Studios Becoming More Open on Fair Use as Platforms Proliferate
LAS VEGAS -- As the number of distribution platforms increases, copyright law needs to evolve, lawyer Lincoln Bandlow said at the National Association of Television Program Executives conference. At the same time, content owners need to reconsider when they should sue, he said. Bandlow said a the law changed for the better recently when “transformative use” was tied criticism and parody by the Koons and Amazon-Perfect 10 rulings. “Transformative doesn’t mean that it’s a new use,” he said. “It doesn’t mean you have to change the fair use content. Putting it into a new context, even if the work itself is unchanged, is transformative enough.”
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Studios find themselves on both sides of fair use, acknowledged Dale Nelson, intellectual property counsel for Warner Bros. “We want to expand the boundaries of fair use in order to make our films. We also want to protect our creative asset to prevent others from using it in an unfair way. Fair use is about striking the right balance: protecting owners but allowing others to express their First Amendment rights. … The transformative use has been transplanted into the right of publicity analysis,” which directly affects studios in relation to fan sites.
Nelson said the music industry went hard after online infringers, but Warner has a different philosophy. “We have a lot of properties with huge fan followings. … With the Internet you can create mashups, publish your own work, use photos. … When this began around 10 years ago, we reacted by sending out cease-and-desist letters.” But the response of fans indicated that “embracing fan activity wouldn’t hurt our bottom line and in fact would prove to help it,” Nelson said. “So now we support fan activity, under certain rules: that it’s not commercial and doesn’t present itself as a studio site.” - Kathleen Tracy
NATPE Notebook
Broadcast and cable TV are on the decline and Internet TV is on the rise, claimed IT executive James Rooke at a NATPE presentation in Las Vegas on Internet TV: “Some inflection point is going to be reached, when the penetration of Internet-enabled TVs, the capabilities of interfaces and available content merge.” Rooke said programming can be consumed across many platforms, but “as viewing trends change, a new set of data is going to be required in order to succeed.” James Semenak, a consultant for Teradata, said Internet TV is primed for monetization. New metrics allow better tracking of consumer habits. “Monetizing of attention requires hyper-targeting,” he said. “The online companies have spent a lot of money and time working on hyper targeting and working on building the infrastructures and real-time ability to turn information back, at least within a couple of minutes, if not instantaneously."
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TV and magazines still have the most impact among millennials -- consumers 14-25 -- and Generation Xers, 26-42, according to a November survey ordered by Deloitte and presented Wednesday at NATPE. They're followed by the Internet. The willingness to pay for ad-free content has declined among all groups surveyed. “Young consumers would rather have limited interruptions than pay for no commercials,” said Diane Robina, Comcast’s emerging networks president. “You are going to see a lot of content offered to consumers for free, often in exchange for your personal information. … Millennials are screen-agnostic. When they are watching TV on their computer, to them that’s watching TV.” She said programmers have to recognize that the cellphone is the “single most important device” that people own, but developing programming is held by the subscription fees. “Pricing has to come down or be free, or at most a small charge with your phone service.” Senior Vice President Tom Zappala of ABC Family said insisting that ABC programs accompany the ABC player makes it easier to make money on the content. He said the profusion of platforms has created problems in timing shows. “Our affiliates now include the telcos and iTunes, so scheduling has gotten more difficult and complicated because you have so many affiliates to satisfy now.”
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Interactive TV has come and gone, Microsoft’s Shari Barnett told NATPE. “IPTV is a tough acronym and people think about it as video on the Internet but we're thinking about it as television delivered to the home over the Internet,” she said: “The TV and set-top box are now connected to the Internet as much as your computer is. It can take advantage of all the modern things and services that the Internet offers.” To assess consumer habits, Barnett said Microsoft, which offers the U-verse middleware to facilitate IPTV, “took 26 different scenarios from shopping to sharing social networking, to video phone services and telephony services” and conducted a poll in four countries, asking people in each what they liked to do with their TV. “Everywhere but Germany, men and women liked very different things,” she reported. “Women were more into social activities; men wanted sports and news. We're starting to think that having content you can wander through is going to find its place in TV.”