Getting Into the Mashup Mix
By: Alexandra Wharton
Marketers are seeing
significant value in
combining existing
elements to create
something new.
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."
The DMCA
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. Continued on Page 2...
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