I’m a fan of both the original King Kong (1933) and the Peter Jackson version (2005). They’re both astonishing, and among the finest American films I’ve ever seen.
(I know Peter Jackson’s from New Zeland, but his film is American in scope, and deep in an understanding of this country. One of the reasons that I think that the 1976 version — a terrible film in many ways — failed was because it lacked the Carl Denham role. The original and the Jackson version both saw presented Denham as an easily identifiable, big-dreaming, ambitious American. The 1976 version didn’t have Denham, and director John Guillermin lacked any understanding of grand American dreams.)
In the 2005 version, Jackson begins with a montage of life in Depression-era Manhattan, with a mixture of poverty & unemployment, alongside wealth and high-living. Those early scenes — especially in a movie that’s about an adventure on a mysterious island — are astonishing.
I could take a brief clip — about two minutes or less — and post it to YouTube, as an example of a filmmaker’s portrayal of the Depression. One cannot do that, of course, as YouTube’s software scans and blocks a film clip as the property of Universal Studios.
A few quick comments –
YouTube as Private Property.
Although I think there’s a strong fair use claim for using the clip, that’s a claim against action from Universal Studios, not YouTube. If YouTube doesn’t want to post a clip from an adventure film about a rampaging ape, or Depression-era montage, they don’t have to do so. YouTube is private property, and they can restrict clips of Universal’s films. They need not assert, against Universal Studios, or anyone else, any claims at all. That’s their choice.
It’s not censorship, either, for YouTube to ban giant ape films (if they wanted a blanket rule). They’re a private enterprise (part of Google), and not a government agency.
(The do offer users the chance to assert offer fair use justifications that they, YouTube, could evaluate. I don’t know where their evaluations lead, but I can guess that most users who submit a form still don’t get a video clips posted. Again, that’s YouTube’s choice.)
Defending Directly.
If a blogger wanted to post a clip from Jackson’s King King and assert a fair use right to embed the clip, he or she could do so on his or her own website. In this case, no third party would be required — only the blogger and the copyright holder would be involved. I’ve asserted fair use rights on my website before. I’ve not done so in the case of the 2005 King Kong. I’d like to see what would happen to a request to YouTube first. (I think I can guess correctly what will happen.)
Defending Tenaciously.
If something’s important, and worth defending, then it’s worth defending tenaciously. People who don’t understand blogging, and the assertion of rights under the constitution or from a statute (like fair use from copyright law), sometimes don’t expect a tenacious defense of these rights. They may assume the blogger will relent, as they see blogging as a hobby, or a casual pursuit. For some bloggers, that’s likely true.
Not for others, though — there’s no game in asserting one’s rights. It’s safe to say that websites with a lot of political content are likely to be committed to defending against encroachment to speech and other constitutional or statutory rights. Still, a committed defender of individual liberty may be born when told that her travel website site is now unlawful, and banned.
A right asserted also deserves a defense, should one be necessary. It deserves not just any defense, but a tenacious one.
That’s the way in which, when pressed, bloggers are ‘happy warriors,’ in the way that Gov. Al Smith of New York was often described. One fights for something good, and against a worse alternative.
So is it worth fighting over a clip of the 2005 King Kong to be published for critical or artistic commentary? Yes, I am sure that it is. First, I’ll see what YouTube has to say, and after that, I’d be curious to see what Universal might say (if anything).
We’ll see what happens.