Mediasapien Censored at Vimeo.com Over Fair Use – What Do You Think?

16 01 2009

Reprinted from the Journal of Visual Culture, Volume 10, Issue 1

Mediasapien recieved this brief email earlier today from a rep at vimeo.com, a video sharing site:

Dear Media Sapien:

Your video ‘Grand Theft Auto 4 Law Abider – A GTA 4 Performance Art Project (1455312)’ has been removed from Vimeo because it violates our Terms of Service.

Vimeo does not allow game walk-throughs, game strategy videos, depictions of player vs player battles, raids, or any other video gaming video that simply depicts individuals playing a video game. 

If you believe this was an error, please send a civil response to this email and we will work with you, assuming you are correct.

It was regarding this video:

Mediasapien promptly emailed them back with this reply:

To Whom It May Concern at rights@vimeo.com

Hi.  Thanks for the email informing me that a video clip of my artwork,  “Grand Theft Auto 4 Law Abider – A GTA Performance Art Project” was removed from vimeo.com.  I would like to discuss the validity of this decision.  

If it was removed at the request of the copyright holder or the source material, then please let me know and that will be sufficient for me.  However, if no complaint was issued, then I would like to defend the use of this source material in my video.  By the standards you reference, many other clips on vimeo.com are actively violating your Terms of Service ( a quick search for “videogames” or “machinima” or “gta” pulls up hundreds of questionable clips).  However I do not consider my artwork created with videogames to be within your definition, however vague.  Quoted:

Vimeo does not allow game walk-throughs, game strategy videos, depictions of player vs player battles, raids, or any other video gaming video that simply depicts individuals playing a video game. 

My video does not show a game walk-through, strategy guide, depiction of battles, raids or other video that “simply depicts individuals playing a video game.”  My video shows a documentation of a long-form performance art project, produced and documented within a game world.

The conceptual work I produce relies on unaltered video-game engines as the basic tool for creating interactive performance art.  These performances occur in realtime, in a wide range of single-player and multiplayer environments.  Almost all of these performances get recorded for later exhibition in real-life and online galleries and museums.  Having worked in this field for years and written extensively on the subject, it is my opinion that my use of these various game engines constitutes fair use.  It is within these games that the activity of crafting identity has become a personally compelling conceptual activity. Almost like a treasure hunt, one can explore these games searching for inconsistencies or “holes” in the game world, looking for ways to exploit and subvert the game designer’s intent and make social commentary or cultural critiques without relying on programming, hacking or modifying the game. By working within the limitations provided by each game design and style -by restricting oneself to the rules of the game as opposed to working in a 3d development environment that allows unlimited modification – one is faced with severe restrictions and limitations of expression that have become highly representative of the challenges faced when one begins to create online identities and have digitally-mediated relationships.

Based on the 4-part criteria established by the US Copyright office for determining fair use, my artwork does not significantly suggest copyright violation.  My artwork uses a small portion of GTA 4 compared to the source material.  It is safe to say that my artwork will not significantly affect the retail market for GTA 4.  And my use of the game is significantly altered from the original source material.  In fact, the goal of my artwork is to specifically “break” the player’s and programmer’s expectations of the game experience by intentionally behaving in a way that forces the game to do something it wasn’t meant to do.  In this artwork, by refusing to fight, kill or break any rules at all, I effectively subvert the original source material’s meaning and change the game’s context on a fundamental level.  The game subsequently behaves in “broken” and unexpected ways, creating a new experience, one that was entirely unplanned by the game developers, and is conceptually unique.

To me, these qualities clearly define this artwork as fair use.  Thank you for your consideration. 

Rights@vimeo.com never replied to my message, and my work remains banned on the their site (However, it can still be viewed on YouTube and several other sites).

Who owns virtual space and who is responsible for policing it?  Are multi-user games a territory or a tool? Can a creative act transform a videogame from private property into a public art site?  And perhaps most appropriate in my situation – Can a copyright censor distinguish their personal criticism of an artwork from that work’s legal status?  Unfortunately the lack of a response from anyone at Vimeo.com only furthered the unanswered questions regarding the nature this work and Vimeo.com’s screening process, as well as the legal boundries of virtual territory.

Because of the rapid transference of our daily interactions and activities into digital forms via social networking and multi-user territories, many traditional views regarding space, place and location are becoming obsolete.  To an ever-growing demographic, the tangibility of virtual space is rapidly approaching that of real space, and subsequently more personal and intimate moments are shared among friends and lovers whose only connection to each other is through a computer simulation, video game or website.  These virtual places, in WoW or Second Life, or Grand Theft Auto’s Liberty City, have become woven into the tapestry of memories for millions or people, and are rapidly becoming tangible sites that rival any physical location in meat space.  While traditional legal definitions regarding intellectual property are easily employed to make a copyright infringement claim against people who create works of art within these virtual spaces, a viable argument can be made that these digital locations are rapidly becoming domains of the public and a broader definition of “fair use” should be applied to them.

Artists immediately identified the unique creative possibilities of using videogames as virtual sites, and the artworks produced using these videogame spaces quickly emerged into a distinct genre called Machinima.  After a brief period of uncertainty and confusion, most game publishers eventually saw the  benefit of supporting Machinima as a source of free promotion instead of trying to suppress it as copyright infringement.  Many game makers routinely include free tools for both making new things within the game, as well as to allow players to document and share video clips of their creations – or simply record and share game-play videos.

Developers realize that art, music videos, movies and strategy walkthrough’s created with the their videogame offer much more than free promotion and economic longevity for their work, these creative re-uses help to define the broader cultural relevancy of their games, and reaffirm the legitimacy of the fundamental technologies that power them.   In the age of mash-ups and remix culture, reusing the work of others has become more than tolerated, it’s encouraged and supported – provided the borrower doesn’t get too successful or make significant money.  As witnessed with the legal fight over audio sampling in the music industry, fair use takes a subordinate role to copyright once economics enter the picture.

Vimeo.com, which has demonstrated an inconsistent policy of policing their inventory of videos for clips which they feel might infringe upon the rights of copyright holders, chose my work from among the multitude of uploaded videos produced within GTA to censor, while leaving thousands of other clips in place.  While this pro-active self-censorship is not unusual, it is also common for sites like vimeo.com to wait until a cease-and-desist complaint is made by a third party before presuming legal status of a given work – especially considering all uploads are accompanied by a mandatory click-thru signature verifying the uploader’s rights to the material in the clip.  As far as I know, no cease-and-desist request was ever issued regarding my work.  Neither I, nor my lawyers, ever received any communication at all from the GTA’s developer or publisher, and since vimeo.com declined to share their reasoning for the ban, I have no idea why my work was removed while so many other clips were not.

I admit that the conceptual nature and subtlety of the performance may be challenging for some people to recognize it as such, therefore I went to great pains to explain the work and it’s relevance in detail when I posted the video online.  However, with no other communication from the representatives at Vimeo.com, I am left with one of two possibilities for why my work was removed.

Either A) My work was banned as part of some impersonal, automated “flushing” process and there was no real consideration of my work by an actual human being, or B) There was a person who looked at my work and rejected it specifically.

As an artist this second choice is a far worse option, but one I’m forced to consider…  Did an actual person at vimeo.com see my video’s title, take the time to view the clip, read the descriptive text, and still decide that is was not a work of art?  That level of rejection goes much deeper than if a simple game-play video clip is banned.

But why should I accept this decision from vimeo.com?  Ultimately even the harshest and least forgiving critique of an artwork can only be used to gauge its quality, not it’s legitimacy.  The critic does not get to determine whether the work qualifies as art – the artist gets that luxury.  The critic can pan a work, but only the artist’s intent defines it as art.

Assuming that the rep from vimeo.com hated my performance, the video documenting it and everything it represented, their opinion does not grant them the right to determine whether or not it’s defined as art with a capital “A.”  By banning my work while ignoring thousands of video clips that blatantly infringe on copyright, they are effectively substituting censorship for criticism – a familiar reaction that historically goes hand-in-hand with artistic or cultural innovation.  The banning of my clip is a rejection of its validity as art and everything it represents conceptually.

Machinima as an art form is among the most recent to join the seemingly endless queue of genres and technologies that each had to fight for legitimacy within the fine art world.  Most recently biological, digital and device arts each had to establish their rightful positions as valid artistic genres, joining older forms that are readily accepted today but faced similar struggles in their early years, such as film and photography.  There is no evidence or support for the idea that Machinma might fail the test of artistic legitimacy, so it is reasonable to experience frustration at the resistance to the genre’s ability to enjoy the full legal status and respect equal to the rest of visual culture.   As more people support artistic remixing and reuse, the capitalistic restraints that have stifled creative innovation will erode, and the resulting availability of tools and technologies like Machinima will establish a new paradigm of what it means to be a creator when the very fabric of culture becomes the canvas upon which art is created.

And maybe vimeo.com will repost my clip.

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