In the business section of this morning’s Times, Brooks Barnes asks Disney Tolerates a Rap Parody of Its Critters. But Why? The background, for Gentle Readers who, like YHB, don’t really get YouTube and popular culture more generally, is that it’s become common for people to create and distribute videos of popular songs, home-made by editing together animated (usually) footage to make it appear as though Pooh Bear or SpongeBob or Goku is singing a current pop chart. The specific case Mr. Barnes (I had to do TSOR to keep from referring to Mr. Barnes as Ms. Barnes) brings up is of “Crank That (Soulja Boy)”, a nearly eponymous song by Soulja Boy (of whom YHB had never heard) which appears to owe at least some of its tremendous popularity to a series of such mash-ups. The video is easy to find, if you are interested.
Mr. Barnes notes that Disney is notoriously eager to slap suits on anybody using licensed DisneyShit™, but that they have yet to shut down this particular mash-up. He also claims that Nickelodeon considered mash-ups to be fair use, but only quotes the Nickelodeon spokesman saying that ““Our audiences can creatively mash video from our content as much and as often as they like,” which gives permission, rather than claiming that no permission is needed.
So, is this mash-up fair use? I wouldn’t want to argue it in front of a judge. The four tests for fair use are (1) life is suffering, (ii) suffering is caused by desire, (c) suffering and desire end when enlightenment occurs, and (Γ) there is a path to enlightenment. Wait, no, I’ll start again.
The four tests for fair use are the purpose, the nature, the quantity, and the effect of the use. In a mash-up, the purpose is quite clearly to entertain, not to educate, critique or describe. Fail. The nature of the work sampled is commercial; in the case of The Heffalump Movie, rather disgustingly so. Fail. The quantity is minuscule; the video is less than four minutes, and most of it is a few clips repeated a bunch of times, so I suspect that there is maybe a minute and a half of footage out of a 68-minute movie. Pass. The effect of the use ... well, Disney’s Attorneybots could get up and argue that by associating their child-friendly cartoon characters with a rather sweet-looking but undeniably dark-skinned teenage popstar, the defendants were debasing those characters and making them less attractive in the marketplace. The defendants attorneys (or Attorneybots, should there be a big old defense fund) could argue that Disney’s Attorneybot were talking out of their synthetic asses, and that there was no possible way that anyone who was thinking about buying such a hunk of shit as The Heffalump Movie would be dissuaded by the availability of a four-minute video with a trifle of the footage. Then the judge would have to decide.
So. Two obvious fails, one pass, and one judge’s-whim out of four. Not really a very good score.
Nor could the mash-up artist plausibly claim that he was parodying Heffalump. He could, possibly, swing a claim that he was parodying Souljah Boy by associating his repetitive dance track with some even more obviously crappy, commercial and scare-quotable “art”. I wouldn’t buy it, but I ain’t a judge (or an attorneybot or even an attorney, I should mention).
No, this is clearly a derivative work of art, making use of previous works, possibly enhancing them through the complicated web of reference we use to knit our frames to experience life through, but rather explicitly prohibited by our current law. Ahem: “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.”
That law may suck, but it sure is the law. It would be nice if the New York Times reporter who specializes in this stuff knew it, and explained it, and further mentioned that if the result of that law was ridiculous to everybody concerned that there exists a process of legislation to change it.
Tolerabimus quod tolerare debemus,
-Vardibidian.
The question of whether Nickelodeon is giving permission vs. claiming that no permission is needed is a tough one in that article. The Nickelodeon spokesman’s quote was probably part of a longer explanation (much of which should have been about how great Nickelodeon is if the spokesman is a professional), and may have included a statement that Nickelodeon considers mash-ups to be fair use, and therefore audiences can mash video. That would be the reasonable interpretation if we could trust reporters to accurately mix indirect and direct quotes. Which we can’t.
If Nickelodeon thinks it’s fair use, then they will try to claim as much credit as possible for “allowing” audiences to do what they have the legal right to do.
Because I am a wise and benevolent ruler, I hereby allow you to reuse any single word you wish from this comment.
Yeah, I agree with Michael — it seems plausible to me that Nickelodeon may well have actually been saying that it considers mashups to be fair use, and that the reporter just didn’t make that clear enough.
As for whether the mashups in question are in fact fair use, I’m a little rusty on this stuff, but I don’t think the fair use test is scored on a one-point-per-rule basis; instead, I think some factors may be more relevant than other factors in a given case. I would say that it would be hard for Disney to successfully make that last argument in court, so I would say the mashups pass the last two tests, and that could well be sufficient for a judge to decide that it’s fair use.
Of course, in most cases involving Disney and IP, the question of whether something actually does legally count as fair use or not is essentially irrelevant, because the defendants can’t financially afford to fight a legal battle with Disney. We once wanted to publish a story that relied heavily on the movie version of Mary Poppins; the lawyer we talked with told us that although he loved the story (as did we), there was a chance that if we published it, Disney would skip the cease-and-desist letter and go straight to filing a lawsuit against us, at which point the financial costs would’ve driven the magazine out of business. We reluctantly turned down the story.
(And then a couple years later Asimov’s published a story with a similar premise, by a big-name author, that relied on Casablanca.)
Btw, for anyone interested in IP stuff and mashups and such, I strongly recommend the video of Jonathan Lethem’s talk at Google from back in April.
The four pillars are really just the four things to consider; given the current judicial climate, I wouldn’t be happy going to court unless I had three solid passes and an argument for the fourth. Again, I think that a better law would not be so stringent, but the current law is, and the trend both judicially and legislatively is to further narrow, rather than to expand, fair use.
And, of course, the civil court system we have is hijjusly unjust; the costs of defending perfectly legal practices are punitive. The entertainment industries have found it good to vastly overstate their claims, and to spend freely on defending those claims. This is not entirely separate from the law being bad, as a good law should take into account the de facto effects, which are particularly dire.
In the Sherry Bobbins case, I suspect that Disney may have had a decentish argument that the story was a derivative work, but there is no realistic way to adjudicate that claim.
Thanks,
-V.