One of the most recent re-purposed or mashed-up artworks that I can remember came to my email inbox the other day.
The question here is: Is this legal according to fair use?
For a run down on fair use policy please check out Brad Templeton's Website.
The answer to that is, technically....no...and yes.
Technically, under fair use policy, and in the case of The Dark Knight Trailer Recut- Toy Story 2, the creator of this mashup is free to create their content under the exception of parody. You could argue legally that by combining the two, they are a clear parody of each other, and that the comic effect is seeing the characters speak in the language of the Dark Knight voices. Mad Magazine has done these types of parodies since back in the 1950s, but the difference between Mad Magazine's type of parodies and this youtube mashup is that the creator didn't really add anything new to the artwork, they just rearranged it.
Now- it could also be illegal as well. What if the creator decided to combine Toy Story with a very inappropriate other movie, like, let's say a pornographic film? Now, let's also say that nobody cared about the mashup, until it started to be emailed and forwarded to millions of viewers across the world, and Pixar started to see that their funny kids movie called Toy Story was now being viewed as a sendup and it started to hurt the sales of their Toy Story products and DVDs. Soon, nobody wanted to watch Toy Story because it reminded them of that filthy mashup.
So is The Dark Knight Trailer Recut- Toy Story 2 legal? The only way to really know would be to go to court and have them decide, but for now, both sides in this case -Pixar and the youtube creator- will just stay silent and hope that nobody has to go to court. Almost every mashup could be considered illegal and legal, and until one party gets seriously damaged- the rules will be relaxed.
If Pixar did decide to sue the youtube creator, does the youtube guy have copyright protection in this case? I'd say they do under the parody exception of the Fair Use policy, but any big company with deep pockets could make things very difficult for any regular Joe to defend himself in court. Most likely, Pixar would just send the guy a cease-and-decist letter and hope their product is not damaged. Or they could make an example out of him and sue him, like JK Rowling recently did to an author of a Harry Potter fan book. The latter option is not usually a good PR move.
So, interesting, but who owns The Dark Knight Trailer Recut- Toy Story 2? Well, that's a super question. Again, this is really a court issue if we are to argue fair use. The creator could argue that it is him because of the parody exception. According to Brad Templeton, "a court has never ruled on this issue, because fan fiction cases always get settled quickly when the defendant is a fan of limited means sued by a powerful publishing company." If Pixar did want to argue it, though, it they might have a good case in the fact that the guy never really added any of his own content, just rearranging it.
Can't I just put this on my web page, and claim that I made it? Well copyright protection actually does protect the little guy. This youtube video was originally uploaded to a youtube account, and the owner of that account has a record of that. So let's say that this blog article is so popular that and everybody starts giving me credit for this mashup that I made, and more people go to my website, my website's ad sales go up, I get to go on NBC's Today Show, and start making a buck from this mashup, the original owner could sue me in civil court for copyright infringement. I have to give credit where credit is do.
So what do I think?
I know that Title 17 is outdated. Jonathan Zittrain from Legalaffairs.com reminds me of the crux of Title 17: " The law—Title 17 of the federal code—proscribes such acts as the public performance of music without payment to the composer or the copying of books without permission of the author (or more likely the company to whom the author long ago assigned rights). " We are moving too fast for the courts and the law to keep up with this Title. That's why, until now, the big publishers and movie companies have basically not done anything. They can say that they are tolerating the consumers creating this "fan fiction" because it works as free advertising, but it didn't work so well for Steven Vander Ark, the man who tried to publish the Harry Potter Lexicon, and claimed Fair Use under the fact that it was a reference book. JK Rowling sued him and actually won damages of $6000. You could state that JK was out of line, but she was publishing her own encyclopedia, and it's her right to do so. You can read about the outcome of that trial at New York Daily News.
I think it's important to protect original works, but I think that the courts will help this thing along. The courts can't even predict how this new copyright law will work, so as long as we're patient, this will play out in court. I'm waiting for the first "little guy" to put a mashup on his website that actually causes extreme harm to a movie company. It's not really a question of if this will happen, it's when.
So, when it comes to my classroom, are my kids being illegal when they post pictures that aren't their own to their blog? Should my student who wrote this blog take down the photo of the ball and glove because he didn't create the photo? Well, in this case, I think that the fact the he didn't create the photo is implied, and I guess you could argue that in court, but that doesn't teach him to give credit where credit is due. I agree that he should at least give credit for where he got the photo. I think that technology is going to have a cure for all of this soon, and by that, I think that someone will create a simple Web 2.0 tool that allows you to give and swap creator watermarks and post that information to your website.
The content has just grown too fast too much, and I believe it's only a matter of time where the Web 2.0 or Web 3.0 will catch up and offer us a solution for referencing all of these things.