The events of the past couple days have compelled me to defend the rights of artists. Before I do that, however, I need to provide some background information on the peculiarities of this particular situation, and explain why an internet critic’s review of a martial arts cult film indicates that the internet community must start really talking about what can be done to protect artists’ rights in the age of SOPA and PIPA.
Everyone has their guilty pleasures. For some, it’s reality television. For others, it’s egregiously violent video games.
For me, it’s bad horror movies … and the cheesier, the better.
During that bygone era before the commercialization of the Internet (better known to you youngsters as pre-1991), horror aficionados like me had a much rougher time. If we wanted to get our fix, we had to rummage through the B-movie aisles at our local Blockbuster Video, wander through the (usually joyless) dreck offered by networks like the Sci-Fi Channel, and anxiously await the weekly airing of that show which gradually emerged as nerd nirvana, Mystery Science Theater 3000.
Then the world of cyberspace began to evolve, and as it did, something genuinely wonderful happened. Not only did the cheesy horror flicks themselves become more readily available to avid fans like me, but the Internet itself begat a new breed of critic.
They were smarter, edgier, and had access to technological resources that allowed them to offer the kinds of deep-dish deconstructions that had been inconceivable back when artistic criticism was limited to print and television. Even better, they were gradually emerging from obscurity and could be featured on websites like That Guy With The Glasses, which exist for the sole purpose of providing an outlet for online critics of everything from movies and television shows to video games, music videos, and comic books.
Now hardly a day passes when I can’t avail myself of the ideas of some of the most well-informed and entertaining horror critics out there.
The best include The Cinema Snob (aka Brad Jones), a cerebral cinephile who analyzes exploitation movies while assuming the persona of an indignant film elitist who wishes he was watching so-called “artsier” fare; Phelous (aka Phelan Porteous), who presents his reviews in a self-referential style that cleverly sends up, while gleefully participating in, the brand of meta-humor that is especially popular online these days; Welshy (aka Mat Williams), who alternates between traditional film reviews and specials that focus on franchise landmarks; and Obscurus Lupa (aka Allison Pregler), whose tongue-in-cheek skewering of the worst Z-grade movies is leavened by her palpable love for them.
All of the aforementioned critics are smart, funny, thought-provoking, and (most of the time) fair in their assessments. While I could go on at length about each of them, however, recent events require me to focus on the last one I mentioned here, Obscurus Lupa.
Back in March, Lupa posted a series of critiques on the Frogtown movies, a trilogy of campy sci-fi/horror/action films released from the late-1980s through the mid-1990s. Her first pair of videos, which discussed the initial two installments in the franchise (Hell Comes To Frogtown and Return to Frogtown) followed a traditional format, were released without controversy, and are well worth checking out.
Before getting to the final Frogtown movie, however, Lupa took the untraditional step of first posting a short documentary on Scott Shaw, a prolific indie filmmaker who frequently collaborated with Donald G. Jackson, the creator of the first two movies. Because Shaw served as an official co-director, co-writer, co-producer, and star of the third film —and because that movie, Max Hell: Frog Warrior, had such certain qualities that made it, shall we say, distinctive — she clearly felt such an in-depth look was warranted.
As it turns out, the man known as “Dr. Shaw” (at least to himself) is quite a colorful character.
He claims to be an accomplished “author, actor, artist, filmmaker, journalist, composer, photographer, painter, certified yoga instructor, and swami,” as well as a black belt in Haikido, Aikijutsu, and Tae Kwon Do.
While I won’t discuss my purely subjective doubts about the veracity of some of those asserted achievements, I can safely say that his films are unmitigated disasters, notorious for their incoherent and incomprehensible plots, stilted dialogue, hammy acting, and incompetent editing.
What’s worse, Shaw’s literary works include attempts to defend his oft-maligned films by insisting that they actually constitute an innovative new approach to cinema, one he characteristically dubbed “Zen filmmaking.” As explained in Lupa’s documentary, the “Zen filmmaking” method involves “shooting a film without a script in order to let the actors and story flow more organically. An outline of the general story is made up and the actors are described a scene which they then act out on their own.”
While this improvisational style has more than purely theoretical merit (in fact, many great movies have contained legendary improvised scenes, from comedies like The Producers and dramas like Taxi Driver to horror films like The Shining), Shaw’s execution is so shoddy that, in his hands, “Zen filmmaking” comes off less like a legitimate artistic approach and more like an excuse for laziness and ineptitude. (For an example, see Lupa’s review of another Jackson-Shaw collaboration, Pocket Ninjas.)
Armed with this information, I had new insight into Max Hell: Frog Warrior as I watched the critique she posted of it a few days later. Of course, I didn’t give the matter much additional thought after that … until a few weeks later, when Lupa’s videos on Zen filmmaking and Max Hell: Frog Warrior mysteriously disappeared.
My first instinct was to assume the worst, and as I discovered this week, I was right. When Lupa finally reposted the reviews after each had spent nearly half a year offline, she included explanatory introductions to account for their removals. From her preface to the Zen filmmaking documentary:
“In March of 2012, in preparation for my upcoming review of Max Hell: Frog Warrior,I posted a documentary covering star and co-director Scott Shaw, and the art of Zen Filmmaking.
In April, Scott Shaw contacted me. With respect to the filmmaker, both videos have been reedited and re-uploaded, sans all clips and music. The following video is the incomplete, mostly audio version.
As of this date, no more Zen films will be reviewed. Thank you, and enjoy.”
Her introduction to the Max Hell: Frog Warrior review tells the same story, before adding that “all of the clips have been replaced with crudely-drawn Photoshop images” for that video.
While I have no firsthand knowledge of the legal maneuvers that took place behind the scenes between Lupa and Shaw, my educated guess is that Shaw threatened litigation on the grounds of copyright infringement, the tack artists tend to use in situations like this (see The Nostalgia Critic’s review of The Room and The Cinema Snob’s review of Grizzly II: The Predator.)
If I’m correct, then the first point which needs to be noted is that the law itself is on Lupa’s side. According to the Fair Use doctrine in American copyright law, use of a copyrighted work “is not an infringement of copyright” if it is done “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Because the transformative nature of a copyrighted work’s utilization is among the most important variables considered when assessing an infringement claim, Lupa’s videos — which obviously intended to transform Shaw’s works into works of artistic criticism — would have fallen squarely under the terms of Fair Use.
Indeed, even if Shaw had tried to contest the applicability of Fair Use on the basis of a technicality (such as by claiming that she used so much footage from the film that the “substantiality of the portion used” compromised its commercial prospects), recent court rulings like Lenz v. Universal have made it clear that the burden still rests predominantly with the plaintiff in these cases.
That said, while the law might have supported Lupa, Shaw still would have had a major practical advantage.
Prolonged legal battles are extremely costly, time-consuming, and stressful, to such a degree that it is rare for anyone to want to go through with them. Even major Hollywood studios, despite being armed with legions of lawyers, generally avoid pursuing online critics precisely because the tenuousness of their legal case makes the aggravation not worth their while, at least not until the laws themselves are changed (more on that later). As such, when someone decides to start such a fight despite these disincentives, their mere willingness to take that initiative usually means they have the persistence (some might call it the lack of a life) to outlast whoever happens to be their hapless target. This is no doubt a major reason why Lupa was ultimately forced to compromise, just as other critics before her have been forced to do in similar situations.
This isn’t to say that Lupa’s re-edits of the Zen Filmmaking and Max Hell: Frog Warrior aren’t also worth seeing. Although they’re weakened by the loss of actual footage from the movie, they still convey the same basic message she wanted to express. Even so, it didn’t have to be this way.
This brings me back to the issue of defending the rights of artists — and by “artist,” I don’t mean Scott Shaw, but Obscurus Lupa.
Although it’s certainly unorthodox to characterize film critics as artists, bear in mind that the review videos created by people at websites like That Guy With The Glasses are more than just sterile dissections. While some dismiss their artistic merit because their main purpose is to critique other artistic works instead of create independent ones of their own, these reviews rely heavily on the performances of their featured critics. They frame their ideas within loose narratives, employ different types of humor, adopt fictionalized personas (be they versions of themselves or entirely new characters), and engage in other creative behavior consistent with what one would expect from performance art.
What’s more, because the reviews present highly personalized deconstructions and reinterpretations of the external objects on which their creators have chosen to focus (in this case, horror movies), they are cohered in a way that requires creative skill as well as argumentative effectiveness. In short, they’re as artistically valid as other works which similarly present, personalize, and transform external realities, from biographies (containing an author’s interpretation of his or her subject’s life) to documentaries (containing the director’s interpretation of a real-life topic or event).
If Merriam-Webster’s Dictionary can include under the term “artist” such definitions as “one who professes and practices an imaginative art” and “a skilled performer,” it seems reasonable to conclude that the term “artist” can also apply to the imaginative performances of people like Obscurus Lupa, The Cinema Snob, Phelous, Welshy, and the other critics at That Guy With The Glasses.
From there, it doesn’t take much to realize that Shaw’s pressuring of Lupa — however he went about doing it — is wrong on a level much deeper than that found in any statute book.
It isn’t easy to create art, and while it’s healthy and necessary for artists to criticize each other, it is also vital that fellow artists defend each other’s right of expression. By forcing Lupa to modify her work, Shaw did the exact opposite of that — and, even worse, set a precedent which others like him may decide to follow.
This is especially important now, because the issue is going to come up again.
Although last year’s effort to strengthen copyright laws failed after the House Judiciary Committee postponed plans to work on drafts for the Stop Online Piracy Act (SOPA), most experts agree that it’s only a matter of time before the studios which helped bankroll the campaign to pass that bill will either revive the old legislation or create a substantially similar one to replace it. If the internet community wants to protects its rights, they need to start by not only being mindful of the ongoing movement to pass bills like SOPA, but also by protecting internet artists from smaller bullies like Scott Shaw.
We must remember how important it is to fight for the great Voltairean maxim on freedom of speech:
“I disapprove of what you say, but I will defend to the death your right to say it.”
That quote, by the way, is especially appropriate. Despite being attributed to Voltaire himself, it was actually written by one of his biographers, Evelyn Beatrice Hall, as she attempted to summarize the basic lesson of the philosopher’s life — or, as some might say, review it.