Scott McGibbon is Project Specialist at the Lear Center.
Last year the Lear Center invited acclaimed digital remix artist Joe Sabia to produce an entertaining video that would summarize the findings laid out in a Lear Center research report on television's depiction of the "War on Terror."
Joe pored over the results of the study, sifted through 30 episodes from eight top primetime network dramas that depicted the WoT, and ripped hundreds of clips from DVDs to sort and edit into a video narrated by Steve Zirnkilton, the resonant voice behind Law & Order. Joe used all his artistry on the project, looking at the video "as a more succinct alternative recap for ADD audiences...or anyone who doesn't like reading."
The seven-minute video, Primetime Terror, was released in September 2011 and made a splash, including getting a shout out from BoingBoing. Not only did it provide a precis of the findings; it demonstrated that social science research can be conveyed in a compelling, creative format.
And then something unexpected happened: reaction to the video came in an email from Rebecca Tushnet, a DC-based lawyer specializing in intellectual property and first amendment law, and an advocate for the safe harbor provisions for digital artists in the Digital Millennium Copyright Act (DMCA).
Some essential background: The Digital Millennium Copyright Act of 1998 made it a crime to break digital locks on DVDs and other online media. This prohibited filmmakers from making fair use of a wealth of current and historical digital material. In July 2010, the United States Copyright Office approved an exemption that allowed filmmakers to break digital locks to extract clips from DVDs and use them in their own projects.
Rebecca was intrigued by Primetime Terror because it was a perfect example of how fair use of copyrighted content can provide educational benefits to society. Joe was ripping DVDs, converting them into digital files a few seconds long, and combining them in a transformative way to create new content. And there was a fight on the horizon: copyright lobbyists were pushing for term limits on the exemptions so that, once they expired, it would again be a crime to break a digital lock.
Rebecca and her team at Organization for Transformative Works (OTW) joined forces with the Electronic Frontier Foundation (EFF) and the USC Intellectual Property and Technology Clinic, headed by USC Law professor Jack Lerner, to draft comments and organize filmmakers. As Lerner noted, "Without this exemption, filmmakers who want to use a movie clip on a DVD can still be sued for going around the locks - even if the use itself is perfectly legal."
In December 2011 the team submitted a proposal to renew and expand the DMCA exemption for Noncommercial Remixers with the United States Copyright Office. The proposal used Primetime Terror as a highlight of its argument, noting that it is "a work that is physically and functionally different from the originals. Some of the
clips are heavily altered by the inclusion of original graphics, voiceovers, and manipulation of the footage speed. The resulting product is a completely new work that provides critical commentary about how television both reflects and reimagines reality. This type of comparison and analysis, using clips to prove its points, is a quintessential transformative fair use."
In October 2012, the decision came: the Register of Copyrights recommended that the Librarian of Congress maintain the current filmmakers's exemption from certain provisions of the DMCA and expanded that exemption to include online media.
Here's what Rebecca said: "Primetime Terror was vital to two important pieces of the exemption: First, Primetime Terror provided an important justification for the extension of the exemption from just DVDs to online services, since timely responses often require creating a remix or commentary before the DVD has come out (if it will come out at all, since not all mainstream works are released on DVD). Primetime Terror, along with the vid It Depends on What You Pay, were key and obviously transformative works on which the Copyright Office relied in extending the exemption. This will become increasingly important to remixers as more and more works are released through online services, sometimes exclusively. Second, Primetime Terror was vital to the clarification that works protected by the exemption include those that are made on commission as long as they are used in noncommercial ways, such as to communicate the Lear Center's important findings. This clarification is significant to political remixers and other nonprofit groups that want to convey their messages using video commentary or evidence. The Office also referred to Primetime Terror when discussing the need that documentary filmmakers have to use high-quality images:
"The record indicates that the proponents for noncommercial use exemptions provided several motion picture examples that could qualify as documentary videos, including Primetime Terror, which analyzed how terror-related plots are portrayed in popular media, and In the Cut: Salt, which examined filmmaking techniques employed in the 2010 film Salt. Even though offered in relation to noncommercial uses, these examples are thus also pertinent to documentary films in general because they are illustrative of documentary filmmakers' need to be able to portray the "sensual and subtle qualities of an image."
The Lear Center is proud that Joe's original work was strong enough to take on an additional task and succeed at helping push back on copyright restrictions that inhibit artistic creativity and the free flow of knowledge. Joe was pretty pumped, too, noting that his work "ended up playing a key role as a case study in how art can be created that serves a public good - a usage that disputes the notion every person who rips professional content is a pirate or criminal."
But the struggle continues: As Rebecca added, "I hope we can work together again in the next round -- unfortunately, due to the strength of the copyright industries' lobbying, exemptions expire if not renewed so we have to go back and do this all over again in a few years."