How to make a 'Twilight' fan remix film without getting sued

Today we've got another guest post. This one's from Jacqueline Lipton, a professor and associate dean at Case Western Reserve University Law School in Cleveland. She's co-director of the school's center for law, technology and the arts, and is the author of an upcoming Maryland Law Review article called "Copyright's Twilight Zone: Digital Copyright Lessons from the Vampire Blogosphere," from which this piece has been adapted....
By Jacqueline Lipton 
With the release of “The Twilight Saga: Eclipse” fast approaching, the fan blogosphere is again whipping itself into a frenzy. And Twi-hards aren't just talking about the movies— they're producing their very own digital interpretations of the story, often borrowing copyrighted material from the "Twilight" movies and mixing it up themselves.
Can they do this?

Copyright law hasn’t provided particularly useful guidance about what fans can and cannot do in their remixes. While posting large segments of “Eclipse” on YouTube certainly will infringe copyrights, many fan-made remixes will fall into a gray area that may or may not be a “fair use.”
Copyright law gives no upfront guidance about where to draw the line between infringement and fair use. Fan remixes range from the highly expressive to mere collections of copyrighted images and music that fans like to enjoy for free. Courts are more likely to excuse remixes at the expressive end of the spectrum as "transformative" fair uses. An example of an expressive Twilight remix is “Buffy vs Edward (Twilight Remixed)” by Jonathan McIntosh. (below)

The short video juxtaposes clips from "Buffy the Vampire Slayer" with clips from "Twilight." It shows Buffy encountering and ultimately killing Edward Cullen, who is portrayed as a creepy stalker.
While McIntosh uses copyrighted material, he notes: “This is a transformative work and constitutes a fair-use…” He is probably correct about this. The video uses a variety of very short clips, repurposing them to send a completely new message. It's also a non-commercial use (he's not selling anything) and likely won't compete with the actual "Twilight" movies (or "Buffy").
That being said, it should be noted that the fact that he asserts fair use doesn't make it so. A court is the only body that can determine fair use and, even then, only as a defense to an infringement lawsuit. There is nothing a fan can do upfront to guarantee fair use. Even an assertion that “no infringement was intended” is not helpful. So devout fans of Edward Cullen may face copyright liability for the video mashups despite all their good intentions.
This is not to say that copyright holders, such as "Twilight" author Stephenie Meyer and film studio Summit Entertainment, shouldn't be able to exercise any control over their valuable properties. They may object to certain fan remixes, particularly those that use extended clips or are misleading in some way.  Many "Twilight" fans make their own trailers for the forthcoming films. While some Twi-hards make it clear that their videos are not official trailers, others are less transparent.
Take a look at this fan-made trailer for "Eclipse." (below)

It includes material from a number of copyrighted works, notably the previous "Twilight" movie "New Moon." It also uses copyrighted text from the "Eclipse" novel along with aspects of the book's cover design. The remix commences with an official looking “MPAA-approved preview” notice as well as the Summit logo. Summit might object to this kind of remix and, if so, a copyright infringement action would be its easiest course of action. Copyright law gives Summit the quick and easy option of sending a notice to the host website to remove any infringing material. Websites like YouTube will generally comply with these notices because compliance will protect them from subsequent infringement liability.
Most video remixes won't actually interfere with a copyright holder's bottom line. "Twilight" remixes create more buzz for the movies, which ultimately benefits the producers. Summit tolerates a lot of online fan activity—including fan-made trailers for forthcoming films and even copying and posting extras from DVD releases. However, Summit understandably draws the line at posting large chunks of the actual movies online (note YouTube's removal of this video, purportedly a copied segment of "Eclipse")
This may be an appropriate line to draw—allowing most fan activity but aggressively preventing direct copying of the movies. Congress and the courts might do well to take a look at what's actually going on in the blogosphere in terms of the balances currently being struck between copyright holders and fans.  Such a survey might help to formulate clearer copyright rules for today's digital culture.
Whatever happens next, some upfront guidelines about acceptable online fan activity would be very useful both for die-hard lovers of Edward Cullen and the creative forces behind popular copyrighted works. 
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~Robstenfan