I saw this interesting article in the New York Times today about mashups and I'm really interested in the fact that Viacom comes out and affirmatively blesses these sorts of cartoon-rap music mashpus, while Disney declines comment:
Nickelodeon, part of Viacom, sees the humorous videos as fair use of its copyrighted content. “Our audiences can creatively mash video from our content as much and as often as they like,” said Dan Martinsen, a Nickelodeon spokesman. “By the way,” he added, “that was a very nice edit job by whoever did the SpongeBob mash.” (That laissez-faire reaction, it should be noted, comes from a company whose corporate parent has a $1 billion piracy lawsuit pending against Google, the owner of YouTube.)
Disney’s view is starkly different: any unauthorized use of Disney property is stealing. Still, the company picks its battles carefully. While it closely monitors the Web for infractions, Disney will not discuss how it evaluates potential cases of copyright infringement and declined to comment on the “Crank That” videos.
This highlights to me an example of where fair use fails us by leaving a dark cloud over the heads of creative mash up artists. When will Disney sue or clarify it's position? It benefits from the lack of clarity in fair use, I suppose, and it has perhaps more pressing issues when it comes to piracy generally. But when does silence or failure to contest these uses become consent/acquiescence/acceptance? Legally, there's no bright line and I fear that the mash up artists -- as well as our cultural arts -- will suffer.
The companies that produce it have great financial backing. Thus, can afford to produce this kind of material and eventually see it aired. How? In many ways. One if having the financial backing....having the ability to hire attorneys to protect them against lawsuits based on certain types of violence associated with the content. Or, they can make private monetary donations to each other at certain times of the year. So many back room deals...because advertiser pay good money to have ads run in conjunction with these "mash ups".
I was sent a cease and desist for using content from a funny t-shirts site that had a creative commons license for doing mashup work with their designs. They said the license only applied to the web content, and not the design content. So if they can make that distinction about what content is a funny design and what is a funny website, then anything goes.
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