IP/Gender Symposium
May. 12th, 2009 09:14 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
tishaturkA couple of weeks ago I attended (and presented at) the IP/Gender Symposium at the American University Washington College of Law. It was a terrific experience. I was particularly happy about the opportunity to engage in ongoing conversation with a relatively limited number of people; most academic conferences have multiple panel streams, but IP/Gender had only one, so nearly everybody was able to attend all the presentations, which meant that as the day went on more and more presenters referenced earlier presentations. The organizers also allowed lots of time for discussion, which I really appreciated. And I got to hang out and chat with some delightful people, including a few I had met before (Francesca Coppa, Kristina Busse, and the ever-fabulous ![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
par_avion) and a great many more whom I was meeting for the first time (Rebecca Tushnet, Wendy Seltzer, Casey Fiesler [author of "Everything I Need to Know I Learned From Fandom: How Existing Social Norms Can Help Shape the Next Generation of User-Generated Content"], Karen Hellekson [TWC co-editor with Busse], and the other presenters).
For a detailed account of the presentations and ensuing discussions, I refer you to Professor Tushnet's blog; she posted her keynote address as well as notes from the first panel (which is the one I was on), the second panel, and the third panel.
All I can add is that the most eye-opening moment of the symposium for me personally was Ann Bartow's response to the first panel. She observed that everyone on that panel (including me) had framed fannish participation as a privilege that women ought to be allowed because we're not interfering with anybody's profits rather than as a right we can demand because everybody has a right to free speech. As Coppa put it later, we've been presenting ourselves as the Cinderellas who have picked all the lentils out of the ashes and are saying "Can I go to the fair use ball now?" when in fact we already have tickets to the ball because we're citizens. And Bartow's exactly right: defining fannish fair use as a form of free speech that we don't have to earn, that we can simply assert, had just... never occurred to me.
For anyone who's interested, I'm reproducing the text of my presentation under the cut. Like any text intended for performance, it changed a bit in delivery--I always end up ad-libbing or elaborating on points as I go; but the text that follows is what I had in front of me while I talked. It's based on the post on narrative from several months ago, so much of it will look familiar to anyone who's read that post, but it does include some new ideas--largely inspired by Coppa's "Swap Audio" presentation on Thursday night, in which she began to explore some of the ways in which we might theorize vidders' uses of music, not just video, as transformative--and I have given that section its own cut tag so that interested parties can skip right to it.
Transformative Narrations: Fan-made Videos and Fair Use
I feel I should start by saying that I'm not a lawyer; I'm an English professor. I'm also a vidder--I make videos like the ones Professor Coppa showed last night--and when I think about intellectual property and copyright law and fair use I tend to approach them as a vidder. I think about copyright law in pretty much the same way as the fans that Sarah Trombley describes in "Visions and Revisions" and that Rebecca Tushnet describes in "Legal Fictions": I know that for various reasons vidding is only ambiguously legal, but I think it ought to be legal. Nobody's going to mistake one of my vids for an actual episode of Buffy the Vampire Slayer, I'm not making any money, it's fair use, let's move on.
Of course, if it were really that simple, we probably wouldn't be having this symposium.
So I'm not a lawyer, but I want to talk about vids as fair use, and specifically I want to talk about why I think vids are transformative in a way that qualifies as fair use. And to do this, I'm going to talk about narrative theory, because while I don't know much about copyright law, I do know a lot about narrative. I want to start by talking about the ways in which narrative theory helps us think about the video part of vids as fair use, even though that may seem like retreading some familiar ground, and then I want to speculate a little about how the ideas from narrative theory might help us think about the audio part of vids as fair use, since that part's a little trickier.
There are several kinds of remix video in general and vids in particular where it's pretty easy to make a case for fair use--at least for fair use of the visuals, so let's stick to video for now. We've got remix videos that are parodies; parody is a pretty well-tested category of fair use. The problem is that not very many vids are parodies--not unless we stretch the term "parody" so far that it ceases to be recognizable. Parody is a genre that seems to be much more popular with men, whereas vids are overwhelmingly made by women, which is where the gender part of this presentation comes in. In addition to parody, we've also got vids that function pretty explicitly as textual or cultural criticism; this is a much bigger category of vids, and here again we're actually on pretty safe ground; Professor Coppa has argued that a vid is "a visual essay that stages an argument," and to the extent that a given vid is an argument, it can be defended on the grounds of fair use--the same kind of fair use that allows me to quote from a novel when I write an article about it.
So a lot of vids unambiguously belong to the protected categories of criticism or commentary. But other cases are less clear-cut. I actually think it's true that all vids are arguments, if only in the most basic sense: every vid is an argument saying "see this show my way." But some vids are obviously arguments, and some vids are not so obvious. This is what Trombley's getting at in "Visions and Revisions" when she comments that "A fanvid which merely recapitulates the plot of a work or the development of a relationship between previously-existing characters is perhaps the least transformative use" (665). And there are a lot of vids that seem to fall into this category of "mere recapitulation."
I want to argue that these vids are still fair use--not just fair use under the market failure theory, as Trombley argues, but fair use because they are in fact fundamentally transformative. Here's where the narrative theory comes in: When we say that a vid is fair use, we say that it's fair use because it's transformative. Okay, fine, but how is it transformed? What's transformed about it? Why is it transformed rather than just abridged or condensed? Here's where we can turn to narrative theory: Narrative theory gives us a way of describing or explaining what exactly is transformed about the original source when a vidder makes a vid. Even more basically, narrative theory gives us a way of thinking about the parts of a vid. Most discussions of vids treat vids as having two parts: video and audio--and obviously that division makes a certain amount of sense in terms of what kinds of source files you have for a vid. But thinking about vids that way is part of what enables the assumption that a vidder should be able to just "swap audio": the video and audio operate independently. But the video and audio in a vid do not operate independently, and narrative theory gives us a way of explaining why.
So let's talk about narrative theory.
One of the central insights of narrative theory is that a narrative has two parts, which we call story and discourse. This is true for any narrative, whether it's oral narrative or literary narrative or film or TV narrative. The story is the "what happened" part of the narrative: it's the sequence of acts and events involving characters and settings. The discourse is how we find out what happened; it's the way a story is told.
Discourse can be divided even further, into plot and narration. It might seem logical that plot belongs to story, but no; the story is just the events, whereas plot has to do with how and when those events are conveyed to the audience; plot is part of how the story is told. Think about a mystery novel: the whole premise of a mystery is that part of the story is being withheld by the author: Who did it? The author knows; you don't. Mysteries are produced by a writer's decisions about the order in which information should be revealed; those decisions are what make up the plot. What this means is that the same story can be plotted in many different ways. Rearrange the plot and you have a new narrative.
Like plot, narration is a matter of choices about how to tell the story. In a novel or a story, narration includes stuff like whether the story is told by a main character or a secondary character or an omniscient narrator, whether it's present or past tense--that kind of thing. In a film or TV narrative, narration works a little differently. Sometimes you have a voiceover that "tells" or comments on the story, but that's actually pretty unusual (and frequently a terrible idea). Most of the time in film and TV, the narration is nonverbal: the story is told through the camera angles, the duration of shots, the sequencing of shots, the music (see Abbot, "Story, Plot, and Narration," Cambridge Companion to Narrative 49).
These elements of non-verbal narration are exactly what vidders alter. We can't usually change the camera angles, but we do make choices about which angles to keep and which to discard. And of course we often change the duration and sequencing of shots, and we always add a soundtrack, usually a pop song, that tells a viewer how to interpret the visuals.
What this means is that even if a vidder doesn't change the story of a show--even if her vid is mere recapitulation--she is changing the narrative by changing the discourse; she is always re-narrating, re-telling. Sometimes "retelling" means telling-against-the-grain; sometimes it simply means telling-again. Either way, a vid is always a transformation of the narrative on which it's based.
Sarah Trombley actually talks about this a little bit in "Visions and Revisions"; she points out that in a vid "the impact of any copying will be blunted both by the rapid-fire cutting techniques which ensure that no particular image remains on the screen for very long and by the removal of the original dialogue and music, which are often very important to the aesthetic effect of the original shot" (Trombley 667-8). I think this is true as far as it goes, but for me it doesn't go far enough. Trombley's talking about individual copied clips in the context of the third factor used to determine fair use as codified in the Copyright Act of 1976: "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." I'm talking about the principle that underlies the entire project of vidding, and I'm talking about it as part of the first factor of fair use, the "purpose and character of the use"--which in the case of vids, I would argue, is fundamentally transformative. Whatever else is or isn't being done with the visuals or with the story, at least one of the original narrative's constituent elements has been changed.
Those changes to the narrative are important because they are actually the point of the vid. They're not some interesting side effect; they're the reason for doing this in the first place. The intent behind a vid is fundamentally different than the intent behind the original show. This is true even in the case of episodic vids, which attempt to encapsulate a particular episode of TV in the length of a song. The goal may be to preserve or distill the essence of the story, but the form is by definition quite different. It's like turning a short story into a sonnet: they may cover the same thematic territory and have some words in common, but they are fundamentally unlike each other.
The vast majority of vids are not meant to stand alone, in the way that literary criticism is not meant to stand alone; understanding a vid relies on knowing the visual source, just as understanding literary criticism relies on having read the text being examined. Obviously you can read literary criticism without having read the original, and you might even get something out of it. But critical analyses are designed to be read against the backdrop of the original literature. Vids work the same way: they are designed to be read against the backdrop of the movies and TV shows on which they're based. As we watch the vid, we measure what we see against what we already know from the show.
Now, most of what I've just been saying isn't news; much of this stuff has already been said, in one form or another, by lawyers and academics and fans themselves. Many of the arguments I've just made are arguments we can make without narrative theory. So why drag narrative theory into it?
Well, one reason for dragging narrative theory into it is that I think narrative theory has real potential to help us think through the audio elements of vidding.
One of the points that I hope I've made clear is that a vidsong is part of the narrative strategy of that vid; it's part of the vid's discourse, and it's what makes the discourse different from the original discourse. But the vid is also part of the story: if the story is being changed, the song choice is usually a huge part of what's producing that change. It is just not possible to split up the video and audio in a vid: they are both part of the story and they are both part of the discourse.
Using a song in a vid is pretty clearly a repurposing of the song, but is it a transformation of the song? I think so. Some songs are complete narratives with a clear story, just like some poems are narratives. Other songs are not narratives; they're pure discourse, pure narration, and listeners turn them into narratives by projecting their own stories onto that narration. Either way, turning a song into one piece of the discourse in a larger narrative produces a structural change--not necessarily to the song itself, but to its role in the narrative and the way the viewer is supposed to respond to it--which raises a whole series of issues in relation to intent and purpose and rhetorical situation and reception that sadly I don't have time to go into (but ask me later!).
I'm offering these ideas somewhat tentatively, because I am just now starting to read the existing literature on music as narrative. But there is a growing body of work out there from scholars who are trying to elaborate a narrative theory of music. Given the way narrative film theory has dovetailed with fans' and scholars' sense of what vidders are doing, I'm hopeful that existing and emerging applications of narrative theory to music will push our thinking and strategizing in useful new directions, and I'm hoping that those new directions will ultimately be not just interesting from a scholarly point o f view but useful from a legal point of view.
par_avion) and a great many more whom I was meeting for the first time (Rebecca Tushnet, Wendy Seltzer, Casey Fiesler [author of "Everything I Need to Know I Learned From Fandom: How Existing Social Norms Can Help Shape the Next Generation of User-Generated Content"], Karen Hellekson [TWC co-editor with Busse], and the other presenters).For a detailed account of the presentations and ensuing discussions, I refer you to Professor Tushnet's blog; she posted her keynote address as well as notes from the first panel (which is the one I was on), the second panel, and the third panel.
All I can add is that the most eye-opening moment of the symposium for me personally was Ann Bartow's response to the first panel. She observed that everyone on that panel (including me) had framed fannish participation as a privilege that women ought to be allowed because we're not interfering with anybody's profits rather than as a right we can demand because everybody has a right to free speech. As Coppa put it later, we've been presenting ourselves as the Cinderellas who have picked all the lentils out of the ashes and are saying "Can I go to the fair use ball now?" when in fact we already have tickets to the ball because we're citizens. And Bartow's exactly right: defining fannish fair use as a form of free speech that we don't have to earn, that we can simply assert, had just... never occurred to me.
For anyone who's interested, I'm reproducing the text of my presentation under the cut. Like any text intended for performance, it changed a bit in delivery--I always end up ad-libbing or elaborating on points as I go; but the text that follows is what I had in front of me while I talked. It's based on the post on narrative from several months ago, so much of it will look familiar to anyone who's read that post, but it does include some new ideas--largely inspired by Coppa's "Swap Audio" presentation on Thursday night, in which she began to explore some of the ways in which we might theorize vidders' uses of music, not just video, as transformative--and I have given that section its own cut tag so that interested parties can skip right to it.
Transformative Narrations: Fan-made Videos and Fair Use
I feel I should start by saying that I'm not a lawyer; I'm an English professor. I'm also a vidder--I make videos like the ones Professor Coppa showed last night--and when I think about intellectual property and copyright law and fair use I tend to approach them as a vidder. I think about copyright law in pretty much the same way as the fans that Sarah Trombley describes in "Visions and Revisions" and that Rebecca Tushnet describes in "Legal Fictions": I know that for various reasons vidding is only ambiguously legal, but I think it ought to be legal. Nobody's going to mistake one of my vids for an actual episode of Buffy the Vampire Slayer, I'm not making any money, it's fair use, let's move on.
Of course, if it were really that simple, we probably wouldn't be having this symposium.
So I'm not a lawyer, but I want to talk about vids as fair use, and specifically I want to talk about why I think vids are transformative in a way that qualifies as fair use. And to do this, I'm going to talk about narrative theory, because while I don't know much about copyright law, I do know a lot about narrative. I want to start by talking about the ways in which narrative theory helps us think about the video part of vids as fair use, even though that may seem like retreading some familiar ground, and then I want to speculate a little about how the ideas from narrative theory might help us think about the audio part of vids as fair use, since that part's a little trickier.
There are several kinds of remix video in general and vids in particular where it's pretty easy to make a case for fair use--at least for fair use of the visuals, so let's stick to video for now. We've got remix videos that are parodies; parody is a pretty well-tested category of fair use. The problem is that not very many vids are parodies--not unless we stretch the term "parody" so far that it ceases to be recognizable. Parody is a genre that seems to be much more popular with men, whereas vids are overwhelmingly made by women, which is where the gender part of this presentation comes in. In addition to parody, we've also got vids that function pretty explicitly as textual or cultural criticism; this is a much bigger category of vids, and here again we're actually on pretty safe ground; Professor Coppa has argued that a vid is "a visual essay that stages an argument," and to the extent that a given vid is an argument, it can be defended on the grounds of fair use--the same kind of fair use that allows me to quote from a novel when I write an article about it.
So a lot of vids unambiguously belong to the protected categories of criticism or commentary. But other cases are less clear-cut. I actually think it's true that all vids are arguments, if only in the most basic sense: every vid is an argument saying "see this show my way." But some vids are obviously arguments, and some vids are not so obvious. This is what Trombley's getting at in "Visions and Revisions" when she comments that "A fanvid which merely recapitulates the plot of a work or the development of a relationship between previously-existing characters is perhaps the least transformative use" (665). And there are a lot of vids that seem to fall into this category of "mere recapitulation."
I want to argue that these vids are still fair use--not just fair use under the market failure theory, as Trombley argues, but fair use because they are in fact fundamentally transformative. Here's where the narrative theory comes in: When we say that a vid is fair use, we say that it's fair use because it's transformative. Okay, fine, but how is it transformed? What's transformed about it? Why is it transformed rather than just abridged or condensed? Here's where we can turn to narrative theory: Narrative theory gives us a way of describing or explaining what exactly is transformed about the original source when a vidder makes a vid. Even more basically, narrative theory gives us a way of thinking about the parts of a vid. Most discussions of vids treat vids as having two parts: video and audio--and obviously that division makes a certain amount of sense in terms of what kinds of source files you have for a vid. But thinking about vids that way is part of what enables the assumption that a vidder should be able to just "swap audio": the video and audio operate independently. But the video and audio in a vid do not operate independently, and narrative theory gives us a way of explaining why.
So let's talk about narrative theory.
One of the central insights of narrative theory is that a narrative has two parts, which we call story and discourse. This is true for any narrative, whether it's oral narrative or literary narrative or film or TV narrative. The story is the "what happened" part of the narrative: it's the sequence of acts and events involving characters and settings. The discourse is how we find out what happened; it's the way a story is told.
Discourse can be divided even further, into plot and narration. It might seem logical that plot belongs to story, but no; the story is just the events, whereas plot has to do with how and when those events are conveyed to the audience; plot is part of how the story is told. Think about a mystery novel: the whole premise of a mystery is that part of the story is being withheld by the author: Who did it? The author knows; you don't. Mysteries are produced by a writer's decisions about the order in which information should be revealed; those decisions are what make up the plot. What this means is that the same story can be plotted in many different ways. Rearrange the plot and you have a new narrative.
Like plot, narration is a matter of choices about how to tell the story. In a novel or a story, narration includes stuff like whether the story is told by a main character or a secondary character or an omniscient narrator, whether it's present or past tense--that kind of thing. In a film or TV narrative, narration works a little differently. Sometimes you have a voiceover that "tells" or comments on the story, but that's actually pretty unusual (and frequently a terrible idea). Most of the time in film and TV, the narration is nonverbal: the story is told through the camera angles, the duration of shots, the sequencing of shots, the music (see Abbot, "Story, Plot, and Narration," Cambridge Companion to Narrative 49).
These elements of non-verbal narration are exactly what vidders alter. We can't usually change the camera angles, but we do make choices about which angles to keep and which to discard. And of course we often change the duration and sequencing of shots, and we always add a soundtrack, usually a pop song, that tells a viewer how to interpret the visuals.
What this means is that even if a vidder doesn't change the story of a show--even if her vid is mere recapitulation--she is changing the narrative by changing the discourse; she is always re-narrating, re-telling. Sometimes "retelling" means telling-against-the-grain; sometimes it simply means telling-again. Either way, a vid is always a transformation of the narrative on which it's based.
Sarah Trombley actually talks about this a little bit in "Visions and Revisions"; she points out that in a vid "the impact of any copying will be blunted both by the rapid-fire cutting techniques which ensure that no particular image remains on the screen for very long and by the removal of the original dialogue and music, which are often very important to the aesthetic effect of the original shot" (Trombley 667-8). I think this is true as far as it goes, but for me it doesn't go far enough. Trombley's talking about individual copied clips in the context of the third factor used to determine fair use as codified in the Copyright Act of 1976: "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." I'm talking about the principle that underlies the entire project of vidding, and I'm talking about it as part of the first factor of fair use, the "purpose and character of the use"--which in the case of vids, I would argue, is fundamentally transformative. Whatever else is or isn't being done with the visuals or with the story, at least one of the original narrative's constituent elements has been changed.
Those changes to the narrative are important because they are actually the point of the vid. They're not some interesting side effect; they're the reason for doing this in the first place. The intent behind a vid is fundamentally different than the intent behind the original show. This is true even in the case of episodic vids, which attempt to encapsulate a particular episode of TV in the length of a song. The goal may be to preserve or distill the essence of the story, but the form is by definition quite different. It's like turning a short story into a sonnet: they may cover the same thematic territory and have some words in common, but they are fundamentally unlike each other.
The vast majority of vids are not meant to stand alone, in the way that literary criticism is not meant to stand alone; understanding a vid relies on knowing the visual source, just as understanding literary criticism relies on having read the text being examined. Obviously you can read literary criticism without having read the original, and you might even get something out of it. But critical analyses are designed to be read against the backdrop of the original literature. Vids work the same way: they are designed to be read against the backdrop of the movies and TV shows on which they're based. As we watch the vid, we measure what we see against what we already know from the show.
Now, most of what I've just been saying isn't news; much of this stuff has already been said, in one form or another, by lawyers and academics and fans themselves. Many of the arguments I've just made are arguments we can make without narrative theory. So why drag narrative theory into it?
Well, one reason for dragging narrative theory into it is that I think narrative theory has real potential to help us think through the audio elements of vidding.
One of the points that I hope I've made clear is that a vidsong is part of the narrative strategy of that vid; it's part of the vid's discourse, and it's what makes the discourse different from the original discourse. But the vid is also part of the story: if the story is being changed, the song choice is usually a huge part of what's producing that change. It is just not possible to split up the video and audio in a vid: they are both part of the story and they are both part of the discourse.
Using a song in a vid is pretty clearly a repurposing of the song, but is it a transformation of the song? I think so. Some songs are complete narratives with a clear story, just like some poems are narratives. Other songs are not narratives; they're pure discourse, pure narration, and listeners turn them into narratives by projecting their own stories onto that narration. Either way, turning a song into one piece of the discourse in a larger narrative produces a structural change--not necessarily to the song itself, but to its role in the narrative and the way the viewer is supposed to respond to it--which raises a whole series of issues in relation to intent and purpose and rhetorical situation and reception that sadly I don't have time to go into (but ask me later!).
I'm offering these ideas somewhat tentatively, because I am just now starting to read the existing literature on music as narrative. But there is a growing body of work out there from scholars who are trying to elaborate a narrative theory of music. Given the way narrative film theory has dovetailed with fans' and scholars' sense of what vidders are doing, I'm hopeful that existing and emerging applications of narrative theory to music will push our thinking and strategizing in useful new directions, and I'm hoping that those new directions will ultimately be not just interesting from a scholarly point o f view but useful from a legal point of view.
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
no subject
Date: 2009-05-12 02:54 pm (UTC)no subject
Date: 2009-05-14 01:02 am (UTC)no subject
Date: 2009-05-12 03:20 pm (UTC)no subject
Date: 2009-05-14 01:03 am (UTC)no subject
Date: 2009-05-12 03:54 pm (UTC)no subject
Date: 2009-05-14 01:05 am (UTC)I still wish somebody HAD asked about the rhetoric part. Wrong crowd. Clearly I need to go talk to some rhetoricians...
no subject
Date: 2009-05-12 07:54 pm (UTC)no subject
Date: 2009-05-14 01:05 am (UTC)no subject
Date: 2009-05-12 08:41 pm (UTC)no subject
Date: 2009-05-14 01:07 am (UTC)no subject
Date: 2009-05-14 02:36 pm (UTC)no subject
Date: 2009-05-12 10:57 pm (UTC)no subject
Date: 2009-05-14 01:07 am (UTC)no subject
Date: 2009-05-12 11:55 pm (UTC)Thanks for posting your paper.
(Amy, from last week in DC)
no subject
Date: 2009-05-14 01:08 am (UTC)no subject
Date: 2009-05-14 01:12 am (UTC)no subject
Date: 2009-05-14 01:24 am (UTC)no subject
Date: 2009-05-14 01:29 am (UTC)I don't know enough about the first amendment legally speaking to form an opinion yet, but I'm intrigued.
no subject
Date: 2009-05-13 12:33 am (UTC)no subject
Date: 2009-05-14 01:17 am (UTC)If the paper comes across as suggesting that I think vids are stand-alone entities, that's a failing on my part, since I rather decidedly don't think that; I think of vids as narratives that respond to other narratives, in some of the same ways that some written narratives respond to other narratives, and I think that doubleness, that determined intertextuality, is precisely what many fans like about vids (both watching them and making them). I see vids as requiring a particularly intense version of the kinds of close reading strategies that many fans engage in with the original shows, which is why non-fans are sometimes baffled by them. But this is really a subject for another post! :)
no subject
Date: 2009-05-13 06:05 pm (UTC)She observed that everyone on that panel (including me) had framed fannish participation as a privilege that women ought to be allowed because we're not interfering with anybody's profits rather than as a right we can demand because everybody has a right to free speech.
YES. This. Exactly.
no subject
Date: 2009-05-14 01:12 am (UTC)no subject
Date: 2009-05-14 01:35 am (UTC)Yes. I started thinking about this after reading
Bartow adds another layer to that idea of fan works as "women's work" and how we understand what we do.
no subject
Date: 2009-05-26 10:14 am (UTC)You articulated your argument well in what to be a difficult context to navigate.