Online video at risk of 'private censorship'

When college students make mashups of Hollywood movies, are they violating the law? Not necessarily, according to a new study on copyright and creativity from the Center for Social Media at American University.

It's a subject I've long been fascinated by and have wrestled with, both in Darknet and on Ourmedia.

The study, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, by Center director Pat Aufderheide and Peter Jaszi, co-director of the Washington College of Law’s Program on Information Justice and Intellectual Property, shows that many uses of copyrighted material in today’s online videos are eligible for fair use consideration. In short, they may be perfectly legal — the legal terrain is still murky. These uses — an exercise of freedom-of-speech rights — are now being threatened by anti-piracy measures online.

The study dentifies nine kinds of uses of copyrighted material, ranging from incidental (a video maker’s family sings “Happy Birthday”) to parody (a Christian takeoff on the song “Baby Got Back”) to pastiche and collage (finger-dancing to “Harder, Better, Faster, Stronger”). The study points to a wide variety of practices — satire, parody, negative and positive commentary, discussion-triggers, illustration, diaries, archiving and of course, pastiche or collage (remixes and mashups) — all of which could be legal in some circumstances.

I've read the report (22 pages, PDF) and it's the best look at the subject I've seen. From the announcement:

The researchers followed thousands of links for videos on 75 online video platforms and discovered nine popular kinds of use (extensive database of examples at centerforsocialmedia.org/recutvideos).

1. Parody and satire: Copyrighted material used in spoofing of popular mass media, celebrities or politicians ( Baby Got Book )

2. Negative or critical commentary: Copyrighted material used to communicate a negative message ( Metallica Sucks )

3. Positive commentary: Copyrighted material used to communicate a positive message ( Steve Irwin Fan Tribute )

4. Quoting to trigger discussion: Copyrighted material used to highlight an issue and prompt public awareness, discourse ( Abstinence PSA on Feministing.com )

5. Illustration or example: Copyrighted material used to support a new idea with pictures and sound ( Evolution of Dance )

6. Incidental use: Copyrighted material captured as part of capturing something else ( Prisoners Dance to Thriller )

7. Personal reportage/diaries: Copyrighted material incorporated into the chronicling of a personal experience ( Me on stage with U2 … AGAIN!!! )

8. Archiving of vulnerable or revealing materials: Copyrighted material that might have a short life on mainstream media due to controversy ( Stephen Colbert's Speech at the White House Correspondents' Dinner )

9. Pastiche or collage: Several copyrighted materials incorporated together into a new creation, or in other cases, an imitation of sorts of copyrighted work ( Apple Commercial )

“Today, user-generated video accounts for a sizeable portion of all broadband traffic. Some of these videos add value to existing copyrighted material, usually without the copyright owner’s consent,” Aufderheide said. “This kind of work is the harbinger of an emerging era of participatory popular culture.”

The study is part of a larger participatory media project for the Center For Social Media’s Future of Public Media Project. As the report notes, next steps include further research and the convening of a blue-ribbon committee to establish best practices in fair use for online video.

Aufderheide and Jaszi are appearing at the Consumer Electronics Show in Las Vegas on Monday to discuss the research. To watch some of the mashups that the researchers watched, click here. A copyright and fair use blog on the subject is here.

Cross-posted to SocialMedia.biz.