Adapting copyright for the mashup generation.
INTRODUCTION I. Music Mashups A. A Personal Journey B. The Mashup Genre 1. Creation of Music Mashups 2. Types of Music Mashups 3. Marketing, Distribution, and Monetization 4. Live Performance, DJ Production, and Collaboration with Established Artists II. THE LEGAL, MARKET, AND POLICY DIVIDES A. The Copyright Backdrop 1. General Framework 2. Application of Copyright Law to Digital Sampling B. What's Past Is Prologue?: The Rap and Hip Hop Genres and Digital Enforcement 1. Rap/Hip Hop's Rocky Road to Constrained Copyright Legitimacy 2. The Digital Copyright Enforcement Debacle C. The Uncertain and Distorted Music Mashup Marketplace D. The Copyright Policy Divide III. BRIDGING THE DIVIDE: THE CASE FOR A REMIX COMPULSORY LICENSE A. Economic Analysis of the Music Mashup Stalemate B. The "Cover" License as a Model for Opening up the Remix Marketplace C. Designing a Remix Compulsory License 1. Eligibility Requirements 2. Revenue Sharing 3. Administrative Process 4. Additional Features and Limitations a. Interplay with Fair Use b. Use Limitations c. Endorsement Disclaimer d. Changes to Statutory Damages 5. Possible Extensions D. Additional Benefits of a Remix Compulsory License 1. Enrich Input Materials 2. Channel Remix Artists and Their Fans into Authorized Content Markets 3. Enhance Notice Institutions and Databases 4. Reduce Antitrust Concerns E. Objections and Responses 1. Potential Abuse 2. Freedom of Contract 3. Potential Distortions to Fair Use 4. Moral Rights IV. BROADER RAMIFICATIONS: BRIDGING FAIR USE'S BINARY DIVIDE CONCLUSION
Advances in digital technologies in conjunction with Napster's charismatic file-sharing technology unleashed a digital tsunami that continues to reshape the content industries and the broader culture. While these technologies have empowered creators and enabled them to reach vast audiences without the high share of proceeds demanded by traditional record labels, publishers, and distributors, they have also introduced new challenges for those seeking to earn a living in the creative arts. (1) The very technologies that liberate creators from the shackles of the old intermediaries make it ever more difficult to achieve an adequate return on their investments in training, time, expense, and opportunity cost to produce art. (2) Copyright enforcement, which was rarely a problem in the pre-Internet age, has taken center stage in the post-Napster era, especially for independent creators. And although the much anticipated celestial jukeboxes--Pandora, Spotify, YouTube, and others--have arrived, they too are beholden to the old intermediaries. (3) To quote Pete Townshend, "Meet the new boss, same as the old boss." (4)
Whereas prior generations of consumers and creators had few options for accessing copyrighted works outside of authorized channels, the Internet has irreversibly altered the technological constraints channeling most consumers into content markets. In the Internet Age, kids, as well as grown-ups, can now find just about any copyrighted work with relative ease. While this new reality curtails some of the more exploitive practices of copyright owners, it also jeopardizes the funding and development of high-cost and high-risk creative projects through decentralized market mechanisms, the economic foundation of copyright protection.
A just, effective, and forward-looking copyright system would ideally channel new-age creators and consumers--the post-Napster generations--into well-functioning digital-content marketplaces. (5) Such a system must come to grips with the reality that a growing segment of the population does not view copyright markets as the only means to access creative works. (6) To many, participation in markets for copyrighted works is voluntary; it is more about convenience and fairness than compliance with the rule of law. (7) Thus, trends in technology, social dynamics, and moral conscience have eroded copyright protection. Heavy-handed responses by copyright owners--such as mass litigation campaigns, efforts to ramp up enforcement tools, and troll litigation--have alienated consumers, judges, and legislators and spurred work-arounds that lead new generations away from authorized digital content marketplaces and copyright-based creative careers. (8)
Notwithstanding the decline of the copyright system's public approval rating, the core social, economic, and moral foundations on which copyright was built have not been rendered obsolete by technological advance. To a large extent, what many creators want and need has remained the same: freedom to create and fair compensation based on the popularity of their art. (9) And what many consumers want has also largely remained the same: easy access to creative original art at a fair price. (10) These two forces create the conditions for copyright to provide a critical engine of creative and free expression. But for the copyright system to remain vital, copyright reform must channel post-Napster creators and consumers into a balanced marketplace, not alienate them. In a recent lecture, I sketched a comprehensive plan for adapting copyright law, institutions, and business practices for the Internet Age. (11)
This Article builds on that project by exploring the challenges posed by music mashups. Although a relatively small slice of the overall content landscape, the mashup genre is of particular cultural and symbolic significance for transitioning the copyright system to the post-Napster era for several reasons.
First, popular music exerts strong biological, (12) social, and cultural force on every generation and has long been among the most important formative copyright experiences for many young people during the past half century. The opportunities for adolescents to collect their favorite musical recordings and develop their own musical abilities--often inspired by their favorite composers and recording artists--can shape lifelong passions, tastes, and values.
Second, new genres--from R&B to rock 'n' roll, metal, disco (and the first wave of electronic dance music (EDM)), grunge, rap, hip hop, house/EDM (second wave), and mashup--define and differentiate the youth of each generation from prior generations. As such, they play a critical formative role in each generation's values, self-identity, autonomy, and creative development.
A copyright system that fails to understand, accept, and embrace these formative and social processes sacrifices relevancy among a key demographic, which over time will make the system progressively less acceptable to a growing proportion of society. Since digital and Internet technology provide easy access to unauthorized sources of copyrighted works, failure to accommodate new and popular art forms encourages "work-arounds" to copyright markets, alienates post-Napster generations (and increasingly those who grew up in the era in which copyright markets were obligatory) from copyright markets, and confronts judges responsible for adjudicating copyright disputes with difficult choices, as reflected in the file-sharing and Internet safe harbor cases. (13)
The emergence of mashup creativity over the past decade epitomizes the marginalization of copyright as an economic, social, and cultural institution. Advances in remix hardware and software in conjunction with the ease of online distribution have empowered a new wave of mashup artists--from a new generation of disc jockeys (DJs) to bold new creators (such as Girl Talk) to adventurous teenagers developing their own identity--to assemble mashup tracks and distribute them outside of copyright markets. Yet legal uncertainty surrounding this new art form stunts and distorts its development and breeds contempt for the copyright system.
This Article contends that by extending a compulsory license to mashup artists, Congress can invigorate the copyright system and channel new generations of consumers and creators into well-functioning online marketplaces for digital content. By augmenting the cover license, which has been in place for more than a century, with digital technologies for identifying and tracking usage of preexisting copyright works, a remix compulsory license would provide a calibrated mechanism for enabling both mashup artists and owners of sampled works to profit equitably from the public's enjoyment of the resulting work.
Such a regime would remove the dark cloud constraining and distorting the mashup genre. It would not supplant fair use, but rather sidestep its amorphous contours in those situations in which mashup artists choose to operate within the compulsory license regime. Others would be free to test the limits of fair use, but it seems likely that an increasing number of mashup artists would see the virtue in sharing the proceeds of their success with those whom they sample. Opening up such a channel would stimulate copyright markets and expand the range of works available across a range of platforms--from YouTube to Spotify, iTunes, and SoundCloud. Consumers would see greater reason to participate in these markets, thereby further stimulating the creative arts.
This policy innovation would also signal that Congress seeks to embrace new creators and their fans through adapting copyright to the realities of the Internet Age. By moving copyright away from control towards calibrated compensation, Congress would recognize that remix artists and consumers play a vital role in the era of configurable culture, (14) foster norms that channel modern creators and consumers into markets for copyrighted works, and begin the process of building intergenerational bridges.
I. MUSIC MASHUPS
While the music mashup genre is well-known to most younger music fans, its existence and characteristics are less familiar to the population at large. The reason for this generation gap has a lot to do with the effects of copyright law. The constraints and uncertainties surrounding copyright law, including the amorphous boundaries of the fair use doctrine, have pushed the mashup genre significantly underground. Major record labels have largely steered clear of signing and releasing mashup artists. Much of this work is available through streaming services that operate under the radar or in a state of legal and commercial limbo. Mashup artists, many of whom work as live performance DJs in dance clubs, distribute recordings of these works through unlicensed channels primarily to promote their live performance gigs.
Notwithstanding the uncertain legal status of the musical mashup genre, it comprises one of the most vital and innovative musical forms today. Although it is difficult to quantify its influence due to its underground channels, it has a worldwide reach--from the dance clubs in Ibiza and Las Vegas to the most popular music festivals in the United States to a massive Internet fanbase. The traditional music industry is aware of its growth and has even sought to use it to promote its products, but has not overtly embraced it.
As a prelude to analyzing copyright policy for mashup music, this Part introduces the mashup culture through two lenses. The first Section is anthropological, tracing my own journey into this underground domain. The second Section looks more generally at how mashups are produced, distributed, and monetized.
A. A Personal Journey
Attitudes about music and copyright reflect each person's life experience. This Article grows out of my own serendipitous journey into the Internet alleyways and back streets of mashup music. As such, it offers both a perspective on my own influences (and perhaps biases) as well as insight into the cross-generational currents affecting the copyright reform debate.
Like many people north of thirty years of age, my appetite for new musical forms and artists has waned. (15) As a youth, Bob Dylan's poetry, The Who's rebellious rock ballads, Eric Clapton's rock blues, and Led Zeppelin's mystical, melodic, metal masterpieces captured my imagination and brought me through the insecurities and contradictions of the "wonder" years. The music scene, as well as recording technology, were among my formative years' passions. I mastered rip, mix, and tape decades before the birth of the iPod. (16)
But professional responsibilities and perhaps simply just growing older eventually quelled those passions for new music. I became content with my favorite songs and less curious about discovering new talent, although new bands and artists occasionally captured my attention. Although I enjoyed the escapist pleasures of electronic dance music during graduate school, the disco era may well have snuffed out my musical curiosity. I was not particularly drawn to the rap and hip hop genres, although I respected the desire for each new generation to declare their musical independence.
With the arrival of two bundles of joy in the early 1990s, I felt a strong desire to expose my sons Dylan (I wasn't kidding about the influence of popular music) and Noah to the passions of my youth. Both knew the rock 'n' roll classics before they mastered their times tables. On family road trips, they learned ethics through Bob Dylan's poetry and ballads, they were mesmerized by the haunting imagery of the "Immigrant Song" as we ascended the Sierras on ski trips, they were awestruck by the greatest guitar riff of all time ("Layla"), they shared my anticipation (with the volume turned up to 11) (17) for the greatest scream in rock 'n' roll history, (18) and they came to revere "Stairway to Heaven"--the greatest rock 'n' roll song of all time.
Dylan and Noah started guitar lessons as soon as they could hold a Baby Taylor (19) and quickly developed their own musical tastes and personalities. They drew me into their musical passions, reigniting some of my own youthful enthusiasm for new artists. I came to view Green Day (our local band), the Red Hot Chili Peppers (from the tail end of my youth, but I did not appreciate them until my kids pushed), and the Foo Fighters (Noah's melodic rendition of "Best of You" (20) was so beautiful that it took me a while to appreciate the original) as rightful inheritors of the rock 'n' roll crown. My playlists increasingly tipped towards new artists. Noah's acoustic rendition of Kid Cudi's "Up, Up and Away" opened my ears to new genres, including rap and hip hop.
With Dylan's departure for college in the fall of 2008, I worried about losing one of my most reliable artists and repertoire scouts. Dylan's rock band, with their covers of rock 'n' roll classics and new compositions, had kept the musical flame glowing. Fortunately, I still had Noah's voracious musical appetite and musicianship to keep me engaged.
Shortly after Dylan's arrival at college, he sent me an intriguing email with a link to a new musical phenomenon performing under the peculiar name "Girl Talk" with the query, "Is this legal?" He had heard enough intellectual property lectures during his youth to realize that this might raise some interesting issues. I was fully aware that my answer was not going to affect his consumption of this musical discovery--he was embarking on a degree in computer science and took pride in his online freedom--but I appreciated his curiosity about intellectual property law and the recommendation.
The experience that followed was at once exhilarating, hilarious, and confusing. I was mesmerized by the juxtaposition of rock classics, disco, rap, and hip hop. It whetted my appetite for fuller versions of the fragments from my favorite songs but whisked me into some new soundscape before I became too frustrated. Just as Phil Spector invented the Wall of Sound through recording techniques and echo chambers, (21) Gregg Gillis, who performed under the stage name Girl Talk, created marvelous, dynamic, meandering compositions by interweaving genres and samples entirely from existing recordings. A typical composition, such as "Play Your Part (Pt. 1)," squeezed nearly 30 samples into five frenetic minutes:
0:00-0:40 Roy Orbison--"Oh, Pretty Woman"
0:00-2:11 Spencer Davis Group--"Gimme Some Lovin'"
0:01-0:41 UGK featuring OutKast--"International Player's Anthem (I Choose You)"
0:42-1:07 DJ Funk--"Pump That Shit Up"
0:55-1:20 Cupid--"Cupid Shuffle"
1:08-1:56 Pete Townshend--"Let My Love Open the Door"
1:18-2:10 Unk--"Walk It Out"
1:59-2:37 Twisted Sister--"We're Not Gonna Take It"
2:04-2:10 Huey Lewis and the News--"The Heart of Rock & Roll"
2:13-2:37 Lil Mama--"G-Slide (Tour Bus)"
2:29-3:01 Ludacris featuring Shawnna--"What's Your Fantasy"
2:36-3:01 Temple of the Dog--"Hunger Strike"
2:48-3:01 Birdman featuring Lil Wayne--"Pop Bottles"
3:01-3:15 Rage Against the Machine--"Freedom"
3:02-4:05 Aaliyah featuring Timbaland--"We Need a Resolution"
3:02-4:06 Birdman and Lil Wayne--"Stuntin' Like My Daddy"
3:05-4:25 T.I.--"What You Know"
3:17-3:38 Edwin Starr--"War"
3:41-4:31 Sinead O'Connor--"Nothing Compares 2 U"
4:13-4:43 Shawnna--"Gettin' Some" (portion sampled samples "Blowjob Betty" by Too Short)
4:32-4:45 Jay-Z featuring UGK--"Big Pimpin'" (portion sampled samples "Khusara Khusara" by Hossam Ramzy and "Slow & Easy" by Zapp)
4:32-4:45 DJ Funk--"Here We Go"
4:32-4:42 Joe Budden--"Drop Drop"
4:33-4:41 Kelis featuring Too $hort--"Bossy"
4:34-4:44 Young Jeezy featuring Bone Crusher--"Take It to the Floor"
4:37-4:45 Rare Earth--"I Just Want to Celebrated" (22)
After the initial shock, I was hooked. Like the mix tapes of my youth, mashups can be highly addictive. They quenched my thirst for recognizable classics while exposing me to new genres and artists as well as the craft of mashing them together. I especially enjoyed picking out songs from my youth within Gillis's collages, and added several to my playlists. I also discovered and came to appreciate entirely new genres and artists. Some of the combinations would make me laugh out loud, not something I had been known to do. Others shocked--on "Here's the Thing," (23) Gillis intermingles Rick Springfield's sweet ballad of unrequited love, "Jessie's Girl," (24) with Three 6 Mafia's "I'd Rather," (25) a rap homage to oral sex--but opened my ears to a much broader musical palette. Now that I have become accustomed to the dynamism, playfulness, and intrigue of mashup music, listening to an entire conventional sound recording can at times feel dull. But just to be clear, that will never be true of "Stairway to Heaven." (26)
As regards Dylan's question--"Is this legal?"--I was torn. Embedded within some of my favorite Girl Talk mashups were extended excerpts from popular copyrighted sound recordings, such as a 90-second piano track from "Layla" (27) in "Down for the Count," (28) with a rap vocal track superimposed. Under the Sixth Circuit's questionable Bridgeport decision, (29) even a minuscule sample would be vulnerable. Yet the developing case law coming out of the Second Circuit provides a viable fair use defense for an uncertain and expanding domain of "transformative" works. (30) And Professor Lawrence Lessig's book, Remix: Making Art and Commerce Thrive in the Hybrid Economy, (31) which came out a short time after my becoming aware of Girl Talk, pushed aggressively down this path.
Fair use analysis is nuanced, case-specific, and often subjective--in the eye, or more aptly, ear of the beholder. (32) Gillis does not appear to be commenting on or parodying the "Layla" track--considerations that would favor his use--but rather using it for its distinctive musical qualities as well as for commercial purposes. And while the "Layla" piano track provides a remarkable backdrop for B.o.B's "Haterz Everywhere," (33) it is not at all clear that this appropriation qualifies as fair use. I will merely note at this point that I would be hesitant to offer a robust opinion that courts throughout the land would find this use to be safely on the "fair use" side of the line.
Gillis's sample of Beyonce's "Single Ladies (Put a Ring on It)" (34) in "That's Right" (35) is even more cavalier. The section beginning at 2:44 and running for 70 seconds appropriates the heart of Beyonce's hit song with relatively little embellishment. (36)
Although I was sympathetic to there being ample berth for this engaging and innovative new genre, and would certainly have celebrated it in my youth, I was conflicted. My appreciation for Girl Talk's mashups owed as much or more to the creative contributions of the underlying composers and recording artists as it did to Gillis's creativity in mashing them together. Although I admired Gillis's compositional talent, I was troubled by the lack of any workable system for allocating the fruits of his borrowing. To enable Gillis to commercialize these collages without according any value to the creators of the appropriated works struck me as questionable.
I was also troubled by the prospect that if each and every underlying copyright owner could exercise veto power over mashups, then few, if any, mashups would be created and those that were would be far less interesting. The transaction costs alone would be prohibitive for Girl Talk's intensive musical collages. (37) And even if the transaction cost hurdle could be surmounted, it seems unlikely that Rick Springfield would be inclined to have "Jessie's Girl" juxtaposed with a rap song celebrating oral sex.
These issues went to the heart of Dylan's seemingly straightforward question. My instinct was that neither extreme--mashup carte blanche or copyright owner veto power--achieved the golden mean. And it is this tension to which we will ultimately return. But before we confront it, it will useful to have some background about mashups, copyright law, and copyright policy.
B. The Mashup Genre
Music mashups grow out of the basic human desire to personalize, engage with, recast, and combine art in conjunction with advances in configurable technology. (38) The traditional radio industry was built around the "disc jockey," a music aficionado who selected music to broadcasts The advent and commercialization of tape recording technology in the 1960s and 1970s empowered individuals to develop their own mix tapes and spurred the development of karaoke, enabling amateur singers to perform their own renditions of popular music. (40)
On the professional creative side, the "cover" license--a compulsory license introduced in the 1909 Act (41) and retained in the 1976 Act (42)--encouraged widespread experimentation in the interpretation of musical compositions. (43) As more versatile recording technology emerged, composers, artists, and producers came to see prior sound recordings as inputs to the creative process. The emergence of digital technologies for copying, pasting, and manipulating "samples" in the early 1980s fueled the rap and hip hop genres. (44) These technologies democratized musical creativity by enabling new voices and generations to blend sound and superimpose their own poetry on the works of others.
The rap and hip hop genres paved the way for music mashups, which rely entirely on sampled sources to construct musical collages. (45) Coinciding with the emergence of bootleg websites at the turn of the new millennium, music mashups emerged as a distinct genre which involved superimposing a vocal track from one recording onto the instrumental track of another. (46) In one of the breakthrough mashups, Freelance Hellraiser combined a guitar track from The Strokes's "Hard to Explain" with the lyrics from Christina Aguilera's "Genie in a Bottle," to create "A Stroke of Genius." (47) Douglas Wolk, music critic for The Village Voice, hailed the resultant work as
cooler and sexier and tenser than either of its sources, and it makes me want more. There are no other records that sound like it right now: nothing else with the high-budget precision song-craft and high-definition poptones of Christina that also rocks, nothing else with the skinny hips and sharp teeth of the Strokes that understands the pleasures of TRL [Total Request Live, an MTV series that featured popular music videos]. Each is what the other one was missing all along. (48)
The mashup genre went viral with the 2004 release of Danger Mouse's The Grey Album, seamlessly combining Jay-Z's The Black Album with The Beatles' The White Album. (49) Although Danger Mouse released only 3000 copies of the album and never intended to sell the album commercially, due in part to concerns about copyright infringement, the album unwittingly became an overnight sensation. (50) Rolling Stone praised The Grey Album as an "ingenious hip-hop record that sounds oddly ahead of its time," (51) foreshadowing the emergence of the mashup genre. After EMI, the owner of The Beatles' sound recordings issued cease and desist letters to file-sharing sites hosting The Grey Album, music activists mounted "Grey Tuesday," a 24 hour online protest promoting distribution of the album. (52) Approximately 170 websites went "grey" on February 24, 2004--muting the appearance of their homepage while hosting copies of the album, leading to 100,000 downloads of the album on that day. (53) The album would garner favorable reviews from numerous critics as well as Best Album of 2004 honors from Entertainment Weekly M Later that year, MTV introduced "Ultimate Mash-Ups," a series mashing together pairs of well-known recording artists. (55)
An early commentator captured the wonder and excitement surrounding this emerging art form:
Mash-ups might be the ultimate expression of remix culture, which has grown out of a confluence of influences: widespread sampling, DJs as performers, and the proliferation of digital technology, as well as a tangle of diverse musical styles from jungle to house to garage and techno. To lapse into postmodern jargon for a sec, mash-ups are the highest form of recontextualization, recycling toasty tunes by fusing pop hooks with grunge riffs, disco divas with hardcore licks. The groove and crunch combination melds black music back into rock, or pulls out a song's surprising inner essence. Toss in something vintage, obscure, silly or unexpected and the duet totally transcends all musical formats and canons of taste. (56)
Over the next several years, the art form blossomed in surprising and unexpected ways. A range of mashup artists--from Girl Talk to the Super Mash Bros, DJ Earworm, The Legion of Doom, and Norwegian Recycling--captured millennial' attention largely through live DJ performances, radio shows, Internet channels, and mass media as opposed to traditional recording industry outlets. (57) Few mashup artists clear the underlying copyrighted works and hence the products are considered infringing by most record labels. (58) As a result, music services have been hesitant to sell or stream mashup artists. (59) Nonetheless, the mashup genre has achieved a widespread following through file-sharing websites, fan and review sites, (60) and live DJ performances.
1. Creation of Music Mashups
Rap, hip hop, and mashup producers require six principal inputs: hardware, software, digital tracks, creative ideas, mixing talent, and the time to craft distinctive mashups. Advances in digital technology enhanced the capacity and reduced the cost of digital audio workstations (DAW)--comprising a mixing console, control surface, audio converter, and data storage--and DAW software. (61) Since the compact disc technology is not encrypted, (62) remix artists can rip and sample tracks of substantially all sound recordings available in CD format. They can also work from beat libraries and karaoke tracks for instrumental versions of many popular recordings.
Mashup artists ideally prefer to have separated audio tracks or "stems" from which to work. (63) Major record labels occasionally seed tracks from their catalogs into DJ communities to encourage promotion of new releases. DJ Earworm commends Kanye West and Radiohead for
participating in a long overdue trend that seems to now be emerging where musical artists are beginning to release "stems" from their tracks. Until recently, a mashup or remix artist would feel lucky just to find an instrumental version or acapella (vocals only) of a favorite track. But these musical stems allow us much more control. Most modern recordings have many tracks, usually more than ten, and sometimes more than a hundred. Each track typically represents a single recording or electronic sound. Traditionally, before all these tracks are mixed down into a final stereo mix, it is first mixed down into about four to eight separate audio files (stems). All the foreground vocals might be on one stem, all the drums on another, while the guitars and keyboards might be on yet another. When all the stems are added together, you hear the song as it was originally meant to be heard. The traditional purpose of these stems was to enable the mastering engineer to give the final mixdown just the right sound for various formats (radio or club, CD or vinyl). Now, with DIY remix culture exploding, we sonic manipulators are growing hungry for disassembled pop music, and the music industry is beginning to see the benefit of increased exposure through releasing stems directly to the public, allowing us much greater freedom than if they had simply released the instrumentals and acapellas. Now we can choose which instruments are playing. This new trend augers well for us in the mashup community, and I look forward to the practice expanding. Thank you Kanye, thank you Radiohead, and thanks to all the other musicians (and music execs) that are starting to see the light! (64)
The DJ community has developed a wide range of resources--some public and some secret--to obtain the source material for their craft. (65)
Mashup artists see their work less as DJ mixes than as their own creative compositions drawn from the stock of pre-existing works. (66) Gillis reports that he spent months testing out his compositional ideas in live performances and matching beats to produce Feed the Animals, his 2010 album featuring over 300 samples. (67) He estimates spending a day to produce each minute of recording time. (68)
2. Types of Music Mashups
Music mashups comprise a variety of forms. "A vs. B" mashups combine an entire instrumental track from one recording with the entire vocal track of another recording. For example, Soulwax's "Smells Like Teen Booty" superimposes Destiny's Child's vocal track from "Bootylicious" on the instrumental track of Nirvana's "Smells Like Teen Spirit." (69)
The Grey Album took mashing a step further, breaking the vocal tracks from Jay-Z's The Black Album into samples in the process of assembling a vocal track for instrumental tracks from The Beatles's The White Album. (70) In "Boulevard of Broken Songs," Party Ben superimposed a variety of recordings--Oasis's "Wonderwall," Travis's "Writing to Reach You," and Eminem's "Sing for the Moment," which samples Aerosmith's "Dream On"--on Green Day's "Boulevard of Broken Dreams." (71)
Girl Talk uses a far more varied, eclectic collage technique, weaving samples from 20 to 30 recordings into his typical mashup compositions. (72) DJ Earworm has earned a reputation for his annual "United State of Pop" mashup, which weaves the top 25 songs from Billboard's Year-End Hot too into a seamless composition. (73)
3. Marketing, Distribution, and Monetization
Copyright liability concerns have pushed the mashup genre into viral marketing and distribution through mashup artist websites and file-sharing platforms. SoundCloud is the leading mashup distribution hub, with 150 million registered users as of July 2015. (74) SoundCloud claims that "about 175 million people listen to music on its platform each month." (75) It allows anyone to stream as much content as they wish. Artists may upload up to three hours of audio to their profiles for free. (76) SoundCloud earns money by charging subscribers up to $135 per year for unlimited uploads and access to analytics tools, which can be used to promote tracks. (77) Even the major labels have used SoundCloud as a marketing tool to reach its large fan community, notwithstanding that SoundCloud lacks licensing deals to insulate it from takedown notices for many of the remixes on its site. (78) Popular DJ and dance-music producer David Guetta laments, "I feel like I'm too big to use SoundCloud, but I want to use it." (79) Guetta cannot release his mashups on such services until they start paying the creators of the tracks that he samples. He considers the burden of getting clearance to be too onerous. (80)
Other mashup distribution channels include Mixcloud, (81) Illegal Art, (82) Crooklyn Clan, (83) and Mashtix. (84) While many of these websites have operated without substantial interference from owners of the sampled works, that appears to be changing as the recording industry seeks to monetize their catalog and post-Napster generations become a greater share of the marketplace. In June 2014, Kaskade, a popular mashup artist and DJ, (85) was the subject of dozens of takedown notices submitted to SoundCloud. (86) While praising SoundCloud for its "beauti[ful]" and "elegant" (87) way of working with social media, Kaskade criticized its handling of copyright notices and the record companies for shortsighted thinking,
I imagine over the next week my entire sound cloud will be taken down. Sorry but there is nothing I can do here.... When I signed with Ultra [Records], I kissed goodbye forever the rights to own my music. They own it. And now Sony owns them. So now Sony owns my music. I knew that going in. Soundcloud is beholden to labels to keep copyright protected music (read: all music put out by a label, any label) off their site unless authorized by the label. Am I authorized to post my music? Yep. Does their soulless robot program know that? Not so much. So some stuff they pulled was mistakenly deleted, but some tracks were absolutely rule breakers. The mash ups.... Our marching orders are coming from a place that's completely out of touch and irrelevant. They have these legal legs to stand on that empower them to make life kind of a pain-in-the-ass for people like me.... Countless artists have launched their careers th[r]ough mash ups, bootlegs, remixes and music sharing. These laws and page take-downs are cutting us down at the knees.... It's laughable to assert that someone is losing money owed to them because I'm promoting music that I've written and recorded. Having the means to expose music to the masses is a deft tool to breathe new life into and promote a song. (88)
While the distribution channels for mashups are largely user-uploaded and noncommercial (in the sense that listeners do not pay for access), some unlicensed mashups are available on YouTube, iTunes, and Amazon, (89) although their availability is limited and unpredictable. With regard to YouTube, it is unclear whether mashup artists have been able to derive much, if any, revenue through advertising monetization. YouTube's monetization policy states,
For your videos to be eligible for monetization, you must own all the necessary rights to commercially use all visuals and audio elements, whether they belong to you or to a third party. These elements include (but are not limited to) logos, thumbnails, intro/outro/background music, software interfaces, and video games. If you decide to incorporate third-party content in a video, you must clear the rights to use and monetize this content on YouTube. Often, this clearance takes the form of explicit written permission from the rights holders. (90)
Uploaders who violate these rules are subject to takedown notices and may have their YouTube channels removed. YouTube's Content ID system can catch videos containing copyrighted works and--depending upon the choices of the copyright owner--block the allegedly infringing content or permit it and divert the advertising revenue to that copyright claimant. (91)
While YouTube's Content ID system represents an innovative solution to screening uploaded content, the lack of a sophisticated mechanism for dividing mashup advertising revenue among the multiple creative influences (including the mashup artists) limits the ability of this new creative force of mashup artists from profiting directly from others' enjoyment of their mashups. Other considerations, such as self-expression and promotion for live performances, provide indirect rewards for posting mashups.
iTunes, Amazon, and other download services provide retail platforms for monetizing mashups, but are subject to takedown notices by owners of copyrights in the underlying works. The status of mashup projects on these services is uncertain. (92) A few years ago, iTunes did not distribute Girl Talk's works, (93) but since then access has ebbed and flowed. iTunes currently sells downloads for Girl Talk's 2004 Unstoppable album (and a few singles), but his later, more popular, albums are not currently available on the service. (94) Most of Girl Talk's albums--Teed the Animals (2008), Night Ripper (2006), Unstoppable (2004), and Secret Diary (2002)--are currently available through Amazon, but All Day (2010) is not. (95) Similarly, Spotify contains three of Girl Talk's albums--Teed the Animals, Night Ripper, Unstoppable--but not All Day. (96) Like YouTube, downloading and streaming services lack a mechanism for dividing value among multiple creative claimants absent a contractual agreement among the contributors. (97)
Given liability and platform concerns, most mashup artists have taken a more cautious approach, keeping their works off of websites that charge for downloads, characterizing their works as experimental, and offering to remove mashups at the request of copyright owners of embedded works. For example, DJ Earworm's website contains the following disclaimer:
The media files posted here were created for my own experimentation and entertainment, not profit. I am not the author or owner of the copyrights of the component tracks. If you like the mashups, support the artists and go and buy the originals ... they are easy to find. Representatives of either the artist or publishing company can contact me, and I will take these tracks offline. If representatives of either the artist or publishing company have concerns, please contact me. (98)
4. Live Performance, DJ Production, and Collaboration with Established Artists
The most important revenue source for mashup artists has been live performance as DJs. The mashup genre overlaps with the market for DJs and electronic artists, which has thrived over the past several decades. (99) Dance clubs featuring EDM and all manner of mashup creativity draw large crowds throughout the world. (100)
Several factors contribute to the lack of a salient copyright concern in the live performance domain. First, radio stations and live performance venues routinely obtain blanket public performance licenses from the major performance rights organizations. (101) Second, U.S. copyright law does not grant recording artists public performance rights. (102) Third, radio and live performance have traditionally been seen as promoting record sales, (103) although the polarity is reversing in the mashup realm where download and streaming websites operate primarily to promote live performance revenue. (104)
The amount of income that the top DJs earn through live performances rivals that of top conventional performing artists. (105) Kaskade, Avicii, Tiesto, David Guetta, Steve Aoki, deadmau5, Afrojack, Skrillex, Girl Talk, and many other DJs/remix artists maintain active performance schedules and can earn well in excess of $100,000 per show. (106) Many remix artists have also parlayed their popularity in dance clubs into collaborations with conventional recording artists and developed their own electronica record labels. (107) By promoting their brand through seeding of tracks on file-sharing websites and their own websites, live performance mashup artists indirectly appropriate income from their projects.
Mashup creativity has deeply influenced and been influenced by the rap, hip hop, house, electronica, and EDM genres, leading many artists to move profitably among these genres. (108) The most successful DJs have become top record producers and collaborators with successful rap, hip hop, and other pop recording artists signed to major labels. (109) Some have become top recording artists in their own right.
Kaskade's career trajectory illustrates this path. He began working in nightclubs in 1995. (110) He would go on to produce original dance track and remixes as his DJ career evolved. (111) He successfully leveraged social media, "inviting fans into his daily life via Twitter, constantly sharing new music via SoundCloud, and crafting live shows with the fan experience in mind." (112) As his career developed, he increasingly collaborated with other DJs and recording artists--ranging from deadmau5 to Skrillex, Tiesto, Mindy Gledhill, and Neon Trees. (113) He now performs in the largest arenas, headlines the top music festivals, and is a resident party DJ in Las Vegas. (114)
Girl Talk's career is expanding along similar lines. In 2014, he collaborated with noted rapper Freeway (115) on an EP entitled Tolerated, (116) featuring Waka Flocka Flame, another successful rapper. This release is available on iTunes and is promoted through a YouTube video. (117) Additionally, Girl Talk has branched out to perform in Las Vegas, but has expressed qualms about whether "it's the best way" to present his work. (118)
II. THE LEGAL, MARKET, AND POLICY DIVIDES
As reflected in the prior section, copyright concerns have played a significant, but not particularly constructive role in the emergence and evolution of the mashup genre. While the protest over The Grey Album catapulted mashup music onto the cultural radar, lingering concerns about copyright exposure have continued to limit the full blossoming of the genre.
Legal uncertainty has important ramifications for the development of the music mashup genre as well as for the larger creative and copyright ecosystems. The current circumstances push the growing community of music mashup artists and fans outside of the copyright system and content marketplace. They also limit the ability of new generations of creators to test their talent and pursue financially sustainable careers. This Part explores the legal, market, and policy stalemate.
A. The Copyright Backdrop
Subsection 1 traces the general requirements for establishing copyright infringement, the fair use defense, the online safe harbor, and potential remedies. Subsection 2 explores how these standards have been applied to digital sampling.
1. General Framework
United States copyright law protects two principal components of musical creativity: musical compositions (often referred to as the "circle c," based on the [c] symbol for copyright notice) and sound recordings of musical compositions (often referred to as the "circle p," based on the [P] symbol for notice of copyright in a phonogram). Subject to various limitations and exceptions such as the fair use doctrine (119) and the "cover" license, (120) the Copyright Act grants composers and recording artists the exclusive rights to reproduce, adapt, and distribute copyrighted works. (121) In addition, it grants composers the exclusive right to publicly perform their works. (122)
A mashup artist infringes the right to reproduce by copying a copyrighted musical composition or sound recording. This involves two components: (1) factual copying resulting in (2) substantial similarity of protected expression. (123) The first component is easily proven where a pre-existing sound recording is sampled. The presence of a copyrighted sound recording in a mashup artist's work will suffice.
A more difficult question is whether the use of the sample appropriates "substantial" amounts of the protected expression. Under the de minimis doctrine, (124) courts will generally excuse very small amounts of copying because they cause too little harm to justify providing a remedy. (125) The applicability of this doctrine to digital sampling, however, was cast in doubt in a controversial 2005 case. (126) Even if the de minimis doctrine does not apply, courts apply a multifaceted test to determine whether the amount of protected expression appropriated would be considered substantial by an ordinary observer. (127) The court must first dissect the plaintiff's copyrighted work to filter out the unprotected elements, such as ideas (128) or unoriginal expression. (129) It then determines whether the defendants work is substantially similar to the protected expression, a notoriously vague standard. (130)
A copyright owner need not prove that all or nearly all of the copyrighted work has been appropriated to establish infringement. The legislative history explaining the infringement standard provides that
a copyrighted work would be infringed by reproducing it in whole or in any substantial part, and by duplicating it exactly or by imitation or simulation. Wide departures or variations from the copyrighted work would still be an infringement as long as the author's "expression" rather than merely the author's "ideas" are taken. (131)
Thus courts have held that "[e]ven a small amount of the original, if it is qualitatively significant, may be sufficient to be an infringement." (132)
Determining the threshold for infringement is particularly difficult when a defendant has copied distinct literal elements of the plaintiff's work and incorporated them into a larger work of her own. This class of cases has been referred to as fragmented literal similarity. (133) The Nimmer treatise states,
The question in each case is whether the similarity relates to matter that constitutes a substantial portion of plaintiff's work--not whether such material constitutes a substantial portion of defendant's work.... The quantitative relation of the similar material to the total material contained in plaintiff's work is certainly of importance. However, even if the similar material is quantitatively small, if it is qualitatively important, the trier of fact may properly find substantial similarity.... In general under such circumstances, the defendant may not claim immunity on the grounds that the infringement "is such a little one." If, however, the similarity is only as to nonessential matters, then a finding of no substantial similarity should result. (134)
If copyright infringement would otherwise be found, the defendant can nonetheless escape liability by establishing that his or her use was fair. (135) Under the fair use doctrine, courts balance the following factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. (136)
Although fair use is considered critical to copyright law's fundamental purpose of promoting the progress of knowledge and learning, (137) its availability to insulate copying is "notoriously difficult to predict" (138) and it is rarely possible to obtain a legal determination prior to engaging in the use. (139) As a result, those seeking to build on the work of others cannot typically achieve complete certainty as to the legality of their use short of obtaining a license.
Federal copyright law also imposes liability upon those who publicly perform musical compositions without authorization, but does not extend protection to public performance of sound recordings. (140) As a result, to perform a track publicly, a user must obtain a license from the owner of the copyright in the musical composition but not the owner of the copyright in the sound recording. (141) Liability can also extend, through the doctrine of vicarious liability, to the venues hosting these performances. (142) Nonetheless, liability for infringing the public performance right in musical compositions does not typically interfere with remixing of music in live performances because radio stations and public performance venues routinely obtain blanket licenses from the major performance rights organizations (ASCAP, BMI, and SESAC). (143) Such licenses afford DJs the ability to perform, even in sampled form, copyrighted musical compositions. To the extent that they prerecord such tracks, however, DJs could potentially face federal liability for violations of the reproduction or derivative work rights.
Copyright liability can extend beyond the mashup artist to record labels and websites that reproduce and distribute an infringing work. Internet service providers such as SoundCloud and YouTube, however, are immune from liability for storing infringing files at the direction of a user, so long as they meet several procedural threshold requirements, (144) and (1) do not have actual or constructive knowledge of the location of specific infringing files residing on their system, or (2) fail to expeditiously remove such files upon becoming aware of their location. (145)
Copyright law's robust and highly discretionary infringement remedies compound the uncertainties surrounding copyright's limiting doctrines. As a result, cumulative creators must be extremely cautious in their use of copyrighted works. Even a small transgression can trigger injunctive relief barring distribution of the infringing work (146) as well as substantial monetary damages. For works that are registered prior to infringement, copyright owners can seek either actual damages and disgorgement of profits, (147) or statutory damages, which range from $750 to $30,000 per infringed work and up to $150,000 per infringed work in the case of willful infringement. (148) This regime exposes mashup artists and the websites that distribute their works to significant liability. Girl Talk "samples" twenty to thirty separate musical compositions and sound recordings, up to sixty copyrighted works in total, in a single mashup composition. (149) By so doing, Gillis exposes himself to liability for 60 times the statutory damage range (since the popular music that he samples is invariably registered with the Copyright Office). The potential liability is staggering. While it is unlikely that a court would award millions of dollars of liability in a case such as this, just the minimum statutory damage award rises above $10,000 per mashup composition.
2. Application of Copyright Law to Digital Sampling
Although no case has yet confronted the intensive sampling found in Girl Talk's works, a number of cases dating back to the early rap and hip hop era found liability for unlicensed use of samples. This subsection traces the development of this body of copyright law. The next subsection explores how the law shaped licensing practices in the rap and hip hop genres.
With the advent of digital sampling devices in the 1980s, (150) a new breed of musical creators with extensive knowledge of beats, precise turntable dexterity, and training in recording technology--as opposed to musical instruments--emerged. (151) According to Grandmaster Flash, an early influential hip hop artist and DJ, (152) he "wasn't interested in the actual making of music.... Electronics drew [him] in." (153) Likewise, as Public Enemy's Hank Shocklee provocatively asked, "[w]ho said that musicians are the only ones that can make music?" (154) As hip hop moved beyond the dance clubs to commercial recordings, issues of copyright infringement followed.
Traditional musicians and recording industry executives were not amused by what they viewed as "groove robbing," (155) and it was not long before copyright owners threatened and ultimately pursued copyright infringement lawsuits. (156) In a notable early dispute, which ultimately settled, Jimmy Castor sued the Beastie Boys and their record label Def Jam over their use of a small sample (less than two seconds) on their breakthrough debut album Licensed to Ill. (157) In another early controversy, the 1960s pop group The Turtles sued De La Soul over its use of their 1960 hit "You Showed Me," resulting in what was reported to be a $1.7 million settlement. (158)
The first litigated sampling case would reinforce artists' and hip hop labels' worst fears about copyright liability. On his third album, I Need a Haircut, (159) Biz Markie's rap song "Alone Again" sampled Irish pop singer Gilbert O'Sullivan's hit recording "Alone Again (Naturally)." (160) O'Sullivan's publisher sued for copyright infringement, prompting the court to grant Markie's wish for a haircut. It is never a good sign for a defendant when a judge begins the opinion by quoting the Ten Commandments. The first sentence of Grand Upright Music v. Warner Brothers Records states, "Thou shalt not steal." (161) The court's analysis of copyright infringement did not delve deeper than establishing that the plaintiff owned the copyrights in both the musical composition and the master recording, and that Biz Markie sampled the recording. (162) The decision neither evaluated whether the sampling constituted substantial similarity of protected expression nor considered whether it qualified for fair use. Instead, the court focused on the fact that the defendants had been denied a license, treating the failure to clear the rights as proof of infringement. (163) The opinion assumes, without analysis, that a license is required for any sampling of sound recordings, labeling the defendants' behavior "callous disregard for the law." (164) Judge Duffy concluded the opinion by ordering an injunction as well as "sterner measures," referring the matter to the U.S. Attorney for consideration of criminal prosecution. (165) Biz Markie learned his lesson: His next album was entitled All Samples Cleared! (166)
In 1993, another district court applied the substantial similarity framework to a digital-sampling case. (167) In evaluating the defendants' motion for summary judgment, the court rejected the defendants' assertion that a finding of substantial similarity for infringement requires similarity of the songs in their entirety such that a lay listener would "confuse one work for the other." (168) Applying the "fragmented literal similarity" framework, the court focused on "whether the segment in question constituted a substantial portion of the plaintiff's work, not whether it constituted a substantial portion of the defendant's work." (169) The court found that
the bridge section, which contains the words "ooh ... move ... free your body", was taken. Second, a distinctive keyboard riff, which functions as both a rhythm and melody, included in the last several minutes of plaintiffs song, were also sampled and incorporated into defendants' work. (170)
The court denied the defendants' motion for summary judgment, rejecting the contention that a series of "oohs," "moves," and "free your body" were too cliched or lacking in expressive qualities to attract copyright protection. (171)
A somewhat different hip hop copyright dispute made its way to the Supreme Court in 1994. (172) In 1989, the rap group 2 Live Crew produced a parody of Roy Orbison's classic hit "Oh Pretty Woman," featuring a rap style and comical lyrics. (173) They contacted Acuff-Rose Music, the copyright proprietor, and offered compensation and attribution. (174) Acuff-Rose declined the offer. (175) Nonetheless, 2 Live Crew released its version, which both sampled the original sound recording and altered some of the lyrics, prompting Acuff-Rose to sue. (176)
Applying the fair use doctrine, the district court concluded that 2 Live Crew's version qualified for fair use. (177) The court recognized that the commercial purpose of 2 Live Crew's version cut against such a finding. However, the parodic nature of the work (the song "quickly degenerates into a play on words, substituting predictable lyrics with shocking ones" to show "how bland and banal the Orbison song" is), the recognition that 2 Live Crew had taken no more than was necessary to "conjure up" the original in order to parody it, and the unlikeliness that the parody would "adversely affect the market for the original" pushed the court to its fair use conclusion. (178) On appeal, the Sixth Circuit reversed, emphasizing that the "blatantly commercial purpose" of the use and the appropriation of the heart of the song prevented a finding that the use was fair. (179)
In a wide-ranging opinion that substantially liberalized the fair use doctrine, Justice Souter, writing for a unanimous Supreme Court, (180) recognized the transformativeness of the use (181) as a substantial factor in assessing fair use, (182) eliminated any presumption that commercial use established market harm, (183) and thereby widened the berth for parodies. (184) The Court also eliminated any inference that seeking permission weighed against fair use. (185) Based on these considerations, the Court reversed the Sixth Circuit and remanded the case for further fact-finding with regard to the market-effect factor. (186) The case settled without further judicial consideration of the fair use balance. (187)
A decade later, the Sixth Circuit squarely addressed digital samples of sound recordings, ruling that the Copyright Act bars application of the de minimis doctrine in this class of works, with the implication that even the copying of a single note could constitute copyright infringement. (188) Notwithstanding that the de minimis doctrine as well as other copyright infringement standards have largely evolved through common law development, the court based its ruling on a questionable inference from the statutory text,
Section 114(b) provides that "[t]he exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality." Further, the rights of sound recording copyright holders under clauses (1) and (2) of section 106 "do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording." 17 U.S.C. [section] 114(b) (emphasis added). The significance of this provision is amplified by the fact that the Copyright Act of 1976 added the word "entirely" to this language. Compare Sound Recording Act of 1971, Pub.L. 92-140, 85 Stat. 391 (Oct. 15,1971) (adding subsection (f) to former 17 U.S.C. [section] 1) ("does not extend to the making or duplication of another sound recording that is an independent fixation of other sounds"). In other words, a sound recording owner has the exclusive right to "sample" his own recording. (189)
The effect of this ruling was to dispense with analysis of substantial similarity in digital sampling cases. The mere sampling of any copyrighted sound recording establishes infringement. Although the court left fair use on the table, its staunch pronouncement to rap and hip hop artists to "[g]et a license or do not sample" (190) strongly suggested that the court was not particularly sympathetic to the muss and fuss of fair use analysis.
Notwithstanding the Sixth Circuit's disdain for unauthorized digital sampling, a line of cases emanating from the Second Circuit since 2006 suggests a more sympathetic attitude toward "transformative" use of pre-existing copyrighted works through the fair use doctrine. (191) Although none of these cases involved musical works, they all involved literal appropriation of fragments or even the entirety of prior works in developing new visual works. (192) The cases draw heavily on Judge Leval's seminal law review article on transformativeness (193) as well as the Supreme Court's invocation of that consideration in the Campbell case. (194) More generally, Professor Neil Netanel has shown that federal courts throughout the nation have increasingly emphasized transformativeness in their fair use analysis. (195) These trends would seem to provide greater leeway for music mashups to avoid copyright liability.
Cutting in the opposite direction, a recent Seventh Circuit decision questions the heavy emphasis on transformativeness in fair use analysis. (196) Judge Easterbook writes,
We're skeptical of Carious approach, because asking exclusively whether something is "transformative" not only replaces the list in [section] 107 but also could override 17 U.S.C. [section] 106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under [section] 106(2). Cariou and its predecessors in the Second Circuit do no [sic] explain how every "transformative use" can be "fair use" without extinguishing the author's rights under [section] 106(2). We think it best to stick with the statutory list, of which the most important usually is the fourth (market effect). (197)
There is currently a raft of digital sampling cases pending in various courts filed by TufAmerica, an entity that has acquired the rights to copyrights of many lesser known groups, whose works have been digitally sampled without authorization, for purposes of asserting infringement claims. (198) It remains to be seen whether these cases will produce authoritative case law, although it seems likely, given the small samples at issue and the opportunistic aspects of these assertions, (199) that they will have the effect of confronting the de minimis question as well as loosening the application of the fair use defense to music sampling. (200)
|Printer friendly Cite/link Email Feedback|
|Title Annotation:||Abstract through II. The Legal, Market, and Policy Divides A. The Copyright Backdrop, p. 441-477|
|Author:||Menell, Peter S.|
|Publication:||University of Pennsylvania Law Review|
|Date:||Jan 1, 2016|
|Previous Article:||"Ideology" or "situation sense"? An experimental investigation of motivated reasoning and professional judgment.|
|Next Article:||Adapting copyright for the mashup generation.|