Culture Enriches Everything: Fair Use and The Office Time Machine
If you're looking for proof that new cultural works speak to and are embedded within a vast array of pre-existing works and ideas, you can't do much better than "The Office Time Machine," a new art project by video remix artist Joe Sabia. Over the course of the last 18 months, Sabia has isolated every pop culture and real world reference from the US television show "The Office," and arranged them by the date of the events, people, and media they reference. It's much more fun to look at than to read about, so feel free to check it out before reading on.
It's an impressive piece of technical work, and it will certainly be interesting for fans of the Office to see the incredible range of allusions embedded in the show—Sabia clipped out and identified over 1,300 from 9 seasons of the program. But it also makes an important point about copyright and culture, and is itself a perfect demonstration of how certain assumptions baked into our current law are out of line with reality.
This isn't Sabia's first time pushing the boundaries of those assumptions. He's got an impressive portfolio of video work, much of which relies heavily on the fair use doctrine, like this supercut of every cigarette smoked in the series Mad Men. But "The Office Time Machine" makes the point even more explicitly: the show is better for its ability to refer to and incorporate a common culture. As Sabia puts it on the project page:
Culture enriches everything. The Office is relatable (and hilarious) because it borrows so much from culture, and people get the references. Culture is society’s collected knowledge, art, and customs. It’s what surrounds us and unites us, and it allows us to collectively laugh at a joke in The Office about Ben Franklin or M. Night Shyamalan. Culture, simply put, is the seasoning in a meal.
That's a great point, and it's a valuable message for art to deliver.
But here’s another message: to make this work, Sabia had to run a legal gauntlet—one that would discourage many artists. For one, to get the source videos in high quality, Sabia rented and ripped every episode of "The Office" on DVD. DVDs come with digital restrictions management software installed. Even if the intended use is a fair one, as in this case, the Digital Millennium Copyright Act (DMCA) prohibits circumventing that DRM.
There’s a bit of a safety valve, fortunately: the Librarian of Congress is authorized to grant exemptions for appropriate purposes. EFF has been fighting to expand that safety valve for years, and one of the exemptions EFF successfully fought for in the last round was for ripping DVDs and online streams for non-commercial remixes, giving artists like Sabia some breathing room to engage in his work. We quoted Sabia in our testimony for the exemption, and cited his work with ACLU documenting the media narratives surrounding the War on Drugs.
The exemption puts Sabia in the clear, but highlights an issue with the rulemaking process: if the exemptions must be reviewed from scratch every three years, it can be dangerous to take on a long project like "The Office Time Machine," which took 18 months to create.
Then, once the artist has gotten the materials together, they can face lots of fear, uncertainty, and doubt about whether their use can be considered fair. There are plenty of examples where fair use is abundantly clear, and courts can find fair use even when the new work is commercial, or copies the entire original, or enables people to make their own copies.
Taking portions of a work and rearranging them for a totally transformative purpose is a classic fair use, but courts have sometimes imposed additional limits. In one such example, a court in the Harry Potter Lexicon case sided mostly with author J. K. Rowling against a publisher selling a fan encyclopedia incorporating text from the book.
Finally, while "The Office Time Machine" will hopefully stay up and available for a long time to come, there's the risk that an algorithmic copyright cop like YouTube's ContentID will remove or flag the videos that make it up. Even if the law is on Sabia's side, an automated match could force him to go through the site's appeal process just to keep the video up. Video artist Jonathan McIntosh faced that situation last year when a fair use remix of Buffy the Vampire Slayer and the Twilight movie series was flagged by Lionsgate Pictures.
EFF is working on making it easier and safer for people like Sabia to make and share works like "The Office Time Machine." As lawmakers and the public continue to review copyright law, we should aspire to a policy that would foster works like this—not inhibit them.
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