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Between Fair Use and Infringement: The Perils of the Video Essay Form

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by Nelson Carvajal
April 10, 2013 8:35 AM
12 Comments
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"In its intent the video essay is no different from its print counterpart, which for thousands of years has been a means for writers to confront hard questions on the page. The essayist pushes toward some insight or some truth. That insight, that truth, tends to be hard won, if at all, for the essay tends to ask more than it answers. That asking—whether inscribed in ancient mud, printed on paper, or streamed thirty frames per second—is central to the essay, is the essay. […] Images and sound, those engines of emotion, have their own story to tell. Promiscuity of the image isn’t a weakness of the essay-film. It’s a feature. A volatile one, sure. And it’s changing the way we write, changing our conception of what writing means."

-John Bresland, On the Origin of the Video Essay


During the last couple of years, as I developed my voice as an independent digital filmmaker, a majority of the content in my filmography grew under the direction of appropriation art, and in particular, the video essay form. I suppose that’s why the above quote by Bresland speaks to me deeply these days. By “changing our conception of what writing means,” this visual form of critical storytelling also falls victim to accusations of piracy, infringement and perhaps worse, unoriginality.

In 2011, I began making cultural commentary video essays, on themes of mass media consumption, and then in 2012 I was lucky enough to begin making video essays on the cinema for Press Play. Creating and sharing video essay works with the likes of Matt Zoller Seitz and Kevin B. Lee (the masters of the video essay form) opened up my eyes to the far-reaching potential that the video essay could achieve; in an age of hyper social media and over saturated online content creation, the video essay form was the perfect medley for retooling existing media in an effort to discover new meanings or alternative interpretations, while also drawing back on nostalgia and what certain images meant to different viewers. It’s been an exciting time, as the definition of the video essay becomes more expansive and includes other forms of appropriation art like the supercut or mashup.

But an alarming cloud has been building: accusations of copyright infringement.

A well-known case of this is Kevin B. Lee’s unfortunate clash with YouTube, which resulted in his online videography being deleted completely. How could such a travesty happen? Surely both YouTube and the third party copyright owners (in Kevin’s specific case it was Warner Bros. Music) could see the brilliance and vitality behind such a compilation of moving image criticism and commentary. Why go through all the trouble of making Kevin start over with a blank slate on his YouTube channel? What about his avid fans? These questions are all the more troubling because there is probably no one who can legitimately answer them. The reason for this is that a copyright takedown is usually automated. In other words, if a video clip has a digital watermark, it’ll spur an online takedown notice. There is no discussion by a team at a film studio; there’s just an Internet spambot, making it clear that you cannot use this material.

And then that same dark “accusation of copyright infringement” cloud got around to me too. In February of this year I created a 4-minute video montage of every Best Picture winner, in chronological order. Using Final Cut Pro as my editing platform, in the modest work desk of my bedroom in my apartment, I created the video in one sitting, on a Tuesday afternoon. And, as with every video essay I create, I uploaded it to my Vimeo profile, with the citation: “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.” For each video, I always acknowledged that I was abiding by U.S. Copyright Law. After all, they were for critical, cultural and educational use. So, with the Oscar video, I wanted to share my enthusiasm for the coming Academy Awards broadcast.

The enthusiasm proved to be contagious.

I could never have predicted that my Oscar video would go viral and receive some national media coverage (Esquire Magazine, Entertainment Weekly, etc.). The best part about it was that it introduced a new set of viewers to my existing body of work—and when you’re an independent digital filmmaker, that’s the best kind of currency. The movie business is such a hard arena to stay alive in and having an audience getting excited about your videography is a vital encouragement to keep going.

Fast forward to Monday April 8th, 2013: I receive an email from Vimeo, saying that the Walt Disney Company found the material to be “infringing” and they had to remove the video from my Vimeo account. That hurt. 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.

I didn’t make a single penny off of my Oscar video and the Walt Disney Company didn’t make any money by removing it from Vimeo. It was a labor of love for me, birthed during a prolific stage of my career. By removing my Oscar video, the Walt Disney Company only shoots itself in the foot: Much of the feedback for my video centered on how people were excited about the Oscars again and wanted to actually seek out some of those forgotten titles. You wouldn’t know that now, since the Vimeo page is deleted, along with its stats, “Likes” and comment thread.

This experience has put me into a disheartened funk. Part of me suspects the Walt Disney Company saw no artistry in my video and solely looked for a bottom line win in their books. I know that’s probably not the case. It’s just the digital copyright police out on the prowl, taking down one video after the next. What I do know is that yesterday I was excited about what video essay I would start working on next.

Today I’m not so sure.

Regardless, it’s a troubling issue that needs more attention, because 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.



Nelson Carvajal is an independent digital filmmaker, writer and content creator based out of Chicago, Illinois. His digital short films usually contain appropriated content and have screened at such venues as the London Underground Film Festival. Carvajal runs a blog called FREE CINEMA NOW which boasts the tagline: "Liberating Independent Film And Video From A Prehistoric Value System." You can follow Nelson on Twitter here.


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12 Comments

  • NELSON CARVAJAL | April 15, 2013 9:34 AMReply

    It is back! - http://vimeo.com/60050642

  • Patricia Aufderheide | April 12, 2013 11:13 AMReply

    Thanks for the tips of the hat to Center for Social Media (centerforsocialmedia.org/fair-use) stuff on fair use, especially the Documentary Filmmakers' Statement of Best Practices in Fair Use. You can't practice your First Amendment rights if you don't know them! In this case, it does mean issuing a counter-takedown notice, and getting that scarey pop-up. But large media companies never sue on fair use claims they are likely to lose, and actually not on fair use issues generally. In fact, the MPAA just came out in vigorous defense of fair use (the Ravens issue). If you know your fair use rights, you can defend them. This is a very disturbing story in any case, though, and shows the many many many problems for the future of creativity when algorithms and bots, not people, are left in charge of making infringement claims.

  • IPadvisor | April 10, 2013 10:36 PMReply

    I'm sympathetic and your comments of criticism, satire and/or education would probably make it non-infringing under Fair Use. But unlike most people's expectations, the Fair Use doctrine is not law or a set of rights. Rather, it is a judicial guideline and a defense against a claim of infringement. Of course before you can rely upon a Fair Use defense, you have to be sued.

    As to the site operators, most of whom function under a safe harbor provision, they are typically unwilling to run their own legal risks on a poster's behalf since they can be sued separately for failing to take down potentially infringing material once take-down notice has been given.
    So until it's changed, the EFF, et. al. notwithstanding, that's just how it is.

  • Jason Mittell | April 10, 2013 7:48 PMReply

    Such takedowns are common, but you can push back - Vimeo will allow you to dispute a takedown. And there are resources to help you defend your creative, transformative work - see the Center for Social Media's resources for fair use & online video!

  • Jason Mittell | April 10, 2013 7:49 PM

    Oops - the href link didn't work:
    http://centerforsocialmedia.org/fair-use/related-materials/codes/fair-use-and-online-video

  • Nayan | April 10, 2013 1:42 PMReply

    With Copyright reform in the works, don't get disheartened. Like Brian suggested, some lawyers may want to help in this, and other such legitimate fair use cases.

  • ABillington | April 10, 2013 1:41 PMReply

    Wonderful article, I'm glad you decided to write about this and share your honest story. This is so sad to hear. The world is evolving, even though the movie industry isn't, and IP laws are stifling innovation and creativity. This is exactly what Fair Use was created for and you should easily be able to win a Fair Use case here. The EFF and organizations Brian Newman named are fighting and helping, but not enough. Hollywood still pays the $3 million salary of the disgusting bigot known as the MPAA's head lobbyist Chris Dodd. His power alone snuffs out any of the little guys fighting for individuality and creativity. This is a disheartening situation where this kind of blinding, embarrassing light must be shed in the ugliest corners of Hollywood where IP laws do more harm in our culture than help.

  • TFB | April 10, 2013 1:57 PM

    What copyright reform? What are you referring to? Over the last 5 years the only reformation I've seen is the MPAA getting stronger and successfully pushing organizations like YouTube and Vimeo to bend in the favor of the copyright holders without due consideration, which is exactly the situation that Nelson is in here. This "copyright reform" needs to be turned 180° in the other direction.

  • TFB | April 10, 2013 1:57 PM

    What copyright reform? What are you referring to? Over the last 5 years the only reformation I've seen is the MPAA getting stronger and successfully pushing organizations like YouTube and Vimeo to bend in the favor of the copyright holders without due consideration, which is exactly the situation that Nelson is in here. This "copyright reform" needs to be turned 180° in the other direction.

  • dan aronson | April 10, 2013 12:55 PMReply

    Also, the folks at the Stanford Fair Use Project (http://fairuse.stanford.edu/) are great! Please keep fighting the good fight!

  • Brian Newman | April 10, 2013 12:41 PMReply

    It's troubling, but not an area that is unexplored. There's a ton of work being done on behalf of Fair Use. Look at the work of American University (Peter Jaszi and Pat Aufderheide); USC Law School and Berkeley; the EFF, Michael Donaldson and others. There are lots of legal experts who will work with you pro-bono on this issue, and it seems worthy of more than just an op-ed piece here (albeit a great op-ed piece).

  • Michael Mirasol | April 10, 2013 11:56 AMReply

    Don't you dare stop Nelson. I know the feeling. The very reason I shifted to Vimeo was because YouTube didn't give a shit. Vimeo seems to be following suit, and the matter of timing is highly suspect. No more attention, no story.

    Makes me sad Roger isn't around to shine a light on this.

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