Remix/Mashup at Ohio State panel 1

Panel 1: Mashup, UGC, Hollywood, and the Law

Gillian Lusins: Standard disclaimer. Fair use is a powerful and flexible tool, centering on transformativeness, which is what you add/bring to a work so that it becomes yours (interesting language!). That’s a necessary part of fair use.

Darrell Miller, partner at Fox Rothschild in LA: His clients are actors, writers, directors, producers. They are on both sides of this debate. (Funny how everyone claims that, though I thought Lusins and Miller were saying what they believed.) They use UGC to pitch new shows. But when NBC wants to use a clip with a celebrity, his clients are part of unions with prenegotiated rights to be paid. They expect the opportunity to be paid or to give permission.

As long as UCG featuring his clients is private and small and fun and not commercial, usually he doesn’t get a phone call. If it’s all over the internet, at YouTube or Funnyordie, then he gets a phone call asking him to secure payment. Practical reality: 85% of artists are typically unemployed at any given time. Working-class artists are the majority.

Pam Samuelson: There are a wide range of opinions on UGC and the law; here are some. (1) Should be noninfringing; people have a right to participate in culture; fair use should be reserved for more commercial contexts. (2) Generally fair use, especially when it’s parody; there are lots of reasons to need to conjure up an original; many content owners react positively to such uses anyway, because it’s generally so impossible to clear rights that fair use is a better option; content owners can’t easily facilitate transactions. (3) Mexican standoff: fair use as long as it’s noncommercial. (4) Need to amend copyright law to create an exception. (5) It’s misuse of copyright to challenge fair use remixes. (6) Throw up your hands: it’s impossible to regulate UGC so get over it/Ed Lee’s warming effects theory that copyright is being reformed on the ground by people using content without permission. (7) UGC is a gray area that gets no free pass; should not be presumed lawful. (8) Must license everything; if no CC license, then no use without permission.

Me: Two axes of discussion: transformativeness and commerciality. The second is proving difficult in this conversation—copyright law has a crazy definition of commerciality, sometimes including even sharing files for free (Napster). Miller spoke of YouTube as commercial, but commercial for whom? The people uploading video are doing it for free, and most have no hope or intent of making money. The commercial hopes of the conduit shouldn’t be the key, any more than the paint store’s receipt of money for paint and canvas makes all painting commercial. People who create with no hope of monetary reward make different things than people who want to participate in the money economy, and both are valuable.

Differences in media further complicate things. For text, quotation is currently barely interesting in fair use law. At present, quoting a work in another work is essentially categorically fair use. See Jonathan Lethem. On images, the law is more confused. Images are powerful and lawyers don’t know how to deal with them as well as we deal with words. Images are hard to dissect; you need to copy them to talk about them persuasively, as with the Zapruder film. Yet they also seem expressive and thus deserving protection—both sides seek “protection” from the law. Music is even worse: lawyers don’t think well about music. The First Amendment protects music, which makes sense given that people have gone to jail in other countries for making the wrong type of instrumental music—we know music can be subversive—but it’s really hard to explain why music should count as speech. That’s a big reason why the fair use issues seem so intractable.

Lusins: Fair use is a product of the First Amendment, allowing use when the four-factor test is satisfied. (Note how this account collapses fair use into transformativeness into free speech, something I’ve written about before.)

Samuelson: She argues that fair use falls into typical patterns or clusters, beyond the four factors: authorship-promoting, competition-promoting, access-promoting, innovation-promoting, and so on. Within one doctrine, we have a bunch of doctrines, which makes it difficult to speak coherently about fair use doctrine because of the different policy functions it serves.

Lee: is the 1976 Copyright Act working reasonably well, or do we need a legislative solution?

Samuelson: Copyright works at three different levels: (1) Within the copyright industries; fair use is important. Within the industry because they generally have lawyers and familiarity with rights clearances, they do more rights clearances than other people would do (Lusins interjects that industry participants also are used to deciding when to take the risk of being sued, as with the Barbie Girl case). (2) In the courts. (3) On the ground. (1) and (3) are not the same, and part of what’s going on is interaction between the layers and influence of one on the other. Case law rides between these two, and affects (1) and (3), though (1) more powerfully. We probably should revamp the system, but the typical way to do reform is legislative, and the political economy is such that we couldn’t improve the current mess, so we’re relying on the courts to use the existing flexibility. Ed Lee argues that copyright reform is happening on the ground. Samuelson is working on principles as a basis for a new statutory framework. We should start the conversation, but we’re not there yet, and UGC isn’t generating enough litigation to demand new legislative steps.

Me: Look at the entrenched interests in sound recording performance rights going on now. I like the idea of a right in theory, but in practice it will add 80 pages to the copyright act with support for existing business models.

Lusins: Ongoing litigation about DMCA; but in terms of fair use, it’s very flexible and allows changes and new forms of communication. The test itself doesn’t need change. The European system can’t react to new uses in the same way.

Miller: The test is fair, but tech has created a class of people who have the ability to create, but no ability to litigate. Home remixer is going to be crushed right away if a copyright owner objects. He’d be interested in a compulsory license, as for musical works.

Lusins: Doesn’t like the word compulsory, antithetical to the notion of copyright. Most compulsory licenses don’t contemplate large changes to the original work. (Me: Though if you like to think about it that way, fair use is a compulsory license at a zero price.)

Lee: Go back to the individual user. He gets a lot of queries about what counts as fair use; it’s very difficult for individuals to resist threats. One proposal: Michael Carroll’s idea of having an administrative agency review fair use claims and issue opinions, handling it cheaply, like the UDRP.

Lusins: As someone who uses the UDRP, she doesn’t think it’s a great model.

Lee: Another proposal, Parchomovsky and Goldman—more detailed safe harbors, like 10 seconds of video in noncommercial work.

Samuelson: They’re both terrible ideas. Dangerous to have administrative review—the Copyright Office is nice, but they’re backward-looking, not forward-looking, and you have a better chance in court to get a new thing accepted. Look at the DMCA exemptions—they’ve been pretty narrow and constricted. We wouldn’t get a public-regarding outcome. And the safe harbors, well, if you look at the history of guidelines, like classroom use—they were supposed to be floors, but they’ve become ceilings. (If you have safe harbors, you need to have sufficient incentives for boats to leave the harbor, or you don’t get any trade.)

Miller: On the other side, 10 seconds could be too long if “Whassup?” is your only moment of success. A one-note Johnny has one asset, and an arbitrary safe harbor could wipe him out.

Quinn: Another aspect: Remixers/users need to be at the table, both commercial and noncommercial.

Samuelson: There was a time in the 1980s when the Court said commercial is presumptively unfair; then the Court retreated. It’s still important, but less so now—virtually every fair user is a commercial player, at least in terms of what gets litigated.

Me: Commercial means something odd in copyright; compare to what it means in First Amendment law, where it covers a much more limited set of works. The NYT is a commercial speaker according to copyright law, but not according to First Amendment law. Copyright’s expansive notion of commerciality has made it very hard to think about what should and shouldn’t be deemed to need to participate in a licensing market.

Jonathan McIntosh: We need to be concerned about all the people who are deterred by the exercise of power, or even its threat.

Miller: Biggest example is sampling in the music industry—deters creation. Similarly, video companies will be unwilling to let go of individual clips. For many of his clients, it’s okay if it’s underground or a small website, but when YouTube is acquired by a big company, then the talent has a bigger problem. Even if you want to protect the individual creator, the client says, NBC now owns the platform and is getting millions for ads, then the indirect commercialization is something they want a share of.

Samuelson: There are a number of organizations these days available to help the remixer who gets a threat letter. Stanford’s Fair Use Project, the EFF, clinics at many law schools around the country—USC, AU, Fordham soon (me: the OTW!); chillingeffects.org puts up threat letters and responses to show that you don’t have to cave.

Q: What about micropayments for remixes?

Lusins: Sometimes artists don’t like to license—part of copyright is the right to say no. Woody Allen doesn’t want anyone touching his movies. Also there are often multiple people with rights to control/get paid. If you use a SAG performance in another audiovisual work without permission and are subject to the SAG contract, the actor is entitled to seek triple the day rate, which can be an enormous amount of money. That’s how they keep people from reusing performances. That interest group won’t be satisfied with micropayments (not to mention giving up control).

Miller: Tom Cruise isn’t the issue—it’s the day worker living on residuals and clip licenses. If there’s a right to not compensate them, that stream dries up.

Coppa: Speaking on behalf of her practice community: one reason she emphasizes its 35-year history is to make the point that they’re early adopters, creating the internet. From her perspective, content owners are coming into her space; they’re building a shopping mall next to her community center. The idea of giving things for free on the internet is now someone’s business plan, but it used to be what people did. The idea that when commerce shows up noncommerciality has to give way—that the internet can’t be private, cool, small and fun—is really scary and destructive. To what extent is the shopping mall allowed to retroactively condemn the community center by making it look monetizable?

Miller: The community centers are analogous to the underground—never going to be a big issue.

Coppa: But the space just got bigger. YouTube users had the infrastructure change around them.

Miller: No one was making millions of ad dollars around your community, and as long as that didn’t happen it’s a nonissue. But now it’s monetized, one private entity versus another, then my clients want to participate in some form.

Coppa: But the “you” who’s profiting is different from the “you” who’s creating.

Miller: A public interest space would be different.

Julie Ahrens: Picking up on the idea that few cases end up litigated—does that mean fair use works? People have questions about what they can do all the time, and scarce resources to litigate. Are there structural ideas of reform that could help solve this outside of litigation?

Samuelson: There are a lot of tolerated uses now, which become de facto fair uses, which is good.

Me: Americans are crazy; if they get less crazy, then chilling effects would decrease. More seriously, best practices are a pretty good idea.