Remix/Mashup 2009: The Future of Creative Production and Ownership

Welcome and Introduction

Ed Lee: We’re here because of the growth in amateur creations online and off, known variously as UGC, social media, or DIY. Every person can become a publisher and potentially reach millions. Part of this is remix, including remix of other UGC. Lee showed a popular video, David After Dentist, with a high little kid (poor kid!) and then some remixes with the kid replaced by a cat, a cartoon, and Darth/Chad Vader. (My reaction: the filmmaker-dad’s rights aren’t the problem! The problem is the privacy of this poor kid!)

Opening Roundtable on Mashup, User-Generated Content, and the Future of Cultural Production

Francesca Coppa, Muhlenberg/OTW: She wants to preserve fan cultures. Her community was remixing in the snow both ways, before it was popular—she directed a series of short films about vidding for MIT, aimed at middle schoolers. Vidding is a 35-year-old remix culture invented and still dominated by women who use music to tell the story of the visuals, analyzing, commenting, etc. Vids use music as a critical lens to make viewers re-see the images.

Vidders traditionally worked underground, fearing suit and mockery because vids regularly put emotion front and center in pop culture texts—showing the love in a cop story, etc. Coppa felt this female subculture was being written out of remix history. It’s a coherent artistic environment with schools, lineages, self-reflective analysis—remix video isn’t just for teen boys.

Mindy Faber, director of Open Youth Networks and filmmaker: Artists often fear lawyers. She was blown away by students’ enthusiasm for political remix as demoed by Jonathan McIntosh, so she created a Fair Use Remix Institute for students. She’s interested in fair use, but more in how young people could learn to make critical remix, to examine their cultural and political lives and talk back to what they see and hear. She showed a remix based on the Transformers movie trailer, in which an alien invasion was changed to a corporate invasion. Doing remix is a powerful form of media education.

Alison Hanold, associate director of AU’s Center for Social Media: Has worked on Codes of Best Practices, and Recut, Reframe, Recycle, which looks at how people are using copyrighted works apart from wholesale copying. Some of these methods of quoting are examples of fair use best practices in action. Fair use is often transformative and tailored (not copying the entirety). Types of fair use: commenting/analyzing; accidental/incidental as part of a scene; perserving/memorializing (clips of Kanye West saying “George Bush doesn’t care about black people” that the network doesn’t want shared); juxtaposing meanings to create new ones (the Bush/Blair Endless Love video).

People consider themselves participants in culture. They have a sense of ownership of their own culture; existing works are part of their own expressive vocabulary. Culture is always created out of old culture. Normalizing fair use is a way to keep culture healthy. Those who assert fair use rights keep it available with less self-consciously developed theories and avoid the strangulation/criminalization of culture.

Gillian Lusins, counsel for NBC Universal on the TV side (Saturday Night Live, Late Night), with standard disclaimer that these aren’t NBC’s views: She is interested in remix because NBC shows are where most people saw their first mashups, done to satirize/parody talk shows. Comedy’s lifeblood is satire/parody.

A lot of times, commentators attempt to reduce fair use to noncommerciality. In order for copyright law to preserve creators’ rights and control, we need other factors to balance. Fair use shouldn’t dwarf the right to make derivative works.

NBC’s Lazy Sunday helped popularize YouTube. (NB: Starting from The Chronicles of Narnia!) People desire to consume media in new ways—Hulu is NBC’s response to that. But in the end, these are copyrighted works and creators have ownership rights and demand artistic integrity. (Work for hire, anyone?)

Paul Miller aka DJ Spooky: Sampling from statements before, he heard about artistic integrity/media literacy; the tension between art and artifact. Sampling is always additive. You never just extract. There’s tension between content and context. Context providers are different from content providers.

The political economy of sound: sound is a universal grammar; we navigate and balance with the ear. People are still applying physical values to immaterial culture. DJing is a new kind of literacy in which sound is part of your toolbox, like paint in a palette. He likes to quote Ralph Waldo Emerson: “a writer appears to more advantage in the pages of another book than in his own.”

The 20th century obsession with mass production has been turned on its head with mass customization, and sampling is part of that.

Law is growing more distant from folk culture. Original objects are no longer key and the culture of the copy is not based on scarcity. When culture is free, what does “value” mean?
Gordon Quinn, documentary filmmaker (incl. Hoop Dreams): This is not a new issue. The Universal Declaration of Human Rights says that everyone has the right to participate in the cultural life of the community, and everyone also has the right to the material and moral benefits of authorship. There’s a contradiction/dialectical relationship fundamental to any open society.

Twenty years ago, documentarians were using fair use all the time. The insurance companies wouldn’t cover it but you could still get broadcast. Big rights owners started threatening directors, TV stations, even insurers. Hoop Dreams had to clear “Happy Birthday” when one boy’s family spontaneously sung it. Clearance culture overtook fair use. Artistic decisions were hampered.

The Center for Social Media worked to develop fair use principles. Working together, filmmakers asserted fair use and convinced TV broadcasters and even insurers to recognize fair use.

Quinn is a rights holder; he doesn’t want his work stolen. But in a democracy full of image and sound, fair use is necessary to prevent the existence of the unspeakable/unshowable.

Question from Lee: Is this time period different from the past in terms of developing new policy?

Miller: Yes, it’s time to figure out a balance. There’s a lot of poorly written law. He’s never been sued, but his friends have. They have to edit their work to the point of unrecognizability. You couldn’t make a Beastie Boys album now. The law is also unenforceable; the gap between life and law is bigger than ever.

Quinn: Copyright law itself is good; the DMCA is a problem. We need to return to founding principles. If we don’t organize as a community we will be left out. That’s how we got the DMCA.

Coppa: These processes are not new in making culture. There are new opportunities for communicating. We’ve known for a while that readers make meanings; now you can make a vid that is a staged reading, in the same medium as the original source, and communicate with others about it. You could read a book and have an opinion; you could share it at your book group; put it on the web—now you’re a publisher.

Faber: In her experience at the Art Institute of Chicago, she recalls video art quoting a lot of copyrighted material, e.g. a feminist reading of Wonder Woman. There was no C&D because no one was paying attention; artists were marginalized, not on TV, even though they were commodifying their work in the art world. They were not taken seriously. Remix culture does question ideology, including the ideology of ownership, generating backlash.

Lusing: The term transformative can evolve and has evolved. Tech-focused changes in law tend to be a mistake, freezing the law in the shape of the tech. If you’d said posting snippets of TV on YouTube is ok because there’s no market, that would have stopped ad-supported on-demand streaming as with Hulu (note: that’s not snippets).

Miller: But kids don’t think of copyright law as relevant to them. Rip, mix and burn is the psychology. Burning a CD is not breaking into a house.

Quinn: Kids in Faber’s workshop make music too. They don’t want other people to be making lots of money off of their music. Compensation isn’t the only thing, but it’s a big thing. Kids can come to understand this. (Though note, as Quinn did, that copyright law doesn’t always or even often use commercialization as the line—and it never uses “making lots of money” as the line. Ask kids if they want the song on YouTube, and if they mind that Google sells ads, and see if the answer differs.)

Beware legislative reform. You might not like what you get.

Hanold: Fair use is a good place for large copyright owners and kids to come together. Kids don’t often think of themselves as media makers. Part of media education is to work with law to create new and respect old works against wholesale copying.

Coppa then showed a vid about men and their guns as penis substitutes.

Lusins: An interesting challenge for fair use—how is it a commentary? Clearance would be extremely difficult—you’d need the director, actors, music publisher, record company—it would be like climbing Mt. Everest.

Coppa: Yet it’s a feminist essay about a show that the vidders loved, using small clips, making an argument, speaking about the show in the language of the medium.

Lusins: But what about the music?

Miller: Wouldn’t fly in the formal economy, but in the informal economy you don’t need to throw up your hands and say clearance is impossible. Much value comes from the informal economy; 50 Cent did well by using mix tapes.

Coppa: There’s no attempt to profit. You don’t watch a vid for the song. You’re watching for the commentary on the show, with the song used as a theoretical apparatus. Vidders love the ability to cut and mix songs to make better essays. Watchers then often buy the music, which is meaningful to them because of its association with the visuals.

Miller: That happened with mixtapes too.

Quinn: The song is being used as it was meant, whereas the visual puts the work as a whole in fair use territory as a critique. One could argue: they could have used other music.

Coppa: Ask a vidder: they can’t use other music. You don’t make a vid without reason to say “this song is about X.” This is not a vid that you could swap the audio out on, as YouTube ludicrously offers you the ability to do.

One challenge: when image and music become part of our language. Most clarinet players are bad; few will become successful at the clarinet; but we have music recitals anyway. We don’t tell people not to play; we tell all our kids to write, and that’s the only way we end up at the end with the 3% that are good writers. We need that kind of experimentation with remix too; even if you don’t like 97% of the stuff, that 3% is the payoff, as it is with any creative community.

Lusins: But does everyone have the right to make their own music video and post it online? Some things will only be made at great expense and can’t be free.

Miller: The music industry is collapsing; stores are closing; music discovery is shifting online. The Grateful Dead/50 Cent model creates markets.

Lusins: The record companies now see music videos as something to be exploited, not ads/promotional devices.

Lee: There’s a potential market here, but not easy and perhaps impossible to achieve.

Miller: As someone who’s participated in both informal and formal markets, he can testify: the formal market is difficult, tedious, irritating and expensive. His peer group has official albums with lawyers, but the best stuff and the most interesting is bootleg and underground. His Led Zeppelin remix has lawyers and negotiation, and yet Zeppelin ripped off blues artists. It’s all about financial power.

There are ways to coopt remixers (or at least not sue them).

Lee: The market for monetizing UGC is out there—look at ringtones—the music industry wasn’t aware of this new market with a high willingness to pay. How do we get from point A to point B? (Note that the vidder doesn’t capture as much value from the vid as the ringtone buyer does from the ringtone; the positive externalities of the vid are greater than the positive externalities from the ringtone. Indeed, transformative works face persistent externality problems, which is why Wendy Gordon’s classic analysis recognized them as likely to remain fair uses even with a collapse in transaction costs.)

Quinn: Well, you could ask the how question. But Quinn wants to ask the should question. Monetization and control change the nature of the cultural product. In fairness, Quinn continued, he also doesn’t think his check from Hulu is big enough, so there are issues on both sides. But fair users should not have to pay for a fundamental right; monetization shouldn’t distract from rights claims.

Coppa: Noncommercial culture is being squeezed out. This is also a problem of social media. Web 2.0 wants to profit from any time a human connects with another human. It’s a new enclosure; contact is occurring on spaces owned by other people. We need a sense of public culture.

Lusins: Broadband is expensive, though. Facebook eats bandwidth.

Coppa: But it’s getting cheaper, same as other tech. Indie labels are great, but we also need collaborative ownership.

Miller: Public culture has expanded so far you can’t keep up. There’s room to monetize, but the business models are outdated, like the car companies. He likes micropayments. William Gibson quote: “The future is already here. It’s just unevenly distributed.”

Q: How will art change?

Quinn: He saw people destroyed by trying to get music contracts in the 1960s, rather than playing colleges/touring. It’s worrisome when people focus on monetizing art. People share media because they want to communicate: “look what I saw on the Daily Show last night!” It’s standard human communication, like retelling a joke from Seinfeld. Our water cooler is turning digital, and that’s difficult.

Faber: Cultural v. corporate production: Dove attempted to coopt UGC for a pro-woman video, but its corporate parent makes Axe body spray with its awful ads. Dove should be called on that.

Coppa: It’s about control. Corporations want brands to be enhanced in the way they want the brands to be enhanced. Lucasfilm has an idea of what a good Star Wars viewer thinks, and it’s not that the characters ever have sex.

Q: Reconcile that claim of fair use with our outrage at McCain using Mellencamp without permission.

Coppa: It has to go both ways: it’s repurposing.

Quinn: Sometimes copyright isn’t the appropriate response. Katie Couric is made to look as if she was saying Obama’s sexist: she’s being misattributed. Attempts to control using copyright often have other motives.

Faber: Ethical issue: coopting Mellencamp for McCain’s own purposes is sketchy, but that doesn’t make it illegal.

Q: How does a vid differ from an essay? They’re both quoting.

Coppa: If you want to paint in watercolors, you shouldn’t be made to work in sculpture. In both cases, we should work for norms of citation/credit, not permission.

Faber: That’s what they teach students. Sometimes you do need the visuals because visuals give you a clearer more persuasive way to reclaim culture. It is more effective for students to assert ownership of their own culture and it is more effective in speaking to audiences.

Miller: Sampling involves tension between quotation and citation, context and content. I take a familiar beat and deterritorialize it.

Quinn: Concluding note about power. Power disparities matter, which is why it’s important for filmmakers to organize.