One of the topics the Media Commons discussed in a vodcast about the Open Video conference was the changing perception of copyright in videos. Whereas about 5-10 years ago media specialists and instructional designers (myself included) were emphasizing caution when using material for Fair Use, these days many are advocating “taking back” Fair Use.
One video that came up as a good example of using Fair Use was Buffy vs. Edward, the dream mashup in which the Slayer (Buffy Summers) meets the vampire Edward from the Twilight in high school, then decides to well…slay him, partly because she’s sick of his cliched romantic stalking. You go, girl!
Despite the fact that this video uses over 30 seconds of material from Buffy the Vampire Slayer and Twilight, this video still claims Fair Use exemption because it is “transformative.” It is refreshing to see a mashup claim this in the credits, and it makes sense to claim Fair Use. It isn’t really cutting into the profits (if anything, it might make you want to re-watch Buffy or Twilight), it’s isn’t using a huge proportion of material (in comparison to 6+ hours of Twilight footage and 7 seasons of Buffy). And it is criticism because it’s making a comment on gender roles within vampire fiction.
So is any mashup safe? Well I have to say yes and no. First, the official definition of Fair Use doesn’t really say anything originality as being a criteria. So I would not use that in factoring in my Fair Use analysis (plus you have to transform things much more than this to not raise copyright eyebrows).
What’s probably more relevant is that the mash-up is explicitly making a parody/social commentary and the right to re-purpose content for these uses has been protected in U.S. courts. That’s good news for us educators because many of our mashups assignments would be designed to do exactly that. But other mashups may be a little more ambiguous (say a simple story where the Disney version of Cinderella and Snow White throw a traditional non-feminist tea party).
And it’s the ambiguous cases that have gotten people in trouble because once the take-down notice comes, you probably have to go to court to expand the use the parameters of Fair Use. There are some brave pioneers who have done that, but an instructor would have to decide if this is part of a student video assignment or not. Fortunately the TEACH Act gives instructors additional options…as long as items are posted in the right password protected area.