Indie Game‘s story began on the web, thanks to Kickstarter funding, and covers a topic near and dear to the Internet’s heart: the rise of the independent video game designer.

So while, according to co-director James Swirsky via email, the theatrical release and an earlier sold outscreening tour were profitable ways of building word-of-mouth about the film, making the film available online was extremely important to him and co-director Lisanne Pajot, as “that is where our audience is.”

“We wanted to get this film into the hands of those people who want to see it the most as quickly as reasonably possible,” he added. “Which is the main motivation behind the very tight release windows we’re working within.”

Indie Game‘s digital release will come through three platforms — one expected, two unconventional. The film, like many independent films before it, will be available on iTunes, but it’ll also be released by VHX as a direct DRM-free download — the second-ever project to be distributed by VHX, following their release of Aziz Ansari’s comedy special last April.

The story of how Indie Game ended up working with VHX couldn’t be more webby. Via the film’s extremely active Twitter account, the filmmakers mentioned they were looking for a distribution platform — instantly, Andy Baio (@waxpancake) connected the two:

Check the date stamp on that tweet — it’s less than two weeks ago. Only nine days after making contact, Indie Game‘s deal with VHX was solidified. “A new record for us, and a trend we hope will continue,” VHX co-founder Jamie Wilkinson said via email.

There’s no exact date yet on when the VHX for Artists platform will be officially open for all, according to co-founder Casey Pugh, but “it will be soon,” he promised.

In addition to iTunes and VHX, Indie Game will also be distributed through Steam, Valve’s video game distribution platform. That’s right, a gaming platform. According to Swirsky, with the exception of a zombie film created by Valve employees several years ago, Indie Game is the first film to ever receive major release through the popular service.

However, the decision to work with Steam made sense for Swirsky and Pajot, because of the film’s deep connections with the independent gaming community. “From a pure distribution standpoint, we can not get any closer to our core audience that being listed side by side with the games that are featured in the film,” Swirsky said. “If you like and bought Super Meat Boy, Braid, World of Goo, etc, there’s a good chance you might be interested in the backstory behind those games, and games like them. Steam brings us to the core of our most relevant audience in a very unique way. It’s kind of amazing.”

Across platforms, the cost will be $10, though those pre-ordering on Steam can purchase it for $8.99. According to Swirsky, “When it comes to sales and knowing their consumer base, Steam is second to none. They know their stuff. They know how to effective launch, maintain and promote the products within their system. When they suggested debuting with a pre-order pricing incentive, it made a lot of sense to us.”

To Swirsky and Pajot, each platform has its unique advantages. Steam, as previously mentioned, delivers the film to the most passionate portion of its fanbase. With iTunes, he says, it’s “a juggernaut. We always wanted this film to be there. They bring an audience and ease of purchase/viewing that we could only dream of with this film.”

And working with VHX, Swirsky says, “allows us to continue the direct conversation with our audience that we’ve been having since Day 1. It’s all on our site, it’s all under our control, it’s as personal as delivering the final film to the end audience as we can get digitally. VHX is doing some really exciting things. We’re really proud to be a part of it all.”

“It’s truly a great film. It also perfectly aligns with our beliefs on the future of film,” Pugh said. “Crowd-funded on Kickstarter and self-released on VHX. This is where the film, video and television business is going and it’s only the tip of the iceberg.”

Between the three platforms, Swirsky and Pajot are hopeful to not only make up the actual production budget of the film, but also compensate themselves for the two years they spent making the film. “The film is very much on track to make back its budget. But that’s a budget that doesn’t include paying ourselves for the past two years. If we go by that budget, we still have a little ways to go. But it should be worth it,” Swirsky said.

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• Fred Wilson, Union Square Ventures:  ”The patents that Yahoo! is suing Facebook over are a crock of sh*t. None of them represent unique and new ideas at the time of the filing.”
• Brad Feld, Foundry Group: “It’s time for the entire industry to recognize that we are quickly shifting from a cold war (patents are deterrents) to a nuclear war that – like the one in War Games - the only winning move is not to play.”
• Andy Baio, Upcoming.org, a company acquired by Yahoo: “Yahoo tried and failed, over and over again, to build a social network that people would love and use. Unable to innovate, Yahoo is falling back to the last resort of a desperate, dying company: litigation as a business model.”

Of course, there have been many more virulent and downright dumb reactions. Maybe you have read some of them by now. The industry wide indignation and condemnation of Yahoo has been quite amazing to watch, prompting me to make a few phone calls. During the course of the day, I learnt that Facebook is going to fight Yahoo tooth-and-nail.

However, what I have not been able to figure out why Yahoo has taken this drastic action, one that is leaving it bruised and battered in the court of public opinion, at least in Silicon Valley. The decision to sue Facebook has not had any perceptible impact on the Yahoo stock price. I have read many explanations — Yahoo is an incumbent, it is dying, it doesn’t innovate, it has done this before, it is a bunch of losers with no strategies. (Actually any one of my past posts could be summarized as such.)

However, being a natural born skeptic, I feel there is more than meets the eye to the whole Facebook-Yahoo scrum, for suing Facebook is a pretty drastic step for Yahoo.

Facebook Disconnect

Why? Because, today, it is pretty beholden to Facebook, thanks to a dumb agreement the company entered in 2009. Just to refresh your memory, on December 2nd, 2009, Yahoo announced that it would integrate Facebook Connect into all its products. Here is what I wrote then:

It’s clear that web identity is becoming a two-horse race: Google vs. Facebook. Back in the 1990s, Yahoo chose Google as its search provider and helped turn them into a major competitor and ultimately their nemesis. This deal is of similar importance, as it gives Facebook Connect a big boost. Yahoo, despite its claims, is going to become less relevant in the web identity sweepstakes. It is part of the company’s growing de-emphasis of its technological chops. They are giving away search to Microsoft and it seems they are happy to take a backseat in identity sweepstakes. I think the company in its desire to become a media-web destination is becoming technologically irrelevant.

AddressBook

Here is what Yahoo said in a press release and that pretty much says it all:

Yahoo!’s Facebook Connect integration will give consumers richer experiences on Yahoo!, including in Yahoo! Mail and on properties like Yahoo! News, Yahoo! Sports, and Yahoo! Finance. It will enable them to connect with Facebook friends on Yahoo!, view a feed of their friends’ related activity on Yahoo!, and share content–such as photos from Flickr or comments on news stories–with all of their friends on Facebook. The content that consumers share with Facebook friends will then create a loop that drives visitors back to Yahoo!.

Yup! Thanks to its then feckless and incompetent management (and the then technologically irrelevant board that made even bricks look smart), Yahoo gave Facebook access to the address books of its 600 million odd users.

Facebook, being smart enough to use that data, ramped up its own numbers from 350 million users into nearly a billion users. (Random tidbit: Facebook in February 2010 bought Octazen, a Malaysian contact importer firm and then shut it down and in doing so essentially eliminated any and all competition. In order to tap into address books, rivals would have had to build their own importers, no small feat in itself.)

Yahoo CEO Scott Thompson

Some technology industry insiders believe that Facebook was pillaging Yahoo’s email address books for a long time before the two companies signed the 2009 agreement. In fact, Facebook had been doing such a good job that at one point Yahoo blocked Facebook and started to scrape Facebook as well. This prompted Facebook’s attorneys to get in Yahoo’s face. Of course, Yahoo backed down. The two companies eventually signed the 2009 agreement that  only accelerated Facebook taking more control over the Yahoo user base.

In other words, there is and has been a whole lot of simmering animosity between the two companies. My theory is that for the first time in a long while Yahoo has management that is willing to mess with Facebook. Whether that is a good or bad move, it is open to debate – natch, a shouting match.

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Wired founding editor and author Kevin Kelly notes that these are 12 new types of media forms that have become part of our collective consciousness — including what he calls supercuts, which represent “a video montage cut and sequenced from existing movies and TV and commercials” and “creates a rapid-fire medley of shots representing a theme of some sort.”

Supercuts as a meme is the brainchild of Andy Baio, one of my favorite digital anthropologists. Baio — who helped create Kickstarter and Upcoming, and now works for Expert Labs — has been famous for his curated blog Waxy Links. He has now started Supercuts.org and is curating some of the best video mashups out there. Ironically, I have been linking to these kinds of videos from my personal blog, but never had a way to describe them — but now I do.

Kelly’s list needs one more addition though — “Instagrams.” I think the idea of broadcasting stylized, curated moments of our lives are part of the “broadcast yourself” movement we all seem to be part of, and what I’ve called the “alive web.”

Here’s Kelly’s list:

• The 18 minute PowerPoint presentation (a la TED)
• LOL Cats
• 100-Plus-Hour Serial Dramas (Lost, the Wire, Sopranos)
• 1-page Blog Post
• Fan-Fic Novels
• Remixed Movie Trailers
• 40-Hour Video Game
• Bad Lipsyncs
• 3 Minute Funny Clips (You Tube)
• 140-Character Tweets
• A Book of Tweets
• Video Supercuts

Post and thumbnail photos courtesy of Flickr user Ed Kohler

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All around us, the web is enabling an explosion of “remix culture,” in which bits and pieces of text, images and video are cut and spliced to create new forms of art. Whatever you think of the specific outcomes of this process, it’s arguably a huge social benefit — and the principle of “fair use” is supposed to make that easier to enable. But as Kickstarter co-founder Andy Baio discovered when he put together an art project, “fair use” only applies if you can afford to fight for your idea in court — and if you can’t, you will fail. What does that mean for the future of the remixable web?

Baio, who is also a prominent blogger at Waxy.org, described in a long post on Thursday how he decided to put together a musical tribute to the jazz musician Miles Davis, by creating eight-bit — i.e., ringtone-level quality — versions of the famous album Kind of Blue. Baio carefully cleared all the licenses for the songs themselves, and even decided to donate the proceeds from the sales of his project (which was released last year) to the musicians who played on the album.

However, Baio didn’t get approval for the cover image, which was a pixellated version of the original photo of Davis, taken by the famous photographer Jay Maisel. After releasing his project — called Kind of Bloop — Baio got a legal claim from Maisel’s lawyers, who said his image represented copyright infringement. Despite Baio’s belief that the pixellated version of the image represented fair use, the blogger says he couldn’t afford to fight the lawsuit in court, and ultimately settled by paying Maisel $32,500.

[T]his is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

As Baio’s blog post circulated around the blogosphere and on Twitter, it sparked a firestorm of criticism aimed at Maisel (which Baio tried to help snuff out). Eventually, that storm — which focused in part on the fact that the photographer lives in a 72-room New York landmark valued at $35 million — spilled over onto Maisel’s Facebook page, where hundreds of comments piled up accusing him of targeting a poor blogger. Part-way through the day on Thursday, the page was removed.

The fact that Jay Maisel is a famous and wealthy photographer (he actually bought the New York building in 1966 for $102,000) and Baio is just a blogger who helps run a startup shouldn’t have any bearing on whether what Baio did qualifies as fair use or not — but it does, because the only way to defend against such a claim is to go to court, since the burden of proof for fair use is on the defendant. And going to court is expensive.

It doesn’t help that the fair-use principle is complicated. There is no blanket “this is art” or even “this is a parody” exemption. Instead, the courts look at four factors — including the nature of the work (i.e., whether it is “transformative”) and whether it affects the ability of the creator to sell or license the original. Based on some of what Judge Pierre Leval has written about fair use, I — and plenty of others — think it’s pretty clear that Baio’s use was transformative. It altered the image both literally and figuratively for artistic purposes, and is unlikely to affect Maisel’s ability to license the original. As Baio put it:

Far from being a copy, the cover art comments on it and uses the photo in new ways to send a new message. This kind of transformation is the foundation of fair use.

But in the end, as Baio notes, none of that matters because he couldn’t afford to fight the case. Over the past decade or so there have likely been thousands or tens of thousands of similar cases — not to mention some in which home movies were removed from YouTube because copyrighted music was playing in the background — because no one wanted to (or could afford) to fight the case. And the result is that large entertainment and media entities get to dictate what is fair use and what isn’t.

This has a real impact on our society, as copyright-reform advocate Larry Lessig has said and written a number of times in his comments about the value of “remix culture,” including his 2008 book Remix. Digital content is so fluid that remixes and mashups of popular culture and mainstream content of all kinds have become a kind of second language, particularly for web-savvy young people.

My teenaged daughters, for example, experience almost every major news event via a video mashup of some kind — usually because someone makes a parody, as they did with the “Bed Intruder” and even the death of Osama bin Laden. This has become an integral part of how they experience media and content, and almost all of it is probably copyright infringement of some kind. Do we ultimately gain by stamping out that kind of thing with expensive lawsuits, or do we lose? I think it’s clearly the latter.

Post and thumbnail photos courtesy of Flickr user Dawn Endico and Andy Baio

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