Movies: Major Art or Minor art?

…but what about movies? Sooner or later, any copyright discussion seems to gravitate towards that question. That’s not strange, as there are several good reasons to regard the future of movies as much more uncertain than the probably quite bright future of music.

Before proceeding to the usual evaluation of business models, however, we should halt for a while and re-think what we mean by “movies.” The comparison I just made between music and movies is highly problematic, in particular because music seems to be something of a generic human faculty, while moving pictures as an art form are not much older than a century.

Everyday use of the word “movies” tends not to include all artistic uses of moving pictures. It usually refers specifically to the standardized format of the feature film. Neither the art videos exhibited in galleries, nor the home videos of funny cats available on YouTube are included. More importantly, the artistic use of moving pictures within computer games grows more and more refined. At the same time many people — especially file-sharers — tend to prefer watching episodic narratives produced for television.

Accordingly, any intelligent discussion about copyright and movies must carefully define what it is that the law should safeguard. Is it the artistic use of moving pictures in general, or is it the format of big-budget feature films under conditions established in the last century?

In the early 1950s, Paul Oskar Kristeller published an extremely influential article in the Journal of the History of Ideas. One passage is worth quoting at length for the purpose of this discussion:

There were important periods in cultural history when the novel, instrumental music, or canvas painting did not exist or have any importance. On the other hand, the sonnet and the epic poem, stained glass and mosaic, fresco painting and book illumination, vase painting and tapestry, bas relief and pottery have all been “major” arts at various times and in a way they no longer are now. Gardening has lost its standing as a fine art since the eighteenth century. On the other hand, the moving picture is a good example of how new techniques may lead to modes of artistic expression for which the aestheticians of the eighteenth and nineteenth century had no place in their systems. The branches of the arts all have their rise and decline, and even their birth and death.

In other words: “Movies,” in the narrow sense of the word commonly used today, will not remain a “major” art form forever. It is fully possible that history books will write about them as a phenomenon whose golden age occurred roughly between years 1900 and 2000. That does not mean that no more feature films will be produced, or that movie theaters will cease to exist. Compare them with opera, an art form which has obviously seen its best days, but nevertheless lives on, in its pure form largely tax-financed, but also as a living influence within popular culture as well as in experimental avant-garde arts.

Relegating “movies” from the status of a “major art form” to just a subdivision of a broader field of moving images does not necessarily mean discarding a whole century’s artistic advances. These creative developments can be carried further in music videos, in computer games, in ad-supported episodic video, and in other formats.

My friend Oscar Swartz, an economist and prominent Swedish blogger on information technologies, wrote earlier this year (my translation):

Distribution of income might be very different compared to today. Enormous production costs might not be possible to recover. The movie industry might need to stop paying 20 million dollars to a Hollywood actor for one film. Movie actors might be paid like theater actors are today. Digital effects might be added to movies at a hangar in Inner Mongolia where low-paid Chinese are working day and night — just like in the textile industry — while some of the development of new technologies will stay in California.

The really big-budget blockbuster was perhaps a cultural form of expression which had its golden age in the 20th century, when monster-large film cameras cost a fortune to buy, when film was chemically processed, and when a few big stars could dominate a few media channels.

Of course, such a development will be resisted by Hollywood executives, some of whom might even call for a police state to protect what their worldview holds as an eternal art form. It is however important to remember that illegal copying is not the only potential threat which new media brings to the elevated status of movies. Another one is that people simply choose to spend their time on interactive games rather than on passive watching.

There is no need to try to predict the future of moving images in detail. Looking at the numbers, Americans’ spending at the box office keeps breaking records, as Tim Lee points out. On the other hand, the blockbuster business industry has been centralizing in a very risky way, becoming extremely dependent on grabbing public attention during just one release week. “These days blockbusters form an orderly queue, rarely competing on the same weekend,” The Economist wrote last year in an article pointing to a problem which should perhaps be as worrying as piracy for Hollywood executives: “the rapid spread of opinion on the Internet […] can quickly inform cinema-goers around the world if a film is a turkey.”

Should copyright be designed as a support for creative endeavors in general (whatever that means), or with respect to a defined list of broad art forms (music, moving pictures, visual arts, etc) — or should it take into consideration historically specific cultural forms (jazz music, pantomime theater, music videos, etc)? I don’t have an answer, but more clarification on that point could reduce the confusion in many copyright discussions. According to Kristeller, “there is hardly any ground but critical tradition or philosophical preference” for deciding whether an artistic practice is to be regarded as a separate art, or as a subdivision of a broader art form.

With that in mind, I would like to ask Tim Lee to define the extent to which it should be the task of copyright to solve the problems of “underproduction of certain kinds of creative works.” Looking outside the field of moving pictures, which kinds of creative works are underproduced today? The Romans arranged re-enactments of famous sea battles at the Colosseum — a popular form of art, and a very costly one, which is hardly produced anymore. But is this a problem of underproduction?

An extreme example, of course. But let’s take the more recent example of live performing arts, which many — most notably economist William J. Baumol — thought were threatened with underproduction as a result of rationalization in general and reproduction technologies in particular. What if, in the very long run, digital technologies are rather correcting that case of underproduction? Not a bright future for Hollywood, maybe. But it could represent an artistic opportunity to diversify the uses of the moving image, and re-connect it to a sense of community, one which the movie theaters, after all, were rather poor at creating.

Also from This Issue

Lead Essay

  • The Future of Copyright by Rasmus Fleischer

    “How relevant is it to declare oneself to be ‘for’ or ‘against’ copyright? Neither the stabilization nor the abolition of the copyright system seems within reach. All we see is a seemingly endless assembly line of new extensions to the law being proposed and enacted,” writes Rasmus Fleischer in this month’s Cato Unbound lead essay. Meanwhile, digital copying technologies continue to grow exponentially in storage capacity, to the point where a handheld device may soon be able to carry all music ever recorded and released. This threatens to make a mockery of copyright law, and those who support the extensions of current regime are fighting back. “Every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last. Copyright law in the 21st century tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses,” writes Fleischer, who predicts “seriously chilling effects on innovation, as the legal status of new technologies will always be uncertain under ever more invasive rules.”

Response Essays

  • Two Paths for Copyright Law by Timothy B. Lee

    It is often supposed that giving individuals more freedom to share copyrighted materials with one another will amount to the abolition of copyright. But this is far from true… The copyright policies of the last decade have been based on the idea that copyright is about controlling unauthorized copying. An alternative is to treat copyright as a limitation on commercial exploitation of creative works. Under this option, individuals could make any non-commercial use they liked of copyrighted works, including sharing them with strangers on the Internet, without fear of legal consequences. Copyright law would focus on commercial entities, who are both easier to regulate and better equipped to deal with copyright law’s complexities.

  • Nobody Puts Copyright in the Corner by Doug Lichtman

    Copyright law and copyright policy are both in the midst of enormous change. That doesn’t mean copyright is dying. The technologies available to facilitate the creation and distribution of creative work have themselves undergone enormous change. Copyright law is of course following suit, but as it does, we must make certain that those in the creative professions can still survive.

  • Towards a Copyriot Act — and Away from It, Again by Tom W. Bell

    Tom W. Bell raises a question: Copyright enforcement always has costs. How high are we willing to allow those costs to rise? How harsh, in other words, will we allow copyright law to become, as a counterweight to the ease with which people now can copy digital media? It is conceivable, he argues, that these costs might become too great, and that we will be forced to allow copyright to end, rather than bearing them.

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