• Entertainment Sans Copyright

    by  • January 21, 2010 • Faculty Commentary, Scholarship • 1 Comment

    By Henry H. Perritt, Jr.

    In its issues surrounding the end of the first decade of the 21st Century, the New York times carried several articles speculating about the future of the communications and entertainment industries. One, a traditional glass-is-half-full slap at technology, bemoaned the fact that the new Blue Ray video-disc technology would fall short of making available the complete archives of all movies every shot—nevermind that the back catalogue of movies would not be available at all to consumers without such technology and its predecessors in the digital realm.[1] Others provided greater insight as to the core value underlying entertainment works, regardless of format and distribution technology. Manhola Dargis pointed out that, since the time of Edison’s innovation, through the onset of television, Internet distribution, and portable video players, what draws consumers is “narrative strategies and visual style.”[2] Regardless of the technology of delivery, it’s the “camera placement [and] editing that direct your attention,” and cause you to “fall under [the] sway of the movie, lock[ing] you into the story.”[3] A publishing-house president explained that publishers, as distinct from distributors of traditional printed book or e-book formats, “select, nurture, position, and promote” authors’ works.[4]

    Only the most obtuse—or those who make their livings solely from aggressive enforcement of copyright—now deny that digital technologies have revolutionized the popular music industry, offering consumers a much richer variety of musical styles and performers, even as they have killed off the major labels and CD retailers.[5] Video entertainment is next, and it’s far from clear that consumers should weep at the demise of the values of lying, cheating, egomania, greed, and follow-the-leader at the expense of creative impulses which long have defined Hollywood and co-opted the “indie” part of the film industry.[6]

    As bandwidth and storage continues to explode and iPhone-like devices penetrate every pocket, some trends are likely to enhance the power of consumers to “fall under the sway” of compelling video narratives: wireless streaming, packaging of video entertainment into smaller bites, chained together in sequels, recalling the era of serialized fiction in the magazines of a century ago. YouTube has connected audiences with millions of short-form video works, some of which have proved quite popular. Significant fractions of the most popular televisions shows have a serial character. Soap operas demonstrated for decades the viability of serialization of narrative.

    Serialization accommodates shorter audience attention spans and the lower costs of producing segments rather than feature-length works with current limitations on bandwidth and storage capacity. Enterprises that have lost the capacity to innovate in ways relevant to emerging markets often fall back on defending monopolies, hoping to hold back the tides of new forms of consumption and new ways of satisfying it. They always have failed and been swept away by challengers to their monopolies.

    The record labels and the studios, dominant rights holders in the current legal regime, have consistently used the law in attempts to assassinate music recording, broadcasts of music, video recording, and digital distribution of audio and video works. Their pre-occupation with legal protection of their monopolies has distracted them from entrepreneurial innovations such as those typified by Apple’s iTunes.

    They may hide for a time behind the law, but ultimately they will fail in the marketplace. Copyright and its aggressive enforcement will lose, pitted against natural human behavior in competitive marketplaces. Copyright is irrelevant in shaping the new world of entertainment. Success will be determined by creative story-telling, effective use of visual, audio, dramatic, and textual modes of communication and by new intermediaries who understand the power of new technologies but also respect the importance of selection, nurturing, positioning, and promotion of good content. In these new marketplaces, consumers will continue to be willing to pay –through new business models–for access to good stories and for virtual relationships with celebrity. Some of the creators and those that link them with fans will continue to get rich. They just will not do it in the old ways.

    [1] Dave Kehr, The Ballad of Blu-ray and Scratchy Old Film, N.Y. Times, Jan. 3, 2010 Arts and Leisure, at p10.
    [2] Manhola Dargin, Floating In the Digital Experience, N.Y. Times, Arts & Leisure, at p.1, 9.
    [3] Id.
    [4] Jonathan Galassi, There’s More to Publishing Than Meets the Screen, N.Y. Times, Jan. 3, 2010, at p.9.
    [5] See Jon Pareles, A World of Megabeats and Megabytes, N.Y. Times Arts & Leisure, at p.1.
    [6] See Miramax/Sundance book.


    The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

    One Response to Entertainment Sans Copyright

    1. Aura
      July 20, 2010 at 9:08 am

      The record labels and studios, the dominant right holders in the current legal regime, have always used the law in attempts to murder the music recording, streaming music, video recording, and digital distribution of sound works and video.

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