Between Fair Use and Infringement: The Perils of the Video Essay Form

Between Fair Use and Infringement: The Perils of the Video Essay Form

“In
its intent the video essay is no different from its print counterpart, which
for thousands of years has been a means for writers to confront hard questions
on the page. The essayist pushes toward some insight or some truth. That
insight, that truth, tends to be hard won, if at all, for the essay tends to
ask more than it answers. That asking—whether inscribed in ancient mud, printed
on paper, or streamed thirty frames per second—is central to the essay, is the
essay. […] Images and sound, those engines of emotion, have their own story to
tell. Promiscuity of the image isn’t a weakness of the essay-film. It’s a
feature. A volatile one, sure. And it’s changing the way we write, changing our
conception of what writing means.” -John Bresland, On the Origin of the Video Essay

During
the last couple of years, as I developed my voice as an independent digital
filmmaker, a majority of the content in my filmography grew under the direction
of appropriation art, and in particular, the video essay form. I suppose that’s
why the above quote by Bresland speaks to me deeply these days. By “changing
our conception of what writing means,” this visual form of critical
storytelling also falls victim to accusations of piracy, infringement and
perhaps worse, unoriginality.

In 2011,
I began making cultural commentary video essays, on themes of mass media
consumption
,
and then in 2012 I was lucky enough to begin making video essays on the cinema
for Press Play. Creating and sharing video essay works with the
likes of Matt Zoller Seitz and Kevin B. Lee (the masters of the video essay
form) opened up my eyes to the far-reaching potential that the video essay
could achieve; in an age of hyper social media and over saturated online
content creation, the video essay form was the perfect medley for retooling
existing media in an effort to discover new meanings or alternative
interpretations, while also drawing back on nostalgia and what certain images
meant to different viewers. It’s been an exciting time, as the definition of
the video essay becomes more expansive and includes other forms of
appropriation art like the supercut or mashup.

But an
alarming cloud has been building: accusations of copyright infringement.

A
well-known case of this is Kevin B. Lee’s unfortunate clash with YouTube,
which resulted in his online videography being deleted completely. How could
such a travesty happen? Surely both YouTube and the third party copyright
owners (in Kevin’s specific case it was Warner Bros. Music) could see the
brilliance and vitality behind such a compilation of moving image criticism and
commentary. Why go through all the trouble of making Kevin start over with a
blank slate on his YouTube channel? What about his avid fans? These questions are
all the more troubling because there is probably no one who can legitimately
answer them. The reason for this is that a copyright takedown is usually automated.
In other words, if a video clip has a digital watermark, it’ll spur an online
takedown notice. There is no discussion by a team at a film studio; there’s
just an Internet spambot, making it clear that you cannot use this material.

And then
that same dark “accusation of copyright infringement” cloud got around to me
too. In February of this year I created a 4-minute video montage of every Best
Picture winner, in chronological order. Using Final Cut Pro as my editing
platform, in the modest work desk of my bedroom in my apartment, I created the
video in one sitting, on a Tuesday afternoon. And, as with every video essay I
create, I uploaded it to my Vimeo profile, with the citation: “Fair use is
codified at Section 107 of the Copyright Act: Under the fair use doctrine, it
is not an infringement to use the copyrighted works of another in some
circumstances, such as for commentary, criticism, news reporting, or
educational use.” For each video, I always acknowledged that I was abiding by
U.S. Copyright Law.
After all, they were for critical, cultural and educational use. So, with the
Oscar video, I wanted to share my enthusiasm for the coming Academy Awards
broadcast.

The
enthusiasm proved to be contagious.

I could
never have predicted that my Oscar video would go viral and receive some
national media coverage (Esquire
Magazine
,
Entertainment Weekly, etc.).
The best part about it was that it introduced a new set of viewers to my
existing body of work—and when you’re an independent digital filmmaker, that’s
the best kind of currency. The movie business is such a hard arena to stay
alive in and having an audience getting excited
about
your videography is a vital encouragement to keep going.

Fast forward to Monday April 8th, 2013: I receive an email from Vimeo,
saying that the Walt Disney Company found the material to be “infringing” and they had to
remove the video from my Vimeo account. That hurt. The video had accumulated nearly half a
million views on Vimeo and even made some television appearances on various
local news broadcasts.
People liked it and were sharing it. But now that has stopped. The Walt Disney
Company, in one swift move, not only flexed their corporate litigation muscle,
but they did it well after the fact. I understand that digital watermarking on
certain clips can spur an online takedown notice but why didn’t it happen
sooner? The video’s viral success wasn’t exactly a secret. If the Walt Disney
Company found my work to be “infringing,” why wait until AFTER the Oscar
telecast to take it down? Again, there’s no one to answer these questions,
because copyright takedown notices are impersonal, automated and cold.

I didn’t
make a single penny off of my Oscar video and the Walt Disney Company didn’t
make any money by removing it from Vimeo. It was a labor of love for me, birthed during a prolific stage of my career. By removing my Oscar video, the
Walt Disney Company only shoots itself in the foot: Much of the feedback for my
video centered on how people were excited about the Oscars again and wanted to
actually seek out some of those forgotten titles. You wouldn’t know that now,
since the Vimeo page is deleted, along with its stats, “Likes” and comment
thread.

This
experience has put me into a disheartened funk. Part of me suspects the Walt
Disney Company saw no artistry in my video and solely looked for a
bottom line win in their books. I know that’s probably not the case. It’s just
the digital copyright police out on the prowl, taking down one video after the
next. What I do know is that yesterday I was excited about what video essay I
would start working on next.

Today
I’m not so sure.

Regardless,
it’s a troubling issue that needs more attention, because the video essay form
is a vital filmmaking genre and should be respected, guarded and supported
rigorously
.
Otherwise, we, as a movie-loving audience, will lose the bigger battle of
innovation and progress in the ever-changing landscape of film criticism,
digital filmmaking and online accessibility.

Nelson Carvajal is an independent digital filmmaker, writer and content
creator based out of Chicago, Illinois. His digital short films usually
contain appropriated content and have screened at such venues as the
London Underground Film Festival. Carvajal runs a blog called FREE CINEMA NOW
which boasts the tagline: “Liberating Independent Film And Video From A
Prehistoric Value System.” You can follow Nelson on Twitter
here.

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Comments

NELSON CARVAJAL

It is back! – http:/&#x2F

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Patricia Aufderheide

Thanks for the tips of the hat to Center for Social Media (centerforsocialmedia.org/fair-use) stuff on fair use, especially the Documentary Filmmakers' Statement of Best Practices in Fair Use. You can't practice your First Amendment rights if you don't know them! In this case, it does mean issuing a counter-takedown notice, and getting that scarey pop-up. But large media companies never sue on fair use claims they are likely to lose, and actually not on fair use issues generally. In fact, the MPAA just came out in vigorous defense of fair use (the Ravens issue). If you know your fair use rights, you can defend them. This is a very disturbing story in any case, though, and shows the many many many problems for the future of creativity when algorithms and bots, not people, are left in charge of making infringement claims.

IPadvisor

I'm sympathetic and your comments of criticism, satire and/or education would probably make it non-infringing under Fair Use. But unlike most people's expectations, the Fair Use doctrine is not law or a set of rights. Rather, it is a judicial guideline and a defense against a claim of infringement. Of course before you can rely upon a Fair Use defense, you have to be sued.

As to the site operators, most of whom function under a safe harbor provision, they are typically unwilling to run their own legal risks on a poster's behalf since they can be sued separately for failing to take down potentially infringing material once take-down notice has been given.
So until it's changed, the EFF, et. al. notwithstanding, that's just how it is.

Jason Mittell

Such takedowns are common, but you can push back – Vimeo will allow you to dispute a takedown. And there are resources to help you defend your creative, transformative work – see the Center for Social Media's resources for fair use & online video!

Nayan

With Copyright reform in the works, don't get disheartened. Like Brian suggested, some lawyers may want to help in this, and other such legitimate fair use cases.

ABillington

Wonderful article, I'm glad you decided to write about this and share your honest story. This is so sad to hear. The world is evolving, even though the movie industry isn't, and IP laws are stifling innovation and creativity. This is exactly what Fair Use was created for and you should easily be able to win a Fair Use case here. The EFF and organizations Brian Newman named are fighting and helping, but not enough. Hollywood still pays the $3 million salary of the disgusting bigot known as the MPAA's head lobbyist Chris Dodd. His power alone snuffs out any of the little guys fighting for individuality and creativity. This is a disheartening situation where this kind of blinding, embarrassing light must be shed in the ugliest corners of Hollywood where IP laws do more harm in our culture than help.

dan aronson

Also, the folks at the Stanford Fair Use Project (http://fairuse.stanford.edu/) are great! Please keep fighting the good fight!

Brian Newman

It's troubling, but not an area that is unexplored. There's a ton of work being done on behalf of Fair Use. Look at the work of American University (Peter Jaszi and Pat Aufderheide); USC Law School and Berkeley; the EFF, Michael Donaldson and others. There are lots of legal experts who will work with you pro-bono on this issue, and it seems worthy of more than just an op-ed piece here (albeit a great op-ed piece).

Michael Mirasol

Don't you dare stop Nelson. I know the feeling. The very reason I shifted to Vimeo was because YouTube didn't give a shit. Vimeo seems to be following suit, and the matter of timing is highly suspect. No more attention, no story.

Makes me sad Roger isn't around to shine a light on this.

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