The Artist and Viewer as Contemporary DJ:

And How the Boundaries have Blurred

Miles Joseph BA Film & Video Option A 2010 Tutor : George Maclennan

Abstract
Miles Joseph BA Film & Video, 2010

The Artist and Viewer as Contemporary DJ:

And How the Boundaries have Blurred The endless advance of technology over the last twenty to thirty years has shaken up the old jurisprudence. The tools of production and distribution for audiovisual material have gone through a revolution and are now open to wider market than just artists and professionals. Where theorists may argue the contemporary artist may be seen as a DJ due to shared techniques, this paper sets out to expand upon this notion by setting out whether the viewer themselves may now also be seen to be assuming the style and technique of a DJ. By looking at Cassetteboy vs The Bloody Apprentice and Thundercats Movie Trailer (fan made) I aim to compare work made up of techniques can be seen as a descendant from the artistic avant garde of William S. Burroughs et al, with work created by someone who would traditionally have occupied the role of viewer. I do not imagine that an argument can be made in definite terms that all viewers and users either are or are not in effect artists or DJs. What I intend to show is an example of how these definitions and traditional boundaries are blurring. I will do this by comparing and contrasting an example of an artist made video with a viewers user generated video.

Contents
Table of Illustrations Introduction Chapter One Chapter Two Chapter Three Appendices Bibliography Page 1 Page 4 Page 7 Page 14 Page 23 Page 43

Appendices
Appendix A - Origin and Theory of the Tape Cut-Ups Appendix B - Code of Best Practices in Fair Use for Online Video Appendix C - Thundercats Movie Information Page page 42 Page 28 Page 26

Table of Illustrations
Figure 1. Cassetteboy vs Nick Griffin, Cassetteboy. Online video (2009) http://www.youtube.com/results?search_query=cassetteboy+vs+ni ck+griffin&search_type=&aq=2&oq=cassetteboy Figure 2. Cassetteboy vs Nick Griffin, Cassetteboy. Online video (2009) http://www.youtube.com/results?search_query=cassetteboy+vs+ni ck+griffin&search_type=&aq=2&oq=cassetteboy Figure 3. Thundercats Movie trailer (fan made), Wormy T. Online video (2008) http://www.youtube.com/watch?v=fb50GMmY5nk

 Appropriation is indeed the first stage of postproduction: the issue is no longer to fabricate an object, but to choose one among those that exist and to use or modify these towards a specific intention Nicolas Bourriaud. Feel free to reproduce this work in its entirety. For excerpts and quotations, depend upon fair use - Code of Best Practice in Fair use

Introduction
The doctrine of fair use is in essence a set of principles with foundations in law that explores the use of copyright materials where the copyright holder has granted no permission. Much academic work has been conducted around this subject, most notably from within the United States. Throughout this paper I will explore the connection between fair use and the proliferation of computer technology, how this relationship has brought the fair use debate into focus, and how all this has lead to a blurring of the boundaries between the viewer/ user and the artist. I am investigating this area as the subject correlates closely with my own sound/ image practice, which often explores the remediation of existing materials in order to formulate the new. Also my longstanding interest in the principles of sampling as exemplified by early legal and moral debates surrounding the reformatting of copyrighted materials in audio arts such as plunderphonics and sampled music such as hip-hop.

The School of Social Media at America University, chaired by Patricia Aufderheide and Peter Jaszi, has conducted much of the academic work. Their work has culminated in the publication of the Code of Best Practices in Fair Use for Online Video that aims to outline both the circumstances and criteria whereby fair use may be cited in law to justify the use of such materials without the express permission of the rights holder. This will provide the backdrop for much of my discussion in regard to online video content and the principles of fair use. From a theoretical context I will be looking at Nicolas Bourriaud's Postproduction and asking if the ideas contained within can be updated to incorporate the recent repositioning of the viewer. The area of fair use as well as the role of both the author and the viewer are all individually broad and expansive topics, that put together could easily absorb many more pages of text than those that are available to me here, for this reason there are areas of interest and pertinence that I have chosen not to pursue here. Debates around news medias use of unlicensed copyright materials and aggregation of news material online, though of great interest to me (and indeed to Rupert Murdoch) are just too broad and wide ranging to discuss here, as is the use of such materials within documentary film. I also believe the neo-Marxist theoretical context of Nicolas Bourriaud provide ample scope for discussion here, though it can surely be argued that this study could be expanded to include further Marxist ideas such as commodification and fetishisation, which could further add to this analysis given both the time and space to explore these ideas.

During the first chapter I will set out to define and begin to analyse some of the important terms and ideas contained within this paper, Appropriation, fair use and the contemporary DJ are all established here as points of reference. In the second chapter will compare and contrast the cut ups technique of William S. Burroughs and Bryan Gysin with those of a latter day stylistic descendent Cassetteboy (duo Mark Bolton and Steve Warlin). With this as a starting point I will then look at how Cassetteboy vs. The Bloody Apprentice use of copyrighted material could be viewed in terms of the fair use doctrine, and Bourriauds theory of the artist as a DJ. Chapter three shifts away from fair use and looks at technological advancements that have contributed to a skewing of the traditional role of the viewer / user. Taking Wormy Ts Thundercats Movie Trailer (fan made) as an example I set out here to show just how someone traditionally assuming the role of the viewer can utilise these technologies to make video films that stand up against the work of artists. This is explored further by comparing and contrasting this work to that of Cassetteboy, predominantly by studying both the critique and the techniques of both films. Finally I set out to conclude that the boundaries between artist and viewer have been blurred, and will continue to be blurred further.

Chapter One
The history of appropriation is long and varied covering a range of disciplines, from the Dadaist use of ready-mades, to news medias practice of using copyrighted materials for illustrative purposes during news film. Artists themselves have always reused, reappropriated and remediated existing materials, though it is recent technological developments that have effectively repositioned not only the artist, but also the viewer. Fair use is a term that has become synonymous with discussions around acceptable use of copyrighted material. Though these debates have heightened since the mid-nineties due to the proliferation of the Internet, the doctrine of fair use has in fact existed as a doctrine within U.S. law since it was incorporated into the Copyright Act of 1976, and also has prior history in U.K. law under the notion of fair abridgement. The debate around this subject is centred on defining the principles and limitations whereby copyrighted materials may or may not be used without requesting or acquiring permission from the rights holder. Though there are many areas within the debate, including fair use in education, news broadcasting and online news aggregation, it is in the area of fair use of appropriated material in online video which much of the recent debate has centred around, especially since the emergence of broadband internet and video hosting sites such as You Tube.

Prior to this Internet revolution issues of ownership have long been discussed in literary terms, indeed Shakespeare was not shy of appropriating and adapting stories he acquired from others. Foucault stated, it was the moment when a system of ownership and strict copyright rules were established (toward the end of the eighteenth and beginning of the nineteenth century) that the transgressive properties always intrinsic to the act of writing became the forceful imperative of literature (in Bouchard and Simon 1977:125). But technology has brought radical change, Contemporary art tends to abolish the ownership of forms, or in any case to shake up the old jurisprudence. Are we heading towards a culture that would do away with copyright in favor of a policy allowing free access to works, a sort of blueprint for a communism of forms? (Nicolas Bourriaud 2002:35). This previously slow burning change of opinion on the use of copyrighted material has suddenly gathered so much pace and has now moved so far, so quickly in the last ten years that the very principles of intellectual property, copyright and ownership are being questioned. And not only by the work of artists, but also by works put forward by those whose traditional role would have been that of the viewer and consumer. This is a real shift, for it is not just opinions that have changed but also the people themselves who are appropriating and reformatting this copyright material in short the viewer has got involved, the viewer is appropriating. In Postproduction Nicolas Bourriaud argued that the artists role (and presumably now in many cases the viewer) could be equated

to that of a DJ. This is not in the sense of the traditional DJ who simply plays one record after the other, but the contemporary DJ whose trajectory began in the early seventies with the pioneering Kool DJ Herc and has continued to develop and expand through the DJ, sampler, programmer and producer right up to the present via many different musical genres, mostly electronic. Though new DJ skills are developed and introduced continuously even to this day, the most intriguing definition of the staple techniques refers to practices that predates the contemporary DJ, and that is a description of the cut up works of William S Burroughs and Bryan Gysin in the 1950s and 60s. If you substitute the references to tape, tape recorders and tape heads for vinyl records, record decks and stylus (or indeed for mp3s, laptops and software) in the following statement made in 1976 it can be seen as a prediction and a description of the contemporary DJ as we now know it, Well we went on to exploit the potentials of the tape recorder, cut up, slow down, speed up, run backwards, inch the tape (that means err, work it back and forth across the tape head), play several tracks at once, err, cut back and forth between two recorders. (See appendix A) The references to inching and cutting back and forth accurately predict scratching and break beat/ beat juggling, this is all the more stark as it refers to experiments conducted over a decade before DJ Herc is credited with inventing the modern DJ. Maybe this is an example of Burroughs belief that cut ups are somehow linked to the future, or more likely it could be argued that Burroughs and Gysin are just as pioneering, if not more so than Kool DJ Herc and those who followed in his footsteps.

Chapter Two
In reference to cut ups, William S Burroughs stated, Now these experiments started not on tape recorders, but on paper. In 1959 Bryan Gysin stated, Writing is fifty years behind painting and applied the montage technique to words on a page (see Appendix A). Though looking at this today in reference to the work of Cassetteboy you could now replace the word tape recorders with that of computers, and note that however much technology marches relentlessly forward often the technique remains the same, though older processes may have been replaced with computer algorhythms. It is still the montage technique that is at the heart of video works such as Cassetteboy's Cassetteboy Vs. The Bloody Apprentice whereby footage taken directly from the BBCs The Apprentice has been cut up and reorganised in order to create an abstracted meaning not originally present. What has changed though is the availability of the technique, with computers in most households being powerful enough, and with the software being both readily available and affordable these techniques are now at the fingertips of the general public at large. Guy Debord wrote in 1956 Any elements, no matter where they are taken from, can serve in making new combinations. Anything can be used. One can also alter the meaning of these fragments in any appropriate way (Knabb 1981:9). Like fridge magnet poetry, the words and phrases are cut up and placed together, either by random or by construction, utilising paper, tape or computer as both its material and its form. This is the similarity

in technique between Burroughs, Gysin and Cassetteboy. This is the montage technique used in a wide variety of painting, literary, audio and video works, Cassetteboy's Cassetteboy Vs. The Bloody Apprentice is just one recent illustrative example of this technique in practice . Links can be clearly seen between Burroughs and Cassetteboy, via plunderphonics, Chris Morris and many others. All are in some way manipulating and exploiting existing audio material; even Cassetteboy's name appears to be an obvious reference to Burroughs style of cut-up. But it is not the similarities between the two artists that stand out most prominently, but the difference in methodologies. William S. Burroughs felt that the random approach was central to the work, though in typically contradictory fashion he confuses the issue by questioning the very notion of randomness itself Now how random is random? We know so much that we dont consciously know that we know, that perhaps the cut in was not random, the operator on some level knew just where he was cutting in (William S. Burroughs, Ups, Break Through In Grey Room) And this is just where Cassetteboys work differs from taking the random, though possibly sub-consciously driven approach of cut ins from Burroughs and Gysin, and instead utilising a process whereby every cut, every edit is a purposeful and concise incision that helps reformulate the words into an alternative narrative structure. It is this very point, the intended creation of linear narrative, this specific conscious intention that opposes the very idea of a random non-linear structure proposed by Burroughs and

Gysin. This constructed media serves to allow the work to be viewed as a critique of the original material, this also provides the basis on which to argue fair use of copyright materials without prior permission, citing the principles laid out within the Code of Best Practices in Fair Use for Online Video.

BEST PRACTICES
ONE: COMMENTING ON OR CRITIQUING OF COPYRIGHTED MATERIAL Video makers often take as their raw material an example of popular culture, which they comment on in some wayThey may comment or criticize indirectly (by way of parody, for example), as well as directlyVideo makers have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny. Comment and critique are at the very core of the fair use doctrine as a safeguard for freedom of expression. (See Appendix B) The limitation stated to this principle centers around the role of the viewer and their relation to the film, should the use of existing materials become so extensive that it ceases to be critique and instead can be viewed as a replacement of the original material then there is no claim for fair use available under this doctrine. With an online video such as Cassetteboy vs The Bloody Apprentice the code of best practice above outlines an argument for The Apprentice to be seen as an example of popular culture and therefore open to comment and critique, in this case by way of parody. The principle that the artist/ creator should have the right to use as much of the original work as they need to in order to put

it under some kind of scrutiny would likewise be used to argue that the quantity used in the Cassetteboy video is vindicated here. Finally there would seem to be little purchase in any argument that might put forward the notion of the Cassetteboy film being watched as an alternative to The Apprentice. It is what it is, a comment or critique of a popular media artifact. This code of best practice also argues that fair use is about reasoning and logic, its not just about following the rules, it also encourages good manners and good practice for example the user of copyrighted materials could formally request permission even if they conclude that the use falls under the fair use doctrine, and thanks should also be provided even where permission has not been granted. Cassetteboy has carefully played this game, by not only acknowledging the BBC as provider of his raw material, they have gone a stage further by actively supporting the BBC charitable event Children in Need within the You Tube videos as can be seen in the illustrations below taken from his Cassetteboy vs Nick Griffin video. This kind of action can foster goodwill and may prevent legal action being taken by the copyright holder.

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Figure 1. Cassetteboy vs Nick Griffin, Cassetteboy. Online video (2009)

Figure 2. Cassetteboy vs Nick Griffin, Cassetteboy. Online video (2009)

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Whereas the Code of Best Practices in Fair Use for Online Video argues the right to cite conceptual reasons for the production of new material using copyrighted material, a critical theorist such as Nicolas Bourriaud is far more interested in the techniques, ignoring the whys, the rights and the wrongs (both legal and moral), and instead concentrating on the hows - the technique themselves, and their relationship to wider audio culture. Throughout the eighties, the democratization of computers and the appearance of sampling allowed for the emergence of a new cultural configuration whose emblematic figures are the programmer and the DJ (Bourriaud 2002:35). Bourriaud also notes that One can recognize a DJs style in the logic that organizes the link between the samples he or she plays (Bourriaud 2002:38) and one can clearly see this organisation of links between the samples in Cassetteboy vs The Apprentice in this case being used to create a vocal narrative in much the same way a DJ may create a musical narrative or journey over an extended period of time. Bourriaud also argues that Any DJ today bases his or her work on principles inherited from the history of the avant-garde: dtournement, reciprocal or assisted ready-mades, the dematerialization of activities, and so on (Bourriaud 2002:37). So the relentless march of technology in the form of computer hardware, creative software and the distribution channels of the Internet as well as the artists style and technique, has seen the

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artist move towards a position not dissimilar to that of the contemporary DJ. The DJ in turn can be seen as a direct descendant of the artistic avant-garde, a case of the relationship between the artist and the DJ moving full circle, this also identifies the complex and inextricable links between the artist and the DJ. But what some of these statements also alludes to, is the process of democratisation that has opened this debate up further and allowed the lines between the artist and the viewer to be blurred like never before, leading to the question where does the viewer begin and the artist end, or are they becoming increasingly difficult to separate? This is the question I will address in the following chapter

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Chapter Three
In our daily lives, the gap that separates production and consumption narrows every day. We can produce a musical work without being able to play a single note of music by making use of existing records. (Bourriaud 2002:39) And the same statement can be made in regard to individual producing films without being able to operate cameras or lighting. But how did we get here, and when did this gap between production and consumption start to shrink? Of course you could go back to the introduction of consumer orientated cine camera formats, but for me during my lifetime I would trace it back to the expansion of television, when over the last thirty years the choice has moved from three channels to literally hundreds with the proliferation of cable, satellite and free view. The idea of devoting concentration to one single broadcast at a time has been superseded for many with the notion of channel surfing, the viewer flicking from one morsel of TV to the next sometimes dwelling for minutes at a time, sometimes for mere seconds. Bourriaud also makes the point Using a remote control is also productionwith your finger on a button you construct a program (Bourriaud 2002:39). This is however the rawest example of the user getting involved, using existing materials, and technology has marched endlessly forward in all walks of life particularly over the last decade the television remote control was just the start of it.

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With a typical spec home computer easily capable of running sound, video and image production software which is cheaply and readily available, it is now the case that almost anyone with access to such computers can set about manipulating photographic images, creating music and editing video, basic versions of much of this software even come pre-installed. This hardware and software makes commonly available the audio cutting techniques of William S. Burroughs and Bryan Gysin, as well as the video cutting style of Cassetteboy. The specialist techniques of the avant garde have as so often before, moved into the mainstream, but at the same time with the involvement of computers the process itself becomes easier to achieve in short the technique becomes more widely available at the same time as becoming easier to achieve. But this is only part of what is driving this narrowing of the space between artist and viewer. Having the means of production available to the masses is one thing, but the real game changer has been combining this with key developments in regard to the Internet services and the high-speed broadband that delivers them. With developments such as video hosting (e.g. You Tube, Daily Motion) and social media (e.g. Facebook, Twitter) being backed up by readily available high-speed internet connections it has now become possible to view and post videos online and to generate interest amongst peer networks. And as things stand, virtually all of these Internet services are provided free of charge.

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In the short space of time between Bourriaud highlighting the links between the artist and the DJ in 2002 and the developments in technology, the democratisation of both the means of production and distribution for audiovisual works, has reinforced the similarities between artist and DJ whilst also simultaneously blurring the boundaries between artist and consumer. The notion of the artist as DJ has developed a stage further, where the viewer should they so wish, can also assume the role of the DJ. Now that person who traditionally occupied the role of passive viewer is able to not only create his or her own digital content but to also distribute it using sites such as You Tube and promote it utilising social media sites such as Facebook. An example of what can be achieved can be seen in the fan made trailer for a non-existent Thundercats movie, made entirely from appropriated material taken from existing Hollywood films, clips of actors are collated, and each given the role of a character from the Thundercats universe. The film has been made almost entirely by one person, Wormy T (with the exception being the 3D graphics logo) using two software applications that are commonly available, Adobe Photoshop and Premiere. A major element of this work relies on the technique of rotoscoping whereby painting on top of it enhances each frame of film. Again this is a technique that has its roots in avant-garde artists film but has found its way into the mainstream a recent and more technically advanced version of this can be seen in films such as Beowulf.

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With the Thundercats Movie trailer the rotoscoping work was carried out digitally where video frames where enhanced by drawing in Photoshop. It is this that gives the actors the look and skin colour, all the make up in this film has been meticulously digitally enhanced frame by frame, thats 25 frames for every second.

Figure 3. Thundercats Movie trailer (fan made), Wormy T. Online video (2008) The clips are then edited together, and for all the technical brilliance that can be seen in the rotoscoping of these images, it is in fact the selection of the original images and the montage of

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created by the ordering of these images that really brings this film to life. For as well as being a technical exercise this is also a very sharp critique of the Hollywood movie system, and in particular its generic clichd structure for presenting film trailers (one could even say the films) with all elements formed from different films brought together in a cut and paste style that ultimately bears a high resemblance to a genuine movie trailer. So again we return to these key points of critique and technique (in this case rotoscoping and montage editing). As with Cassetteboy vs. The Bloody Apprentice the same arguments of cultural critique and use of the material not being so extensive so as to be seen as a replacement can be cited to justify the appropriated fair use of copy righted material in Wormy Ts film. This can be seen as a video maker using the raw material of popular culture artifacts in order to comment or criticise. The critique may be subtler here than with Cassetteboy, but what the film maker shows is that you can edit a number of disparate clips together from generic action movies and with a little bit of technical know how and patience, create a trailer that looks like a cohesive whole. Thats not just a critique or comment on the Hollywood system and the generic nature of the regurgitated content it sells the viewer, its much more than that, its the viewer fighting back, its the viewer playing Hollywood at its own game. These traits of critique and comment unite Thundercats Movie Trailer (Fan Made) and Cassetteboy vs. The Bloody Apprentice, though there are also clear differences between these works.

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Wormy T uses both a broader palette and a broader brush in comparison to Cassetteboys targeted attack on an individual example of pop culture. By selecting clips from a selection of unconnected films such as Masters of The Universe, Indiana Jones and the Last Crusade, and Chronicles of Riddick (see Appendix C for full list of sources) Wormy T has taken a wider range of source material than Cassetteboys one television programme, though this is appropriate as the critique appears to be aimed at a wider system that propagates pop culture. Through these differences similarities again shine, both films turn the original source material back on itself in order to comment or critique, and both do this using the montage technique. But while Cassetteboy uses the cut up words of the participants in a TV show to a form an abstracted version as a form of critique, Wormy T uses disparate elements of movies to form a mirror image of cut up elements to create a generic form. Each is equally worthy nonetheless, yet there is further element to Wormy Ts work, and that is the rotoscoping techniques, aesthetically this is the more impressive and technically advanced. I would argue to call one an artist you must surely call them both. The techniques though used on different targets, and to different ends ultimately are the same methods, yet you could argue that that Wormy T takes this a stage further technically with the intricate rotoscoping to superb effect. Both certainly take on the traits of the contemporary DJ, chopping between materials and combining existing elements to create a collage or montage. The key difference here is that Cassetteboy is in the cultural market place, positioning himself as a marketeer by releasing material for

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sale. Of course we have to ask how typical an example Wormy T is? But this film was chosen because it was made by someone outside of the industry, and indeed outside of the cultural market place, and for that reason I believe it makes a good counterpoint to the other work I have discussed here. I hope to have shown, by looking at these texts, within these two films that the twin notions of critique and technique are inextricably linked. Also that both Cassetteboy and Wormy T display techniques and traits familiar to the contemporary DJ, and as a natural conclusion in Bourriauds terms both the viewer and the artists can be seen as the DJ. The viewer or the user has so much power at his fingertips now, and the opportunity like never before to disseminate his work, these are exciting times and the borders between the artist and the viewer are undoubtedly blurred. Many viewers now have the opportunity and tools to become artists themselves should they so wish, and with a little spark of creativity many are doing so. Of course there are examples whereby users harness appropriation techniques and the Internet in creative ways, which in no why equate to any notion of the contemporary DJ. The phenomenon of fan fiction for example, where so called fanboys creating literary (and often pornographic) works of fiction using the characters and universes of popular film franchises such as Harry Potter and Lord of the Rings. These fanboys may not share the traits of a DJ, but their works are a culturally straightforward example of the eroding of differences between cultural producers

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and cultural consumers, and once again the Internet is the means of dissemination Bourriaud refers to collective equipment that everyone is in a position to use, not in order to be subjected to their authority, but as tools to probe the contemporary world (Bourriaud 2002:9). Here, as elsewhere Bourriaud hints and alludes to the notion of the viewer as a kind of DJ, but ultimately his work in Postproduction was intended to identify the contemporary artist with the contemporary DJ. But in the eight years or so since its publication the boundaries between artist/creator and the viewer/user have continued to blur. The means of production were increasingly available in 2002 but the arrival of web 2.0 developments such as You Tube and Facebook has provided the means of distribution and promotion, this has seen what Bourriaud hinted at becoming a firmer reality. And this begs a further question, for as hardware, software and the internet advance at an ever increasing speed it is difficult to see how any theorist looking at this area and publishing in traditional print media can remain constantly up to date and relevant without constantly updating their work, of course the internet allows this. Perhaps this is the true reason the Internet was invented, so that cultural theorists can remain relevant. The question that remains is to what extent are we at the end of an era that privileges both the notion of copyright and the artist creator. The answer will only be revealed in time, but undoubtedly a tipping point has been reached that will ultimately lead to the balance being redressed. Im sure the copyright holders will

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attempt to muster a fight back, but it may just be that we have gone to far, too quickly down that road already.

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Appendices

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William S. Burroughs - Origin and Theory of the Tape Cut-Ups (transcript) Now these experiments started not on tape recorders, but on paper. In 1959 Bryan Gysin said that writing is fifty years behind painting, and applied the montage technique to words on a page, and this technique had already been used in painting at that time for fifty years, was in fact kind of old hat in painting. Bryan copied out phrases from newspapers and magazines then took his scissors and cut these selections into pieces and rearranged the fragments at random. And theses cut up experiments appeared in Minutes To Go in 1959. Err, when you experiment with cut ups over a period of time, you find that some of the cut ups and rearranged texts seem to refer to future events. I cut up an article on, err, written by John Paul Getty, and god its a bad thing to sue your own father, this was a rearrangement and wasnt in the original text. And a year later one of his sons did sue him, I mean its just purely extraneous information, it meant nothing to me, I had nothing to gain on either side. Err we had no explanation for this at the time it just err, suggesting that perhaps when you cut in to the present the future leaks out. But we simply accepted it and continued the experiments. The next step was cut ups on the tape recorder, and Bryan was the first to take this obvious step. Now the first tape recorder cut ups where a simple extension of cut ups on paper, err, you recall theres many ways of doing this but heres one way. You record say ten minutes on the recorder, then you spin the reel backwards or forwards, just like that, without recording, stop at random and cut in a phrase. Now of course where you cut in that phrase youve wiped out whatevers there and you have a new juxtaposition. Now how random is random, we know so much that we dont consciously know that we know that perhaps the cut in was not random. The operator on some level knew just where he was cutting in, as you know on some level exactly where you were and what you were doing ten years ago at this particular time. But, y, err, you couldnt, err, most of you couldnt, there are a few freaks who can, err, make that, err knowledge consciously available. And the same way, while your, err, doing the tape on some level you

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know just exactly where your words are. Um, so cut ups put you in touch with what you know, and do not know that you know. Now of course this procedure on the tape recorder produces new words by altered juxtaposition, just as new words are produced by cut ups on paper. Well we went on to exploit the potentials of the tape recorder, cut up, slow down, speed up, run backwards, inch the tape (that means err, work it back and forth across the tape head), play several tracks at once, err, cut back and forth between two recorders. Now here are some tapes that Bryan recorded with all the technical facilities of the BBC in London, and they show I think what can be done with the human voice and one phrase.
Transcript of Origin And Theory Of The Tape Cut-Ups by William S. Burroughs, as appears on Breakthrough In Grey Room, Sub Rosa Records, originally recorded from a lecture at the Jack Kerouac School of Disembodied Poetics at Naropa Institute, April 20, 1976.

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June 2008

Code of Best Practices in Fair Use for Online Video

centerforsocialmedia.org/remix
Program on Information Justice and Intellectual Property

A Future of Public Media Project, funded by the Ford Foundation

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Code of Best PraCtiCes in fair Use for online Video

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Code of Best PraCtiCes in fair Use for online Video

June 2008

INTRODUCTION
WhaT ThIs Is

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances. This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video (centerforsocialmedia.org/recut) and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses (centerforsocialmedia.org/fairuse).
WhaT ThIs IsNT

This code of best practices does not tell you the limits of fair use rights. Its not a guide to using material people give permission to use, such as works using Creative Commons licenses (creativecommons.org). Anyone can use those works the way the owners say that you can. Its not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on free use, consult the document Yes, You Can! (centerforsocialmedia.org/files/pdf/ free_use.pdf and www.copyright.cornell.edu/public_domain). Its not a guide to using material that someone wants to license but cannot trace back to an ownerthe so-called orphan works problem. However, orphan works are also eligible for fair use consideration, according to the principles detailed below.
hOW ThIs DOCUmeNT Was CReaTeD

A distinguished panel of experts, drawn from cultural scholarship, legal scholarship, and legal practice, developed this code of best practices, informed by research into
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Code of Best PraCtiCes in fair Use for online Video

current personal and nonprofessional video practices (user-generated video) and on fair use. Full identification of panelists is on the back cover of this document.

BaCKGROUND
Video is increasingly becoming a central part of our everyday landscape of communication, and it is becoming more visible as people share it on digital platforms. People make and share videos to tell stories about their personal lives, remixing home videos with popular music and images. Video remix has become a core component of political discourse, as the video George Bush Dont Like Black People and the Yes We Can parodies demonstrated. Both amateur and professional editors are creating new forms of viral popular culture, as the Dramatic Chipmunk meme and the Brokeback to the Future mashup illustrate. The circulation of these videos is an emerging part of the business landscape, as the sale of YouTube to Google demonstrated. More and more, video creation and sharing depend on the ability to use and circulate existing copyrighted work. Until now, that fact has been almost irrelevant in business and law, because broad distribution of nonprofessional video was relatively rare. Often people circulated their work within a small group of family and friends. But digital platforms make work far more public than it has ever been, and cultural habits and business models are developing. As practices spread and financial stakes are raised, the legal status of inserting copyrighted work into new work will become important for everyone. It is important for video makers, online service providers, and content providers to understand the legal rights of makers of new culture, as policies and practices evolve. Only then will efforts to fight copyright piracy in the online environment be able to make necessary space for lawful, value-added uses. Mashups, remixes, subs, and online parodies are new and refreshing online phenomena, but they partake of an ancient tradition: the recycling of old culture to make new. In spite of our romantic clichs about the anguished lone creator, the entire history of cultural production from Aeschylus through Shakespeare to Clueless has shown that all creators stand, as Isaac Newton (and so many others) put it, on the shoulders of giants.

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In fact, the cultural value of copying is so well established that it is written into the social bargain at the heart of copyright law. The bargain is this: we as a society give limited property rights to creators, to reward them for producing culture; at the same time, we give other creators the chance to use that same copyrighted material without permission or payment, in some circumstances. Without the second half of the bargain, we could all lose important new cultural work just because one person is arbitrary or greedy. Copyright law has several features that permit quotations from copyrighted works without permission or payment, under certain conditions. Fair use is the most important of these features. It has been an important part of copyright law for more than 150 years. Where it applies, fair use is a right, not a mere privilege. In fact, as the Supreme Court has pointed out, fair use keeps copyright from violating the First Amendment. As copyright protects more works for longer periods than ever before, it makes new creation harder. As a result, fair use is more important today than ever before. Copyright law does not exactly specify how to apply fair use, and that is to creators advantage. Creative needs and practices differ with the field, with technology, and with time. Rather than following a specific formula, lawyers and judges decide whether an unlicensed use of copyrighted material is fair according to a rule of reason. This means taking all the facts and circumstances into account to decide if an unlicensed use of copyright material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner. Fair use is flexible; it is not uncertain or unreliable. In fact, for any particular field of critical or creative activity, lawyers and judges consider expectations and practice in assessing what is fair within the field. In weighing the balance at the heart of fair use analysis, judges refer to four types of considerations mentioned in the law: the nature of the use, the nature of the work used, the extent of the use and its economic effect. This still leaves much room for interpretation, especially since the law is clear that these are not the only necessary considerations. In reviewing the history of fair use litigation, we find that judges return again and again to two key questions: Did the unlicensed use transform the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

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Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use? Both questions touch on, among other things, the question of whether the use will cause excessive economic harm to the copyright owner. If the answers to these two questions are yes, a court is likely to find a use fair. Because that is true, such a use is unlikely to be challenged in the first place. Another consideration underlies and influences the way in which these questions are analyzed: whether the user acted reasonably and in good faith, in light of general practice in his or her particular field. Online video makers ability to rely on fair use will be enhanced by the Code of Best Practices in Fair Use that follows. This code of best practices serves as evidence of commonly held understandingssome drawn from the experience of other creative communities (including documentary filmmakers) and supported by legal precedents, and all grounded in current practice of online video. Thus, the code helps to demonstrate the reasonableness of uses that fall within its principles. Video makers can take heart from other creator groups reliance on fair use. For instance, historians regularly quote both other historians writings and textual sources; filmmakers and visual artists reinterpret and critique existing work; scholars illustrate cultural commentary with textual, visual, and musical examples. Equally important is the example of commercial news media. Fair use is healthy and vigorous in daily broadcast television news, where references to popular films, classic TV programs, archival images, and popular songs are constant and routinely unlicensed. Unlike many traditional creator groups, nonprofessional and personal video makers often create and circulate their videos outside the marketplace. Such works, especially if they are circulated within a delimited network, do enjoy certain copyright advantages. Not only are they less likely to attract the attention of rights holders, but if noticed they are more likely to receive special consideration under the fair use doctrine. That said, our goal here is to define the widely accepted contours of fair use that apply with equal force across a range of commercial and noncommercial activities, without regard to how video maker communities markets may evolve. Thus, the principles articulated below are rooted squarely in the concept of transformativeness.
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In fact, a transformative purpose often underlies an individual creators investment of substantial time and creative energy in producing a mashup, a personal video, or other new work. Images and sounds can be building blocks for new meaning, just as quotations of written texts can be. Emerging cultural expression deserves recognition for transformative value as much as more established expression.

BesT PRaCTICes
This code of practices is organized, for ease of understanding, around common situations that come up for online video makers. These situations do not, of course, exhaust the possible applications of fair use to tomorrows media-making techniques. But first, one general comment: Inevitably, considerations of good faith come into play in fair use analysis. One way to show good faith is to provide credit or attribution, where possible, to the owners of the material being used.

ONe: COMMENTING ON OR CRITIQUING OF COPYRIGHTED MATERIAL

DesCRIPTION: Video makers often take as their raw material an example of popular

culture, which they comment on in some way. They may add unlikely subtitles. They may create a fan tribute (positive commentary) or ridicule a cultural object (negative commentary). They may comment or criticize indirectly (by way of parody, for example), as well as directly. They may solicit critique by others, who provide the commentary or add to it.
PRINCIPle: Video makers have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny. Comment and critique are at the very core of the fair use doctrine as a safeguard for freedom of expression. So long as the maker analyzes, comments on, or responds to the work itself, the means may vary. Commentary may be explicit (as might be achieved, for example, by the addition of narration) or implicit (accomplished by means of recasting or recontextualizing the original). In the case of negative commentary, the fact that the critique itself may do economic damage to the market for the quoted work (as a negative review or a scathing piece of ridicule might) is irrelevant.
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lImITaTION: The use should not be so extensive or pervasive that it ceases to function

as critique and becomes, instead, a way of satisfying the audiences taste for the thing (or the kind of thing) that is being quoted. In other words, the new use should not become a market substitute for the work (or other works like it).

TWO: USING COPYRIGHTED MATERIAL FOR ILLUSTRATION OR EXAMPLE

DesCRIPTION: Sometimes video makers quote copyrighted material (for instance, music, video, photographs, animation, text) not in order to comment upon it, but because it aptly illustrates an argument or a point. For example, clips from Hollywood films might be used to demonstrate changing American attitudes toward race; a succession of photos of the same celebrity may represent the stages in the stars career; a news clip of a politician speaking may reinforce an assertion. PRINCIPle: This sort of quotation generally should be considered fair use and is widely

recognized as such in other creative communities. For instance, writers in print media do not hesitate to use illustrative quotations of both words and images. The possibility that the quotes might entertain and engage an audience as well as illustrate a video makers argument takes nothing away from the fair use claim. Works of popular culture typically have illustrative power precisely because they are popular. This kind of use is fair when it is important to the larger purpose of the work but also subordinate to it. It is fair when video makers are not presenting the quoted material for its original purpose but to harness it for a new one. This kind of use is, thus, creating new value.
lImITaTIONs: To the extent possible and appropriate, illustrative quotations should

be drawn from a range of different sources; and each quotation (however many may be employed to create an overall pattern of illustrations) should be no longer than is necessary to achieve the intended effect. Properly attributing material, whether in the body of the text, in credits, or in associated material will often reduce the likelihood of complaints or legal action and may bolster a makers fair use claim.

ThRee: CAPTURING COPYRIGHTED MATERIAL INCIDENTALLY OR ACCIDENTALLY

DesCRIPTION: Video makers often record copyrighted sounds and images when they are

recording sequences in everyday settings. For instance, they may be filming a wedding dance where copyrighted music is playing, capturing the sight of a child learning to walk with a favorite tune playing in the background, or recording their own thoughts
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in a bedroom with copyrighted posters on the walls. Such copyrighted material is an audio-visual found object. In order to eliminate this incidentally or accidentally captured material, makers would have to avoid, alter, or falsify reality.
PRINCIPle: Fair use protects the creative choices of video makers who seek their material

in real life. Where a sound or image has been captured incidentally and without prearrangement, as part of an unstaged scene, it is permissible to use it, to a reasonable extent, as part of the final version of the video. Otherwise, one of the fundamental purposes of copyrightto encourage new creativitywould be betrayed.
lImITaTION: In order to take advantage of fair use in this context, the video maker

should be sure that the particular media content played or displayed was not requested or directed; that the material is integral to the scene or its action; that the use is not so extensive that it calls attention to itself as the primary focus of interest; and that where possible, the material used is properly attributed.

PRESERVE, OR RESCUE AN EXPERIENCE, AN EVENT, OR A CULTURAL PHENOMENON

DesCRIPTION: Repurposed copyrighted material is central to this kind of video. For instance, someone may record their favorite performance or document their own presence at a rock concert. Someone may post a controversial or notorious moment from broadcast television or a public event (a Stephen Colbert speech, a presidential address, a celebrity blooper). Someone may reproduce portions of a work that has been taken out of circulation, unjustly in their opinion. Gamers may record their performances. PRINCIPle: Video makers are using new technology to accomplish culturally positive

FOUR: REPRODUCING, REPOSTING, OR QUOTING IN ORDER TO MEMORIALIZE,

functions that are widely acceptedor even celebratedin the analog information environment. In other media and platforms, creators regularly recollect, describe, catalog, and preserve cultural expression for public memory. Written memoirs for instance are valued for the specificity and accuracy of their recollections; collectors of ephemeral material are valued for creating archives for future users. Such memorializing transforms the original in various waysperhaps by putting the original work in a different context, perhaps by putting it in juxtaposition with other such works, perhaps by preserving it. This use also does not impair the legitimate market for the original work.

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lImITaTION: Fair use reaches its limits when the entertainment content is reproduced

in amounts that are disproportionate to purposes of documentation, or in the case of archiving, when the material is readily available from authorized sources.

FIVe: COPYING, REPOSTING, AND RECIRCULATING A WORK OR PART OF A

WORK FOR PURPOSES OF LAUNCHING A DISCUSSION
DesCRIPTION: Online video contributors often copy and post a work or part of it because they love or hate it, or find it exemplary of something they love or hate, or see it as the center of an existing debate. They want to share that work or portion of a work because they have a connection to it and want to spur a discussion about it based on that connection. These works can be, among other things, cultural (Worst Music Video Ever!, a controversial comedians performance), political (a campaign appearance or ad), social or educational (a public service announcement, a presentation on a schools drug policy). PRINCIPle: Such uses are at the heart of freedom of expression and demonstrate the importance of fair use to maintain this freedom. When content that originally was offered to entertain or inform or instruct is offered up with the distinct purpose of launching an online conversation, its use has been transformed. When protected works are selectively repurposed in this way, a fundamental goal of the copyright systemto promote the republican ideal of robust social discourseis served. lImITaTIONs: The purpose of the copying and posting needs to be clear; the viewer

needs to know that the intent of the poster is to spur discussion. The mere fact that a site permits comments is not enough to indicate intent. The poster might title a work appropriately so that it encourages comment, or provide context or a spur to discussion with an initial comment on a site, or seek out a site that encourages commentary.

sIX: QUOTING IN ORDER TO RECOMBINE ELEMENTS TO MAKE A NEW WORK

THAT DEPENDS FOR ITS MEANING ON (OFTEN UNLIKELY) RELATIONSHIPS BETWEEN THE ELEMENTS

DesCRIPTION: Video makers often create new works entirely out of existing ones,

just as in the past artists have made collages and pastiches. Sometimes there is a critical purpose, sometimes a celebratory one, sometimes a humorous or other

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motive, in which new makers may easily see their uses as fair under category one. Sometimes, however, juxtaposition creates new meaning in other ways. Mashups (the combining of different materials to compose a new work), remixes (the reediting of an existing work), and music videos all use this technique of recombining existing material. Other makers achieve similar effects by adding their own new expression (subtitles, images, dialog, sound effects or animation, for example) to existing works.
PRINCIPle: This kind of activity is covered by fair use to the extent that the reuse

of copyrighted works creates new meaning by juxtaposition. Combining the speeches by two politicians and a love song, for example, as in Bush Blair Endless Love, changes the meaning of all three pieces of copyrighted material. Combining the image of an innocent prairie dog and three ominous chords from a movie soundtrack, as in Dramatic Chipmunk, creates an ironic third meaning out of the original materials. The recombinant new work has a cultural identity of its own and addresses an audience different from those for which its components were intended.
lImITaTIONs: If a work is merely reused without significant change of context or meaning, then its reuse goes beyond the limits of fair use. Similarly, where the juxtaposition is a pretext to exploit the popularity or appeal of the copyrighted work employed, or where the amount of material used is excessive, fair use should not apply. For example, fair use will not apply when a copyrighted song is used in its entirety as a sound track for a newly created video simply because the music evokes a desired mood rather than to change its meaning; when someone sings or dances to recorded popular music without comment, thus using it for its original purpose; or when newlyweds decorate or embellish a wedding video with favorite songs simply because they like those songs or think they express the emotion of the moment.

CONClUsION
These principles dont exhaust the possibilities of fair use for online video. They merely address the most common situations today. Inevitably, online video makers will find themselves in situations that are hybrids of those described above or will develop new practices. Then, they can be guided by the same basic values of

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fairness, proportionality, and reasonableness that inform this code of practices. As community practices develop and become more public, the norms that emerge from these practices will themselves provide additional information on what is fair use

COmmON FaIR Use myThs

IF Im NOT maKING aNy mONey OFF IT, ITs FaIR Use. Noncommercial use is indeed one of the considerations for fair use, but it is hard to define. If people want to share their work only with a defined closed-circle group, they are in a favorable legal position. But beyond that, in the digital online environment, wholesale copying can be unfair even if no money changes hands. So if work is going public, it is good to be able to rely on the rationale of transformativeness, which applies fully even in commercial settings. IF Im maKING aNy mONey OFF IT (OR TRyING TO), ITs NOT FaIR Use. Although

nonprofit, personal, or academic uses often have good claims to be considered fair, they are not the only ones. A new work can be commercialeven highly commercialin intent and effect and still invoke fair use. Most of the cases in which courts have found unlicensed uses of copyrighted works to be fair have involved projects designed to make money, including some that actually have.
FaIR Use CaNT Be eNTeRTaINING. A use is no less likely to qualify as a fair one

because the film in which it occurs is effective in attracting and holding an audience. If a use otherwise satisfies the principles and limitations described in this code, the fact that it is entertaining or emotionally engaging should be irrelevant.
IF I TRy TO lICeNse maTeRIal, IVe GIVeN UP my ChaNCe TO Use FaIR Use.

Everyone likes to avoid conflict and reduce uncertainty, and a maker may choose to seek permissions even in situations where they may not be required. Later, a maker still may decide to employ fair use. The fact that a license was requestedor even denieddoesnt undercut an otherwise valid fair use claim. If a rights holder denies a license unreasonably, this actually may strengthen the case for fair use.
I Really NeeD a laWyeR TO maKe The Call ON FaIR Use. Fair use is a part of the

law that belongs to everyone. A lawyer usually works for a client by reducing risk; in
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copyright law, that often means counseling purchase of rights for all uses of copyrighted material. If clients tell lawyers that they want to assert their rights (something that has a very low risk, if they understand what their rights are) then lawyers can recommend appropriate policies; but lawyers need to be told what their clients want. And finally, a special note from the lawyers among us: Be careful not to draw too much from specific past court cases. A good example of one decision that easily can be over-interpreted is the California District Court decision in L.A. Times v. Free Republic, 56 U.S.P.Q.2D (BNA) 1862 (C.D. Cal. 2000), which ruled that a rightwing electronic bulletin board that invited reader comments on mainstream media content was not fair use. This anomalous case predates a Supreme Court decision (Eldred v. Ashcroft, 537 U.S. 186, 2003) that clearly asserted the link between fair use and free speech. Furthermore, decisions like Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), dealing with infringement standards in music sampling, are widely cited for fair use principles when in fact they do not concern fair use at all. While case law is of essential importance in establishing legal norms, it is the trend in case law that determines such norms. The trend in case law about fair use has strongly been in the direction of supporting transformativeness as a core measure of fair use. This puts the judgment about fair use back squarely in the hands of the new creators and platform providers, who must look carefully at how videos repurpose copyrighted works

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Program on Information Justice and Intellectual Property

The Program on Information Justice and Intellectual Property, led by Professor Peter Jaszi, promotes social justice in law governing information dissemination and intellectual property through research, scholarship, public events, advocacy, and provision of legal and consulting services. The program is a project of the Washington College of Law at American University in Washington, D.C., led by Dean Claudio Grossman.

The Center for Social Media, led by Professor Patricia Aufderheide, showcases and analyzes media for social justice, civil society, and democracy, and the public environment that nurtures them. The center is a project of the School of Communication, led by Dean Larry Kirkman, at American University in Washington, D.C. Funded by the Ford Foundation, as part of the Center for Social Medias Future of Public Media Project. Feel free to reproduce this work in its entirety. For excerpts and quotations, depend upon fair use.

centerforsocialmedia.org/fairuse

An equal opportunity, affirmative action university. UP09-145

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Code of Best Practices Committee

Co-chairs Peter Jaszi, Professor of Law, Faculty Director of the Glushko-Samuelson Intellectual Property Clinic, Washington College of Law, American University Patricia Aufderheide, Professor, Director of the Center for Social Media, School of Communication, American University Members Michael C. Donaldson, Esq., Los Angeles Anthony Falzone, Lecturer, Executive Director, Fair Use Project, Stanford Law School Lewis Hyde, Richard L. Thomas Professor of Creative Writing, Kenyon College; Fellow, Berkman Center for Internet and Society, Harvard University Mizuko Ito, Research Scientist, School of Cinematic Arts, University of Southern California Henry Jenkins, Professor, Program Head, Comparative Media Studies, Massachusetts Institute of Technology Michael Madison, Associate Dean for Research, Associate Professor of Law, University of Pittsburgh School of Law Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information, University of California, Berkeley Rebecca Tushnet, Professor, Georgetown University Law Center, Georgetown University Jennifer Urban, Clinical Associate Professor of Law, Director of the Intellectual Property and Technology Law Clinic, University of Southern California

centerforsocialmedia.org/fairuse

Program on Information Justice and Intellectual Property

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Thundercats Movie Trailer (fan made) by WormyT December 21, 2008 Watch in HQ (High Quality) please! Thanks for watching! Thundercats live action trailer using Hollywood actors Brad Pitt, Vin Diesel and Hugh Jackman among others. All the effects were done frame by frame in Photoshop. The footage was edited in Adobe Premiere. Special thanks to XY3D.com for the producing the 3D animated Thundercats emblem. Here's the list of the actors movies and music I used to make this. Actors Lion-O: Brad Pitt, Mel Gibson. Panthro: Vin Diesel Tygra: Hugh Jackman Cheetara: Gigi Edgley WilyKat: Daryl Sabara WilyKit: Alexa Vega Jaga: Robert Eddison Mummra: Richard Cetrone Movies 10,000BC, Masters of the Universe, Indiana Jones and the Last Crusade, Lord of The Rings: Return of the King, Farscape: The Peacekeeper Wars, Chronicles of Riddick, Pitch Black, X2:X-men United, X-men:The Last Stand, Troy, Star Trek6: The undiscovered Country, Space Hunter: Adventures in the Forbidden Zone, Stargate, Mighty Morphin Power Rangers: The Movie, Garfield, Enemy Mine, Spykids, Underworld, The Mummy, The Mummy Returns, Galaxy Quest, John Carpenter's Ghosts of Mars, Planet of the Apes, Aliens, Mortal Kombat: Annihilation, Reign of Fire, Mad Max Beyond Thunderdome. Music 300 Original Motion Picture Soundtrack -Submission -The Hot Gates Blade: Music From And Inspired By The Motion Picture. -Dealing With the Roster - Junkie XL Blade Soundtrack by Mark Isham -The Bleeding Stone. Source: http://www.youtube.com/watch?v=fb50GMmY5nk

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Bibliography
Bouchard D, Simon S Bourriaud N Burroughs WS Knabb K Centre for Social Media (1977) Language, Counter-Memory, Practice New York:Cornell University Press (2002) Postproduction Sternberg New York:Lukas &

(1986) Break Through in Grey Room Belgium:Sub Rosa (1981) Situationist International Anthology Berkeley:Bureau of Public Secrets (2008) Code of Best Practice in Fair Use for Online Video

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Word Count
Total Quotes = = 4,875 519

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