Sofia 2008: Reflections From a Student

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Branum, C. (2009). Sofia 2008: Reflections From a Student. IFLA Set Bulletin, 10(1), 29-30.

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The Myth of Library Neutrality

(2008)

Introduction

A common discourse taught in library school is the importance of the librarian as an objective and neutral professional. As a public service, librarians must serve the entire public equally regardless of moral values and political views, and as librarians our primary role is that of a mediator in the public’s access to information and knowledge. The First Amendment to the United States Constitution states that Congress cannot create any laws limiting people’s freedom of speech or expression, and in the library setting this is used to ensure that patrons maintain the right to receive information. It is in this quest to provide equitable information to all people that libraries have adopted the idea of neutrality.

Since the 1920s, librarians have been advocating for the transformation into an intellectual academic discipline, which places the importance of neutrality and objectivity above those of ethical and moral considerations. Although alternative professional models were available, the library field’s desire for professional status led to the acceptance of a “scientific” path (Dick 3). The extreme end of this concept of neutrality places the librarian as a passive mediator, devoid of emotion but reflexively delivering information. In his seminal paper, Foskett stated that, “The librarian ought to vanish as an individual person, except in so far as his personality sheds light on the working of the library” (Foskett 10).  This idea of the librarian as a neutral medium takes away the powerfulness of the lived experiences and learned knowledge of librarians.

This move towards professionalism distances itself from the traditionally “female” traits that have defined the profession by avoiding female work, i.e., service positions. Technical and administrative positions continue to be filled by professional librarians, while reference and service jobs are now routinely being filled by paraprofessionals. Additionally, this model on which the profession is based is “male”-gendered, though the foundations of librarianship are not: “The pursuit of the type of professionalism exhibited in the male fields is basically incompatible with the equitable sharing of resources” (Harris 875).

In reference services, the definition of “neutrality” has been used interchangeably with “objectivity” to indicate the librarian is providing information in a non-judgmental way, but neutrality also conveys a sense of unimportance or disinterest. Additionally, when librarians do not use their vast knowledge to assist patrons to the extent of their ability, passive librarianship becomes a hindrance to library users (McMenemy 180).

Librarians have been publicly voicing dissent towards neutrality since at least the 1980s, when a number of radical librarians coming out of the climate of social upheaval in the 1960s-1970s began to call for a re-examination of the idea of library neutrality (Dick 220). Individuals have been writing on this topic for decades, but there is still a rift between “old-fashioned” librarians who desire a distant and professional objectivity and post-modern librarians who hope to bring an ethical edge to librarianship. In looking at the inherently political nature of libraries, the “non-neutrality” of neutrality, and the move towards ethical practice, this paper aims to address some of the faults of librarian neutrality and entice readers to begin thinking about the real role of libraries.

The Political Nature of Libraries

Though libraries claim a space of neutrality, one of the major responsibilities of libraries is to fill information deficiencies and bring knowledge to the masses, which is inherently political; in this way, by adopting the idea of neutrality, those in the LIS field are depoliticizing the very radical nature of librarianship. The transformation from an industrial society to a knowledge-based society has had a great effect on the library profession; information is now a commodity to be bought and sold to the highest bidder, and because power is intrinsically tied to the ability to access information, those without access continue to be marginalized. Sandy Iverson makes the assertion that, as the information leaders charged with providing access to information to those who do not have the resources to buy information, librarianship is an inherent act of social and economic justice. In theory, the concept of neutrality works to provide fair and equitable treatment to people of all social, economic, religious and philosophical variants, but in actuality it is successful in silencing those who are working within the system, to keep them from rocking the boat and creating radical change. As the guardians of information in a society based around gaining access, librarians are in a powerful position, even though they continue to reject the political nature of the work they do. In this way, neutrality has acted much like a collar and leash, keeping librarians from crossing over any abstract lines that society has drawn.

The very procedures by which librarianship has been built upon are also intrinsically political, such as collection development and reference services. West notes that librarians practice self-censorship every day in book selection for collection development. Librarians buy primarily from corporate vendors, a practice that has not changed much since the publication of West’s now historical work. In a study conducted during that same time period, a mere 5% of libraries surveyed made systematic efforts to collect “alternative, independent, and dissident material” (West 1652). Providing book recommendations is also a biased practice. If librarians were to be truly neutral, they would not voice an opinion and would not be able to provide any recommendations at all. Librarians obviously cannot limit their reference services, but this example is just one of many chips in the carefully constructed image of the neutral library professional.

Scholars suggest that Western institutions are never neutral but based around the dominant white, heterosexual male society. In a society that favors “assertiveness, competitiveness, sportsmanship, linear thinking, individualism, and the sublimation of emotion”, women and minority viewpoints are often counter to the dominant ideology (Stoffle and Tarin 47). In this environment, minorities are expected to assimilate and conform or risk not being taken seriously by the library community, being passed over on grants or new work opportunities, or lacking institutional support. Feeble attempts have been made to diversify the library profession by recruiting minorities, but when the library profession pushes the idea of neutrality, they are essentially asking people who have complex lived histories that fall outside the dominant paradigm to adopt a pretense of neutrality. Suggesting that people who have experienced oppression need to remain neutral is not only inconsiderate, but it is blatantly oppressive: neutrality requires assimilation from minority librarians, and punishes those who demonstrate behaviors or assert feelings that do not align with the ideal behaviors of a straight, white, educated middle class.

Is Neutrality Really Neutral?

The move towards the neutral professional is not without bias; the very idea of neutrality is one that is based on the values of fairness, honesty and detachment –which are values that privilege one point of view over another. In this light, neutrality is actually based on a set of moral and political values that are non-neutral (Harding). Jensen follows up, stating that there is a distribution of power in all situations, and that the act of taking no political stance by claiming neutrality is in itself a political choice (29). Those who critique the dominant ideology are seen as “political”, but those who uphold dominant values are not less political, because the privilege of taking no action is also a politically charged move (Jensen 30). As a partisan ideology, librarian neutrality is based in a “democratic humanism” that masquerades as general human interests but in fact challenges power and privilege, even though librarianship would like to contend that it is a neutral entity (Rosenzweig 42). Harding asserts that due to the social and economic effects of institutionalized racism, the class system, imperialism, and sexism, minorities often have values that fall outside the dominant “neutral” values (572). Because minority perspectives may conflict with dominant values, they are often dismissed as “alien”, and engaging in cultural behaviors may be regarded as practicing “bad habits” (Harding 572).

The very definition of neutrality is a non-specific ideal that is not set in stone. Though definite values can be applied to it, it is difficult for humans with biases and lived histories actually to adhere to set applications of neutrality. Since World War II, the Swiss government has continued to be emblematic of neutrality, but their actions during the war were far from neutral. While maintaining a vocally political neutrality, the Swiss banks (funded by the government) conspired with the German Nazi government to smuggle millions of stolen Jewish Deutschmarks out of Germany (Good 26). Though the government claimed political neutrality, these actions demonstrated obvious bias and were not without consequence. Switzerland (and for a while, the “neutral” United States) ignored the genocide of an entire ethnic group, and in the process became complicit in immoral actions. By remaining politically neutral, the United States lack of action demonstrated a disinterest that devalued the atrocities of genocide; it was not until the country decided that they were no longer a neutral party that the genocide was assigned value and became worth fighting against. Neutrality is a privilege that an individual or institution can adopt in order to not take responsibility, instead choosing to fall in line with the dominant powers.

Neutrality is “a code word for the existing system. It has nothing to do with anything but agreeing to what is and will always be — that’s what neutrality is. Neutrality is just following the crowd. Neutrality is just being what the system asks us to be.”  (Horton and Freire 120).

Though librarians may attempt to maintain an air of objective and neutral professionalism, institutions that claim neutrality are in danger of unconsciously adopting the values of the dominant paradigm. This is can be dangerous because it hides under the guise of neutrality and is thus unexamined. As Blanke notes, “Librarianship’s reluctance to define its values in political terms and to cultivate a sense of social responsibility may allow it to drift into an uncritical accommodation with society’s dominant political and economic powers” (39). Because information is now a commodity, by not defining itself in political terms and hanging onto the myth of neutrality, librarianship will have a difficult time defending the fundamental ideals of free and equal access to information from powerful and wealthy influences (Blanke 40).

Ethics

In the neutral professional model, librarians are seen as value-neutral, and objectivity is highly valued; this leaves a greater emphasis on the delivery of information over the result, regardless of the morality of the end product (Dick). In a post-9/11 environment, librarians must work hard to safeguard the individual rights of library users. The American Library Association views some sections the USA Patriot Act as a threat to the constitutional and privacy rights of library users, but there are also ethical considerations to bear in mind. Studies have shown librarians to provide excellent reference services even in reference interviews where it is implied by the information seeker that the information will be used for illegal activities, including creating a bomb that would blow up “a normal suburban house” (Dowd; Hauptman). Neutrality gives the information profession the ability to take a non-stance on important issues and avoid accountability by abdicating any ethical responsibility.

Library neutrality does not exist in a vacuum, and social and political issues affect not only library patrons but library employees as well. Librarianship has not been exempt from the history of racism and homosexual oppression; historically, queer librarians were just as at-risk for job loss and being socially ostracized as other members of the queer community (Joyce), and libraries were not exempt from Jim Crow segregation (Cresswell). When American libraries take neutral, non-political stances on issues such as racism or homosexuality, the collection and community members suffer the consequences: In a historical look at how the neutrality of public libraries affected the queer community, Joyce found that library collections had been completely deficient in materials about homosexuality unless the material condemned it or spoke of it in a completely clinical (and dehumanizing) way (43-44).

In 2005, Phenix and de la Pena McCook looked into the ways in which other professionals such as doctors and lawyers have worked towards human rights while still maintaining their professionalism. Libraries have begun to move in this direction as well, as library organizations such as the ALA’s Social Responsibilities Roundtable and the International Federation of Library Associations are now focusing on the social responsibilities of libraries; in addition, the ALA’s 2010 Strategic Plan includes a commitment to the public good and an emphasis on social responsibilities (Phenix & de la Pena McCook). Social science neutrality is incompatible with a commitment to human rights, as it does not allow for compassion or a desire to create change. A neutral society does not care about potential human rights violations, because it is focused on a detached equality, albeit one that does not take into account pre-existing social and economic inequities.

It is oppressive of the library profession to ask people from marginalized groups to adopt a neutral point of view. In doing this, we are asking them to ignore their community history, struggles and identity. We cannot ask librarians of color to neutrally assist a patron in searching for information supporting Eugenics, just as we cannot as a queer librarian to be neutral on the subject of gay hate crimes. Oppressed groups do not have the option of neutrality. Neutrality is a privilege afforded to those who do not live in fear, have not experienced genocide and war, do not have to daily face the effects of institutionalized racism. Neutrality is understanding that people may be feeling oppression deep in their bones and souls, and still choosing to turn your back. It allows you to uphold values that do not require self-reflection about privilege. It is seeing institutionalized racism and not having to form an opinion on it (or not even noticing it in the first place). It is seeing queer youth being taunted and turning our heads. This sounds extreme, but it is true: neutrality is an explicit decision on our parts to uphold and demonstrate acts of hate. Hatred is on a continuum, and it includes seeing microaggressions, gay bashings and racial hate crimes, or even genocide — and choosing to do nothing. This is what neutrality is: An excuse to not care.

Outdated Discourse

So why is librarianship as a profession still holding onto the idea of neutrality? I recently attempted to find information supporting the idea of library neutrality, but had a hard time finding anything other than opinion pieces by those questioning the concept. It looks like what we have ended up with is outdated discourse that does not reflect what the library profession is doing and how they actually feel about it. It is obvious that librarianship (as with many other professions) is moving away from rigid objectivity and towards a socially responsible model. There is a disconnect between the practice and the discourse; perhaps it is time that the profession begins to formally move away from the social science model and towards a social work community-based practice one.

 

Works Cited

Blanke, Henry. “Librarianship & Political Values: Neutrality or Commitment?” Library Journal 114.12 (1989): 39-43.

Cresswell, Stephen. “The Last Days of Jim Crow in Southern Libraries.” Libraries & Culture 31.3/4 (1996): 557-573.

Dick, Archie. “Library and information science as a social science: Neutral and normative conceptions.” Library Quarterly 65.2 (1995): 216-235.

Dowd, R.C. “I want to find out how to freebase cocaine or yet another unobtrusive test of reference performance.” Reference Librarian 25-26 (1989): 483-93.

Foskett, BJ. “The Creed of a Librarian: No Politics, No Religion, No Morals.” London: The Library Association (1962).

Good, Joseph. “The Hottest Place in Hell: The Crisis of Neutrality in Contemporary Librarianship.” Progressive Librarian (2006/2007): 28.

Harding, S. “After the Neutrality Ideal: Science, Politics, and ‘Strong Objectivity’.” Social Research 59.3 (1992): 567-587.

Harris, R.M. “Gender, power, and the dangerous pursuit of professionalism.” American Libraries 24.9 (1993): 874-876.

Hauptman, R. “Professionalism or Culpability? An Experiment in Ethics.” Wilson Library Bulletin 50 (1976): 626.

Horton, Myles and Paulo Freire. We Make the Road by Walking: Conversations on Education and Social Change. Philadelphia: Temple University Press, 1990.

Iverson, Sandy. “Librarianship and Resistance.” Progressive Librarian 15 (1998): 14-19.

Jensen, R. “The myth of the neutral professional.” Progressive Librarian 24 (2004/2005): 28-34.

Joyce, S. “A few gates redux: An examination of the social responsibilities debate in the early 1970s and 1990s.” From: Questioning library neutrality: Essays from Progressive Librarian. Library Juice, 2008.

McMenemy, D. “Librarians and Ethical Neutrality: Revisiting The Creed of a Librarian.” Library Review 56.3 (2007): 177-181.

Phenix, K.J., and Katherine de la Pena McCook. “Human rights and librarians.” Reference & User Services Quarterly 45.1 (2005): 23-25.

Rosenzweig, M. The basis of a humanist librarianship in the ideal of human anatomy. Progressive Librarian 23 (2003): 40-45.

Stoffle, C.J., and Tarin, P.A. “No Case for Neutrality: The Case for Multiculturalism.” Library Journal, July 1994: 46-49.

West, Celeste. “The Secret Garden of Censorship: Ourselves.” Library Journal 108.15(1983): 1651-1654.

From Documentaries to Fanvids: Participatory Culture, Video Remix and Copyright

(2009)

Abstract

There has been a cultural shift towards a participatory culture that places value on transforming works of art rather than upholding antiquated ideas of property. In this type of environment, the remix video has emerged as a way for creative individuals to engage in the cultures around their favorite musicians, television shows and movies. The copyright and legality of fandom, and video remix in particular, is not clear-cut; although video remix is in the business of creating derivative works, many add value to the original work by pulling out themes, enticing dialogue, adding political or social commentary, or acting as a parody. Additionally, fanvids act as a way for marginalized communities to create representation in the pop-culture from which they are often oppressed in or rejected from. This paper aims to provide a basic description of video remixes and an analysis of the copyright issues surrounding them, ultimately allowing for a discussion of how copyright law could better interact with participatory culture.

Remix: The Beginnings

“Remix” has been used to describe a style of reshaping art forms to create new ones; this can take many forms, such as literary cut-ups or collage, but it is most commonly associated with the rearrangement of media. In the late 1980s, “sampling” became a viable way for musicians (especially hip-hop artists) to use existing material to create a new commercial work. If the appropriate legal measures are taken to procure licensing, sampling can be an extremely successful method: MC Hammer legally sampled James Brown’s “Superfreak” on his hit “U Can’t Touch This”, while in the same year Vanilla Ice’s un-credited use of Queen and David Bowie’s “Under Pressure” got him in hot water; instead of bringing official charges, Ice settled out of court (Copyright Website, n.d.).

Hiphop artists and pop musicians alike have been sampling for decades, but it wasn’t until the 1990s that it took on a new level. After Gilbert O’Sullivan’s suit  against hip-hop artist Biz Markie for sampling “Alone Again (Naturally)” without permission, O’Sullivan’s lawyer remarked: “Sampling is a euphemism that was developed by the music industry to mask what is obvious thievery” (Vaidhyanathan, 2001, p. 143). On the other side, Dan Chamas, executive of Def American Records, stated that the court’s decision would “kill hip-hop music and culture”(p. 143). As hip-hop music and culture (and thus, African-American culture) is intricately tied to a history of oppression marked by laws preventing African-Americans from owning property, the ways in which the Euro-centric American copyright laws work can be seen as not compatible with the lived history of a large percentage of its population. Vaidhyanathan (2001) also notes that both American blues and West African musical traditions focused on borrowing material and adding value to it; in West Africa, this created a kind of “commons” that people could borrow freely from, as long as they added value to the material they were borrowing (p. 124-5).

Although remix has a long history in both the US and around the world, it has only been recently that the availability of materials has allowed for a new type of remix, one that brings together both visual and audio media. In analyzing the use of user-generated remix videos, especially fan videos, this paper aims to provide a robust look at the copyright issues involved in remix videos, an analysis of fair use, and hopefully entice readers to begin thinking about how copyright laws could better interact with participatory culture.

Enter Digital [Hyper]Media

Sampling in music has always been a tempestuous topic, but the availability of digital media has upgraded the issue from one affecting contracted musicians and labels to one that affects the general public, and specifically youth culture. Youth now grow up using computers and the Internet and for them, utilizing these skills is one way they engage in their culture. In his 2008 book, Remix, Lawrence Lessig describes a shift from merely viewing culture towards becoming an active participant in it. In explaining this shift from a Read-Only culture to a Read/Write culture, Lessig explains that people now “add to the culture they read by creating and re-creating the culture around them” (p.28).

Even before digital materials were commonly available, fans had been working to create remixes using found video and VHS tapes (Jenkins, 1992, p. 225). For the purpose of this paper, a video remix is when a person (normally a fan) cuts scenes from a television show, movie, music video or other filmed footage and splices it together with new music or commentary, often creating new meaning; in the most basic sense, a remix is like a pastiche or collage that uses at least two different materials to create something new. Though a remixer could use original material (such as home video footage), this paper will focus on the use of commercially copyrighted materials. With the advent of video-hosting sites like YouTube, people are able to share their new creations with the larger community, including other remixers.

The purpose of remix videos generally falls into two areas: Educational use and fan use. Section 107 of copyright law defines educational use as criticism, commentary, news reporting, teaching, scholarship, or research. An excellent example of remix video being used for educational purposes is the creation of the Media Education Foundation. Sut Jhally, professor of communication at the University of Massachusetts, created a video documentary, Dreamworlds, based entirely on clips from music videos found on MTV. Initially used in the classroom, Jhally’s work strove to make connections between the images of women on MTV to sexual violence. Believed his work could be beneficial to other professors, Jhally began to distribute it to other academic institutions. After MTV sent out a cease and desist letter, Jhally formed the Media Education Foundation and successfully fought for rights of distribution under the protection of fair use (Jhally, 2008). MEF is now a successful non-profit organization that distributes educational films to academic and non-profit institutions.

The alternative category, fan use, can be further broken down into two more categories: Works that are purely referential and those that are new works of fiction. The level of artistic talent is all over the spectrum when it comes to remix videos; some are just crudely edited scenes that do not create new meanings beyond the original work, while others are intricately woven new tales. Referential works are generally fan videos (or “fanvids”) that do not provide new content, but act simply as a reflection of the original work. Favorite scenes (often of a particular character or storyline) are edited together and set to music, but the work is not intended to mean anything outside the original author’s purpose.

On the other hand, works of new fiction are works that bring added value beyond the original creation. “Constructed reality videos”, for example, are videos in which fans create a new storyline, often using many different shows and tedious editing to create a brand new story outside any of the original works (Jenkins, 1992, p. 229). A remixer who goes by the name “Charmax” on YouTube created a fanvid entitled Unnatural Selection that taps into the mutual themes of the end of the world, which not only mashes up scenes from the re-imagined Battlestar Galactica and Terminator:The Sarah Connor Chronicles, but also is set to a soundtrack that mashes up punk music and dance beats (a musical remix) with sound bites from the two shows (Charmax, 2009). In 2004, Brad Neely recorded and began performing his comedic version of Harry Potter entitled, Wizard People, Dear Reader. Using the entire, uncut film of the Warner Bros. production of Harry Potter and the Sorcerer’s Stone, Neely recorded an audio soundtrack to the movie, intending it to be played in time with the film, with the film’s original soundtrack turned off. Initially passed around between his friends, Neely eventually began to show his work in theaters, where he would perform the narration live and in sync with a big-screen showing of the film (Radosh, 2004). In interviewing anonymous video remixers, Henry Jenkins (1992) noted that fans view their fan-creations as new works of art. As one remixer noted:
“Images pull out the words, emphasize the words, just as the words emphasize the pictures. If I’ve done a good job with a video, I can portray an emotion and I can hold that emotion throughout the song. I can bring a new level of depth to that emotion through my images and I can make you think about the program in a different way” (Jenkins, p. 225).

Much like fan fiction, in which fans create new stories based on copyrighted characters and worlds, music video remixes allow users to create materials that focus on fringe characters, provide a venue for marginalized groups to take center stage, or look deeper into narratives that the original creators either did not explore or perhaps glossed over. For example, typing in the name of almost any television show accompanied by the word “slash” or “femslash” (which denotes a gay or lesbian relationship, respectively) will invariably bring up videos that utilize editing to explore queer relationships. Queer people are rarely shown as main or developed characters on television, so the queer pairing is generally non-existent in the original work. In this way, fans are able to participate in the creation of culture by “queering” mainstream heterosexual media.

Copyright

In the most basic sense, remix culture is engaged in creating derivative works. Characters and worlds, images, and songs used in remixes are protected under copyright law, which gives owners the exclusive right to create derivative works . Though these characters, images, and songs are protected, the purpose of the derivative work may or may not fall under fair use and the legality of remix videos is in murky waters.

In his analysis of fan fiction, Schwabach (2009) notes that the reasons a copyright owner may object to the use of his or her work generally fall into one or more of three main categories. First, the owner may object to the use on moral grounds (p. 10). This is especially prevalent when the users create new personalities for established characters, such as having illegal or socially unacceptable acts occur. Pedophilia and rape are more extreme examples, but the owner could potentially object to any use that goes against their own morality, such as sexual situations and political or religious viewpoints, or because they believe the new work to be out of character. Because it can be used to tell a new story or give a completely new meaning to a work, video remix can definitely fall into this category.

The second objection would be to prevent future liability on the part of copyright owner for infringing on the copyrights of user-generated content. This can be seen in the case of Marion Zimmer Bradley. As an advocate of fan fiction, Bradley spoke favorably of fan fiction, even going as far to write forwards in printed magazines dedicated to creating new stories based on her work. The mutual love and appreciation ended when a fan accused Bradley of stealing and not attributing credit to a story that the fan had written for a fan fiction magazine. The issue was eventually settled out of court, but not after Bradley had decided the legal risk was too high and put a stop to fan fiction based on her copyrighted work (Schwabach, p. 22-25). Because fanvids are generally only about 2-5 minutes (about the length of a song) and are based on video images that already exist, it would be very hard for the creator of a fanvid to prove that any future work by the original copyright owner was in any way infringing on the remixer’s copyright. In the case of protecting the copyright owner from liability from future works, video remixes are not a threat.

Finally, the author may object to the use of a work if the newly created work borrows too much from the original. This is a factor that definitely impacts video remixers. Editing a few, mostly uncut scenes together with music would unquestionably infringe on both the video and music copyright holder’s rights, but when a remixer uses small snippets rather than long, uncut scenes, it becomes more complicated. Though all of the video that the remixer is using is borrowed, the content may be original, especially if the remixer has created a new story. In this last instance, the copyright holders (both music and video) will mostly likely be able to pose an objection to a video remix.

As noted earlier, remix videos can fall into two major categories: Those that are created for educational purposes, and those that are fan works. In the first, fair use is applicable; the U.S. Constitution  notes that copyright law works to encourage science and the arts, and that “creation and dissemination of knowledge is the purpose of copyright” (Russell, p. 1). Copyright law makes exceptions for the use of materials that work as criticism, commentary or scholarship, depending on the commercial aspect, nature, amount of work being used, and the effect on the market (section 107). These works need to be individually assessed, but have a good chance of falling under fair use.

Fan works are a bit trickier to determine, as their use can be referential or transformative. Referential works do not seem to have any rights under copyright law; as they are not adding value but just merely regurgitating copyrighted material, the intent of referential fanvids does not generally qualify for fair use. On the other hand, fanvids that are productive or transformative set out with the intention to create new fiction or commentary using borrowed content. They are meant to create something new, whether that be spurring dialog, fashioning a story that they wanted to see happen, or constructing a parody.

Figuring out whether a remix is referential or a commentary can be difficult, as much like other art forms, the intent of the use and how people view the end result can be in conflict with one another. A recent post from Political Remix Video, a blog dedicated to posting and discussing video remixes that are political in nature, notes that because “remix and vids are not a necessarily inherently critical form, we viewers can only rely on the visual display of content and the intent of the creators to decide whether or not they are political in nature” (Kreisinger, 2009). A remixer may intend to create new value and fail in the eyes of other viewers, while a video that was just meant to be a fun fanvid may unintentionally provide commentary on a serious topic. Kanye West’s music video for “Love Lockdown” can be seen as a discussion on colonialism and African-American sexuality, but he insists that it was merely inspired by the movie American Psycho (which was in turn based on a book of the same name by Bret Easton Ellis). So, is the value of a remix determined by intent or by end result? This is a question that the courts will have to decide on a case-by-case basis.

One factor to look at in conducting a fair use analysis is the effect on the market, or rather if the work utilizing copyrighted material will adversely affect the market for the original. This is where fan work, and especially video remixes, gets interesting: Short music video-versions of a cinematic work will not displace the original in the market, but in fact may actually boost demand for the original work. In Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. , the Ninth Circuit deemed that a program that changed game attributes (allowing players to cheat) was fair use “in large part because it had the potential to improve the market for the original by adding variety to it” (Tushnet, 1997, p. 670). Fanvids do the same; there is an affect on the market, but one that definitely benefits the copyright holder. Schwabach notes, though, that melding two different mediums rarely benefits both original copyright owners; a video remix using all of the existing Harry Potter movies set to a Nine Inch Nails song may create an interest in Harry Potter, but it might not provide any benefit for Nine Inch Nails (p. 37).

In the world of fandom, there is a general agreement among fan authors that non-commercial use is fair use (Tushnet, 1997, p. 664). Many remixers use disclaimers, either at the beginning of the video or in the text accompanying the video, to show that there is no intention of harm. Though not sufficient to evade liability, this allows remixers to identify themselves as both consumers and producers of images, but also recognize that they are borrowing materials and to give credit to the original creators (Tushnet, 1997, p. 678).

Though this may not be legally sound, copyright owners generally do not prosecute remixers, though there has been a recent hard stance on the issue. The Digital Millenium Copyright Act of 1998 , or DMCA, is an amendment that was passed in 1998 which updates copyright law to cover digital materials. In January of 2009, corporate copyright owners began to utilize YouTube’s Content ID system, which is an automated copyright filtering system, to systematically send out DMCA takedown notices  to all potential copyright infringers, regardless of the actual use of the material. YouTube’s policy is to blindly comply with the DMCA takedown system and not take fair use into consideration (Anderson, 2009). The end result has been a “fair use massacre”, with materials being taken down without any type of fair use analysis or discussion (Von Lohmann, 2009). This system also threatens free speech by allowing critics to be censored: The documentary-style work of a famous blogger/film critic was not only deleted under the YouTube/DMCA takedowns, but his entire YouTube account was disabled (Anderson, 2009), while the Professional Rodeo Cowboys Association used takedown notices to effectively censor an opposing animal rights group (Sanchez, 2009). This means that snippets of cats acting crazy and set to music (which are technically remix videos, though the use of original material is not discussed in detail in this analysis) or children dancing to music are now being targeted by copyright holders who are over-exploiting the use of DMCA takedown notices  (Kravets, 2008). The use of DMCA takedown notices have essentially geared up the non-techie general public (i.e., parents) to learn about the ways in which the DMCA is being used to limit fair use. The maintenance of the YouTube/DMCA take-down policy continues to take away user’s rights and potentially give unlimited powers to the copyright holders, but as their rights dwindle, the public is becoming more educated about copyright issues and now has the ability to fight for greater protections under fair use.

The Future of Remix

In the past decade, the beginnings of a paradigm shift about the way we view digital property and capitalism has begun to take place. Though copyright law continues to increase the time period for copyright ownership, the general public is beginning to merge with youth culture in placing value on a participatory society. Copyright owners are also beginning to realize the potential for fan-support (and profits) that a remix culture can generate. Pop-singer Britney Spears has capitalized on the fan-base that can be created by supporting and encouraging remix culture by creating remix contests. In 2007, she launched a video remix contest that encouraged fans to create their own music video using her latest single. MTV opened their vaults of Spears’ footage so users would have the best material available, and the winning video was aired on MTV’s TRL. Harry Potter owes much of its sustained popularity to the fan-created content that prolonged interest in the books and movies even when there was no new content being created by J.K. Rowling. Instead of penalizing fans for being engaged in and excited about their work, artists are beginning to understand the potential for fostering a culture around their work, while still being cautious of maintaining their own rights.

A major advantage of video remixes is the community and culture it creates around an idea or previously copyrighted work. Jenkins notes how the creation and exchange of videos sets the stage for a “communal art-form, one contrasting with the commercial culture from which it is derived in its refusal to make a profit and its desire to share its products with others who will value them.”  (p. 249). Video remixes, and fanvids in particular, do not seek to create a profit or to steal profits from copyright owners, but to express ideas, create dialog, and contribute to a culture.

“People should be able to participate actively in the creative aspects of the world around them. When most creative output is controlled by large corporations, freedom to modify and elaborate on existing characters is necessary to preserve a participatory element in popular culture. Copyright’s purpose, after all, is to encourage creativity for the public interest, not only to ensure monopoly profits” (Tushnet, 1997, p. 33)

Tushnet’s words are especially relevant to the creation of remix videos in a DMCA-laden era. As society continues to move towards a participatory “Web2.0” culture, copyright law will have to change or risk turning all of society, parents and grandparents included, into a “pirate” culture.

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