Week of November 26, 2009, Issue #736
SNOW ZONE
Owning Warren Miller
Warren Miller Entertainment celebrates sixty with a court battle
Carolyn Nikodym / carolyn@vueweekly.com
For many skiers and riders, the annual Warren Miller film heralds the joys of the upcoming winter. It is what waxes the boards, so to speak, and what gets the blood pumping. It is what causes rampant daydreaming and the promises that "this year, yes this year, I am going to land that jump!"
And for good reason. This year marked the 60th anniversary of Warren Miller films. Despite the many other annual offerings from film companies big and small, this annual movie night in towns and cities around the world has become an institution.
Since Miller himself has not been a part of Warren Miller Entertainment or the films since earlier this decade, however, there have been complaints that WME has really lost touch with the ski community. As seen on threads around the Internet, those complaints have gotten louder over the last few months in the wake of WME's lawsuit with the 10-year old Level 1 Productions.
For its own anniversary, Level 1 Productions hashed out the idea of including Warren Miller, the man, in its film Refresh. With the film, Josh Berman, who heads the company, and his colleagues wanted to highlight the changes skiing has seen over the last half-century. They wanted to bridge the gap between old school and new school, between big mountain riding and rail riding, and they came up with the idea of including Miller in the film.
"Together we all proposed the concept to Warren and sent him a lot of footage and a lot of content and just a lot of information on ... what we wanted to do," Berman explains from his office in Colorado. "After reviewing it, he decided that it was a project that he was interested in participating in."
No sweat, right? Well, according to WME, Warren Miller sold the rights to his name, image, voice and endorsement in 1988, when he sold his filmmaking company, meaning that Warren Miller didn't have the right to appear in another ski film. The company's official blog says that agreement was reaffirmed several times, most recently in 1998.
Last September, after the world premiere of Refresh in Denver, WME filed a copyright infringement complaint against Level 1 Productions for using Warren Miller in its film. The company contends that Level 1 violated the contract between Miller and WME when Level 1 promoted the use of Warren Miller in its film to get bums in seats. The folks at WME feel that they have an obligation to protect its trademark and brand, as it is "the single most valuable asset of WME. If WME does not protect its rights in this case, it risks losing future claims to the trademark—WME's mainstay—and losing the business it has nurtured for more than 20 years."
Since the initial complaint, Warren Miller, the man, has put himself in as a third-party intervenor. His argument is that the lawsuit is a contractual case between himself and WME, not copyright infringement, and that he has the right to fairly use his name, voice and likeness as he chooses. This intervention has put the initial case between WME and Level 1 on hold, pending the outcome of the arbitration between WME and Warren Miller.
The whole idea of being able to copyright a living person's name, likeness and voice is an interesting one, but even WME has scaled back on its own use of these trademarks. The company still uses his name, but his voice has been absent since 2006's Off the Grid, and Warren Miller was not used for Dynasty, its most recent film. While it is true that Miller has not been involved with the company for six years—the 2005 and 2006 films used old recorded narration—Dynasty is publicized as a celebration of the Warren Miller institution, of the last 60 years, including "a rare glimpse at historic clips from Warren Miller Entertainment's vault of vintage footage." In the same press release, Max Bervy, Dynasty's director and producer, says, "It's like a film that gathers the generations under one roof. It's like a family reunion ..."
When asked why Miller was not used for Dynasty, Bervy had this to say in an email:
"We have not used Warren as a narrator of the film for several years. The world of skiing has evolved over the past 20 years and so has our film."
Bervy went on to explain that WME does not use the iconic Miller narration anymore because the company "simply could no longer afford Warren's fee."
It goes without saying that Warren Miller is a legend. He single-handedly created the ski film industry. The official word from WME is the staff all have "tremendous respect and admiration" for Miller, citing him as a pioneer and a visionary.
Initially a fun hobby to showcase skiing to friends and family, his films soon grew to draw thousands of fans, and helped increase the exposure and love of skiing. Warren Miller's films have also inspired legions of filmmakers, just by showing them it could be done.
Berman himself recalls Miller's films as the first ski movies he saw, and he too started out using his films as a showcase for friends and family. Including Miller in Refresh was something of a natural progression, and getting to meet the man was a humbling experience.
In an official statement released at the outset of the lawsuit, Level 1 Productions stated that "It's disappointing that Warren Miller Entertainment would seek to put a stop to something that in all reality should serve to increase the reach and scope of the Warren Miller name, and in turn, the value of their own brand and films."
For WME, the legal battle is a necessity to maintain the integrity of its brand and its responsibilities as owners of an icon, that "preserving that brand is a sacred trust." It should be said that WME is not in this for financial gain, that any settlement would be distributed to ski-related charities, like the Shane McConkey Fund.
The camps are also divided on the effect the lawsuits might have on the thousands of fans that make WME films an annual pilgrimage.
"We are blessed to have a strong fan base and attendance to our film tour screenings in the US has been great," Bervy writes in his email.
"While this has not affected ticket sales, it is disappointing that there is a lot of misinformation that has circulated about the scenario. For everyone that chose not to attend our film this year, we've been fortunate to attract new skiers and riders ... It is a great film and I'm very proud of what our production team has put together. This is the same production team that has produced the film for the past 20 years since Warren sold his business."
Berman sees things a little differently, saying that his take is that the lawsuits are having a tremendous negative impact. He's heard accounts of people boycotting Dynasty, and he has been forwarded in the range of 100 letters that supporters have sent to WME and its sponsors.
"I think the skiing community certainly has our back and I'm still confident that we're going to come out on top at the end of the day," Berman says, "but it's certainly not awesome to have it hanging over our head in the meantime."
Arbitration between Miller and WME is said to begin early in the new year, and if Level 1 Productions ends up in court with WME, it probably won't happen until next fall. The cynical often say that there is no such thing as bad publicity, and regardless of the outcome here, there are a lot more people paying attention. V
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