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Vampires in a thaumatrope: juxtaposition as fair use ?

January 11, 2013

The following is a real live legal issue torn from the pages of Ars Technica. Sorry it’s not about zombies, it’s vampires but also copyrights; these are both related to zombie law, so I am taking the liberty of writing this to promote the issue. Please read at Ars: ““Buffy vs Edward” remix unfairly removed by Lionsgate” by Jonathan McIntosh

The legal issue is about mash-ups and fair use. Now, as everyone knows, monsters love to mash.

Consider the copyright issue: the images of characters are spliced to make a commentary of juxtaposition. As in a thamautrope where two images are rapidly flipped to create a new image there is a transformative use of the prior materials.

So if two characters and merged in a transformative story – is that fair use commentary or a derivative work of both characters? Consider Batman and Superman in World’s Finest or Justice League. Consider also Superhero Cafe (did they have license from DC and Nintendo? or is this more clearly parody?)

Consider also League of Gentleman but also Air Pirates case.

And now back to today’s Ars article mentioned at the start of this article – what about the Buffy vs. Edward remix? This mashup is serious criticism about gender roles and stalking behaviors. Watching the HTML5 pop-up video version makes these criticisms very clear. But the problem may be that the original left the criticism in subtext. The literal mash-up creates the criticism clearly for any intelligent reader but it was literally only the juxtaposition of clips. It is literally copying of clips of characters merging of their scène à faire – it’s a crossover comic and is purely derivative –

If that theory is correct then fair use requires at least some commentary superimposed on the content to become commentary. –which is to say that the pop-up version is fair use commentary but the original viral version without explicit commentary was not fair use copying — this feels wrong in an internet culture worldview where clips fly about – but from the warped view of a copyright law that explicitly requires expressions be “tangible” the mashup may not be a completed work of fair use criticism without the subsequent explanations. Therefore the original video mashup is not entitled to the defense of fair use and is derivative work requiring licensing of both the characters’ material … ?

Copyright reform is so desperately needed. There are people who speak without their own words and we allow rights holders to silence them. But what do I know. Maybe my friends at Law and the Multiverse could help explain it better; they are much smarter about law than me lawzombie.

Still this is not merely a legal issue. It is a cultural issue directly related to zombies. Zombies defy binomial categories (neither living nor not-living, sort of both). Like a thamautrope the existence through transcendence of a duality – note in relationship to bi-polar and transvestite; note also the Buffy-Edward mashup is cultural commentary about gender identity politics. This kind of zombie outsider speech is often told in subtext (it is riskier to speak explicitly and outsiders can be in great danger when doing so). Subtext can be more powerful – evidenced by the viral nature of this video. Is it any surprise the powers that be want to censor it? It’s fan fiction all over again… but seriously, what do I know – this is NOT legal advice!!!!

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