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January 4, 2008

remix culture and fair use: a new study

Folks over at the Center for Social Media have just released a new study on copyright and creativity. They identify nine common types of re-appropriation practices that use copyrighted material:

  • Parody and satire: Copyrighted material used in spoofing of popular mass media, celebrities or politicians (Baby Got Book)
  • Negative or critical commentary: Copyrighted material used to communicate a negative message (Metallica Sucks)
  • Positive commentary: Copyrighted material used to communicate a positive message (Steve Irwin Fan Tribute)
  • Quoting to trigger discussion: Copyrighted material used to highlight an issue and prompt public awareness, discourse (Abstinence PSA on Feministing.com)
  • Illustration or example: Copyrighted material used to support a new idea with pictures and sound (Evolution of Dance)
  • Incidental use: Copyrighted material captured as part of capturing something else (Prisoners Dance to Thriller)
  • Personal reportage/diaries: Copyrighted material incorporated into the chronicling of a personal experience (Me on stage with U2... AGAIN!!!)
  • Archiving of vulnerable or revealing materials: Copyrighted material that might have a short life on mainstream media due to controversy (Stephen Colbert's Speech at the White House Correspondents' Dinner)
  • Pastiche or collage: Several copyrighted materials incorporated together into a new creation, or in other cases, an imitation of sorts of copyrighted work (Apple Commercial)


This study interrogates these practices in the context of copyright law, namely "fair use." They try to assess which way the courts might fall depending on practice. They also offer potential defenses that creators can make if they were sued in an attempt to build best-practices principles. They also categorize exemplar videos that fall into each category.

For those who aren't familiar with U.S. law, fair use is quite tricky because courts address it on a case by case basis after someone is sued. There is no list of what constitutes fair use. Thus, remixers engaging in practices that would collectively be viewed as fair use never have certainty that what they're doing is legal. Because court cases are extremely costly (especially for the lone defendant in the face of Big Mega Corp), corporations can wield a lot of power through the egregious use of "Cease and Desist" letters. Most creators bow down in the face of them even if what they're doing is totally legit because they are terrified of being sued. In legal terms, a "chilling effect" is when practices are squelched by fear of persecution. Right now, when it comes to remix, we're in the middle of an ice age. The Chilling Effects Clearinghouse website attempts to counteract some of this effect by collecting and publishing Cease and Desists and other nefarious attempts by corporations to silence fans and critics.

It's a really really really screwy system that pits little people against big corporations, stifling innovation and creativity. Yet, in order to change it, people have to understand what is taking place, what is at stake, and how to rethink the situation. This is the goal of this study.

Category: remix

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Posted by zephoria at January 4, 2008 3:55 PM | TrackBack

Comments (2)

marocharim:

danah:

I don't know about "case to case" bases, but if the law is not explicit, then it's not a good law. If there's no list that defines "fair use" for particular usages... well, I don't really know because I'm not an American.

No offense by that. ;)

I'm quite curious about your reference to "pastiche" and "remix culture," something that L鶩-Strauss would himself call "bricolage." Pastiche takes into consideration that the material used in it and for it are "at hand:" think of candies and treats in pi񡴡s (I was thinking about "pabitin:" it's a fiesta game here where stuff are strung on bamboo frames and kids jump and clamber up to get the treats). Because they're "at hand," nobody really "owns" the material: rather, the material is "appropriated."

I think it's important for people to recognize that identity-construction works around the same idea: you don't really "own" anything as much as you "take something for yourself."

Screwy system, indeed.

Posted by marocharim | January 8, 2008 4:04 AM

Posted on January 8, 2008 04:04

Spiro Bolos:

Dear danah,

What follows is my own comment from the blog of the makers of this important study. I'd love to hear more people weigh in on the practicalities of this for educators in public schools:


As a public educator and a multimedia staff development expert, I am thrilled to see your study tackle this emerging phenomenon. These mashups are exactly the kinds of responses to the culture I would like my own students to create.

However, I believe the elephant in the room is not the ever-widening possibilities of Fair Use, but, more importantly for me and others in educational institutions, the *means* by which the material was excerpted in the first place.

What I mean is that according to the Digital Millennium Copyright Act (DMCA), users are not allowed to circumvent encryption technology (on DVDs, for instance). I may have the Fair Use right to utilize a clip from a Hollywood film in my classroom, but according to the DMCA, I don't have the right to *extract* that clip from a DVD.

The only exception to this, as far as I know, is for media or film studies professors. I am neither one of those.

I skimmed your report and I would argue that many of the examples you cite would have to have started originally with encrypted DVDs.

This is not a criticism of your study per se, but a desperate attempt to open a discussion of the frustrations faced by educational institutions as we try to meet our students on the level that they have the greatest engagement.
>>

Posted by Spiro Bolos | January 13, 2008 8:58 AM

Posted on January 13, 2008 08:58

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