Fair Use & Creative Remixing on YouTube

A liveblog of a Berkman Center lunch.

Elisa Kreisinger (@popcultpirate) is a content creator and remixer who has used YouTube to host her artistic work. She uses pop culture to sugarcoat social political critiques. She finds that her work helps her navigate the tension between being a fan of pop culture and a critic of it. She phrases this creative work as a way to “work off her consumption” of pop culture.

A sampling of her work
Real Housewives attracts Elisa to the characters on the show, but couldn’t turn off the feminist theory picked up in undergrad.

Artists and critics and curators get psyched to be recognized one on one by Jay-Z – the art world never has this much fun – so Elisa re-edited the video to make it more Taylor.

She tries to combine two pieces that should never be in the same sentence together in a way that makes them more original than the originals. The critique or the message embedded in these works is what makes remix fair use of copyrighted material.

Elisa describes fair use as a safety valve in copyright law that allows cultural pieces to make use of copyrighted works. There are various tests, such as whether it is commercial use or a market substitute for the original.

Elisa started by recutting Real Housewives into lesbians on YouTube in 2011. Her work started getting flagged, but not taken down, with timecoded references to the

While she awaited copyright holder’s approval, YouTube placed ads over the videos. This upset Elisa, who didn’t want ads running on her artwork.

Most of the time, the content was removed and blocked globally.

Content ID
YouTube’s media-scanning copyright-ID engine is powerful and technically correct that these are copyrighted works belonging to others. But it leaves no room for discourse or arguing the legal validity of these critiques.

This is where artists turn to Vimeo. But then what happens when Vimeo starts sending the same takedowns?

Elisa chose to fight for change on YouTube rather than flee and build utopia elsewhere. The collective effect of public speech being reduced in this way is potentially massive. An entire generation is uploading legal content and being told by the machine that their work was questionably legal. What is the cumulative effect

Do Terms of Service trump fair use rights? We consider YouTube a public space, but it’s a private platform. Good taste and corporate resources are allowed to trump creative expression on private platforms.

In 2008, YouTube received legal pressure from copyright holders, which led to the introduction in 2011 of Content ID. It scans 400 years of video daily from voer 5,000 coypright holding partners. The database contains over 3 million copyrighted reference files, and variations of that content are flagged. YouTube’s compromise solution to the massive takedowns requested by record labels and others was to run ads over the offending videos and give the revenue back to the copyright holders.

Content ID misidentfies and teaches an entire generation of creators that they do not have the rights they may actually have.

Polls of creatives have found great confusion and misinformation around fair use, leading to self-censorship based on misunderstandings of aggressive copyright protection.

Elisa teamed up with Eyebeam and Public Knowledge to explore these questions in a 6-month residency. At the end of her residency, Elisa concluded that Content ID is a private agreement between a company (YouTube) and private copyright holders with no room for creators. It’s not clear whether users were represented in these discussions.

In 2012, a man went to his backyard and picked and ate a wild salad, recording himself. YouTube’s Content ID system identified the video as containing music belonging to Rumblefish. Rumblefish disagreed, and said they owned the rights. This closed the dispute in YouTube’s eyes. The “music” in the video was the sound of birds chirping in his backyard.

Content ID is a powerful technology. It shows the offending uploader the exact frames where they supposedly commit copyright violation.

Elisa took these screenshots and had them painted in oil, framed in gold, and showcased in a gallery. Here the videoframes were safe from overlay banner ads.

The House of Representatives Subcommittee on the Internet is looking into the takedown process. We’re not sure what’s going to come of this process.

Fair Use Solutions
Elisa’s takeaway is that policy has a direct impact on artists. Fair use is continually threatened; it’s a muscle that atrophies without use.

Elisa wants to make it easier to flex fair use online, and to introduce more friction to the process of systematically taking down creative works.

Elisa proposes a verified account flag for artists making fair use works to state

Another proposal is to allow savvy copyright users to opt out of Content ID, and opt into having that discussion in court if necessary. The DMCA currently requires safe harbor providers to take down potentially offending content.

The Center for Media & Social Impact publishes resources on how to benefit from fair use, including best practices for online video.

YouTomb was an MIT project to collect videos removed for copyright violations.

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