Laurie Cubbison, Radford University
In December 2007, the Center for Social Media, led by Pat Aufderheide and Peter Jaszi of American University, released “Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video”, a study of the use of copyrighted material in videos produced by amateur video producers and posted online to Youtube.com and many other sites. In this study, the authors examine and categorize the ways in which such material is used and argue that Fair Use guidelines can apply to much of the work being produced and posted online.
The study frames the practices of amateur video producers in relation to participatory culture as described by Henry Jenkins, Lawrence Lessig, Yochai Benkler , Rosemary Coombe, Kembrew McLeod and others. The report argues that copyright owners “are shaping the emergent environment with private regulation and legal actions. They are doing so largely without information about creator practices in this unprecedentedly participatory popular culture” . Thus, the goal of the study is to describe the uses of copyrighted material and argue that many of the practices constitute fair use.
The report defines fair use and describes its implications for video production, in particular the aspect of fair use related to whether or not a use is transformative. It also refers to the role of communities of practitioners in developing statements of how to meet fair use guidelines by citing a 2005 report also published through the Center for Social Media: “Documentary Filmmakers’ Statement of Best Practices in Fair Use” by the Association of Independent Video and Filmmakers, the Independent Feature Project, the International Documentary Association, the National Alliance for Media Arts and Culture, and the Washington, D. C. chapter of Women in Film and Video. That statement detailed guidelines for documentary producers who wished to use copyrighted materials for critique, illustration, ambiance, and/or historical significance. The 2005 statement also distinguished between material that must be licensed and those uses which qualified as fair. Aufderheide and Jaszi cite the statement by documentary makers as an example of a community of producers whose claims about fair use have been accepted by copyright stakeholders, and they identify similar uses of copyrighted material among amateur video producers. However, in the more recent “Recut, Reframe, Recycle”, they describe other kinds of practices using copyrighted material that may also be considered fair use, even if using a significant amount of quoted material.
Even though fair use may be applied to the use of copyrighted materials by amateur video producers, Aufderheide and Jaszi point out that producers may fall afoul of the Digital Millennium Copyright Act, since a copyright holder may require a hosting company to remove a user-generated file which contains copyrighted material, even if that material may qualify as fair use. The aim of this report, according to its authors, is to clarify the fair use issues for online video by detailing “the difference between quoting for new cultural creation and simple piracy” while also “clarify[ing] the significance of the legal doctrine of fair use within the online environment” .
According to the report, the study “conducted an environmental scan of online video practices between September and December 2007” for video that had been created by amateurs, posted to the Internet, and which indicated a degree of originality and/or transformation . Sites scanned included YouTube, Revver, Google Video and many others, with researchers using search engines and contributed links to find the materials in question. According to the report, the researchers distinguished between videos with no copyrighted material, those which were exclusively copyrighted and contained no user-generated content, and those “that incorporated copyrighted works into new creations” , the latter category being the subject of the study.
The researchers identified nine categories of use of copyrighted material within amateur online video: 1) parody and satire; 2) negative or critical commentary; 3) positive commentary; 4) quoting to trigger discussion; 5) illustration or example; 6) incidental use; 7) personal reportage or diaries; 8) archiving of vulnerable or revealing materials; and finally 9) pastiche or collage . The report specifies parody/satire as particularly popular, with celebrities, politicians, and popular culture texts such as movies and television shows as common targets. This usage is significant, since courts have consistently supported fair use in relation to parody. Closely related to parody was negative critique, much of which was political but which also included meta-commentary on media texts. Positive commentary included tributes to deceased celebrities such as Steve Irwin as well as fan tributes to particular movies and television shows. The category of quoting to trigger discussion included much evaluative material, with the copyrighted material often being framed as the best or worst within a particular category as specified by the poster. The illustration or example category included copyrighted material in order to support a thesis, and Aufderheide and Jaszi point out the importance of this type of use in the statement by the documentary filmmakers. Incidental use also mapped to the documentary statement in that these videos often contained copyrighted material as a backdrop to other activities. The personal reportage/diary category generally included material in which the video’s producer appeared on a television show or with a performer in a way that featured the producer in the context of someone else’s copyrighted material, as when a fan goes onstage to participate in a concert. The archiving category included videos that the poster perceived as vulnerable to censorship or lack of publication, including various statements by public figures that the posters wish to keep in the public eye. Finally, the pastiche/collage category included a wide variety of materials which may or may not include critique but which juxtapose images and sounds in order to create a specific effect on the viewer.
Implications
Although this report specifically addresses online video, its implications for fair use extend to a variety of other practices by “the people formerly known as the audience” , from the creation of fan fiction and fan art to multimedia presentations for the classroom. By categorizing the kinds of use of copyrighted materials and indicating ways in which these uses may or may not meet Fair Use guidelines, “Recut, Reframe, Recycle” frames the conversation about the Fair Use of copyrighted materials in ways that acknowledge the creativity that media consumers apply to the texts they consume. These implications extend to the classroom, where students may construct multimedia presentations that use copyrighted material and then may wish to include them in electronic portfolios posted to the Internet. In fact, it would be worth determining in an additional study how many of the videos in the commentary and illustration categories began as class projects. As yet, however, no actual legal precedents exist to clarify the fair use guidelines of these materials, particularly in the context of the Digital Millennium Copyright Act.
Works Cited
Aufderheide, Pat, and Peter Jaszi. Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video. 2007. Center for Social Media. Available: http://www.centerforsocialmedia.org/resources/publications/recut_reframe_recycle/. March 2 2008.
Association of Independent Video Filmmakers and, et al. Documentary Filmmakers’ Statement of Best Practices in Fair Use. 2005. Pdf. Center for Social Media. 2008 13 March.
Benkler, Yochai. The Wealth of Networks: How Social Production Transforms Markets and Freedom. New Haven, Conn.: Yale University Press, 2006.
Coombe, Rosemary, and Andrew J. Herman. “Culture Wars on the Internet: Intellectual Property and Corporate Propriety in Digital Environments.” The South Atlantic Quarterly 100.4 (2001): 919-47.
Coombe, Rosemary J. The Cultural Life of Intellectual Property: Authorship, Appropriation, and the Law. Durham, NC: Duke University Press, 1998.
Jenkins, Henry. Convergence Culture: Where Old and New Media Collide. New York: New York U P, 2006.
Lessig, Lawrence. Code Version 2.0. New York: Perseus Books, 2006.
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McLeod, Kembrew. Freedom of Expression: Resistance and Repression in the Age of Intellectual Property. Minneapolis: University of Minnesota Press, 2005.
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