Music Video Remakes and Fair Use

ajchristian's picture

The following post is a truncated version of a paper I’ve written and plan to submit to conferences and publications soon. For an unrevised draft of the paper, click here. For a playful YouTube video I made for the community of producers on the site, click here.

For non-academics and makers of YouTube and other online video the headline for this post should read: Music Video Remakes = Fair Use! Though this isn’t the main point of my essay, it’s obviously the most relevant and practical. My basic fair use argument is this: using the most important part of Pierre Leval’s “four factors” and jettisoning the rest, music video remakes are almost always fair use because they necessarily “transform” the original work they mimic. Why? Because corporate music videos (the originals) are promotional tools for celebrities and music. Nearly all remakes either change, replace or remix the celebrity or the music in a video, thereby transforming fundamentally the original purpose of the music video and creating something new and interesting!

There are other ways to justify the fair use of the many other videos that appear on YouTube. The best of these remedies is Peter Jaszi and Pat Aufderheide’s “Code of Best Practices in Fair Use for Online Video,” a clear and brilliant set of guidelines to assure users they are not criminals — it also provides a useful defense for users when they receive a takedown notice from YouTube or another portal. There are only six categories, so it’s worth a look-over. I was surprised how many YouTube users obey the takedown notice without protest; there is a knowledge gap between copyright holders (mostly corporations, but some small producers) and YouTube users. Many users are simply unaware of the fair use defense, and if they are, they are not skilled enough to make a convincing one.

The bulk of the paper examines the history of the music video and shows how, from it’s inception, the video was all about challenging coherent narratives, dominant representations and authorship itself, or at least that’s how scholars interpreted it. Music videos were inherently participatory, sites of fandom; people sang and acted out the videos in their homes. I use this framework to suggest the video remake follows in the music video tradition of challenging dominant narratives, encouraging fandom and viewer participation. 

A remake should not have to be a parody to be fair use; it shouldn’t even have to critique the original, which courts have seen as the clearest fair use defense. Many of the remakes are simply homages, and my framework allows for derivative works that don’t critique but instead extend or reinvent the original. Transformativeness should be interpreted as broadly as possible. Just becauseWeird Al Yankovic asks (and pays) for consent because he needs the industry’s approval to survive, doesn’t mean that model is appropriate for the user who simply wants to remix to demonstrate skill, or his/her love or disdain of the original!

This is a very clear extension of James Boyle (The Public Domain) and Lawrence Lessig’s (Free Culture) argument that culture belongs to everyone, that it is public, and that no one can make anything that is wholly original. As Henry Jenkins argued quite a long time ago, we all make culture from existing (often mainstream and corporate) culture.