Flexing Fair Use
Some of you may remember a hilarious film clip that circulated like a viral video on the Internet earlier this year. For those who missed out, Stanley Kubrick's 1980 classic horror film, The Shining, was transformed into a trailer for a touching feel-good comedy. In it, Jack Nicholson, usually the perfect pyschotic, embodies a struggling writer who falls for a widowed Shelly Duvall and her young son. With love and family, Nicholson casts off his writer's block, Duvall and boy find a father, and everyone is tearfully happy. All the while being played to Peter Gabriel's sickingly inspiring "Solsbury Hill."
The remix was an enormous sucess. Its creator, Ryan Ryang (a recent Columbia graduate, no less, with a double major in pyschology and film), had entered a film remix contest sponsered by the New York chapter of the Association of Independent Creative Editors. The contest asked participants to take any film and turn it into a new genre, such as from horror to comedy. Ryang won the contest and posted the clip on his modest blog. Unsuspecting of its popularity, Ryang was in for a surprise. In one week, the clip had been downloaded 12,000 times. Not only that, but it had circulated on major blogs and film websites. Ryang was even scouted by a Hollywood film agent. With a five minute trailer, and minimal production and distribution costs, Ryang had achieved the envious accolades of the film industry: fame and employment. For those curious, and with a sense of humor, check it out below:
At the time, the story was spun as one of success. The NYTimes covered it triumphantly: the creative college film major makes it big against the mainstream currents, riding only on his talent and the Internet. But others have seen deeper and more troubling implications in Ryang's story, implications regarding the future of media and its relationship to copyright.
Enter the concept of fair use. In the world of copyright, fair use is the idea that there are reasonable limitations to the breadth and reach of copyright. That is to say, while Kubrick (or more likely the studio that produced him) may own exclusive rights to The Shining, this does not prevent people such as Ryang from using The Shining freely for the purpose of parody and/or criticism. Fair use also allows for the reproduction of works for the purposes of commentary, news and reporting, teaching, scholarship, and research. This is why a college film professor can screen a movie without hassle, or why a documentarian can insert a film clip without worry. Or so we hope.
Fair use no longer stands as robustly as it was once believed it could, due to two heavy pieces legislation enacted in the last decade. Much of it, unsurprisingly, in reaction to the ways in which digital technology and the Internet has facilitated the possibility of infinite reproduction and distribution of any work capable of being digitized. For example, when a teacher purchases a DVD of Kill Bill, and wants to burn it onto his computer in order to make a series of short film clips for his class that illustrate the influence of Japanese anime on American cinema, he is participating in the principle of fair use. But according to something like the DMCA (which we have covered before here, or here), this professor is breaking the law. (For those of us unfamiliar with the DMCA, it makes it illegal to circumvent a copy-protection measure on copyrighted work. This would apply to almost every DVD, and some CDs.)
A helpful metaphor is to consider digital technology (as only one example of a medium for copyrighted works) as a type of tool. Let's pick the crowbar. In most instances of day to day life, using a crowbar is perfectly legal. A volunteer might need it to gut a house in New Orleans. Or, a grandson may need it to open a family heirloom chest. This does not mean, however, that the crowbar can be used illegally. A thief could use a crowbar to break into a building. Legislation like the DMCA makes the tool illegal, when in fact, it is certain uses of the tool which are. By outlawing the crowbar, and not certain violating acts that involve it, the law has effectively limited other productive and helpful ways in which the tool can be used.
This is why we need to flex the princple of fair use. Copyright law is challenging the way we interact and use material creatively. But we still have the means and the creative power to actively resist the future implications of the DMCA. Ryang's short film is an excellent examle of this. Which is precisely why FreeCulture NYU - a student group committed to copyright issues - has decided to hold its own film remix contest this April. The group invites anyone in the world to take a trilogy (The Matrix, Star Wars, Harry Potter, or Lord of the Rings) and remix it into a five to eight minute parody film. They promise to screen the winning remixes in real life at the end of April, 2006. For the full details (and much more legal history), check out their page here. Is anyone up for the challenge?
(Photo Credit: Wikipedia; YouTube; Minhembio.com; Yatpay.net; Fred Benenson)