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

Last time, I shared with you the story of Stacia Yeapanis, an artist whose videos deploy appropriated footage from television programs. She recently received a cease and desist notice when she posted her works on YouTube. More and more of us are receiving such notices for content which we might have believed fell under fair use. Such notices have a "chilling effect" on this emerging platform for participatory culture. Trying to understand these issues more fully I contacted some friends who are doing cutting edge work around fair use and user-generated content. Each of them shares their reactions to Stacia's story below.

Peter Jaszi:

Let me start by saying that I think that Ms. Yeapanis' fanvid "We Have a Right to Be Angry" has a lot going for it where copyright fair use is concerned. It creates "new meaning by juxtaposition," to borrow language from our "Code of Best Practices in Fair Use on Online Video" (p,9). And it also can be understood as "commenting on ... copyrighted material (p.5). The hardest aspect to defend would be the use of "Invincible" in its entirety, but even there the argument is pretty strong: the clips illustrate the song in ways that "help us to hear in a new way." And, in any event, the take-down notice to Youtube came from Fox, not Sony (or Pat Benatar).

But, that, of course, isn't the end of story. Ms. Yeapanis is right that were she to formally request a put-back, Fox might begin a lawsuit against her -- if it actually were inclined to press its claim. That's because Section 512(g) of the Copyright Act says that if a suit hasn't been filed within 10 business days of the so-called "counter notice," YouTube can put the video back up without losing its qualified immunity from liability for infringement.

Would Fox choose this course of action? It's hard to know, but there's reason to think that if she (and YouTube) were to stand up, Fox might sit down. Large, well-counseled copyright owners generally don't pursue claims that they might lose -- especially when the loss might be a adverse legal precedent. on an issue as volatile as fair use. And the law isn't as far behind the practice of remix culture as the post suggests. Jeff Koons may have lost his case back in 1990-91, but in 2006 he won a big fair use victory in the Second Circuit Court of appeals, in Blanch v. Koons. The case involved use of a cropped advertising photo in a collage, and the court decided that the case turned on whether the artist "had a genuine creative rationale for borrowing Blanch's image, rather than merely using it merely 'to get attention or to avoid the drudgery in working something fresh up.'" In other words, they decided it was a "transformative" use.

Legal developments notwithstanding, we all can sympathize with Ms. Yeapanis' concern about the potential expense and incidental stress of becoming a fair use "test case" -- in the (perhaps unlikely) event that it ever came to that. Of course, were YouTube to restore the vid, and were Fox actually to sue, she'd still have the (admittedly somewhat humiliating) option of cooperating in yet another take-down to settle the matter. But, perhaps, in the meantime, she'd have been able to find a lawyer to take her case pro bono. There already are resources out there: the Fair Use Project at Stanford, volunteer lawyers for the arts organizations in many cities, EFF's lawyer referral service, a network of law school-based IP clinics around the country, and more. But if we take fair use seriously -- and we should -- we need to find more and better ways to support the risk-takers among us!

Peter Jaszi is faculty director of the Glushko-Samuelson Intellectual Property Law Clinic and professor of law at American University. He was co-editor of The Construction of Authorship: Textual Appropriation in Law and Literature (1994). Through the Center for Social Media, he has been helping to develop "best practices for fair use" for documentary filmmakers, DIY video producers, and media literacy educators.

Rebecca Tushnet:

I think the artist does a great job of articulating the issues and the connections between the art world and nontraditional communities making their own art, which also has a context that can take outsiders a while to grasp. One of the challenges we face is persuading intermediaries like YouTube to stand up for fair use more aggressively. The really interesting thing to me about this round of takedowns is that they often stem from automated searches by YT itself, not copyright owner complaints. YT is adopting screening technology to show its good faith in combating copyright infringement, but automated systems inherently risk catching what EFF calls fair use "dolphins" among the infringing "tuna." And because these aren't copyright-owner-initiated, the part of the DMCA that allows videomakers to file a counternotification and get the videos put back doesn't apply; YT has the discretion to simply say, we disagree with your fair use claim and we're keeping the video off.

The big lesson, I think, is this: Fair use is no longer predominantly a conversation with courts and occasional legislators. It is instead part of the structure of the internet; it has to be part of private institutions' design as well as formal law, or the formal law will become irrelevant.

Rebecca Tushnet is a law professor at Georgetown who specializes in intellectual property and a member of the board of the Organization for Transformative Works.

Kevin Driscoll:

When YouTube Product Manager David King announced the beta release of "content identification" tools on the Google blog in 2007, he reminded readers that submitting copyright infringement claims would remain as easy as "the click of a mouse." In the intervening year, the contributions of thousands upon thousands of users have been disabled on behalf of just a few industry stakeholders. When it comes to the application of the Digital Millenium Copyright Act, a process that impacts citizens' ability to own and author their media environment, how easy is too easy?

Fanvidders were among the first communities to respond to YouTube's commitment to go "above and beyond" its legal obligations to copyright claimants. Faced with videos silenced and disabled for their transformative use of popular music, vidders like zcatz recorded glum farewell notes for their subscribers and set sail for friendlier sites like imeem and Vimeo.

Numerous other creative communities relying on YouTube's video sharing service have faced a similar decision: should they weather the uncertainty of life at YouTube or retreat to a niche service in the hope that there is security in (relative) obscurity.

Pauliewanna demonstrating "Limelight" by Rush

Unlike the vidders, the Living Room Rock Gods (LRRG) have stuck with YouTube and channeled their frustration into the loose-knit resistance movement Tribute is not Theft. LRRG members like Pauliewanna recorded impassioned video blogs addressing the recording artists they idolize. They stress the role of learning and respect for intellectual property that pervades their community, confounding the stereotype of anti-copyright radicals flaunting the law.

Paulie, the drummer featured above speaks directly to Rush's Neil Peart,

"We're just trying to do what we love. [To] listen to your music, play it, share it with others, show them how it's done, see how they do it, compare notes. [...] Our primary reason is to share with other drummers. We just want you [...] to know that this is happening."

The Rock Gods' experience reveals an imbalance in YouTube's community support. While a handful of major stakeholders are provided special tools to automate identification and facilitate the pursuit of copyright infringement claims, the remaining majority of YouTube users are left confused and frustrated.

Kutiman - 01 - Mother of All Funk Chords

The diversity of material presented by YouTube's users presents a thrilling challenge to conventional understandings of ownership, authorship, and originality. Unfortunately, YouTube's existing architecture leaves little room for human intellect to confront and interrogate these delicious details. When I filed a counter-claim for one of my own disabled videos, I learned that YouTube no longer evaluates the accuracy of copyright claims made by its Content ID system:

[S]ince the identification of the claimed content was automated, we are unable to accept your counter-notification at this time.

In other words, YouTube's current policy denies my opportunity to file a counter-claim (as described in S.512(g)(3) of the DMCA) and privileges the judgement of software over that of a human observer.

YouTube is wise to be proactive in defense of copyright. Antagonizing extent media industries does little to resolve persistent tensions in digital culture. But if its effort to please the handful of major stakeholders fails to consider the fair use rights of informal media practitioners, YouTube will sacrifice the vibrant creative communities that made it worth visiting in the first place.

Kevin Driscoll is a masters student in the Comparative Media Studies Program working on a thesis dealing with hip hop culture, technology, and pedagogy. Kevin is a frequent collaborator with internet-based artist Claire Chanel and a hip-hop dj responsible for Gold Chain and Todo Mundo events.