Eric Jennings

Someone commented on my blog post regarding the Peanuts video that uses Outkast’s Hey Ya!. This person did not agree with me that this video’s use of the Charlie Brown Christmas special & Hey Ya! was fair use. So, this got me to thinking, what can I write that would better make my point as to why it is fair use. As much as I like Wikipedia and the minds of my anonymous friends around the world, calling upon the experts from the Center for Social Media is probably a better bet in this case. Their document “Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video” (PDF) talks about this issue directly and I will consult it.  I’m also going to use the document “Educational Fair use Today” (PDF) from the Association of Research Libraries for this post.

Again, I am not a legal scholar, this is just my interpretation. But, if you are a scholar, I’d love to hear from you why I am right or wrong so that I can understand this issue more fully.

The commenter believes that because the “visual and audio” from the Charlie Brown Special go together, the creators of this mashup has “violate[d] the artistic integrity of the work.” When looking at the case of Blanch v Koons as is described in the Educational Fair Use Today (EFUT) document, the artist who violated the artistic integrity of the original work was found to be within his rights. As we see from the case notes itself (which are quoted in EFUT) ““[t]he sharply different objectives that Koons had in using, and Blanch had in creating, ‘Silk Sandals’ confirms the transformative nature of the use.” Thus, I would say that in the case of the Charlie Brown video, the objective that CommyOstrich, the original uploader of the video, had is entirely different than that of the Christmas special. Obviously it is about Christmas which has nothing to do with dancing around to Hey Ya!, nor anything to do with Polariod Pictures.  CommyOstrich has made a music video for Hey Ya! using Charlie Brown.  While the artistic integrity of the original video may be compromised in some peoples’ views, the objective is sharply different.

Secondly, I think that because the audio and video are not matching, that alone shows you how this work has been transformed from its original intent to something entirely different. As Recut, Recycle, and Reframe (RRR) says “Pastiche and collage videos [which the Peanuts video clearly is] that cleverly recombine existing elements to produce new meaning will be defensible even if their approach to preexisting material is respectful rather than transgressive.” The meaning, in my opinion, has been changed in this video.  The meaning is respectful in my opinion because it doesn’t say anything negative about Charlie Brown or the Peanuts gang.  It’s just a new take on the gang.

A second problem that the commentor had with this video was with my belief that by using parts of the Charlie Brown Special, CommyOstrich was not in violation of copyright. it is obviously true that the person liberally used parts of the video, but I would point out that CommyOstrich clearly changed the video in such a way from which it was originally intended. Take a look at the 2:32 mark in the video as just one example. In the original video, does Charlie Brown nod his head back and forth like this new version has him doing? I don’t think so. I call that transformative. Like I said, that’s just one specific part of the entire video. There are many others within there such as that at 1:39 in which the lyrics are synced up with the video. If we were to go to the original video, the part in use at 1:39 does not follow the dance sequence for 2 seconds and then go back to the Peanuts gang on the stage. The author has used parts and pieces of the video to sync up with the song. I liken this to the use of the Muppets’ “Mahna Mahna” song which is used on the Center for Social Media’s website as part of their own Remix Video illustrating “mashup.” While their video uses just a snippet of the anime and Muppets song, their choice of that particular video makes me believe that they (American University’s Program on Information Justice and Intellectual Property and Center for Social Media) believe it fair.

The RRR document sets up Mashups in this manner:

The mashup, a common video phenomenon in which two or more kinds of copyrighted works are mixed to create new meaning, often features an obstreperous or impudent attitude toward the copyrighted popular culture from which it draws. Mashups commonly feature improbable combinations that may provide not only pungent but funny political or social commentary. Other mashups add new value not by commenting on existing culture but by adding new, personal meaning to it. All their makers express thereby a zest for participation in culture-making.

This participatory spirit explains the transformativeness that marks so much quoted copyrighted material. Most online video makers incorporating copyrighted works (as opposed to those simply copying them) do not seek to replicate the services provided to them by mainstream media providers. They are sampling in order to comment, critique, illustrate, express. They are salvaging, rescuing, celebrating, heralding, bonding. They are expressing vital connections both to popular cultural expressions and also to others who share their passions and the meanings that they have created around those expressions.

So, there you have it.  That’s what I think and I hope I have expressed myself well in my non-expert manner on this topic.  It is not easy as the RRR document says, especially in the case of mashups in which “creators are developing practices that are at or near the boundaries of contemporary fair use analysis.”  But, I think that it’s good for people to think about these things, especially in the changing world in which we live.  It’s especially good for people to push the boundaries too because without knowing what the boundaries are, we will continue to be shackled by outdated ideas of copyright.  Or, as is stated in the EFUT document that the 9th circuit was mindful of what the Supreme Court said of, “the importance of analyzing fair use flexibly in light of newcircumstances[,] … especially during a period of rapid technological change.”

I’d love to hear some more thoughts on this topic, legal scholar or not.  So, view the video in question, read some documents that you think are worth noting and post a comment.

A few months ago, I posted about a computer science major who had done some research about the third party applications that many people add to Facebook.  In her research, Adrienne Felt found that “90.7% of applications are being given more privileges than they need.”  Well, the BBC recently did a little research of their own and found that even though you may not install any of those applications on your Facebook profile, having a friend who has done so can compromise your profile’s data.

The BBC created a third party application that allows the application’s owners to harvest personal details like a person’s name, hometown, school, interests and photograph.

We wrote an evil data mining application called Miner, which, if we wanted, could masquerade as a game, a test, or a joke of the day. It took us less than three hours.

But whatever it looks like, in the background, it is collecting personal details, and those of the users’ friends, and e-mailing them out of Facebook, to our inbox.

When you add an application, unless you say otherwise, it is given access to most of the information in your profile. That includes information you have on your friends even if they think they have tight security settings.

Did you know that you were responsible for other people’s security?

The BBC asserts that this type of application can make stealing someone’s identity that much easier.  I think they’re right.  I may be a little more paranoid than others on Facebook because I don’t add applications simply because you sign away your information to those people who created an application.  I’m sure that most of the applications are harmless, but there are some that might not be.  You’re probably saying to yourself that I’m crazy since I have a blog which gives out a lot of personal information.  You’re right.  But, I also have control over what goes up on the blog but I don’t have control over what information one of those third party applications takes from my Facebook profile whose information I can control.

Interestingly enough, the difference between Facebook and its rival MySpace, who recently added applications, is that MySpace’s applications reside on MySpace servers.  This allows them to make sure applications are not taking information that they shouldn’t or just being nefarious like the fake BBC Facebook application was.  Facebook responded to the news story saying that they have a team of investigators who are on top of things when it comes to malicious applications.  Much of what they said was pretty weak in my opinion basically shirking the responsibility since the third party apps aren’t from Facebook.  They also point out, correctly, that the people who add an application are ultimately responsible for their own actions and if they suspect anything being done with an application is wrong, they should report it.

Where does this leave us?  Well, we can’t all just get rid of friends on Facebook because what’s the point of a social network if you don’t have any friends?  I think the main thing is that we all need to be more careful about letting information out online.  There are obvious benefits to being part of an online community and as this report and others have shown, there are drawbacks as well.  Being responsible with the data that you give out and actually going through the privacy settings is the easiest way to make yourself comfortable.

Forgive me if I’m behind the times, but I don’t always get to things that I see in Educause right away. I just read an article by Joan Lipnicott called “Student Content Creators: Convergence of Literacies” (PDF) that argues that information & technology literacy skills can be combined through a more rigorous or proscribed curricular integration of content creation mediated by technology. Lipnicott says,

I suggest using a framework that focuses on higher education’s need to prepare students to be content creators within their disciplinary or professional specialties. Delineating the skills that students need in order to create content within the disciplinary context could be a more meaningful way of encouraging the integration of a wide variety of skills into the curriculum.

One one level, I think she’s right. She’s right because students’ use of information within disciplines is often different. That being said, I’m not sure I really understand how creating contect via some technological medium is different than the skills that the ACRL lays out in its Information Literacy Standards for Higher Education. Specifically, I’m looking at Standard 4 which says “The information literate student, individually or as a member of a group, uses information effectively to accomplish a specific purpose.” And, one of the performance indicators of this standard is “The information literate student communicates the product or performance effectively to others.” As the outcomes for this performance indicator suggests, content creation, is as much a part of information literacy as anything else. After all, once you find information you have to do something with it - whether that be internalize the information for your own self or write a paper or produce a documentary that you upload to YouTube. Whether she or others call it technological literacy or media literacy, it’s all the same to me and falls under the heading of information literacy.

She says in her article that students need the skills because new graduates are often looked at by employers as those who can help them create digital content. And, she quotes a few scholars like Elizabeth Daley who says “those who are truly literate in the twenty-first century will be those who learn to both read and write the multimedia language of the screen.” Or, Henry Jenkins who says that new media literacy should be taught alongside traditional written literacy. I don’t disagree with either of those scholars who feel that the Internet and multimedia technologies need to be used and taught in schools. I think that they’re just as important as writing a paper was and still is.

I guess the thing that I don’t get is why they are separated and she acknowledges this in the last paragraph of her paper. “it is difficult to separate out where media literacy ends and where technology literacy begins—or where information literacy begins and where technology literacy ends.” Further, she says,

It is time to frame the discussion of literacies in the context of academic work products rather than in the context of organizational structures (e.g., library, computing, English department, media department).

That basically is a reiteration of what I quoted at the beginning of this post. These skills are not just library skills or English skills, they are everyone’s skills. Everyone is responsible. As a librarian, I know that I’ve never wanted information literacy, which I feel encompasses all of the literacies she describes, to be in the sole possession of the library or librarians. Serving on the information literacy sub-committee of the general education committee here at CSU has only reinforced the notion that teaching students to be information literate in all its forms and manifestsions is not the library’s responsibility. It is the academy’s responsibility.

I’m reminded of the DIKW (Data, Information, Knowledge, Wisdom) hierarchy that we discussed in library school and I think it’s appropriate now as an illustrative tool.

As you can see, we want information literate students to have the wisdom to do the right things, to make smart decisions regarding all of the information that is bombarding them. That means that they can research and write a paper using the many resources that are available to them. It also means doing a project using a digital video camera (as Lipnicott suggests, being a content creator) if that is the best way to convey the information that they want to get out there whether that be for a professor or for a job that they have after they graduate.

In sum, the skills necessary for becoming an information literate student may depend and differ based on the discipline that one is in and that’s fine. However, I think that if we have a common understanding of what students need to learn (or at the very least things we have introduced them to) by the time they graduate so that they can be successful in whatever career path they may choose, that’s what we should be striving for. You can’t give them all of the information in the world and tell them to internalize it. You can, however, build the skills and abilities necessary to find, evaluate, and use information that they can employ after graduation (i.e., become lifelong learners or giving them DIKW skills). That’s information literacy in a nutshell.

This is a good example of how you can use claim fair use when using copyrighted works. I’m not a lawyer, but this is what they tend to call “transformative.” Plus, the guy in the video, Judson Laipply, is not using the entire work, just part of it. So, hope this picks you up on a Monday and you find a little humor in it.

As I was reading through my emails the other day, I came across an interesting piece of information about a professor at Case Western Reserve that uses a fictional copyright infringement case and a blog to get students to think about fair use. The blog, as I was poking around it, has some interesting things that are worth reading. There is even a mention of one of the cases that I wrote about before on fair use and education. But, what I wanted to share from that blog was a video that was a mashup of the Charlie Brown Christmas Special and Outkast’s Hey Ya! In addition to being well done, I think that it is a good example of the transformative nature of these copyrighted materials.

In order to understand why it is, in my opinion, fair use, we need to look at the ways in which one can claim fair use.

The Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” So if you are commenting on or criticizing an item someone else has posted, you have a fair use right to quote. The law favors “transformative” uses — commentary, either praise or criticism, is better than straight copying — but courts have said that even putting a piece of an existing work into a new context (such as a thumbnail in an image search engine) counts as “transformative.”

The courts try to use four different ways to determine fair use. They are:

• The purpose and character of the use.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used.
• The effect on the market or potential market.

So, when thinking about this particular video, you would definitely have to say that the purpose and character of the video has been changed significantly. That is, it has been transformed. While the authors of said video use the whole of the Outkast song, they do not use the entire Charlie Brown show. They use portions and string them together to make a video. Again, it has transformed the original work into something else. As they say on the EFF website for the effect on market “If you use the copied work in a way that substitutes for the original in the market, it’s unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair.” The video obviously serves a different audience and purpose than the original. I could, however, see how Outkast might think that because their entire song is in the video that it might detract from someone buying the single or album because they could watch the mashup. That being said, the quality has been reduced significantly in such a manner that I, a non-legal scholar, would consider it transformative. I don’t know what else to say regarding the four elements, but I also think that if someone watches the video and likes the song they might actually go out and buy or download (hopefully legally) the song. This adds, I think, to the potential market and can be beneficial.

On a similar note, someone had commented on the fair use article that I link to above about fair use in education about some work that she is doing that would be worth checking out. So, hop on over to the Media Education Lab at Temple University. They have what looks like interesting articles to read and there is even a video to watch that has a PDF article that goes along with it called “The Cost of Copyright Confusion for Media Literacy.”