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.
Yale Law Tech 