Professor E. Chan-Smith
Remix Culture – What are we allowed to do?
Video-editing technology continues to amaze – it probably will not be long now before we are able to edit video on our cell phones (perhaps we already can). When an Apple computer is purchased, iMovie usually comes with it, allowing the greenhorned-novice to make a legitimate, if not professional film. Same goes for PC users – Windows Live Movie Maker is video editing software that comes with computers running Windows operating systems. While limited in fine-tune-editing scope, both of these programs enable the average computer user to remix, cut into pieces and “mashup” whatever video that individual sees fit. Of course, such editing liberties do not come without potential consequences. The user has to, at the risk of being heavily fined by the government (copyright.gov, 2012), be very careful in disseminating the newly-mixed video once it is complete. There are serious copyright laws in the United States, combined with millions of computers and civilian users with the capability of breaking those copyright rules. These numbers have resulted in the production of a staggering amount of creation that has blurred the “grey area” between “fair use” and copyright violation. The collective technology, size of user-creator base and their works have developed into what is called a “remix culture.” Diakopoulos, Luther, Medynskiy and Essa (2007) define remix culture as “… a society that encourages derivative works by combining or modifying existing media.” In this paper the mashup “Must Love Jaws” will be discussed, and how it may have infringed on a movie’s copyright while claiming an artistic license for fair use.
“Must Love Jaws” is a Youtube video only 2:40 in length, which parodies the Jaws original motion picture. In this mashup, the editor/director duo of Ari Eisner and Mike Dow spin the story, with their editing, to tell a tale of two men in love with sharks. Their affinity for these animals drives them to protect the notorious and villainous beast responsible for multiple gory deaths. The mashup includes two copyrighted songs, one by the Spin Doctors (“Two Princes”) and “I believe I can fly” by R Kelly. Uptown Records, a division of Sony BMG Music, owns the rights to “Two Princes.” “I believe I can fly” was released in 1996 for the movie soundtrack to Space Jam, and the rights are owned by Atlantic Records. The copyrights to the movie Jaws are owned by Universal. This pits Sony BMG Music, Atlantic Records and Universal against Ari Eisner and Mike Dow.
This is the official stance of the government regarding copyright (Copyright.gov, 2012): “Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work … If you use a copyrighted work without authorization, the owner may be entitled to bring an infringement action against you” (para. 5, 7). So, since these two individuals are not the copyright owners, they may in fact be subject to “an infringement action.” But the line definitely seems to be blurred. Youtube is still showing the video at present on its website. On occasion, some videos are taken down by Youtube, citing a violation of copyright, as in the case with some songs owned by EMI. Such is not yet the case with “Must Love Jaws,” which was originally posted online on March 14, 2006. O’Brien and Fitzgerald (2006) take the argument a step further, “… mashups and remix will inevitably encounter legal problems when the whole or a substantial part of the original material has been reproduced, copied, communicated, and adapted or performed … Generally, the courts consider what will amount to a substantial part by reference to its quality, as opposed to quantity and the importance the part taken bears in relation to the work as whole” (p. 3). By this rationale, it should be clear that the two minutes and forty seconds that constitute this mashup are not a considerable or “substantial” part of the original two-hour motion picture. However, what constitutes “a substantial part by reference to its quality” would certainly be up to debate. What if viewers find this mashup more entertaining than the movie – even if it runs for only 2:40? And if, by chance, the powers-at-be over at Universal see this “Must Love Jaws” as better than their feature film, then the case for an “infringement action” may be reasonable.
But this still does not clearly designate right from wrong, or fair use from copyright infringement. Renee Hobbs (2009) muddies the picture even further, “… the doctrine of fair use, part of the Copyright Act of 1976, states that people have a right to use copyrighted materials freely without payment or permission, for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. In essence, fair use gives people a right to use copyrighted material when the cost to the copyright holder is less than the social benefit of the use of the copyrighted work … In recent years, courts have recognized that transformative uses are fair uses. Specifically, when a user of copyrighted materials adds value to, or repurposes materials for a use different from that for which it was originally intended, it will likely be considered fair use. The doctrine of fair use generally supports the modification of existing media content if it is placed in a new context” (p. 13). “Must Love Jaws” probably should not be considered criticism, comment, news reporting, teaching, scholarship or research. By this understanding, the mashup would not fall under legitimate fair use. However, the production costs of making the original movie Jaws has to be compared to “the social benefit of the use of the copyrighted work” – in this case any monies received or perhaps fame gained by Eisner and Dow. If Universal’s production costs outweigh the fame and fortune earned by Eisner and Dow, then “Must Love Jaws” should fall under fair use. Furthermore, these two individuals repurposed materials “for a use different from that for which it was originally created.” They did not intend to feature their mashup in theaters across the country, in hopes that they would garner a considerable box office ticket draw. They most likely had no plans of walking the red carpet for the premiere of their short remix, nor pay exorbitant amounts of money in advertising and promotion, leading up to their “Must Love Jaws” release. And finally, their mashup places the media into a new context. Their video is meant to be a parody, whereas Jaws was anything but – a feature film full of drama, suspense, death and gore. Since “the doctrine of fair use generally supports the modification of existing media content if it is placed in a new context,” then “Must Love Jaws” would seem to fall under that category.
There are other concerns, however. For those individuals around the world who have never seen Jaws but have internet, Universal could argue that this mashup spoils the chance that these people would finally view the film, which would cut into its bottom line. It is reasonable to assume that Universal would never run a trailer of this film that shows the end scene, in which the terrible shark literally bites one of the shark hunters in half, blood spewing from his mouth and onto the boat. This scene shows prominently in “Must Love Jaws,” and it is meant to be comical. Internet users viewing the spoof may be somewhat shocked that the movie Jaws is so gory, and refrain from viewing it in the future, which could cost Universal money in royalties. Atlantic and Sony may not approve having their music embedded in a video of such graphic nature as well. They could claim that upon hearing their songs again, listeners would be turned off, having the grotesque images of the shark on their minds. Of course, these are only imaginary scenarios, but since they own the copyright, they could make these claims. The opposite position could be taken as well – that such awesome gore would only improve the popularity of the film, especially amongst the younger demographics that might have considered the movie too old to watch. After seeing the clips from “Must Love Jaws,” perhaps they would now be enthused to finally see the movie. And this seesaw may be just what makes the argument over fair use so difficult.
As of July 24, 2012, “Must Love Jaws” has received over one million, six hundred thousand views on Youtube. If Eisner and Dow are receiving royalties from Youtube for the video, then their argument for fair use may not hold water – especially depending on their “social benefit” versus Universal’s cost of production. Aside from factual accounting though, it is very difficult to clearly determine copyright infringement. Hobbs (2009) adds, “Hard-and-fast rules are inappropriate since the doctrine of fair use requires that people use reasoning and judgment.”
With affordable editing at our fingertips, more and more mashups like “Must Love Jaws” will come under scrutiny, and test the laws of copyright. Remix culture, thanks to affordability and concentration of media technology, will certainly grow and continue to thrive. With technologies advancing faster than the law is written, legal battles will continue to materialize as well. But without definitive, clearly-stated policy concerning the rules of remixing existing media, the line between fair use and copyright infringement will continue to be blurred.
Professor E. Chan-Smith
Can I Use Someone Else’s Work? Can Someone Else Use Mine? (2012, June). Retrieved July 23, 2012, from http://copyright.gov
Code of Best Practices in Fair Use for Online Video. (2008). Retrieved July 23, 2012, from http://centerforsocialmedia.org/fair-use
Diakopoulos, N., Luther, K., Medynskiy, Y., & Essa, I. (2007). The evolution of authorship in a remix society. Proceedings of the eighteenth conference on Hypertext and hypermedia, 133-136.
Fair Use. (2012, July). Retrieved July 23, 2012, from http://copyright.gov
Hall, S. (2006, March). Jaws Trailer Converted to ‘Must Love Jaws’. Retrieved July 24, 2012, from http://www.adrants.com
Hobbs, R. (2009). Best Practices Help End Copyright Confusion. The Council Chronicle – National Council of Teachers of English, p. 13.
O’Brien, D., & Fitzgerald, B. (2006). Mashups, remixes and copyright law. Internet Law Bulletin, 9(2), pp. 17-19.
Vayabobo. (2006) Must Love Jaws. Retrieved July 24, 2012, from http://youtube.com