awesomeness and fair use

[swan_tower]

Most of you have probably seen this, as it's been posted from here to Siberia, but:

"Bad Moon Rising- Mourning Ritual ft. Peter Dreimanis" (Watch on YouTube)

I first saw it on sartorias' journal, and there's been an interesting little debate over there. We can all agree, I think, that putting the little assertion on the video that it constitutes fair use means precisely jack; it wouldn't do any good in court. Having said that -- is this fair use?

Well, we can't decide that, any more than the vidder can; the only thing that can really establish an answer (so far as I'm aware) is a court case. But I think it is. I saw commentators over on sartorias' LJ breaking the two halves apart, talking about how the vid definitely parodies Twilight but plays its Buffy scenes fairly straight. IANA IP expert, but I don't think that's the way to view it. The question is the purpose of the work as a whole, not its constituent parts. And I'd say, in my opinion, that the vid in its entirety does indeed pass that test.

Collage can qualify as transformative work, so far as I'm aware; you can cut up and re-use copyrighted material in order to make a larger work. Montages are the same thing, in video. So if you put together a montage which serves a distinct purpose, one not identical to that of the original material, then yes, I think it should count as fair use. It's possible, I suppose, that a judge could say this is fair use of Twilight (since Stephanie Meyer's purpose was not to show Edward as a creepy, socially inept stalker who deserves staking), but not of Buffy (since Joss Whedon's purpose was, among other things, to critique certain tropes of vampire narrative). But I see this as the layperson equivalent of using, oh, Judith Butler's theories to comment on gender issues in Twilight. You apply one thing to another thing in order to make some points about it. Why should it be different just because the thing being applied is material from a media franchise, rather than the words of an academic 99% of the country has never heard of?

Of course, it is different. One of these entities has the money and possibly the will to pursue a court case over potential infringement; the other does not. But however practical that difference may be, the concept of it annoys me.

I think things like this should be fair use. I think society benefits from the ability to play things off one another in this fashion, to engage with them directly, rather than leaving them in hermetically-sealed containers such that we can only look at them through the glass. Will this vid financially damage Buffy and those who profit from it? Probably not. Will it damage Stephenie Meyer et al? Maybe. After all, Twilight is the target of the criticism here. But a negative review can do the same thing, and can include quotes from the text to boot. I see just as much original effort in the (exceedingly well-done) editing of these video clips as I do in the composition of that review.

(Tagging this "fanfiction" because it's a crossover narrative in vid form, but mostly because this is part and parcel of my thoughts on fanfiction, so it's better to keep them all under the same tag.)

Comments

[janni.livejournal.com]

With video I'm torn. With fic you'd be taking the ideas, but probably not mashing up actual words from the story in question, so it seems video actually is a different thing--but I don't know enough copyright law to know how different.

I love this video, enough that I linked to it, but the (smug?) notice that of course it was legal made me uneasy, because saying so does not, by itself, make it so ...

Though if the creators of both original properties are wise, they'll simply quietly happen not to notice, thus avoiding the issue. :-)

[swan-tower.livejournal.com]

There's definitely a difference -- the extent to which a derivative work quotes from the source text (and video clips are a form of quoting) is relevant to the question of fair use. With something like this, where the work consists entirely of juxtaposed quotes, infringement is more likely. But as I said before, I'm pretty sure collages can qualify as fair use, and those likewise consist entirely of recontextualized quotes.

For what it's worth, though, I didn't get any sense of "smugness" off the notice. It's just an example of a more general attempt to get vidding, fanfic, and other such fan work recognized as a legitimate form of transformation, just as outright parody is. Obviously saying the words does not make it legally so -- but it can help solidify a cultural stance. I think that was the purpose here.

(I suspect, by the way, that the most indefensible use in the entire thing is the song. If anything's infringing, that's at the top of the list.)

[janni.livejournal.com]

Maybe I just reacted to watching an entire video and realizing at the end that it existed to Make a Point, rather than for its own sake.

OTOH, this hasn't stopped me from rewatching it again and again ...

[novalis.livejournal.com]

Typical collages are cut-and-pasted versions of authorized copies. They do not involve making additional copies. Thus it is possible that they're not actually fair use, but simply non-infringing. The answer to this depends on whether you live in the 9th or 7th circuit (others, I dunno).

But if you live in the 9th circuit, there's no hard-and-fast rule that collages are fair use. That depends on the usual four-factor balancing test of purpose and character (including how transformative and whether commercial), the nature of the work, the amount used, and the (somewhat circular) effect on the market.

In this case, the unthinking traditional analysis would be that the use of Buffy and Harry Potter here are not fair. But I would love to see your argument comparing the use of Buffy to the use of Judith Butler tried in court. It's certainly the strongest and most interesting argument I've heard in favor of this kind of mashup.

[swan-tower.livejournal.com]

This is a good point . . . but that makes me wonder what the opinion is on digital collages.

[novalis.livejournal.com]

It's sort of fascinatingly bizarre to think about:

Cut out a picture in a magazine: not a copy
Open a picture from the web in your browser: not a copy
Open a picture from the web in seven browser windows at once: still not a copy
Print out a picture from the web: probably space-shifting
Print out a picture from the web and cut it up: ???

[swan-tower.livejournal.com]

Actually, opening a picture in a web browser is making a copy, because of the nature of computing. And that's why digital technology is making a mess of IP: copyright is supposed to control copying, not consumption or distribution, but what happens when consumption and distribution automatically entail the creation of copies?

Apparently what happens is that some IP holders try to assert control over how you consume and distribute their media. Which is never what those laws were intended for.

[novalis.livejournal.com]

I don't think images displayed on a web browser count as copies, because they're not actually saved anywhere (caching aside).

[swan-tower.livejournal.com]

They're still copies, even if they're ephemeral. Unless we write a law or something specifying that they don't count, someone could try to leverage them to control any action that creates them.

[novalis.livejournal.com]

I think there's already a law that says that copies have to be fixed in a tangible medium to count.

[elf]

They're on your hard drive (in a "temp" folder, usually); that's "fixed in a tangible medium." They're copied to various servers along the way. The fact that those copies may be erased in a few minutes is meaningless... making copies of art for the purpose of burning it, is is still making copies.

However, every ISP in existence has some kind of phrase in its TOS about allowing a certain amount of copying, because that's how the internet works--for people to see your stuff, they need to copy it. This is contractually-allowed copying, not specifically fair use (although I imagine it'd fit under fair use if it ever went to court).

This is a big part of why IP law is disintegrating around the edges... copies have become free and pretty much mandatory to access content, and nobody wants to be the test case that defines exactly what you can do with those copies.

RSS feeds make unauthorized copies. Mailing lists distribute copies by email; it's never been tested for someone to say "my content may not be copied by Person X, regardless of his online identity; please block all emails containing my content from Person X, or you are guilty of a DMCA violation by facilitating copyright infringement."

[novalis.livejournal.com]

Caching.

Also, the DMCA does not create new liability for facilitating copyright infringement (unless you want to count circumventing access control -- but that's a separate issue). There was contributory or vicarious infringement already before the DMCA. The DMCA does provide a safe harbor for ISPs, pushing the issue back to users of the ISP.

[squishymeister.livejournal.com]

I agree that it is very well done, and, though I haven't read up on the various arguments, I think what you say about fair use make perfect sense. I think using media in our efforts to digest media is only natural. A complaint that I could imagine somebody having is how much more power a video like this has than a written review to the general populous. Videos spread much quicker, and tend to be consumed by greater amounts of people. However, I think this is a GOOD thing. I think that all people should learn to think outside of the box, and be exposed to critiques of media. Perhaps it will even get people more interested in reading more, or writing their own.

I think you make some very good points here :)

[squishymeister.livejournal.com]

good lord...can you tell I haven't really eaten yet today?

"digest, consumed"...I'd kill for a sammich...hehe

[swan-tower.livejournal.com]

Fortunately for our freedom of speech, whether or not something's fair use does not depend on how many people are likely to consume the work in question. We'd be pretty screwed if it did. :-)

[querldox.livejournal.com]

There's potentially another issue for vids as opposed to text. Namely, trademark violation. It's making use of specific likenesses which could be seen as causing confusion in the marketplace.

While not video, a few years ago I wanted to do a t-shirt that'd be worn by folk working a booth for a corporation. The main design had a very basic Spock drawing; just the hairstyle (bowl, pointed sideburns), the eyebrows, ear outlines, and due to the nature of the design, the vandyke for the Mirror Universe Spock. No eyes, nose, mouth, or anything that'd look like Nimoy himself, just iconic aspects of Spock.

Corporate legal freaked out, saying that to use it they'd need to get permissions from Nimoy and whoever owned Star Trek these days. So at least one set of lawyers would foresee problems with this sort of thing on those grounds.

[swan-tower.livejournal.com]

It depends on what's been trademarked. So far as I'm aware, the likenesses of characters are not automatically protected in that fashion; that has to be registered separately, and not every property will bother to do that.

[sizztheseed.livejournal.com]

Hi, I'm over here from sartorias's blog, where I completely failed to follow the discussion on this topic. Apologies if I repeat, but I'm pleased to meetcha. Enjoyed reading your London narrative.

Just a comment--seems to me that the video sequences are fair use. I kind of wonder why Jonathan had to put up the notice. Maybe he felt unsure about his usage. It seems the IP legal community thrives on these grey cases and the massive amounts of money they may or may not involve.

But I'm not sure about the soundtrack. The soundtrack clips (2 of them) were mood-setting, and didn't really take part in the overall parody. They were stretched across the mixed out-takes and enhanced the action of the mashup, not the original source material.

I'd say he may have overstepped there, but not on the other parts.

Of course, this is all similar to the "how valuable is an antique" question. How much fair use is fair use can only really be decided in a courtroom, and that suggests that IP law is establishing a legal system outside of the reach of legislators, and it is a system where big money almost always wins. That can't be good. This suggests a need for an at least disinterested party to arbitrate these things, if a government agency can't be trusted with it. But I don't see that happening any time soon, and that's a shame.

[swan-tower.livejournal.com]

Yeah, I said above that the music is the least defensible part of it, in my opinion. It doesn't measure up nearly so well to the four-fold test.

The fact that the people pushing for fair use usually aren't the ones with the money to survive a court case is deeply frustrating to me.

[mrissa.livejournal.com]

I agree with you on the moral point. Things like this should be fair use; this is how we move forward with art, by playing.

[swan-tower.livejournal.com]

And you and I both say that as people with a stake in IP.

[mrissa.livejournal.com]

Yes, but the harm it does creative process to have to look over your shoulder every time you quote half a line of something is not to be neglected.

[swan-tower.livejournal.com]

Very, very true.

[kurayami-hime.livejournal.com]

It's probably horrible of me, but any discussion of copyright and fair use in the land of LJ typically makes my skin crawl. In a frustrated, annoyed sort of way. I am apparently some sort of damned elitist. Sigh.

As novalis said, fair use as it currently stands comes down to the four-part balancing test and what circuit you're in. Also, as I know I've said somewhere before, parody is much more likely to be found as non-infringing than satire. Can't use A as a vehicle to make fun of B. And whether the owners of the media being used have money or not doesn't change the inherent likelihood or non-likelihood of fair use. It just changes whether the question of use will actually be asked (and answered in a court of law).

And before wildly railing against the big bad copyright machine in the US, remember that this video would be Right Out in France and other places where copyright is based on moral rights and not economics.

[swan-tower.livejournal.com]

Well, there's a lot of wrong-headed stupidity about copyright in the land of LJ. I, too, often want to bang my head against something.

And whether the owners of the media being used have money or not doesn't change the inherent likelihood or non-likelihood of fair use. It just changes whether the question of use will actually be asked (and answered in a court of law).

True to a point. If the owners of the media have money, they're more likely to be able to take it to court -- but since the alleged infringer probably has less money than they do, the odds of the defendant being able to stick out the legal battle long enough to achieve a ruling in their favor are (in the absence of some energetic pro bono work) pretty low. So the alleged infringers are generally going to lose out in any confrontation, which establishes a social (if not a legal) precedent that says this isn't fair use, which then encourages our culture in a direction that makes such rulings, and legislation to that effect, more likely.

In the meantime, I thank my lucky stars I don't live under the French copyright system.

[swan-tower.livejournal.com]

And how.

(My favorite bit was when she threw him out the window, actually.)

[fiction-theory.livejournal.com]

I'm not sure why there's a debate over this in the first place. Frankly, I never viewed intellectual property laws to be about principles or rights at all.

As far as I'm concerned, they're about money and controlling who can and cannot turn a profit off of a certain work. Most companies don't get interested in sending out legal papers until money changes hands. In general, it seems to me that when people start hiring lawyers, they don't give a damn about author's rights or intellectual rights. They give a damn about the money. J.K. Rowling, for instance, didn't seem to mind someone making a compendium to her work until they *gasp* could make money off of it. Then it was a big Harry hairy mess.

It's why fans have been writing fanfiction for years and years and nobody's bothered to say a word about it, because there's no money it and nobody is claiming that they created the source material. It's all for free, so there's no money to be made.

I understand why the vidder claimed fair use so ostentatiously. One can never be too careful, because every once and a while some media company gets a stick up it's rear end and gets lawsuit happy and starts going after people who don't deserve it.

But honestly? So long as this is just another satirical fanvid available for free with nobody making any money off of it (save maybe ad revenue on YouTube, but they make their own deals with these companies), I'm pretty sure both Stephanie Meyers and Joss Whedon and their assorted business-folk and lawyer could care less.

[swan-tower.livejournal.com]

Some property owners are a lot more litigious than others. I don't think Whedon is, and probably not Meyers -- but what about the production company that put out the film of Twilight? They may be more easily provoked.

U.S. IP law isn't about moral rights, unlike the European setup. My understanding of its history, though, is that it was originally set up to facilitate creative work, by providing a framework that helped creators make money off that work. (i.e. then maybe they don't have to work so hard at another job, and have more time to create.) But I feel like the fostering-creativity concept has been well and truly lost in the way our system has changed -- to the point where now it isn't just about who can make money, but also about how work can be distributed and consumed. The shift to digital media has blurred that line terribly, with (in my opinion) unfortunate results.