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:


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.]