At our sister blog Press Play, video essayist Nelson Carvajal shares a story that should alarm anyone who enjoys the recent wave of video-based criticism on the Internet. In February, Carvajal made a four minute tribute to the Academy Awards featuring every Best Picture winner from the history of the Oscars. He posted the clip to Vimeo along with a disclaimer: "Fair use is codified at Section 107 of the Copyright Act: Under the fair use doctrine, it is not an infringement to use the copyrighted works of another in some circumstances, such as for commentary, criticism, news reporting, or educational use." The clip went viral, appeared on numerous websites, and generated almost 500,000 views.
And then two days ago, weeks after it was published and this year's Academy Awards, Carvajal received an email from Vimeo saying his essay had been taken down due to a copyright claim by the Walt Disney Company:
"The video had accumulated nearly half a million views on Vimeo and even made some television appearances on various local news broadcasts. People liked it and were sharing it. But now that has stopped. The Walt Disney Company, in one swift move, not only flexed their corporate litigation muscle, but they did it well after the fact. I understand that digital watermarking on certain clips can spur an online takedown notice but why didn’t it happen sooner? The video’s viral success wasn’t exactly a secret. If the Walt Disney Company found my work to be 'infringing,' why wait until AFTER the Oscar telecast to take it down? Again, there’s no one to answer these questions, because copyright takedown notices are impersonal, automated and cold."
As Carvajal makes clear in his post, he didn't earn a penny off his video; it was made as a scholarly exercise by a critic and fan. One could argue that Disney actually served to profit from his work, since it might have served to bring past Oscar winners to the attention of viewers who would purchase the films (of course, one could also argue that Carvajal's work was embedded on websites like EW.com and Esquire.com, which did earn at least a few pennies off the ad revenue generated by the traffic, but that's just me playing devil's advocate).
I'm no lover of piracy -- I've written about it before and gotten my fair share of hate mail on the topic (mostly because I think it's generally wrong) -- but I don't see video essays like Carvajal's as piracy. If someone puts "Argo" up on YouTube, by all means: take it down and go after whoever uploaded it. That's piracy. But if someone uses select moments from "Argo" to examine it in a critical way, and they're encouraging people to think about and engage with movies intelligently, and they're not selling tickets to see it, that's something else -- the difference between taking content and giving content new context and meaning that potentially enhances it and its value.
A copyright lawyer might disagree (like, say, one that works for Disney), and by the letter of the law, video essays probably are piracy no matter how many disclaimers you include. But the fact of the matter is some of the best criticism in recent years has been video essays made by editors like Carvajal, Matt Zoller Seitz, Kevin B. Lee, Matthias Stork, and more. They, and others like them, aren't thieves -- they're critics and artists.
I'll leave you with Carvajal's conclusion, which I agree with:
"The video essay form is a vital filmmaking genre and should be respected, guarded and supported rigorously. Otherwise, we, as a movie-loving audience, will lose the bigger battle of innovation and progress in the ever-changing landscape of film criticism, digital filmmaking and online accessibility."
Read more of "Between Fair Use and Infringement."