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The Digital Black Market: How A Festival Used Copyright Laws To Sell The Films It Screened

IndieWire investigates how the Lucerne International Film Festival used Amazon, Vimeo, and copyright laws to get away with selling films by Terrence Malick, Pedro Almodovar, and dozens of indies.

Ethan Steinman shooting "Glacial Balance"

“Glacial Balance” director and whistle blower Ethan Steinman

As for Steinman, he learned from Amazon that his film was uploaded and being sold by someone using the same email address that he used to communicate with LiFF and Baechler.

Baechler provided IndieWire with the sign-up document for the aggregation service; we shared it with five LiFF competition filmmakers who have accused Baechler of selling their films without permission. Four filmmakers said they’d never seen the form, nor had they received any royalties from LiFF, Jeridoo, Baechler, or any entity associated with the festival. A fifth said he “ignored” it when he saw the services promoted at the bottom of a LiFF form letter (see below).

Promotion of LiFF’s aggregator services

Baechler’s description of the festival agreement, and the mechanics of its distribution and electronic signature, have varied. While Baechler claimed that his rights to sell the films stemmed from the festival agreement’s fine print, signing up for his aggregation service requires the buyer to click buttons with clearly marked prices and adding the items to an electronic cart for checkout.

At one point, Baechler told IndieWire the confusion stemmed from a small box filmmakers failed to electronically uncheck on their festival agreement. At another point, he said obtained a filmmakers’ agreements to sales rights through a form sent via Withoutabox, an online service that festivals use to manage submissions and fees.

However, trying to obtain a copy of this mysterious agreement has been a challenge. IndieWire spoke with three LIFF alumnists who forwarded every email they received from WAB, LIFF, and Baechler; none contained language regarding permission to sell their films beyond the smartTV aggregation services.

When asked about Baechler and LiFF, Withoutabox issued this statement:

Withoutabox requires the terms and conditions entered by a festival to only pertain to the screening of a film during the festival event. Any agreements pertaining to VOD or any other type of distribution would be made directly between a filmmaker and a film festival and would require the filmmaker to approve this usage with the film festival directly. Withoutabox would not facilitate these types of agreements through the Withoutabox system.

Baechler told IndieWire he would supply a copy or screenshot of the festival agreement, but he only shared the LiFF smart TV sign up sheet and the LiFF Showcase acceptance letter. There’s no mention of films being made available for sale, only that they “will be displayed electronically until the next festival.”

When IndieWire continued to press, Baechler provided a video showing he could no longer access older messages in his WAB account. Finally, he accused IndieWire of being on a witch hunt and, due to legal actions, he couldn’t supply further documentation.

Austin Vitt, director of content production and creative development at Music Box Films, said the idea that a festival could obtain rights so casually is inconceivable.

“When we negotiate for one of our films playing at a festival, it is real negotiation over details,” said Vitt. Music Box served as North American distributor of Anthony Powell’s “Antarctica: A Year on Ice” when it played LiFF in 2014, and was surprised to find a DVD of the film for sale on CreateSpace, an Amazon-owned company. He discovered the sale only because Baechler promoted it on his Facebook page.

Guido Baechler Promoting the sale of "Antartica: A Year On Ice" on his Facebook page

Guido Baechler promoting the sale of “Antartica: A Year On Ice” on his Facebook page

screenshot

Said Vitt, “It’s incredibly unlikely someone, especially an independent filmmaker like Anthony who put so much energy into making his film, would ever casually give away those sacred rights unless it is something that is going to benefit the film with exposure or generate revenue.”

Accusations of theft against Baechler extend well beyond films that played his small film festival.

In an interview, Baechler told IndieWire that Jeridoo has rights to more than 3,500 titles, including foreign rights to works by Malick and Almodovar. Jeridoo was even listed as a distributor on the IMDB pages of the “The Tree of Life” and “The Skin I Live In.”

READ MORE: IMDb Introduces ‘F for Female’ Rating to Represent Women in Film

However, according to Lionsgate International and Sony, respectively, Jeridoo does not have permission to sell either film. A Lionsgate representative pointed out that it’s easy to add a credit to a film’s IMDB page, but the studio would take action to have Jeridoo’s name removed.

After IndieWire contacted Vimeo’s Trust & Safety team in October 2016, and Vimeo received a number of takedown notices from filmmakers who discovered that LiFF was selling their film, Vimeo closed all sites owned by Baechler.

Vimeo general counsel Michael Cheah said that doesn’t mean the company found suspicious activity on every site — but added that if Baechler submitted a counternotice, Vimeo would not honor it.

“I have not seen this type of activity on the on-demand store,” said Cheah. “It’s really beyond any other case that I’ve dealt with, which is why we took this stance.”

Pedro Almodovar's "The Skin I Live In" being sold by Jeridoo TV on Vimeo

Pedro Almodovar’s “The Skin I Live In” being sold by Jeridoo TV on Vimeo

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Baechler called the suspensions unfair. “One filmmaker went on a rampage and convinced one of the platforms to suspend temporarily several accounts, even though these accounts are owned by individual companies,” he said, adding that he is in the process of taking legal action against what he called the “troll.”

It wasn’t a troll, but Sony Pictures Classics’ takedown notice for the Almodovar film that resulted in automatically closing the first of six Baechler-owned Vimeo stores. However, Baechler’s instincts that one filmmaker’s actions led others to issue takedown notices, as well as IndieWire’s investigation, were correct.

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