“I’m what you would call ‘Twitter famous’… Meaning, not famous.” Well, I guess there is always Zombo.com.

Press Release:

Blip.tv Launches New Website and Surpasses 3 Billion Video Views

The Site, Designed to Satisfy Viewer Demand, Facilitates the Discovery of Original Web Series

New York, NY May 17, 2011 – Web series network blip.tv today announced the relaunch of its website, marking a new era for the company. The site has been recast as a consumer-facing destination where viewers can discover, watch and share the best in original web series. Blip.tv also announced today that it has reached more than three billion views to date, making it one of the Internet’s largest independently owned and operated video properties. Blip.tv is now on pace to reach one billion views per quarter.

Since 2005, blip.tv has worked closely with the world’s top web series producers, advertisers and distribution platforms with the mission of making original series scalable and profitable. With the introduction of blip.tv’s new site, the company continues to enhance its offerings to producers and talent and is now enabling viewers to easily discover the most entertaining series on the Web.

““Until now there hasn’t been a single website dedicated to showcasing the most entertaining series on the web. Today we are launching that site,”” said Mike Hudack, CEO and co-founder of blip.tv. ““We’re focused on helping people discover the best original series and allowing producers to build sustainable series for the long-term. The launch of this site helps us achieve both of these goals and marks a turning point for blip.tv and the emerging industry of original web series.””

Episodes and shows featured on the new site are hand-picked by blip.tv’s dedicated team of editors and organized into sixteen categories, including comedy, drama, sports, fashion and videogames. Viewers can also choose to watch shows that are popular, trending or new to the network. The new site also includes an enhanced video-friendly search experience that easily guides viewers to exactly what they’re looking for.

Producers of hit series including Day[9]TV, Red vs. Blue, Smosh, Nostalgia Critic and Old Jews Telling Jokes, who are already part of the blip.tv network, will benefit from the redesign as it will provide a key platform for expanding their audiences and interacting with advertisers in new and exciting ways.

The new site enables producers to build and broadcast their social media profiles, organize their content libraries and engage with fans in a clear, bright and well-organized environment. Producers now have the ability to drive traffic to other shows by recommending ones they believe their fans will also enjoy. Producers can also, for the first time, customize their graphics on blip.tv to create film quality Show Posters that develop series’ own brand stories and provide arresting visuals that viewers will love.

In addition to new opportunities for producers and fans, the new blip.tv site offers advertisers new ways to engage with web series fans. Opportunities include home page takeovers, channel sponsorships and standard IAB display advertising units. T-Mobile USA is the official sponsor of the blip.tv site launch.

““This new site is all about bringing professionalism, organization and curation to a currently chaotic medium,”” said Damian Bruno, the new website’s General Manager. ““We focused first and foremost on helping fans find the most entertaining series to enjoy, and we made sure to do it in an orderly way that supports the needs of audiences, producers and advertisers. Today’s launch represents the starting point for blip.tv to build a site that’s immersive and that houses the best in original Web series.””

Over the next six months, blip.tv will roll out additional features and new products. For more information please visit http://blip.tv.
About blip.tv

Blip.tv is the place to discover the best in original Web series from both professional and up-and-coming producers. It gives viewers free access to a wide variety of dramas and comedies, series about sports, videogames, food, fashion and more, and makes it easy to find what you want when you want it. The company currently distributes series to iTunes, YouTube, Facebook, Twitter, roku, Verizon FiOS, TiVo, Sony TVs and elsewhere. Blip.tv hosts more than 300 million video views per month and shares all advertising revenue with producers on a 50/50 basis. Please visit http://blip.tv for more information.

Forums (currently called Discussions) are areas in each Group for having discussions, ask questions or show off your work. If you haven’t explored the site, Forums are one of richest and most engaging sections. Each Group has the ability to have a Forum and any Member can create a Group or join other Public Groups.

So, check out these crazy “WTF?” topics and join the discussion!

Full Metal Disney

Baby Corn

Worst Line Ever

Monkey Brained THOUGHT of the microsecond!

As Seen on TV – a tribute to doing it wrong

Hunter S. Thompson’s Idea of a Perfect Breakfast

Bangladesh version of ”The Incredible Hulk”

Turkey and Bacon Sandwich

Serenading Unicorn

Rebecca Black’s Friday

Difficult by Uffie

Improv Everywhere: Mp3 Experiment Seven

Doodling in Math Class

NYT: Whiskey, your only defense against diseases from space

Video Projection Mapping Creates Illusion of Dancing, Singing Building

Dr. Frankenstein Now a Hospital Administrator

VelociPastor

Is there a Hustler for kids?

Linnea Quigley’s Horror Workout

Epic Rap Battles of History

Wat a Wonderful Day

Thought I would start the day with some irony.

3 Words: Costumed Monkey Waiters

Smile.. DAMN IT!!!

The Learning Channel ???

Safety Video

Slow Mo Food Fight Video by G-Stone Recording Artists

”purple car”

Bollywood’s ”Robot” – Coolest Movie Ever?

Two Roads to Courage

Best Headline Ever

Well there’s this….

Laundry Day

Blowing up a microwave by cooking a sealed bottle of liquid

It’s so Cold…

TEBAATUSASULA!!!!!!!!!!!!!

Twisted TV Intros

These stunts are amazing!

Embedded in a Charlie Chaplin film – a proof of time travel?

Digital Cameras are just too confusing

Extreme Shepherding

Teddy Bear Invasion

Goodwill Store Gets a Guns, Drugs, Explosives In Their Donation Box

Pssst…The End

In case you’re not a fan boy and don’t have it etched permantently in your memory, here is the original Inception trailer:

Title

Star Wars Inception Edition

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Dumb & Dumber Trailer - Inception Style (By NURV.com)

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DORA THE EXPLORER in INCEPTION: Incepción Trailer

Title

Christmas Vacation Trailer - Inception Style (By NURV.com)

Title

The Big Lebowski - Inception Style Trailer

Title

Space Jam Trailer - Inception Style

Title

Superbad Trailer - Inception Style

Title

Step Brothers Re-Cut, Inception Style

Title

Kick-Ass Trailer Re-Cut to Inception Trailer

Title

500 Days of Summer recut as a thriller

Title

300 INCEPTIONs - Inception Trailer 3 Style Mind Heist

Title

The Dark Knight Trailer - Inception Style

Title

Harry Potter and the Deathly Hallows trailer (re-edit w/Inception trailer music)

Title

Gladiator - Inception Style Mind Heist

Title

Star Trek Trailer - "Inception" Style

Title

The Matrix [Inception Trailer]

Title

Blade Runner - Inception Style

Title

Jurassic park Trailer - Inception Style

Title

Back to the Future Inception Style

Title

Austin Powers Trailer - Inception Style

Title

Shutter Island Trailer Inception Style

Title

Pirates of the Caribbean Trailer Inception Style

Title

Ace Ventura Re-Cut Inception Trailer

Title

Lord of the Rings - Inception Style

Title

Seinfeld Inception trailer

Title

Ghostbusters Recut Trailer

Title

Billy Madison - Inception Style

Title

Office Space: Inception Style

Title

Ronception

Title

The Office Inception Edit

Title

Team Inception: Dream Police

Title

Iron Man Trailer - Inception Style

Title

Vanilla Sky Inception Style Trailer

Title

Gangs of New York Inception Style

Title

Inception Trailer - South Park Style!

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Slap Shot - Inception Trailer 3 Style

Title

Pokemon Apokelypse Inception Trailer (REVISED)

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One Tree Hill ¦¦ Inception Trailer Music Style ¦¦ 3x16

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Evil Dead 2 Trailer - Inception Style

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The Shining Trailer - Inception Style

Title

Avatar Trailer (Inception Style)

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Smallville Trailer - Inception Style

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Fight Club Inception Style

Title

Breaking Bad Trailer (Inception Style)

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Rudolph Trailer - INCEPTION Style

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Burger Wars: Rise of the King - Inception Style Trailer

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Princess Bride Inception "Trailer"

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Step Up 3D... INCEPTION STYLE.

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TRONception trailer 2 (Tron trailers with Inception music)

So it looks like only 49 will embed, but we are not changing the damn title now. Go here to see them all.

Since the dawn of the interwebs filmmakers looked to it as a new magical tool that may finally allow us to breakdown traditional walls opening up a whole new world. We all envisioned a future of social collaboration, new financing models and open distribution. So are the walls coming down or are we just creating new ones?

We are a long way from any sort of filmmaker utopia, but there has been some small progress since the days when AOL would flood your mailbox with CD-ROMs. One of the biggest steps forward was the development of viral videos. Finally open distribution! But, of course the 800 pound sneezing panda in the room is; how do you make money off this shit?

Google to the rescue! You know, that little mom and pop company with the slogan “do no evil.” Google (who owns YouTube, Adsense and your soul) came to the conclusion they couldn’t continue to make billions off of your videos without eventually having to throw a few crumbs to the actual content creators.

In a effort to help starving filmmakers Google decided to create a “Partner Program” using Adsense to pay Youtube video creators a small percentage of ad revenue (derived using a secret algorithm). This partner program is only open to a very small group of content creators (derived using a secret algorithm).

Sounds like a good start, so what’s the problem?

At any point Google Adsense can freeze your account and stop payment on your check if their computer believes (derived using a secret algorithm… see a trend?) you violated the Terms of Service.

Now of course you can’t run a site that big and have humans watch everything. With millions of assholes trying to run scams they need to be somewhat diligent. No one is denying them that, but this about what happens after the Google Cyber Cops send you that auto-generated email of death.

Before we go any further…..

This article is not about Google/YouTube removing videos (that’s another story). This is a case where the videos remained, they just stopped paying the creator (I know, they have never paid you anything at all, but that again is another story).

In his article “Adsense, no sense at all -what it’s like being sacked by a computer…” Dylan Winter (“97th biggest reporter on YouTube ever”) outlines how Google froze his account, took back money he already earned in his account and stopped payment on another check; all without proof of volition or even telling him what rule he violated.

On Monday the 13th of December – two weeks before Christmas – I was sacked by a Google algorithm.

It sent an email to me and summarily killed my main source of income. No humans were involved in this process at all. It was, literally, the most inhumane letting go I have ever experienced.

As well as ‘letting me go’ the Google Algorithm also confiscated all my earned income October 31st to December 13th. Tough indeed – and no human has ever done that to me; they have always paid me for work done.

Then twio days before Christmas I got a letter from my bank saying that the check for October – worth £1,700 had been stopped. That is £3,700 gone from my family fiancés in the two weeks before Chisitmas.

Welcome to the world of Google. Kafka would be proud of Google, whilst Orwell would be perfectly unsurprised.

Here is the first email Google sent him:

Hello,

After reviewing our records, we’ve determined that your AdSense account poses a risk of generating invalid activity. Because we have a responsibility to protect our AdWords advertisers from inflated costs due to invalid activity, we’ve found it necessary to disable your AdSense account. Your outstanding balance and Google’s share of the revenue will both be fully refunded to the affected advertisers.
Please understand that we need to take such steps to maintain the effectiveness of Google’s advertising system, particularly the advertiser-publisher relationship. We understand the inconvenience that this may cause you, and we thank you in advance for your understanding and cooperation.

If you have any questions or concerns about the actions we’ve taken, how you can appeal this decision or invalid activity in general, you can find more information by visiting www.google.com/adsense/support/bin/answer.py?answer=57153

Yours sincerely,
The Google AdSense Team

Here is his reply to Google:

I filled in the tiny boxes on the link they gave me and submitted the following answers:

27_TrafficSources: they are subscribers. I promote the site through keepturningleft on YouTube and by being active in the sailing forums in the UK, USA and Australia. This is a classic 1,000 true fans operation. They are keen sailors and they are watching my well produced sailing films

28_AdvertiserValue: sailors who love sailing and who have heard about the films from other sailors

29_UserIncentive: Some of them click adverts to support the films – they have emailed me and told me so. I tell them not to but to only click on adverts that are of interest to them

31_InvalidActivity: I have two sources of Adsense revenue – the main one is from my YouTube space that has 1.5 million hits a month. Dylanwinter1. Films about trucks; one has had 13 million hits.
#7 – Most Viewed (All Time) – Reporters

#92 – Most Viewed (All Time) – Reporters – Global

Impossible for me to influence clicking on that site. 50,000 hits a day.It gets a click through rate of between 1 per cent and .5 per cent.

The subscription sailing site gets a higher rate – much higher after I post a new film – extremely erratic but I have no idea how such sites should perform. I only have this one website – www.keepturningleft.co.uk

The sailing website www.keepturningleft.co.uk is a small subscription only website. I cannot control their clicking activity however, it is a download site so they have to wait for the films to buffer. One man did email me to tell me that he looks at the adverts while waiting for the films to buffer.

Many of them have turned off their adblockers. One man said that he had saved himself £50 on his boat insurance. For some of them these are the first sailing related adverts they have ever seen.

I also have an Amazon box on the site – that brings in about £80 a week at the moment.

A sailing advertiser has bought space on the site and is extremely pleased with the response.

I will quite understand if you decide to kill the Adsense account for the sailing website if, as you report, it is producing some weird click-through patterns – however, disabling Adsense for my YouTube activities seems counter-intuitive. I am very happy to provide you with a login for the website so that you can assess it for yourself

Yours sincerely, etc etc

Google’s reply to his appeal:

Hello,

Thank you for your appeal. We appreciate the additional information you’ve provided, as well as your continued interest in the AdSense programme.

However, after thoroughly re-reviewing your account data and taking your feedback into consideration, our specialists have confirmed that we’re unable to reinstate your AdSense account.

As a reminder, if you have any questions or concerns about your account, the actions we’ve taken or invalid activity in general, you can find more information by visiting

www.google.com/adsense/support/bin/answer.py?answer=57153

Sincerely,
The Google AdSense Team

Outrageous TOS agreements are nothing new on interwebs, but Google takes the cake.

The Adsense contract is a beautiful piece of work. One of my subscribers is a lawyer. She looked at the contract and said “wow – this is a beautiful and incredibly expensive piece of work. These guys employ the best.” Her advice? Don’t bother fighting Google.

Let’s take a closer look at Google’s Adsense terms:

• Google reserves the right to refuse participation to any applicant or participant at any time in its sole discretion.
• You may not create a new account to use the Program after Google has terminated this Agreement with You as a result of your breach of this Agreement
• Engage in any action or practice that reflects poorly on Google or otherwise disparages or devalues Google’s reputation or goodwill.
• Google reserves the right to withhold payment or charge back Your account due to any of the foregoing or any breach of this Agreement by You.

Every company has the right to set their own rules, including not allowing you to use their service. I’ve always hated it when someone goes on about how some private company censored them. I would always think, it’s only censorship if it’s the government. If you don’t like their service don’t use it. After all, there are other video hosts that pay content creators, such as Revver and Blip.tv (stop laughing).

But….

Has Google become more powerful than governments? They surely are on the internet.

I don’t think Google is evil or has some secret plot to defraud and destroy filmmakers. They create lots great products I use everyday. I also believe they will play a important role in advancing indie film (and already have). They just need to be reminded from time to time not to be evil.

The content industry has convinced industry in general that extremism in copyright regulation is good for business and economic growth. In this talk, Professor Lessig describes the creative and profitable future that culture and industry could realize, if only we gave up IP extremism.

http://www.computersandsociety.net/

http://remix.lessig.org/

Download full report (PDF)

INTRODUCTION

WHAT THIS IS

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

WHAT THIS ISN’T

This code of best practices does not tell you the limits of fair use rights.

It’s not a guide to using material people give permission to use, such as works using Creative Commons licenses. Anyone can use those works the way the owners say that you can.

It’s not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on “free use,” consult the document “Yes, You Can!” and copyright.cornell.edu.

It’s not a guide to using material that someone wants to license but cannot trace back to an owner—the so-called
“orphan works” problem. However, orphan works are also eligible for fair use consideration, according to the principles detailed below.

HOW THIS DOCUMENT WAS CREATED

A distinguished panel of experts, drawn from cultural scholarship, legal scholarship, and legal practice, developed this code of best practices, informed by research into current personal and nonprofessional video practices (“user-generated video”) and on fair use. Full identification of panelists is on the back cover of this document.

BACKGROUND

Video is increasingly becoming a central part of our everyday landscape of communication, and it is becoming more visible as people share it on digital platforms. People make and share videos to tell stories about their personal lives, remixing home videos with popular music and images. Video remix has become a core component of political discourse, as the video “George Bush Don’t Like Black People” and the “Yes We Can” parodies demonstrated. Both amateur and professional editors are creating new forms of viral popular culture, as the “Dramatic Chipmunk” meme and the “Brokeback to the Future” mashup illustrate. The circulation of these videos is an emerging part of the business landscape, as the sale of YouTube to Google demonstrated.

More and more, video creation and sharing depend on the ability to use and circulate existing copyrighted work. Until now, that fact has been almost irrelevant in business and law, because broad distribution of nonprofessional video was relatively rare. Often people circulated their work within a small group of family and friends. But digital platforms make work far more public than it has ever been, and cultural habits and business models are developing. As practices spread and financial stakes are raised, the legal status of inserting copyrighted work into new work will become important for everyone.

It is important for video makers, online service providers, and content providers to understand the legal rights of makers of new culture, as policies and practices evolve. Only then will efforts to fight copyright “piracy” in the online environment be able to make necessary space for lawful, value-added uses.

Mashups, remixes, subs, and online parodies are new and refreshing online phenomena, but they partake of an ancient tradition: the recycling of old culture to make new. In spite of our romantic cliches about the anguished lone creator, the entire history of cultural production from Aeschylus through Shakespeare to Clueless has shown that all creators stand, as Isaac Newton (and so many others) put it, “on the shoulders of giants.”

In fact, the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. The bargain is this: we as a society give limited property rights to creators, to reward them for producing culture; at the same time, we give other creators the chance to use that same copyrighted material without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work just because one person is arbitrary
or greedy.

Copyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. Fair use is the most important of these features. It has been an important part of copyright law for more than 150 years. Where it applies, fair use is a right, not a mere privilege. In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment. As copyright protects more works for longer periods than ever before, it makes new creation harder. As a result, fair use is more important today than ever before.

Copyright law does not exactly specify how to apply fair use, and that is to creators’ advantage. Creative needs and practices differ with the field, with technology, and with time. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is “fair” according to a “rule of reason.” This means taking all the facts and circumstances into account to decide if an unlicensed use of copyright material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner.

Fair use is flexible; it is not uncertain or unreliable. In fact, for any particular field of critical or creative activity, lawyers and judges consider expectations and practice in assessing what is “fair” within the field. In weighing the balance at the heart of fair use analysis, judges refer to four types of considerations mentioned in the law: the nature of the use, the nature of the work used, the extent of the use and its economic effect. This still leaves much room for interpretation, especially since the law is clear that these are not the only necessary considerations. In reviewing the history of fair use litigation, we find that judges return again and again to two key questions:

• Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
• Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Both questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner.

If the answers to these two questions are “yes,” a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place.

Another consideration underlies and influences the way in which these questions are analyzed: whether the user acted reasonably and in good faith, in light of general practice in his or her particular field. Online video makers’ ability to rely on fair use will be enhanced by the Code of Best Practices in Fair Use that follows. This code of best practices serves as evidence of commonly held understandings—some drawn from the experience of other creative communities (including documentary filmmakers) and supported by legal precedents, and all grounded in current practice of online video. Thus, the code helps to demonstrate the reasonableness of uses that fall within its principles.

Video makers can take heart from other creator groups’ reliance on fair use. For instance, historians regularly quote both other historians’ writings and textual sources; filmmakers and visual artists reinterpret and critique existing work; scholars illustrate cultural commentary with textual, visual, and musical examples. Equally important is the example of commercial news media. Fair use is healthy and vigorous in daily broadcast television news, where references to popular films, classic TV programs, archival images, and popular songs are constant and routinely unlicensed.

Unlike many traditional creator groups, nonprofessional and personal video makers often create and circulate their videos outside the marketplace. Such works, especially if they are circulated within a delimited network, do enjoy certain copyright advantages. Not only are they less likely to attract the attention of rights holders, but if noticed they are more likely to receive special consideration under the fair use doctrine. That said, our goal here is to define the widely accepted contours of fair use that apply with equal force across a range of commercial and noncommercial activities, without regard to how video maker communities’ markets may evolve. Thus, the principles articulated below are rooted squarely in the concept of “transformativeness.”

In fact, a transformative purpose often underlies an individual creator’s investment of substantial time and creative energy in producing a mashup, a personal video, or other new work. Images and sounds can be building blocks for new meaning, just as quotations of written texts can be. Emerging cultural expression deserves recognition for transformative value as much as more established expression.

BEST PRACTICES

This code of practices is organized, for ease of understanding, around common situations that come up for online video makers. These situations do not, of course, exhaust the possible applications of fair use to tomorrow’s media-making techniques.

But first, one general comment: Inevitably, considerations of good faith come into play in fair use analysis. One way to show good faith is to provide credit or attribution, where possible, to the owners of the material being used.

ONE: COMMENTING ON OR CRITIQUING OF COPYRIGHTED MATERIAL

DESCRIPTION: Video makers often take as their raw material an example of popular culture, which they comment on in some way. They may add unlikely subtitles. They may create a fan tribute (positive commentary) or ridicule a cultural object (negative commentary). They may comment or criticize indirectly (by way of parody, for example), as well as directly. They may solicit critique by others, who provide the commentary or add to it.

PRINCIPLE: Video makers have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny. Comment and critique are at the very core of the fair use doctrine as a safeguard for freedom of expression. So long as the maker analyzes, comments on, or responds to the work itself, the means may vary. Commentary may be explicit (as might be achieved, for example, by the addition of narration) or implicit (accomplished by means of recasting or recontextualizing the original). In the case of negative commentary, the fact that the critique itself may do economic damage to the market for the quoted work (as a negative review or a scathing piece of ridicule might) is irrelevant.

LIMITATION: The use should not be so extensive or pervasive that it ceases to function as critique and becomes, instead, a way of satisfying the audience’s taste for the thing (or the kind of thing) that is being quoted. In other words, the new use should not become a market substitute for the work (or other works like it).

TWO: USING COPYRIGHTED MATERIAL FOR ILLUSTRATION OR EXAMPLE

DESCRIPTION: Sometimes video makers quote copyrighted material (for instance, music, video, photographs, animation, text) not in order to comment upon it, but because it aptly illustrates an argument or a point. For example, clips from Hollywood films might be used to demonstrate changing American attitudes toward race; a succession of photos of the same celebrity may represent the stages in the star’s career; a news clip of a politician speaking may reinforce an assertion.

PRINCIPLE: This sort of quotation generally should be considered fair use and is widely recognized as such in other creative communities. For instance, writers in print media do not hesitate to use illustrative quotations of both words and images. The possibility that the quotes might entertain and engage an audience as well as illustrate a video maker’s argument takes nothing away from the fair use claim. Works of popular culture typically have illustrative power precisely because they are popular. This kind of use is fair when it is important to the larger purpose of the work but also subordinate to it. It is fair when video makers are not presenting the quoted material for its original purpose but to harness it for a new one. This kind of use is, thus, creating new value.

LIMITATIONS: To the extent possible and appropriate, illustrative quotations should be drawn from a range of different sources; and each quotation (however many may be employed to create an overall pattern of illustrations) should be no longer than is necessary to achieve the intended effect. Properly attributing material, whether in the body of the text, in credits, or in associated material will often reduce the likelihood of complaints or legal action and may bolster a maker’s fair use claim.

THREE: CAPTURING COPYRIGHTED MATERIAL INCIDENTALLY OR ACCIDENTALLY

DESCRIPTION: Video makers often record copyrighted sounds and images when they are recording sequences in everyday settings. For instance, they may be filming a wedding dance where copyrighted music is playing, capturing the sight of a child learning to walk with a favorite tune playing in the background, or recording their own thoughts in a bedroom with copyrighted posters on the walls. Such copyrighted material is an audio-visual found object. In order to eliminate this incidentally or accidentally captured material, makers would have to avoid, alter, or falsify reality.

PRINCIPLE: Fair use protects the creative choices of video makers who seek their material in real life. Where a sound or image has been captured incidentally and without pre-arrangement, as part of an unstaged scene, it is permissible to use it, to a reasonable extent, as part of the final version of the video. Otherwise, one of the fundamental purposes of copyright—to encourage new creativity—would be betrayed.

LIMITATION: In order to take advantage of fair use in this context, the video maker should be sure that the particular media content played or displayed was not requested or directed; that the material is integral to the scene or its action; that the use is
not so extensive that it calls attention to itself as the primary focus of interest; and that where possible, the material used is properly attributed.

FOUR: REPRODUCING, REPOSTING, OR QUOTING IN ORDER TO MEMORIALIZE, PRESERVE, OR RESCUE AN EXPERIENCE, AN EVENT, OR A CULTURAL PHENOMENON

DESCRIPTION: Repurposed copyrighted material is central to this kind of video. For instance, someone may record their
favorite performance or document their own presence at a rock concert. Someone may post a controversial or notorious moment from broadcast television or a public event (a Stephen Colbert speech, a presidential address, a celebrity blooper). Someone
may reproduce portions of a work that has been taken out of circulation, unjustly in their opinion. Gamers may record
their performances.

PRINCIPLE: Video makers are using new technology to accomplish culturally positive functions that are widely accepted—or even celebrated—in the analog information environment. In other media and platforms, creators regularly recollect, describe, catalog, and preserve cultural expression for public memory. Written memoirs for instance are valued for the specificity and accuracy of their recollections; collectors of ephemeral material are valued for creating archives for future users. Such memorializing transforms the original in various ways—perhaps by putting the original work in a different context, perhaps by putting it in juxtaposition with other such works, perhaps by preserving it. This use also does not impair the legitimate market for the original work.

LIMITATION: Fair use reaches its limits when the entertainment content is reproduced in amounts that are disproportionate to purposes of documentation, or in the case of archiving, when the material is readily available from authorized sources.

FIVE: COPYING, REPOSTING, AND RECIRCULATING A WORK OR PART OF A WORK FOR PURPOSES OF LAUNCHING A DISCUSSION

DESCRIPTION: Online video contributors often copy and post a work or part of it because they love or hate it, or find it exemplary of something they love or hate, or see it as the center of an existing debate. They want to share that work or portion
of a work because they have a connection to it and want to spur a discussion about it based on that connection. These works can
be, among other things, cultural (Worst Music Video Ever!, a controversial comedian’s performance), political (a campaign appearance or ad), social or educational (a public service announcement, a presentation on a school’s drug policy).

PRINCIPLE: Such uses are at the heart of freedom of expression and demonstrate the importance of fair use to maintain this freedom. When content that originally was offered to entertain or inform or instruct is offered up with the distinct purpose of launching an online conversation, its use has been transformed. When protected works are selectively repurposed in this way, a fundamental goal of the copyright system—to promote the republican ideal of robust social discourse—is served.

LIMITATIONS: The purpose of the copying and posting needs to be clear; the viewer needs to know that the intent of the poster is to spur discussion. The mere fact that a site permits comments is not enough to indicate intent. The poster might title a work appropriately so that it encourages comment, or provide context or a spur to discussion with an initial comment on a site, or seek out a site that encourages commentary.

SIX: QUOTING IN ORDER TO RECOMBINE ELEMENTS TO MAKE A NEW WORK THAT DEPENDS FOR ITS MEANING ON (OFTEN UNLIKELY) RELATIONSHIPS BETWEEN THE ELEMENTS

DESCRIPTION: Video makers often create new works entirely out of existing ones, just as in the past artists have made collages and pastiches. Sometimes there is a critical purpose, sometimes a celebratory one, sometimes a humorous or other motive, in which new makers may easily see their uses as fair under category one. Sometimes, however, juxtaposition creates new meaning in other ways. Mashups (the combining of different materials to compose a new work), remixes (the re-editing of an existing work), and music videos all use this technique of recombining existing material. Other makers achieve similar effects by adding their own new expression (subtitles, images, dialog, sound effects or animation, for example) to existing works.

PRINCIPLE: This kind of activity is covered by fair use to the extent that the reuse of copyrighted works creates new meaning by juxtaposition. Combining the speeches by two politicians and a love song, for example, as in “Bush Blair Endless Love,” changes the meaning of all three pieces of copyrighted material. Combining the image of an innocent prairie dog and three ominous chords from a movie soundtrack, as in “Dramatic Chipmunk,” creates an ironic third meaning out of the original materials. The recombinant new work has a cultural identity of its own and addresses an audience different from those for which its components were intended.

LIMITATIONS: If a work is merely reused without significant change of context or meaning, then its reuse goes beyond the limits of fair use. Similarly, where the juxtaposition is a pretext to exploit the popularity or appeal of the copyrighted work employed, or where the amount of material used is excessive, fair use should not apply. For example, fair use will not apply when a copyrighted song is used in its entirety as a sound track for a newly created video simply because the music evokes a desired mood rather than to change its meaning; when someone sings or dances to recorded popular music without comment, thus using it for its original purpose; or when newlyweds decorate or embellish a wedding video with favorite songs simply because they like those songs or think they express the emotion of the moment.

CONCLUSION

These principles don’t exhaust the possibilities of fair use for online video. They merely address the most common situations today. Inevitably, online video makers will find themselves in situations that are hybrids of those described above or will develop new practices. Then, they can be guided by the same basic values of fairness, proportionality, and reasonableness that inform this code of practices. As community practices develop and become more public, the norms that emerge from these practices will themselves provide additional information on what is fair use

COMMON FAIR USE MYTHS

IF I’M NOT MAKING ANY MONEY OFF IT, IT’S FAIR USE. Noncommercial use is indeed one of the considerations for fair use, but it is hard to define. If people want to share their work only with a defined closed-circle group, they are in a favorable legal position. But beyond that, in the digital online environment, wholesale copying can be unfair even if no money changes hands. So if work is going public, it is good to be able to rely on the rationale of transformativeness, which applies fully even in “commercial” settings.

IF I’M MAKING ANY MONEY OFF IT (OR TRYING TO), IT’S NOT FAIR USE. Although nonprofit, personal, or academic uses often have good claims to be considered “fair,” they are not the only ones. A new work can be commercial—even highly commercial—in intent and effect and still invoke fair use. Most of the cases in which courts have found unlicensed uses of copyrighted works to be fair have involved projects designed to make money, including some that actually have.

FAIR USE CAN’T BE ENTERTAINING. A use is no less likely to qualify as a fair one because the film in which it occurs is effective in attracting and holding an audience. If a use otherwise satisfies the principles and limitations described in this code, the fact that it is entertaining or emotionally engaging should be irrelevant.

IF I TRY TO LICENSE MATERIAL, I’VE GIVEN UP MY CHANCE TO USE FAIR USE. Everyone likes to avoid conflict and reduce uncertainty, and a maker may choose to seek permissions even in situations where they may not be required. Later,
a maker still may decide to employ fair use. The fact that a license was requested—or even denied—doesn’t undercut
an otherwise valid fair use claim. If a rights holder denies a license unreasonably, this actually may strengthen the case for fair use.

I REALLY NEED A LAWYER TO MAKE THE CALL ON FAIR USE. Fair use is a part of the law that belongs to everyone.
A lawyer usually works for a client by reducing risk; in copyright law, that often means counseling purchase of rights for all uses
of copyrighted material. If clients tell lawyers that they want to assert their rights (something that has a very low risk, if they understand what their rights are) then lawyers can recommend appropriate policies; but lawyers need to be told what their
clients want.

And finally, a special note from the lawyers among us: Be careful not to draw too much from specific past court cases.

A good example of one decision that easily can be over-interpreted is the California District Court decision in L.A. Times v. Free Republic, 56 U.S.P.Q.2D (BNA) 1862 (C.D. Cal. 2000), which ruled that a right-wing electronic bulletin board that invited reader comments on mainstream media content was not fair use. This anomalous case predates a Supreme Court decision (Eldred v. Ashcroft, 537 U.S. 186, 2003) that clearly asserted the link between fair use and free speech. Furthermore, decisions like Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), dealing with infringement standards in music sampling, are widely cited for fair use principles when in fact they do not concern fair use at all. While case law is of essential importance in establishing legal norms, it is the trend in case law that determines such norms. The trend in case law about fair use has strongly been in the direction of supporting transformativeness as a core measure of fair use. This puts the judgment about fair use back squarely in the hands of the new creators and platform providers, who must look carefully at how videos repurpose copyrighted works

Getting to know your Code of Best Practices

by Peter Jaszi

The July 7 release of the new “Code of Best Practices in Fair Use for Online Video” has given rise to an important question about how to interpret the document’s six “Principles” and their associated “Limitations.” So it may be worth noting that all the principles also are subject to some general limiting considerations. One of these is what might be called a “rule of proportionality.” Read more here.

Code of Best Practices Committee

Co-chairs

Peter Jaszi, Professor of Law, Faculty Director of the Glushko-Samuelson Intellectual Property Clinic, Washington College of Law, American University

Patricia Aufderheide, Professor, Director of the Center for Social Media, School
of Communication, American University

Members

Michael C. Donaldson, Esq., Los Angeles

Anthony Falzone, Lecturer, Executive Director, Fair Use Project, Stanford Law School

Lewis Hyde, Richard L. Thomas Professor of Creative Writing, Kenyon College; Fellow, Berkman Center for Internet and Society, Harvard University

Mizuko Ito, Research Scientist, School of Cinematic Arts, University of Southern California

Henry Jenkins, Professor, Program Head, Comparative Media Studies, Massachusetts Institute of Technology

Michael Madison, Associate Dean for Research, Associate Professor of Law, University of Pittsburgh School of Law

Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information, University of California, Berkeley

Rebecca Tushnet, Professor, Georgetown University Law Center, Georgetown University

Jennifer Urban, Clinical Associate Professor of Law, Director of the Intellectual Property and Technology Law Clinic, University of Southern California

Related Links From The Center for Social Media

• Expanding User Rights For Documentary Filmmakers
• Success of the Statement of Best Practices
• Documentary Filmmakers’ Statement of Best Practices in Fair Use
• Making Your Documentary Matter 2007 Podcast & Discussion Forum
• The Good, The Bad and the Confusing: User-Generated Video Creators on Copyright
• Unauthorized: The Copyright Conundrum in Participatory Video

*This work was reproduced with the permission of Center for Social Media