Art, copying, and YouTube

Virginia Heffernan’s column in the New York Times Magazine has many, many fascinating elements. Pixels at an Exhibition is about a curated exhibit of videos from YouTube. Artists were asked to select pieces from YouTube to illustrate the potential of internet video for art. So here’s the first IP note: the artistry here was in selecting works—choosing what to copy. As Heffernan puts it, the idea is that “artists could use YouTube, like a supply store, slag heap or rag-and-bone shop.” (Did the exhibit get the clip creators’ permission to publicly perform the works? There’s no indication it did.) There’s a bunch of art-world condescension here—a distinction between the raw and the cooked that denies the possibility that art is already on YouTube—but it’s coupled with the thought that selection alone is enough to convert the raw materials into art, which seems like a step beyond Duchamp’s Ready-Mades (which were not conventionally understood to be expressive works before selection) and Pop Art (which generally involved some sort of creation of a new copyrightable work, even if the techniques employed were not necessarily advanced).

But there’s more. Here’s Heffernan’s description of what she considers the best selections:

The shrewdest contributor to the show is the video artist Sue de Beer. De Beer’s first choice of clip is inspired: the final scene from “The American Soldier,” Rainer Werner Fassbinder’s 1970 film. ...

The person who originally uploaded the Fassbinder clip to YouTube was evidently drawn to the song on the soundtrack (“So Much Tenderness”) and framed the clip as a music video. But de Beer finds other significance in it. The threadbare print, the (mostly) immobile camera and the institutional quality of the set suggest a surveillance video. Indeed, one of de Beer’s other YouTube selections shows actual surveillance footage from the 1999 shooting at Columbine High School. She’s pressing the connection. Taken together, the Fassbinder and Columbine images are a good reminder that since 1970, when “The American Soldier” appeared, documentary audiences have had considerable practice reading surveillance and evidentiary images. With Columbine scenes and murders of all kinds playing on thousands of screens in the YouTube googolplex — the Saddam Hussein execution, the shooting of a police officer in New Hampshire — the Fassbinder scene comes to seem like one of them. Just as primitive artifacts placed in the context of high modernism seem to anticipate it, or interpret it, so a vintage film clip set online amid the YouTube flotsam can take on entirely new meaning.

Sounds a lot like transformative purpose, doesn’t it? I’ve been a harsh critic of the use of “transformative” to mean “fair” in fair use cases, but I will admit I’ve lost that battle, and courts have decided that it’s transformation of purpose rather than transformation within the four corners of the work that matters. So here, the Fassbinder clip becomes, within the YouTube context, something other than it was originally. But wasn’t it transformative compared to the original work, then, before De Beer plucked it out and gave it her imprimatur?

Continuing:

De Beer also chose a video that shows the fashion designer Coco Chanel pricklishly fielding interview questions in unsubtitled French while smoking in the middle of her ornate drawing room. It’s moving and even unnerving to see a clip like this liberated from commentary. Even five years ago, you’d never have encountered it except in a documentary about fashion or feminism, where its significance would be assigned by pedantic talking heads. On YouTube, the strange tableau takes on a life of its own. Chanel can’t settle down; she fairly squirms and won’t take a seat in her own house. Similarly uncomfortable-looking is the dancer in de Beer’s final choice, “Footworkin,” an amateur video that shows a living-room dancer flapping and kicking to “My Funny Valentine.” Behind the dancer is a wilted bouquet of foil balloons, whose muted shine recalls the gilded mirror behind Chanel. De Beer draws bright lines with her curatorial choices, proposing connections between disparate images and showing how video clips are reincarnated by the format and community of YouTube.

Courts have often spoken of transformative purpose as proven by the commentary surrounding a copied work. Here, Heffernan suggests, the absence of commentary itself invites the audience to interpret the clip in new ways, especially juxtaposed to other fragments that are not formally part of the same work but are experienced in the same time and place (or “place,” if you will). Later, Heffernan insists that one must watch the entire set of De Beer’s selections, not just choose from them.

Heffernan’s logic makes sense to me, but it does suggest that transformative purpose faces the same tensions that transformativeness did when it meant transformation of the work itself—in the latter case, the tension is embodied in the derivative works right, which allows copyright owners control of (certain) transformations of their works, while here we will be fighting over the “purpose” of the original. Fassbinder, for example, might have an argument that his film already participated in a cultural dialogue over surveillance, violence, and performance.

And Heffernan, writing from a nonlegal perspective, has a limit to what she’ll accept as transformative:

Ronay is … a victim of YouTube. Unlike de Beer, whose rarefied selections make heavy demands on the viewer, Ronay approaches video through search terms, which means he encounters only videos that have been rigged to be found by someone with his interests. What’s more, the videos are prepackaged as proof of a paranormal realm, and that’s no different from how he employs them; he offers no new purpose for the clips.

A final note about IP practice: despite the statement in the print edition that the videos can be watched at the NYT site, the links from Heffernan’s article go straight to YouTube. Under Remeirdes, I’m not sure that gets the Times off the hook for contributory infringement (inducement, anyone?), but then again the Times has a pretty good fair use-squared case—reporting on art that at least purports to transform the underlying works.