Transformative Re-Use: The Re-Circulation of Fair Use Materials

In 2011 I opened an account on Critical Commons in order to upload a series of film clips I was analyzing for a journal article on films about the 1964 Kitty Genovese murder in New York City. I uploaded several clips from a number of films, many of which were obscure, difficult to find and hard to obtain. The special journal issue of Urban History for which I wrote the article was being published in Scalar, USC’s digital publishing platform (the issue is forthcoming later this year).  Scalar enables authors to link directly to materials in established archives, such as Critical Commons and the Shoah Foundation (also at USC), without having to re-publish them.  In light of the increasing timidity around copyright among many academic publishers, Critical Commons provides an important space in which academic researchers can assert their rights to fair use of otherwise copyrighted material.

On their About page, Critical Commons describes their mission in the following terms:

Critical Commons is a public media archive and fair use advocacy network that supports the transformative reuse of media in scholarly and creative contexts. Critical Commons is also part of the technical and conceptual architecture for numerous electronic publishing efforts [such as Scalar] that directly engage media as objects of analysis, curation and critique. At the heart of Critical Commons is an online platform for viewing, tagging, sharing, annotating, curating and spreading media. Our goal is to build open, informed communities around media-based research, teaching, learning and creativity.

By uploading my film clips to their site, accompanied by commentary and an invitation to others to provide additional commentary, Critical Commons provides me with crucial support for my assertion of a fair use claim for these film examples.  It also sees the function of collecting and circulating media materials as a process of “transformatively reusing” media, suggesting that there is a larger creative and analytic process at stake here.

Something interesting happened after I uploaded two particular films to Critical Commons. One film was Alex Proyas and Salik Silverstein’s 1980 short (8 minute) student film “Groping,” which the two created while studying at the Australian Film, Television and Radio School in Sydney. “Groping” re-enacts the situation of the 1964 Genovese murder: a woman is raped and murdered within view and hearing distance of her neighbours in a nearby apartment building and only one witness calls the police. The film taps into one increasingly popular interpretation of the Genovese case that blames the police for not responding to calls from citizens who saw or heard her being assaulted.

The other was the hard-to-find 1964 TV documentary “The Detached Americans,” which I bought in a rather scratched up 16 mm format and had transferred to DVD. The film features CBS newscaster Harry Reasoner, who provides moral narration on the ills of social apathy in the wake of the Genovese case. Both films have been exhibited in recent years at local film festivals and art events, but are otherwise unavailable to most viewers-until I posted them to Critical Commons.

“In the eyes of the public,” as archivist Rick Prelinger argues, “YouTube ha[s] become the default online moving-image archive” (2009, 269). “Groping” now appears on YouTube, uploaded by a few different users/fans, along with my commentary from Critical Commons. So it is not only the film that is circulating, but so is my interpretation of it. And, because of the Comments function on YouTube, we can see what viewers and fans are now saying about the film. This in itself is interesting, save for some of the (expectedly) inane commentary. Some commenters provide useful contextual information on 1980s Sydney, Australia and the school where Proyas and Silverstein produced their film. Another reported that early broadcasts of the film cut out the gruesome rape and murder scene. These are crucial bits of information that I would not have become aware of had I not shared  “Groping” on Critical Commons. I am sure, too, that Proyas fans will continue to revel in their access to the short he made with Silverstein.

Then a producer for Discovery TV working on an episode about the Kitty Genovese murder emailed to thank me for submitting “The Detached Americans” to Critical Commons. Until I posted the film, “The Detached Americans” was not otherwise available as historical footage for producers, though the fact that the film is not a good copy presents them with a problem of broadcast-quality reproducibility.  The producer asked if I might help her locate who she should talk to in order to license the use of clips from the film. While I was not able to help her, I find it useful to see how a corporate broadcaster plans to incorporate this material into another story about the Genovese case.  A week later, a reporter for the non-profit documentary group Retro Report based in New York also contacted me in hopes of locating a better print of the film.

I expect that more requests for access to “The Detached Americans” will continue.  This year marks the 50-year anniversary of the Genovese murder, and media and academic interest is very high. Two new books on the murder by Kevin Cook and Catherine Pelonero have appeared and both were reviewed by Nicholas Lemann in the New Yorker. Several radio and TV news segments have been broadcast, and in March 2014, Fordham University held a 50th anniversary memorial conference dedicated to research on the Genovese case that also featured the authors of the two new books.

So what can we learn from this? A few things, I think. One is that the re-circulation of materials like these hard-to-find films beyond the contexts of fair use in Critical Commons provides additional information about how these materials matter in a contemporary context.  In this way, Critical Commons is not only a means for collecting materials in the context of fair use; it also enables their spread. While I cannot fully know how these materials are circulating, the evidence I do have on their re-circulation enables me to analyze their “transformative reuse.” Examining how fans on YouTube comment on “Groping” and how media producers use these films provides some modicum of information on the cultural work the films, and multi-modal forms of circulation, do.  It is possible, too, that the re-circulation of these films may spur additional interest in them in ways that could bring money, or at least attention, back to the people who made them.


Cook, Kevin. Kitty Genovese: The Murder, The Bystanders, the Story that Changed America (New York: W.W. Norton, 2014).

Lemann, Nicholas. “A Call for Help: What the Kitty Genovese Story Really Means,” New Yorker (March 10, 2014).

Pelonero, Catherine. Kitty Genovese: A True Account of a Public Murder and its Private Consequences (New York: Sky Horse Publishing, 2014).

Prelinger, Rick. “The Appearance of Archives,” in The YouTube Reader, ed. Pelle Snickars and Patrick Vondereau (Sweden: National Library of Sweden, 2009).

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