Music Video Remakes - Aymar Jean Christian

-------DRAFT-------Music Video Remakes: Culture, History and the Reach and Limits of User Production
Aymar Jean Christian
Annenberg School for Communication
University of Pennsylvania
With her Flash-driven and sophisticated website rivaling that of a major label
artist, Britney Houston’s apparent stardom came unexpectedly. A maker of music video
remakes, she is one of dozens of people who have achieved some form of notoriety on
YouTube by redoing – in parodic, satirical, celebratory or strange ways – the music
videos of famous pop stars like Britney Spears, Katy Perry and Beyoncé Knowles, her
most famous being her remake of Lil’ Mama’s “Lipgloss.” Houston1 turned what was
first a hobby into a burgeoning career. She now has regular gigs in gay bars around New
York and been featured on MTV, among other networks.
For a genre most recognizable by the antics of Weird Al Yankovic, who
inaugurated the form over twenty-five years ago soon after MTV inaugurated the music
video, the moderate popularity of Britney Houston and others like her marks a hallmark
in the evolution of several historical trajectories, including that of music video itself, the
increasingly public nature of fandom, the desire for fame among young people raised on
the Internet (“millennials”), the power of digital technology to democratize cultural
production, the growing cultural power of remixing, sampling and mash-ups, and the
persistence, perhaps the evolution, of postmodern aesthetics. In all, these cultural artifacts
on YouTube fundamentally question cultural ownership at a time when digital
technology is forcing corporations and legal institutions to continually rethink copyright,
1
Britney Houston, a pun on Britney Spears and Whitney Houston, is male but identifies as gender queer.
fair use and how to ensure the progress of the sciences and the arts, a Constitutional
imperative, while honoring rich cultural histories and modes of production of users. All
of these currents run through the genre of music video remakes, marking them as a
historically significant development in media history.
This paper proposes answers to the dilemma of cultural ownership in the digital
age – copyright – through a theoretical and historical lens. First I will place the remakes
in the context of music video history and then differentiate them from forms of
production that have arisen since, including remixing, sampling and mash-ups. I will then
discuss the cultural significance of music video remakes, i.e. what they say about this
contemporary moment. Next I will discuss why individuals engage in such activities and
offer a way to categorize their videos. In compliance with the Digital Millennium
Copyright Act, YouTube takes down videos accused of violating copyright, so I will
proceed by discussing some of the consequences of this policy on the remakes. Finally I
will attempt a fair use argument using the examples of Britney Houston’s “Lipgloss” and
a few others as a way incorporate the history and meanings of this form into actionable
policy and practice; I argue that nearly all music video remakes inherently transform their
source material by remaking and reimagining the corporate image, providing a legal
justification for this form of media production predicated on pastiche, sharing and
multiple interpretations.
HISTORIES: Music Videos, Remixes, Mash-ups and Sampling
Early scholarship on the music video focused on MTV and how its version of the
rock video meshed well with postmodern theories on visual and youth culture. (Mundy
1999, 231-237) E. Ann Kaplan, an early MTV scholar, noted that music videos “…do not
undercut realist representation in order to expose ideology and illusionism, but simply
leave the spectator in a state of unstable flux, a position with purchase.” (Goodwin 1987,
37) The notion of being “in flux” and unstable seemed to jive very well with postmodern
notions of unsettling distinctions between high and low culture, narrative and abstraction.
Music videos were pastiches and discontinuous, mixing the old with the new, creating
new combinations. (Kaplan 1987, 46) In their openness they were engaging. The fact that
MTV was twenty-four hours a day – essentially one endless commercial (Kaplan 1987, 1;
Fry and Fry 1986; Aurderheide 1986, 62) – contributed to this scholarship on its
“disruptive” tendencies: “the channel hypnotizes more than others because it consists of a
series of extremely short…texts that maintain us in an excited state of expectation.”
(Kaplan 1987, 4) Marsha Kinder builds on this observation, comparing the experience of
watching MTV to that of a dream. (Kinder 1984) This “dream” was seen as the mediated
cousin to the rock concert: “We no longer lose ourselves in the crowd, but we give
ourselves to the screen.” (Chen 1986, 68) Combined with the subversive history of rock
and roll and its place in everyday life (Grossberg 1988; Grossberg 1993; Reynolds and
Press 1996; Sherman and Dominick 1986; Frith 1981; Hebdige 1979), early music videos
leant themselves to a particular reading of youth culture2 that emphasized the importance
of critique of representation and an interpretation of visual culture as flexible and
constantly shifting.
With this history, the music video remake was inevitable. Indeed, Weird Al
Yankovic released his first single and video, “Ricky,” a spoof on Toni Basil’s “Mickey,”
2
Various measures at the time showed MTV reaching a vast number of teenagers. From over 40% of all
teenagers in the United States (Sun and Lull 1986, 115) to the survey that found two-thirds of teenagers
would choose MTV over radio in the early eighties. (Melton and Galician 1987, 36)
in 1983, a mere two years after MTV first launched.3 It is not difficult to see why. Based
on a postmodern blending of high and low culture, music videos invited participation
from the audience – they held no pretensions. Moreover, the flexibility of image creation
implied any set of images could comprise a music video. These expansive possibilities
for depicting reality offered fans a “refuge from drudgery and constraint” endemic to
more linear forms of pop culture, like film or scripted television. (Jenkins 1992, 281)
This is partially why scholars in the 1980s and early 1990s interpreted music videos so
consistently through the lens of postmodernism. Dana Polan, in the Journal of
Communication Inquiry’s special issue on music videos in 1986, argued that MTV broke
down “classical narratives” – a “conservative economy” in culture – (Polan 1986, 49) and
promoted a surrealist, patchwork of images, much in the way early 20th century avantgarde filmmakers found inspiration in montage and migrating from theater to theater. In
its rejection of narrative, MTV and its music videos created, strangely, a utopia against
mass culture and, more importantly, against Hollywood film. (Polan 1986, 50; Kaplan
1987, 33-5) Some scholars even saw in MTV a complete obliteration of anything “real,”
and in doing so demonstrated resistance to capitalism and representation. (Chen 1986, 67;
Chang 1986, 72) To remake a music video, then, was simply to engage in the same forms
of critique and narrative disruption intrinsic in the form.
Indeed, MTV and music videos arrived at a time in academic scholarship when
“resistance” and “active audiences” were buzzwords. Despite some of the foundations of
this scholarship predating MTV (Morley 1980; Hall 1974; Eco 1979), it was only until
after MTV and the mass dissemination of cable television that these ideas took hold. John
3
Zomba Recordings LLC. 2009. “Weird Al” Yankovic: Caltalog. http://www.weirdal.com/catalog.htm.
Fiske, whose ideas seem forever in and out of vogue, is perhaps the clearest voice on this
notion of “resistance.” (Fiske 1988, 316) The now oft-derided scholarship that ensued
deserves some of its criticism, yet it holds some of historical importance there too. To be
sure, Tetzlaff was right when he wrote, in 1986: “Escape is a form of resistance, but it is
a weak one if it is only temporary.” (Tetzlaff 1986, 89) Still, Fiske was also correct when
he and others theorized that television had, perhaps always, allowed people, particularly
young people, to “think through” their own lives. (Fiske 1988, 69) This notion of active
reception is not only conveniently relevant to YouTube but integral to the theoretical
foundations of fan cultures online.
This essay cannot “prove” whether the balloon of postmodern scholarship around
music videos was “right.” In fact, Lawrence Grossberg is likely correct in his assertion
about the sheer diversity in music video production impeding such generalizations: “…Is
there any clear aesthetic which dominates the internal dynamic of music videos? The
answer is clearly no; for every video that exhibits a ‘postmodern’ aesthetic, there is
another video built on more classical narrative or romantic aesthetics.” (Grossberg 1993,
187) Still it can be said that many of the ways in which scholars interpreted MTV explain
how music videos on YouTube operate today: the notions of TV and visual culture “in
flux” evolved into to the flowering of interpretations of music online; the implicit and
explicit critiques of mass media production fit well with YouTube’s function (for now)
outside the industry system; and the idea that the viewers were as integral to MTV as the
videos naturalized notions of participation and remixing in music video culture.
Music video remakes are cousins of other forms of digital participatory culture
arising since the 1980s, most notably remixing, sampling and mashing-up in music
production culture. Mash-ups involve (usually) two songs spliced together in ways that
showcase both songs fairly equally (lyrics from one, music from the other, or some other
musical hybrid). Remixes can involve similar tactics, but usually modify beats and sound
effects. Technology is the most obvious culprit of these forms of production arising in the
1990s. Billboard magazine, in 2004, attributed technology – for the magazines, filesharing networks, but one could easily point to free or cheap programs like GarageBand –
resulted in the proliferation of now infamous mash-ups like “Smells Like Booty”
(Destiny's Child's “Bootylicious” mashed with “Smells Like Teen Spirit”) and Danger
Mouse’s Grey Album (Jay-Z’s The Black Album with the Beatles’ White Album).
(Caulfield and Paoletta 2004) Technology become a powerful force in the culture of
music production, eventually allowing for the promotion of the DJ from hobbyist and
citizen remixer to “artist” in the classical sense. (Herman 2006) Similarly, figures like
Britney Houston and Venetian Princess on YouTube have taken advantage of digital
cameras and cheap editing equipment to become somewhat respectable in their own right.
Music video remakes are different from mash-ups, samples and remixes in
obvious ways. Of course, they are both visual and aural, and many of them, in fact, do not
change the actual music of the song and instead only change the visuals. Unlike, as
suggested in some of the literature, mash-up culture, music video remakes – at least those
posted on YouTube – are not a necessarily a community-based exercise and instead
involve disparate individuals or groups producing content about the music they choose;
John Shiga notes in his study of a mash-up community that involvement in the group is
crucial to gaining respect and legitimacy, and a similar dynamic works in the other music
subcultures (Shiga 2007, 95; Lysloff 2003) This is only sometimes true on YouTube.
Moreover, music video remakes do not necessarily produce “ironic combat” among its
parts as is often, but not always, the case with mash-ups and samples. (Serazio 2008, 91)
Many remakes lack any sense of irony, exhibiting mere reverence for its subject or
complete disregard for it as well.
Yet the similarities outweigh the differences between the forms; and these
similarities are important, as some of the case law protecting and denying the fair use of
derivative works involve sampling and remixes, the closest cousin to remakes. Like
remixes, samples and mash-ups, music video remakes represent some form of cultural
critique (Arceneaux 1992), either directly – flipping gender roles, for instance – or
existentially, by suggesting the music video itself is a form for ridicule, not necessarily
parody, but instead using the music to create a video that is self-referentially silly. On a
grander scale, remixing either music or a music video evolves from the kind of
interpretation endemic to everyday life. Citing the example of Jonathan Caouette’s
Tarnation, Lawrence Lessig states that remixing is important part of how we interpret our
lives and cultural artifacts we consume. (Lessig 2005)
Much in the way remixes, samples and mash-ups led many to declare the
“democratization of music,” music video remakes democratize video production.
(Serazio 2008, 81-82) Like John Shiga says of mash-ups, they shift the “…locus of
musical expertise, creativity, and skill to listeners of pop music…” (Shiga 2007, 95)
Shiga’s focus on the importance of listening (and for remakes, watching) in the
production of derivative works is important. It marks the distinction between “read-only”
culture – products that do not allow users to modify them – to read/write culture, which
allows users to work with their products, placing equal value on both consumption and
production. (Lessig 2008)
MEANINGS
The cultural significance of music video remakes has been suggested above but
should be addressed directly. Remakes are first and foremost a public demonstration of
once-private activity, particularly fan activity. When he wrote Textual Poachers, Henry
Jenkins noted that “…fans were marginal to the operations of our culture, ridiculed in the
media, shrouded with stigma…” (Jenkins 2006, 5) To be a fan create cultural products
was not a mainstream activity, nor did it offer as clear a path to celebrity as do those
made for YouTube today. Stigma may have masked fan activity from the general public,
but part of its invisibility resulted from the mundane, private nature of its creation and
circulation. Erica Rand examines some of these everyday fan production practices in her
discussion of Barbie and how both adults, but also children, used mass-made products in
nuanced and individualistic ways. (Rand 1995) Many others scholars, mainly starting in
the 1970s, and perhaps earlier, have studied how consumers actively engage with “readonly” content. (Ang 1985; Ang 1991; Moores 1990; McRobbie and Garber 1977; Herzog
1941) The influence of Fiske on later scholarship is evident – as are theorists like Michel
de Certeau; Jenkins acknowledges how Fiske’s ethnographic approach to cultural
consumption inspired his work on fandom. (Jenkins 2006, 37)
Of course, music and music videos need fans. Popularity never arises solely from
music quality and composition. As Lawrence Grossberg states: “…the musical content
and lyrical ideology of rock are always secondary to, or at least dependent upon, the fan’s
assumption of rock’s excess, an excess produced by the ways rock is place in the fan’s
everyday life.” (Grossberg 1993, 200) Music shapes the everyday lives of fans – here,
young people – and so it is only logical to assume those fans interpreted and re-imagined
that music in the context of their own lives. Those imaginings in turn popularized the
music and, in a way, made the music. Thus, while research on fandom and audience
participation arose in the 1980s these activities likely date back to the beginnings of
industrially produced arts and culture, continued through the rock and roll shows of the
sixties and through the eighties: MTV built in this active-viewer sentiment early on by
encouraging viewers to vote for the favorites videos and enter contests to meet stars.
(Aufderheide 1986, 64)
With the advent of online distribution sites like YouTube, such activities are no
longer hidden and instead celebrated. Writing in 2006, Jenkins noted the important shift:
now “…fans are central to the way culture operates.” (Jenkins 2006, 5) This shift is often
– perhaps too often – categorized as a shift from the “old” world of “consumers” to that
of users, “participants in the production of their information environment.” (Benkler
1999) The suggestion of the “empowerment” of the user raises questions as to the extent,
indeed the meaning, if any, of this ability to produce from the work of corporations.
Scholars have different responses to this. Legal scholar Rebecca Tushnet believes fan
participation is meaningful not for challenging ideologies or even corporations – it may
not, and very often does not, do either of these things – but because they reveal desires
existent in a subculture: “Fans' creations are not necessarily liberating in a larger
sense…but they do represent a vibrant subculture, one that inspires passion among
thousands of people who find creative outlets in shared universes.” (Tushnet 2007, 137)
For Serazio, mash-ups do not necessarily produce empowerment, but they do offer the
“possibility of greater consumer participation.” (Serazio 2008, 85) Britney Houston, in an
interview, summarized nicely how some fans theorize their own participation: “If I didn’t
like a video I wouldn’t do it…I do it because I like the artist…I’m a big fan of all those
people, and people know who they are.” Houston’s practice is an act of reverence and
love (fandom) not critique, and yet she posts videos because she knows they will get
views, suggesting that, unlike in Tushnet model, not all fans produce content to engage in
a community. (Twenge 2007; Twenge and Campbell 2009)
MOTIVATIONS
This raises the question of why vloggers make music remakes in the first place,
especially on YouTube. First, it should be noted that while some YouTubers do make
money on the site – an unspecified “thousands” of vloggers (Stelter 2008; Miller 2009) –
the vast majority of those making content are not getting paid. Making music video
remakes, however, has other benefits. For one, users have the opportunity to get attention.
The desire for fame and the ability of social networking sites to provide it at a lower cost
has been much criticized by cultural critics, most notably Andrew Keen. (Keen 2008) In
Keen’s controversial book he, in a somewhat exaggerated fashion, laments the fate of
democracy when novices and amateurs are given a voice. He also points to a culture of
narcissism, in which self-satisfaction – without meaningful conversation and social
interaction – is reinforced by technology. (Keen 2008, 47) This is not new; we can see
echoes of Christopher Lasch’s famous book The culture of narcissism: American life in
an age of diminishing expectations‎, with its focus on the rise of individualism. (Lasch
1979) The research on narcissism has returned, most notably through the research of Jean
Twenge, who argues from a sociological perspective that key indicators of narcissism
have risen in the generation of young people most actively participating in social
networking sites. In The Narcissism Epidemic, social networking sites are listed, among
many other factors, as a cause and symptom of a growing “quest for attention:” “In a
culture obsessed with fame, YouTube is a new way to seek it.” (Twenge and Campbell
2009, 120) Yet fame is not the only reason to post videos. Twenge and Campbell mention
that YouTubers want to pass into Hollywood with the traditional gatekeepers – even
though very, very few of the sites most popular users, despite garnering hundreds of
thousands of followers, have yet to break into the mainstream, save Jessica Lee Rose of
Lonelygirl15, who landed a few roles on minor television shows. Yet there are
professional, less showy reasons for desiring attention. Salil Mehra notes that in Japan,
manga fiction writers and artists attend conventions to demonstrate their skills – genuine
talent – and get industry jobs. (Mehra 2002)
In the postmodern tradition, many remakes do critique or comment on its source,
thus allowing users to call out hypocrisy, superficiality or any number of flaws in massproduced content. This form of critique can be explicit: one very popular remake shows
an obese man dancing to Shakira’s “Hips Don’t Lie,” an obvious comment on Shakira’s
famous “big” hips.4 Others are more nebulous or oblique. In another video, for instance,
one young boy is sitting on a couch eating candy when his friend asks for a piece; the
friend soon asks for some more, but his request is denied. The music starts playing and
the hungry friend lip syncs: “It’s Britney, bitch,” leading up to the famous chorus,
4
The song has been removed from the video due to a copyright claim. Crush41. 2006. [Destroyed by
Copyright] Shakira – Hips don’t Lie – Verarsche.
http://www.youtube.com/watch?v=4YHoeSVLWdM&feature=related
“Gimme gimme, more, gimme more, gimme gimme more.” What this says about the
song – perhaps the inanity of pop music lyrics in general – or about anything in particular
is up for interpretation. Yet what is on display is the idea of culture – music and music
videos – as raw material. As Thomas Johansson writes:
…[Y]oung people explore the symbolic possibilities in their culture. They play
with different signs and symbols in such a way that they simultaneously succeed
in both expressing their unique identity and concealing their actual social
origin…lead[ing] to the creation of a kind of dreamworld. (Johansson 1992)
These “other worlds” are fully on display on YouTube. Many of the remakes recall early
MTV music videos in their use of peculiar camera angles, vibrant colors and various
digital effects to create idiosyncratic creations.
The vexing question of agency – the power or lack thereof to critique corporations
– arises again in this context, and it is, to be sure, limited. (van Dijck 2009; Cohen 2005).
Yet agency and self-expression are two different modes of production. One can certainly
express oneself without much agency, though this is not, historically speaking, always
optimal.5 Fans certainly demonstrate their love of music and in doing so demonstrates
that corporations do not wholly own the music the sell; the music video “has a life of its
own…an open-ended quality,” allowing such interpretations to arise. (Aufderheide 1986,
57-58) Again, Fiske’s formulation of the popular is useful:
If the cultural commodities or texts do not contain resources out of which the
people can make their own meanings of their social relations and identities, they
will be rejected and will fail in the marketplace. They will not be made
popular…Popular culture is made from within and below, not imposed from
without or above…. (Fiske 1989, 2)
5
Walter Benjamin’s discussion of self-expression and fascism in his epilogue to “The Work of Art in the
Age of Mechanical Reproduction” most vividly comes to mind in this discussion. Benjamin, Walter. 1936.
The Work of Art in the Age of Mechanical Reproduction, in Schwartz, Vanessa R. and Przyblyski,
Jeannene M. 2004. The nineteenth-century visual culture reader. New York: Routledge, 69.
Fiske goes too far by dismissing the importance of the “above,” the corporate, highly
orchestrated marketing campaigns that launch and sustain the popular. But he is also right
that not everything that is marketed succeeds, and users do need to see something worthy
of self-expression – whether privately or on YouTube – in order for a song or video to
truly catch fire and spread through the markets and the net.
VARIETY
YouTube houses millions of videos, all receiving billions of clicks per months, so
attempts at categorization are sure to fall short. Yet categorization allows for more
systematic ways of analyzing how users negotiate cultural ownership and thus help
decide how to allow for fair use within copyright law. The music video remakes on
YouTube can be categorized by their visual and aural strategies and by their attitude
toward the source material.
Visual/Aural Strategies
1 Uses original music and attempts to
replicate original look or feel of original
2 Uses original music but re-edits, dubs or
splices video with other content
3 Uses original music but visually distinct
4 Re-sings original and/or uses new
music/lyrics but visually similar
5 Re-sings original and/or uses new
music/lyrics but visually distinct
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Attitude
1 Parody
2 Satire
3 Homage
4 Disruption
5 Skill
Figure 2 Still from Britney Houston's
"Lipgloss," posted on YouTube in 2007.
Figure 1 Still from Lil' Mama's original
"Lipgloss."
The visual and aural strategies function independent of the attitudes accompanying them.
For example, Britney Houston’s “Lipgloss” (Fig. 2)6 uses the original music from Lil’
Mama’s video (Fig. 1) and attempts to redo the visuals as well, yet her approach ranges
from homage – she professes to like the song – to disruption – in the tradition of camp,
she exaggerates the video’s excesses while reversing its gender constructions.
The attitudes, as is evident, are fluid. Some videos, like Houston’s, cut across a
few impulses. By “parody” I refer to the definition often invoked in fair use cases,
involving a derivative work that comments on or critiques the original work. (Tushnet
2007, 161) Satire, as distinguished from parody – a distinction not without its own
theoretical concerns (Keller and Tushnet 2004) – is a derivative work that uses an
original work to comment on something else (and a form of expression not often covered
under fair use). By “homage” I refer to works that use the original to celebrate its musical
or visual virtuosity. By “disruption” I refer to a surrealist mode of production aiming to
challenge viewers’ expectations of the video based on the music; this could also be
interpreted as users reediting the original to render it unintelligible or generally editing a
video for incoherence. An example of this is a popular video of someone’s mouth singing
Katy Perry’s “I Kissed A Girl” upside down (in “chin face”).7 “Skill” refers to those
videos whose ideology and allegiances seem unclear but whose technical proficiency in
video or music production seem exemplary: the most clear case of this are the numerous
6
The video has been viewed over 1.6 million times. Houston, Britney. 2007. Lipgloss. July 19. YouTube.
http://www.youtube.com/watch?v=ZEes_ZjSmuo
7
jegerskumfidus. 2008. I Kissed a Girl – Katy Perry. June 12.
http://www.youtube.com/watch?v=rrhyLTOOEj0&feature=related.
remakes of Britney Spears videos using characters from the computer game “The Sims” –
the impulse is to show something unexpected done well.8
When Beyoncé Knowles released the single “Single Ladies,” it spawned a flurry
of activity among YouTubers seeking to emulate her dance in late 2008. (Schmidt 2008)
The most notable of which is Shane Mercado, an effete young male who attracted
millions of views for redoing, almost step-for-step, the complicated, yet near-accessible
dance from the minimalist music video. The video has several permutations, but the most
relevant of which involved Mercado dancing side by side (in split screen) to Beyoncé and
her two dancers (at least one of which is allegedly transgender, giving the entire
experience a noticeable queer edge)9. This would fit into the second category, but it is
more of an homage than anything else.
Two examples of video that fit into the
fourth and fifth strategic categories are those
from popular vloggers Alphacat and Venetian
Princess. Venetian Princess’ remake of Katy
Perry’s “I Kissed a Girl,” which has received
Figure 3 Shane Mercado on The Bonnie
Hunt Show performaning "Single Ladies."
17 million views, more than the official video
on the site.10 Princess wrote her own music and lyrics – similar to that Perry’s original –
because YouTube told, she claims, she could not make any more music videos using the
8
One example, that would fit into the third category: thebrain001122334455. 2006. Britney Spears – Toxic
– The Sims 2. December 9. http://www.youtube.com/watch?v=W_ZWMmo6q0Y.
9
As yet unconfirmed. See: Bossip Staff. 2008. *Exclusive* Beyonce’s “Single… Trannys??? October 28.
http://bossip.com/45199/exclusive-beyonces-single-trannys.
10
As of April 28, 2009.
original music.11 Despite its different theme – kissing an elderly woman – Princess’
version has some striking similarities to the original (Figs. 4 and 5). Alphacat, on the
other hand, came up with his own lyrics to “Single Ladies” – released right before
President Barack Obama’s inauguration, it featured Alphacat playing Obama gloating
about winning the election – but also significantly altered the visuals. Venetian Princess
is clear parody, while Alphacat satire, both, it will be argued, are fair use.
Figure 5 Venetian Princess' rendition of "I
Kissed a Girl"
Figure 4 Katy Perry in "I Kissed a Girl"
COPYRIGHT – Negotiating Cultural Ownership
The Consequences of the DMCA and YouTube’s Safe Harbor
Receiving a takedown notice is a well-known occurrence for many of YouTube’s
regular users. There are a number of reasons a video would be taken down other than an
infringement claim – most notably obscenity – but notices on copyright are common. The
1998 Digital Millennium Copyright Act was an attempt by lawmakers to address the new
11
I am not sure if this is true, since there are plenty of other videos on the site that do use the whole song. It
may be that Venetian Princess consistently offended a particularly vigilant record label and her popularity
increases her visibility. For her take on it, see the video description on her Spears spoof video:
VenetianPrincess. 2008. Britney Spears – Womanizer – Parody. November 17.
http://www.youtube.com/watch?v=DoP3C76ioTU&feature=PlayList&p=4F46C8825EE866C5&index=9.
challenges to copyright owners in the face of digital technology. The “anticircumvention” statutes of the law have been particularly criticized for allowing, some
claim, copyright owners too much leeway to stop what may be legitimate uses; this has
been well documented. (Electronic Frontier Foundation 2008) Users – people who create
content from original works – have arguably not faired well under the DMCA, including
those previously protected from infringement notices, like researchers and academics.
(EFF 2008; Decherney and Sender 2007)
Yet under the DMCA, content distribution sites like YouTube, Veoh, eBay and
MySpace were given “safe harbor” status: meaning they were not required to prescreen
the content on their site, and instead they merely had to take it down if they receive a
notice of infringement.12 Fred von Lohmann has argued that content producers, like the
makers of music video remakes, in the end, have benefitted from this statute: it allowed
for filmmakers to reach a broad audience without having first to approach the traditional
gatekeepers (legal teams and licensing offices for record companies and production
studios). (von Lohmann 2007) Even if a vlogger receives a takedown notice, he can file a
“counternotice” and can try to successfully argue his work is fair use. (von Lohmann
2007, 131)
It is hard to know how many YouTubers are aware they can argue for fair use, or,
for that matter, how to argue for fair use. The example of Venetian Princess is telling.
Here is what she posted regarding YouTube’s response to her remakes, which initially
used the original music:
12
For more information see: “DMCA Safe Harbor Provisions.” http://chillingeffects.org/dmca512.
I am getting FLOODS of messages and comments complaining about how the
song [Britney Spear’s “Womanizer”] is not the same tune as the original.
YouTube said I can't do exact song parodies anymore, unless I get written consent
from the writers which is pretty much impossible. So I had to write an original
generic song. (Venetian Princess 2008)
Of course copyright and fair use, as will be discussed, are not that simple. It is possible to
use an entire song – or “the heart of the work” – still fall under fair use and forgo seeking
the consent of the writers. In fact, fair use specifically allows culturally important forms
of production and criticism to happen without having to ask (or pay) for permission.
Nigahiga, the second most popular YouTuber with nearly one million subscribers and
growing,13 also had two of his most popular videos taken down for use of a song. Both he
and Princess are in YouTube’s partner program,14 which allows them to get a share of the
ad revenue from those placed on their videos. Videos taken down is revenue lost –
perhaps in the tens of thousands of dollars – a point unmentioned by Nigahiga in his rant
video.15 (Nigahiga 2009)
Britney Houston told me in an interview one of her first videos, a remake of
Beyoncé’s “Flaws and All” was taken down. Houston was hurt, “I’m like her biggest
fan,” she told. Many of Houston’s videos are clear parodies, so I would not be surprised
if she had a good case. There is a knowledge gap tipping the odds in the negotiation of
cultural ownership in favor of the copyright holders:
When copyright owners aggressively allege infringement, threatening fans with
massive civil penalties, fans may naturally choose to shut down or hide their
13
As of April 28, 2009.
14
For more information, see: http://www.youtube.com/partners. An interesting note: a condition of entering
the partner program, for which one has to apply, is ownership of all the rights to your work.
15
I will not deny that the idea of profiting from videos made from derivative works makes the case for fair
use a harder sell, but there is a lot of precedent, specifically in the 2 Live Crew and Bleistein cases for
disregarding the commercial nature of a derivative work.
activities rather than stand their ground….Actual practice involves far more flying
below the radar than it does a clear understanding on either side of what fans' fair
use rights allow. (Tushnet 2007, 141)
Fan practices have a harder time “flying below the radar,” as YouTube is one of the most
popular sites on the web. With having to know now about fair use regulations and in the
worst cases having access to a lawyer, DMCA regulations are raising the costs of being a
user, as Yochai Benkler succinctly states. (Benkler 1999, 562) Fans are being treated as
consumers, subject to the rights of owners, rather than as producers in their own right,
thus reproducing a mass media model instead of a more open one appropriate for a digital
age. (Benkler 1999, 568)
It is important not to frame fans as completely innocent, as many do know their
content is “technically illegal,” but, as Tushnet argues, fans also deem their work
harmless, perhaps because of their personal love of the content and its creators and
because, in most cases, their work does not replace the market for the original. (Tushnet
2007, 141)
I argue for a comprehensive view of cultural ownership, one that incorporates not
only the arguments made – most notably – by James Boyle and Lawrence Lessig about
the public nature of cultural artifacts (Boyle 2008; Lessig 2004) but also one that
incorporates the specific history of music videos as interactive, democratizing objects; the
history of digital production and technology, which helped foster new musical styles by
allowing listeners to become producers; and the lived realities and ideological meanings
of participatory culture, which, using the scholarship of the 1980s and 1990s, is truly the
history of mass media consumption. This recognition lays the theoretical foundation for
more expansive notions of fair use with respect to most music video remakes.
Figure 6 Kurt Cobain in Nirvana's "Smells Like
Teen Spirit"
Figure 7 Weird Al Yankovic in his parody video
"Smells Like Nirvana"
Fair Use and Expanding Ideas Around Ownership
To be sure, a democratic and market-based society must have notions of
ownership, an integral part of progressing the sciences and the arts. Where, then, is the
line when negotiating claims to ownership?
The 2 Live Crew case (Campbell v. Acuff-Rose Music 1994) provides a useful and
relevant example to help the guide the way. The hip-hop group, 2 Live Crew, sampled
Roy Orbison’s “Oh, Pretty Woman,” but flipped its meaning for an African American
audience. After a Court of Appeals denied the rap group’s claims of fair use, because
their work was commercial and the took the heart of the work, the U.S. Supreme Court
ruled in favor of the group, claiming they needed the heart of the work in order to execute
a successful parody. Here, the protected nature of parody was firmly established. Yet
while many music video remakes are parodies, many are not, but still beg for fair use
protection. In Bill Graham Archives v. Dorling Kindersly (2005), the Court of Appeals
ruled that a publisher can use an image s/he has not licensed if it is placed in the context
of other images and in another narrative (of criticism, exposition and substantively
different from the work’s original context). This may protect more remakes, as it may
allow some who use spare parts of the video and music in their works, but the derivative
videos are still being used in same context as the original: a music video.
In light of the decision against music sampling in Bridgeport Music v. Dimension
Films (2004), it seems the legal weight has shifted to the owners, delegitimizing, in my
opinion, a number of otherwise legitimate works. Long before Bridgeport, however,
Weird Al knew that, in both legal and, more importantly, professional ways, he was
better off paying for the rights to produce. It has allowed him to make videos visually
similar, at times identical, to the originals. (Figs. 6 and 7) Yankovic pays for this
(creative and financial) opportunity with both money and freedom. Recently when James
Blunt objected to a proposed parody of his hit “You’re Beautiful,” Weird Al relented:
“The legality in this case is somewhat moot…my label could release the parody without
Atlantic's blessing, but they don't really want to go to war with another label over this. So
really, it's more of a political matter than a legal matter.” (Thompson 2006) This creates a
system in which users “pay for the right to create, and hence only those who can pay are
allowed to create.” (Lessig 2004, 86)16 Cultural ownership, I argue, should not wholly
exist within financial markets where the right to use is exchanged for money.
This calls, then, for more aggressive conceptual frameworks around the fair use of
derivative works that sample music and video and is especially important for a medium
historically based on pastiche, internal criticism and juxtaposition. Some models
currently exist for evaluating the fair use of online video, most notably Patricia
16
The need to pay for licenses has led to bifurcated system in the music industry, where industry-backed
artists can afford catchy samples of classic songs and independent artists are forced into other forms of
production. This has led to a crisis of authenticity, it has been argued, in those forms of music like hip-hop
– and potentially music video remakes – where sampling and borrowing are fundamental to creation.
Marshall, Wayne. 2006. Giving Up Hip-Hop's Firstborn: A Quest for the Real after the Death of Sampling.
Callaloo. 29: 3, 868-892.
Aufderheide and Peter Jaszi’s statement of best practices for online, an expansive set of
guidelines for the online content producers. (Aufderheide and Jaszi 2008) Some of their
suggestions map quite onto the visual and aural strategies of the remakes: videos that
dub, splice or re-edit the original can be said as “commenting or critiquing the
copyrighted material,” at their base level, as they recall and contrast amateur production
with professional production. Videos that use the original music and attempt to replicate
the look of the original are often “reproducing…to memorialize, preserve or rescue an
experience,” in this case, the user’s own act of consumption. Remakes using original
music but altering the visuals, perhaps the most problematic since it literally makes a new
music video, are possibly “recirculating a work [the song]…for the purpose of launching
a discussion,” in this case, about what visuals the song call for (for instance, a video of
Miley Cyrus accompanying Katy Perry’s “I Kissed a Girl” begs a discussion, even if
silly, of whether such a juxtaposition is warranted17). Finally remakes that re-sing or
write new music based on the original are undoubtedly “recombining elements to make a
new work,” a qualification many of the aforementioned remakes likely meet.
The Transformative Nature of Music Video Remakes
Yet these prescriptions clumsily map onto music video remakes. There is an
easier argument for the “transformative” nature most music video remakes on YouTube.
In Pierre Leval’s now foundational argument, the most important rule in judging an
17
A very popular video with over 6 million views. Jonas7595. 2008. Miley Kissed a Girl and She Liked It.
June 3. http://www.youtube.com/watch?v=S2TpxWz5ino.
object’s fair use is its “transformative” departure from the original.18 Despite the diversity
among the remakes, they (almost) all share one crucial characteristic: they replace or
heavily re-imagine the star or celebrity in the original. This celebrity-deficit is crucial to
their transformative nature. As cited above, professional or corporate music videos
function exclusively as marketing vehicles. The presence of the celebrity (or a
doppelganger for the star) is key. Without the star, the video has little or no value (to this
day, rare is the video without at least some presence of the celebrity). Without the
celebrity image intact, fan remakes, then, serve a different purpose, function in other
markets and alter the meaning of the genre. They re-imagine the original from a user’s
perspective. Here, the history and theory of music video and digital production meets
practice of negotiating cultural ownership online to envision a way of imagining remakes
as fair and permissible forms of production.
Britney Houston’s “Lipgloss” is a prime example. In her video, Houston recreates
specific scenes, shots and dance moves from the original. In attitude, she suggests camp
and parody at their simplest instantiations but also traffics in homage, making her fair use
claims a bit blurry.19 Yet Britney Houston is not and will never be Lil’ Mama. From this
simple fact, all other transformative interpretations arise: her gender difference from Lil’
Mama allows for camp and parodic interpretations and that difference marks the video as
less a promotion for the song than a moment for humor and critique. Even Houston was a
18
The others including the nature of copyrighted work, the amount copied and the effect on the market of
the original and variously interpreted and too slippery for this discussion. Leval, Pierre N. 1990. Toward a
Fair Use Standard. Harvard Law Review, 103, 1105.
http://docs.law.gwu.edu/facweb/claw/LevalFrUStd.htm.
19
For the chaning nature on camp in online contexts see: Christian, A. J. 2009. Camp 2.0: A Queer
Performance of the Personal. Paper presented at the International Communication Association Annual
Conference, May 21–25, in Chicago, IL.
woman who looked quite similar to Lil’ Mama, her recognizable physical difference still
changes the purpose of the work.
It is vital that scholars come up with new ways to expand notions of cultural
ownership and legitimize new practices of production. These genres, rich with history,
mobilize new modes of representation and involve citizens in the general marketplace for
ideas, which know no owner. Without clear protection from resource-rich copyright
holders – beyond flawed “safe harbor” and other DMCA statutes – content may start to
disappear under the shear weight and complexity of laws assigning ownership.
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