July 12, 2007
The Sharecroppers of the Digital Age: Remixing and Fair Use

One message has been emphasized throughout the bulk of our work here at the Convergence Culture Consortium, and throughout some of the writing by our director, Henry Jenkins, over the past few years, that the traditional model of prohibition in the media industries is being eroded by, and in our view should give way to, a more collaborative view of copyright ownership.

This takes into account a conversation that has been very important to C3 researchers, that of fair use. In his column this morning in The Washington Post, Lawrence Lessig writes that "the remixer becomes the sharecropper of the digital age." He admits it is an over-the-top metaphor but acknowledges that it applies an old way of thinking to new technologies and new consumer practices.

He doesn't mince words, writing, "Lawyers never face an opening weekend. Like law professors, their advice lives largely protected from the market. They justify what they do in terms of "right and wrong," while everyone else has to justify their work in terms of profit. They move slowly, and deliberately. If you listen carefully, sometimes you can even hear them breathe."

He's writing in particular of Lucasfilm's decision to let people remix Star Wars footage but then retaining all rights to their creations, including the right to make profit off it with no compensation for the remixer. Instead, Lessig is trying to stake some degree of autonomy and artistic creativity granted to the process of remixing.

But this all goes back to cramming that genie back into the bottle, as I wrote about back in March. Medialink Worldwide Laurence Moskowitz, who said, "The genie has to be put back in the bottle, or the entire economics of the entertainment industry on a global basis are subject to ruinous counterfeiting."

Then, I wrote, "Definitely, identifying blatantly pirated content is an issue, but I've written about this before and will reiterate--the problem with the industry is that it's casting its net too wide, ignoring the issue of fair use completely and likening quoting with piracy."

This goes back to my concept of quoting as a cultural practice and a driving force of creativity online. In January, I wrote about this issue, including a quote form 8 Mile producer Brian Grazer that mash-ups "bothers me artistically. Here's this thing where you have no control; they are chopping it up and putting your memories in a blender."

I wrote:

A mash-up, in my mind, is one of those quoting abilities, just like showing a clip from a show to make a point. These make vibrant marketing tools, as they show enough content from your show to whet others' appetites (if the show's good, anyway), without users being able to plunk the whole show up for free. I think people very well should be upset about piracy, but quoters are not pirates.

For instance, this blog post is a mash-up of sources. I am taking some of Laura M. Holson's words, adding in some of my own, putting a link to things I've written before. The idea of a text mash-up is what drives the blogosphere, and no one seems to mind that we are taking Ms. Holson's words and putting them in our blogger blender. In fact, one would think Holson would be pleased that I'm previewing her article and driving traffic in that direction. Of course, there are some journalists concerned about the blogosphere stealing their scoops, and that's a behavior that's bad, in which articles are pulled in full from your site instead of reasonably quoted from and then driving traffic back to that site.

As a blogger, I know that I'm excited to have people quote from my posts, and not just because it drives my Technorati ranking upward when they link back but because it means my ideas are valuable to others. On the other hand, I've seen more than one of my posts on message boards, apparently now the ideas of some other author instead of me. Not quite as good of a feeling.

Why can't lawyers work toward developing a legal distinction between these two behaviors? The mash-up and the quote are the fans' expression, and I do not see why visual and audio material should have a different precedent set than text. Quote away from these textual artifacts--it should fall well within reason for fair use. The ability to quote is imperative for fostering the correct balance between fan communities and shows, and both sides must show respect to the other if they want to develop the type of relationship most poised to take advantage of our contemporary convergence culture.

Also, see our round of discussion on fair use from back in December from a variety of C3-affiliated thinkers, such as Jason Mittell, Ted Hovet, and then-GSD&M employee Joel Greenberg.

I wrote about Lucasfilm's partnership with Eyespot back in May, pointing out another concern: that making an official space for these types of activities would then be used as an extra excuse to go after any remixing activity that includes their content which takes place elsewhere. I wrote:

These types of contests raise similar questions. Even as it is empowering, on the one hand, for companies to be more willing to allow people to play in this "fair use" space, there are concerns on the other end that companies can then use these sometimes "neutered" spaces to then prosecute non-authorized user-generated content more actively.

It's too early to tell if that's the case here, and I would say that in both companies' cases, the benefits of allowing space for user-generated content would be damaged by active prosecution and prohibition of any unauthorized content if the activities are primarily meant for brand-building among the fan base.

By the way, this is a metaphor Lessig has used several times for various contexts.

Thanks to Brad Seawell for sending this piece along to me.




I think that important distinctions about what a mash-up is become blurred when you give a blog post as an example. I think that a blog post should rather be compared to an original composition inspired by earlier works, with samples thrown in. There are few examples of text mash-ups and it would be better to reserve this term for enterprises like Jonathan Lethem's text on Plagiarism in Harpers earlier this year.

Having said that, I think this is a crucial point - that ways of doing things with text do not transfer easily to other media. We know well what a text quote is - and the norms of quoting that developed around text are much more open then for "quoting" of audio or video, that is remixing or mash-uping (there might be some differences between places where you and I live, but let's ignore them here). So the question becomes, are remixes same as quotes, or not. Personally, I believe that differences between media forms are too strong to warrant simple transfers of ideas / metaphors.


Tarkowski, point well taken, and I think you are right that perhaps it is overstating the correlation a little bit to call a blog a mash-up since the creativity comes in the writing and not just the blending of various sources. But you are right that I don't want those discussions to get in the way of my larger point, which is why quoting is viewed so differently in text than in other realms.

Perhaps it is best to say that while blogs involving the mashing of various sources together, than it is not a "mash-up" in the official sense of the term?

As for your concluding point, I agree that relationships between media forms are quite different, but I think people more often overstate the differences between media forms. At least here in the states, the way that media regulation devleoped in broadcast as compared to newspapers and books greatly overstate the differences between the media forms, in that there is very little correlation between the two.

So, while I think we must always be careful never to overstate the case with a metaphor, I still find the idea of "quoting" a very useful metaphor translated into video, because I don't think quoting is a text-only concept.

When I refer to quoting, I am thinking both of proper mash-ups and the ability to reference sources. I would say that mash-ups involve quoting but are definitely a specialized example. If producers and creators don't even approve of video or audio quoting, it's no surprise their reaction is so strong against mash-ups, I guess.