Unlikely Alliances

For all its advantages, the Internet is also a tough-to-tame bastion of piracy. It’s the theoretically boundless battleground of rights holders and violators. But could these adversaries become associates?

The camera opens on an animated shot of a familiar emblem: the spiky silhouette of a bat in a bright yellow circle.

Batman clears his throat and says, “Hey, Miss Kyle. Do you want to know my secret identity?”

The shot cuts to Catwoman. In the background, dramatic strings begin to swell as she thinks for less than three seconds. “Is it Bruce Wayne?”

“How does everybody know my—” he cuts off and clears his throat. “I mean, maybe.”

The animated short isn’t an official Warner Bros. production. It wasn’t created or approved by the company, and it pokes fun at one of Warner’s highest-grossing films, the Dark Knight Rises. The short parody was produced by a popular comedy website, How It Should Have Ended (HISHE).

In the ever-changing world of YouTube, BuzzFeed, and many others, the line between satire and copyright infringement often blurs. Some companies feel the need to fight groups like HISHE to protect copyrights and characters. Lawyers like Dean Marks do not. “We want our content to be viewed and enjoyed,” says Marks, who was senior vice president of intellectual property for Warner Bros. Entertainment Inc. at the time of this interview. “Fan engagement with our content and characters is far different from content theft intended to usurp the legitimate marketplace for our company’s creative works.”

Warner takes what Marks calls a liberal attitude concerning the use of its content. The company wants its content to be enjoyed by users. Marks believes it is better for the company to embrace new technology and see what business opportunities it can present, rather than try to fight a pointless battle to keep everything under Warner’s absolute control.

The way Warner handled one fan’s use of its Mortal Kombat video game franchise is a good example of the opportunities for a symbiotic relationship made possible by new technology. A YouTube user created online-only episodes using Mortal Kombat characters and settings. As the series gained followers, Warner’s business leaders approached the intellectual property lawyers. “Rather than saying, ‘they’re stealing,’ they came to us saying, ‘they’re getting so many views!’” Marks recalls. “It got more people interested in the game. The business development team contacted the guy who had created the webisodes and hired him to create more, promoting the game and franchise. The business folks smartly seized this opportunity, and we IP lawyers didn’t stand in the way.”

That doesn’t mean every instance of unauthorized use will be met with such approval. For example, Warner produced the Harry Potter films, and there have been dozens of books written about the characters and settings portrayed in the novels and films without any legal objection. One website, the Harry Potter Lexicon, served as an encyclopedia-like reference tool devoted to compiling definitions, themes, and information about the Harry Potter series. It did not bother author J.K. Rowling or Warner when it operated as a noncommercial website. But when the Lexicon writer and operator sought to publish its content as a commercial book, Warner’s patience ran thin. “Given the vast amounts of original expression that were copied directly from Rowling’s novels, when they tried to publish it commercially, we drew the line,” says Marks. Warner and Rowling brought a copyright lawsuit against the publishing company planning to print the book. They won, blocking the Lexicon’s commercial publication.

Both examples point to a growing reality in the entertainment business: the importance of interaction. Before the Internet, companies produced content, and consumers enjoyed it. Now, people want to enjoy it, splice mash-ups, create fan fiction and artwork, and comment on plot developments. Stories are interactive in a way they never were before, and some content creators have adjusted better than others. “It’s on the content creator to understand changing technology,” Marks says. Years ago, the biggest challenge in intellectual property enforcement for the film industry was stopping people who sold unauthorized videotapes in alleyways and flea markets. Those days now seem “quaint,” in Marks’ words.

Marks worked extensively in distribution as well as digital rights management and content protection technologies, a key component of intellectual property protection that continues to evolve. He and his team knew there is no sure way to prevent content theft. No matter how strong or up-to-date an encryption technology is, once content is decrypted to be viewed on a computer, TV, or other device, no technical barrier exists to stop someone from setting up a digital video camera to record it. “A colleague at another studio once said, ‘if I can see and hear it, I can copy it.’ And that’s true,” says Marks. “Warner understands that fact.”

Much of his work, then, was to deter rather than to halt. Digital rights management and content protection technologies provide guideposts for authorized use. For example, when a consumer inserts a DVD or Blu-ray disc into a personal computer, that person can’t simply drag and drop the file to make a permanent playable copy. “It’s like traffic cones,” Marks says. “You can drive over a cone or in between them, if you really want to, but they are there to indicate the right path.”

What Marks and his colleagues have to keep in mind, he emphasizes, is that Warner is an entertainment company. The lawyers there need to address the threat of massive infringement, particularly online, without stopping fans who want to be involved in their favorite stories and characters beyond simply viewing. After all, what would fans do if they couldn’t watch four minutes of alternate ways the Dark Knight Rises should have ended?

“We like it, too,” Marks says with a laugh. “We don’t want to take it down. We watch it as much as they do.”

Editor’s Note: At the time of press, Marks accepted a new position as executive vice president, deputy general counsel, and chief of global content protection at the Motion Picture Association of America (MPAA).