Most of you have probably seen this, as it’s been posted from here to Siberia, but:
I first saw it on sartorias‘ journal, and there’s been an interesting little debate over there. We can all agree, I think, that putting the little assertion on the video that it constitutes fair use means precisely jack; it wouldn’t do any good in court. Having said that — is this fair use?
Well, we can’t decide that, any more than the vidder can; the only thing that can really establish an answer (so far as I’m aware) is a court case. But I think it is. I saw commentators over on sartorias‘ LJ breaking the two halves apart, talking about how the vid definitely parodies Twilight but plays its Buffy scenes fairly straight. IANA IP expert, but I don’t think that’s the way to view it. The question is the purpose of the work as a whole, not its constituent parts. And I’d say, in my opinion, that the vid in its entirety does indeed pass that test.
Collage can qualify as transformative work, so far as I’m aware; you can cut up and re-use copyrighted material in order to make a larger work. Montages are the same thing, in video. So if you put together a montage which serves a distinct purpose, one not identical to that of the original material, then yes, I think it should count as fair use. It’s possible, I suppose, that a judge could say this is fair use of Twilight (since Stephanie Meyer’s purpose was not to show Edward as a creepy, socially inept stalker who deserves staking), but not of Buffy (since Joss Whedon’s purpose was, among other things, to critique certain tropes of vampire narrative). But I see this as the layperson equivalent of using, oh, Judith Butler’s theories to comment on gender issues in Twilight. You apply one thing to another thing in order to make some points about it. Why should it be different just because the thing being applied is material from a media franchise, rather than the words of an academic 99% of the country has never heard of?
Of course, it is different. One of these entities has the money and possibly the will to pursue a court case over potential infringement; the other does not. But however practical that difference may be, the concept of it annoys me.
I think things like this should be fair use. I think society benefits from the ability to play things off one another in this fashion, to engage with them directly, rather than leaving them in hermetically-sealed containers such that we can only look at them through the glass. Will this vid financially damage Buffy and those who profit from it? Probably not. Will it damage Stephenie Meyer et al? Maybe. After all, Twilight is the target of the criticism here. But a negative review can do the same thing, and can include quotes from the text to boot. I see just as much original effort in the (exceedingly well-done) editing of these video clips as I do in the composition of that review.
(Tagging this “fanfiction” because it’s a crossover narrative in vid form, but mostly because this is part and parcel of my thoughts on fanfiction, so it’s better to keep them all under the same tag.)