Film and Freedom of Expression: Is It Time for a Global Norm?

  • By Susan Burns
  • 04 Nov, 2015

Recently I attended the American Bar Association, Section of International Law Regional Forum in the fabulous city of Montreal. I chaired a panel entitled “Film and Freedom of Expression: Is it Time for a Global Norm” and had the privilege of working with some incredible panelists: Robert Raben[1], German Mendez[2], Erik Huey[3]and Leonard Farlinger[4]

It was an inspiring experience to work with these powerful voices as they presented incisive, uncensored views on an essential topic for today’s society. So inspiring, that I wanted to share my introductory remarks on the topic.

Some people asked why I proposed the topic of film and freedom of expression—what relevance does this topic hold for our attorneys?

Interestingly, it is the same complex subjects that drive filmmakers—things like pollution, environmental concerns, racism, terrorism, war, big government, discrimination, and gay rights—that are many of the same issues that lawyers try to create policy around as stewards of the legal profession.

Some of the same tools that filmmakers use to shed light on the human existence lawyers use to drive public policy, diversity and equity. Many of the concerns presented during the panel are not just issues of artistic relevance, but also civil and human rights issues.

As defenders of justice, if the global situation remains unchanged we leave those in need of our legal services to languish and wither, causing intellectual decay and corrosion on a global scale.

The work that we as lawyers do can help foster a global community that allows artists to ponder what it means to think, create and thus help shape the world amid the constant threats to free expression.

Through the medium of film, we are able to see socioeconomic and cultural diversity beyond the parameters of our physical existence. As people limited by circumstances—whatever they are—what we see on a screen can transport us to places we may never see in our lifetime. We can learn the stories of people that we may never have the chance to meet.

In this way, art provides a reprieve, a pleasure that we would grieve if it were taken from us. As a lawyer, the time I spend viewing films provokes thought, provides escapism and allows my brain to blossom in the presence of something beautiful curated for intellectual consumption.

Art is one of the fundamental pillars that our society is built upon, and film has the power to inform the way we see the world and ourselves. Film, therefore, gives us a vehicle for exploration and the potential for social engagement.

Technology, media and telecommunications complicate the dissolution of taboos and cultural norms, and that is where some of the issues lie. It is a double-edged sword: the same technology that allows us to examine these things is also what allows us to be tracked. As consumers we like being able to see a movie about whatever we want practically whenever we want without the fear of censorship or threat of surveillance.

We have more outlets through which to satisfy the human need for stories and connection: artists are no longer limited to traditional vehicles and mediums to project their creations.

We are globally connected. We no longer rely on venues like Cannes, Sundance or other film festivals, for movies and documentaries from around the world. We can watch performance art as it happens through apps like Periscope.

In these intellectual explorations we are no longer simply citizens of our countries of residence, but also citizens of the world—when civil rights are violated, the global community can learn about the incident in a matter of minutes. In this way citizens can hold their governments and one another accountable.

We’re at an interesting impasse in human history: we have the technology to make the world more understanding of various cultures and ways of life, but we don’t have a global initiative that helps the human rights of the producers of art.

As Americans we often take our freedom of speech for granted. When we talk about censorship we talk about other governments in other countries. However recent political developments—including the passage of the Patriot Act—have shined a spotlight on possible profound acts of censorship in our own backyard. We’re also all familiar with the fallout surrounding James Franco’s movie about North Korea and the resulting Sony Hack scandal that impacted the heretofore well-defined First Amendment.

Exploring this on a global scale, here’s a snapshot of what’s going on in other parts of the world and some of the circumstances artists face:

Bassem Youssef, a comedian, often called “the Jon Stewart of Egypt” and known for his quips, observations, and incisive commentary about the state of play in the Middle East is banished from Egypt after three seasons of al Bernameg , his weekly satire news show. His show—and the degree it could push boundaries—became a metric of the evolution of freedom in Egypt.

In August (2015) the Rotterdam Film Festival award winning Ukrainian filmmaker Oleg Sentsov, was sentenced by Russia to 20 years in prison in a ruling that sparked global condemnation for its groundless charges and clear miscarriage of justice. Sentsov’s real crime – it is thought – is that he had previously voiced his opposition to Crimean annexation.

Keywan Karimi, an award-winning Iranian filmmaker whose work focuses on the travails of modern life and political expression in the Islamic Republic has been sentenced to six years in prison and to 223 lashes for his movies. This conviction follows similar punishments for other artists and journalists in Iran, even as its government moves toward detente with the West over its contested nuclear program. This case underscores both the murky limits of expression in Iran and the power hard-liners still maintain in the country.

Parallel conversations are being held about the notion of press freedom in the wake of the Charlie Hebdo attacks and the restrictive nature of news censorship in China. Governments and regimes are treating artists and creators as saboteurs, creating a threat to artistic and intellectual integrity, something that we thrive upon—as Americans, and global citizens with an interest in truth and the human condition. 

The concept of personal circumstances as political critique and the notion of social observation as a vehicle for social change present us with the issue of the culture clash: 

  • What happens when intention, expectation and expression are misinterpreted or misconstrued?

 

  • When do cultural critiques with a political bent turn into serious allegations of terrorism and treason? When does voicing an opinion turn deadly?

  • Other art disciplines have organizations that help artists in trouble—how can the film and legal communities come together on the grassroots and policy fronts to initiate change?

  • What can we learn from programs like the PEN American Center’s Writers in Prisons initiative?

  • How can we create a system that takes care of the day to day maintenance of the notion of the freedom of expression but also presents major global legislation?

  • How do we marry creative think tanks with legal efforts?

  • How can we work to mitigate a reality that contains so much violence, alienation, indifference and diminishment in a world where filmmakers languish in jail for the crime of expressing their art?

  • What is the fate of art, artists, political power and government accountability and social reckoning?

 

This issue of lack of a global standard for freedom of expression in film hits home for me because I’ve had the privilege of participating in discussions on that issue as a result of Mr. Shezanne Cassim.

 

Here is his story in the video below:

[1] Robert Raben is the founder and president of the Washington, D.C.-based lobbying and consulting firm The Raben Group, and was Assistant Attorney General at the Department of Justice under former President Bill Clinton. He is widely recognized for his work in promoting diversity and freedom of speech.

[2] German Mendez is CEO of Shaman Entertainment, Mexico City, and the award-winning producer of several films.

[3] Erik Huey is Senior Vice President of the Entertainment Software Association and member of the Surreal McCoys.

[4] Leonard Farlinger is a principal with Toronto-based New Real Films. Jennifer Jonas, his better half, is also a principal. She won the 2013 CMPA/TIFF Producer of the Year award.


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More Posts from Susan's Blog

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By Susan Burns 26 Oct, 2017
P.S. There has been a lot of discussion on social media about my post on reading fine print  when installing apps, specifically focused on the Grammarly app. Some people have responded with the interpretation that Grammarly can only use your content to correct your grammar and not for anything else.

I disagree. This is not a correct interpretation, in my opinion.

Even though that interpretation may be based on a provision in the TOS that states you keep ownership of
your content, they still have an unlimited, perpetual, royalty-free right to use it. I won’t repeat the prior
post, but do urge you to read it .

Others have suggested that Grammarly’s TOS are typical of SaaS (software as a service) agreements and,
somehow, that makes it okay. The TOS may be similar, but the products aren’t. Grammarly, in my
experience, crawls through everything you type. Everything.

The other argument proposed by someone is that because this is typical SaaS language, they don’t really
mean that they are going to use your content. Really? Then say so in a clearly-drafted, user-friendly
contract a/k/a TOS.

I have not heard of someone successfully arguing in court that even though they agreed to a license of
their product, they didn’t think the person was really going to use it … and therefore, they shouldn’t be
allowed to use it. If you know of such a case, send it my way.

Again, legal ethics prohibit me from using the service. That aside, I don’t choose to give Grammarly
access to everything I type.

As one person put it, “everything ever typed on the computer, so while it runs in the background, it
gathers password, credit card data, shopping habits, text conversations from Facebook, messenger
services, anything you do... recorded and stored.”

Finally, my posts are my opinion and my legal analysis. I am not your lawyer. And, I am not telling you
what to do.

One of my major focus points with clients is clarity. Fabulous decisions come from clarity. Make a
decision that’s right for you.

I love a great discussion! Keep the comments coming.

MSB
By Susan Burns 24 Oct, 2017

Recently I was engaged in a Facebook exchange among a group of successful business women. Someone asked for opinions on using Grammarly—an app that is marketed as “A FREE, ACCURATE GRAMMAR CHECKER BUILT FOR EVERYONE.”  

The comments started rolling in: “love it!” “best thing I have used in a long time.” “Cuts my writing time significantly.” And more like that.

I actually had installed the free app a few weeks before to give it a test run. I found it to be a nuisance because that little app was popping up and sticking its grammar-nose in every single thing I wrote. My emails. My blog posts. My word documents. That spelled danger to me, and I immediately deleted it.

My curiosity piqued, I checked the Terms of Service (which, admittedly, I should have done first). Here is what I found:

By uploading or entering any User Content, you give Grammarly (and those it works with) a nonexclusive, worldwide, royalty-free and fully-paid, transferable and sublicensable, perpetual, and irrevocable license to copy, store and use your User Content (and, if you are an Authorized User, your Enterprise Subscriber’s User Content) in connection with the provision of the Software and the Services and to improve the algorithms underlying the Software and the Services. (emphasis added)

Here's what you need to know:

  • Grammarly, Inc. is a Delaware corporation. They include in the definition of “Grammarly” not only the corporation, but also all of its subsidiaries AND other affiliates.
  • The definition of “Software” is “the software.
  • The definition of “Services” is … wait for it … “services.” 
  • And, although it is poorly drafted, it seems to be attempting to include any future Software and Services provided by Grammarly, which you recall also means any subsidiary or affiliate.

What does this mean for you?

It means that if you install Grammarly, whether it’s a free service or a paid service, you are specifically giving an unlimited perpetual license to your content to Grammarly and any company they affiliate with and any of their subsidiaries basically for any service they provide now and decide to use in the future.

That means that if you use Grammarly, instead of your own brain or a copy editor, you are no longer the exclusive owner of your content. That means they can republish, provide to third party affiliates, and use your data and materials any way they see fit.

The bottom line is that Grammarly has access to—and the unlimited, forever—right to use your content. Period.

And, once you install Grammarly, it is everywhere . It pops up in every document you create. Every. Single. One. If you don’t believe me, try it yourself.

Of course, lawyers and other professionals with a confidentiality responsibility to their clients are ethically prohibited from using Grammarly. (And, I hope they read the fine print.) But even if you don’t have an ethical responsibility to keep information confidential, do you really want to give up the right to your content?

Think about it! And next time, read the fine print. … or call me, and I’ll read it for you.


‚Äč*This post has been updated here .

By Susan Burns 28 Feb, 2017

The driverless car industry is hot and super-competitive. That’s a given. Here’s what’s not hot if you are Waymo, the self-driving car business that was spun out of Google’s parent company:

By Susan Burns 19 Feb, 2017

Recently, there was a trademark spat between Adidas and Tesla. The story piqued my interest because   the big players make mistakes that are instructive for small businesses (only on a grander scale)—and because it illustrates the importance of brand identity and underscores why it’s smart to register your mark.

In a nutshell, here’s what happened: Tesla filed with the US Patent and Trademark Office (USPTO) to register its Model 3, three-bar logo as a trademark. If the registration had been for the purpose of using the mark on a car, there would not have been a problem. BUT, Tesla registered to use its three-bar “E” on clothing. Adidas, a company known for rigorous policing of its brand identity, challenged Tesla’s right to register the mark as confusingly similar to the Adidas three-bar logo. Tesla withdrew its application. Adidas protected its three-bar brand identity.
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