So, the video in my previous post—rather half-assedly assembled on a late-night whim in my apartment (and judging by the comments, I should really tidy up said apartment a bit next time such a whim strikes)—seems to have become a whole lot more successful than I’d have thought possible. What I’d love to do in the future is take advantage of some of the equipment and (as important) editing talent at Cato to do more occasional short videos—maybe five-minute “explainers” of some important but slightly obscure topic like National Security Letters that would give a quick but semi-thorough account of issues that can seem impenetrable to people who care but don’t have time to wade through the stacks of paper I spend my days with.
The thing is, as I started drafting a tentative script and blocking out shots, I realized that my intuition and my sensibility is to bricolage tiny snippets of visual pop culture to illustrate what I’m talking about. So, for instance, I though about something like this:
Voice Over: The first statutes authorizing National Security Letters were passed back in the 70s, but with the passage of the USA PATRIOT Act…
Video: Newly-passed Laws walking down Capitol steps from Schoolhouse Rock, How a Bill Becomes a Law.
Voice Over: …powers that had been quite narrow and limited grew massive in scope…
Video: Soldiers shooting at giant monster ants from the classic sci-fi movie Them!
Now, by any sane standard, it seems to me, this kind of appropriation should be covered by the principle of Fair Use. The video would be non-commercial and educational in nature. The copying would be “transformative,” using the copied material as a small element of an original and very different form of expression. The proportion of each work used would be miniscule—never more than a few seconds—and indeed, partial, insofar as I probably wouldn’t use the audio in most cases. And in no plausible way would the quotation of those short snippets affect the market for the original work or derivative works.
Yet as I noted in one of my very first videoblogs, we seem to have reached a level of copyright insanity where a lot of people—or at least a lot of lawyers—would feel very anxious about all this copying, however intuitively it might seem to be covered by fair use. And that creates a vicious cycle where the principle itself seems to contract as licensing of even the most minimal copying becomes normalized.
It might seem that the kind of appropriation I suggest above is frivolous—that I could just as easily make a video without it. But I don’t think that’s true. Sure, I could deliver a dry lecture on National Security Letters, maybe punctuated with some PowerPoint slides, but it wouldn’t be nearly as engaging or visually dynamic. And more generally, this fear of quotation and allusion in multimedia work robs us of the ability to make use of our shared culture in absolutely vital ways we take for granted in speech and writing. In an op-ed on the same topic, someone might write that “Big Brother is watching.” Think of all that goes on there. At the content level, it acts as a kind of conceptual hyperlink, invoking a whole rich set of associations that serve to anchor and reinforce the point in the reader’s mind. But at a meta-level, it also binds writer and reader together as members of the same community of reference. You know something has gone badly wrong with American copyright when such a natural human cultural activity—funny as it might sound to call video editing for YouTube “natural”—exists under such a shadow of uncertainty.