Fair Use of the Week: Obama, Son of Strelka, and a New Genesis – by “Aditya K”

Barack Obama’s voice is something else. It’s calming; it’s soothing; and it’s powerful. Dan Warren was listening to Obama’s 2005 audiobook Dreams From My Father when inspiration struck him: What if he utilized Obama’s “grandiose, epic language” and taletelling timbre to create his own story?

And thus, Son of Strelka, Son of God was born. The story—a creation myth like no other—tells the story of Stanley, the son of the creator. Stanley travels far and wide, his tale narrated seamlessly by our very own POTUS.

(Animation done by Ainsley Seago. Story and music by Dan Warren.)

I recently stumbled upon this amazing work via an article on Slate Magazine’s website. A major question surrounding this new piece was whether or not it infringed on the copyrights of the audiobook it drew from. The article’s author, David Weigel, mentions that artist Dan Warren did not worry too much about the legality of the remix:

If there was any question about fair use, he had an answer. “It could be seen as commentary on Obama’s story,” he explains. “People did think he was going to remake the world. I thought he was going to remake the world! Although maybe in less dramatic terms than in this story.”

When Warren first released his creation on the Something Awful forums, he stated: “It’s almost certainly fair use, but that doesn’t mean that there wouldn’t be legal hassles if I tried to sell it.” In our latest installment of Fair Use of the Week, we’ll explore exactly how and why Son of Strelka, Son of God qualifies for fair use protection.

Fair Use Analysis
As we’ve done in past Fair Use of the Weeks, I’ll don my faux judicial robes and analyze the four factors that help determine whether or not Son of Strelka, Son of God is a fair use of copyrighted works. If these factors, laid out in §107 of the Copyright Act, weigh in favor of fair use, then Dan Warren is not liable for copyright infringement.

Factor 1: The purpose and character of the use. This factor centers on the idea of how transformative the new work is. A transformative work, generally defined as having new expression or meaning, is protected by fair use.

Son of Strelka, Son of God consists of segments of Barack Obama’s audiobooks spliced together to give a whole new meaning. Warren rearranged Obama’s words and phrases over original musical tracks to create a novel myth. This repurposing of the audiobook’s recording should be enough to mark Son of Strelka as transformative; however, Warren poses a further argument. As he mentioned in his Slate interview, the new artistic meaning could be a commentary on the public’s conviction that Obama was going to remake the world. By presenting Obama as a storyteller of a new Genesis, Warren is doing just that.

Another aspect of this first factor regards the commercial nature of the use. Son of Strelka, Son of God is available for free online. (Warren himself figured that selling his work would probably bring more legal troubles.) Releasing his work for free strengthens the argument that his work was a good faith fair use of a copyrighted work for the sake of commentary.

Factor 2: The nature of the copyrighted work. The second factor pertains to the copyrighted work that was sampled from or reappropriated. In this case, the work is Barack Obama’s audiobook, Dreams From My Father. Though the audiobook itself is a derivative work based on a preexisting work—Obama’s original book—Section 106 of the Copyright Act gives the copyright owner exclusive rights “to prepare derivative works based upon the copyrighted work.” Section 103 guarantees this new work, however, its own independent copyright. Son of Strelka probably is transformative enough to not violate the original book’s copyrights—portions of text were jumbled together out of context—so the question of fair use centers on the recorded portion of the audiobook. Regardless, both the audiobook and the original text are copyrighted, widely published, and sold, so this factor weighs against fair use.

Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The idea behind this factor is somewhat logical: the more of a copyrighted work you use, the less of a chance it is a fair use. This is especially true when the bulk of the use is unchanged or verbatim.

With Son of Strelka, Son of God, lines of Obama’s audiobook were taken out of order and spliced together into a new context. In total, the new story is 32 minutes long, but a relatively small percentage of the original work was used—in total. Only a few sentences, if not a few words, were used at a time, and Warren’s finite use was enough to create a truly transformative work. I believe this limited use allows for the third factor to fall in favor of fair use.

Factor 4: The effect of the use upon the potential market for, or value of, the copyrighted work. This factor tests whether the use of the copyrighted work has an appreciable effect on the original work’s market. Essentially, if the fair use competes directly with the original work, it is harder to make an argument for fair use; if the new work complements the copyrighted original, fair use becomes a more viable argument.

Son of Strelka, Son of God does not appear to harm the potential market for Barack Obama’s audiobook, Dreams From My Father. This is not because Son of Strelka is noncommercial; just because something is free does not mean it wouldn’t harm the original’s market. Both works are audiobooks, so there is a potential market substitution. However, the nature of Barack Obama’s work—a nonfictional narrative performed by the current President of the United States—is quite different from the nature of Son of Strelka—a fictional, mythical tale. A simple factor such as difference in genre leads me to believe that market effect, in this case, is not an issue.

Another aspect of the fourth factor is whether the use hurts the potential market for derivative works. I might be wrong, but I don’t believe there is a large market for derivative works when it comes to audiobooks. Unlike musical works, audiobooks are rarely sampled or licensed. For these reasons, I believe that the fourth factor sides with fair use.

Conclusion Even though they are public figures and their actions and statements may be newsworthy, presidents are entitled to all of the protections of copyright. That being said, their public persona makes them easy targets for fair uses of their copyrighted works—parody, criticism, news reporting, and other transformative works. Presidential mashups are not new, nor will they go out of fashion any time soon. In the case of Son of Strelka, Son of God, Dan Warren is completely justified in his assertion that his use of Barack Obama’s voice is fair and allowed according to the law.

Fair Use of the Week: Friends With Benefits v. No Strings Attached – by “Julie S”

Summer movies can range from epic cinematic prequels of beloved comics to formulaic rom-coms created to feast on the money of bored teenagers and pining singles.  One YouTube trailer that was a hit this week mocked the last type of blockbuster by using copyrighted materials from No Strings Attached and Friends With Benefits to create a mash-up trailer satirizing the painfully obvious formulas of the movies, and it is this mock trailer that provides the subject for this week’s fair use analysis.

When analyzing whether a mash-up is covered under fair use, we once again look to the four fair use factors set forth in §107 of the Copyright Act. We will examine each of these four factors to determine whether fair use protects BlindFilmCritic Tommy Edison’s mash-up, Friends With Benefits v. No Strings Attached.

Factor 1: The purpose and character of the use. The purpose of this trailer is non-commercial and for entertainment purposes only, intended to provide a “humorous & unique perspective on movies.”  In the mash-up trailer we examine today, Edison used bits of both movies and cut them together to show their similarities.  He interspersed the clips to highlight the similar characters and plot, and he even made new captions in the font used for Friends with Benefits to help make his mash-up seem like a more authentic mock trailer with funny captions like “same sidekick friend” “same wacky parents,” “same random gay jokes,” and “same camera angles.”

By putting clips from each film in the context of the other, the trailer transforms both of the original trailers, shedding new comedic light on the similar plotlines of these two predictable romantic comedies and making an even broader point about the lazy formulaic trend of the movie business. In Video Pipeline v. Buena Vista the Court acknowledged that there is valuable creativity fostered by choosing the snippets of a trailer, even while denying fair use to Video Pipeline (albeit because the trailer in that case was commercial nature whereas the one here is for entertainment purposes only).  Edison’s creativity is made all the more valuable  with the added captions and the obvious satirical and critical take on the two movies. Because of the importance of fair use to the fostering of creativity and the safeguard of free speech (parodies and criticism), the first factor favors fair use.

Factor 2: The nature of the copyrighted work. In his mash-up, Edison uses snippets from Friends with Benefits (the trailer) and from No Strings Attached (the trailer and other parts of the movie, e.g. the clip of Ashton Kutcher complaining that his father is dating his ex-girlfriend).  Because trailers are promotional and easily available it may not seem that they are commercial, but as it turns out they are derivative of the movie and protected by its copyright. Both No Strings Attached and Friends With Benefits are copyrighted and commercial in nature and so are the official trailers weighing the second factor against fair use.

Factor 3: The amount and substantiality of the portion used. The mash-up consists almost entirely of copyrighted materials but that doesn’t necessarily mean that Edison used an excess of copyrighted material to conjure up the work he was commenting on. He used enough materials to create a trailer-length mash-up to show rather than tell the audience of his opinions on the similarities of the two movies in a visual method of commentary that was both effective and funny.  Edison used just enough copyrighted materials from both films to accomplish this goal, and no clip lasted for more than a few seconds at a time. While the amount of copyrighted material comes out to a high percentage of the entire mash-up, each clip is short and on its own remains unsubstantial.  As a result, this third factor weighs in favor of fair use.

Factor 4: The effect of use upon the potential market. It’s possible that the mash-up could discourage moviegoers from paying to watch one of the movies by showing its audience that the movies seem to be interchangeable, potentially killing demand.  But we learned from Campbell v. Acuff-Rose that even when “lethal parody . . . kills demand for the original, it does not produce a harm cognizable under the Copyright Act.” So even if the mash-up discourages viewers from seeing Friends With Benefits in theaters or buying the DVD of No Strings Attached, that effect is not the concern of the uploader.  This fourth factor therefore seems to weigh in favor of fair use.  But since trailers are copyrighted as a derivative of the movie’s copyright we may want to examine whether Edison’s trailer replaces the derivative (namely the copyrighted trailers).  But unlike the copyrighted trailers for the two movies, Edison’s mash-up trailer is not intended to play in theaters or to replace the derivative works and so the fourth factor remains in favor of fair use.

With the court’s traditional emphasis on the first and fourth factors of §107 of the Copyright Act, and the critical nature of the mash-up, we believe that Blind Film Critic Tommy Edison’s mash-up is protected under fair use.

Google+ discourages oversharing – by “Zachary M”

We’ve all been hearing the …er, buzz… about Google’s new social network, Google+. As someone jaded by the oversharing and overall “bogged down” feeling of Facebook, I jumped on the opportunity to see if Google+ would be any different.  It’s still in its early stages, but I’ve been pleased by the tangible steps that Google has taken against oversharing.

First, the emphasis on “circles” makes you think about who is going to read what you post.  Circles are similar to the optional “list” function on Facebook.  But the operative word here is optional.  You need to go out of your way to customize who sees your statuses on Facebook, clicking the lock icon next to the “share” button, then going to a “Customize” menu.

facebook
Sharing options for Facebook posts

Clearly, Facebook doesn’t want you to think about who sees your posts.   For Google+, on the other hand, at the bottom of each post, you see who the post will be sent to (see below).  It’s similar to an email mailing list, except the ensuing discussion looks more like Facebook.  Now let’s think about this in the context of a useless post: “I just had some awesome pancakes for breakfast.”  It’s on my mind, so on Facebook, I’ll just type it in, hit enter, and it’s there.  On Google+, I’ll type it in, then go to select which Circles to share it with.  Because of this, I’m forced to ask, “who would care about this?”  Acquaintances are immediately unchecked.  Family? Nah, they wouldn’t care either.  Classmates? No dice.  How about “Close Friends”?  Come to think of it, why would they care about an above-average breakfast?  No one wants to know this, so I’m not going to end up posting it.  This is a perfect example of the power of defaults – two networks have the same options, but they feel fundamentally different since one integrates choice into the interface, while the other hides a default.

Sharing a post on Google+
Select who you share with.

Second, there is no wall.  This is a big move for Google, considering some form of public personal messaging has been a staple of both MySpace and Facebook, its precursors. There’s a complex psychology and sociology to the Facebook wall, but it just starts feeling weird after a while.  It’s akin to people holding a loud conversation in public – you don’t necessarily want to eavesdrop, but you can’t quite avoid doing it.  On Google+, if you want to direct a message at someone, you have two options.  First, you can make a post that you share only with the intended recipient; the person will get a notification about your post.  This is a bit odd, though, since it only appears in your “stream” along with posts not specifically directed at anyone.  Second, just email the person.  Depending on various privacy settings and whether you are Gmail contacts, Google+ profiles have an email link featured prominently under the profile picture. (Edit: You can control whether this link appears by going to your profile, then clicking “Edit Profile,” then the “Send an Email” icon.  When people click this link, they send you an email without actually seeing your email address.)   Either way, you’re encouraged to keep two-person conversations private.

It might seem surprising that the folks who brought us the Buzz disaster would discourage us from sharing too much, but they’ve clearly focused their network around what people don’t like about Facebook (and perhaps they’re trying to avoid the backlash they got from Buzz). Facebook has become inundated with information you never wanted to know from people you met once and became friends with out of politeness.  Even to many people who are “hooked,” Facebook has become more of a social burden than a welcome way to keep in touch with friends.    It’s hard to predict how Google+ will evolve as it scales up and is modified over time – after all, Facebook was once somewhat similar to the current Google+, but it incrementally eroded privacy to draw users in.  However, Google has an advantage that Facebook didn’t have.  It is already an established web resource with enough useful services independent of its social network to keep itself relevant for a good while. Google can continue to attract users by making Google a one-stop digital resource, leaving an unobtrusive social network intact.

Addendum: I should probably note that the “resharing” function leaves a privacy hole, but resharing itself requires that you think about who would want so see someone else’s post.  Though it amounts to no more than automated copy and paste, this is another example of the power of defaults; hopefully Google will allow users to turn off resharing by default before Google+ becomes open.  In general, the Google+ design allows you to limit the people you give information to, not what they do with it, which is really all you can hope for, anyway (see Hoffa v United States).

 

Fair Use of the Week: My Little Wu-Tang Clan by Viraus2 – by “Julie S”

Background

One meme that has reached a widespread audience is the series of trailer mashups, music videos and fan videos brought to the forefront of the internet from the minds of the growing adult-male diehard fans of – yes, you’re reading this correctly – the animated TV series, My Little Pony: Friendship is Magic. They call themselves “Bronies,” and their unforeseen and yet vested interest in a TV show whose intended audience was prepubescent girls was equally unanticipated by My Little Pony creator Lauren Faust. Regardless of how or why the 20 and 30 somethings were first drawn to Twilight Sparkle and the mystical land of Equestria, the fan base has caught the attention of the /b/ board of 4chan, a dangerous playing field of trolls and hackers.

The YouTube account of Brony Masterlinkx had been shut down and restored multiple times this year allegedly at the hands of Hasbro on account of copyright infringement, but without comment from Hasbro, it’s unclear whether the takedown notices were authentic,or the handiwork of meddling 4chaners. Uploading of verbatim episodes aside, this week we will examine the Brony mashup, My Little Wu-Tang Clan.  Note, this is NSFW for language.

Fair Use: My Little Wu Tang Clan by Viraus2

When analyzing whether a mashup is covered under fair use, we look to the four fair use factors set forth in the §107 of the Copyright Act. As in earlier installments, we’ll examine each of these four factors to determine whether My Little Wu Tang Clan constitutes fair use.

Factor 1: The purpose and character of the use. My Little Wu Tang Clan is noncommercial and intended for entertainment purposes. The video takes two disharmonious styles – the cuddly innocence of MLP and the hardcore thug syle of the Wu-Tang Clan’s Shame on a Nigga – and mashes them together, cutting up the visuals from My Little Pony to fit with the Wu-Tang Clan song through a convincing lip-synch.

The effect is jarring and potentially comedic because hearing obscenities come out of a pony/unicorn is not in line with the original style of either work. But what does transforming these styles and meshing them mean?  We could read social commentary into the recontextualization of these two pieces—the impotence of children’s television programming and the childishness of rap and hip-hop.  By mixing these two styles, the author, Viraus2, transforms these two pieces and dilutes the extremes of both ends.

While the transformation arguably sexualizes My Little Pony, obscene transformations fare no differently than decent ones under copyright law. In Pillsbury v. Milky Way, the court noted that “value judgments have no place in a [fair use] analysis.” The crude nature of the mashup alone cannot deem the use unfair. Because My Little Wu Tang Clan is noncommercial and transformative, this first factor favors fair use.

Factor 2: The nature of the copyrighted work. Both My Little Pony and Wu-Tang’s material are copyrighted and commercial in nature. As a result, this second factor weighs against the Brony mashup.

Factor 3: The amount and substantiality of the portion used. Snippets of visuals from My Little Pony were remixed to appear lip-synced to the audio from Wu-Tang Clan. Likewise, visual snippets from Wu-Tang’s music video were incorporated into the mashup. The final product consisted only of these copyrighted materials. This means that the Bronies used a substantial portion of the copyrighted visual works. Furthermore, the Wu-Tang Clan’s song was used in its entirety, which goes against the spirit of fair use. The quality or fidelity of the song, however, was reduced by its uploading to YouTube. Nevertheless, because the Bronies used more than enough copyrighted material “conjure up” the work that they were commenting on, this third factor weighs against fair use.

Factor 4: The effect of use upon the potential market. It’s important to identify the potential markets that Hasbro and the Wu-Tang Clan are targeting. My Little Pony targets young girls and the Wu-Tang Clan primarily targets adolescent males. It doesn’t seem that the demand of the Brony market would harm eitherof the other two markets.  My Little Wu Tang Clan is not a substitute for My Little Pony. At best, it complements the Wu-Tang Clan’s higher-quality soundtrack.

While Hasbro may have legitimate concerns that My Little Wu Tang Clan is tarnishing My Little Pony, these concerns do not weigh against copyright fair use. In Campbell v.Acuff-Rose, the Supreme Court recognized that when a “lethal parody . . . kills demand for the original, it does not produce a harm cognizable under the Copyright Act.” This means that devastating criticism may actually decrease the demand for the original work, but that is not the kind of market effect that justifies a denial of fair use. Here, this fourth factor favors the Bronies because their specialty market is limited and the potential harm to My Little Pony and the Wu-Tang Clan seem minimal.

Generally, courts recognize that the first and fourth factors are the most important in a fair use analysis. When we consider the weight of all these factors and the major recontextualization that My Little Wu-Tang Clan has done to both materials, we feel that the video is protected by fair use. If Hasbro would have recognized that the Bronies’ transformative work poses little threat to My Little Pony, it’s unlikely that Hasbro would have asked YouTube to takedown My Little Wu-Tang Clan.

Because the law permits companies like Hasbro to shield their fair use analyses from public view, these companies are not being held accountable for sending improper takedown notices. As mentioned last week, ISPs like YouTube and Tumblr have little incentive to find defects with a takedown notice. Without reform to the DMCA’s notice-takedown-putback regime, corporate might will continue to define the outermost limits of creativity that user-generated content fosters.