Substantially Similar--A Blog on IP Issues, Writing and Film
The Benefits of--and Confusion About--Overwriting
by John Aquino on 10/29/12
As a journalist, I try to write concisely. When I write creatively--fiction or extended nonfiction--I try to write more than is needed. I can then pare down, deciding what, if anything, is more important than something else, or rewrite, folding some of what I have into something else.
When I' described this to someone recently, it struck her as odd, as if the waist size of a fictional character's pants is always irrelevant. It's important to know as much as you can about your characters in writing fiction and as much as you can about the people and events in writing nonfiction. But that might be more than the audience needs to know, so you, or others, may edit. Or not.
I've always felt that it's easier to cut down than it is to build up.
I remember two moviemaking stories about overwriting. One is about William Saroyan, who in the late 1930s was a very famous playwright and short story writer. But after The Time of Your Life won the Pulitzer Prize for drama and the New York Critics Award in 1939, his next few plays were not well received and he accepted an offer from Metro-Goldwyn-Mayer, the premiere Hollywood studio, to write and direct a movie.
Saroyan produced a screenplay in narrative form about the effects of the war on a small town that estimates were would end up as a five-hour film. A shocked Louis B. Mayer fired Saroyan and had one of his contract writers, Howard Estabrook, rework the screenplay. A miffed Saroyan took his narrative script, titled The Human Comedy, and published it as a novel, which became a best seller. It came out just before the movie, which caused some people to think that the movie was based on the novel. When the movie came out, it too was a hit and ultimately won Saroyan the Academy Award for best original story.
Saroyan deserved all of the credit he received and more. If you see the movie and read the novel, there is nothing in the movie that is not in the novel. Estabrook didn’t create anything, he simply edited the narrative down. Mayer just didn’t understand. But Saroyan was able to get two bangs for his buck—novel and screenplay.
In a similar situation, the screenwriter, novelist, and film critic James Agee wrote the scripts for at least two great films—the African Queen, directed by John Huston, in 1951, and the Night of the Hunter, directed by Charles Laughton, in 1955. After Agee died in 1957 and Laughton in 1962, Robert Mitchum, who had starred in Hunter, repeated the story Laughton rold him—that Agree had delivered a massive, 293-page screenplay that was unfilmable and Laughton had to completely rework it.
This story persisted until a film scholar uncovered Agee’s draft of the screenplay in 2004 and found that there was nothing in the finished film that was not in Agee’s script. For the benefit of the actors and director, Agee had provided a great deal of background about the characters. For instance, for a young girl who watches a boat pass by, he gave her whole backstory and interior thoughts. It was never meant to be filmed. Hunter was Laughton’s first film, and he was nervous and overreacted to the sheer size of Agee’s script.
I guess it is a good idea to tell people that you have overwritten and why.
Looking for Creativity in Movie Making
by John Aquino on 10/19/12
I’ve written a bit earlier in these blogs about creativity. I’d like to add some examples of demonstrations of creativity in the making of movies.
The composer George Duning was given a special assignment that tasked his creativity. He had been asked to write the score for the 1955 film Picnic, which was based on William Inge’s Broadway play. Joshua Logan had directed the play on Broadway and was given his first film directing assignment for the movie version. In the play, Hal and Madge dance to the song “Moonglow” by Will Hudson, Eddie DeLange, and Irving Mills as it is played by the band at the picnic. For the film, the studio, Columbia Pictures, wanted to use a newly-written composition, which might have Academy Award potential, rather than this 1934 song, but Logan was superstitious about it since the song had worked well on Broadway. He insisted that “Moonglow” be used, and the studio purchased the rights to use it.
When he saw the rough cut, however, Logan admitted that the song seem too slight for the occasion. Logan went to Duning and boldly asked him to write a new song that could be superimposed on “Moonglow.” Logan was really asking Duning to get him out of a jam by using the song that he had insisted on using but also by writing a new song that would make the scene better. Duning explained that Logan's idea of placing a new song on top of a previously written one was impossible, that the harmonies of the two different compositions would create dissonance. Logan got angry at him, and Duning asked Logan for time to see what he could do.
He came back with a solution. Hal and Madge , played in the film by William Holden and Kim Novak, start dancing to “Moonglow,” they look into each other’s eyes lovingly, and when “Moonglow” has been played once, Duning’s “Theme from Picnic” comes up full played by the string section and “Moonglow” basically becomes the rhythm section of the combined composition.
When he had finished playing it for Logan, the director became so excited he shouted, "They're going to think I'm a great big genius."
Duning creatively found a way to satisfy what Logan was after and still avoid musical dissonance. The score was nominated for an Oscar, and the “Theme from Picnic,” which combines “Moonglow” and Duning’s composition, became a major hit. As an illustration of how successful the blending of "Moonglow" and "Theme from Picnic" was, the owners of the copyright of “Moonglow,” who had granted the appropriate rights for use of the song to Columbia, sued Columbia saying that Duning’s theme had actually infringed their copyright. Columbia won, of course.
Creativity can also be using someone else's materials creatively. Roger Edens was a composer and musical arranger working at MGM. The studio had a young lady named Judy Garland under contract, and she had a very big voice. Edens created a showcase number for her in the 1938 film Broadway Melody of 1938 using a song that had been first sung in 1911 on Broadway by another performer with a big voice, Al Jolson. The song was "You Made Me Love You." Edens wrote a new introduction to the song called "Dear Mr. Gable" in which a star-struck teenager sings of her love and devotion to a photograph of MGM star Clark Gable. The introduction led into to "You Made Me Love You."
Edens later did something similar with another old song. Singing in the Rain was to be a 1951 MGM film showcasing the already published and performed songs of Herb Nacio Brown and Arthur Freed. The song "Singing in the Rain" was written for the 1929 MGM film Hollywood Revue of 1929 and sung by the performer Cliff "Ukulele Ike" Edwards, who accompanied himself on the ukulele. (Edwards was later the voice of Jiminy Cricket in Walt Disney's 1940 animated film Pinocchio.") Gene Kelly was to sing the song in the 1951 film, and a different non-ukulele approach was needed. Kelly was, after all, going to do exactly was the song said the singer was doing and that was sing and dance in the rain. In the film's plot, the Kelly character leaves his new love as it starts to rain and then begins to dance with abandon in the rainstorm. To segueway into the old song, Edens wrote a brief introduction that goes "Do-dee-do-do, do-dee-do-dee-do-do-dee-do-dee" that worked perfectly and is even today an inseparable part of the number whenever it is performed.
Copyright by John T. Aquino 2012
Journalists Should Follow the Rules--But with Understanding
by John Aquino on 10/04/12
The most important rule there is for journalists is to always tell the truth. There are other rules, including, off the record means off the record. Not following this rule can damage the trust that must exist between the journalist and public. Why would anyone speak to us if they felt they couldn't trust us?
But I'm going to tell you a story of when I observed that rule, perhaps too closely.
I was working as the editor of a magazine owned by an environmental association. The association had just formed its own educational foundation, which, soon after its founding, developed its first conference. The foundation invited me to cover the conference, interested in the promotion a story in the magazine would bring, and I most gladly accepted.
I walked into the elevator in the hotel where the conference was being held to go down to the first session and standing there was the head of one of the larger associations devoted to recycling. I knew he was one of six panelists at the first session of the conference. I had never met him and so I introduced myself and extended my hand. He stared at me and barked, "I was not told there would be journalists attending!" When the elevator reached the ground floor, he stormed out and rushed toward the hotel ballroom.
I entered the ballroom, sat down in the audience, and saw him talking to the moderator for the session. The moderator began the session by saying, "This session is off the record for the press."
I put down my pen and notebook and folded my arms across my chest. It was clear what had happened. As a result of meeting me, the recycling association head (RAH) had demanded that the sessions be held off the record or he would not participate. The moderator felt he had no choice except to oblige.
After a while, one of the association's elected officials saw me sitting there, came over, and asked why I was not taking notes. I said, "I can't. It's off the record." He said, "It doesn't mean that." I said, "That's exactly what it means. If I were recording this, I would shut off my tape recorder and there would be no taped record. Since I am covering the session by taking notes, I have to stop taking notes. Off the record means there is no record."
He hauled me up and propelled me into the hallway and summoned some of the association staff. When I explained what was happening, one of them said, "Well, can't you do it from memory?" I answered, "If you were speaking, would you want me to write a story about what you said based on my memory."
When all six of the panelists had finished, the association elected official ran up to the stage and yelled at the moderator. The flustered moderator went back to the microphone and said, "The rest of this conference is entirely on the record." The only problem was, the first session had had all the big guns.
I had done the right thing. I did it by the book. Off the record means off the record. I had stood firm in the name of journalist integrity.
Hurray for me.
The fallout of that was that the moderator got into hot water with the association, and the foundation stopped being friends with the magazine. I tried to salvage the situation by writing my editor's page for the next issue on the magazine on the conference--not quoting anyone but giving my general impressions of the conference. However, no one thought that was even half way enough. The association staff and officers believed that I had caused major problems as a result of my misguided journalistic integrity. A year later, the association sold the publication to an independent publisher, and I and most of my staff were out of work. My behavior at that conference was not the only reason for the sale, but I am sure it contributed some.
Now that I am older and wiser, I have a good idea what I should have done. You see, I had special knowledge that the "off the record" announcement was due to the wishes of one panelist and one only--the RAH. The other five panelist evidently had no part in it. What I should done was not take notes on the RAH's remarks--who I absolutely knew wanted to be off the record--but to take notes on the presentations by the other five panelists. I should then have gone to the association officials and told them my problem due to the "off the record" announcement. I would tell them that I really shouldn't have made a record of the comments of the other five panelists except for my knowledge that the announcement was due to the wishes of just the RAH. I would propose that I contact the other five panelists and ask them if it was all right if I wrote a story on the session quoting their comments. In other words, we would ask them to put their comments back on the record. If they said yes, we were in business. If not, I would destroy my notes.
That probably would have worked, and the situation would have been better for it.
It's important to follow the rules, but if you do so inflexibly, well, you see what can happen.
Copyright 2012 by John T. Aquino
Question and Answer #4: When Is a Work a Work for Hire?
by John Aquino on 09/21/12
Question: You’ve mentioned “work for hire” in passing. Can you elaborate? When I write something for someone, is that automatically a work for hire?
Answer: Section 101 of Copyright Act defines a "work made for hire" as:Section 101 of Copyright Act defines a "work made for hire" as:
(1) “a work prepared by an employee within the scope of his or her employment; or
(2) “a work specially ordered or commissioned for use as a contribution to a collective work; a part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; a sound recording.”
A work, then, that is made as part of an individual’s employment or that is one for which the rights are contractually assigned to the commissioner of the work is a “work made for hire.” The “author” of a “work made for hire” for the purposes of the copyright law is the employer or the one who contracts for creation of the work.
Just as Congress did not define “fair use” when it published the Copyright Act of 1976, it did not define “employee,” and the result is that the situation concerning the copyright of works for freelancers is often left unclear. So you have to look to case law for guidance.
In the 1989 U.S. Supreme Court case Community for Creative Non-Violence v. Reid, 109 S.Ct. 2166 (1989), Reid created a sculpture for the CCNV in accordance with CCNV’s concept and general design ideas, but the parties did not discuss copyright ownership in advance. Reid and CCNV both registered the copyright, with CCNV claiming that the sculpture was a “work made for hire.” The Supreme Court affirmed the decision of the Court of Appeals for the District of Columbia, which had reversed the trial court, noting that the CCNV did not claim that the sculpture was a specially commissioned work under subsection (2) and there was no written agreement about who owned the copyright. The CCNV argued that Reid should be considered an “employee” because it had retained the right to control the product. But the Court held that Reid was not an employee—he had worked in his own studio, used his own tools, had control of his own working hours, and was not treated as an employee for the purposes of benefits, social security, and other employee benefits.
But, in cases where the author is clearly an employee or where the publisher or contractor specifies that the work is a work for hire, the creator of the work does not hold the copyright. This can be especially vexing for those working in a collaborative medium when an individual makes a pivotal contribution. In motion pictures, for example, unless it is otherwise provided for contractually, the studio or production company owns the copyright.
This issue came up in the 1980’s when the technology was developed to colorize black-and-white films. John Huston, a noted director, found that the Turner Communications, which had purchased the M-G-M film library, which included his 1950 film The Asphalt Jungle, intended to colorize Jungle on the assumption that this would make it more accessible to new generations of movie goers. Huston responded that, while it was true that the majority of movies produced in the 1940’s and 1950’s had been made in black-and-white, he had deliberately chosen to make the film in black-and-white, thinking that the lack of color enhanced the gritty subject matter of his crime film. Huston, however, had been an employee on the film. The work was a work-for-hire, and he had absolutely no say in the matter of colorization because he did not own the copyright.
But Huston found salvation in Europe where many countries recognize the personal right of each creator of a work, and call this right droit moral or moral right. The right includes the right to be known as the author, the right to keep others from making changes that distort the author’s work, and the right not to be listed as the author if the work has been distorted. In the Asphalt Jungle case, the Huston Estate—Houston died in 1986--sued in France in 1988 and the court decided, on the basis of Houston’s droit moral, that Turner could not broadcast the colorized version. The French Court of Appeals affirmed the decision in 1994 and fined Turner for broadcasting its version. What worked in France would work in other European countries, and so Turner gave up his plan to colorize Jungle and after a while appeared to have lost interest in the colorization process all together.
There have been attempts to establish a droit moral in the some U.S. cases—see Gilliam v. American Broadcasting Co., 538 F.2d 14 (2d Cir. 1976), which concerned ABC Television severely editing episodes of the British Broadcasting Corporation series Monty Python’s Flying Circus to add commercials. Terry Gilliam, who went on to direct such films as Time Bandits and The Fisher King, along with the other Monty Python creators, sued, and the U.S. Court of Appeals for the Second Circuit allowed that copyright implied a right of the author not to have the author’s work mutilated. But as of this writing the effect of these cases is uncertain at best.
In addition to the issue of “work for hire,” situations where it is uncertain whether or not the author is an employee or where the issue of copyright for a contracted work was left unclear can raise issues joint authorship—if the employer or others contributed to the work and there was the requisite intent to establish a joint authorship, or collective work in which the author at least contributed a portion.
If the question is whether or not the work was a work-made-for-hire, there is an initial assumption that the creator of the work is the author and the burden is on the employer or contractor to prove that there was an agreement concerning copyright or that the author was an “employee.” If, however, the employer/contractor or others contributed to the work, then the author is not the sole author and is, at best, a joint author and must establish the intent to create a joint authorship specifically for the work in question. In joint authorship issues, the burden shifts to the author and the advantage, usually, to the employer or contractor.
The best way for an author to avoid these issues is to retain sole copyright or, if that is not possible, establish contractually that it is a joint authorship situation or that, while the work in question is a work-for-hire that any changes, except minor editorial ones, must be approved by the author.
Copyright 2012 by John T. Aquino. This article is intended for eduicational purposes only and does not constitute a legal opinion.v
On the Loss of Amicable Political Discourse
by John Aquino on 09/11/12
As we edge toward the climax of this political season in 2012, it makes me realize how much I miss having animated, civil, amicable, and reasonable political discussions with friends and family.
I used to have them, and it wasn't so long ago.
As a lawyer, I was trained to be able to argue the other side's case in order to know where they were coming from, to find their weaknesses, and anticipate their strategy. As a journalist/interviewer, I have learned to put myself in the position of the person I am interviewing in order to frame a question and to know them better. In both cases, I hope I can do it with understanding, even when, or shall we shall especially when, I disagree with the person, because contempt is highly visible, is never attractive, and can never be productive.
I was brought up as a (John) Kennedy Democrat, but as I grew older found myself confronted with a string of Democrats that I could never vote for as president--McGovern, Carter, Mondale, Dukakis. I adopted the philosophy that I would vote for the person and not the party. But, as I grew older, I admittedly became a little more conservative.
Still, up until the end of the 1980s, I loved talking politics with people and doing so in a friendly manner. I was reading Carol Blue's forward to her late husband Christopher Hitchens' posthumous book Mortality in which she remembered eight-hour dinner parties that usually ended with his toast "How good it is to be us!" To me, that smacks a bit of elitism. But then I used to have friendly political discussions with strangers in bars and at bus stops. So I recognize the feeling, "How good it is to be us, in this country, where we can discuss things and disagree--reasonably."
That all seemed to change in the late 1980s. I remember seeing the late Senator Ted Kennedy (D-Mass.) on a political talk show shortly before he was diagnosed with brain cancer and so a year before he died in 2009. The interviewer quoted him as saying during the Supreme Court justice confirmation hearings of Thurgood Marshall in 1962 that a nominee's personal ideology was irrelevant--in contrast with the present approach. "It changed with Bork," Kennedy said simply, referring to the 1987 Supreme Court justice confirmation hearings of Judge Robert Bork, whom Kennedy had attacked for his ideology, which coined the term "borking" meaning "to criticize a person's reputation in an extreme way."
Of course, you can argue that it didn't start with Bork, it started with President Nixon and Watergate in the early 1970s when Americans became less trustful of government. And there's a book titled, "It Didn't Start with Watergate."
During the Clinton impeachment period, family discussions got so heated at a Christmas Eve dinner that my wife, mother-in-law and I had spent weeks preparing, that several guest left early--really early. I attended luncheons with attorneys and was surprised to hear them airily dismiss the significance of civil perjury regarding Clinton. "But as lawyers don't we have to insist that the oath to tell the whole truth be honored?" I would ask. "Isn't that important to us?" But it turns out it wasn't, and they usually changed tables.
Before Bork, I used to have delightful political conversations with a good friend of mine. But then it seemed to gradually change as we entered the 21st century. We were having lunch, and she started to gleefully discuss the prospect of Rep. Tom Delay (R-Texas) going to prison for money laundering. I have no sympathy for what he is accused of having done, and he was later convicted in 2011. But she started to go off on how happy she would be when he was behind bars.
"I can't wait for him to go to the slammer and become the boy toy of a six-foot convict named Maurice."
I looked at her with my mouth open. "You realize that what you are wishing on him is homosexual rape. I wouldn't wish that on my worst enemy."
She paused for just a second, just a second as her eyes flickered and she considered what I had said. But then she went on, "That would make sense after the way he raped the rights of his constituents in Texas." There was no shaking her.
Of course, we have seen that not just liberals can be extreme in their political views, as was demonstrated by the conservative "Tea Party."
Perhaps our views have become extreme in reaction to the extreme behavior of some of our politcians--Nixon, Clinton.
Not to dwell on Clinton, but during the impeachment trial, I was having dinner with a very sweet and wonderful older lady. She had been brought up in the early days of the previous century, was a widow, had been married to one man, and had an extremely inquisitive mind.
All of a sudden she asked me, "Can you explain oral sex to me?"
"What!" I said, having done a vaudeville spit-take with my water glass.
"I was watching the tape of Clinton's [civil trial] testimony, and I just don't know what it is." She moved to her chair back to show her legs. "Now, how does it work? If he was sitting down behind his desk at the White House, where would Monica Lewinsky be?"
After dinner, having avoided demonstrating oral sex to this wonderful lady, I walked outside and thought for just a second of stepping in front of a bus, lamenting the loss of reasonable political discourse and the loss of innocence.
I didn't, of course, and here we are.
Copyright 2012 by John T. Aquino
