Recut, Reframe, Recycle: What’s “Fair Use” in New Media?

In the new terrain of participatory media, what’s fair and what’s foul in video mashups?

Many of us have laughed our heads off at the “Fair(y) Use Tale” spoofing Disney, but is character appropriation now a free-for-all? When is a remix a ripoff and when is it fair use in public media?

When kids boogie to soundtracks in front of their webcams and lip synch themselves into web celeb status like the Numa Numa guy, is it a royalty/rights infringement?

Is there a difference in poking the irony stick at a sleeping giant like Unilever to wake up consumers to the Axe/Dove battle of the beauty brands? Is everything potentially “social commentary” among er, um…“internet people?!”

This 3:51 video clip called The Remix Culture from American University’s School of Communication Center for Social Media frames the entire ‘copyright/creativity’ conundrum with brilliant simplicity.

As part of a larger project on participatory media with the Program on Information Justice and Intellectual Property, their latest study findings in Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video amount to merely a “part one” of their in-depth exploration into best practices. (22 pg. pdf of the full study here)

YouTubers, Blip.tv fans, VideoEggers, and video hubs will be pleased to know that what constitutes “unauthorized content,” has broadened a bit in this fair use study, but as the CSM director mentioned in this brief video interview, most people don’t even know how to define “fair use” much less abide by it.

It’s often interpreted as lawless, subjective terrain…(By the way, writers/producers, don’t miss this article, Ten Copyright Myths That Can Hurt You on the Notes on Design blog. (visual at left from their Design Sessions Community too)

Center for Social Media director Pat Aufderheide and Peter Jaszi, co-director of the law school’s PIJIP program encouragingly report that “many uses of copyrighted material in today’s online videos are eligible for fair use consideration.”

Yay! But which ones?

Media savvy kids and corporations jump back and forth like a high stakes Chinese jumprope game crossing thin lines between copyright infringement, entertainment, propaganda, and brand erosion…

Everyone’s concerned the elastic bands will break and ruin all the fun. I’ve been keeping a keen eye on the ever-thinning stretch and tug, hoping these satirical digital ditties won’t be yanked away with a snap…

What do you think?

Will 2008 be a year of ‘squash or sanction’ on the fair use front?

Will we come up with some ‘best practices’ in this renegade medium so we don’t risk losing access, value and (gawd forbid) our sense of humor?

Film clips, ads, celebs, news, bloopers, fan tributes and soundtrack riffs reflect the current UGC pouring out of the media faucet like tap water…

Will media moguls shut off the UGC valve? Filter and distill with autobot programs? Water down, flood the market or let it all flow freely? “Recut, Reframe, Recycle” is a sage beginning to providing level-headed balance to a polarizing debate.

I for one, am extremely glad some smart, scholarly folks are taking a solid look at policy before media mogul-monopolies decide to clamp down and squeeze the bucks (and creativity) out of the platform.

Evidently, next week, Dr. Aufderheide will be taking her ‘fair use’ argument to the Consumer Electronics Show in Las Vegas as she moderates a Digital Rights Management panel on Monday.

The Electronic Frontier Foundation (EFF) will be there, along with Ian Rogers of Yahoo! Music and more…Fingers crossed she’s well received by the entertainment industry so we can all hash out a win-win, like documentary filmmakers did through their associations.

Shaping Youth’s documentary, “Body Blitz” at least can adhere to reasonable, easy to understand guidelines, complete with a handbook so everyone knows what’s fair game.

Kids, on the other hand, are either shooting blindly in ‘ask for forgiveness rather than permission’ mode…

…Or tredding lightly with paranoia of Napster style piracy accusations and heavy-handed parental repercussions.

No one wants a piracy record on their college app, ya know?

In an era of open source, information sharing and participatory media, is it ‘fair’ to slap kids’ wrists when there’s not even a solid rulebook on the table?

What code of ethics and free speech come into play in the David & Goliath set up of students vs. corporations?

The Center for Social Media blog will no doubt have some worthy discourse on this…so weigh in with your thoughts on what YOU think is fair…

As for legalese, their article concisely explained,

“Fair use is the part of copyright law that permits new makers, in some situations, to quote copyrighted material without asking permission or paying the owners.

The courts tell us that fair use should be “transformative”–adding value to what they take and using it for a purpose different from the original work.

So when makers mash up several works–say, The Ten Commandments, Ben-Hur and 10 Things I Hate about You, making Ten Things I Hate about Commandments –they aren’t necessarily stealing. They are quoting in order to make a new commentary on popular culture, and creating a new piece of popular culture.”

“Unfortunately, this emerging, participatory media culture is at risk, with new industry practices to control piracy.

Large content holders such as NBC Universal and Viacom, and online platforms such as MySpace and Veoh are already crafting agreements on removing copyrighted material from the online sites.

Legal as well as illegal copying could all too easily disappear…”

So don’t put on your dancin’ shoes just yet…

The digital realm is evolving and revolutionizing constantly, and it can get messy…For instance:

When does a mashup cross the line into brand erosion or sabotage? What happens when online salacious/fallacious remixes undermine a candidate for a job, or a country? Could UGC product reviews, falsehoods and rumor mongering tank stock market trading of a company’s worth based on media manipulation through online video? Talk about a ‘reality show’ theme…

And…for a whole different level of complexity, who owns CHILD generated content?

When kids make their own avatars, add to storylines and plot points by interacting with their TV, or build goods and services of value in virtual worlds who owns what, and why?

Is it fair use that children should sign over their rights to their creations just for playing on the site?

Is it ‘fair’ when ad agencies run UGC contests and make a mint off the backs of kids while paying them with a pair of tennis shoes and coolness caché as a prize?

What about in-game creations in virtual worlds like artsy machinima or virtual designer duds that get pirated by entrepreneurial hackers to profit elsewhere?

I know, I know, supposedly e-bay and auction sites outlaw the sale of most virtual goods, but I’ve seen kids collect a stack of Disney’s VMK submarine quest cards that access virtual world content online by mooching them off of kidlets waiting in line, since they’re handed out for free, only to resell them on e-bay.

Anyway, I realize I’m digressing from the remixing/fair use topic, but my media footnote is basically that we can’t underestimate the cues we’re sending to kids in our media culture…

Coming up next, we’ll post guest commentary on kids’ IP (intellectual property), authorship credits and child labor rights involving who owns what in the digital sphere.

We’re excited about welcoming our newest correspondent for Shaping Youth, Sara M. Grimes, author of Gamine Expedition, founder of the ACT Games Lab, and PhD candidate from the School of Communication at Simon Fraser University in Canada where she focuses on some of the ethical and legal implications of marketing to kids.

Here’s a primer from one of Sara’s previous posts, “Child-Generated Content Gets Televised,” just to give you a feel for how fast this iCarly world of interactive content and tools are morphing into mainstream media daily.

Gamers beware: Sara’s blog AND sidebar blogroll is enough to keep you clicking through content and commentary of worthy resources so…as we say to our youth crew, ‘watch your screen time.’

But, um…be prepared to hangout for awhile…it’s great stuff!

Fair(y) Use Credit: By Prof. Eric Faden of Bucknell University, available through MEF (the Media Education Foundation) on DVD. Fair(y) Use thumbnail visual from Stanford’s CIS site.

Recut, Reframe, Recycle Study: Links to the Researchers Top 5 videos in each of the following categories here:

• Satire and parody
• Negative or critical commentary
• Positive commentary
• Quoting in order to start a discussion
• Illustration or example
• Incidental use
• Personal reportage/diaries
• Archiving of vulnerable or revealing materials
• Pastiche or collage

p.s. About a dozen “Fair Use FAQs” from American University’s Center for Social Media  which are extremely helpful whether you’re a media producer, content queen, or just want to ‘do the right thing.’