xtine burrough, California State University, Fullerton
Emily Erickson, California State University, Fullerton

Abstract

This article examines the Lenz v. Universal case, demonstrating how it can serve as a unique vehicle to teach students about fair use and the creative transformation of copyrighted content. The authors—a visual communications professor and a media law professor—discuss the ways the Lenz case highlights a gap between First Amendment rights found within fair use doctrine and current practices under the Digital Millennium Copyright Act. They argue that what Lawrence Lessig calls today’s “remix culture” makes it imperative to provide students with a strong grounding in both copyright and fair use, as well as a savvy understanding of how copyright owners are approaching unauthorized uses of online content.

 

“In a world in which technology begs all of us to create and spread creative work differently from how it was created and spread before, what kind of moral platform will sustain our kids, when their ordinary behavior is deemed criminal?”

– Lawrence Lessig (Remix, xvii)

[youtube]http://www.youtube.com/watch?v=Tz_w37aILuI[/youtube]

Video 1. Let’s Go Crazy Google Collage. (dougmod 2011)

Introduction

On February 7, 2007, Stephanie Lenz posted a blurry twenty-nine second home video of her toddler on YouTube. In the video, thirteen-month-old Holden bobbed up and down on his rubbery legs, at his mother’s enthusiastic urging, to Prince’s 1980s hit Let’s Go Crazy while his older sister ran breathlessly around the kitchen table.¹
[youtube]http://www.youtube.com/watch?v=N1KfJHFWlhQ[/youtube]

Video 2. Stephanie Lenz, “Let’s Go Crazy #1.” (YouTube.com)

The song, playing in another room, was barely recognizable. But when Lenz uploaded her video to YouTube, she titled it “Let’s Go Crazy #1”—leading Universal Music Corp. to find it with a web crawler and send YouTube a takedown notice à la the 1998 Digital Millennium Copyright Act, which provided copyright owners with an efficient vehicle for quick removal of such content. For the next six months, anyone looking for the video—namely, Holden’s relatives—would find a black rectangle in its place, bearing the ubiquitous YouTube apology: “We’re sorry, this video is no longer available.”

Although the video was eventually reposted, Stephanie Lenz sued Universal in July 2007 for knowingly misrepresenting her work as copyright infringement and argued that her use of the Let’s Go Crazy recording was covered by the “fair use” doctrine.² As of December 2011, Lenz’s legal battle with Universal continues. At its heart is a crucial question: exactly how should the copyrights of content owners be balanced against the fair-use rights of those who post user-generated content (UGC) on Web sites such as YouTube—content that often contains copyrighted songs, film and television clips and other copyright-protected work mixed together with original work. The Digital Millennium Copyright Act (DMCA) ostensibly answered this question with its system of takedown notices. However, the Lenz case represents a challenge to that paradigm—one that argues for a fine-tuning of the law and the parameters of fair use.

This article, the product of collaboration between a visual communications professor and a media law professor,³ examines Lenz v. Universal and the challenge it poses to current practices in the online sharing of materials under copyright. We studied the application of fair use in the visual communication and media law classrooms using two methods. In the practice-based visual communication class students created a remix of the Lenz video. In the media law class, students reviewed and discussed a series of remix videos and online content where fair use is in effect. This study demonstrates how this case provides a unique opportunity to teach students about copyright and the creative transformation of copyrighted content. The authors embarked on this project hoping to demonstrate that supplementing copyright and fair-use lectures with a UGC media assignment would prove a memorable and effective supplement to lecture material. In the following sections we will review Lenz’s case in relation to the Digital Millennium Copyright Act and fair use doctrine and the current status of Lenz v. Universal, before arriving at our classroom investigation.

The DMCA, User-Generated Content, and Fair Use

When Stephanie Lenz pulled out her digital camera to capture Holden’s wobbly dance moves, Google had only recently acquired YouTube. Its $1.6 billion purchase of the Web site in 2006 (Rushe 2007) assigned a concrete monetary value to the site for the first time, and made Google—rich with its Internet successes—a prime target for copyright lawsuits. During the first half of 2007, media giants like Viacom were preparing to sue YouTube’s new owner (Nocera 2007). At the same time, they and other content owners from the music, television and film industries were aggressively issuing takedown notices for YouTube videos in the hopes of pressuring Google to begin policing its new Web site for copyright infringements (Hechler 2011).

Google had originally agreed to create a filtering system for YouTube, but then it balked, saying that such a filtering system was unworkable. Moreover, YouTube had no legal obligation to police the videos it was hosting. Under the DMCA, the “safe harbor” clause (Pub. L. 105-304)⁴ guarantees online service providers (OSPs) legal immunity when users post infringing content as long as the OSP responds promptly to takedown notices by copyright owners. This provision places the burden on content owners to hunt down copyright infringements and issue takedown notices. OSPs, on the other hand, are obligated to immediately respond to those notices but the OSP does not have to look for potential infringing uses itself. Companies like Viacom knew this in 2007, but they argued that sites like YouTube—which emerged years after the DMCA’s passage—“induced” users to post infringing content online, and therefore should not be able to claim immunity under the safe harbor clause. ⁵

What made YouTube so different from online service providers in 1998?  It was part of the new Web 2.0 paradigm that saw a shift from a traditionally passive audience consuming professionally produced media to an active audience that was interacting with, remixing and creating original content online. In many ways, YouTube represented the epicenter of this new paradigm. Its purpose was to act as an ad-sponsored Internet host for user-generated content (UGC) that could be posted by—and accessed—by anyone.  Today we all know how quickly a simple home video can go viral, attracting the kind of viewership that previously only broadcast TV networks could claim.  But in the mid-2000s, the term “user-generated content” was still fairly new.

Indeed, in April 2007, just two months before “Let’s Go Crazy #1” was removed from YouTube, The Organization for Economic Co-operation and Development (OECD) issued a report that sought to remedy the absence of a concrete definition for user-generated content.  Ultimately, the committee suggested that UGCs share three crucial traits: they are published online; they demonstrate at least some degree of creative effort (in contrast to just posting a clip from a TV show); and they are produced outside of professional practices. Like most of YouTube’s content—and the work produced by many of our students—Lenz’s video fit the bill.  It was unambiguously UGC.  However, while the “UGC” label may suggest content is “legal” or “legitimate,” it is not synonymous with fair use.  And Lenz’s video—like a lot of user-generated content—included an unauthorized use of copyrighted material and thus a possibility of copyright infringement.  So where did this leave it under the DMCA?

A content owner’s copyright is limited by the doctrine of fair use, an affirmative defense against copyright infringement.⁶  Although there is no explicit reference to fair use in the DMCA, it can be inferred in the law’s “counter-notification” provision, which allows users to challenge takedown notices if they believe their use is non-infringing—in other words, if it is fair use. Fair use requires a consideration of four factors. The first examines the purpose of use—whether it has commercial (for-profit) use or noncommercial (not for-profit) use. Noncommercial use also includes creatively transformative use, as well as use for the purposes of education, news or commentary. The next two factors consider the nature of the original copyrighted work (creative work receives more protection than factual work) and the quantity of the original that was used (less is better). The fourth factor analyzes the potential monetary impact on the original copyright owner. Although all four dimensions are considered, the first and last are more heavily weighted—with the outcome determined by tipping the balance of the four in the direction of either fair use or infringement.

In the analysis we present to our students via online screencast, measuring the Lenz video against these four factors yields a clear result (See Figure 1). First, Lenz’s purpose of use was to show off Holden’s newly acquired motor skills to his relatives. It was, in other words, noncommercial. The next factor doesn’t go her way—the Prince song was creative and thus highly protected. The advantage shifts back to her on the third factor, however—very little of the song was used, and even that was almost unrecognizable. And finally, the brief appearance of “Let’s Go Crazy” on her twenty-nine second video posed absolutely no threat of economic harm to its owner. Conclusion: The Lenz video constitutes a fair use of “Let’s Go Crazy.”

Notably, the first dimension, which largely defines fair use—the purpose of use—is echoed in the OECD’s guidelines for user-generated content: UGC must represent a creative effort and be made outside of professional practices. Both fall naturally into noncommercial use and, when combined with an absence of economic harm to the content owner, represent a solid case for fair use.

But, as we noted before, UGC is not synonymous with fair use. What if Stephanie Lenz had posted a video of Holden with a high-quality recording of the Prince song, in its entirety, as its soundtrack?  Although her purpose would still be noncommercial, she would lose on number 2 and number 3 and weaken the outcome for number 4:  After all, since “Let’s Go Crazy #1” was posted as a public video on YouTube and copyright covers public performances, shouldn’t the owner of that song receive some level of compensation for the public performance of the entire piece? Or is it possible that the nature of the Internet means that copyright law as it stands does not effectively address the legal challenges brought to bear by UGC? There has been no definitive answer to that final question yet, although content owners like Universal have continued to act on the assumption that the answer is no and such videos do not constitute fair use.  In fact, this is just one of several grey areas in copyright law that can make it both confusing and even legally precarious to publish user-generated content if it contains copyrighted material.⁷  And it illustrates the growing need for clear and thorough education about copyright and fair use.

Lenz v. Universal

After YouTube removed Stephanie Lenz’s video, she received a stern warning that additional copyright infringements would force the company to cancel her account. Following the DMCA requirements, she submitted a counter-notice, arguing that the brief appearance of Prince’s song constituted fair use (Lenz v. Universal, 2008, p. 1151). Under the DMCA, online service providers are instructed to pass on counter-notices to the content owners. At that point, the owners can either take legal action or not. If they don’t take any action within two weeks, the OSP must repost the content [DMCA, § 512(c)]. Two weeks went by and YouTube failed to repost the video. By the time it was reposted—six weeks later—Lenz was ready for action. Supported by legal counsel provided by the Electronic Frontier Foundation, she sued Universal, arguing that it had violated her First Amendment rights by misrepresenting her video as copyright infringement when it was clearly a fair use. Universal filed a motion to dismiss, pointing out correctly that the DMCA makes no mention of fair use (Lenz v. Universal, 2008, p. 1152). But in August 2008 a U.S. District Court judge refused to dismiss the case, ruling that copyright owners must indeed consider whether their content has been used within the parameters of fair use before issuing a takedown notice (Lenz v. Universal, 2008). Recognizing that this precedent could profoundly change the ease with which it currently uses the DMCA, Universal has gone through several more legal contortions to make the case go away. But in March 2010, the judge ruled against the company’s motion for dismissal again, bringing Lenz closer to the courtroom. However, at the close of 2011, Universal’s various motions have continued to keep the case from proceeding to trial (Sandoval 2011).

Although Stephanie Lenz’s video was ultimately reposted on YouTube, her case demonstrates how easy it is, under the DMCA guidelines, for content owners to get user-generated content (UGC) removed from the Web when it contains copyrighted material, even if that material’s use is clearly fair use—published with no profit motive or likely economic harm to the content owner. Lenz’s case also holds the possibility of ending this current paradigm, in which UGC creators are held guilty of copyright infringement (i.e., losing the right to post their remixes, parodies, mash-ups and home videos) until proven innocent.

Bringing Lenz to the Classroom

Meanwhile, our students—who grew up with peer-to-peer file-sharing and the accompanying threat of lawsuits from the recording industry—have gradually begun to understand that the practice is illegal, but they are still vague about the legality of other online activities when it comes to copyrighted content. And this vagueness isn’t helped by the massive number of takedown notices issued by content holders—which, as Lenz v. Universal demonstrates—has generally been undertaken without considering fair use.

In the introduction to his book Remix, Lawrence Lessig recounts a Stanford presentation in which he shared a stage with the late Jack Valenti, former president of the Motion Picture Association of America (MPAA). Valenti, who had represented some of the most aggressive content owners in the United States, was currently fighting what he called the “terrorist war” on “piracy.”  He told the audience about a Stanford student who asked how illegal downloading could be wrong if “everyone’s doing it.”  Valenti then turned to his Stanford hosts and challenged them:  What are you teaching these kids, he asked. “What kind of moral platform will sustain this young man in later life?” (Lessig 2008, xvii).

Valenti’s point was that students should be taught to respect the copyrights of content owners like his former clients – the six movie studios that dominate the global film industry. Lessig’s point in recounting the story was to argue that if it is normal for everyone to break a law, perhaps we should reconsider whether that law is truly just and reasonable. We agree with Valenti that the student’s ethical reasoning suggests a need for education about copyright. And we agree with Lessig that current copyright laws fail to acknowledge what he calls our “remix culture.”  However, it seems unlikely that we’ll see a significant change in the legal landscape of copyright law anytime soon. Therefore, as we await a definitive ruling in Lenz (which could provide a minor tweak to that landscape), this article suggests how to follow a pedagogical path that will give students a clearer sense of what constitutes fair use in the era of Web 2.0.

In our classrooms, Lenz v. Universal is used as a didactic tool that illustrates how one might go about creating user-generated content with a rich understanding of copyright law and the current practices of online service providers and content owners. Part of this entails showing students the potential disconnect between these. We want students to recognize that laws, and the execution of laws, are imperfect constructions in an imperfect world. This is particularly true of our remix culture where cultural change occurs rapidly and laws quickly become obsolete.  We also want students to approach creative work with a savvy understanding of today’s realities.  With this in mind, we approached this project believing pedagogy that combines a UGC activity with the fair use doctrine can provide a moral platform to sustain our students until policymakers accommodate practices that are in sync with today’s online activities (which, we believe, should largely be protected by fair use).

Teaching Fair Use with User-Generated Content

With the Lenz case as a model for exploring fair use, we wanted to see if teaching fair use in combination with a remix project (in the visual communication class taught by Professor burrough) would produce a stronger, weaker, or equal understanding of the doctrine than students gain in a traditional media law class (taught by Dr. Erickson). We recognized that the content and expectations of the courses are different; however, our students are enrolled in the same Communications major. Therefore, all students will enroll in the media law class, and many enroll in the visual communications elective. These students are familiar with the type of content and expectations set forth in both classes.

First, students enrolled in both courses took a pre-lecture/activity survey to measure knowledge of fair use doctrine (See Appendix 1). Visual communications students scored an average of 66 percent on the pre-lecture/activity survey. Media law students averaged 62 percent on the same survey. The authors collaborated on a video screencast so students enrolled in both classes would receive the same fair use lecture. The Lenz v. Universal case, fair use and parody were central concepts of discussion culminating in a review of fair use in the media law class and the Let’s Go Crazy UGC assignment in the visual communications class.⁸

Remixes made for YouTube, such as My Cubicle, Why is the Rum Gone? and Sarah Palin Remix “Doggone it, Darn Right, You Betcha”, served in both courses as examples of what Lessig calls “remix culture,” along with Where Daft Punk Got Their Samples From and Eric Faden’s A Fair(y) Use Tale. After viewing these examples in class and the lecture screencast at home, media law students participated in a traditional classroom discussion about copyright and fair use. Digital media students, on the other hand, created a parody video or remix of the original Let’s Go Crazy #1 video, which had to follow four guidelines: the video is the same duration as the original, twenty-nine seconds; the video uses Prince’s Let’s Go Crazy or an audio remix of the original video as soundtrack of the work; the content of the video is transformative, and the work is posted as a video response to the original Let’s Go Crazy #1 video on YouTube.

Each time a user uploads a video response, YouTube automatically sends a message to the owner of the original video. Each semester, Stephanie Lenz receives multiple notices from YouTube that new users are uploading responses to her original video. By following the last component of the assignment, students share their remixed work with Lenz before it is made public on YouTube.

Finally, students from both classes were retested with the fair use survey.

Guidelines and Execution

The communication students enrolled in the visual communication class are not film students. Many used video capabilities on their cameras or cell phones for the first time while creating media for this assignment. Classroom dialogue included a reflection on the aesthetics of the original video. In order to respond to the assignment, students must reference the original video. As the U.S. Supreme Court ruled in Campbell v. Acuff-Rose, “When parody takes aim at a particular original work, the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.” (1994, 588) Simply placing Let’s Go Crazy as background music to borrowed visuals without adding criticism, or clearly expressing the transformative concept of the creative endeavor, leads to mimicry or abstraction. During planning, lecture and critique sessions, students were directed away from mimicry and toward the creation of a work that communicates a new idea.

Students were encouraged to dissect the original movie before planning their transformative work. For instance, in the original video, the person holding the camera speaks into the microphone. She says, “What do you think of the music?” at five seconds, and she laughs at twenty-five seconds. There are two characters—a red-clad Holden is seen bouncing in place while another child circles him with a play stroller. The video is made at home. Indoor lighting is used. We do not know the time of day or the relationships among the child running around Holden, the cameraperson, and Holden. We know that Stephanie is Holden’s mother (because we have read articles about the court case in class), and we assume Stephanie is holding the camera since she posted the video.

Before responding to the assignment, students make aesthetic and conceptual decisions about the dialogue, audio, identity of the speaking person, and nature of his or her relationship to the characters or the cameraperson. Is the speaker seen in the video or heard from an off-camera position? Will the video be made using indoor lighting? Are there two characters? Are the characters children, adults, machines, animals, dolls, or something else? Will someone be dressed in red? Will a character be seen pushing an object? Will a second character run in circles around the first?

Assessment

Student videos were evaluated based on the following four dimensions:

1. How clear is the new message? An analogy to a writing class would be the evaluation of the clarity of a thesis statement.

2. How clearly is the message articulated within the YouTube video medium? To use the writing analogy, this is similar to evaluating how clearly the thesis was supported by the style used throughout the text.

3. How original is the new message? For example, a video that repeats the two characters running around a house and culminates in the (written or spoken) words “fair use” creates a literal and unimaginative message. Having such a large bank of responses on hand is helpful for illustrating how many alleged “new messages” are actually similar to pre-existing messages. We demonstrated this concept by separating the banal from the unique in dialog with our students.

For instance, one of Lenz’s favorite videos (burrough 2009) is by our measure a literal and not terribly transformative work:

[youtube]http://www.youtube.com/watch?v=q3KWNd6AD20[/youtube]

Video 3. Bottom’s Up. (YouTube user “iwannau2luvme” 2008)

The following video merges the “original” dancing baby with the Prince song (albeit, starting and stopping points of the song do not match Lenz’s video). Students often find this video to be more transformative than the two young women dancing above, but less transformative than the Lego characters below:

[youtube]http://www.youtube.com/watch?v=W2MVPTOl1Yk[/youtube]

Video 4. Dancing Baby Prince Remix. (Michael Maughan 2011)

Finally, this video is often a favorite among students for its transformation of characters and message:

[youtube]http://www.youtube.com/watch?v=R29Fx7Iu5V4[/youtube]

Video 5. Let’s Go Crazy Toys. (Sean Jacobs, 2009)

Each semester students evaluate a sample set of videos to determine a range of what they believe to be is less or more transformative in prior student works.

4. How much of the original video is referenced in the remix or parody? This condition is tricky, as the new authors have to reference enough of the original video to make an iconic reference or commentary. However, referencing too much of the video results in mimicry, especially if the new message is unclear.

[youtube]http://www.youtube.com/watch?v=IAUPwTobEpI[/youtube]

Video 6. A demo reel of student responses to Stephanie Lenz’s “Let’s Go Crazy #1.”

This assignment meets several of our university’s missions and goals by integrating advances in information technologies into learning environments; integrating teaching, scholarly and creative activities, and the exchange of ideas; and affirming the university’s commitment to freedom of thought, inquiry and speech. The students also formed a relationship with Stephanie Lenz. After the first videos were posted as a response to Let’s Go Crazy #1, students communicated with Lenz through YouTube’s messaging center. As a class, we developed a set of interview questions. This direct connection with Lenz gave the project a sense of urgency and personal significance that it may have lacked if the class remained distant from the case.

Outcomes and Conclusion

A comparison of only two groups can yield, at best, a preliminary descriptive result.  With this said, the results of our pre- and post-screencast survey did not necessarily support our assumption (see Appendices 2-5). Media law student scores averaged 91 percent as opposed to the visual communication class post-survey average of 81 percent.⁹ In retrospect, our sample was not ideal: Why did we suppose students who created a remix video would score better on a traditional assessment than students who had spent half a term tackling the kind of thinking that underlies law and policy?  Clearly students in the law course had greater familiarity with traditional assessments of media law course material and orientation to this information than the visual communication students. Moreover, visual communication students were likely to spend time working on the remix assignment, and perhaps did not study or prepare for a traditional assessment.

In short, future study would be better served by using a control group that was also part of a visual communication class.  And ultimately, we maintain that students who create user-generated content should do so while learning about the copyright landscape and the principles of fair use.

According to Henry Jenkins (2006), cultural literacy is developed by active participation with mass media. And dancing babies, including Holden, have most certainly asserted themselves into the public’s consciousness via mass media. Lawrence Lessig reminds us that our world is one in which “technology begs all of us to create and spread creative work differently from how it was created and spread before” (Lessig, xviii). Under the threat of takedown notices, the amateur UGC producer receives quite a different message. For Jenkins and Lessig, participation sustains culture. In addition, we believe participation is an essential component of our First Amendment rights. The Lenz v. Universal case demonstrates how copyright law and fair use doctrine demand further explication, given the nature of user-generated practices today. Amateurs and citizens alike reconstruct their relationships to society by downloading, remixing, and sharing media. Fair use is an essential component of copyright law that legitimizes (from a legal standpoint) this type of behavior. Students of the twenty-first century must understand fair use doctrine in combination with how to construct meaning for our networked, participatory culture, using a variety of digital tools.

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Appendix 1

Appendix 2

Appendix 3

Appendix 4

Appendix 5

Correspondence concerning this article should be addressed to Professor Burrough at cburrough@fullerton.edu or Dr. Erickson at eerickson@fullerton.edu. Both can be reached at The College of Communications, California State University, Fullerton, 800 N. State College Blvd., Fullerton, CA 92834.

 

About the Authors

xtine burrough is a media artist and educator. She is the editor of Net Works: Case Studies in Web Art and Design and co-author of Digital Foundations. Informed by the history of conceptual art, she uses social networking, databases, search engines, blogs, and applications in combination with popular sites like Facebook, YouTube, or Mechanical Turk, to create web communities promoting interpretation and autonomy. xtine believes art shapes social experiences by mediating consumer culture with rebellious practices. As an associate professor of communications at California State University, Fullerton, she bridges the gap between histories, theories, and production in design and new media education. Her Web site is missconceptions.net.

An award-winning teacher, Emily Erickson specializes in media law and has taught and developed several original communications courses as well. Dr. Erickson’s research focuses on First Amendment jurisprudence and the role of journalists in public records policy, an interest propelled by her work in helping create Alabama’s first freedom of information group. She is the co-editor of Contemporary Media Issues and has published legal and communications research in a number of academic journals.

 

Notes