Monday, August 24, 2009

What Movie Monsters Can Teach Us About Fair Use

Last week's edition of Ip Osgoode features an excellent blog post by Patricia Aufderheide, Professor in the School of Communication at American University in Washington, about a recent US ruling that's added some extra oomph to fair use. The ruling in question came out of the recent case of Warren Publishing Co. v. Spurlock. The details of the case are described most aptly by Rodney Perkins over at Film Esq., portions of which I've reproduced here:
"Warren Publishing...the company behind such classic horror magazines like Creepy, Eerie, and Famous Monsters of Filmland...was on the losing end of a copyright dispute involving covers from some of its magazines.

The artwork of Basil Gogos appeared on the cover of at least 50 issues of Famous Monsters of Filmland as well as covers of a few issues of Eerie and Creepy. David Spurlock and Vanguard Productions published a book entitled Famous Monster Movie Art of Basil Gogos that reproduced 24 of these covers, 10 of which were portrayed as covers, and 14 of which appeared without any Warren magazine text.

In response...Warren brought an action for copyright and trademark infringement. Spurlock successfully presented a fair use defense to the Warren's copyright. Of great significance was the court's reasoning ...[which related to] the purpose and character of the work. Here, the judge found that Spurlock's uses of the covers was transformative since the the Gogos book presented the images for an entirely different purpose than the Warren magazines"

In her post, Aufderheide goes into further detail about why the ruling is significant, particularly in terms of the judge's discussion of the importance of the transformative element. She writes:
"The judge emphasized, as have judges consistently in the last 15 years, the importance of the transformative element (without ruling out non-transformative fair uses), and therefore the related importance of the third factor of amount. He found the uses fully transformative; after all, the magazine was describing trends in monster movies, and the book was describing the career trajectory of an artist. He found the amount entirely appropriate. This use accords with previous U.S. decisions over the last 15 years, quite consistently. The transformative defense, allied with appropriate amount, appears to be in the “safe haven” area of fair use. This makes a huge difference to creators of all kinds, from mashup artists to documentary filmmakers to museum programmers."

My favourite part of the article is this extremely quotable line where Aufderheide specifies that: "when fair use is used, it becomes more useable"

What is perhaps most useful to those of us coming at this from outside of legal studies is that Aufderheide's post then shifts to describe some of the great work coming out of the American University's Center for Social Media, which has been working closely with both the AU Washington College of Law’s Program on Information Justice and Intellectual Property (in particular professor Peter Jaszi), as well as various creator and user groups, to produce a free, online repository of fair use best practices codes. Because fair use is such a broad and context-specific doctrine, they have adopted a context-responsive approach, creating a best practice code that is specific to each user/producer/prosumer group, detailing how they can apply the logic of fair use to specific situations. Here are some of the examples that Aufderheide describes in her post:
For instance, documentary filmmakers often capture copyrighted material incidentally in their work; their code helps them evaluate when fair use applies to the moment when the family bursts into a round of the (copyrighted) song “Happy Birthday.” Media literacy teachers often bring current advertisements into the classroom, and they also want to develop a database of such ads to draw upon over time; their code helps them apply fair use to that situation. Online video makers often combine music, photography and video to make a tribute to the Jonas Brothers or to recut “Star Trek” episodes into a gay fantasy or to make a political critique of a presidential speech. Their code helps them understand the logic of fair use governing their choices to make new work composed-often entirely-of existing work."

To date, the impact of these 'best practices' codes has been extremely positive and promising to say the least. You can check out the Center for Social Media website for a full chronicle of their successes, which include the transformation of the documentary filmmakers' code into a tool for insurers to accept fair use claims, and examples of school boards adopting media literacy teachers' codes within their own regulations.

You can access the full range of tools on the site. In particular, I recommend their resources on Fair Use Teaching Tools, Fair Use in Online Video, Recut, Reframe, Recycle, and a report on what creators of user-generated video think about copyright called The Good, Bad and Confusing.

Although I didn't see anything specific to child-generated content or how kids might understand, learn and incorporate fair use logic in their own online creations, there's certainly a lot of potential for something child-specific in the future. In addition to providing some alternative material to all the anti-copyright violation curriculum out there (which is often sponsored by the MPAA and RIAA), it would be a great asset in the advancement and practice of children's authorship rights. As Aufderheide says "when fair use is used, it becomes more useable," so no time like the present to establish some parameters and possible exceptions for a child-specific code of best practices.

Update Aug. 25, 2009: Potential Starting Points:
Fair Use Remix Institute
Remix Austin!
Shaping Youth post on Fair Use and Youth
I should note, however, that even these (great) sources mostly deal with "youth" not necessarily minors, let alone young children. A particularly notable exception, however, is Remix Austin's Kids Make TV Camp, which includes programs for kids 10yrs + and collaborations with the Girl Scouts. Neat-o!

Monday, August 17, 2009

Radio Interview with Healthy Media Choices

Just a heads up to everyone that I will be on the air tomorrow, Tuesday August 18th, at 1pm EDT (10am PDT), being interviewed on The Healthy Media Choices Hour by Mary Rothchild. The show is associated with Healthy Media Choices, a nonprofit organization based in Vermont and New York, that aims to help "parents, caregivers and teachers of young children use their own insights to come to terms with media influence" (as per their own description on the org website). The organization's mission is to provide non-judgmental, research-based information about kids' media, kids and media, media literacy and a range of other topics, all in the hopes of building a comprehensive toolset for dealing with the growing role(s) of media in the lives of young children. Mary will be asking me about my research on kids' games and virtual worlds, regulatory opportunities, where digital play might fit into the free play debate, and various other (related) issues I'm sure. You can listen to the broadcast live on Brattleboro Community Radio WVEW-lp 107.7 fm (based in Brattleboro, Vermont), which is conveniently (and freely) available through iTunes.

Also, be sure to check out the Healthy Media Choices website and blog, and sign up for Mary's very useful #kidsmedia updates on Twitter.

Monday, August 10, 2009

Spore's Player-Generated Galactic Adventures

The quickest of quick posts today, I'm afraid, just to make sure everyone has seen these new stats on Spore Galactic Adventures. Courtesy of IGN, news that EA's recent Spore expansion has enabled and inspired over 100,000 user-created adventures in its very first month of operations. Great news for Spore fans, and a great development for UGC gaming.

Here's an excerpt from the IGN article that describes the new expansion:
Expanding on the original Spore game, the Spore Galactic Adventures expansion pack gets your creature out of its spaceship and exploring colorful and wacky new planets. Players can turn their creatures into space captains, battle epic monsters in intergalactic arenas and engage in intense planet-side races. In each mission, players earn experience to rank up their captain and earn game-changing items such as the Plasma Pulser and Swarm Magnet. In addition to the adventures in the box, players can download 10 all-new adventures created by the writers of the outrageously funny, pop-culture parody TV show, Robot Chicken.

And from the Spore Galactic Adventures website:
Get out of your starship and turn your Spore creatures into legendary Space Captains. For the first time, beam down with your allies to take on action-packed, planetside adventures. Complete quests, collect rewards, and even create and share your own missions. [...] PLAY a variety of Maxis-created missions as you explore planets all over the galaxy! LEVEL UP your Space Captain and earn more than 30 powerful new accessories! CREATE your own missions with the all-new Adventure Creator, then share them online!

You can check out some of the "adventures" over at the game's official Sporepedia, and/or follow all the latest Spore-related developments through the game's community Youtube channel and Twitter account.

Two things that interest me in particular about this (apart from the obvious UGC angle) are: 1) my staple question of whether kids are getting involved in the content creation (they sure do seem to like Spore), and 2) how does the Adventure Creator editor compare with Microsoft's Kodu?