We fought the Kuleshov effect and The Law won?

Danah boyd, who I met briefly at the Creative Commons party, has posted some interesting thoughts about an aspect of remix culture called "The Kuleshov effect". danah explains it thusly:

Lev Kuleshov was a Russian filmmaker. Because of the political climate of Russia, he was left without access to actual film. Instead, he constructed films by splicing film and telling his story in a collage-esque manner. In addition to his style of film, he's known for something called the Kuleshov Experiment. In this experiment, an image of a man's face is shown juxtapositioned with various other images immediately following. Viewers thought that the man's emotion changed even though it is exactly the same shot.

She then raises the following questions:

This creates an interesting dilemma for remix culture. What happens when an artist's construction is repurposed to convey something different than intended? Does an artist have control over the context in which their material is used? How might this affect how people are willing to distribute their material?

Joi Ito also has some thoughts of his own relating to the recent efforts to develop CC sampling licenses in the international context, including the thorny issue of moral rights.

Interestingly enough, American copyright and trademark law has already taken a few swings at these questions, both in the analog and digital realms:

In the analog realm, one of the more renown cases (at least for LawGeeks) is Mirage v. Albuquerque ART, 856 F.2d 1341 (9th Cir. 1988). In Mirage, the plaintiff published art books. One of these books consisted of a series of photographs of color plates by artist Patrick Nagel. Albuquerque ART, the defendant, went out and bought copies of Mirage's book and then cut out the photos from each book and mounted them on a series of tiles that it then sold. Mirage sued and won. The Court held that taking the plates and mounting them on tiles was a derivative work under the copyright laws, which is something you can't make without permission of the copyright owner.

ART tried again in Munoz v. Albuquerque A.R.T. Co., 829 F. Supp. 309 (D. Alaska 1993). There, it hired a company in Juneau, AK to buy notecards from a local artist where the artist had painted watercolor scenery on them. It then took the notecards and pasted them onto tiles and sold them. Munoz sued, cited Mirage, and won on the same theory. In that case, the court made an interesting distinction between putting art in a frame for display and creating an "unusual" context, such a displaying it on a series of tiles:

ART argues that a notecard mounted on a ceramic tile is not a "derivative work" for purposes of the copyright law because it amounts to nothing more than a display of the art work, no different than a print or painting placed in a frame.

The court cannot agree that permanently affixing a notecard to a ceramic tile is not recasting, transforming or adapting the original art work. Placing a print or painting in a frame and covering it with glass does not recast or transform the work of art. It is commonly understood that this amounts to only a method of display. Moreover, it is a relatively simple matter to remove the print or painting and display it differently if the owner chooses to do so. Neither of these things is true of the art work affixed to a ceramic tile. Moreover, tiles lend themselves to other uses such as trivets (individually) or wall coverings (collectively).

Thus, at least according to this court, the more uncommon (and provocative) the context of the remixing, the less likely it is legal. Of course, this raises the question of how new contexts can ever become legal. Presumably, at some point in history, no one framed art. Then the first person came along and put a painting in a frame. Under the theories in Mirage and Munoz, that person would have been historically guilty of copyright infringement because the context of their remix was uncommon at the time.

The Mirage and Munoz decisions have also been criticized by many commentators as wrongly decided in light of the First Sale Doctrine, which basically says that once you buy a copy of some media, you can do whatever the heck you want with that particular physical copy as long as you do not make additional "copies" that would otherwise violate the law. This is why Blockbuster can rent films without the MPAA's permission and why used bookstores exist.

One would think that under First Sale, the thing you buy is the thing you own, even if its digital. Ergo, when Kuleshov acquired his films, he could remix them anyway he wanted because he was only manipulating the one copy he owned, not making any additional ones. But Mirage and Munoz cast some doubt on that, again suggesting that if you do anything creative with something you bought, you're violating the law. Not a very good message for the artistic community. Things get even murkier online. What if I buy a GIF and then put it on my website? Is that traditional "framing"? What if I write commentary about the GIF or pair it up with other GIFs that I think share a common commentary? Have I "recast" the work into a derivative? Even if this kind of remixing and commentary (that so many of us have grown to know and love) grows common enough over time so that a court will see it more like framing a picture than recasting a work, it seems to me that the chilling effect on remix culture would still be severe for each new mod that comes along.

A second case to deal with these issues was Dastar Corp. v. Twentieth Century Fox Film Corp., __ U.S. __ (2003). In that case, Dastar had repackaged and sold a 1949 20th Century Fox television series based on Gen. Dwight D. Eisenhower's best-selling book Crusade in Europe. Because Fox had neglected to renew the series' copyright registration, it had fallen into the public domain. Dastar's package was nearly identical to the original series but with a different name and without any attribution or credit to Fox as the original producer. Knowing that it had no copyright claim, Fox sued for trademark infringement, claiming that Dastar was misleading consumers by failing to attribute it as the original producer of the series. Without proper attribution, Fox argued, the public would mistakenly think that Dastar had been responsible for making the original series instead of simply redistributing it under their own brand. The case went all the way up to the Supreme Court, where the Justices held 8-0 that once a copyrighted work enters the public domain, you can't use trademark law to rein it back in under your control. Specifically, the Court said that if you "make" a product, as in make the physical good that is the product, then you don't have to acknowledge anyone else as the origin of the product if their work is in the public domain. Because the public owns the public domain, anyone can use it and then become the "origin" of their particular version of the product or work.

So here, we have a clear ruling in favor of the Kuleshov effect, at least as far as public domain works go. It's also an interesting opinion in terms of the evolution of "authorship". When an original work is created, its author is the original creator. Then, once it passed into the public domain, the public is the author/owner. From that public commons of ownership emerges individual remixes by various new authors that do not require any context or attribution or permission toward the first original author.

Finally, in the digital context, there is Huntsman v. Soderbergh, more commonly known as the ClearPlay case. This case involves use of hardware and software to skip scenes of violence and nudity and to mute profanity when watching a DVD. Defendants, including ClearPlay, Inc., are companies that sell such hardware and software to families that want to watch films "without the filth." ClearPlay makes this possible by screening the DVDs beforehand and noting the time codes when certain violent or sexual scenes appear, or when actors swear. It then writes a script that it makes available through its website that will instruct ClearPlay devices to either fast-forward or mute the DVD while the family is watching it in order to skip the scenes or the foul dialog.

The MPAA and the Directors Guild of America both sued ClearPlay. The MPAA claimed that skipping scenes and muting dialog created a "derivative work" of the original film. The Directors Guild claimed that changing how the films were shown harmed the "brand names" of its member-directors, such as Steven Soderbergh (hence the name of the case).

The case is currently pending summary judgment in the district court, so we don't know how it will turn out. EFF filed an amicus brief in support of Clearplay pointing out that copyright cannot control how you choose to view or watch something in the privacy of your own home. Therefore, if families want to use technology to "remix" the experience of the movie for themselves without profanity, violence, or sex, copyright should not (and in fact cannot) stand in the way. To give the MPAA control over how we watch their films in the privacy of our own homes and allow them to prohibit even the most minor deviations from their normative presentation would pretty much kill any ability to remix work through context changing (and not to mention give up a large amount of the individual freedom and autonomy). Intel also filed an amicus brief pretty much saying the same thing. The case is also interesting because it potentially reaches back to two Ninth Circuit decisions involving whether videogame mods also create derivative works. See Micro star v. FormGen (collecting and distributing user-created Duke Nukem levels can be a derivative work); Galoob v. Nintendo (Galoob Game Genie does not create derivative work by allowing Nintendo game players to increase the number of lives of the player's character, increase the speed at which the character moves, and allow the character to float above obstacles).

Thus, it seems like the tension that will continue to arise re: remixing will be in the context of whether or not remixing is the kind of "derivative work" that copyright prohibits. Or to ask it another way, is there any breathing room for artists between the original work and an illegal derivative? And if so, how much?

Traditionally, derivative works have been things like movies based on best-selling books or sequels based on an original hit. In other words, an entirely new and arguably "original" work that draws extensively and necessarily from an older one. It has not traditionally encompassed minor variations on a theme, contextual changes, or commentary on the original work. For example, remixed commentary or criticism that qualifies as parody is protected and not illegal. See Naked Barbie Photo Case; 2 Live Crew. I see no reason why other forms of commentary or contextual shifting shouldn't receive the same protections, but in order to make sure this is the case, we'll need more decisions like Galoob and Dastar and fewer like Mirage and Munoz.