Category Archives: remix

Code of Best Practices in Fair Use for Online Videos

Fair use is an uber tricky legal issue. It is meant to provide protection for people to use copyright material in limited ways without seeking permission. (For example, fair use allows academics to comment on copyrighted content as part of their work.) The problem with fair use as a legal doctrine is that it’s defense-only. Anyone can sue you for violating their copyright and you can declare fair use, but you will still have to pay onerous legal bills to defend that claim. Given the typical economic inequality between copyright holders and fair use practitioners, just the threat of a lawsuit tends to silence fair use practitioners. It’s really a sad state of affairs. The lack of clear guidance means that creativity tends to be squelched as copyright holders systematically manage a campaign of terror, even when they’re not in the legal right of way.

Fair use is becoming a bigger and bigger issue as more people get involved in creative acts that involve others’ content. Fan fiction, video remix, video parody, etc. are all practices that involve others’ copyright, but are also arguably fair use. While these practices predated the Internet, the Internet makes them much more visible. This means that more people get to see such creativity, but it also means that the copyright owners tend to get more outraged. And they tend to go on cease and desist rampages, even when the practitioners are engaged in fair use practices.

There’s currently no legal solution, but some of the best minds in cultural practice and law have come together to develop a “Code of Best Practices in Fair Use for Online Videos” (organized by the Center for Social Media). This document is not a legal instruction guide, but a set of best practices. This document also opens up an opportunity for good dialogue about the relationship between law/policy and cultural practices. I commend Pat Aufderheide, Peter Jaszi, and the members of the committee (Michael C. Donaldson, Anthony Falzone, Lewis Hyde, Mizuko Ito, Henry Jenkins, Michael Madison, Pamela Samuelson, Rebecca Tushnet, and Jennifer Urban) for putting together a tremendous set of guidelines for practitioners. Hopefully this will help everyone involved.

DIY Video Summit in LA Feb 8-10

The beloved, talented, and amazing Mimi Ito is organizing a DIY Video Summit (called 24/7) February 8-10 at USC in LA. There’s an academic program on Friday and Saturday featuring talks by the likes of Yochai Benkler, John Seely Brown, Joi Ito, Henry Jenkins, Lawrence Lessig, and Howard Rheingold. This requires registering and is almost at capacity.

There is also a DIY Video Screening that is open to the public for free, from 10AM-7.30PM on Friday and 10AM-2.30PM on Saturday. These showings will feature curated programs on design video, activist documentary, youth media, machinima, music video, political remix and video blogging. The video program will culminate in an evening program and reception on February 9 that will draw from all of these video genres. This is a great opportunity to check out the creativity of the DIY film culture. Just stop by and see a few films; you don’t have to stay all day. Check out the schedule to see what fits for you.

Finally, for those who are a part of the culture, there are workshops and meetings on Sunday (registration required). All three sections of the event will take place in downtown LA at USC.

I intend to stop by for a few of the events and I hope you will too!!

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
  • 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.

pointer remix in a culture of copy/paste code (MySpace layouts as remix)

Back in May, Dan Perkel and I gave a talk at ICA called “Copy, Paste, Remix: Profile Codes on MySpace” (an abbreviated crib of the talk is here). We wanted to explore whether or not MySpace profiles operate as a form of remix. We started sussing out something that I’d like to call “pointer remix.” I want to try to lay this out here because I think that it has tremendous implications for the conversations around remix that keep emerging.

One way to think about remix is as the production of a new artifact through the artistic interweaving of other artifacts. Many hip-hop songs are “remix” in that they mix different tracks to create a new one. Video mashups are a form of remix when a combination of video, audio, and images are reconnected to form something new. You can even argue that collage or 1970s punk clothing is a form of remix, as both took the old, chopped it up and made something new. Levi-Strauss’ discussion of “bricolage” is relevant here, as is the montage effect known as the Kuleshov Effect (especially for arguing that something “new” is created). Lots of work around remix is bubbling up, often with other terms (like Aram Sinnreich’s “configurable culture”). Getting into the nitty gritty of remix would take a dissertation, but hopefully you get the concept that I’m referencing.

All of this work on remix assumes that the artists possess the original or a copy of the artifact that will be remixed. The artist may or may not have the “rights” to possess or modify that artifact, but they have a copy none-the-less. When they create a remix, they are structurally able to distribute it (even if the legality of such distribution is challenged). Part of this has to do with the nature of digital media – a copy is often no different than the original. And making a copy is pretty trivial at this point.

With this in mind, think about an average MySpace profile. What should come to mind is a multimedia collage: music, videos, images, text, etc. This collage is created through a practice known as “copy/paste” where teens (and adults) copy layout codes that they find on the web and paste it into the right place in the right forms to produce a profile collage. One can easily argue that this is remix: a remix of multimedia to produce a digital representation of self. Yet, the difference between this and say a hip-hop track is that the producer of a MySpace typically does not “hold” the content that they are using. Inevitably, the “img src=” code points to an image hosted by someone somewhere on the web; rarely is that owner the person posting said code to MySpace (and thus, the ongoing question of “bandwidth theft”). The profile artist is remixing pointers, not content. If the content to which s/he is pointing changes, the remix changes.

An example that we discussed at ICA concerns the ever-loved world of cats. Say that my profile is filled with pictures of cats from all over the world. The owners of said cat pictures get cranky that I’m using up their bandwidth (or thieving) so they decide to replace the pictures of cats with pictures of cat shit. Thus, my profile is now comprised of pictures of cat shit (not exactly the image I’m trying to convey). This is what happened to Steve-O.

One of the most high profile cases of such content replacement came from John McCain’s run-in with MySpace profile creation. His staff failed to use images from their own servers. When the owner of the image McCain used realized that the bandwidth hog was McCain, he decided to replace the image. All of a sudden, McCain’s MySpace profile informed supporters that he was going to support gay marriage. Needless to say, this got cleaned up pretty fast.

Profile creation on MySpace is all about identity production and the remix that takes place there is clearly to that end. Yet, the artifacts that are produced (profiles) do not require creators to ever have the content that they are using in their possession in any form – they are simply remixing the pointers to display something unique about who they are. It is a bricolage of brands and images for identity purposes, created solely through a truly poststructuralist practice of pointing.

We craft our identity through pointing all the time. Language is mostly about pointers (“signs”). The list of favorite TV shows, movies, and music on social network sites are a linguistic pointer to these cultural referents. Yet, in a multimedia world, instead of having to just reference them by name, I can reference them by image, video, and audio, pulling a much more rich set of content into the fold. In some senses, these practices are the same as they both involve constructing a semiotic pointer to a cultural object. Yet, because multimedia referents are “hosted”, multimedia pointers can be altered. Furthermore, there’s a perceived cost to pointing (namely, bandwidth). And, besides, we never think of uttering the linguistic referent as making a “copy.”

As remix is ridden with questions of legality, I can’t help but wonder what the legal ramifications of pointer remix might be. We live in a world obsessed with copyright and IP, but isn’t pointing to something fair use? Imagine how ridiculous the world would be if you could only consume, but never link (linguistically or through html).

But let’s take a different angle for a moment. What about cultural and historical significance? There are all sorts of physical artifacts that must be preserved because of their historical importance (you’ll find Boston to be filled with all sorts of historical placards on houses). Might there be a time when we feel compelled to preserve the remix MySpace profile masterpiece of someone? Would the owner of content being pointed to be required to maintain that content? To pay for bandwidth? To permit a copy be made and then hosted on another server to relieve the bandwidth costs? While many argue that copies should not be permitted without permission, and some argue that pointing should not be permitted without permission (a.k.a. “deep linking”), what happens when a culture exists that rests on pointer remix for identity construction? Everything about our culture is recursive – we are all standing on the shoulders of giants and it’s definitely turtles all the way down.

We live in a world where cultural objects are consumed to produce identity (gotta love de Certeau). Pointer remix is part of how this is happening. And yet, there seems to be something funny about it… It’s not quite remix, it’s not quite collage, but it’s definitely a powerful semiotic practice. Dan and I are going to keep playing with these ideas, but I figured y’all might enjoy toying with them some too, especially if you have a mind for semiotics.

[Note: If you aren’t familiar with Dan Perkel’s work, you should be because he kicks ass. His blog is here. And a really good paper for all of you interested in education is Copy and Paste Literacy? Literacy Practices in the Production of a MySpace Profile.]