property lawyer, also noted that a court rejected an effort to get by Caterpillar Inc. to get its logo removed from tractors driven by the villains in 2003’s “George of the Jungle 2.” The company had argued its trademark was harmed by having its product associated with the film’s villains.

Partridge said with the explosion of product placement in recent years, a company might try to make an argument that by the brand appearing in a film, the audience assumed it had granted permission. “You’d have to have proof that people actually making an association and believing it was authorized,” he said.

“It might be a different world,” he said, adding, “I still think it’s an uphill haul.”

AP Entertainment Writers Christy Lemire in Los Angeles and Jake Coyle in New York contributed to this report.


‘Flight’: Budweiser and Stolichnaya product placement gone wrong?

The owners of Budweiser beer are a little upset with Paramount Pictures. The company believes that the studio may have portrayed their product in an unflattering light in the new Denzel Washington film "Flight."

According to the Associated Press, brewing conglomerate Anheuser-Busch is seeking the removal of the Budweiser logo from the recently released movie because the film depicts Washington's character, a high-functioning alcoholic, drinking a Bud while driving a car. That's bad enough, but his character doesn't just drink and drive -- he also drinks and flies! Washington plays heroic airline pilot Whip Whitaker, who miraculously lands a crippled airplane and saves most of the passengers on board, despite his substance abuse issues.

"We have asked the studio to obscure the Budweiser trademark in current digital copies of the movie and on all subsequent adaptations of the film, including DVD, On Demand, streaming and additional prints not yet distributed to theaters," said Budweiser vice president Rob McCarthy in a statement.

And Bud isn't the only booze that Whitaker drinks in the film. The Whitaker character has a penchant for vodka -- Stolichnaya, to be exact -- a brand whose logo can be seen on screen as well. William Grant & Sons, the U.S. distributors of the Russian hard liquor, have also taken issue with their product being featured so prominently in the film.

"Considering the subject matter of ["Flight"], it is not something in which we would have participated," a Stolichnaya spokesperson told the Associated Press.

At issue is the fact that "Flight's" producers did not ask or secure permission from either company to include their brands in the film. Although the filmmakers are not actually legally required to do so, these statements from Anheuser-Busch and Stolichnaya raise the possibility of a lawsuit. Paramount has not responded to the controversy, either, so it will be interesting to see if they do actually remove the logos from future versions of "Flight."

Normally, high-profile brands like Bud and Stoli secure lucrative product placement deals with studios, so perhaps the companies are more upset by the lack of green than the apparently negative context in which their alcohol is seen. "Flight" opened at No. 2 at the box office this weekend, with over $25 million in box office receipts. Positive or negative, that's a lot of brand exposure.

Other vodkas, including Absolut and Smirnoff, were also included in the movie, but neither brand has responded to comments, nor have they officially asked for their product to be removed from "Flight." Alcoholic or not, Washington's character still comes out a hero in the film. Whip Whitaker may not be a responsible drinker, but that's hardly the brand owner's fault. Similarly, since when was making a film about an alcoholic an endorsement of alcohol abuse?

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Budweiser Asks Paramount To Remove Their Beer From The Movie Flight

From the maybe-their-lawyers-were-drunk? dept

As product placement in television and film becomes more prevalent, it was only a matter of time before intellectual property silliness had to follow. For example, we've seen such wonderful cases of egocentrism as a copyright claim over a painting shown in a movie. Couple that with product placement examples that are awkward for all involved and you've got a recipe for litigious fun not seen since a murder trial involving a former Buffalo Bills running back.

Reader Chris writes in about a story that appears to be a nice crossroads of these two aspects of product placement, in which several alcohol companies are apparently upset that their products are being shown in the movie Flight doing what those products do: get people drunk.

Anheuser-Busch said Monday that it has asked Paramount Pictures Corp. to obscure or remove the Budweiser logo from the film, which at one point shows Washington's character drinking the beer while behind the wheel.

Budweiser is hardly the only alcoholic beverage shown in "Flight," which earned $25 million in its debut weekend and is likely to remain popular with audiences. Washington's character frequently drinks vodka throughout the film, with several different brands represented. William Grant & Sons, which distributes Stolichnaya in the United States, also said it didn't license its brand for inclusion in the film and wouldn't have given permission if asked.

Now, you may be asking yourself, "Why didn't the film get permission to use the products in their film?" The answer is about as complicated as a straight line they don't have to. Studios are not required to ask for permission to include every little brand in their movies -- even if some companies now think that's the case. True, Denzel Washington's character in the film is a drunk and Budweiser may not be pleased to be associated with that aspect of the story, but the law isn't concerned about Budweiser's pleasure. Trademark law isn't about making sure you're always happy about how your product is displayed.

Even going beyond trademark law, it's not like they were "misrepresenting" anything. I, for one, can assure you that the depiction of beer being able to get a person hammered is spot on accurate, and if you won't take my word for it, I'll give you the phone numbers of some of my neighbors who can relate their experiences living near me on NFL Sundays. The point is that there's a reason these companies didn't give their permission: nobody asked them for it.

Trademark laws "don't exist to give companies the right to control and censor movies and TV shows that might happen to include real-world items," said Daniel Nazer, a resident fellow at Stanford Law School's Fair Use Project. "It is the case that often filmmakers get paid by companies to include their products. I think that's sort of led to a culture where they expect they'll have control. That's not a right the trademark law gives them."

Jay Dougherty, a professor at Loyola Law School, said the use of brands in films has generally been protected by the courts, even when the companies aren't pleased with the portrayals. "It wouldn't have been as effective a film if they used a bunch of non-generic brands," said Dougherty, who is also the director of the school's Entertainment & Media Law Institute. "In a normal situation, if the alcohol were just there as a smaller part of the movie, they might have created an artificial brand for it."


Budweiser Asks Paramount To Remove Their Beer From The Movie Flight

From the maybe-their-lawyers-were-drunk? dept

As product placement in television and film becomes more prevalent, it was only a matter of time before intellectual property silliness had to follow. For example, we've seen such wonderful cases of egocentrism as a copyright claim over a painting shown in a movie. Couple that with product placement examples that are awkward for all involved and you've got a recipe for litigious fun not seen since a murder trial involving a former Buffalo Bills running back.

Reader Chris writes in about a story that appears to be a nice crossroads of these two aspects of product placement, in which several alcohol companies are apparently upset that their products are being shown in the movie Flight doing what those products do: get people drunk.

Anheuser-Busch said Monday that it has asked Paramount Pictures Corp. to obscure or remove the Budweiser logo from the film, which at one point shows Washington's character drinking the beer while behind the wheel.

Budweiser is hardly the only alcoholic beverage shown in "Flight," which earned $25 million in its debut weekend and is likely to remain popular with audiences. Washington's character frequently drinks vodka throughout the film, with several different brands represented. William Grant & Sons, which distributes Stolichnaya in the United States, also said it didn't license its brand for inclusion in the film and wouldn't have given permission if asked.

Now, you may be asking yourself, "Why didn't the film get permission to use the products in their film?" The answer is about as complicated as a straight line they don't have to. Studios are not required to ask for permission to include every little brand in their movies -- even if some companies now think that's the case. True, Denzel Washington's character in the film is a drunk and Budweiser may not be pleased to be associated with that aspect of the story, but the law isn't concerned about Budweiser's pleasure. Trademark law isn't about making sure you're always happy about how your product is displayed.

Even going beyond trademark law, it's not like they were "misrepresenting" anything. I, for one, can assure you that the depiction of beer being able to get a person hammered is spot on accurate, and if you won't take my word for it, I'll give you the phone numbers of some of my neighbors who can relate their experiences living near me on NFL Sundays. The point is that there's a reason these companies didn't give their permission: nobody asked them for it.

Trademark laws "don't exist to give companies the right to control and censor movies and TV shows that might happen to include real-world items," said Daniel Nazer, a resident fellow at Stanford Law School's Fair Use Project. "It is the case that often filmmakers get paid by companies to include their products. I think that's sort of led to a culture where they expect they'll have control. That's not a right the trademark law gives them."

Jay Dougherty, a professor at Loyola Law School, said the use of brands in films has generally been protected by the courts, even when the companies aren't pleased with the portrayals. "It wouldn't have been as effective a film if they used a bunch of non-generic brands," said Dougherty, who is also the director of the school's Entertainment & Media Law Institute. "In a normal situation, if the alcohol were just there as a smaller part of the movie, they might have created an artificial brand for it."


How do carpenter ants get inside a home?

Carpenter ants love wet and/or moldy wood, so if there is a moisture issue in any part of your home, they'll be attracted to those areas. However, carpenter ants don't always get into your home by chewing their way through wood. They can enter your home through any crack or tiny opening, even if it is high above the ground (carpenter ants will simply use a branch or climb up pipes and wires to get there).

Indoors, carpenter ants usually like to set up their homes near water sources. The areas near air-conditioning units, dishwashers, sinks, and bathtubs are all popular places for carpenter ants.


1. A good bite

So what’s so great about a good bite? See all of the above!

This is what orthodontics and braces were invented for – not to give you a pretty smile, as you may have been told, rather, to improve your overall health and live without pain!

We, dentists, study this as a science, but when we bring it to our patients, we fail to educate them and, instead, sell it to them as fluff. No doubt that a beautiful smile brings confidence and self-esteem, but without good physical health, the former is hollow!


Out-of-place: How brands respond to unauthorized product placements

Charlize Theron was shown with a tub of Ben & Jerry’s ice crean in the 2011 movie Young Adult.

This article was published more than 7 years ago. Some information in it may no longer be current.

The King of Beers says its crown has been tarnished.

For years, the caveat "please drink responsibly" has been a mainstay of beer and liquor ads – but an unauthorized product placement is going off message. The new film Flight stars Denzel Washington as an alcoholic pilot, who regularly slugs back bottles of Bud, among other drinks. Now Anheuser-Busch has asked Paramount Pictures Corp. to remove its Budweiser brand from the movie.

"We would never condone the misuse of our products," Budweiser vice-president Rob McCarthy wrote in a statement in November. William Grant & Sons, which distributes the Stoli vodka that also appears in the film, keeps a tight rein on how the product is shown in product placements. The company would not have agreed to a placement in Flight if it had been asked, a spokesperson said in a statement. However, the company has not approached Paramount or the film's producers to discuss the matter. Paramount did not respond to multiple requests for comment.

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This kind of unauthorized product placement is a reality for marketers. And a growing number are changing their approach, loosening their grip on placements in film and on TV – whether authorized or not. Social media has fundamentally changed things: From Twitter to Facebook and all corners of the Internet, conversations about brands are taking place on whether or not those brands decide to participate. The marketers that are most successful adapting to the social age are the ones that have realized they cannot maintain an iron grip on their image.

Stuart Schorr is one. Last spring, the vice-president of communications at Jaguar U.S. watched a marketing nightmare unfold on his TV as a major character on the lauded cable series Mad Men attempted suicide by asphyxiation in a Jag.

"I'm like 'No. No, this can't be happening,' " he said, recalling the broadcast. "As soon as the car didn't start, immediately, I started shouting out loud, 'The car's not starting! The car's not starting!' I was happy."

It was the worst optics yet in a multiple-episode arc that saw the brand dragged through some Mad mud. Just as with Flight and Budweiser, Mad Men' s portrayal of Jaguar was not a product placement gone off the rails the company was never involved. But Jaguar's response says something about an evolving attitude. While industry watchers say there is no great increase in film and television producers using brands without consent – this has always happened to some extent – the response of brands faced with unauthorized product placement does seem to be changing.

"They didn't ask. . And we didn't have a problem with that," Mr. Schorr said. Jaguar executives made a conscious choice not to go after the show with legal challenges or attempts to negate the assaults on its image.

Mr. Schorr says that had this bit of drama played out 10 years ago – in the pre-social media age – the company's response would have been very different.

"It's a wild world of brand marketing," Mr. Schorr said. "There's a lot of different ways that your brand gets attention, and gets talked about. . You have to know when a response is necessary. You have to have thick skin."

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Marketers are learning this on TV and in film more and more now. On the last season of 30 Rock, for example, labyrinthine furniture store IKEA was portrayed as a dystopian nightmare. When Tina Fey's character has a problem, a maniacal sales representative responds, "Silence, prisoner – I mean, can I help you, valued customer?" When the stressful environment causes tension between the character and her boyfriend, the staffer looks on happily, stroking the wall in a sinister manner and whispering "IKEA."

IKEA regularly does product placements – a twee scene in the movie 500 Days of Summer is one example – but this was not one of them. The 30 Rock crew built their own sets replicating a store. Since it did not use the IKEA logo, permission "was not requested or required," said Janice Simonsen, a spokesperson for IKEA U.S. She seemed untroubled by the show's hellish vision of the store.

"We don't like to take ourselves too seriously," she said.

Ben & Jerry's was similarly relaxed when it fell into the hands of a self-absorbed, miserable character in the 2011 movie Young Adult. The film's marketing materials featured a shot of Charlize Theron's character holding a tub of the ice cream, looking wan and depressed.

Normally, a star of such wattage coming into contact with a brand is hugely valuable. But being gulped down in a fit of self-loathing by a women described by others as a "psychotic prom queen bitch" is not exactly the bouncy, laid-back image Ben & Jerry's usually cultivates. The Unilever-owned ice cream maker didn't mind.

"You probably wouldn't get your product in any stories if you were waiting for the perfect [character]," said Sean Greenwood, the "grand poobah of public relations" for Ben & Jerry's.

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Not everyone agrees with that lighthearted approach.

"I wouldn't say any exposure is good exposure," said Jason Silver, president of Toronto-based FTWK Agency, which facilitates product placements in movies and TV for clients such as Toyota, Johnson & Johnson, and Mastercard. FTWK was instrumental in an episode of How I Met Your Mother that took place partly in a Tim Hortons. But he would never allow a client's product to be handled by a villain or be present in negative scenes.

"When I'm watching a movie and I see a fake-label brand, I know something bad is about to happen," he said. That's because the absence of a real logo indicates the advertiser didn't sign off on the action.

Film and television producers regularly seek out consent before using a product, because the production company's insurance often requires it: Securing permission cuts down the likelihood of a company taking legal action against them, which the insurer would have to help pay to defend.

But Leonard Glickman, a partner in the Business Law Group at Cassels Brock, who specializes in intellectual property law in the entertainment industry, has noticed fewer lawsuits, mostly because they are difficult to win.

"Most of the cases – and there are more in the States than in Canada – have gone against the brand owners," he said. "There's more of a role for a communications response than a legal response."

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Take the 2004 Slip 'N Slide case: Wham-O Inc., the maker of the toy waterslide, sued Paramount for unauthorized use of the product in the film Dickie Roberts: Former Child Star. In the scene, the main character jumps on to a dry Slip N' Slide to painful effect. The court dismissed the case because of a "fair use" allowance in trademark law, and because the scene was exaggerated enough that the audience would understand it was not a product placement and the brand would not be harmed.

In an age where news travels quickly on social media, more brands are learning that there is a risk in taking a legal response. When Labatt Breweries of Canada found its product in the hands of suspected killer Luka Magnotta in a photo on the Montreal Gazette's website, it made legal threats against the paper. Twitter and Facebook erupted with criticism of Labatt, and the brand ended up being misappropriated even further: People used the Twitter hashtag #newlabattcampaign to post fake advertising slogans for the beer, tied to the grisly murder.

Beyond legal concerns, there is a simpler reason producers will ask before showing a brand in a scene: to cut costs. Many companies are happy to provide free props in exchange for having their products featured.

But unauthorized use of products is still relatively common. In 2011, New Balance had an unfortunate star turn in Crazy Stupid Love, when suave leading man Ryan Gosling threw a pair off a balcony in a lesson about bad fashion choices.

"What can a company do?" said Steven Lewis, president of integrated marketing firm XMC Sports & Entertainment, and a former entertainment lawyer with Heenan Blaikie LLP. "It comes back to libel and slander. If something is said about a brand that is inaccurate, and there are damages that can be attributed to the statement, there's a basis for legal proceedings … But there's an ambiguity to it – if I were defending the production company, I would talk to that point. There's ambiguity."

Marketers such as Jaguar's Mr. Schorr are now thinking twice about whether that's entirely negative.

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"I think it's a generational thing," he said. "We knew it wasn't real . and our responses using Twitter and Facebook really helped turn it into a positive."

Even when authorized, product placement has to walk a fine line between helping the brand and looking authentic, said Anthony Hello, who runs the branded content department at MediaCom Canada. As viewers become even harder to reach, companies need product placement more than ever.

"People can tune out a lot of what is out there – or fast-forward through it . Advertising for a long period of time has been an interruption, and people don't like to be interrupted," Mr. Hello said. "With social media and all the screens that are constantly going, the real forefront for brands is showing up on those screens as part of the content that consumers want."

Sometimes that means taking a deep breath, building a thicker skin, and in the case of Jaguar, praying that the car won't start.


You're Only Making Things Worse For Yourself (And Us Too), Media Industries (Part II)

From the double-parking dept

Summary of Part One: Consumers, trained by content providers to think most entertainment can be enjoyed freely, no longer take copyright seriously as a legal or moral imperative. It's like a parking meter that's rarely checked. When we do get a (large) ticket, we're outraged. After all, no one else got one for doing exactly the same thing. Our cognitive dissonance has left copyright a law in name only.

Media industries have made things worse for themselves by training customers to think of ads and other indirect sources of revenue-generation as an inconvenience, a feature of programming best not talked about. Ads are woven into the flow of the programming, and increasingly hidden in product placements and other inline forms of sponsorship. My favorite brand of frozen pizza is now co-marketed with the new "Avengers" movie. The psychology of advertising is subtle and complex&mdashor maybe not.

In either case, the result is that at the most basic level&mdashat the reptilian cortex of the brain&mdashconsumers are encouraged to ignore the reality that advertisers pay for or highly subsidize most forms of content. Because the economics of content are kept mysterious, we have no reason to believe that if we enjoy movies, music, books or television shows at the wrong time, or with the wrong people, or without the ads, we're undermining the basic rules of the industry. How can we be expected to understand that doing so is not only dangerous to the continuation of that longstanding model but also a crime, punishable by enormous fines and even possible jail time?

What consumers do see, however, is that as content has been translated, often kicking and screaming, into digital form, the unit cost of production, distribution, and marketing has plummeted. Yet for most media, the price has not decreased proportionally, largely because rightsholders want to protect increasingly uneconomical physical media formats such as hardcover books, newspapers, and movie DVDs.

Worse, even as the unit cost of media declines, the rules against unauthorized copying have become stricter. It's as if there were suddenly millions of new parking spaces available across Manhattan, but parking lots keep charging more than $10 an hour. And all the meters are suspiciously broken.

How did this happen? Since well before the invention of the photocopier, media industries have pursued a consistent if counter-productive legal strategy of responding to disruptive technologies that decrease costs and open new markets by lobbying for extensions to copyright terms, increased penalties, and criminalizing more behaviors.

Their theory&mdashif there is one&mdashis that technologies that make it cheaper to create and distribute content also make it cheaper to violate copyright (see Napster, et. al.). Cheaper production is ignored, while increased potential for violations requires enhanced penalties that can't, in any case, be enforced. It's a lose-lose-lose strategy for producers, creators, and consumers. And it's a loop we've been stuck in for decades.

One result of that fatal loop is that under current law the concept of fair use&mdashlong understood as a safety valve to an otherwise economically-dangerous copyright monopoly&mdashexists in name only. And with copyright terms continually and retroactively extended, almost nothing enters the unrestricted "public domain" anymore, even though the continued expansion of the public domain was the whole point of granting the "limited" copyright monopoly in the first place.

Copyright was designed as a low-cost and largely self-enforcing mechanism for achieving two important goals: incentivizing creators to build the intellectual capital of a new nation and making sure that their efforts could be used and built upon as quickly and as freely as possible. Copyright gives authors a monopoly, which necessarily reduces potential social value. (Economists call it "dead weight loss.")

But there's an essential caveat. Once the limited period of the monopoly expires, all rights are unreserved. The public can do as it pleases with the work&mdashcopy it, adapt it, reframe it, anthologize it, mock it. (Some amount of mocking is allowed even before the term expires.) As the Constitution puts it, Congress shall have the power&mdashand not the obligation&mdash"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

But copyright law no longer promotes the progress of anything. It just secures more rights. And patent law, in its own state of disarray, is even worse. It's actually counter-productive, as if to make it a crime just to think about parking.

This dangerous imbalance in the system is the result of misguided efforts to preemptively rescue American content industries from wave after wave of disruptive copying technologies, each seen as the certain destroyer of the content enterprise. Jack Valenti's infamous testimony that the VCR was "to the American film producer and the American public as the Boston strangler is to the woman home alone" is still chilling in both its rhetorical excess and its misreading of the future. (And how was the "American public" threatened at all?)

The imbalance of copyright today is the result of Hollywood's irrational fear of the unknown. As Prof. Tom Bell made visually clear with his 2009 "Mickey Mouse Curve," the regular extension of copyright terms and penalties, especially in the last hundred years, has not been based on the reasoned deliberation of Congress so much as the unrelenting lobbying of the Disney Corporation, determined to spend whatever it must to keep every iota of its creative work out of the public domain. Worse, Disney's obsession is about control, not maximizing profits.

As Bell's curve demonstrates, whenever the earliest works of Disney are about to lose copyright protection, Congress steps in to extend it retroactively. This is no coincidence. But it is ironic coming from a company whose oeuvre includes so many films based on content (the Hunchback, Hercules, Mulan, Tarzan) that had only recently entered the public domain. Or maybe not ironic at all.
Source: Tom W. Bell
(It is a persistent myth, by the way, that allowing "Steamboat Willie"&mdashitself a parody of a Buster Keaton film&mdashto enter the public domain would mean the end of protection for Mickey Mouse. While freely copying those early cartoons would no longer violate Disney's rights, all the later works would still enjoy their full run of exclusive rights. And Disney's trademarks in its characters and character designs would greatly limit what others could do with Mickey beyond copying the public domain cartoons themselves. Trademarks are valid so long as consumers continue to associate them with a particular source&mdashpotentially forever.)

Irrational policy decisions produce unintended consequences. The successful campaign to continually and dramatically extend copyright is increasingly a pyrrhic victory for the content industry. By removing all of the safety valves against abuse of the "limited" monopoly, copyright, as Supreme Court Justice Breyer has argued in dissent, has effectively become permanent. The law is now rewritten solely to protect the interests of a few large rightsholders.

Yet traditional forms of legal enforcement have become nearly impossible. Consumers use a constant supply of disruptive technologies (the cloud, P2P protocols, encryption) to rebel against a dictatorial copyright regime. And the speed of innovation has long-since outstripped the speed of Congress and the courts. Most consumers now see themselves and each other not as lawbreakers but as freedom fighters. Copyright, in its current mutant form, is now firmly on the wrong side of history.


Watch the video: Flight 2012 (October 2021).