If you've ever been on YouTube, you've probably noticed that most of the videos there contain clips from movies, or television shows, or video games. Not an entire film or episode though; usually it's just a clip that can be considered famous or memetic. Also extremely common are songvids, which are composed of clips from a television show, movie, or anime, set to music in order to evoke an emotional reaction for the purposes of comedy or drama.
Another thing on the rise are comedic reviewers, such as those found on That Guy With The Glasses. The idea behind them is that they review/critique a movie while making jokes about it. The quality can range anywhere from a blog with occasional clips to a professionally produced web show with clips form the subject at hand and other shows to emphasize the point.
Now the advent of SOPA brought a lot of panic in vidding and reviewing communities because it would make their work illegal. However, it wouldn't be the first time that the legality of such things was called in to question, whether by average viewers, creators, or the law itself.
The main policy for determining the legality of these works would be Fair Use, or the Canadian equivalent Fair Dealing.
Fair Use is essentially an exception to copyright law, meaning the users are allowed to utilize it without obtaining express permission from the holders. It applies to anything using the material for "transformative" purposes, such as news reporting, commentary, criticism, or parody. Other than that is it somewhat loosely defined. There is no specific limit to the length of the footage (or in the case of literature, the number of pages or words) that can be imposed, and many cases can be argued for or against the fairness of the work depending on it's purpose, nature, and potential market.
Fair Dealing has many similarities to Fair Use; the biggest exceptions are in terms of parody (using material from a copyrighted work to ridicule the aforementioned work) and education (Fair Dealing has been deemed in Canada to be not permitted for teaching).
So how do songivds and reviews fall into this?
When an songivd is specifically made for an anime (AMV, or Anime Music Video), the legality of the clips used is rarely called into question. Japanese authors enjoy it when fans create derivates and continuations of their work, and this attitude extends to the American distributors as well; the main reason being that these can serve as free advertising for the work being portrayed. Therefore even if the work technically falls outside of Fair Use or Fair Dealing, the distributors will rarely press charges. The problem occurs with the musical tracks used, since they are usually used in their entirety. The marketing power mentioned above, however, has eased this issue with the musicians themselves for most of the time, though not the record labels themselves.
The Reviewing community has an easier time, since the usual format switches between the reviewer and their subject several times between the video. Most clips will have voiceovers that cancel out any soundtrack being used, unless it is sufficiently awesome and/or ridiculous. Due to the global nature of this hobby, the main question comes from whether they count as parody or criticism. For example, The Nostalgia Critic did a video parodying the songs, plot, and style of Moulin Rouge!, while at the same time criticizing those same aspects. While it is perfectly viable under Fair Use in the US, if it were created in Canada he would probably have to argue the the purpose is criticism rather than parody.
The Nostalgia Critic (Doug Walker) has also faced legal charges of copyright infringement after he posted a review of The Room. While some elements of the review (elements which re present in a majority of his and other reviewer's videos) might fall outside of Fair Use/Dealing, the point remains that it was a) a transformative work (using the material to create something of a different artistic expression) and b) the issue that creator Tommy Wiseu had with the video was closer to defamation.
Another key point in whether determine if a work is transformative, and by extent can qualify as Fair Use, is the length of the clips used. Several challenges made to videos containing video and music clips have been thrown out because the length of the clip was negligible and clearly held no commercial value. This is a key point in the legality of AMVs and songvids, since they are composed of very brief, shrug together clips that do not replicate the cohesive whole of the show. MAny clips will be taken from different episodes and focus on only a single character or theme, which means the work is not recreating the show itself. This is a similar case with reviews. Most of the clips form the subject will either be brief or voiced over. There are many review shows that only show clips released as trailers or official previews; some do not use clips at all, instead relying on good descriptions, still images, or skits to illustrate the subject.
The legality of songivds and reviews such as these can be debated, but no more than any other derivative work that claims to be Fair Use or Fair Dealing. With most cases, however, they are usually deemed legal and un-infringeming due to their inherent transformative nature. The key point here is that any challenge made to them has to go through due process. Copyright holders do not reserve any right to order tone deletion of online content unless it can be legally proven that the product falls outside the scope of Fair Use/Fair Dealing. Because this is something that SOPA would disallow, it is unsurprising that the reviewing and bidding communities reacted the way they did while the bill was going through congress,and why they were (and still are) constantly on the front lines to spread the word about any copyright-altering documents being created.
References:
http://www.copyright.gov/fls/fl102.html
http://library.concordia.ca/help/copyright/?guid=fdvsfu
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/08/20/MNU412FKRL.DTL
http://www.animenewsnetwork.com/chicks-on-anime/2009-05-05
http://thatguywiththeglasses.com/videolinks/thatguywiththeglasses/nostalgia-critic/33417-nostalgia-critic-musical-review-moulin-rouge
http://www.plagiarismtoday.com/2010/07/22/the-nostalgia-critic-vs-tommy-wiseau-debacle/
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/08/20/MNU412FKRL.DTL
I am not much of a fan of parody (it seems quite harsh), and I'm old enough that I didn't know the term songvids (although I think I've seen a couple). But reviews have been around for a long time and are very important to any artistic community. Not that they like many of the reviewers, but it is proof they are being taken seriously. I'm sure the ability to speak out about how we feel about other people's ideas will be well represented in the U.S.
ReplyDeleteI think many of our computer ethics issues are like this. Extentions of debates that have been going on for years in other media/ situations. It is important that the parallels are seen and talked about so that things stay fair.
Your comment about Canada not allowing use for education is disturbing. I know there are cases where we have to ask for specific permission for education use. I hope that is all you are referring to. Surely we would not limit our children's education for the few pennies they might get for each use??!? I guess I'll have to read all your references!
Yes, the "educative use not allowed in Canada" part only means that in Canada the educator has to seek permission from the copyright holder in order to present the material to their class, whereas in the states this is not necessary. I should have specified.
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