What does video tool Vine have in common with iconic rappers like the Beastie Boys and the Notorious BIG? More than you think. Like hip-hop, Vine is way to sample and collect culture — and it may have to run the same legal gambit that rappers did a decade ago. If you haven’t tried it, Vine is a tool to make looping, six-second video clips and post them on social media or a website. The company, which is owned by Twitter, launched in January and its videos have already become a part of the Tribeca Film Festival, the U.S. Senate and major marketing campaigns.
A new video mash-up culture
Vine exists because of new smartphone technology but it also replicates older forms of mashup culture. In particular, it mirrors what pioneering hip-hop artists started to do in the 1980s — taking sounds from myriad sources and sharing them through records like Paul’s Boutique and Ready to Die. Those hiphop records are aural tapestries that today stand as monuments to a new form of music and community. In the 2000s, however, copyright collectors came along and sued the rappers — resulting in a drawn-out debate over where to draw a line between culture and intellectual property theft. Hip-hop largely prevailed but was damaged in the process. Now, a fight over a Vine video last month suggests history may repeat itself but this time, on the video front. The dispute involved the musician Prince using a law called the DMCA to force Vine to take down six-second concert clips posted by a fan. The fan didn’t oppose Prince’s takedown demand, meaning no has ruled on whether a six-second clip actually infringes copyright. But if a court did look at the Vine case, the decision process would lead right through hip-hop.
Hip hop, copyright and six second samples
In the 1990s, hip-hop artists called the sounds they use “samples.” Copyright owners, however, called it theft instead and sued the musicians. The conflicts led to important court decisions about music, but whose principles apply equally to Vine. As the Disco Project explained in a thoughtful analysis of the Prince case, the most relevant precedents involve the Notorious B.I.G. and the Beastie Boys. Both were involved in famous cases involving short samples. In the case of the Notorious B.I.G., a Tennessee court shut down store sales and radio plays of the late rapper’s “Ready to Die” album, and a jury awarded $4 million in damages — all over a three note horn riff. An appeals court, which had earlier written “get a license or do not sample,” upheld the verdict in 2007. As law professor Tim Wu explained at the time, the case and others like it were especially absurd because the copyright owner was not even a musician but a one-man corporation who had obtained the music rights under shady circumstances. Fortunately, in the case of the Beastie Boys, a California appeals court took a more rational approach to the issue and ruled that a six second (the same length as a Vine video!) flute sample on the song “Pass the Mic” didn’t infringe on copyright. The Supreme Court, in 2005, refused to reconsider the decision. The upshot, however, is that today we still don’t know for sure how long a sample can be before it infringes copyright. Twitter declined to comment on whether it believes Vine videos are covered by copyright law’s “fair use” exception, but a source familiar with the company told me that the decision to make the videos six seconds long was not a coincidence.
Chilling our new visual culture
The trouble with Prince’s request to take down the Vine videos is not so much the disappearance of the videos themselves — but instead that Vine and other forms of visual expression could meet the same fate as early hip-hop. When the Beastie Boys released their sample-stuffed 1989 masterpiece, Paul’s Boutique, the law was still in a gray area and no one was suing hip-hop artists. That’s no longer the case. As copyright scholars have explained, the threat of lawsuits and the astronomic cost of clearing samples means, today, no one could make an album like Paul’s Boutique in the first place. And that’s the danger posed by Prince. Right now, we’re enjoying a rich new age of images — everything from Vine videos to BuzzFeed cat GIFs that are shared, recast and then shared again. If lawyers began to throw copyright grenades into this mix, these splendid strains of creativity could be quickly snuffed out. Does this mean that all Vine videos should be fair use? It’s hard to say. People are already using the platform to produce clever and original works of art — the sort of thing copyright law is meant to reward. Likewise, big companies who use Vine for marketing have a case for using intellectual property law to protect their brands. It seems inevitable that these issues will get resolved sooner than later. The biggest task for now, though, is to find a way to do so without resorting to the harsher tools of copyright law, including the $150,000 damage demands that are a common feature of cease and desist letters. Congress is right now reviewing the Copyright Act. The process presents a perfect way to protect and foster this emerging age of visual culture — rather than try to smother it like hip-hop. But let’s give the last word to the rappers (click on the Vine vid below) : (Image by R. Gino Santa Maria via Shutterstock)
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