Cross-Examining Film

The Supreme Court decision in Scott v. Harris holds that a Georgia police officer did not violate a fleeing suspect\u27s Fourth Amendment rights when he caused the suspect\u27s car to crash. The court\u27s decision relies almost entirely on the filmed version of the high-speed police chase taken from a dash-cam, a video camera mounted on the dashboard of the pursuing police cruiser. The Supreme Court said that in light of the contrary stories told by the opposing parties to the lawsuit, the only story to be believed was that told by the video. In Scott v. Harris, the court fell into a dangerous and common trap of believing - to the point of enshrining in our law - that film captures reality. As Justice Breyer said in oral argument of the case seemingly flabbergasted by contrary findings below: I see with my eyes ... what happened, what am I supposed to do? The Supreme Court is not the first court to fall prey to the persuasive power of film. It is typical for courts and advocates to naively treat filmic evidence as a transparent window revealing the whole truth, as a presentation of unambiguous reality. But film has a history in art as a constructed medium. As filmmakers and critics have known since the beginning of cinema, film\u27s appearance of reality is an illusion, an illusion based on conventions of representation. How could Mr. Scott have countered the weight of the film and its persuasive power? When faced with prejudicial filmic evidence, how does an advocate undermine the assertive nature of film and its overwhelming appearance of exposure? The advocate must cross-examine the film the way she cross-examines witnesses. Because films are assertive in nature, an advocate faced with filmic evidence must treat it the way she treats other testimonial evidence, critically and with careful scrutiny. She must cross-examine the film. This article will set forth certain examination techniques using a piece of filmic evidence (linked to the article) from a recent case as an example. By doing so, it aspires to be a teaching tool for other courts and advocates in their treatment and consideration of filmic evidence

Reading Intellectual Property Reform Through the Lens of Constitutional Equality

Reviewing Bill D. Herman, The Fight Over Digital Rights: The Politics of Copyright and Technology; Aram Sinnreich, The Piracy Crusade: How the Music Industry’s War on Sharing Destroys Markets and Erodes Civil Liberties; and Robert Spoo, Without Copyrights: Piracy, Publishing, and the Public Domain

The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property

Are innovation and creativity helped or hindered by our intellectual property laws? In the two hundred plus years since the Constitution enshrined protections for those who create and innovate, we\u27re still debating the merits of IP laws and whether or not they actually work as intended. Artists, scientists, businesses, and the lawyers who serve them, as well as the Americans who benefit from their creations all still wonder: what facilitates innovation and creativity in our digital age? And what role, if any, do our intellectual property laws play in the growth of innovation and creativity in the United States? Incentivizing the progress of science and the useful arts has been the goal of intellectual property law since our constitutional beginnings. The Eureka Myth cuts through the current debates and goes straight to the source: the artists and innovators themselves. Silbey makes sense of the intersections between intellectual property law and creative and innovative activity by centering on the stories told by artists, scientists, their employers, lawyers and managers, describing how and why they create and innovate and whether or how IP law plays a role in their activities. Their employers, business partners, managers, and lawyers also describe their role in facilitating the creative and innovative work. Silbey\u27s connections and distinctions made between the stories and statutes serve to inform present and future innovative and creative communities. Breaking new ground in its examination of the U.S. economy and cultural identity, The Eureka Myth draws out new and surprising conclusions about the sometimes misinterpreted relationships between creativity and intellectual property protections. - Publisher\u27s websitehttps://scholarship.law.bu.edu/books/1124/thumbnail.jp

Reading Intellectual Property Reform Through the Lens of Constitutional Equality

Reviewing Bill D. Herman, The Fight Over Digital Rights: The Politics of Copyright and Technology; Aram Sinnreich, The Piracy Crusade: How the Music Industry’s War on Sharing Destroys Markets and Erodes Civil Liberties; and Robert Spoo, Without Copyrights: Piracy, Publishing, and the Public Domain

Truth Tales and Trial Films

Investigations into law and popular culture preoccupy themselves with understanding how law and popular cultural forms work together to challenge or sustain community structures, identity and power. It is inevitable at this point in our cultural history that law and popular culture are intertwined. There are too many television shows, films, popular novels and web-based entertainment to withdraw the law (whatever that is) from the domain of popular culture. This article takes as a given the intermixing of law and popular culture, embracing it as a new feature of our popular legal consciousness. I suggest that one result of this mixing -- what I call truth tales, which are fictionalized films that are nonetheless based on true stories about law -- is to enhance our critical capacity to engage the law as a hopeful and evolving web of social, civic and political codes that shape our expectations for justice in contemporary society. This article proceeds in five parts. Part I outlines a brief history of interdisciplinary legal studies, in particular law and cultural studies. Part II discusses the subfield within law and cultural studies of law and film, as a way to set the stage for a longer discussion in Parts IV and V of two truth tales, Compulsion and Swoon. Part III more specifically describes the parameters of the truth tale as a subgenre of courtroom drama that affects a particular kind of popular legal consciousness, one that accepts as futile law\u27s presumed search for unconditional truth and embraces instead the legal system\u27s promise of due process as based on normative values of fairness. Parts IV and V are close readings of the two films by way of application of the interpretive methodology and conceptual framework outlined in Parts II and III

Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks to the more general challenge of balancing privacy and freedom of expression in the digital age. At the outset of this essay, I describe the scope of the empirical project and the process of collecting data. Then, in three parts, I describe how photographers simultaneously collaborate with and control the subjects of the photographs they make in order to assert themselves as civic storytellers with broad free speech rights in our digital age. I identify a conflict between photographers and their subjects, which serves to maximize the aesthetic freedom of photographers at the expense of their subjects. This conflict resolves in the photographers’ accounts through their caretaking role over their photographs on behalf of the subjects themselves. I conclude with a brief explanation of why it matters to better understand these professional photographic norms in our Internet age when free speech and privacy are increasingly in conflict

Judges As Film Critics: New Approaches To Filmic Evidence

This Article exposes internal contradictions in case law concerning the use and admissibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as demonstrative evidence, evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live witnesses in court with communications via video and film technology. Another anxiety is the public perception of the trial itself as undisciplined and capricious rather than as controlled and truth-establishing. The Article concludes by showing that these anxieties are not well-founded because, when filmic proffers are properly considered, they are admitted as substantive and testimonial evidence. As a result, they are (or should be) subject to hearsay rules and cross-examination and to other rules intended to safeguard the integrity of the trial. The analysis in Judges as Film Critics is a continuation of the author\u27s prior research and publications in the field of law and culture, and draws from evidentiary doctrine and legal scholarship as well as from contemporary film theory and history. This combination takes afresh look atfilmic evidentiary proffers and questions the very assumptions that govern the meaning they are said to project, in light of contemporary theory devoted to the interpretation offilm. Such an analysis reconsiders the legal categories that regulate the use offilmic evidence-such as demonstrative, substantive, and real evidence-and begins the development of a more nuanced and common sense doctrine governing the treatment and meaning offilm in the courtroom. In light of the long history of the use offilm in court and the growing use of visual media in the courtroom, it is time to make sense of the case law purporting to explain the admissibility offilmic evidence in terms of a discipline devoted to thefilm medium