Locating Fair Use in the Space Between Fandom and the Art World (Part One)

Earlier this year, I received the following account of the experiences of Stacia Yeapanis, a young artist who straddles the art world and fandom: she produces videos which appropriate footage from popular television shows for the purposes of critical commentary and artworks which use as fannish television shows or deploys The Sims game world as their raw materials. Her videos, produced for art installations, very much resemble those produced by female fan vidders. As an experiment, she posted one of her vids on YouTube to see how people would respond and as a consequence, she found herself confronting the mechanisms by which corporate media regulates the production and circulation of participatory culture.

I found that her story raised important issues which I wanted to focus attention on through this blog. It came at a time when organizations like the Electronic Frontier Foundation have been raising concerns about YouTube policies to police content which push well beyond established norms in copyright protection and erode Fair Use rights of contributors. The EFF's Fred Von Lohmann posted some important critiques of YouTube's new practices in early February, including some recommendations which would have a big impact on the vidding world: "YouTube should fix the Content ID system. Now. The system should not remove videos unless there is a match between the video and audio tracks of a submitted fingerprint." While I have sometimes been critical of the EFF for adopting stances which undercut the Fair Use rights of fans, this time they are defending the rights of anyone to make transformative use of media content via videos.

Today, I am sharing her story and her video. On Friday, I will be sharing response to the stories from others who have been on the front lines of the struggles over fair use and grassroots expression. I'm hoping this will spark some further discussions in fandom, in the art world, and in the circles that shaping intellectual property law.

"Confessions of an Aca-Arta-Femi-Fan"

By Stacia Yeapanis

On December 1st, 2008, I received a takedown notice from YouTube in reference to my first fanvid "We Have a Right to Be Angry." Fox Broadcasting had blocked the video using an automated video ID system that identifies copyrighted content. After much anxiety, I removed my video on December 5th.

In "We Have a Right to be Angry" I appropriate footage from Buffy the Vampire Slayer, Xena: Warrior Princess, and Charmed. It is edited to "Invincible" sung by Pat Benatar. By uniting the fictional feminist icons of my adult life, Buffy, Xena, and the Halliwell sisters, with a real-life feminist icon from my childhood, Pat Benatar, I explore my own complicated position as a feminist in contemporary society. The women in the video vacillate between running, lying low, and fighting back. As these women from different TV shows pass a sword around, they share collective power that extends beyond the boundaries of their fictional universes. They are fighting cultural patriarchy on its own terms and they are doing it together.

During the 5 days between getting the notice and removing the video, I was extremely conflicted about what to do. As an appropriation artist, I already had a basic understanding of copyright law, and I believe my video falls under fair use. But I was only vaguely aware of the Digital Millennium Copyright Act (DMCA) and the takedown notice procedures. For example, YouTube did inform me that I had the option to dispute Fox's claim, but I didn't know how long I had to make this decision. If I took too long to consult an attorney, could the situation escalate to an official Cease and Desist letter? If I disputed based on the doctrine of fair use, would Fox back down or take me to court?

I watched my own fanvid over and over again. It seemed to have the answers. In light of the takedown notice, a new meaning that was floating beneath the surface emerged for me. The video was always about the struggle of any feminized (read: marginalized or disadvantaged) group. It was about aggression and injustice. It was about collective power that takes place on many fronts. But now it is also a metaphor for the struggle over meaning between producers and consumers. Mass media corporations are clinging to rigid ways of thinking about who controls meaning and how meaning is made. The feminist icons in my video are now also fighting outdated copyright laws that have begun to prevent the free flow of culture. Their swords are metaphors for fair use. I felt that if I didn't dispute, I would be letting Buffy and the others down. I wanted to fight with them.

At the same time I also began to worry about the difference between theory and practice. Theoretically, fanvids fall under fair use. Most legal scholars who are writing about fanvids in law reviews come to this conclusion, at least where the video is concerned. I would argue that even the uncut audio, which is more often assumed to be infringing, is transformed merely through juxtaposition with the video. But there don't seem to be any case precedents to this effect. Theoretically, appropriation art also falls under fair use. But as we learned from Rogers vs. Koons, conceptual art that rests on a foundation of postmodern theory does not fare well in court. Understanding appropriation art, like fanvids, it isn't a matter of intelligence. It's a matter of having specialized information and understanding how context affects meaning. The Art World is a subculture that is as misunderstood by non-members as Fandom is.

In all of my research since the takedown notice, I have yet to find any discussion online about the shared interests of the Contemporary Art World, Media Fandom and Media Scholarship. Professional appropriation artists seem to have flown under the radar, except in cases when the artist begins to make a lot of money. The few cases I know of (Jeff Koons, Andy Warhol, Richard Prince) have all involved appropriation of printed images and only Koons actually had his day in court. (He lost.) At this stage in my research, I'm not aware of any cases involving appropriation art that uses video or audio. The distribution of contemporary art seems to still have the invisibility that fanvid distribution used to have before the advent of the Internet.

I have this suspicion that if I just show my work inside the traditional gallery system, I will be safer from litigation. But if I want to reach across the boundaries of the art world and blur the line between mass-media culture and fine art by posting my work on YouTube, I better watch out. It's almost as if the law is barring me from pursuing hybridity. And that's really the foundation of my practice. My work is a synthesis of conceptual art, already a synthesis of cultural theory and art, and fandom. I'm responding to the ironic appropriation art of the '80s and '90s by adding my sincere Fandom into the mix in order to question cultural hierarchy (i.e. the idea that "high" culture is better or more important than "low" culture). If I can't appropriate, then I can't make my work.

I removed the video from YouTube with the intention of arming myself. It was clear I wasn't quite ready for the big battle against the Big Bad. I want to be part of the movement for reform of copyright law, but there are two problems. One is financial. I don't have any money to go to court. Even if I were to win the case, the costs alone could have a devastating effect on my life. I am an emerging conceptual artist. That means I don't really get paid to make artwork at this point in my career. And two, I'm not sure if I could win. I fear that my hybrid position as artist/ fan and the fact that my art practice rests on conceptual, not visual, strategies would be detrimental to my case and to the cause.

In the next 5 years, maybe this fear will seem absurd. Maybe by then, the law will have stretched itself to make room for the various cultural developments of the last 40 years, namely, postmodern theory and the destabilization of cultural hierarchy through appropriation art, fanvids and other forms of remix culture. In the meantime, it would be beneficial to have more conversation about the parallel development of appropriation in the Art World and in Fandom. It seems pretty significant that fanvids and appropriation art have been developing simultaneously since the '70s and yet their creators seem utterly unaware of each other. There needs to be a stronger acknowledgement of the overlap in the cultural work we are all doing as scholars, artists, fans and lawyers. We are all producers and consumers of our culture. We are all warriors, slayers and witches.

Stacia Yeapanis is a Chicago-based emerging artist and a media fan. Using strategies of accumulation, collection, appropriation and juxtaposition, she explores the emotional, political, and philosophical significance of various forms of cultural participation. By creating hybrid works that employ the histories and languages of both "Low" Culture and "High" Culture, she reveals the cultural and personal spaces where these binaries overlap. Yeapanis currently uses embroidery, video and photography to explore how individuals create meaning from mass media products.