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.

Bibliography

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