One meme that has reached a widespread audience is the series of trailer mashups, music videos and fan videos brought to the forefront of the internet from the minds of the growing adult-male diehard fans of – yes, you’re reading this correctly – the animated TV series, My Little Pony: Friendship is Magic. They call themselves “Bronies,” and their unforeseen and yet vested interest in a TV show whose intended audience was prepubescent girls was equally unanticipated by My Little Pony creator Lauren Faust. Regardless of how or why the 20 and 30 somethings were first drawn to Twilight Sparkle and the mystical land of Equestria, the fan base has caught the attention of the /b/ board of 4chan, a dangerous playing field of trolls and hackers.
The YouTube account of Brony Masterlinkx had been shut down and restored multiple times this year allegedly at the hands of Hasbro on account of copyright infringement, but without comment from Hasbro, it’s unclear whether the takedown notices were authentic,or the handiwork of meddling 4chaners. Uploading of verbatim episodes aside, this week we will examine the Brony mashup, My Little Wu-Tang Clan. Note, this is NSFW for language.
Fair Use: My Little Wu Tang Clan by Viraus2
When analyzing whether a mashup is covered under fair use, we look to the four fair use factors set forth in the §107 of the Copyright Act. As in earlier installments, we’ll examine each of these four factors to determine whether My Little Wu Tang Clan constitutes fair use.
Factor 1: The purpose and character of the use. My Little Wu Tang Clan is noncommercial and intended for entertainment purposes. The video takes two disharmonious styles – the cuddly innocence of MLP and the hardcore thug syle of the Wu-Tang Clan’s Shame on a Nigga – and mashes them together, cutting up the visuals from My Little Pony to fit with the Wu-Tang Clan song through a convincing lip-synch.
The effect is jarring and potentially comedic because hearing obscenities come out of a pony/unicorn is not in line with the original style of either work. But what does transforming these styles and meshing them mean? We could read social commentary into the recontextualization of these two pieces—the impotence of children’s television programming and the childishness of rap and hip-hop. By mixing these two styles, the author, Viraus2, transforms these two pieces and dilutes the extremes of both ends.
While the transformation arguably sexualizes My Little Pony, obscene transformations fare no differently than decent ones under copyright law. In Pillsbury v. Milky Way, the court noted that “value judgments have no place in a [fair use] analysis.” The crude nature of the mashup alone cannot deem the use unfair. Because My Little Wu Tang Clan is noncommercial and transformative, this first factor favors fair use.
Factor 2: The nature of the copyrighted work. Both My Little Pony and Wu-Tang’s material are copyrighted and commercial in nature. As a result, this second factor weighs against the Brony mashup.
Factor 3: The amount and substantiality of the portion used. Snippets of visuals from My Little Pony were remixed to appear lip-synced to the audio from Wu-Tang Clan. Likewise, visual snippets from Wu-Tang’s music video were incorporated into the mashup. The final product consisted only of these copyrighted materials. This means that the Bronies used a substantial portion of the copyrighted visual works. Furthermore, the Wu-Tang Clan’s song was used in its entirety, which goes against the spirit of fair use. The quality or fidelity of the song, however, was reduced by its uploading to YouTube. Nevertheless, because the Bronies used more than enough copyrighted material “conjure up” the work that they were commenting on, this third factor weighs against fair use.
Factor 4: The effect of use upon the potential market. It’s important to identify the potential markets that Hasbro and the Wu-Tang Clan are targeting. My Little Pony targets young girls and the Wu-Tang Clan primarily targets adolescent males. It doesn’t seem that the demand of the Brony market would harm eitherof the other two markets. My Little Wu Tang Clan is not a substitute for My Little Pony. At best, it complements the Wu-Tang Clan’s higher-quality soundtrack.
While Hasbro may have legitimate concerns that My Little Wu Tang Clan is tarnishing My Little Pony, these concerns do not weigh against copyright fair use. In Campbell v.Acuff-Rose, the Supreme Court recognized that when a “lethal parody . . . kills demand for the original, it does not produce a harm cognizable under the Copyright Act.” This means that devastating criticism may actually decrease the demand for the original work, but that is not the kind of market effect that justifies a denial of fair use. Here, this fourth factor favors the Bronies because their specialty market is limited and the potential harm to My Little Pony and the Wu-Tang Clan seem minimal.
Generally, courts recognize that the first and fourth factors are the most important in a fair use analysis. When we consider the weight of all these factors and the major recontextualization that My Little Wu-Tang Clan has done to both materials, we feel that the video is protected by fair use. If Hasbro would have recognized that the Bronies’ transformative work poses little threat to My Little Pony, it’s unlikely that Hasbro would have asked YouTube to takedown My Little Wu-Tang Clan.
Because the law permits companies like Hasbro to shield their fair use analyses from public view, these companies are not being held accountable for sending improper takedown notices. As mentioned last week, ISPs like YouTube and Tumblr have little incentive to find defects with a takedown notice. Without reform to the DMCA’s notice-takedown-putback regime, corporate might will continue to define the outermost limits of creativity that user-generated content fosters.