The killing fields
April 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 movies online.
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 in February.
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.”