Thursday, April 16, 2009

Sticking Cheese Up Your Nose is First Amendment Speech

NYTreports that felony charges have been filed against Domino's Pizza employees who made a disturbing YouTube video that shows them sticking cheese up their noses and putting it on a sandwich.

The video has been seen so widely that it has damaged the Domino's brand; nationwide polling went from positive to negative over this video, which the Times said a million people have accessed.

The local authorities charged the employees with "delivering prohibited foods," according to the Times, and the art attached to the article are the employee's mug shots, credited to the police department.

The video itself shouldn't be enough to charge these people, because it doesn't prove that the food was actually served to any customers.

If the defendants are lucky, the video has a time and date stamp that can be checked against the store's records and prove that nobody ordered sandwiches like the ones portrayed in the video on the date the video was made. But if similar sandwiches were ordered, that wouldn't prove that the sandwiches delivered were the sandwiches shown in the video.

The video itself is pure speech, and while it is grounds for investigation of food going out from that Domino's franchise, it's not grounds for a felony charge, unless police have other evidence.

Political pressure probably forced local authorities to do something, but even if the tainted sandwiches were delivered, it will be extremely difficult to prove. Look for the charges to get dismissed pretty swiftly.

On a related note, cheap food prepared by low-paid workers is likely to be the subject of gross pranks. If the worst thing someone has ever put in your food is snot, you're probably pretty lucky. I live in New York City, and I suspect the act of eating that sandwich would expose someone to fewer germs than an average New York subway commute, especially since the sandwich would have been heated after the pranks portrayed in the video, which would kill bacteria.

Friday, April 10, 2009

"Observe and Report"

A lot of people are upset about the implications of a scene in the new film "Observe and Report," in which a drunken woman played by Anna Faris appears to be unconscious during a scene in which Seth Rogen is having sex with her.

You can see part of the scene in this trailer:

The trailer is probably all the people who are upset about this have seen. To view this as a date rape ignores everything that is going on in "Observe and Report." This is a film about someone who has a grandiose self-perception leading a life that is squalid and pathetic. It's an ugly movie about an ugly person. Jody Hill, the director, compares it to "Taxi Driver" and "The King of Comedy," films in which disturbed protagonists with delusions of grandeur commit sickening acts.

The sexual relationship portrayed isn't Harry and Sally meeting cute; it's a funhouse-mirror distortion of the traditional rom-com coupling. The Anna Faris character is a self-centered, boozy idiot. The Seth Rogen character is a violent, creepy bipolar psycho on a power trip. Obviously, when they get together, it is not going to be the Platonic idea of romantic love. "Observe and Report" isn't that kind of movie.

The joke is that the Sethe Rogen character thinks it is. He thinks he's Prince Charming and she's Sleeping Beauty, when we see that he's really a creepy stalker and she's a trashy idiot. He thinks he's rescuing her, but she's really settling for him because she's afraid to be alone.

When they go out, and she chases pills with shots until she pukes all over herself, he refuses to allow that to alter his idealized view of her, even as the audience is encouraged to be disgusted by the pair of them. The Rogen character also craves approval from his mother, who is a trampy blonde alcoholic, so that adds an extra level of weirdness and discomfort to the whole proceeding.

The suggestion that what transpires between them is a rape doesn't seem to flow organically from the characters; it's interposed by people bringing their own context to the situation, and the people who are most upset about it probably have not seen the movies. There is certainly a grossness at the core of the situation, but in the context presented, it seems pretty clear that she is offering herself sexually, and that he probably would not intentionally force himself on a nonconsenting partner (which would be inconsistent with his approval-seeking and his heroic self-image).

Rather, she's already been the victim of a sex crime; she was assaulted by a flasher in the mall parking lot. As a result, she feels vulnerable, and she concludes that she must protect herself from further victimization by initiating a relationship with the mall security chief, a man she has previously had no interest in. In that context, she's consuming the drugs and alcohol because she has decided to participate in a sex act with the Rogen character, and she doesn't want to do it sober.

The New York Magazine Vulture blog presumes that, because she's severely intoxicated, whatever happens is, therefore, rape. But the Rogen character's designs on the Faris character are completely unambiguous. She isn't getting ambushed while she's unable to resist; she's getting wasted in anticipation of the sex. She may not be enthusiastic about this guy, but that doesn't mean she isn't consenting.

The punchline gag encapsulates the relationship; she is consenting unambiguously, but it nonetheless resembles rape. This is the director's comment on the events leading up to the sex act; the ugliest moment is presented in the ugliest light. We are encouraged to view the characters as uncharitably as possible. It's not apologia, but condemnation.

To construe it otherwise misses the entire point of the film. Unlike typical comedies which encourage the audience to identify with the characters, "Observe and Report" maintains a cold distance. The audience is never supposed to like the Rogen character or share his worldview; his triumphs are revolting rather than cathartic, and his humiliation is mocked rather than shared. The central irony of the movie is the disparity between how the character sees himself and how the audience is encouraged to view him.

Monday, April 6, 2009

The Commercial Virtues of Art

There's an article in the Times today about how Pixar's new movie "Up" isn't generating the commercial buzz Disney wants. Marketers are upset that the protagonist, an old man who chases a dream of exploring South America, is not marketable. There's no female lead who can sell princess gowns. There's no stuffed doll. There's no Burger-King cup.

The fact that "Up" looks like it's going to be a fantastic, original movie doesn't matter much. Further, the article states, the annoying concern of Pixar's talent for making good movies instead of selling toys is making people doubt the value of Disney's expensive acquisition of Pixar, which positioned Pixar creative guru John Lasseter over the entire Disney animation apparatus.

Prior to the Pixar acquisition, Disney was floundering. It had fallen from "Lion King" highs to critical failures and box office mediocrities like "Home on the Range" and Dreamworks-esque disposables like "Chicken Little," which earned a metacritic rating of 48. Since Pixar's John Lasseter took over the Disney animation studio, the company has released "Meet the Robinsons"which earned a metacritic rating of 61 and "Bolt"which got a meta-rating of 67.

A significant improvement in film quality is a big deal for Disney. Better movies make for more beloved properties with more audience goodwill and better sequel potential that live longer on DVD. The 2004 Dreamworks film "Shark Tale" is the quintessential disposable animation product. Big celebrity voices, including Will Smith, Jack Black, Robert DeNiro and Angelina Jolie. it included rapid-fire pop culture gags that were instantly dated. Forgettable characters. It earned a solid box office, and then the thing dropped off the map. It was a weird antique by the time it came out on DVD, like the summer pop hit that's embarrassing by October. At Amazon, the DVD is now discounted to $7.49 and is ranked 1,176 in movies. Pixar's older "A Bug's Life," with almost no stars (top billing to Phyllis Diller and Dave Foley)is outselling the sharks even though it is still priced at a steep $19.99.

The clear lesson is that movies people love are going to have a better shelf-life. Disney has been raiding its own catalog for home video revenue periodically for years; DVD re-releases of "Snow White," "Sleeping Beauty" and "Pinocchio" are still padding the company's bottom line.

The kids who saw "Shark Tale" in 2004 don't want to watch it again. Their parents don't want to show that movie to their younger kids. Nobody is going to tune in for that if it's run on network television. In ten years, when the kids who saw it in theaters are in college, they won't buy a re-issued DVD. They won't show that movie to their kids. It's a dead film.

"Wall-E" which was a source of anxiety because it contained too little chatter and no celebrity voices. It made many critics' ten-best lists, and it is going to be relevant for decades, which means it's going to be a continuing source of revenue for Disney. "Up" may not be as toy-ready as "Wall-E" but people are going to love it, and movies that people love continue to have value. People will buy that DVD. People will watch that on television. People will want to show it to kids who haven't been born yet.

The "Times" also published an article slobbering over the director of "Night at the Museum," and its upcoming sequel. This movie, which got a meta score of 48, is apparently beloved by almost nobody. Amazon has discounted the DVD of this 2007 summer movie to $10.99, and its sales rank is #660 in movies while Ratatouille, that year's Pixar release, is ranked 129th and is still selling for $20.

"Night" earned big box office and a sequel because it featured Ben Stiller and Owen Wilson, popular stars who earns credibility by doing interesting films in between big, broad comedies. Parents knew that the film would be inoffensive for their children, and the museum setting even promised some vague wholesomeness, though the movie was not educational. Levy, the director, thinks he made a film that made everyone laugh. What he made was an inoffensive afternoon-filler that wasn't interesting enough for anyone to hate.

I can understand why studios and investors want more "Night at the Museum" and less "Up." The value of a beloved movie is extended over a longer term, and gets discounted when you convert it into net present value. The value of a blockbuster is recouped instantly in a big opening weekend that isn't strongly dependent on whether the film is any good.

There's also risk on any film project; a star-studded adaptation of the beloved book "The Golden Compass" exploded in the faces of the producers when the movie flopped. If a big film launches successfully, studios want to be sure to capitalize on a sure-fire sequel, which is why it was necessary to return to Ben Stiller's museum.

But there's certainly a lot to say for Pixar's model, which generates consistently stellar critical responses, blockbuster box office and strong DVD sales, even if every film isn't a merch bonanza like "Finding Nemo."

Thursday, April 2, 2009

Anonymous Sources

This is a few days old, but worth bringing to the attention of anyone who might see it.

The New York Times's ombudsman has taken the paper to task for its use of anonymous sources.

This is something every news reader should be aware of; unattributed comments get used so frequently that readers may not even realize that the decision to use one carries serious ethical implications.

If you saw the last season of "The Wire," or you heard about the Times's experience with disgraced reported Jayson Blair, you know that unattributed comments can be used by unscrupulous reporters to fabricate quotes.

And a star-struck David Brooks recently provided us an example of when a speaker's identity can be a major fact withheld from readers for no good reason; not wanting to spoil a friendly chat with a request for attributable quotes, Brooks quoted Barack Obama anonymously.

Hopefully, this column will lead to change in newsrooms elsewhere, although the quality of journalism is probably not the highest concern in the newspaper business right now.

Koh and Sharia

Dahlia Lithwick at "Slate" discusses the recent blog panic over the fact that Yale Law School dean Harold Koh, who will be appointed to an administration position may have said that Sharia law could be applied by a US court in an "appropriate case."

This is a relatively noncontroversial legal idea, and the people pretending it's radical are probably being dishonest. However, it seems likely that Koh's statements about US courts interpreting Sharia law are confusing to people unfamiliar with legal practice.

Law varies from state to state, because states' legislatures and court systems are independent of one another.

The governing law of, for example, New York and New Jersey may result in different outcomes. Of course it goes without saying that the governing law of New York and Argentina might instruct different analyses or reach different results.

When a lawsuit is brought in a court, the law of the place of the suit will generally govern, and the defendants can try to object to that in a number of ways. But parties to a contract can agree that any arising disputes will be governed under a certain set of rules.

Federal and state courts in the United States routinely try litigations arising out of foreign-law contracts, and judges apply the foreign law that is applicable. US contract law is that the intent of the parties should govern, and that, accordingly, such choice-of-law clauses are generally valid.

Application of foreign law to such contract disputes is extremely commonplace and uncontroversial. Similarly, even where there is no choice-of-law clause, courts may voluntarily determine that the facts of a case fairly require the application of foreign law, and apply it. This is one check on a plaintiff's ability to choose the jurisdiction where the lawsuit occurs.

Sharia law would just be another set of rules to apply, and no different than any foreign law. My understanding is that, in Europe where there are much larger and less-integrated Muslim populations, Sharia-governed contracts are quite common. Additionally, there is a push in Europe to make Sharia family courts available so that Muslim women can seek divorce and protection from abuse in a fair forum.

It's not inconsistent with any US law to apply a foreign set of substantive rules on the agreement of the parties. Certainly, neither Koh nor anyone else is suggesting that Sharia criminal courts be established in the US, or that non-Muslims who have not entered into Sharia-governed contracts should have Sharia foisted upon their ordinary state-law disputes.

This is a total non-issue.