remix culture and fair use: a new study

futurelab default header

by: danah boyd

Folks over at the Center for Social Media have just released a new study on copyright and creativity. They identify nine common types of re-appropriation practices that use copyrighted material:

  • Parody and satire: Copyrighted material used in spoofing of popular mass media, celebrities or politicians (Baby Got Book)
  • Negative or critical commentary: Copyrighted material used to communicate a negative message (Metallica Sucks)
  • Positive commentary: Copyrighted material used to communicate a positive message (Steve Irwin Fan Tribute)
  • Quoting to trigger discussion: Copyrighted material used to highlight an issue and prompt public awareness, discourse (Abstinence PSA on
  • Illustration or example: Copyrighted material used to support a new idea with pictures and sound (Evolution of Dance)
  • Incidental use: Copyrighted material captured as part of capturing something else (Prisoners Dance to Thriller)
  • Personal reportage/diaries: Copyrighted material incorporated into the chronicling of a personal experience (Me on stage with U2… AGAIN!!!)
  • Archiving of vulnerable or revealing materials:
    Copyrighted material that might have a short life on mainstream media
    due to controversy (Stephen Colbert’s Speech at the White House
    Correspondents’ Dinner)
  • Pastiche or collage: Several copyrighted materials
    incorporated together into a new creation, or in other cases, an
    imitation of sorts of copyrighted work (Apple Commercial)

This study interrogates these practices in the context of
copyright law, namely “fair use.” They try to assess which way the
courts might fall depending on practice. They also offer potential
defenses that creators can make if they were sued in an attempt to
build best-practices principles. They also categorize exemplar videos
that fall into each category.

For those who aren’t familiar with U.S. law, fair use is quite
tricky because courts address it on a case by case basis after someone
is sued. There is no list of what constitutes fair use. Thus, remixers
engaging in practices that would collectively be viewed as fair use
never have certainty that what they’re doing is legal. Because court
cases are extremely costly (especially for the lone defendant in the
face of Big Mega Corp), corporations can wield a lot of power through
the egregious use of “Cease and Desist” letters. Most creators bow down
in the face of them even if what they’re doing is totally legit because
they are terrified of being sued. In legal terms, a “chilling effect”
is when practices are squelched by fear of persecution. Right now, when
it comes to remix, we’re in the middle of an ice age. The Chilling Effects Clearinghouse
website attempts to counteract some of this effect by collecting and
publishing Cease and Desists and other nefarious attempts by
corporations to silence fans and critics.

It’s a really really really screwy system that pits little people
against big corporations, stifling innovation and creativity. Yet, in
order to change it, people have to understand what is taking place,
what is at stake, and how to rethink the situation. This is the goal of
this study.

Original Post: