December 11, 2006
Fair Use

Jason Mittell asks the C3 partners how we view Fair Use in our business models.

As an advertising agency, the copyright issue is pretty cut and dried for us: it's our client's copyrights; we follow their lead. We don't create much media on our own, with the exceptions of some books published by GSD&M LP, such as recently published The Amazing Faiths of Texas.

To be honest, there is surprisingly little discussion of copyright outside the realm of "Who owns it; how much do they want for it?" Few at the agency are interested in Lawrence Lessig's books. So, I think it's clear where a typical ad agency stands.

However, there are cracks, specifically around audience participation, because once you entertain the thought of having others incorporate your work into theirs, you have to figure out how to give them permission to do so. Where people tend to net out, though, is shy of a Creative Commons License. They tend to make the acceptable use an exception of "All Rights Reserved," which outlines specifically what other people can do with their content, as opposed to "Some Rights Reserved", which typically does not.

Why? I think primarily for three reasons: 1) defaulting to stringent copyright interpretation is easy, indeed; there's no questioning of your own assumptions involved; 2) doing so lessens your time with the lawyers, and 3) revolutionaries are not rewarded, so there's little incentive to do something different. This, despite that fact that audiences are changing.

Also, for copyright holders, the default answer of "No!" to reuse is easy. It doesn't take thought, and it doesn't take record keeping. Therefore, I think participatory culture will thrive in a parallel universe of Creative Commons licensed content.

Let me try answering one of Mittell's questions directly.

"Why would the industry want to restrict educational practices that primarily teach students how to consume and create the very products that they wish to sell?"

I think there are additional answers other than Mittell's answer of 1) copyright viewed as real property, and 2) what I call the "opening the floodgates" argument. Those may be valid arguments, but there others as well. Primarily, it's easy to say, "No." It's hard to say, "Yes". Exceptions are inefficient in an inefficient media copyright economy.

Secondarily, there are so few students that go through a media studies course, compared to the size of many of the media's audiences, that I would imagine the copyright owners do not see a benefit to the amount of time it would take them to administer "Yes". I'm not saying this is right, I'm saying these are realistic forces at work against fair use. Understanding them is important so that we can develop strategies to change them.

Still, are there any instances where a typical company allows others to repurpose their work? Yes, when talking to reporters. I find it fascinating that in a corporate culture immersed in one side of copyright, companies allow any class of people to repurpose their work. But reporters are such a class. When someone from a company talks to a reporter, they know that reporter--and not them--has control of what the audience sees. In this way, reporters are similar to participatory audiences.

This points to the fundamental difference between advertising and PR; in advertising, we control the message and the medium; in PR we control neither; but both means are typically used for similar ends. The reporter class has mores that have developed over time, which may not apply to the public at large, providing some assurances to the "content owners" that at the very least, they have a shot of being heard fairly.

I think you could argue, then, that there's precedence for allowing at least some repurposing or fair use based upon existing business practices. Also, I've noticed a gray line of press releases, publicity stills, and PR video. I've seen a number of PR shots reused on websites without those websites being hassled by the copyright owner. When asked about it, at least one website owner I talked to said, "That's why they're there. They want people like us to use them, so they get more publicity." Hmmm....sounds like the same rationale I give my clients for allowing their fans to repurpose their work.

While not a solution to the questions Mittell's outlined, maybe these thoughts could point the way to an effective argument for fair use based upon existing precedence.

(Disclaimer: These are my personal views and not necessarily those of my employer, GSD&M. Nor am I a lawyer.)




Very interesting observations, particularly regarding the role of public relations compared to the role of advertising. The very job of P.R. is to create something that will be remade. I once talked to a P.R. guy for a university who said that he often saw his work get remade, with reporters slapping their names on them, even--just for reorganizing the press release (or even running it like it is). Of course, for him, that was no problem at all--it meant the message was getting out there.

But these are opposite impulses.

And another opposite impulse that amazes me. This doesn't apply to most of the people who work in C3, but there are an alarming number of academics out there who won't talk to reporters or the like because they don't want to lose control of their words. Ironic, since that seems to go against many of the practices of academia.

Just as with brands being misrepresented, I know that academics get misquoted or taken out of context--but why is it that the answer seems to be to try and restrict rather than engage and then speak out if you've been misrepresented after the fact? Again, as you said with brand managers and content managers, it's just easier to say no.


Joel - thanks so much for the thoughtful response. I think you're right that for many (perhaps even most) people within media industries, defaulting to "No!" is simply a matter of convenience and lawyer-avoidance. The problem is that there are some players working to aggressively expand the horizons of "No!" and raise the barriers & risks for saying "Yes!"

As an advertiser, I wonder how you feel about something like YouTube. There are a ton of commercials posted there, most I assume by parties other than the copyright holders. One the one hand, it helps promote the brand, disseminating the ad to people who actively choose to watch it. On the other hand, it's placed in the context of a discussion that falls outside the control of the sponsor. Moreover, it undermines the media buying aspect of your business, allowing sponsors to disseminate their messages for free - and also generating revenue for YouTube via your content.

So any thoughts about how ad agencies & sponsors view users doing things like YouTubing your copywritten ads?


Jason -- I asked around informally to see if I could get a feel for the answer to your question, "How do our clients feel about their spots ending up on youtube?" In general, we and our clients feel that a commercial ending up on youtube is increased reach--for free. So, generally, people are liking the fact that their commercials end up on youtube because more people are seeing it (in theory). Some clients are even asking about it.

Suprisingly, copyrights aren't the main issue. What I heard in my quick, informal, hallway discussions was that people are more concerned about the Screen Actors Guild (SAG). If a commercial ends up on the web that doesn't have the rights to be shown on the web, it potentially becomes a liability. When we shoot a commercial, we negotaite the rights up front: broadcast, print, radio, etc. The web has been an issue the industry is grappling with. It's only recently the industry has begun negotiating web rights as a matter of course. In the recent past, many times those rights weren't negotiated because the industry didn't feel the price paid for the rights was worth the cost.

Moving forward, the rights issue will get taken care of by either money, or SAG coming to a conclusion on how they're going to deal with this rights issue (which they're currently studying). I think what's more important is moving our clients from a broadcast mentality to a social media mentality. In other words, just because a commercial ends up on youtube doesn't mean anyone wants to watch it. Commercials come from an industry that takes control for granted--we control the message AND when and where it's seen. The end product of that industry does not necessarily play well in a medium where the viewer is in control. The key is making something someone will want to see and share with their friends because they're motivated to do so, not because they're a captive audience. Creating something that plays well in a consumer controlled world takes guts and imagination.


Joel, I think the SAG question is an important one, and it's something people need to keep in mind when thinking about transmedia and product placement and all these issues. The fact is that video media is created by such a wealth of talents that there are several layers of people who have to change their practices to adapt to social media forms. The relationships between actors, writers, producers, advertisers, networks, measurement systems, and so on, is in such flux right now that it's hard to know how long it will take for the dust to settle.