When someone
samples another artists song, is it legal? If you’re a musician, you might want
to protect your works from this kind of unauthorized sampling. On the other
hand, If you’re a mashup artist, you want to do it without getting in a
copyright infringement lawsuit. Both sides have a case to make, and the
answer’s not an easy one as this area of the law is evolving. Here’s some
background on copyrights, fair use, and how mashup artists have handled this
tricky issue.
What’s Copyright?
A
copyright is a legal protection given to authors of original works, like songs,
paintings, and novels. Copyright owners get certain exclusive rights to their creations
and can also limit others from using their art in some instances.
What’s the Challenge
with Mashups?
At face
value, mashups appear to epitomize copyright infringement, but the situation
isn’t quite so cut and dry. A mashup is a style of music that contains elements
or samples from songs created by other artists. In 2005, a court decision
regarding the case of Bridgeport v. Dimension determined that it is possible
for mashup artists to be guilty of copyright infringement even if a one second
sample of music is used. This suggests that mashups and samplings aren’t, in
fact, protected under fair use, but there are still ways that mashup artists
can defend their works.
Are Mashups Covered
By Fair Use?
Fair
use doctrine was designed as a way to protect the first amendment right to
freedom of expression for works deemed valuable to society. For example, fair
use has been used regularly to shield parodies. Courts that review cases
involving fair use must consider how samples are used and how much they are
used when determining if the works are protected by it. Courts also consider
the effect a parody or transformative piece has on the market share for the
original artist.
Mashup
artists who seek protection under fair use may find their works protected,
depending on how much it transforms the original work. Mashup artists usually
splice up samples, edit pitch and tempo, and mix up the original work. While
the samples are meant to be recognizable, mashup artists typically aim to
create enough of a difference between the pieces so that the new work has
artistic merits of its own.
Using
samples of different songs to create a new song could also be a form of
critical commentary. In this case, Mashups could be considered a form of free
expression protected under fair use.
Still, most mashup artists are aware that their work could be questioned
at any time by the original artist.
Why Some Artists
Embrace Mashups
Surprisingly,
not all artists are threatened by mashups. In 2004, David Bowie partnered with
a German car maker to hold a contest to find out which fan could create the
best mashup using a sampling of two of Bowie’s songs. The winner was offered a
brand new sports car, and Bowie retained the rights to the music.
It
seemed like a win-win situation, but many mashup artists felt like their art
was threatened by this commercial venture. Some feared that the maneuver was a
sign of the times signaling upcoming crackdowns on their music. Considering the
adverse decision regarding Bridgeport v. Dimension that occurred just one year
later in 2005, they may have been right.
Artists Should Proceed
With Caution
If
you’re a mashup artist, there isn’t a clear way to avoid copyright
infringement, but you can learn from the tactics of other mashup artists. Many
test the waters by releasing mashups on P2P networks without licensing the
work. Then, if the mashup is well-received by the underground community, they
obtain a license and release it legitimately. Other artists, like Danger Mouse,
have released versions of their work free to listeners on standard, unlabeled
CDs.
Girl
Talk, another mashup artist, has found success in the industry by releasing
music for free and accepting donations and paid gigs. To date, this artist
hasn’t been sued by any record labels, but he realizes that this remains a
possibility and has already stated his case to the public at large. It’s not
clear whether record labels are declining to pursue a lawsuit with the artist
due to his popularity, or whether they feel that the artist is not infringing
on various individual works.
There
are currently no court opinions offering any guidelines on mashups, and there
are no distinct legal guidelines for determining if non-parodic
work is protected under fair use. Until there is, if you’re a mashup artist,
you need to be aware that your creation could come into question at any
time. If you have legal questions about
sampling, whether your work is being sampled or you’re the one doing the
sampling, find an intellectual property lawyer to help.
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