crypto | I have heard the mermaids singing. So far, though, no suckling pigs or stray dogs yet.

tishaturk just posted the text of her talk from the recent IP/Gender Symposium on "Female Fan Culture and Intellectual Property" (see additional links at her post). The whole event sounded really interesting, with a lot of great talks and discussion.

Tisha's presentation explored how narrative theory could contribute to understanding vidding as fair use in the context of copyright law. She argues that:

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.

I like this insight, though perversely I can't help but wonder if there are counter-examples. Are all vids automatically transformative? If I took a four minute sequence from a show and arbitrarily swapped the order of two consecutive scenes in a way that doesn't have any immediate or obvious bearing on the narrative (i.e., two scenes featuring different characters in different places, that -- in the original show -- are understood to take place more or less concurrently and don't depend on each other): is that transformative enough? Is it ever possible to make a vid that falls below some threshold, a minimum quantum, of transformativity?

The most obvious baseline for a non-transformative use would be YouTube clips of television shows posted unaltered. Working from that direction, how much alteration is required to transform that clip into something worthy of fair use protection? Would it be enough to replace the original television show's audio track with a song, without any editing of the video element? Is the act of excerpting itself transformative? I'm thinking of the YouTube clips extracting the scenes of characters involved in a gay romance from a German soap opera that Karen Hellekson discusses here, or the series featuring Luke and Noah from As the World Turns that I posted about a while back. (I have no problem calling the latter transformative in effect, if not necessarily in intent -- though this is where claims of transformativity viz. "purpose and character" in the four factor test of fair use might run up against "amount and substantiality of portion taken" and "effect of the use upon the potential market.")

To me, this is where advocacy, academic arguments, and the critical discourse within the vidding community intersect in interesting ways. On the one hand, it's necessary and valuable to assert that all vidding is, by its very nature, transformative and worthy of a prima facie fair use determination. At the same time, a categorical claim of transformativity doesn't seem very analytically productive if you're interested in theorizing vidding -- i.e., what vids do, how they work, how they've developed over time, etc. -- unless it allows for different types and varying degrees of transformation.

But is it possible to acknowledge and articulate those types and degrees without undermining the fundamental advocacy claim? That is, by allowing for distinctions in transformativeness, does that beg the question of whether all types and any degree of transformation are equally meriting of exemption as fair use, with the risk that for some the answer might be negative?

Meanwhile, vidding's academics/advocates advance a narrative of vidding aimed at outside audiences that privileges the transformative dimension of vids and constructs a canon of vids selected and presented precisely for their value in illustrating claims of transformativity. At what point does this emphasis on transformativeness -- and perhaps specifically those modes and forms of transformation most easily recognizable to non-fannish audiences -- filter back into the broader vidding community and get taken up and internalized, influencing which vids and vidders are valued most, potentially shaping the overall aesthetics and discourse around vidding?

My question would seem to imply that transformation as a value isn't already woven into the fabric of vidding culture. I don't think that's actually a fair assumption, but I do wonder if the imperative of framing fair use argument has the potential to shift (or transform?) the meanings and values that have developed within vidding culture, emphasizing some while downplaying others. That is, that the rhetoric of transformativeness and the associated legal framework of copyright law and fair use is exerting a certain gravitational pull on how to think and talk about vids which may distort or displace other frameworks.

Turk suggests that narrative theory might open up an argument that song use in vids -- the element most vulnerable to copyright infringement claims -- is also inherently transformative. I'd wondered about that somewhat last year; here I'm thinking about how or whether that question relates to the notion of musicality in vidding culture. I haven't seen a definition of musicality viz. vids, but

obsessive24 and

bradcpu describe it in The Fourth Wall awards as: "How well the visuals match the song. We're looking for nuanced and subtle connections as well as more dramatic ones."

One thing that strikes me is how challenging it would be, compared to making the case for recognizing and valuing the transformativeness of vids, to cultivate an understanding and appreciation of musicality (especially in the form of "nuanced and subtle connections") to most non-fannish audiences. It's an aesthetic value internal to vidding culture that doesn't readily translate into an established value external to the culture.

Personally, when I watch vids, I tend to make distinctions between those that delve more deeply into the music through the editing (the rhythm of the cuts, internal motion, effects, etc.) vs. those where the visuals just seem to hang off the song and connect primarily to the lyrics rather than the overall music. And -- especially on YouTube -- I'm generally less impressed with vids that seem to trade off of, almost exploit, the power of a song without giving anything back to the music through the video editing. I'm thinking especially of montage-style vids, where the vidder's favorite song-of-the-moment becomes a mere soundtrack to a series of arbitrarily sequenced clips or still images of the vidder's favorite TV character or couple.

I certainly wouldn't argue that the latter genre of vids don't warrant protetction as fair use viz. the song, yet the case here for transformation seems significantly weaker. To assert de facto transformation of the song by sheer virtue of a novel juxtaposition with video clips feels a bit torturous if not disingenuous. And making the concept of "transformative" so elastic and all-encompassing for the purposes of legal advocacy surely dilutes its critical value: if virutally everything is transformative, then tranformativity itself becomes banal and uninteresting.

So basically I wonder if the strategic embrace of transformativeness and fair use has some pitfalls or potential unintended consequences. Not that I have any better suggestions! Just -- reservations which I'm still trying to tease out.

[In the meantime, my first ever poll is currently open on my Dreamwidth journal. I'm still proud that I restrained myself from making a poll about what kind of poll to make. Though I do kind of want to use the poll feature for a ~~Garden of Forking Paths~~ "vote on what happens next!" story.]

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Meanwhile, vidding's academics/advocates advance a narrative of vidding aimed at outside audiences that privileges the transformative dimension of vids and constructs a canon of vids selected and presented precisely for their value in illustrating claims of transformativity. At what point does this emphasis on transformativeness -- and perhaps specifically those modes and forms of transformation most easily recognizable to non-fannish audiences -- filter back into the broader vidding community and get taken up and internalized, influencing which vids and vidders are valued most, potentially shaping the overall aesthetics and discourse around vidding?

Possibly I am being pollyanna about this, but I would be extremely surprised if the way academic and/or legal arguments are made about vidding has much of an impact on actual vids at all. I would argue that academia and the discussions of IP/fair use have had a tremendous impact on the way vids are distributed, and on the breadth of their audience. But so far they haven't had much, if any, impact on their actual aesthetics. The few vidders I know who approach their work with these factors in mind might make a meta vid as a result, but it's not like that's all they will do from now on.

And these discussions are even less likely to reach vidders who operate outside of the traditional vidding community.

My question would seem to imply that transformation as a value isn't already woven into the fabric of vidding culture.

Which vidding culture do you mean? (:

I think that it absolutely is within some communities, and in different ways. Older vidders rooted in the traditional vidding community might be said to privilege transformation of the story itself (i.e., presenting canonically straight/ambiguous characters as in mad slashy love with one another), whereas the newer crop of vidders that have joined the community (handily represented by The Fourth Wall) are highly invested in transformation of the discourse, to use Tisha's narrative theory framing. This group likes to use lots of spectacular effects, use of outside source, and generally tweak the original source material out of all recognition visually -- often on a story level, as well.

And then there are all the other communities of vidders that I don't know about and therefore can't hazard a guess.

I do wonder if the imperative of framing fair use argument has the potential to shift (or transform?) the meanings and values that have developed within vidding culture, emphasizing some while downplaying others. That is, that the rhetoric of transformativeness and the associated legal framework of copyright law and fair use is exerting a certain gravitational pull on how to think and talk about vids which may distort or displace other frameworks.

Again, I'd be very surprised if this happened. I think if it were likely, we'd be seeing it already.

I feel a bit odd saying this, but it kind of reminds me of the attempts by TPTB to encourage us to vid "their way", using their clips and their web-based software and competing for their prizes, etc. What it boils down to is that most vidders who self-identify as such are not interested in vidding by someone else's rules. They may or may not embrace their community's preferred aesthetic traditions, but they certainly aren't going to change their art to fit some monolithic concept of what it should be. Most of us are too stubborn and have too much grumpy love for what we do to change it to fit some pre-defined parameters that might help us evade legal hassles. Many more of us are ignorant of those parameters, or just don't care.

I don't think you're being polyanna here -- at least, I'm not trying to suggest that vidders are sitting around planning their next vid with an eye towards how good a fair use test case it would make, or trying to outdo each other in transformativeness for the sake of transformativeness.

I just can't help but think that this stuff does have an impact somewhere down the line, even if its diffuse and indirect and impossible to predict. At least, I generally believe that culture and community does matter -- even for the most stubborn community members filled with the grumpiest love for their culture! -- as do the stories people tell about themselves, both within their community and to outsiders. So I'd be really surprised if the emphasis on vids as transformative viz. copyright & fair use had absolutely zero influence on aesthetics in the long run, though it might be a minor one.

And that wouldn't necessarily be a good thing or a bad thing -- at least, it's not as though new aesthetic directions and trends wouldn't emerge anyways!

I would never argue that culture and community don't matter -- far from it! Vids are certainly shaped by both.

What I am arguing is that the academic and legal discussions are not, really, part of most vidding cultures or communities.

What I am arguing is that the academic and legal discussions are not, really, part of most vidding cultures or communities.

You're absolutely right of course. And I've probably got a distorted perspective as an outsider, both because I gravitate to the academic and legal discussions, and because I'm fascinated by how the particular vidding community that I see on LJ seems unusally aware of and engaged with those discussions (compared to other kinds of communities beyond vidding).

[I'm no doubt also displacing or projecting my own perpetual angst and anxiety around advocacy and representation....]

I wish more people were anxious about advocacy and representation, so no harm there.

I actually think that even the vidders I know on LJ are not, for the most part, artistically influenced by the academic and legal discussions. I mean, there's no way to prove that, but I've seen marked changes to vidding that I definitely *can* trace to specific phenomena -- discussions of racism and sexism in media and fandom, cross-pollination with the AMV world, big changes in distribution methods and available technologies, and so on. But I just haven't seen much, if any, evidence that the specific discussions you're talking about are showing up in the art.

YMMV, of course.

This sounds like an ideal public servant. We need more folks who can figure out new ways of meeting the publics high expectations even with budgets on the decline.

I have heard the mermaids singing. So far, though, no suckling pigs or stray dogs yet.

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