World's Fair Use day part one

World’s Fair Use Day, sponsored by Public Knowledge

Morning Keynote: Pa. Congressman Mike Doyle

Found out about a constituent, Girl Talk, whose work initially surprised him but grew on him as creative practice made out of small snippets of earlier songs. Artists should be compensated, but compensation should be in line with contribution—licensing his form of remix is essentially impossible, even if you could find all the owners. Related issue: the people who provide the tech that makes content accessible, understandable and findable. Filling an iPod with music ripped from one’s CDs is core fair use. Other fair use issues: Scraping content from websites is under threat today, but try to imagine navigating search without this. Rupert Murdoch hates this, but his own sites do it; Fox is getting sued over using a clip of someone else’s interview. Copyright industries are also fair use industries.

USTR has said ACTA won’t require ISPs to become copyright cops or prevent any changes in DMCA anticircumvention, but he’s still afraid of a three strikes rule, and will oppose any legislative or trade agreement moves towards that—fair uses like clips of a child dancing to Prince shouldn’t count as strikes. When digital literacy/access is so important, one child’s mistake shouldn’t get a family kicked off the internet. Without access to computers at home, students fall behind their peers—we should be expanding access, not talking about how to take it away.

WIPO’s US delegation supported exemptions for the visually impaired—there, the US position was that the US is committed to better exceptions as well as better enforcement. And this is his position as well.

In response to Q: many of his colleagues don’t know what fair use is. That’s why grassroots communication with Congress is important. Girl Talk is in his district, which is how he got interested. (I’m reminded of the successful move to bring video store owners from every district to lobby their own representatives, helping fend off any movie rental right.)

Panel 1: Artistic Innovations and Participatory Culture

Warrington Hudlin, Filmmaker and Public Knowledge board member, moderator

Elisa Kreisinger, remixer/educator: showed You Can’t Vote in “Change,” with clips from various presidents and news events, arguing that institutional change can’t come from leaders but has to come from people.

Chris Burke, producer, This Spartan Life (machinima): shooting film in a realtime virtual 3D environment. This Spartan Life uses Halo, published by Bungee/Microsoft. Game cos. are different from music companies; see the value in user-generated content in extending the shelf life of the game. Microsoft has an end user license agreement with rules for making machinima; following them avoids a C&D. So far the only thing they’re really against is commercialization of the work without a license. Very few licenses are actually granted.

Jonathan McIntosh, Political Remix Video: political/social commentary through remix. Showed excerpts from So You Think You Can Be President and Buffy vs. Edward (expressed a little bit of unhappiness that people had reuploaded it to YouTube a bunch of times even though it was already on there!). Contrasted the softpedaling of questions to the presidential candidates with the roughness of the judges on reality shows; contrasted the gender roles in Buffy to those in Twilight, arguing that Twilight presents stalking and the desire to kill the beloved (much younger girl) as sexy.

Nina Paley, Filmmaker, Sita Sings the Blues: Fair use won’t help people like her unless it’s really expanded. She did learn, when she released the film under a copyleft license—she couldn’t risk even giving it away at first—that people told her that copyright was for her as an artist, but she made more with giving the film away than she ever made for works under copyright. Fair use can’t fix the problems with copyright, which she doesn’t think benefits artists.

Dan Walsh, creator of Garfield Minus Garfield: IT nerd by day, murderer of Garfield by night. Once you edit out Garfield, it becomes clear that Jon is a very disturbed person! Tumblr founders gave him a lot of support, promising to fight to keep the strip up if there was trouble. Temptation: add pay per click ads, but decided not to do so, even with ½-million visitors a day—wanted to leave the parody as it was. Ended up with a book deal—no profit from the book for him, but they told him he could have the website as he wished, so he immediately added ads.

Hudlin: horror stories?

Paley: Hers! She used songs from 80 years ago that should be in the public domain now, but due to retroactive extensions they’ll never be! Compulsory cover licenses exist, but they don’t cover synch licenses—everything in our history is owned by big media corporations which can set any price they want; in this case, the price was more than the budget of the film. Legal costs and time lost trying to comply with the law was extraordinary, and the potential punishments were horrifying. This is something that happens to a lot of filmmakers and they just don’t talk about it. She ended up negotiating a “step deal”—for every 5000 copies sold she needs to pay more, and also for every $X at the box office. This cost $20,000 to negotiate—even with pro bono lawyering. This is why most filmmakers on the circuit are eager to have pirates distribute their stuff, because most films are inaccessible and distribution is highly controlled. Copylefting Sita allowed the film to go farther, preventing any one distributor from having a monopoly.

McIntosh: LA Times did a story on Buffy vs. Edward and contacted the executive producer of Buffy, who loved it; that was lucky for him (though of course Marti Noxon owns no rights; Fox is the rightsholder) because it could have gone the other way—if the owner of Twilight didn’t like it, he could have had a battle. (Actually, I think the distinction between the two sources raises an interesting point—Edward is clearly the target of criticism, but Buffy is the mechanism. Buffy is used transformatively, but she’s still valued for what she does in the original narrative—it’s just that she’s being used to critique another media form, which is a different purpose than the original.) But he’s very careful about what he uses—using material produced by the powerful, not making fun of video of someone’s kid—he pays attention to the power of the media maker. Though if you’re celebrating someone’s YouTube uploads and creating a mashup, he’s happy with that. Cultural icons are ethically more available for criticism.

Kreisinger: Another effect of power: it takes huge resources to produce your own film, and access to others’ works to start with makes it possible for people to criticize and participate. Moreover, the cultural power of the mass media texts is such that you have to start with them to be part of the econversation.

Paley: it’s like a language: you shouldn’t have to make up a new language and teach it to people before you get to talk.

McIntosh: culture is moving to more audiovisual forms—are we allowed to speak in that language and talk about what we’ve heard, seen and done? We have to, and it’s also inevitable, so let’s work out a way to do it without lawsuits.

Kreisinger: Audiovisual media are more accessible, make critiques possible in a compressed timeframe; enters our brains at a faster pace.

Paley: It’s not always critique, sometimes it’s pure joy. Fair use is terribly limited—isn’t able to keep up with the expansion of copyright.

Q: how do artists get paid?

Kreisinger: Doesn’t expect to get paid for remix. But the skills she’s learned—editing, storytelling—that’s invaluable, and also is a teachable skill set.

Burke: He’d love to make a living from This Spartan Life, but it’s not possible so far. He’d like a limited commercial license, but it’s a slow process. The game companies started off supportive, releasing open architectures for gamers to modify games, but they didn’t fully realize what would happen. They’ve been pretty supportive, but when you want to make a living from it, it gets tougher. More machinima is free because nobody can afford the legal fees to negotiate a contract—he’s been negotiating with Microsoft for several years. He’s done some work directly for Microsoft, but it’s changing every day. Still waiting.

McIntosh: what he does would never go down well with corporate. He gets indirect benefits—speaking engagements, workshops with youth on how to remix as a media literacy tool. He detests online ads on video, especially if he’s critiquing a company that’s advertising. All his remixes are released under a CC-noncommercial license to avoid having ads put on it. Has happened with Buffy vs. Edward: people reuploading it with ads; he accepts reuploading but doesn’t want the ads. (I note that this is a big lacuna in CC-noncommercial licenses: can your blog run ads and still use CC-noncommercial content?)

Kreisinger: We have to assert fair use despite our fears, because otherwise we can’t criticize/speak in culture. Best practices from the Center for Social Media can help.

Q: You have commercially valuable material here—Buffy vs. Edward can generate renewed interest in Buffy in syndication. Garfield without Garfield rejuvenated Garfield. Hard to get that kind of exposure/interest with ordinary ads. So why not set that as a goal: make more money?

Paley: She wondered about why she was risking jail for increasing the value of old songs? Why don’t copyright owners have to prove lost revenues?

McIntosh: he doesn’t want to negotiate with Fox about the message. Yes, they want more impressions, but they want more impressions that will sell. If the remix made people dislike Buffy, that avenue would be closed, which is why he’s hesitant to move in that direction. If people want to support his work through donations etc. as a community, that’s fantastic; that’s his preferred alternative.

Q from SESAC attorney: He thinks a lot of these works here are at the core of fair use, and there is a fair use best practices for documenary filmmakers that includes music. On one side, there’s a soundtrack of 60 minutes, versus a film that uses small snippets for factual purposes. That’s been helpful. Copyright owners do believe in fair use—from your dealings with them, what can we do better to facilitate fair use?

Kreisinger: On YouTube in particular, if remixers/vidders are using music to supplement comment/critique, YT’s bots pick it up. In her remix, Aretha Franklin’s Respect was playing in the background of material she was remixing, and YouTube took it down. Vidders, a group of predominantly women creating fanworks based on copyrighted music to tell a story/comment on the material, are constantly faced with takedowns. She posted some of her favorite takedown notices. YT is eliminating a whole slew of work based on remix.

SESAC attorney: it is robots interacting with robots, due to volume. We don’t control all the necessary rights, including the synch right. We do work with YT to license use of all of our content regardless of the political message. Blanket licensing will streamline a lot of this. A blanket synch license would be very helpful, but it’s a matter of organizing the publishers to do this.

Matt Shears, Computer & Communications Industry Association: What you may really want is simplicity, not just reform: the ability to navigate the system without lawyers. Would you be less hostile to copyright if you didn’t have to consult a lawyer to scratch your nose?

Paley: she’s opposed to the idea of owning culture, which leads to fundamentalism and monopolies. Broadcasters won’t allow you to air a film on TV without notes from a lawyer on every single clip.

McIntosh: Slightly different approach. He believes copyright can be useful in protecting the rights of already culturally marginalized people—someone makes progressive speech and someone else uses it for racist or hateful purposes. (I don’t think this works—I’ve seen plenty of progressive copying/critiques of individuals who represent a certain conservative viewpoint but are not major Fox commentators; by this logic, they’d also be protected because they don’t have, as individuals, much power.)

Paley: She’s heard that argument over Sita—what if people use it for Nazi porn? She thinks hate speech won’t get that far, and if it does she’s not the one to stop it. People are not horrible; they are sane.

McIntosh: He’s interested in protecting the marginalized, though possibly not through copyright.