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Scott Macauley kindly responded to my query over on the Filmmaker blog about Chris Moukarbel, raising some good points. I thought I'd post my response here, but visit Filmmaker for Scott's post & response.

Hi Scott - thanks for responding. I think that this is a vital story for the indie world to pay attention to and think about.

It's unfortunate that we can't view the work in question, because from what you're saying he can make a legitimate claim to appropriation. And I do think that the fan-fiction discussion adds an interesting dimension - it's a huge part of fan's enjoyment of entertainment, particularly in the world of fantasy and sci-fi. In fact, fans are often encouraged to interact with films, TV shows, and books in this way.

However, I'd feel more comfortable defending that appropriation if it was based on the film, and not on the screenplay. I just think that there is a qualitative difference between a screenplay and a finished film. A screenplay isn't really a work of art in and of itself - it's more like a business plan. And procuring and executing someone else's business plan is wrong, and it's hard for me to see how it's also not wrong to do that with a screenplay. It's not Stone's work that's being appropriated, because the film hasn't been released yet - it's the screenwriter's, and that just doesn't sit right with me.

Or, to put it another way - the artist took something that was not yet public. Once a work is out there in the world, I absolutely defend the right of artists to interact with the work, appropriate it, use it, comment on it - I am a staunch defender of a liberal definition of fair-use, especially w/r/t to documentaries and video art. But in this case, he's taken something that has not yet entered public discourse. The right of artists - no matter how well funded - to control the release of their work has to be defended.

Unfortunately, we don't have the luxury of just dealing with the artistic/philosophical issues here. Moukarbel's intent might have been right, but the legal precedent that would be established if he wins in a court of law would actually be a loss for filmmakers, particularly independent filmmakers, documentarians, and video artists.

I'm itching for a fight on this one. Any takers?