Mashups, Fair Use and Community Standards

February 5, 2008 by Michael Dytyniak

Mashup culture continues to expand and proliferate, especially in the online word. Many audience members are no longer content merely to consume media, but actively comment on it, interact with it and reshape it. The explosion of repurposed copyrighted material that appears online challenges old notions of the fair use doctrine, and suggests the need for a new approach. The study “Recut, reframe, recycle” by American University’s Center for Media Studies suggests that efforts by media conglomerates to systematically filter and remove their copyrighted works from video sharing sites such as Youtube will trample the fair use rights of many video creators. In such an environment the “mashup generation” might never know their fair use rights as content creators. Of the countless user generated videos online that contain unlicensed material many can lay claim to a fair use defense. The study lists 9 types of uses of copyrighted works in online videos:

· parody and satire

· negative or critical commentary

· positive commentary

· quoting to trigger discussion

· illustration or example

· incidentally use

· personal reportage or diaries

· archiving of vulnerable or revealing materials

· pastiche or collage

While parody and satire are likely to be protected under current fair use precedents (at least in the United States), some of the categories do not fall under accepted examples of fair use. The studies cited examples where the “quoting” of video clips to trigger discussion was merely the posting of the entire copyrighted work, with no commentary or other original work added by the original poster. In such cases, a fair use defense is unlikely to succeed. However, there are many examples that push the boundaries of existing fair use doctrines– collages or mashups may use extensive portions of copyrighted works, but nonetheless be transformative in nature. Boundary cases and novel categories point to the need to articulate best practices in fair use for online video. The authors suggest another established code of best practices as a model.

“Documentary Filmmakers Statement of Best Practices in Fair Use.” provides easily understandable fair use guidelines for documentary filmmakers. The authors provide four broad categories of fair use, including examples and associated limitations. The four classes of use are as follows:

· Employing copyrighted material as the object of social, political, or cultural critique.

· Quoting copyrighted works of popular culture to illustrate an argument or point.(IE: film clips might be used to illustrate changing cultural attitudes over time.)

· Capturing copyrighted content in the process of filming something else.

· Using copyrighted material in a historical sequence (i.e.: copyrighted material such as music and might be the best way to depict a historical era.)

It is interesting to note that the authors consider the statement of best practices be an aid establishing what generally accepted practices are in the documentary filmmaking field. This is an underlying consideration that courts use in assessing fair use, and so, such self-regulating guidelines might provide guidance to courts, and proactively protect content creators in various fields. For example, statements of best practices for DJs or visual artists could be developed. Such self regulation might provide an alternative to exhaustive statutory provisions or inconsistent judicial interpretation. However, one criticism is that the guidelines are not especially specific. The indeterminate area where perhaps too much copyrighted material has been “borrowed” is not carefully defined. Despite this, community standards (in consultation with legal experts) might have a crucial role to play in the future of fair use/fair dealing.

The question arises whether such “community standards” could be effective or even desirable. Complex assessments of fair use in borderline cases are likely best handled by a judge. However, it must be remembered that user-generated online video is a field in its infancy. The purposes and motivations behind this new media frontier are little understood. As time passes there is likely to be a “dialogue” between creators, the courts the original rights holders, and possibly even legislators as to acceptable practice in this field. In any case, an equilibrium must be found so that professional media producers and amateurs alike can both flourish.