The social condition of global interconnection that we call the Internet makes it possible for all of us to be creative in new and previously undreamed-of ways; Unless we allow “ownership” to interfere.2
A specter is haunting the world—the specter of massive copyright infringement. All the old powers have aligned together to eliminate this specter—the RIAA, the MPAA, the BSA, ASCAP, BMI, and, most importantly, the United States.3 Where is the local start-up, the DJ, the mashup artist, or the 12-year-old fan that has not been labeled a pirate, deemed a criminal, and ordered to “cease and desist”? Where is the new service provider, be it YouTube, Napster, Grokster, MegaUpload, or The Pirate Bay that has not been issued a takedown notice under the DMCA or destroyed altogether?
Two things result from these facts:
1 User-generated creative works are already acknowledged to be a power—a culture of the masses taking control of technology and making culture instead of consuming it.
2. It is high time that users and the copyright critics supporting this movement openly and in the face of the whole world publish their views, their aims, their tendencies, and meet this nursery tale of the specter of copyright infringement with a manifesto for the rights of user-generated content.
To this end, we (I) sketch a manifesto.4
It is time to strike a new balance within copyright law, and the term “user-generated content” itself helps us understand why this new balance is necessary. While the culture industry5 ignores the basis for its own appropriation, it uses copyright as a club to ensure that creative permutations of commercial works remain under commercial control. The trajectory for consumer culture is toward more concentrated ownership, despite the fact that most products produced by the culture industry pull freely from the non-commodified world;6 however, these origins are often forgotten when profit motives take over.
In the previous chapters, the relationships between culture, the state, and copyright have been examined. The concepts of culture as property and the relationship between culture and the state have been problematized. In this chapter, and in the final section of the book, my attention turns to not simply how the problems of copyright infringement are narrated, but what possible solutions might exist in the form of policy proposals and beyond. This chapter will focus on policy repairs, but offer a different “balance” between users and creators. The final chapter will look beyond the law and to the transformational possibilities of alternatives to copyright.
This chapter is not an argument against copyright, but instead it is an argument for broader protection of all creative work, including creative work built upon that of others. I am trying to shift the focus to recognize that authors exist outside the commercial sphere of the culture industry and that works of authorship, broadly conceived, are built upon the works of others. It is time to demand change to our copyright policy, change that facilitates a type of self-expression currently mislabeled “user-generated content.” User-generated content is in reality authorship and creative work, but also work that generally disrupts the commercial paradigm.
The second section in this chapter sketches the evolution of the term, “user-generated content” in order to identify the politics inherent in the definition and how technology has changed our relationship to entertainment and information. The third section deconstructs the assumptions behind the term, user-generated content in order to clarify its political economy. The fourth part maps the “problem” of user-generated content within the specific world of YouTube videos in order to highlight the flow of ideas inherent in culture, and argues that the problem is, rather than the user, the over-commodification of culture. Finally, I offer several recommendations for policy changes and conclude by arguing that it is time to strike a new balance between commercial interests and the public at large.
Instead of taking the concept of user-generated content as a given, it seems appropriate to think about the evolution of the term and what it means. As will become clear, the term is used to describe activities engaged in by those typically seen not as cultural producers but cultural consumers. This section will describe the origins and evolution of the term, and the next section will take up the political implications.
The scope of user-generated content includes many problematic connections to copyright law.7 User-generated content can be found on wikis, blogs, twitter feeds, YouTube, Facebook, in virtual worlds, in reactions to news stories, in reactions to others’ reproductions of news stories, on pirate websites, as ratings for products or ratings for seller reputations, as well as many more places yet to be described or envisioned.8 These are part of the emerging social networks of self-expression that are the foundation of our online political and social culture. All these sites raise issues of creativity, ownership, collective authorship, and illegal appropriation of previously copyrighted works.9
The history of the term, “user-generated content” is not a long one, with the earliest articles appearing in 1995.10 Deborah Bogle’s 1999 essay is one of the first to suggest that user-generated content could replace professional content and make the once “all-powerful editor/producer type … just another content provider.”11 Bogle tells the story of a colleague, saying, “Well, they can just f.k off, all these users. We need that money!”12 As a result of technological changes, Bogle acknowledges that experts will have to work harder and the focus will shift to filtering, not producing content. Professionals will have to become more “flexible” as the line blurs between them and passive “users.”13
The term, “user-generated content” began to gain momentum in 2005 and 2006 when the Web 2.0 phenomenon became a news subject.14 The vast majority of articles on user-generated content were published in the middle of the first decade of the twenty-first century.15 By 2007, the online business environment and attitudes toward user-generated content had evolved considerably, as have the impacts of user-generated content on product information,16 but also for news production,17 policing,18 and business models.19 Users had also changed. Modern users want more connectivity, more user control, and more new technologies.20 In other words, much has changed in the past 15 years as the internet has evolved. User-generated content has become both an opportunity and a concern.
Mass society is commercialized and driven from the top down by profit-oriented models of cultural consumption. In other words, U.S. mass culture is commercial culture where culture is a commodity like shoes or luxury cars.21 The paradigm of consumer culture requires that one take as “truth” a series of starting assumptions. First, the most widely discussed assertion regarding creative use is the assumption that within commodity culture no one creates for free; all artists, no matter their genre, create to make money. According to this logic, nobody gives away their creative work, or their intellectual property as it has come to be called, because to do so would go against the very principles of an ideology based on private property.
The second “truth” is that culture is produced by professionals, defined as those who make a living from their creative work.22 The professionalization and commercialization of consumer culture has traditionally privileged those who monopolize the means of creative production—movie studios, music studios, publishing houses, and other venues associated with the production of mass culture and control.23 Control over the means of creative production and the avenues of distribution allows for top-down creative control.
Third, articulating the cultural arena as one dominated by professionals is premised upon the myth of the romantic and original artist.24 Within the culture industry, the profit motive drives production while concealing an industrial model behind the “author effect.”25 Important to the industrial model is that in almost all cases the work itself becomes the “property” of the company and not the original author.26 A different way to look at the argument about original authors and production is to see the culture industry structurally—no movie, album, book, fashion design, painting, or other creative work exists because of a single author, as the flows of culture described in previous chapters demonstrate. It is possible to subvert the ideology of the original author by endorsing values of attribution, inspiration, appropriation, and exchange instead. Furthermore, these differences do not break down along the lines of professional and amateur as the user-generated content debates would suggest.27
Only by understanding these assumptions does the phrase “user-generated content” make sense—though the concept of “content” helps disassociate what is produced from culture and instead emphasizes its commodity form. These assumptions generate a landscape where culture is produced in an assembly-line fashion by the “original” few and sold to the uncreative masses, who spend their days consuming culture (or in the digital age, pirating it).
In the context of the consuming masses, user-generated content disrupts a distribution monopoly. Computer technology in the hands of the masses has made available software programs that can create music, documents, and art almost as well as expensive studios did in the past. This democratization of technology disrupts the monopoly over the creative means of production. The world of “amateur” production also demonstrates that many are motivated by non-commercial reasons.28 By using the term, user-generated content, the structure of the narrative implicitly undermines the value that can be placed on the original work of “users” and implies that professional contributions are somehow superior.29
In the past, it was far more difficult to see the creativity of thousands, if not millions, of people. The social networking platforms at the heart of the Web 2.0 revolution have changed this. Web 2.0 technologies brought broader visibility to the creative self-expression of the average person, and in doing so reproduced already existing forms of everyday cultural creation. In the non-commodified world, user-generated content is not a new concept, and in some cases the communities built around it had already developed their own sets of norms.30 Ironically, the web itself is the product of user-generated content.31 Furthermore, important aspects of our culture, from quilts to recipes, to style, to scrapbooks, to music, and poetry, are all generated by “users,” given that the term “user” is simply another way to describe non-professionals who allow their creative energies to be part of a gift, or uncommodified, culture.
The user-generated world can and does play with the commodified products of the culture industry, appropriating common cultural symbols and remaking them as personally meaningful connections. In a world of commodities where our common cultural symbols are commercially produced, there are few other options. This remix behavior goes well beyond the technology platforms that allow for its distribution.32 I will argue that remixing is a form of decommodification—it takes a product of the culture industry and creates social meaning that is out of the control of the “content owners.” For example, in the non-networked world, anyone who has sat around quoting the lines from a Monty Python skit can understand how a product of the culture industry cements relationships and allows for cultural meaning to develop beyond the actual “product,” in effect decommodifying the object and giving it shared cultural meaning. We have always interacted with our cultural products; we just didn’t do it virtually before. So, what is the problem created by user-generated content?
Corporate concern surrounding user-generated content highlights the sea change we are witnessing today. As cultural critic and editor, Matt Mason, argues, “When pirates start to appear in a market it’s usually an indication that it isn’t working properly.”33 Where once there existed the relatively stable world of the culture industry in which concentrated control over film, music, literature, and art was easy, the technology of modernity has shifted control into the hands of consumers of culture. Stable control over the culture industry was possible because commodity culture deskills people as creators, in the same way that industrialization deskilled the artisan and craftsperson while turning them into fodder for the industrial machine.34
This means that, as the tools for re-skilling creativity emerge, the industrial model of creativity will falter. Consumers with access to technology become creators in a more democratically accessible world. From the perspective of the culture industry, consumers become thieves, but instead of luddites destroying the machinery of their oppression, these actors are taking over the technologies of production and turning them toward their own personal uses.
Technology makes it much easier to produce your own music or films, as well as download the works of others.35 The existence of mass culture, dominated by command and control organizations, is threatened by the shift to the reskilled creative agent. In response to the breakdown of control, the culture industry polices the use of derivatives more closely because it is easier to share more readily.36 Most of the focus is on derivative works, though, hypocritically, the culture industry does not acknowledge its own works as derivative from the surrounding culture.37 Derivative works created by users are problematic because they threaten control over the owned content. In a world where everything is branded, this control is essential.
While, in the United States, the Digital Millennium Copyright Act established rules ostensibly to balance content-owner concerns with service-provider concerns, private initiatives are under way to shore up content ownership in the digital age.38 Media companies including CBS, Walt Disney, Sony Pictures, and Viacom met with internet service providers (ISPs) to formulate a set of principles for user-generated content in October of 2007.39 Key players, including Google, were absent, but also missing were actual users and public interest groups. These absences highlight the political nature of the debate in which users are irrelevant because corporate players will set standards and users will be required to play by the resulting rules.
The primary concern articulated in the principles is the need for a system through which commercial interests can halt the uploading and distribution of content that infringes commercial copyrights.40 The principles assume that “user” activity inevitably infringes.41 They outline 15 objectives for regulating content online that include, among other things, shifting the burden for identifying infringing content to the services that provide platforms for user-generated content; assuming that the copyright owner acts in “good faith” and actually owns the material they seek to block; and developing complex surveillance and technological locks to assure that infringing content is removed.42 In return, the content industry assures the ISPs that litigation will not be their first line of defense and that, despite failing to clarify, they will “accommodate fair use.”43
While it would seem that the website has not evolved at all since originally produced in 2007, the principles have ramifications for users because they were not intended to strike a balance between fair use and ownership, but rather to solidify ownership.44 The principles will make it more difficult for an ISP to side with a user over a content owner, which could cause a shift to more direct infringement cases against users, impacting creative work that falls well within the fair use guidelines.45 The recent YouTube case involving Stephanie Lenz and her 29-second “Let’s Go Crazy” video depicting her baby son dancing is one such example of how far copyright owners will go to police their work, as well as the ways in which the current system requires ISPs to side with the content owners in order to avoid becoming infringers themselves.46 When her video was taken down as a violation of copyright, she deployed the counter-notification procedures, to challenge the takedown of her video, but not all users will do so, nor feel they are on firm enough ground to offer up a challenge.47
The Lenz case offers an example of fair use being trampled by an over-energetic copyright policing effort; however, the continuum of possible infringement is much less clear, and where to draw the line between what should be allowed and what should be removed needs to be reconsidered. To problematize the relationship of creativity, self-expression, and commodity culture, I will examine the continuum of user-generated content found on YouTube, which has in a few short years become one of the most popular user-generated websites in the world and a site of considerable social and political value.48
YouTube catapulted into prominence as the site upon which to watch videos, with tens of thousands of uploads and millions of viewers each month.49 It has become a complex area of original work, videoblogs, discovered talent, as well as downloads of unauthorized video content.50 In other words, it is a content owner’s nightmare in terms of controlling what is available.51 Even in the course of writing this chapter and revising it, links would be broken to copyrighted content only to be found again by a different search request. To police the copyright violations made possible by YouTube, for example, NBC Universal has a staff of three employees browsing for violations and has sent over one thousand notice and takedown requests.52 Viacom, as claimed in its lawsuit against YouTube, asserts over 150,000 copyright violations.53 The remainder of this section seeks to do two things. First, to discuss the scope of possible copyright infringement on YouTube, from direct copying to derivative works, but second, to argue that virtually everything that the site offers should be considered a fair use.54
First, YouTube offers uploads of entire copyrighted works, some of which are licensed from the copyright owner, but many of which are uploaded without permission. For example, the entire 13 minutes and 41 seconds of Michael Jackson’s Thriller has been viewed over 138,540,994 times and generated 321,663 comments as of June 2013.55 The song is iconic for more than one generation of music listeners and fully integrated into our cultural lives. The movie 13 Going on 30 includes a scene where the lead character played by Jennifer Garner adds life to a dead party by getting everyone to do the dance from Thriller.56 The movie clip has been viewed over 1 million times and generated over 1,000 comments, many discussing how difficult and fun it is to learn the dance sequence from Thriller.57
It is almost certainly the case that the upload for the clip from 13 Going on 30 is without permission, though given the length of the clip in the context of the entire movie, the 3 minutes and 34 seconds might be interpreted as a fair use.58 Additionally, while the Thriller clip cited here is the “official” version, there are unofficial versions put up by fans that can be viewed and multiple derivative versions.59 Often the commentary by viewers makes claims about the creativity of the original or how much they like the clip.60
While they are possibly copyright violations, how these clips do harm is less clear. On a purely commercial level, most people who want a copy of Thriller, the song, have it and couldn’t download it from YouTube anyway. If they are seeking Thriller, the video, these are not generally available for purchase and the quality of a YouTube version is relatively poor.61 The clip from 13 Going on 30 is not a replacement for the entire movie and it is difficult to imagine a YouTube viewer watching the entire movie in 5- or 10-minute increments instead of renting the movie somewhere else. The movie scene works because Thriller provides a connection between otherwise disparate individuals and creates an important cultural moment that can be shared. Contemporary viewers comment on both the original, the derivative found in the romantic comedy, and their own personal versions. Such is the cultural flow of creative work.
These direct appropriations fall into a substantive gray area when it comes to copyright infringement and fair use. It is almost guaranteed that, if the copyright owner sought to have these types of clips removed, YouTube would take them down, and indeed some had been removed over the history of this chapter.62 It is also likely that the people posting clips from copyrighted sources would not seek to have them reinstated because they would be unclear about the fair use options available to them, if they know that the concept of fair use exists at all.63 Instead, the existence of movie clips, videos, and other copyrighted work on YouTube is contingent upon how carefully copyright owners police their works. However, even when a popular copyrighted work is taken off YouTube, it can be back up quickly as fans replace the missing piece, or multiple versions existed already that the copyright owner has not yet sought to remove.
The propensity of copyrighted works to re-emerge on YouTube helps demonstrate the social value of these clips. These clips are tributes to important cultural moments—with the exception of the official Michael Jackson site, no one is trying to profit from putting these videos on YouTube (ignoring YouTube’s interests for the moment); instead, they are opening up a platform for cultural sharing around our most common cultural products—commercial culture. In the process, users decommodify these cultural moments and give them authentic meaning, meaning that cannot exist without the shared value contributed by the people who are linked through a common cultural experience. These video clips generate a dialogue amongst people and produce a cultural flow that in many cases even crosses international boundaries. As Rosemary Coombe notes, “Everywhere individuals and groups improvise local performances from (re)collected pasts, drawing on foreign media, symbols, and languages. Forces of global capitalism have created a situation of late modernity that is “decentered, fragmented, compressed, flexible, refractive, and meanings are fashioned with materials from diverse cultural lifeworlds.”64 Not only do people make meaning from “diverse cultural lifeworlds,” but I would argue that only when a commodity achieves a cultural flow does it gain value at all. In fact, culture industry products only become successful in the first place when people find social meaning in a work that transcends market value. If Thriller had not been so popular, we certainly would not be celebrating its twenty-fifth anniversary, but instead it would be resigned to the dustbins with so much other 1980s’ music that did not catch the public attention.
Direct clips of movies or entire music videos, while having social value, are the most obvious forms of copyright infringement. YouTube is also filled with transformative works that fall into much more difficult-to-define categories. For example, it is unlikely that the 1,500 inmates at the Cebu Provincial Detention and Rehabilitation Center in the Philippines who have reproduced the choreography for Thriller did so with authorization.65 However, this video is wildly popular and has been viewed over 52 million times.66 Other versions of the Thriller choreography are available, including one created in the virtual world, Second Life, all using the song and choreography from the original music video, at least this version existed until removed for copyright violations.67
Despite the possibility of copyright infringement, the social and political value of providing a forum in which to discuss these copyrighted works should not be underemphasized. For example, when Steven Colbert was invited to roast President Bush at the White House Press Corps dinner, his speech was considered a disaster in the mainstream media.68 However, it became required watching on YouTube. The speech was almost immediately taken off of the site as a copyright violation, but has since made its way back, with one version generating almost 3 million views and almost 9,000 comments.69 As one viewer pointed out:
This whole thing is interesting, because he’s not playing to the crowd who was in that dinner hall that night. He was playing to the people at home and those (like us) who would watch it on the internet later. WE were the ones who found it hilarious. Not just because of what he said, but because the crowd there TOTALLY DIDN’T.70
Posting an entire segment of a news clip, humorous program, or music video creates a way of viewing media never experienced before. Prior to YouTube (and other services like it), if you missed the show, didn’t know to videotape it, or didn’t know someone with a copy, you simply had to rely upon the filtered versions provided by the major news outlets or versions mediated by your friend’s interpretations. The only media items making it to the video store used to be feature-length movies and now include television series. For all other interesting stories there was simply no secondary market after it was first shown on television.
YouTube has changed this, as has webstreaming and other internet technologies that allow for instant replay and multiple viewings. They place previously tethered entertainment and news into the wild and in the process transform the conversations we can have about our political figures, socially relevant events, and culture industry artifacts. It is likely that Colbert understood his remarks would reach an entirely different audience than the one controlled by the Press Corps and the President’s office.71 The new media environment would allow for many to see the event in its entirety; it would allow for multiple replays and discussion. Old-format media failed to see the significance of the event as a viral political tool, now viewed by millions via YouTube, and instead sought to keep it off of the internet using copyright.72 However, YouTube allows for a disintermediated, and thus more authentic, political experience. You can see it for yourself and, instead of being forced to listen to blathering political pundits, you can become your own.
Direct copying, then, has a legitimate social and political function that puts it at odds with copyright law. Aside from direct copying, there is also a vast array of multiple and diverse transformative works available on YouTube. These include fan videos, the reappropriation of characters to be used in different and often deviant contexts,73 machinima, and home videos set to music. Legal commentators have begun to map out the importance and complexity of transformative works.74
When fans take culture industry products and make them into something that has social value for them, where commercial compensation is neither sought nor demanded, they are engaged in what could be considered an important political act in a market-dominated world. As I am arguing here, they are decommodifying culture by taking it out of its profit-oriented platform and transforming it not only into a derivative work under copyright law, but into something that has cultural meaning that goes beyond monetary value. However, box office numbers and advertising dollars are the only way that commercial culture has to measure success.
When copyright stands in the way, it helps to destroy the possibility of human connection through culture. Who could have ever guessed, for example, that an obscure B movie would produce entire communities of re-enactments and forge important relationships between people who might otherwise be far more isolated and alienated as Rocky Horror Picture Show has done for over 30 years? When fans of Buffy the Vampire Slayer sought to do something similar with the musical episode, “Once More with Feeling,” Fox sent cease and desist letters to those who were trying to pay homage to the series and used their control of the copyright to shut down any such performances.75
Despite the creative energy associated with commodities being “decommodified” and placed within the cultural flow of human life, copyright renders illegal an enormously varied range of creative products by making all works related to the initial copyrighted work the “property” of the original author and criminals out of those who create these works.76 These derivatives include the remake of Raiders of the Lost Ark lovingly put together over years of hard work by Chris Strompolos, Eric Zala, and Jayson Lamb when they were kids,77 the home videos depicted in the recent movie starring Jack Black, Be Kind ReWind,78 and footage in many documentary films.79
Commercial culture causes problems for those inspired by the predominant cultural form we have today—we are trapped in a commodity culture but not allowed to use these properties to imagine our own worlds and scenarios. From a corporate perspective, the problem is that, as Rebecca Tushnet points out, “imagination trumps ownership,” and transformative work is difficult to stop because it is the manifestation of the cultural conversation we all engage in as social beings.80 From a fan perspective, “imagination trumps ownership,” and this is a positive outlet for our selfexpression. The conversation about our cultural artifacts facilitates connections but is also contingent upon the transformative aspect of art and thus rendered highly problematic under current copyright law.
One other popular YouTube genre that moves beyond fan appropriation is the home video appropriating copyrighted music as a soundtrack. These home productions often copy an entire song or significant parts of one to develop their narrative. Climbing videos, for example, use music to accentuate the action of the video such as the May 5, 2008 upload by “Lolobrenda.”81 This YouTube video is an 8-minuteand-4-seconds-long creation encapsulating a climbing trip, complete with scene and music changes.82 Such unauthorized use of music, even music purchased by the video creators legally, violates the law.
A more complex example is “Zac Sands Climbing No Redemption 5.13 Red River Gorge.”83 This 2-minute-and-57-second-long video, viewed over 40,000 times, was produced and uploaded by “Victorypro,” a 24-year-old named Spenser Victory, who lists his occupation as video production and his company as Victory Productions.84 The footage of Sands climbing is set to Weird Al Yankovic’s “White and Nerdy.”85
A literary interpretation of the video might suggest that “Victorypro” is making a commentary on a white guy doing something that seems far from nerdy.86 However, it is much more likely that he just liked the song or it was the correct amount of time for the video.87 The Zac Sands video highlights yet again the complexity of cultural exchange. The Yankovic song is a parody of Chamillionaire’s “Ridin,”88 and it took Weird Al into the Billboard Top 10.89 Yankovic released the music video of “White and Nerdy” on the internet, making it one of the most popular YouTube hits available, having now been viewed over 77 million times.90 Despite parody being an acceptable fair use, Yankovic splits profits with, and gets permission from, the original artist.91 However, his work is in itself an incredibly labor-intensive form of creation, one might argue even more difficult than the original, because it requires comic timing and the clever remixing of a song’s lyrics.92 Weird Al’s songs do not only accompany climbing videos; it is possible to find living room performances of them on YouTube, thus turning parody into parody.93
One such appropriation of the parody is “White and Nerdy in Lego,” in which “jrdmovimkr” has painstakingly choreographed the song with Lego action figures.94 He asks that viewers read his info blurb about the video first, which states:
Some people have questions about my video, and a lot of them are answered here:
Special thanks to lasered97 for the neat weird al trippy with my lego version! Go see all of his videos!!!! I made a video off of Weird Al’s music video to “White and Nerdy” … but it’s in LEGO!!! Hope you like it!!! It took me a LOOOOOOONG time to make it, but it was a lot of fun!! (Ok, it took me a week to make it) This is my very first film that I have made in 16 frames per second. I also used Windows Movie Maker to put the pictures together. The “effects” like the (ping pong ball) were all done in Microsoft Paint. Please comment!! 🙂 Don’t take this video and post it as your own!!!!!95
The commentary is illustrative of the culture of sharing and innovation that exists on YouTube. The author understands his own position in the cultural flow of objects, but also wants to highlight the labor he has invested in the Lego version, as well as suggest that norms of plagiarism still apply. This creator is not attempting to pass off the song as his own, but instead to build upon it to create something different and hopefully entertaining.
These examples, all of which take songs and use them in home-produced (or potentially commercial) videos, are more egregious violations of copyright than Lenz’s dancing baby. Thus, they are targets for removal. However, it is not at all clear how these videos harm the music’s copyright owner. The copyright owners cannot maximize all possible uses of their products, and balanced public policy should not allow cultural products to be so rigidly owned in the first place. Instead, the cultural flows identified here suggest the ways in which creative talent is inspired and remade by interaction with the work of others. These examples enrich our cultural lives with humor, innovation, and the ability to see the proud self-expression of our fellow human beings.
One final example of music and cultural transformations takes us into the world of parkour, a “user-generated” urban movement. Parkour (according to yet another user-generated platform, Wikipedia) involves kids living primarily in urban environments executing physically demanding and acrobatic movements.96 The word comes from the French term for an obstacle course—parcours du combatant.97 For those who practice parkour, the urban environment is the obstacle course.98 The founders considered it to be a physical art and it is similar in skill and practice to free running.99
YouTube is host to many parkour videos, including one set to a soundtrack appropriating music from, among others, The Matrix, and The Chrystal Method.100 This video is 8 minutes and 24 seconds of an amazing demonstration of physical agility and grace performed by an unnamed Russian youth that has been viewed almost 1 million times.101 This video poses copyright problems on a national and international scale, given that the original producer is in Russia.
The copyright violation in the YouTube video should be understood in the context of the cultural appropriation of parkour itself. The introductory scene to the James Bond movie Casino Royale involves a chase through a Madagascar construction site.102 Conveniently, this video is also available on YouTube in high definition.103 In the movie, Sébastien Foucan, an actor and co-founder of free running, uses parkour to try to escape from James Bond.104 Foucan and David Belle, while credited with creating parkour, are not the originators either.105 Instead, the roots of this youth movement come from pre—World War I visits by Europeans to Africa, thus adding yet another layer of cultural appropriation onto this complex phenomenon.106
Where cultural appropriation begins and ends is difficult to say, but copyright provides a brighter line. The Russian video is an unauthorized use of the music and can be taken down as a result. The culture industry, however, can take parkour created as a form of individual self-expression and use it for its own purposes, an act that constitutes a cultural appropriation with no legal consequences.
Commercial culture almost destroyed parkour before it could develop as part of urban youth culture. As Matt Mason notes, “it was a real movement, but it was turned into a corporate circus almost instantly.”107 Once something becomes a commercial entity where even Madonna and James Bond are doing it, “it is difficult for a movement to gain grassroots appeal.”108 For Mason, who traces virtually all cultural innovation from the grassroots to commercial culture, youth culture is forced to go even further to the edge in search of something authentic.109 As he puts it, “New youth cultures can’t be as safe as those of days gone by, because if they stay within socially acceptable limits, marketers pounce, and before long they are just another branded spectacle.”110 The Casino Royale scene highlights that those responsible for the film can pull from cultural phenomena to produce a commercial product, but once commodified in the form of a film, it is a one-way street as far as the culture industry is concerned.
Another way in which people use YouTube is to post videos that take place in cultural worlds created by the culture industry. Because characters and fictional worlds belong to their creators, any unauthorized transformations can be stifled to protect intellectual property rights of the author.111 One Harry Potter fan included a bold-lettered claim, “Fan-made video, not for profit no infringement intended,”112 to her adaptation of the scenes from Harry Potter dubbed to the trailer for the movie Pride and Prejudice. While this particular fan has produced a number of different fan videos, her declaration of intent will not be sufficient to save her from a legal dispute if one were to be forthcoming. The Harry Potter universe has not been friendly to its fans, with cease and desist letters being a popular method of controlling the brand.113 As mentioned in the introduction to this book, J.K. Rowling recently won a copyright suit against the man who tried to publish a commercial version of his fan-based Harry Potter lexicon, the online version of which Rowling had admittedly used herself while writing the final books in the series.114
Star Wars has also created a fictional universe populated by fans and derivative works. Many are familiar with the Chad Vader videos, the first of which has been viewed over 7 million times.115 Another Star Wars derivative parodies Cops using Imperial Stormtroopers.116 This clip has been viewed over 1.5 million times and includes scenes taken from the Star Wars movies interspersed with acting and action scenes by amateur actors.117 Yet another video combines Star Wars Lego figures with a voiceover of comic Eddie Izzard doing a standup routine about Darth Vader going to the Canteen on the Death Star, viewed over 20 million times.118
Star Wars works hard to maintain the purity of its brand and employs Leland Chee full time to maintain the integrity of the Star Wars universe.119 All products associated with the Star Wars brand have been licensed since the late 1970s, when George Lucas recognized the possibilities of a branded universe.120 However, in a press release following the successful lawsuit of a British man accused of producing unauthorized Imperial Stormtrooper outfits, Lucasfilm sought to assure fans that, while the company will protect their brand against unauthorized commercial actions, they seek to retain a space that allows for imagination and flexibility by fans:
[M]any Star Wars fans around the world produce replicas of Star Wars costumes for their own personal use and enjoyment, an activity to which Lucasfilm Ltd. has no objection. One such group, the “501st Legion” of stormtroopers, is a global organization that has often worked with Lucasfilm and its partners. “We appreciate that Star Wars has sparked the imaginations of fans around the world,” he said. “We would never want to discourage fans from showcasing their enthusiasm for the movies. However, anyone who tries to profit from using our copyrights and trademarks without authorization crosses the line; they become an infringer and we will go after them.”121
Other fan bases and transformative works have not been so lucky.122
Such a declaration by Lucasfilm, while helpful, is not sufficient.123 First, the line between commercial uses and non-commercial uses is not clear-cut. Second, Lucasfilm can change their minds at any time and, given the expansive ownership over characters in the Star Wars universe, could decide that mashups using Star Wars characters that don’t fit within the acknowledged lexicon will be banned. Even if Lucasfilms is generally supportive of their fan-made works, fan uses in general raise fair use claims, but are dealt with on a case-by-case basis, making the territory for creativity very unclear.124 However, now notoriously copyright-maximalist Disney has purchased Lucasfilm, the state of the fan world is even more seriously in question.125 The Lego skit offers further complexities. Not only is it based upon the Star Wars universe, but also reproduces a televised standup routine by Eddie Izzard, which means copyrights exist in the televised version of the comedy routine and, if written down, in the text of the stand-up routine itself126 This transformative work might be in danger of being taken down not only because it plays with the Star Wars universe in a way that the Star Wars franchise might disapprove of, but also because it appropriates the televised broadcast of the routine of a well-known comic. While a fair use argument could be made, and the Lego version could be read as a parody of the comedy and of Star Wars, the work exists in an unprotected zone and remains in danger of being eliminated.