It’s become a new art form to combine various existing elements to create something totally new. However, it can also be dangerous creative and legal territory to navigate when particular items are protected by copyright laws.
Some online marketers, eager to leverage new technologies for promotional purposes, are uploading and sharing video creations with copyrighted materials despite concern about potential copyright infringement, because they want to beat others to the punch.
Founder of the site HowToDoVideo.com Jim Kukral explains there is a belief in the first-move advantage – those who get their videos up on YouTube first are the people who will win. Kukral adds, “online video is the wild, wild West ” it is how search engines were in 2000.”
The first mashup to garner significant attention was not a video, but “A Stroke of Genius,” by Freelance Hellraiser in 2001. It combined the vocals of Christina Aguilera’s “Genie in a Bottle” with The Strokes’ “Hard to Explain.” In the next few years, a deluge of similar attempts followed. Freelance Hellraiser went on to record a single for Sony, while artist and producer Danger Mouse famously teamed up with musician Cee-Lo to form the group Gnarls Barkley, whose song “Crazy” was one of 2006’s biggest hits.
Mashup is a loose term that means to remix more than one source of data to form a new combination of information. But music is not the only type of mashup – there are also video and Web mashups. John Musser, founder of the website ProgrammableWeb, which catalogs mashups, says that the goal is “to create something new that is unique and greater than the sum of its parts.”
The mashup movement has exploded over the past three years, taking many by surprise. Many industry watchers consider the emergence of mashups as a proof point of Web 2.0 – because it involves widespread sharing and mixing of online content, many of the basic Web 2.0 tenants.
Video mashups also are becoming increasingly popular – users are mixing their amateur video with copyrighted video or audio and adding these new creations to their own sites, uploading them to video-sharing sites, or sharing them through social networks.
Affiliate Summit co-founder Shawn Collins says that when he creates a mashup, he makes sure the sources of data are not copyrighted. He uses royalty-free music from sites such as Stock20.com and royalty-free video from sites like iStockPhoto. com and FreeStockFootage.com. For a recent mashup Collins made, he grabbed a laugh sound effect that comes with the Sony Vegas video-editing software program. He got the audio from a podcast that he understood to be open for use, as he didn’t see any claims to the contrary.
Beth Kanter, a trainer, coach and consultant to nonprofits regarding technology, uses Web tools such as video blogging, screencasting and virtual worlds. When Kanter creates a mashup, if she finds something she thinks is absolutely perfect and it is all rights reserved, she asks for permission. She also looks for materials that have been resourced under Creative Commons – its tagline is “some rights reserved.” Creative Commons’ licenses enable copyright holders to grant some or all of their rights to the public while retaining others through various licensing and contract schemes, including dedication to the public domain. Creative Commons is a nonprofit founded in 2001 by a group of U.S. copyright experts who became concerned that the default copyright laws were restricting creativity in the digital environment by preventing people from accessing, remixing and distributing copyright material online.
The ease by which any song or film can be pirated onto the Internet caused an intellectual property rights debate that picked up momentum with music-sharing site Napster eight years ago. As sampling and sharing online becomes more widespread, intellectual property and technology lawyer Denise Howell wonders if copyright rules are out of sync with the values of the day – she calls current copyright law “quite Draconian concerning infringing and sampling.”
In 1998, Congress passed The Digital Millennium Copyright Act (DMCA), which made major changes to copyright law and attempts to address copyright in the digitally networked environment. The DMCA Act shields Internet companies from liability for copyright infringements if they act promptly to remove the clips.
YouTube.com constantly receives DMCA Takedown Notices from copyright owners – asking it to take down videos that claim to infringe copyrights. In March, Viacom sued YouTube for $1 billion, accusing the video-sharing site of “massive intentional copyright infringement” based on 160,000 unauthorized Viacom clips that were uploaded onto YouTube.
In August, eight more parties, including the Rugby Football League, charged that YouTube encourages copyright infringement to generate public attention and boost traffic to its site.
This fall, YouTube plans to deploy a system to filter out copyrighted content by using digital fingerprinting technology to compare user-submitted videos to copyrighted materials, but critics say that this technology has not come fast enough.
The DMCA has been criticized for making it too easy for copyright owners to demand that website owners take down infringing content when it may not in fact be infringing. Electronic Frontier Foundation (EFF) senior intellectual property attorney Fred von Lohmann claims the DMCA is unfair because some copyright users are misusing it for censorship purposes.
Copyright holders have to consider the provisions of Fair Use, which is a doctrine in the U.S. copyright law that allows limited use of copyrighted material without requiring permission from the rights holders. It can be invoked when the value to the public outweighs the cost to the owner of the copyright. Under Fair Use, copyrighted material can be sampled – it is what allows short clips of copyrighted material to be included in documentaries under the name of scholarship and parody.
So the big question many are asking is, can mashup creators sample from copyrighted material and be protected under the provisions of Fair Use? Howell says that if a sample is used noncommercially and has a strong parody or commentary component, “the Fair Use odds improve but there are no guarantees.”
Von Lohmann says the consequences of sampling copyrighted materials for mashups is unpredictable. He calls it a “gray area” because there has never been a court case about mashups. Von Lohmann explains that sampling under the protection of Fair Use depends on the creation’s purpose, how much copyrighted material the user took, the nature of the work (factual or creative) and the effect it has on the original. “Most mashups are creative and noncommercial, so those things favor Fair Use,” von Lohmann says.
But if a marketer were sampling copyrighted material to promote her own product, it could be argued that it is not covered under Fair Use. “If the work is commercial and promotional, then it will be harder to defend,” von Lohmann says, adding the warning that if marketers are going to be using other people’s copyrighted materials, they need to understand the pitfalls and they should consult an attorney.
Legal Changes Afoot
There is evidence that the way copyright law is enforced on the Internet could change eventually. At a session on copyright and social media at June’s SuperNova conference in San Francisco, one of the panelists, Viacom lawyer Mark Morrill, said that Viacom is only interested in pursuing infringement of Viacom material on YouTube for nontransformative, verbatim use. Viacom is not pursuing transformative uses – which is the description that mashups and remixing fall under. That means if you are using copyrighted material without altering it, you may be in legal trouble. However, if you are transforming that copyrighted material (adding other elements, etc.), Viacom is not coming after you.
Regarding all of the amateur videos using various clips of The Rolling Stones songs that have been uploaded to YouTube, attorney Howell explains that YouTube has had great success convincing the major record labels to adopt strategies for approving works for this kind of use, “thus hopefully making the takedown issue for mashups and sampling irrelevant,” she says. YouTube has deals with Warner, Sony BMG, EMI and Universal Music Group that enable people to legitimately incorporate works from these record labels’ artists into their user-generated content on YouTube.
And in August, online video-sharing site, Veoh Networks, preemptively sued Universal Music Group, asking a judge to prevent the music company from filing its own copyright infringement action – even if users upload videos to the Veoh site that contain unauthorized music from Universal artists. Veoh argues that it is protected under the safe harbors provisions of copyright law because it does not encourage its users to infringe copyrights and actively investigates and takes down infringing material.
Creating these mashups is getting easier with the tools that let users overlay images and text on top of copyrighted video. This can be useful to marketers and affiliates who want to add their own promotional content (see sidebar above).
Yoni Silberberg, CEO of PLYmedia, claims his company is not worried about infringing copyrights because its services are overlays – the original content is always kept intact. Experts agree that because services from Cuts, PLYmedia and others like AffiliateVideoBrander don’t host or store the video, they are not liable for copyright infringement.
Howell says PLYmedia’s BubblePLY gets around copyright infringement issues because they rely on the commentary component of fair use, and the fact that it does not copy or host the commented-upon works. Howell says it’s the same for Cuts – it’s a commentary addon, with no copying or redistribution of the original work.
Mapping Out a Course for Mashups
The most common type of mashup is a Web one. ProgrammableWeb’s Musser says that in the past, mashups were only accessible to programmers because they involved writing some code, but that has changed due to the advent of new tools. To date, ProgrammableWeb. com lists 2,100 Web mashups, “but that’s only a fraction of the mashups out there,” says Programmable Web’s Musser.
Types of Web mashups include mixing data from different sites like one that shows data about the musician Beck and combines that with audio snippets from a music site, videos from YouTube and Beck’s album covers from Amazon.com. But the most common type of Web mashup is mixing data with a map. As of July 2007, 42 percent of Web mashups were maps.
There are thousands of personal map mashups that plot text, links and data over the digital globe. In the past two years, map providers like Google, Yahoo and Microsoft have created tools that let users layer their own geographic interests on top of maps and satellite images. With certain restrictions, map providers offer mapping software to users through feeds, called APIs (application programming interface), which can be combined with data from other sources.
In April, Google launched its own mashup software, My Maps, which allows users to personalize their Google maps by attaching images, text and video without writing any code. Greg Sterling, founder of Sterling Market Intelligence, says that currently Google is giving the maps away – users just have to have the Google logo on the map in the lower-left corner.
Musser says Google is investing in maps because half of all ad dollars are local – it leads to contextually based local advertising and it can run AdSense as well. It is also a way for Google to build its brand.
U.S. general manager for Clicks2Customers Sam Harrelson says that mapping is one of the areas of tremendous opportunity for affiliate marketing because it is relationship- based and reliant on the element of trust. When deciding on an entertainment venue, people rely on recommendations. With reviews of particular places introduced into Google Maps, Harrelson sees further growth potential for affiliates looking to monetize their communities in a relationship- based paradigm.
Experts say that today’s media companies seem to understand that the times are a changin’ when it comes to enforcing copyrights on the Internet.
Mary Hodder, founder of Dabble, a video search site, predicts that media companies are going to be more flexible about their copyrights than the record companies were in the 20th century. “These music companies are keen to believe that they own everything forever ” but I don’t think the rest of the entertainment business will do that,” she says.
Demonstrated by the popularity of Creative Common licenses, the current zeitgeist is that users don’t agree with restrictive copyright laws, and believe in the benefits of sharing, repurposing and remixing. Like the repealing of prohibition in the ’30s, laws change when they no longer are in step with the ideals of the people.
Attorney Howell says that for media companies, enforcing copyrights is a question of business reality. In terms of sampling for commercial use, media companies will continue to take a hard line because the courts have said they can and there’s a sufficient financial payoff. When it comes to pursing a similar strategy for noncommercial mashups and sampling, Howell says the math doesn’t add up. “What makes sense instead is adopting fine-grained ways to both authorize and benefit from creative reuses of copyrighted works.”