The Controversy Over Politically-Motivated "Million Dollar Baby" Spoilers:
Do They Violate Copyright Law By Destroying Market Demand For the Movie?

By JULIE HILDEN
julhil@aol.com
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Tuesday, Feb. 22, 2005

If one ever doubted the need for the First Amendment's protections, then the furor over the movie "Million Dollar Baby" ought to make the case. The controversy illustrates that some critics would rather kill off speech they don't like, than try to rebut it.

Unfortunately for free speech advocates, the movie's opponents have come up with an ingenious way to do just that: By giving away its surprise twist without offering any prior "spoiler" warning, thus "ruining" the movie in some viewers' eyes.

Their strategy is potentially quite damaging to the market for the movie. Many viewers prefer to see a movie without being told beforehand of its surprise twist: Foreknowledge of a movie's ending ruins the surprise and "spoils" the film. With many movies and many multiplexes out there, viewers may simply opt for another choice if they feel "Million Dollar Baby" is ruined for them.

Is there any legal remedy for this tactic? Or is the "spoiler" issue simply an ethical one?

I will argue that the most pertinent body of law - the law of copyright - probably does not provide a remedy, but the tactic is strongly anti-First Amendment nonetheless.

Accordingly, avowed First Amendment proponents such as Rush Limbaugh ought to hesitate before employing this tactic.

The Context: Spoilers, "Million Dollar Baby," and Its Controversial Plot Twist

As a matter of journalistic practice, magazines, newspapers and websites now tend not to reveal "spoilers" - that is, information that would "spoil" a movie or book. Usually, this information takes the form of a key plot twist, a shocking revelation about a particular character, a surprise ending, or the like.

If spoilers are included in a review or article, a prominent "spoiler warning" is provided for readers who have not yet seen the movie or read the book. Even the title of the website Moviespoilers.com, for instance, is a warning in itself.

"Million Dollar Baby" has a dramatic plot twist - one that comes as a genuine surprise. As Entertainment Weekly's reviewer Owen Gleiberman commented, "[I]f you think you know where Million Dollar Baby is headed -- have no fear, you don't."

Here, I need to provide a spoiler alert of my own: I am about to reveal the plot twist, so if you don't want to know, don't read on.

"Million Dollar Baby" at first appears to be a sort of Irish, feminist version of "Rocky". Maggie Fitzgerald - played by Hilary Swank ‑‑ wants to be a boxer, and after much persuasion, convinces well-known trainer Frankie Dunn - played by Clint Eastwood - to work with her.

Over the course of training Maggie, Frankie becomes a quasi-father to her. Their relationship is all the more poignant because Frankie is estranged from his real daughter, while Maggie's father is gone, and her remaining family is only interested in her winnings.

For a while, Maggie wins her fights, and all seems well. Then, as a result of foul play by an opponent, she takes a blow that paralyzes her from the neck down. Because boxing is her life, she doesn't want to live anymore. She implores Frankie to help her die - and, , after much painful reflection and prayer ‑‑ and against the advice of his priest ‑‑ he does so.

The twist is shocking, for this is truly assisted suicide - not euthanasia. Maggie's mind is intact; Frankie has even suggested that she pursue college courses. Thus, Frankie's decision is not an act of compassion, but rather of blind love and loyalty: He respects Maggie's choice no matter what. Perhaps it is also an attempt to make up for the ways Frankie has failed his own daughter - by showing he, a Catholic, is willing even to commit this mortal sin to demonstrate his love for Maggie.

The Criticism of the Movie, and Why It's Misguided

This plot twist has drawn stinging criticism both from those who oppose euthanasia, and from groups who advocate for the disabled. Those who oppose euthanasia argue that Maggie's situation shows the reason to prohibit it: If Frank had talked her out of it, they urge, then she might have come to thank him later, realizing that her life remained worth living. Disabled advocacy groups similarly argue that the movie perpetuates the invidious belief that the disabled and their lives are inferior or unworthy of living.

Eastwood's defense has been simple: "How the character handles it is certainly different than how I might handle it if I were in that position in real life," he has said. "Every story is a 'what if.' "

As Eastwood's defense suggests, critics of "Million Dollar Baby" make the same mistake many censors make: confusing presentation of subject matter, with approval of that subject matter. Eastwood isn't saying that what Frankie does is what he would do - or that it is right - only that it is what the character would do under the circumstances.

The distinction between topic and perspective is crucial: "Saving Private Ryan" is extremely violent, but convinces us of the bloody cost of war. Other movies do glorify violence, but "Saving Private Ryan" isn't one of them. Similarly, the movie "Kids" depicts wanton teen sexuality, but is hardly in favor of it: To the contrary, the movie reveals that, as a result of it, a young girl may have become HIV-positive. Yet both these movies were attacked by those who called them too violent or too sexual, without taking their perspective into account.

So too with "Million Dollar" baby: By depicting a choice, it does not necessarily communicate approval of that choice. Rather, it shows how such a choice might be made - by a young woman who has staked her life on what she can do with her fists, and a trainer who is trying to figure out what it means to have a daughter, and to love and support her unconditionally.

Many viewers will walk out convinced that Maggie and Frank both made terrible mistakes, and importantly, the movie does not try to pre-empt that interpretation. The movie is plausibly viewed as a tragedy - and not only because Maggie dies, but also because she chooses to, and because Frank helps her.

The Legal Issue: Are "Million Dollar Baby" Spoilers Copyright Violations?

As noted above, one weapon that critics - such as Michael Medved and Rush Limbaugh -- have used against "Million Dollar Baby" is to reveal the movie's twist, without any spoiler warning preceding the revelation.

Movie critic Roger Ebert has taken issue with this tactic, on the ground that it is ethically wrong. Ebert writes, "[T]o actively attempt to sabotage a movie with its intended mainstream audience, as Medved, Limbaugh and others have done, is not justifiable." But is it also legally wrong? That question brings us to the copyright issue.

Copyright law is the main way our society protects the market for the sale and purchase of creative works such as novels, music, and movies. It aims to ensure that that market can flourish so that creators, and the companies that distribute their work, can reap the profit from their labor. It thus provides an incentive for creators to produce more.

But copyright law makes an exception for "fair use" - even though fair use can destroy the market for a creative work, and thus, in a sense, defeat the purpose of the work's copyright. An example of a "fair use" would be incorporating limited quotations from a book in a book review. Such quotation is a permissible "fair use" even if the review savages the book and makes sales plummet.

In addition, a devastating parody may well serve its purpose of making the original work look ridiculous - and thus killing the market for that work - yet still be "fair use." Justice Souter made this point memorably in his opinion in Campbell v. Acuff-Rose Music, Inc., in which he mounted a strong defense of the right to parody.

As Souter explained, "Because parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically, the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement which usurps it." (Quotations and citation omitted).

Is a "Million Dollar Baby" spoiler also "fair use" - despite the fact that it tends to kill off the market for the original work? A court would probably find that it is.

The basic reason for this can be seen if we apply Justice Souter's test: Spoilers are not trying to "usurp" demand for a movie. The idea isn't that you read the spoiler as some kind of substitute for seeing the movie; rather, it's that after you read the spoiler, you may not want to see the movie anymore. In other words, demand for the movie is suppressed by a spoiler - and under the copyright law, suppressing demand is typically acceptable as long as the suppressing work does not replace the original work.

Two Reasons A "Million Dollar Baby" Spoiler Would Likely Be Deemed "Fair Use"

A few other factors also suggest a copyright case against "Million Dollar Baby" spoilers would be doomed to fail.

First, copyright law violations tend to involve the unauthorized copying of actual text - or in the case of a film, the unauthorized use of an actual clip from the film.

Violations, then, tend to actually contain some part of the original, preserved intact. (It need not be words - it could be a character, for example - but the point is that some part of the original is contained, relatively intact, in the violating work.)

No part of "Million Dollar Baby" need be contained intact in a spoiler. Instead, spoilers tend to use summary or paraphrase.

Second, copyright law violations tend to appropriate a fairly large portion of the original. This isn't a rigid legal rule, but it's a very common rule of thumb for lawyers advising those who want to protect against copyright claims. Sometimes legal counsel for publishing houses will even, in effect, put word limits on the amount an author can quote from an original work.

Since a "Million Dollar Baby" spoiler can be accomplished in just a few words, those who adhere to the word-counting rule of thumb - and there are many - will see the spoiler as perfectly legal.

Copyright and Cherry-Picking: Is Appropriating Substance An Infringement?

In my view, however, this kind of word-counting is foolish literalism - literalism that is contrary to the purpose of copyright law. Justice Souter's test is the right one: As long as the work in which the quotation appears is not usurping demand for the original work, then quotation should be fine. And whether quotations do usurp demand for the original work does not depend on how many words they contain - it depends on their content, and their placement within the original work.

A wordy excerpt from the beginning of a book, or a large clip from the beginning of a film, will probably only pique demand for the original - and certainly doesn't usurp that demand. In contrast, a brief excerpt from a book's final five pages, or a brief clip of the end of a movie, will have the predictable effect of usurping demand.

So will cherry-picking small clips of the most important plot points of a book or film: The reader or viewer may feel that he or she already has the gist of the work, so why read or see the whole thing?

In my view, written spoilers can never replicate the experience of seeing a movie, so I don't think this argument can apply to written movie spoilers. But written book spoilers may be another matter. Often when a book author negotiates an excerpt with a magazine, he may be concerned that the excerpt will satisfy all demand for the whole story - giving the reader the feeling that she's read enough, rather than the thirst to read more. From an author's perspective, the ideal purpose of an excerpt is to excite, not dampen, demand for the books.

Authors must be frustrated, then, when Slate.com sometimes boasts, when offering a book summary, that "We Read It So You Don't Have To." These summaries aren't excerpts; they summarize rather than quote. But the feature does cherry-pick what the writer sees as the most important points in a book - usually, a bestseller. It would raise serious copyright issues, if copyright law were not so strongly focused on the use of actual words from the original, as opposed to the use of summary or paraphrase that effectively usurps demand for a book.

This feature makes very clear the difference between permissibly suppressing demand, and impermissibly usurping demand. A review that is captioned "We Read It, and Believe Us, You Shouldn't" suppresses demand - and is "fair use." But a summary that is captioned "We Read It So You Don't Have To" arguably usurps demand - and thus may potentially raise copyright infringement issues.

It's a close case: On one hand, there is the rule, cited above, that paraphrase is usually legally safe. But on the other hand, this is probably the most aggressive, market-usurping form of paraphrase imaginable.

In the end, then, the question is whether the piece tries to stand in for the original work in the market; if it does, it may violate the original's copyright. Written "Million Dollar Baby" spoilers don't stand in for a viewing of "Million Dollar Baby" - instead, they aim to ruin it. Thus, however problematic such spoilers may be, from an ethical standpoint, the copyright law probably does not reach them.

Why "Million Dollar Baby" Spoilers Are Anti-First Amendment

There's one interesting twist, here, but it's not one copyright law accounts for. Recall that copyright law says it would be okay to suppress the market for "Million Dollar Baby," but not to usurp it.

The twist is that arguably, some ways of suppressing the market - while not copyright violations -- are more ethical than others. Spoiler warnings protect viewers' choice; omitting spoiler warnings destroys that choice.

No wonder, then, that readers or listeners who read spoilers are angry if they are not preceded by warnings: Their autonomy in choosing what they read and see has been hampered. They no longer have the choice of seeing "Million Dollar Baby" afresh - as they wanted to see it.

Notably, readers wouldn't be angry if they had been persuaded not to see the movie - as might have been the case with a savage review; they'd be thankful they saved their money. They would know they had been aided, not tricked.

In short, while spoilers and reviews may both be fair uses, all fair uses are not created alike: Some are pro-First Amendment, helping us choose what to see and read, and some are anti-First Amendment, forcing us to limit our choices by deceptively spoiling certain options against our will.

So commentators who say they are pro-First Amendment, especially, ought to think twice before offering a spoiler without a prior spoiler warning. They wouldn't forcibly pull viewers out of ticket lines for "Million Dollar Baby," but in using spoilers aggressively, they also employ a form of coercion.

Ruining others' viewing or reading experiences ought not to be a weapon in the arsenal of someone who is truly pro-First Amendment.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Her articles on First Amendment and copyright issues can be found in the archive of her writing on this site. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter

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