Harry Potter et al v. The Ministry of Magic a.k.a. Why Are There No Safety Regulations In The Harry Potter Universe?

Has anyone other than me noticed the stunning lack of safety regulations present in the Harry Potter universe? I'm a big fan of the films (to my wife's never-ending chagrin, I refuse to read the books for the sole reason that they are not movies), but ever since law school, I have not been able to get over the fact that Potter lives in a world where children are placed in a constant stream of danger. Thanks to the fine programmers at ABC Family, I've had a chance to revisit each Harry Potter film in greater detail and here are just a few samples of the myriad dangers to befall the students at Hogwarts:

1. A system of staircases that move suddenly and without warning (how many students have fallen to their peril because of bad timing?);
2. A giant three-headed dog kept in the castle behind a flimsy wooden door;
3. A competitive game (Quidditch) where children ride on brooms hundreds of feet in the air chasing after balls powerful enough to behead a person;
4. A nearby forest full of beasts such as murderous centaurs, murderous giants, and murderous GIGANTIC SPIDERS;
5. A contest (The Tri-Wizard Tournament) where teenagers are chased by fire-breathing dragons and attacked by violent mer-people in order to win the ugliest trophy I've ever seen;
6. A hateful witch (literally) who comes to school and tortures students by carving words into their skin;

Hell, in Chamber of Secrets, students are actually encouraged to square off against one another in their Defense Against the Dark Arts class. Now you can argue that the professor, Gilderoy Lockehart, was something of a doofus and quite possibly didn't realize that having children try to kill each other with wands wasn't a good idea, but remember that Severus Snape was also present and by his failure to object, ratified Lockehart's idiocy.

Also, at some point, the school hired a f**king werewolf as a teacher. And this kind of recklessness doesn't stop at Hogwarts... it's all over the magic world. Take the unfortunate case of Seamus Finnigan. He's a peer of Harry who's wand kept malfunctioning and blowing sh*t up in his face. Now maybe we can chalk this up to Seamus' incompetence as a wizard, but I think the blame more appropriately rests at the foot of Garrick Olivander, the man who sells each 1st year his or her wand. As an aged wizard, he should know better, yet he sold a clearly defective wand to this student. Had there been some safety regulations (perhaps a policy about practice wands for students not yet learned in magic), then Seamus might have avoided years of charred skin. If I were a wizard lawyer, I would take Finnigan's case and sue Olivander into an early grave. His actions are at best negligent and at worst criminally reckless.

When you think about it, this seeming lack of regulation really makes no sense. After all, the movies take great pains to show that the magical world has a government with a functioning court/ tribunal system. And throughout the films, characters pay lip service to wizarding law (such as the "no magic under 17" rule for which Harry was unreasonably prosecuted in Order of the Phoenix). So why does there appear to be no measurable safety regulation for children?

So let's do something here. Let's come up with some sample legislation. I'll get the ball rolling:

1. Minors under the age of 13 may only purchase wands with limited magical capabilities.
2. Minors under the age of 17 may not work with dangerous creatures without a consenting adult present.
3. Minors under the age of 15 may not ride a broom.

I'm open to your suggestions to make the Harry Potter universe a safe place for students to learn magic without fearing for their own death.

For Best Karma, Don't Torrent Copyrighted Works

When I was 20 years old, I became a thief of movies and music and I never even had to leave my house.  1999 to 20003 were boon years to what I call "stay at home theft" because you could download just about any song, TV show, movie, or computer program by means of peer-to-peer networks like Napster, Imesh, Aimster, and Kazaa. Any piece of copyrighted work was at your fingertips, and it was all free and for the taking.  From a copyright enforcement standpoint, those peer-to-peer networks were insidious: every time one of them died in a lawsuit, another took its place.  And when Limewire, the last of the peer-to-peer networks, finally went down in a hail of fire in 2010, it didn't matter.  It was replaced by a system of online file sharing known as "torrenting."

For the record, I have long since abandoned the practice of file sharing (and I do mean long since.  I haven't downloaded a file without paying for it since 2004).  I do not own a single pirated piece of software, MP3, or movie.  Every single song I had downloaded illegally, I have long since deleted and replaced with legal versions through iTunes.  I stopped it because, as I found work in the entertainment industry, I began to realize that people were putting long dedicated hours into creating something special; they shouldn't be rewarded by having that work stolen.  The file-sharing issue finally hit home when I visited my wife (then my girlfriend) at college and spoke to a friend of hers.  Upon hearing that I worked in the television industry, he proudly announced that he had illegally downloaded entire seasons of One Tree Hill.  My first thought was, "Really?  That's what you spent your time downloading?"  But my second thought was, "If you like it enough to download entire seasons of it (which were readily available on DVD at Best Buy), why don't you support the creators by paying for it?"

I used to think of torrenting as a harmless vice, but it really isn't.  Here are three reasons why:

1. Torrenting is illegal!  That's right, it's not just immoral, it's not just frowned upon, it is against the law to download a file that you didn't pay for through the regular channels of commerce. Torrenting without pay is stealing and is no different from walking into a Best Buy, sticking a DVD under your shirt and then walking out the front door. Even worse, if you're caught you could be liable for fines up to $150,000 for each willfully torrented work, or you could even face jail time.  So ask yourself: is that episode of Gossip Girl really worth it?
2. Torrenting results in the little guy getting ground into dust!  From a policy standpoint, torrenting files without paying for them results in the copyright holders - often large corporations - mercilessly suing file-sharers into oblivion.  Have you heard of Joel Tenenbaum?  He downloaded 31 songs from Kazaa and now owes various record labels $675,000.  I already wrote about how the large copyright holders have so much power that they end up going after people who have a legal right to use their copyright, but when people use copyrights for which they DON'T have legal permission, situations like this happen [short version: thirteen record companies sued Limewire for $75 trillion!! They ultimately settled for $105 million and Limewire went kaput].  Suing a poor kid for $700K is bad policy, even if he broke the law maliciously.  But because torrenting is such a huge problem, this kind of policy ends up being encouraged and even embraced by our lawmakers.  Hell, it's gotten so out of hand that record companies have even sued children and dead people for illegally downloading music.
3. Torrenting is bad for innovation!  When people download copyrighted files without paying, that results in studios and networks (who are literally paralyzed with fear over pirating) greenlighting only proven moneymakers. That's why every band sounds like Nickelback and every movie looks like it was directed by Michael Bay.  Those artists still make money despite the rampant pirating.  Think about it: the smaller something is, the harder it is to gain traction and the harder it is to become profitable.  If that work gets pirated from the outset, then the studios will make less money off an already untested product.  It's just easier to greenlight Transformers 9: Optimus Prime's Colonoscopy because no matter how many people pirate it, it will still make a metric sh*t ton of cash at the box office.  Take a look at this chart.  Eight of the top ten films of 2011 were sequels to established franchises and the other two were comic book adaptations. Ever wonder why most movies these days are sequels, prequels, remakes, reboots, and adaptations?  Established brands means that the studio will make some money, regardless of the pirates.

Here's what it boils down to: when you legitimately purchase copies of movies and music, you're telling the artist that you support her. You put her in a place financially where she can continue generating the stuff you love.  When you steal a movie or piece of music, you're telling the artist that you don't care if she can make a living and you're threatening her ability to continue generating that work.  Help me keep artists working and put a stop to the torrenting.

Putting the ART Back in SMART: I Support STEAM And So Should You

From the inception of this blog, I placed one limitation on myself: I will only write about subjects related to the law. Even though I have written (and will continue to write) about a wide variety of entertaining subjects, this blog is first and foremost the cornerstone of my law practice and is designed as a legal resource for artists. But every once in a while a subject comes up that inflames the passion and ignites my hypocritical edge and today such a subject arose.

On Sunday I attended the tri-annual Alumni Council meeting at my alma mater, the Rhode Island School of Design. The major topic we discussed was STEM to STEAM, a movement designed to rebuild our educational curriculums around Science, Technology, Engineering, Art + design, and Math. STEAM is currently a big deal at RISD (the school's president, John Maeda is a huge supporter) and also at some diverse schools nationwide. Evidence suggests that increased focus on these subjects has yielded increased test scores and greater student success. During the Alumni Council meeting, various RISD students gave presentations discussing their studies on the intersection of science and art and I was absolutely blown away by what they were doing. They demonstrated real-world examples of how the process oriented technique used by artists could be combined with the goal oriented technique employed by scientists and engineers (for example, one design student interned at a medical research facility and used their research techniques to develop a beautifully designed app that measures emotional fluctuations for psychotherapeutic uses). And that combination of art and science isn't solely an academic pursuit either. I discovered that Wu-Tang's GZA was so inspired by the rings of Saturn that he is teaming with astrophysicist Neil DeGrasse Tyson to make a space-themed rap album. Pardon my lawyer-speak, but Holy F**kin' A! That's awesome!

Anyway, I won't discuss all the STEAM policy stuff here, you can go to the website and read all about it. What you want to know is why I support STEAM and why you should to. Well if you can't tell, art has always been a huge part of my life. Art class in school was a place where an average student like me could shine. I hated studying and reading. I couldn't split atoms, do fractions, or catch a football; but drawing and painting... I was good at that. And I worked hard at it. Without it, my energy would have been wasted, misused, directionless. Eventually, I was good enough that a teacher suggested I consider going to art school. Art school led to television and television led to law school and law school led me here.  Beyond just giving me something to do, my art background gave me the ability to look at problems with a unique perspective and solve them using creative processes.  This, by the way, came in extremely handy in a legal setting.  I would not be the man I am today if I hadn't gone to art class... and I like the man I am today. All because when I was six years old, I was allowed to sit in a room with paint and markers.

Every artist has a story like this, and you know what? I don't know a single non-artist who doesn't have fond memories of art class. Those classes were free of judgment and allowed you to let your mind wander, ponder, and create. Art class was a place where imagination and inspiration were encouraged and evidence suggests that creativity is not only good for the soul, but also stimulates innovation. That's why I support STEAM. I lived STEAM and so did most of you. All of us know from experience (even those of us without an artistic bone in our body) that art is a fundamental underpinning of our culture. We use it, rely on it, communicate through it. It entertains and educates us. If students don't have a space to let their creative juices flow, they become tamped down, uninspired, drones... and that's not America.

House Resolution 319 is a bill that will put federal funding behind just this type of initiative. I've gone ahead and signed a petition that would get the bill in front of Congress by December and it needs 950 more signatures. I highly suggest you sign it and tell your friends about it too.

Filmmaker-2-Filmmaker: Tip 3 - Sweat The Business Stuff

Have you seen Night of the Living Dead?  Even if you haven't, you are probably aware of its influence.  The 1968 George Romero horror film is the progenitor of every modern zombie trope; the shambling, the flesh-eating, the brain-lust.  Dawn of the Dead, 28 Days Later, Resident Evil, World War Z, the list of imitators and followers extends to infinity.  Everything you know about zombies came from this film.  On top of that, the film is great.  It was terrifying in a way that horror films just weren't until then.  The black and white cinematography is among the most beautiful ever put on film.  And forty-four years later, the film is still teaching us... about copyright?

Before the film was released, it was originally titled Night of the Flesh Eaters, and like all movies of it s day, there was a copyright mark next to the title (that famous little © followed by a date).  But when the title was changed to Night of the Living Dead, the copyright mark was negligently removed.  Based on the copyright law of the time, the absence of the © rendered the film's copyright invalid and the movie immediately entered the public domain.  That meant that anyone could make money off the movie and Romero couldn't do anything about it.  Today, the film is sold on home video by a number of different distributors and is available to view or download free on Hulu and YouTube.

Night isn't the only movie currently in the public domain, but it's rare to see a film on that list that isn't from the 20s, 30s, and 40s.  Thankfully, that law became defunct in 1988 and today artists are no longer required to place the © mark on their work in order to maintain the copyright, although I still recommend doing it (For information on how to protect your copyright, please see my previous post on how and why to register).  Romero has since gone on to make seven million zombie films (only a slight exaggeration), and he owns the copyright to many of them.

So why am I writing about this?  First, because it's an awesome anecdote and an appropriate one for the first day of October.  Second, because it functions as a cautionary tale for every artist out there.  It's tempting to say "I'll take care of the art now and worry about the business stuff later" because as artists, that's where our passion lies.  Our instinct says that if the art is good enough, the business stuff will just fall into place on its own.  Of course, that isn't the reality.  I can attest to that from personal experience...people will try to take advantage of you, either by design or accident.  No one is going to protect your work for you, which is why you need to sweat the business stuff from the moment you begin a project until the moment you deliver it.  It may not be fun to labor over copyright applications or contracts, but that's how you prevent the world from gaining unfettered access to your work (and let's face it, if you're an artist your work isn't just a living, it is an extension of you).  To Romero, the image of zombies in a field was the most terrifying thing he could think of.  To me, it's the idea that because of a little negligence, someone else can make money off your work.

If you're an artist or a filmmaker, you need to condition yourself to take the business side seriously from the beginning.  Don't leave it to the end and certainly don't leave it entirely in the care of another.  Here are some things you should be asking yourself:

1. Is my original work registered with the U.S. Copyright Office?  If not, it should be.
2. Regardless of whether I registered my copyright, did I put ©, the date of publication, and my name on the work?  If not, I should.
3. Do I know what my value is?  If not, I should figure it out and stick by it.
4. Do I have a contract?  If not, I should have one.  It doesn't need to be long or lawyer-y.  It just has to state the terms.  It doesn't even have to be drafted by a lawyer (although it helps).
5. If I'm pitching original ideas, did I have people sign non-disclosure agreements?  I should.
6. Do I own the copyright or does my employer?  This is called work-for-hire and the general rule is that if you are hired to do a creative work for someone, the employer, not you, owns the copyright (this is a bigger issue and I'll tackle it in a future post).
7. Did I double and triple check all my papers (including papers that I had other people sign and papers that other people had me sign)?

Bottom line: pay attention to every little particular because the devil - or in this case, the zombies - are in the details.

Why Movie Theaters Suck and How To Fix Them

Today I'm going to discuss something near and dear to my heart, so I hope you'll treat what I'm about to say with the respect and gravitas it deserves... modern movie theaters suck.  Last week my wife and I went to see The Master and these are some of the myriad distractions that prevented me from engaging with the film:

1. The lady sitting behind me kept kicking my seat and futzing with her cell phone.
2. An old man several seats away kept mumbling to himself throughout the film.
3. A middle-aged lady kept shushing the old man to keep quiet, and when the shushing didn't work, she outright yelled at him.
4. That same middle-aged woman left the film after an hour (along with her two companions) never to return.  They made quite a ruckus when leaving.
5. A woman came in 3/4 of the way through the movie and sat in a seat next to me.  She started munching loudly on some snacks that she had smuggled in from home, and shifted in her seat.  She then left the theater after 10 minutes.
6. Halfway through the film, five ushers came in and stood at the entrance crunching on popcorn and talking loudly to each other.

For a long time, movies were my religion and the cineplex was my temple.  I worshipped frequently: with friends, family, and often by myself.  While I noticed the decline in the viewing experience over the years, I kept going because I wanted to give my business to films that needed and deserved my support.  Nowadays, I've largely become a theater expat.  Why?  I don't remember the last time I went to see a movie and didn't have the entire experience ruined by people talking and texting, children yammering at age-inappropriate films, and the relentless stickiness of every surface.  Movie theaters have become a wholly unpleasant way to spend a few hours.  When I go now, it's only for the films that I've been hotly anticipating or that demand a 50 foot screen.  For the rest, my home theater will do quite nicely.  Like me, many of you have stopped going with regularity.  The figures certainly bear that out... despite this summer seeing two films that annihilated the box office (The Avengers and The Dark Knight Rises), summer movie ticket sales have declined by $100 million since 2002 and movie ticket sales as a whole are at their lowest in decades.

There's a great article over at Fast Company that discusses how design is the key to improving the theater experience and increasing ticket sales.  The crux of their argument is that theater owners are trying to compete with home theaters, Netflix, Hulu, Apple TV, and Blu-ray.  That means buying the latest digital projectors, sound systems, and investing in 3D and Imax technologies.  Except, home movie watching isn't competing with theaters for business.  Rather, movie theaters are really in competition with Friday night social venues - such as clubs, restaurants, bars, bowling alleys, etc. - and Fast Company argues that theater owners should be rebuilding the entire movie-going experience around that social engine.  Some of their suggestions are fascinating and could work really well: liquor bars, private viewing boxes for large groups, intimate lounge areas near the actual theater.  One of their most intriguing ideas is to set up a "trailer lounge" where you can gather with your friends in a comfortable seating area and watch the latest trailers and discuss them without fear of being shushed.  [I personally suggest instituting a tiered pricing system and assigned seating...the Arclight Theater in Hollywood does this.]

I applaud this out-of-the-box approach and I sincerely hope that some intrepid theater owner will be willing to embrace these innovative ideas.  For anyone fed up with the state of the modern movie theater, the article is a must read.  But Fast Company only gets at part of the problem.  You see, while the act of "going" to a movie is generally a social activity, the "watching" of the movie is decidedly solitary; after all, you are compelled to sit in silence for two hours. So while theater owners can gussy up the pre- and post-show experiences, the movie-watching experience remains largely unchanged.  And that's precisely the problem: the movie-watching experience has been substantially compromised by strangers bereft of cinema etiquette.  Personally, I don't care if the lobby is nice or that the film is being projected with the latest digital technology.  All the amenities in the world can't make me enjoy a film that I can't hear or see because of inconsiderate theater-goers.   Tim League, owner of the Austin-based Alamo Drafthouse theater, agrees.

A year ago, League earned some fame by ejecting a customer who texted during a movie despite two warnings to stop (because of theater policy, the customer was not refunded her money).  League blogged about that incident here.  The customer was so incensed that she left a voicemail at the Drafthouse, which League turned into a "Don't Talk or Text PSA."  Here it is in all it's hilarious glory.

[youtube http://www.youtube.com/watch?v=1L3eeC2lJZs&w=560&h=315]

League has hit upon exactly the right strategy for making the movie-watching experience better (and thus more appealing to customers): TOSS THE BUMS OUT!   It is so simple, so affordable, and so effective that I can't believe no one has implemented it in any meaningful way.  In the golden age of cinema, theaters employed uniformed ushers to patrol the theater and remove the riff-raff.  Most theaters don't do that anymore and I can't figure out why.  After all, there's virtually no legal downside.  Businesses can't discriminate on the basis of race, gender, disability, age, etc., but they can generally pick and choose with whom they wish to do business.  Furthermore, businesses are allowed to expel customers from their property for just about any reason.  When you go to a movie, you are being invited onto private property.  Such an invitation is revocable anytime by the business owner because your presence on the property is a privilege, not a right... even if you paid to be there.

Theater chains must know that if they were sued by expelled theater goers they would almost certainly be judgment proof.  So if there's no fear of a lawsuit, why don't they just kick out unruly patrons?  Are they afraid of bad press?  Are they afraid of physical confrontations?  In my opinion, it's most likely inertia combined with a deep-seated apathy; once they have your money, they don't care if you have a pleasant experience.  In fact, some chains, namely Regal and Imax, are doubling down on the bad experience angle by creating "texting friendly theaters"!!  League has spoken out about that here.  He writes that

"By introducing screenings where people are free to text during the movie, you will be creating unhappy customers at every single session.  It really boils down to the undeniable fact that texting in a movie theater is rude, selfish, and adversely affects everyone within view of your glowing device.  The only answer to this debate is taking a hard line.  Texting and talking can not be allowed in movie theaters.  Our spaces are sacred spaces for movie fans... To me, the leniency towards talking and texting is a greater threat to our industry."

I agree with that sentiment and I think most of you agree with it too.  There's a reason why theater ticket sales are down, and I wager it's mostly because going to the movies has become intolerable.  If the theaters don't care about my experience, then why should I pay for that experience?  In response to the rude texter who he ejected, Tim League wrote,  "you may be free to text in all the other theaters... but here at our 'little crappy ass theater,' you are not.  Why you may ask?  Well, we actually do give a f*$k."  I think that more amenities, features, and radical design makeovers will definitely help to increase ticket sales, but undoubtedly the future of the movie theater industry will rest on whether theater owners start giving an old-fashioned f*$k.