Remixing Videos

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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.

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Tags: copyright, fair use