Save for stylish mustaches, Walt Disney and Marcel Proust probably had very little in common. That is, until the enactment of the Copyright Term Extension Act of 1998, a.k.a. the “Mickey Mouse Protection Act.” Before the act, copyright of a work would last for the life of the author plus 50 years, or 75 years for a work by a corporation. The act, authored by the late Congressman Sonny Bono, extended these terms to life of the author plus 70 years and 95 years respectively. The Walt Disney Corporation lobbied heavily for the extension in order to prevent early Mickey Mouse cartoons such as “Steamboat Willie” from entering the public domain.
In practice, the Extension Act had some odd effects. In the late 90′s, Penguin books commisioned a new English translation of Proust’s seven-volume In Search of Lost Time. The new translations of the volumes are considered far superior to the previous 1920′s translation. (In fact, the original translation called Proust’s masterpiece “Remembrance of Things Past.” Even the new translated title was subtly yet materially different in its meaning.) Unfortunately, getting hold of all seven of the new translated volumes can be a little difficult for American readers:
Bono’s legislation effectively froze the date at which works go into the public domain at 1923, instead of marching forward twelve months with each passing year. In Search of Lost Time was caught in this web, because only the first four volumes were published before 1923. The Prisoner, The Fugitive, and Finding Time Again are still protected under U.S. copyright law, so Viking can’t publish them, even though the British paperbacks are freely imported into this country.
Librarians, scholars and artists had opposed the Copyright Extension Act for reasons similar to the Proust problem. “Derivative” works incorporating copyrighted material such as translations, commentaries, etc. would be “off-shored” to countries with less stringent copyright laws. Not only would the Extension Act deny Americans the ability to engage in such work, Americans also would be denied access to the educational benefits of such work. Opponents of the Extension Act also pointed out the the Act represented the creation of a “slippery slope” in which corporations could slowly encroach more and more upon the common law concept of “Fair Use.”
Also in 1998, Congress enacted the Digital Millenium Copyright Act. Much of the act’s purpose was to outlaw the use of anti-encryption devices. The act also required internet service providers to remove material from users’ websites “that appear to constitute copyright infringement.” The climate of corporate encroacchment upon “Fair Use” represented by the Copyright Extension Act, coupled with the more specific provisions of the DMCA set the stage for the current dispute between Viacom and YouTube.
On February 2, media giant Viacom delivered roughly 100,000 “DMCA notices” to YouTube demanding the takedown of Viacom copyright-infringing material. The orders seem to be more of a negotiating tactic than anything else:
From there, things got ugly, fast. Viacom CEO told the Wall Street Journal that “We have been quite indulgent to this point. We cannot continue to allow YouTube or Google to continue to profit from our content without a reasonable commercial agreement.”This sort of language caused many to wonder if Viacom’s tough talk was merely aimed at securing a better deal for the media company as it negotiates with YouTube. Whatever was going on, Google VP David Eun was not in a conciliatory mood when he told the paper that Viacom only had eyes for short-term dollars, contrasting that with Google’s (allegedly) loftier stance. “They are more focused on the money they can make in the short term,” he said. “We’re still more focused on innovation than the short-term economics.”
Then came the revelation in the New York Times that YouTube had already made its filtering technology available to Warner Music, a company that had earlier cut a deal with YouTube. This prompted an outraged response from Viacom, which accused YouTube of providing filtering only to friendly companies and making all others do massive amounts of legwork. “They are saying we will only protect your content if you do a deal with us—if not, we will steal it,” said a Viacom exec.
Also, the filtering technology used by Viacom in identifying “infringing” YouTube videos caught much more than just Viacom property.
Finally, it emerged that Viacom’s DMCA takedown notices had not been subjected to the sort of rigorous legal scrutiny one might expect from a company that was firing off documents in a legal dispute. A clip of some friends eating dinner in a restaurant got yanked at Viacom’s request, suggesting that their “research” involved cutting and pasting from search results instead of actually checking out the clips in question.
In search of lost copyright, Viacom’s wide net had entangled clearly non-Viacom-related videos. But what about Viacom-related videos that nevertheless constitute “fair use,” for which the DMCA provides an exception? Simply copying and “rebroadcasting” the entirety of a Viacom-owned television show would not constitute fair use, as doing so likely would have an adverse “effect of the use upon the potential market for or value of the copyrighted work” (selling commercials, syndication royalties, etc.). But what about the compilation of clips into a montage for the purpose of criticism and parody of cliche script-writing and acting? Under the “fair use” statute, this hilarious critique likely would constitute fair use, as the montage’s purpose is “criticism [and] comment,” and it doesn’t act as a free substitute for an episode of CSI: Miami.
So, in addition to clearly non-Viacom-related videos, Viacom’s wide net surely entangled “fair use” videos of Viacom-related material. (Interestingly, this particular video somehow eluded Viacom’s wide net, while a video depicting a visit to a steakhouse did not.)
But what is an average user of a service like YouTube caught in a wide and indiscriminate net such as Viacom’s to do? A group called the Electronic Frontier Foundation is searching for class members for a class action specifically arising from this Viacom/YouTube incident. As for non-class-based actions of a corporation against a fair-user, the prospect of litigating against a giant corporation probably would lead most individual fair-users simply to take down the allegedly copyright-offending material.
Indeed, one of the most famous parody-as-fair-use cases, Campbell v. Acuff-Rose Music, a.k.a. “The 2 Live Crew Case,” involved two large corporations with plenty of resources battling it out all the way to the U.S. Supreme Court. Even though 2 Live Crew’s parody of Roy Orbison’s “Pretty Woman” had a commercial purpose, fair-users 2 Live Crew nevertheless prevailed. Concurrent with 2 Live Crew’s “commercial purpose” came a large and wealthy record label’s “commercial purpose” to protect its product. Ironically, non-commercial fair-users such as our CSI: Miami parody author would probably lack the financial-backing to litigate. Campbell further declares that the factors weighed in fair-use claims are to be judged on a case-by-case basis … an expensive litigator’s dream!
Aside from clearly political speech, like using Viacom-owned CBS news clips, what’s the big deal? Proust aficianados need only order their new translations from England. The cultural import of a video depicting a visit to a steakhouse, or a video montage of David Caruso’s subpar acting abilities seem rather small. 2 Live Crew hardly are the most ideal exemplars of cultural criticism.
The big deal arises from the prohibitive environment the Copyright Extension Act and the DMCA promote. For fear of being slapped with lawsuits and injuctions, the ordinary citizen’s ability to engage in cultural and political criticism is severely limited. In a cultural lexicon increasingly dominated by coporate-generated images, the inability to comment and critique these images for fear of retribution cuts at the very heart of what it means to engage in “speech.” This prohibitive environment especially curtails the speech of “emerging” artists and political actors, whose lack of financial resources and public regard afford them little help in taking on an allegedly infringed-upon wealthy and/or corporate adversary. The most important kind of speech, that which critiques the images and concepts of our media culture, becomes “chilled.”
One of the more interesting examples of a well-healed entities defeating an “emerging artist’s” use of copyrighted material is the story of a young director named Todd Haynes and his 43-minute film Superstar: The Karen Carpenter Story. Haynes later went on to direct such critically-acclaimed films as Safe and Far From Heaven. 1987′s Superstar was one of Haynes’ first films, sympathetically depicted Karen Carpenter’s battle with anorexia, and from a feminist perspective, examined the cultural and familial pressures that contribute to the disorder. Instead of filming flesh-and-blood actors, Haynes used Barbie dolls as a commentary on our culture’s concept of feminine beauty. The film also employed the narrative arc of a “made-for-TV” biopic, and included the type of on-stage performance scenes one would expect from the genre.
Haynes never “cleared” the use of the Carpenters’ music. Upon hearing about the film, Karen Carpenter’s brother Richard immediately filed suit against Haynes seeking to prevent the showing or distribution of Superstar. Richard Carpenter prevailed, but even if Haynes had prevailed, Barbie manufacturer Mattel was likely to follow with a suit. A young director fresh out of school, Haynes had neither the personal financial standing nor the financial support of a studio to effectively defend himself.
“Bootleg” copies of Superstar remain. For educational purposes, you can view the film via this link. You can judge for yourself, but in my opinion, it’s a pretty remarkable piece of filmmaking. In addition to the incredible technical skill involved, it’s a thought-provoking piece of cultural criticism. Furthermore, Haynes’ use of the Carpenters’ music and Barbie dolls arguably is within the bounds of fair use. If Haynes would have been able to afford the type of attorneys 2 Live Crew had, perhaps he would have prevailed against Richard Carpenter and Mattel. At least he would have had a fighting chance.
Haynes was made an example. After passage of the Copyright Extension Act and the DMCA, the prohibitive environment toward fair use is far more hostile than it was in 1987. How many artists today, with ideas well within the terms of fair use, nevertheless are afraid to effectuate those ideas for fear of reprisal from media corporations and their seemingly limitless resources? While making original, new, and interesting film via internet sites such as YouTube have reduced costs for artists, the costs of defending their work against corporate legal action of tenuous merit remain as high as ever.
(As an aside, a couple days after first watching Superstar, I had to go out and buy this album. Maybe suppressing Superstar has cost Richard Carpenter some record sales.)
