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Stealing Thunder: How to Fight Piracy While Remaining Cool

Tim Heidecker in The Comedy (Photo courtesy of Tribeca Film)

If you’re like most young-ish filmmakers, you grew up and matured in an open source world of Napster, YouTube and BitTorrent. Whether it was making mixtapes for your college girlfriend, or ripping CDs and DVDs with your film school pals, “appropriating media” might have been a way of life for you to consume and share your favorite songs, films and TV. You scoffed at FBI warnings on VHS tapes and mocked MPAA PSAs. You’ve mashed up, mixed up and just plain stolen your way through the early 21st century with nary a tinge of regret. Hell, we’re living in an open source world, man, and this is just one way to stick it to The Man!

Until you started making movies yourself. And tried to sell them. Guess what, mister and miss? You are The Man now!

For indie filmmakers, dealing with the world of piracy is a bit more complicated than it is for the big corporate studios. For a studio dealing with a torrented blockbuster on opening weekend, they know piracy is bad, and they have the tools and spreadsheets to quantify just how bad it is. And, they can afford a room full of lawyers to do something about it.

As independent filmmakers, however, we have a more nuanced relationship with the pirates. As “gifted and misunderstood artists,” we want to share our art with the world. So, the more people who see it, the merrier! And, as “content creators,” we want to expand our personal branding and rack up our hits, clicks, tweets and swipes. However, as “entrepreneurial producers” building sustainable careers, we want to make money from our films. Furthermore, we have a fiduciary responsibility to our investors to make sure we get paid every time someone watches them.

The first step to dealing with piracy is to figure out if and where your film is being pirated. Try searching Google for your film, and be sure to use search tools to narrow down the search to the last week or month. Depending on how common your film title is, you may also need to search by your own name and/or your actors’ names. Also, get to know how your film title translates into other languages and search those, too.

In general, there are a few ways your film is going to show up pirated: either streaming directly on a site, as a downloadable file or as a shared file through BitTorrent. (And, if you’re really lucky, your film will show up on the streets of New York or Shanghai as an actual DVD!)

Here are a few different strategies that indie filmmakers have used to various effect:

1
The Whack-a-Mole Takedowns!

The most obvious and blunt approach to dealing with piracy is to send takedown notices. Known formally as DMCA Letters (named after the Digital Millennium Copyright Act, which loosely governs media piracy), it’s a fairly standard and simple three-paragraph letter in which you state clearly that you own the copyright, that some bastard is pirating you, the URL where you found your film and your demand that they take down the file or face your wrath, indignation and fury. There are a number of sample DMCA takedown templates online, so it’s easy to write. Then, just keep a copy on your desktop and get ready to use it. Often.

The hard part is figuring out where to send the takedown letter. If the film is streaming on even a pseudo-legit site, just find the contact info and send it directly there. You never know — maybe your distributor put it up there and just never told you. Or maybe your distributor sent it to an aggregator who sent it to a sub-distributor who got it on a site that’s actually legit. Believe me, if it is actually there legally, they’ll let you know. But usually, if it’s there illegally, they’ll just quietly take it down within a matter of days.

Harder to deal with are the shadowy class of dubious streaming sites who don’t exactly broadcast their contact info (or if they do, they’re in Cyrillic or Mandarin). For these, and for the torrent sites, the best you can do is send the DMCA takedown to Google and other search engines so at least the pirated version isn’t easily searchable. Google doesn’t make it that easy, either. You have to go through a gauntlet of questions first, and then get intimidated by a paragraph warning you about “chilling effects.” That sounds creepy, and the website it’s on, listing DMCA takedown notices, is, kind of. But as long as you really are the copyright holder, don’t worry about it. Then you have to have a Google account, sign in and finally send them your takedown notice with the appropriate URL.

At this point you can list multiple URLs (up to a thousand) and send them all at the same time. You do also have to list one legitimate site where your film appears, assuming you have one. Google will usually take the sites down from their searches within a couple of days.

Unless you have the time to spend an hour a day at least once a week, this will ultimately prove to be an elaborate game of whack-a-mole. Torrents will crop back up, Russian sites will respect your DMCA notices with all the integrity of a porous Ukrainian border, and Google will continue to intimidate you with “chilling effects” warnings.

Oh, wait, won’t your small distributor handle all this? Not likely. Small distributors don’t have the time or personnel to deal with this, and besides, according to the DMCA, they’re not the legal copyright holders — they’re only a licensee. Your foreign sales agent has even less time or legal standing to deal with it. If you need more help, groups like Copyright Alliance and Creative Future are good resources and advocates.

2

Make Money From the Pirates.

When you’re sending DMCA takedowns to Google, the one site that they won’t handle is YouTube — which seems ironically frustrating because Google owns YouTube! But it turns out the reason is that they want you to go directly to YouTube, which is trying to get copyright holders like you to sign up for a program called Content ID. If you sign up for the program, you upload a reference version of your film, and then YouTube will automatically find pirates and give you the option to take down the video, monetize it (with you taking a percentage of their ad revenue), or do nothing. The system gives you the flexibility to keep up with and engage with fan mashups and tributes, while still monetizing or blocking major offenders.

As filmmaker Ellen Seidler wrote in an extensive analysis of Content ID at the website Copyright Alliance, “Sounds too good to be true right? Well, kinda … but, despite overblown claims and systemic weaknesses, it’s better than the alternative (rampant piracy).”

Rich Raddon is a former indie film producer and director of the Los Angeles Film Festival, and he now runs a Venice-based company called Zefr. The company’s sole job is to have hundreds of employees scour YouTube sites for clips of mainly studio films and grab a piece of the ad revenue for their studio clients. Tubers keep their fun mashups, the studios and YouTube make money, and it took an old indie filmmaker to put it all together and hire a couple hundred other indie filmmakers to make it happen. Zefr even has lunch-time filmmaking seminars for its employees and actively encourages them to keep making movies themselves.

3

The Fakeout!

So, if you don’t have endless time and patience to keep sending takedown notices, what else can an enterprising filmmaker do? The filmmakers behind Rick Alverson’s Sundance film The Comedy had a brilliant idea. They simply uploaded their own version of the film with the appropriate title, keywords and tags. The first 10 minutes of the film were exactly the same as the movie itself, but then all of a sudden the file cuts to a 90-minute shot of star Tim Heidecker standing on a boat flipping off the camera — thereby crowding and confusing the digital marketplace. Anyone who spent the time to download the boat version wasn’t likely to risk that time to download a second version that may or may not have been the real one.

4

Using the Pirates to Screw Your Distributor!

Ever find yourself in a position where you have your three-hour director’s cut of the film and it’s awesome? And then your producer or distributor comes along and Harvey-Scissorhands a new 85-minute version to shoehorn into a few theaters before going full-on VOD to cut their losses? Sure, you could plead your case in the court of public opinion, get lots of press and maybe, just maybe, your original version gets seen at a festival in 20 years during a posthumous retrospective. But that doesn’t do you much good, does it? So don’t get mad, get even!

Create an airtight alias, upload your director’s cut version onto a torrent site, and let the pirates champion your cause by watching your version of your movie! On the one hand, your distributor or producer will go ballistic, as should you (“I’m shocked, shocked that there is a pirated version of my film — I can only imagine some intern at the distributor’s office posted it. I’ll sue!”). But if it goes well, you’ll generate even more publicity for the film, more people will see both versions of the film, and it’ll cement your legendary outlaw status. Your distributor will make more money, and you become a hero. It’s a win-win. So much so that even if you completely get along with your distributor, you might want to collude with them in creating two different versions of the film and orchestrating this exact scenario.

5

Embracing the Pirates!

If you can’t beat ’em, join ’em. My pal Richard Schenkman made a terrific film a few years ago called The Man from Earth that succeeded in getting a U.S. distribution deal from Starz/Anchor Bay. But a DVD screener got ripped and posted on torrent sites a couple weeks before the official release date. From out of nowhere, the film jumped over 7,000 percent on IMDb’s MOVIEMeter, garnered an 8.8 rating and became a bona fide viral hit. While all the piracy made it impossible for him to sell foreign rights to the film (definitely a downside), Richard did figure out a way to get PayPal contributions from many of those pirates and fans who loved his film. Not a fortune, but “enough to equal what should have been the license fee from a small- to mid-sized European country.” As Schenkman wrote in Indiewire, “If that’s not crowdfunding, what is? Sure, it’s after-the-fact, but it’s not sales. It’s donations. It’s love.” Eventually, his film broke even financially, and he used its widespread fan base to finance a Kickstarter campaign for a TV series pilot.

6

Slut-Shaming the Advertisers.

How do all these piracy sites survive? Largely through ad revenue, and many of those ads are from mainstream blue chip companies like insurance agencies and big name consumer brands. The brands’ ads get placed through online placement companies, ranging from Google and Yahoo! to other smaller agencies. The big brands get plausible deniability and the money keeps flowing — approximately $227 million, according to Adweek. But increasingly there is pressure for this common practice to end. As the The New York Times has noted, there has been a steady drumbeat to blacklist piracy sites much the same way online advertisers successfully steer clear of porn and hate sites.

As a lowly filmmaker, what can you do to help slut-shame these advertisers? Make notes, take screen-grabs and start entering the conversation directly. Send invoices to the big name companies for your cut of their revenue. Compile YouTube videos of mainstream ads on piracy sites. Put out press releases and write your own op eds in The New York Times. All publicity is good publicity, and if you’re part of the conversation, your film will be, too.

7

Make Piracy an Essential Element of your Release Strategy.

I’ve argued before that the era of expecting to make money off your films is largely over. “Investing” has been replaced by “backing” a film. Instead of finding rich dentists to fund your film and promising to make them money, and then failing miserably at it, filmmakers now are relying on crowdfunding campaigns to finance part, or in some cases, the entirety of their budgets. And with “backers” rather than “investors,” you have neither the obligation nor the capability to actually pay them back.

So, really, does your film have to make any money at all? If the answer is no, then that frees you up considerably to just get the film out there to audiences by whatever means you can. After all, most festivals pay no screening fees, and we all happily clamor to get our films screened in as many festivals as we can. Is that really so different from piracy?

Especially for shorts, but also for some features, it might make more sense as an artist or content creator to just get your film out there for audiences to enjoy. Isn’t that why you got into filmmaking to begin with? Well, maybe.

When I made my short Marine recruiting satire The Few and the Proud, I played a couple of film fests and turned down a $500 offer from Atom Films, which wanted all rights in perpetuity. Instead, I put the film on YouTube, eschewed any ad revenue and tagged it such that to this day it is the No. 1 video that shows up when you Google “Marine recruiting.” Four years after posting it, it consistently gets 400 views a week and has been seen by 430,000 people — far more than have ever seen all my features put together. The comments reflect that the film is being watched and enjoyed by active duty Marines and Army personnel all over the world — hardly the audience that would have seen the film in Park City. For me, this was the right medium getting to the right audience at the right time. As an artist, what more could I want?

On the feature side, Greek filmmaker Stathis Athanasiou is releasing his film Alpha under a Creative Commons license, which essentially means it’s free. The film, which played at Thessaloniki and Slamdance to critical acclaim, was largely crowdfunded, and to the extent that it’s ever going to make Athanasiou any money, it’ll be through transmedia performances of the film along with musicians and live actors. So, if you want to see a pirated version of the movie, you can, but you’ll miss out on the full performance experience.

8

Use the Pirates to Pimp Your Merch.

Use the model that musicians have had to deal with since the age of Napster: If you can’t make money selling your music, then commodify your performances and pimp your merch.

Filmmakers need to adapt to this model, too. If festivals are screening your film for free, then go to a local college and get paid for a guest lecture and sell DVDs after each of your screenings. Or go the Kevin Smith route, create a massive fan base, and just go on the full-on lecture touring circuit. And if the pirates are showing your movie, then place your own ads for film-related T-shirts, DVDs and other fun extras. You can use Google ads as easily as Procter & Gamble, so keyword and tag your ads so they’ll show up on piracy sites, and start pimpin’ your own merch. Ahoy, mateys, it’s the wave of the future!

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