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Substantially Similar--A Blog on IP Issues, Writing and Film

Memories of Summer Jobs, Internships and Hot Dogs on the Curb

by John Aquino on 07/16/18

A July 10 Washington Post on how the cheap eats that summer interns to Washington, D.C. used to find are long gone caused me to think of my own experience, as both an employee and as a publisher who employed summer interns.

The article describes how interns used to flock to restaurants such as Rumors, the Mambo Room, Millie's & Al's, and My Brother's Place where, from the regular menu or specials, they could find a $1 taco and wash it down with a $3 beer. But now the city is the home for the $14 martini, a $9 beer, and a $22 plate of pasta. The article states that the University of Pennsylvania advises students who have accepted unpaid internships to bring along at least $4,000 for room, meals, and incidentals during their eight-week stay in the city.

I am a native Washingtonian and was never a summer intern. I couldn't come to the city because I was already here. And for another thing, we had no congressional representative where I could intern. But I did have a number of small-paying summer jobs: I was a camp counselor whose location alternated between the city and Nanjemoy, Maryland; a laborer at the Post Office where I helped punch holes in mail bags; and a mail room clerk at the Army Times when that publishing operation was located in Foggy Bottom where the Nigerian Embassy is now.

At the last one, I remember we used to bring cheese sandwiches from home for lunch, but on Friday, which was payday, we would go to Blackie's House of Beef, which was nearby and is also long gone, order hamburgers from takeout, and eat them in the park at Washington Circle. The Sabrets hot dog carts had migrated from New York where you could get a  half smoke, chips, and a soft drink for $1.50. I remember sitting on the curb eating a hot dog while convincing myself that the D.C. Department of Health just had to be on top of the hot dog vendor situation.

Two decades later, I was publisher of an enterprise that offered summer editorial internships, and they were paid internships. The program had initially been funded by the widow of giant in that particular industry. She remarried, the funding stopped, and I convinced my superviors to pay for the program out of the operating budget. During my 10-years in the position, we had as many as three interns per summer. We offered $2,500 each as a lump sum, which, allowing for inflation, was probably close to the $4,000 the University of Pennsylvania suggests would cover costs today. It was assumed that the intern would pay for housing out of that sum, but we also provided contacts at local universities where the students could obtain a university room at a reasonable off-season price. My very capable managing and associate editors did the initial screening of applications, and together we picked finalists. The program provided additional editorial coverage when writers took summer vacation time, and the interns came away from it with several articles from a national trade publication for their portfolios.

I was and am proud of that program. I know that at least some of our interns went on to successful editorial careers. But I remember one summer we offered two internships, the finalists accepted, and then two days before he was due to report one of them called to say that he wasn't coming after all. I phoned him back, and I said we had notified all of the other applicants the positions were filled. He had accepted the internship and had an obligation to us. He said he disagreed and hung up. I got so angry that I wrote his dean and told him what a student of his had done. The odd thing was that I received a letter from the student's faculty advisor who indicated she had advised him to ultimately turn the internship down if he found something better. And it was out fault, she wrote, because we hadn't provided the stipend PLUS the cost of housing, noting how expensive housing was in Washington.

I wrote her back and indicated that we had found sources of lower-cost housing, but, more importantly, here we were trying to do something good and we had a faculty member undermining us. I wrote her that there were internships in the city that offered no stipend at all, just the opportunity to work at a publication for the summer and earn clips. And that is the case today. We only had one intern that summer.

And now, according to the Post, interns are lucky to find $22 plates of pasta and an $8 beer.

Copyright 2018 by John T. Aquino

Medical Breakthroughs: Worth a Major Motion Picture?

by John Aquino on 07/11/18

I have long felt that medical breakthroughs that have occurred over the past two decades--such as the mapping of the human genome that has led to better understanding of and treatment of diseases or how medical research stopped AIDS from being a death sentence--would be good sources for movies.  

But that hasn’t been happening. The problem has been that in the 1930s and 1940s the scientist/medical researcher was a movie hero, But post-World War II he/she has been a movie villain. A major film was released a few years ago with a medical research premise, but one particular thing about it appeared to harm attendance. I pitched my editor in a previous position on the topic of medical research in the movies, but that didn't happen either.

Maybe such films are on somebody's development list. If not, perhaps a flmmaker or someone with money to fund films will consider this type of movie. The stories described above and others actually happened, and millions are already experiencing their effects.

A few years ago, I interviewed the head of the Biotechnology Innovation Organization, and he told me he had been trying to interest filmmakers in medical research stories. He said younger people he had talked to had been excited about crime scene investigation television series, and he didn’t understand why they wouldn’t be interested in stories of curing diseases and helping people live longer.

Hollywood studios used to make movies about such things. The Story of Louis Pasteur (Warners, 1936) was based on the life of the French microbiologist known for his discoveries of the principles of vaccination, instrument sterilization,microbial fermentation, and pasteurization. It won Academy Awards for best actor (Paul Muni) and best story and screenplay. The 1938 M-G-M film Yellow Jack was based on the "Walter Reed Boards" of 1898 to 1900 in which Major Walter Reed of the U.S. Army worked to diagnose and treat human fever in Cuba by performing tests on volunteers. Other films followed, including Dr. Ehrich's Magic Bullet (Warners 1940), which traced a German doctor's discovery of a cure for syphilis, and The Great Moment (Paramount 1944), which described the discovery of ether as a general discovery of ether as a general anesthesia.  

These movies were part of a series of historical films portraying inventors like Thomas Edison and Alexander Graham Bell and scientists like Madame Curie as creative heroes striving to better human life.  Concurrently, there was a series of science fiction/horror films about men and women who were also trying to find cures for cancer, to expand the life span, and even bring back the dead. But these scientists went too far, committed crimes, went mad, and were destroyed. The 1936 Universal film The Invisible Ray contains a line that ultimately became a trope for these movies: “There are some secrets we are not meant to probe.”  

Films about medical science took a back seat in the early 1940s to movies meant to boost optimism about the war effort. After the war, filmmakers’ view took a darker turn that mirrored the mood of the many who had lost loved ones in the conflict and those who had seen the horrors of war that ended with death camps and the detonations of two atomic bombs. Not only were there film noirs about criminal behavior but movies that mirrored the mad scientist films of the 1930s. Japanese filmmakers envisioned that the atomic bombs that hit Japan as having unintentionally engendered the gigantic monster Godzilla. American filmmakers responded with Them! (Warners 1954), which involved giant radiated ants and Tarantula (Universal 1955) in which a scientist’s experiments to produce a super-nutrient to enlarge the food stock went wildly astray.

There was a sense that science had indeed gone too far, that it was out of control, and that it was no longer our savior. The 1956 20th Century Fox film Bigger Than Life told a story inspired by a true incident of a seriously ill schoolteacher’s dependence on the “miracle” drug cortisone that drives him mad. Mayo Clinic researchers had won the Noble Prize for Medicine in 1950 for the development of cortisone for the treatment of severe pain. If the film had been made in the 1930s as an A-movie, the researchers would have been portrayed as heroes. Instead, Bigger than Life focused on the drug’s side effects.

A logical extension of this trend was fueled by the growth of biopharmaceutical companies as really big businesses and accusations of actions such as the suppression of negative clinical results of experimental drugs because they would keep the drugs off the market and harm the company’s bottom line. The Constant Gardener (2005), based on the novel by John Le Carre, told the fictional story of a man who learns that his wife was murdered for trying to release negative clinical trial results. The film won the best actress Academy Award (Rachel Weisz). In a related vein, there have been several fact-derived movies—Lorenzo’s Oil (Universal 1992) and Extraordinary Measures (CBS Films 2010) --in which parents go off on their own to find treatments or cures for their children’s diseases because biopharma companies won’t or can’t.

During the last 10 years, filmmakers finally made two positive fact-derived medical research movies. One, Living Proof (2008), was made for the cable tv network Lifetime and was based on the heroic 10-year efforts of Dr. Dennis Slamon to get the Food and Drug Administration to approve the breast cancer drug Herceptin, which, in combination with chemotherapy, increased survival rates. The movie accurately depicted the long process of drug approval and related the stories of three patients.  But the movie’s viewership of 2.8 million was a quarter of that of even a mediocre movie, which would itself then be shown on cable.

The second, Concussion (Universal 2015) was released to theatres and looked like it had everything going for it. It combined football and medical research and was based on the successful efforts of Dr. Bennet Omalu, a forensic pathologist who fought against the National Football League allegedly trying to suppress his research that indicated professional football players were suffering from chronic traumatic encephalopathy (CTE) brain degeneration. The medical researcher is the hero. It’s an earnest if slow-moving and overlong film. But it tanked at the box office. It cost $35 million to produce and reportedly an equal amount to market and earned $48 million worldwide despite extensive promotion due to the timeliness of its topic. The conclusion of some was that football fans just didn’t want to see a movie that depicts the tackling and slamming they love as harmful. It was perhaps the right approach for the wrong topic. This effect is reminiscent of the failure of the 1976 film Two-Minute Warning about a sniper’s plan to kill people at random while they are watching the Super Bowl, which turned out to be a nightmare that football fans didn’t want to pay to see.

The medical scientist as hero approach may have worked in the 1930s because it was in keeping with the nation’s optimism as it emerged from the Great Depression. The films were also telling the broadest stories of medical innovation—vaccination, yellow fever, syphilis—that were easily understood, the low-hanging fruit so to speak. Stories about finding the appropriate chemical formulation are likely to encounter the same problem as movies about songwriters and novelists—they are basically about the highly undramatic process of people thinking. 

But saying that is like deciding not to make a movie about the sinking of the Titanic because everyone knows how it ends. There are obstacles that filmmakers need to surmount. But the stories are important and need to be told if filmmakers can figure out how to tell them. Drugs that failed to cure a cancer have been repurposed to cure other illnesses. Genomic mapping has enabled the discovery of new treatments for some cancers, diabetes and obesity as well as a better understanding of how and why a disease strikes. Isn't that as exciting as crime scene investigations? 

Copyright 2018 by John T. Aquino

Perry Mason: Nothing Wrong with Inspiration

by John Aquino on 07/11/18

Perry Mason, the noble, nigh-powered but fictional attorney, has been ridiculed by real-life lawyers since the television series based on Erle Stanley Gardner’s novels premiered in 1957. And yet, 60 years later, the 271 episodes can be seen as often as four times a day in some markets, like in the Washington, D.C. area where I live.

Over the past four years, my telecommuting work situation has allowed me to see most, if not all, of these episodes. Those scoffing attorneys were right, in a way. There are unrealistic aspects to Perry Mason. Each episode ends with Mason either getting a confession on the stand from the real murderer or unmasking the guilty party out of court. 

I remember when the show was first broadcast a noted attorney was asked in a tv interview what he thought about it. “During voir dire [the attorneys’ in-court screening of prospective jurors], I’ll ask if the individual thinks the defendants committed the crime, and he’ll say, ‘If he didn’t do it, who did?’ And I’ll say, ‘That’s not my job. My job is to establish that the prosecution hasn’t proved guilt beyond a reasonable doubt.’” Real criminal trials may end with the defendant found not guilty and no indication that someone else was guilty—look at the 1994 acquittal of O.J. Simpson of the murder of his wife. The usual complaint of the show from practicing attorneys was that it portrayed an attorney as part private eye. In real life, if an attorney behaved like Mason he would have been so involved in the investigation that he would always be called as a witness—and in the show Mason sometimes is. Police officers complained that in the show the police always arrested an innocent person.

There are other major variances in the show from actual legal procedure. And yet, when Raymond Burr, the actor who played Perry Mason, died in 1993, the president of the American Bar Association paid tribute to his portrayal of Mason as a strong advocate of defendants who are facing insurmountable odds in establishing their innocence. Other tributes noted that the show reinforced the presumption of innocence for the viewing audience. Gardner’s character reestablished the attorney-as-hero approach that Mark Twain put forward in his 1884 novel Pudden’head Wilson. As a result of Perry Mason, tv audiences became more familiar with the idea of the judicial process and found more respect for defense attorneys. And, for his part, Burr pushed the makers of the show for as much authenticity as a 60-minute dramatization would allow and was a regular speaker at ABA and other legal association meetings. A good many famous attorneys, including Supreme Court Justice Sonia Sotomayor, have gone on record saying that Perry Mason was the spark igniting their interest in the law.

The show also evolved over its nine-year run. In the first season, Mason was very involved in the detective work, wore loud jackets, flirted with women, played fast and loose with the truth before the court, was frequently threatened with disbarment, and had a wisecracking personality. In one instance,the prosecutor, Hamilton Burger, congratulates him for winning the case and apologizes for things, he said during trial. Mason invites him for lunch and then tells the waitress Burger will have a heaping helping of crow. Over the years and as Burr aged and gained weight, Mason became more of a quoter of statues and precedents from memory, a strong upholder of the law and is shown as a speaker at bar associations meetings that Burr became. Early shows have Mason and Burger arguing before a jury, but later shows, mostly, have them arguing before a judge in a preliminary hearing, with Mason presenting a more elaborate defense than most real-life attorneys could in a preliminary hearing. As the show’s run continued and it became a staple of the CBS lineup, its budget was increased and later show had more location shooting and some fairly sophisticated cinematography. But, in another unrealistic aspect, Mason ended as it began, with Mason working alone—he didn’t have other attorneys on his staff (except for one young lawyer for a few episodes), just a private detective on retainer and one confidential secretary.

As a whole, the Perry Mason episodes are compact, well-engineered mysteries that are solved in the courtroom. As a mystery writer, I am occasionally asked if I can figure out who the murder is. The answer is sometimes. Some of the epidoes, like the 1963 "The Case of the Deadly Verdict," a rare episode in which Mason loses the case but solves the murder out of court in a spooky, dark mansion, are really remarkable. Others, like in "The Case of the Missing Third Act" from 1959, while well acted and intriguing, have plots in which the murderer could be anybody, with motives quickly supplied at the end without foundation.  The writers, after all, were writing 30 episodes a year and sometimes fudged. That's why it's only sometimes.

The attorney-as-hero approach continued in later lawyer shows. Matlock, which ran from 1986 to 1994, followed the Mason format except that his cases went to jury trial and, while he exposed the real murderer on the stand, the jury still entered a verdict rather than, as in Mason, with the prosecution immediately withdrawing the charges after the in-court confession. Other lawyer shows, such as Law and Order, L.A. Law, and The Good Wife, have been called more realistic in that the attorney heroes sometimes lose their cases and defendants are sometimes guilty. These shows may adhere more strictly to legal procedure, but all of them have a preference for plotting that is provocatively fantastic. The last two may be called unrealistic for their non-trial scenes, unless attorneys having sex with clients or paralegals on the conference room table is common behavior in law firms.

Most post-Mason lawyer shows are not mysteries. You may ask, what is wrong with that? Nothing, really. Law and Order is a superior television show that has been on the air longer than Perry Mason. It is not strictly a lawyer show, being focusing first on police detectives and then on prosecutors. Sometimes the criminal goes free. Perry Mason fits the traditional mold of episodic television in that there is a resolution within the 60 minutes and that resolution is a satisfactory one--the guilty are punished. 

Perry Mason is not so much unrealistic as idealistic. Except for three episodes, Perry Mason always wins. When a woman asked Burr how that could be so, he answered that she only saw the cases he tried on Sunday nights. When asked why Burger always lost, the actor William Talman, who bravely played Burger for 225 of the 271 shows, said, "Burger doesn't lose. How can a district attorney lose when he fails to convict an innocent person?" It's a formulaic show, to be sure. But its longevity and the effect even the ABA said it had and still has on the image of attorneys is not to be ridiculed.

At one point, Mason says, "[An attorney] takes his clients as they come. They're in trouble, so he can't always expect them to tell the truth. [He's] a fool if he completely trusts any client, but that's besides the point. His job is to believe and to help them as best he can. The only time he's really a fool is when he sticks by a client who won't trust him." Still inspirational advice.

Copyright 2018 by John T. Aquino

Filmmakers Embrace "Creative License" in Films Based on Fact

by John Aquino on 07/05/18

I've written a book (Truth and Lives on Film: Legal Issues in Depicting Real Persons and Events in a Fictional Medium) and articles about films based on fact. There are legal issues involved, such as defamation, false light invasion of privacy, and violation of the right of publicity. Then there are larger issues, such as misleading audiences about historical events.

A British court in 1933 found in favor of the plainfiff who claimed defamation from the U.S. film Rasputin and the Empress, which was released the year before. One of the justices wrote that, if the filmmakers had made it clear that the film was largely ficitious through some kind of disclaimer, then he might have ruled differently. Taking the hint, U.S. films began to carry disclaimers that generally stated that the character and events in the film were fictitious and any resemblance between living persons and actual events was unintentional or coincidental or accidental. A general counsel for a major studio told me that the disclaimer was really meant for fictitious films and for situations where a bald, fat, and boorish man that one of the screenwriter knows wants to sue, claiming that the bald, fact, and boorish boss in the movie is based on him. However, the disclaimer was the result of an historical film and was used for 20 or so years, even for films about historical characters, like They Died with Their Boots On (1940) about General Custer, which did indeed fictionalize most of Custer's story. A disclaimer's main purpose is to establish lack of intent to defame. But, as more and more films have actively promoted that they are "based on a true story," such a traditional disclaimer has been in conflict with that promotion. Consequently, the disclaimers have been modified to claim that, although the film is based on fact, some of the characters and events are ficitious and any resemblances between living persons and events is unintentional or accidential or coincidental.

However, an historical film that I saw, ironically and intentionally, on the 4th of July, drastically modified the disclaimer. The Conspirator was made eight years ago, but it had a limited U.S. release and just started to appear on cable. It is based on a very exciting true story--the trial and executon of Mary Surratt for complicity in the assassination of President Lincoln on April 14, 1865. (I remember my Dad pointing out the building, which is still standing, at 541 H Street in Washington, D.C. that was Surratt's bording house where John WIlkes Booth and the other assassins met to hatch their plan.) There is debate to this day as to whether Mrs. Surratt simply owned the boarding house or was one of the conspirators.

The disclaimer for The Conspirator reads, "The story is based on actual events. Care has been taken to ensure historical accuracy. Names, places, and events may have been changed for creative license purpose only."

And so, the filmmakers, which include the director Robert Redford, are no longer admitting occasional fictionalization but embrace the concept of "dramatic license," which is not a legal term but rather a colloquial expression meaning that the work takes liberties with historical events. As used in The Conspirator, it basically means that they changed things because they had to to make it more dramatic.

For The Conspirator, the filmmakers did have to make things up. It is told from the perspective of Surratt's attorney, Frederick Aiken. Little is known of him: he was a journalist as well as an attorney; he fought on the Union side, although he offered his journalistic services to the Confederate president; he and his equally young and inexperienced law partner jointly defended Surratt; and, after losing the trial, he and his partner dissolved their law firm and he returned to journalism. The basic documentation for the facts of the film are the trial transcript and Aiken's relataively brief obituary in The Washington Post in 1878 for which he was an editor. He never wrote a biography or gave interviews. So when the film tells the story from his viewpoint and shows him struggling with his feelings and learning to know and even love Mrs. Surratt, it is all made up from scratch out of the filmmakers' imaginations.

The problem is, as I have written and said before, people watching a movie based on fact don't know what is made up.

The Conspirator reminded me of a play and tv movie that was based on events that happened just after the trial of Mary Surratt. The Andersonville Trial tells the story of the trial of Henry Wirz, the commandant of the notorious Andersonville prison camp for Union soldiers. As was the case with the trial of Mary Surratt, the verdict had been preordained by the victors of the war. But in the play, the prosecutor, Lt. Col. Norton P. Chipman, struggles with the fact that Wirz was only following orders. The judges are all Union soldiers and are not anxious to have the trial debate whether or not a soldier should disobey orders under certain circumstances. Chipman persists, at the risk of his career, and gets Wirz to admit on the stand that he knew he should have disobey but didn't have the courage to do so.

I admired the play and wanted to play Chipman, but never did. The 1970 tv adaptation won the 1971 Emmy award for outstanding single program and for Saul Levitt''s script based on his 1959 play. In writing my book, I included this tv film based on fact and found, to my surpriase, that the historical Chipman had never pursued these argument in the trial. It was all made up by Levitt, who was drawing on concerns of the late 1950s about Nazi officers duing World War II who executed the holocaust that killed millions because the officers were only following orders. Levitt was also writing about McCarthyism's Blacklist in which individuals did nothing while false statements destroyed the careers of their colleagues. He used 19th century characters to debate mid-twentieth cenury issues. I believed that what I saw in The Andersonville Trial happened because it was based on a true story. I know from experience that others believe this way too when they see an historical film.

Marketing is the driver, and "based on a true story" sells better than "suggested by a true story." 

This ties in with another blog I wrote today about erosions in trust and the truth.

Copyright 2018 by John T. Aquino

Struggling with Shifts in Truth and Trust

by John Aquino on 07/05/18

As I look back on the past decades, I reflect on a series of shocks about truth and trust that occurred. On June 20, 2018, like so many others, I was shocked at the news that Cardinal Theodore McCarrick, who was the Archbishop of Washington, D.C. from 2001 to 2006, was removed from the ministry as a result of an allegation of sexual abuse against a teenager 50 years ago when he served the Archdiocese of New York.. 

I remember in early 2001 my wife and I were new members of an organization of Catholic professionals and were invited to a reception at the Apostolic Nunciature to the Holy See on Massachusetts Avenue in D.C. We parked the car on the street and while walking to the reception joined other members of the organization who were also invited. As we all walked, we passed a man carrying a large sign stating, "Priests Abuse Children." One of our group said, "I would like to go any place without this man and others like him spoiling the evening." That was his reaction, and some of the others agreed, writing him off as a crackpot. In 2002, the journalistic efforts of the Boston Globe and Boston Phoenix revealed incidents of sexual abuse by Catholic priests in the Archdiocese of Boston and coverups of that abuse. Investigations of abuse in other dioceses around the country quickly followed.

On June 23, 2018, Ross Douthat, after the announcement about Cardinal McCarrick was issued, wrote an opinion column for the New York Times in which he described how in the early 2000s he was confronted by a man at a conference complaining of corruption in the Catholic clergy and specifically of allegations that Cardinal McCarrick had slept with seminarians. He wrote that he brushed the man off but soon found that what the man had alleged had been reported by priests to their supervisors. 

Douthat and I had similar encounters almost 20 years ago, but I never heard specific allegations against Cardinal McCarrick. We met him a number of times. We were privileged to hear several of his inspiring homilies and interviews he gave on television. It was a delight to read accounts about his going to Irish pubs in the area and discussing theology with young adults. He was genial and outgoing. People we knew who knew him well respected and loved him. We were, therefore, surprised that the resignation he submitted in 2006 when he reached the retirement age was immediately accepted by the Vatican. We had heard of  a number of instances in which archbishops, having reached the mandatory retirement age of 75, had been allowed to stay in office a few years more.

When we were met by the man outside the Apostolic Nunciate in 2001, I really had very little familiarity with his accusations, and, perhaps those we were with hadn't either. I was often asked after the priest scandal broke whether I had any such experiences or knew anyone who had. After all, I had gone to a Catholic School from first grade through eighth, served as an altar boy, went to a Catholic minor seminary for my high school, and received degrees from a Catholic college. Except for a lay teacher who was immediately fired from my high school (BAM and he was gone), I could truthfully tell them I had no such encounters, nor did I know of anyone who had. And yet these things happened to others, just not in my school, or in those my family members and friends attended.

Investigations into the allegations against Cardinal McCarrick are continuing. He denies them and has filed an appeal through the canonical process. But the Archdiocese of New York relieved him of his ministry while the process continues because the one accusation concerning a child was "credible and substantiated." The Archdiocese of Newark has acknowledged that it reached two settlements with adults concerning accusations against Cardinal McCarrick. Journalists like Douthat and others have written that they heard of accusations made against the cardinal years ago and are aware of articles about the claims that were written and suppressed. Cardinal McCarrick headed the Archdiocese of Washington when the priest scandal broke and fathered substantial changes in how such accusations are handled.

Those growing up in the 1960s and 1970s went through the trauma of the Vietnam War and suddenly faced the shocking realization that those in charge of the government to which we had pledged allegiance with our hands on our chests were not always right, occasionally did things that were unethical, and sometimes concealed their mistakes and wrongdoing. This shock and dismay occurred again with the presidential scandals of Nixon and Clinton. Sexual predatory behavior and its concealment fit into that pattern.

I take pride in and express gratitude for the Catholic education I received and respect the noble acts and generous service performed by dedicated priests, brothers and nuns. As a Christian and Catholic, I pray for Cardinal McCarrick and for any abused by those who take advantage of their authoritative positions. And for all who follow us in this world, I pray that truth will once again be respected and that trust in those in authority will once again be earmed.

Copyright 2018 by John T. Aquino