The next version of the Social Networking Revolution is here. Forget apps, HTC has built a physical “post to Facebook” button directly onto their latest phone: the Status. Two versions of the phone premiered in the UK last month under the names ChaCha and Salsa. In a bold move to make the phone more “American,” AT&T remarketed it as the Status and enlisted the help of Blink-182 to boost the ChaCha’s image. What makes the launch of the HTC Status interesting? The way AT&T chose to advertise it.
With the help of advertising agency BBDO, AT&T and Blink-182 searched YouTube for videos set to the band’s music. Blink-182 acknowledged that what their fans had done was illegal, but instead of condemning this form of flattery they mimicked it and created their own mash-up of fan videos accompanied by their new single.
The irony that a big phone company who is constantly suing for all sorts of patent infringement would turn around and infringe upon infringement is amusing. But is the commercial really illegal? That would be a question for the Fair Use Doctrine.
Fair use is a right that we have as American citizens to reproduce a work without permission. There are Codes of Best Practice that give guidelines for certain industries, but these are vague and open to interpretation. Here are some questions you might ask yourself to decide if your mash-up/remix/etc. is legal:
– Does my reproduction transform the original work? Satire, parody, commentary, archiving, and “collage” can all count as transformative.
– How much of the copyrighted work have I used? Did I use just enough to make my point and not more?
– Is my reproduction intended for educational or non-profit use?
And as for YouTube? Users have two options when uploading video: a standard license or Creative Commons. A standard license allows users to view but not download a video while the Creative Commons option allows others to use your video in their own work. If you use footage licensed as CC YouTube will automatically generate a citation that is attached to your video. Blink-182 did cite the users they took video from, but it is evident from the final product that CC was not used properly because of the missing auto-citation.
AT&T may have adhered to the Fair Use Doctrine when they posted this montage, but they did not comply with YouTube’s Terms of Use. Does this mean that the company condones and participates in the very thing they sue to prevent? It will be interesting to see if AT&T’s credibility suffers next time they take someone to court.
