Copyright Law and Mash-Ups

Home , Copyright alternatives, DJ Earworm, Mashup (culture), Mashup (video), Public Knowledge, Secret Diary

A POLICY PAPER

Soda_Jerk with Sam Smith, Pixel Pirate II: Attack of the Astro Elvis Video Clone 2002-2006, DVD still.

DR MATTHEW RIMMER SENIOR LECTURER THE AUSTRALIAN NATIONAL UNIVERSITY COLLEGE OF LAW CANBERRA, ACT, 0200 WORK TELEPHONE NUMBER: (02) 61254164 E-MAIL ADDRESS: [email protected] Copyright Law and Mash-Ups

TABLE OF CONTENTS

Executive Summary 3 1. Introduction 11 A. Literary Mash-Ups 13 B. Artistic Mash-Ups 19 C. Data Mash-Ups 24 D. Musical Mash-Ups 28 E. Cinematic Works 37 2. Advocacy Groups 44 A. The Fair Use Project 44 B. The Organization for Transformative Works 46 C. Public Knowledge 47 D. The Electronic Frontier Foundation 48 E. The Chilling Effects Clearinghouse 50 3. Reform Options 52 A. Tolerated use 52 B. Substantiality 54 C. Copyright Exceptions 62 D. Safe Harbours 76 E. Technological Protection Measures 88 F. Statutory Licensing 95 G. The Creative Commons 99 H. Moral Rights 108 I. Freedom of Expression: Copyright Law and Political Mash-Ups 118 Bibliography 129 About the Author 148

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Executive Summary

This report provides an analysis of the cultural, policy and legal implications of ‘mash-ups’. This study provides a short history of mash-ups, explaining how the current ‘remix culture’ builds upon a range of creative antecedents and cultural traditions, which valorised appropriation, quotation, and transformation. It provides modern examples of mash-ups, such as sound recordings, musical works, film and artistic works, focusing on works seen on You Tube and other online applications. In particular, it considers -

* Literary mash-ups of canonical texts, including Pride and Prejudice and Zombies, The Wind Done Gone, After the Rain, and 60 Years Later; * Artistic mash-ups, highlighting the Obama Hope poster, the ‘Column’ case, and the competition for extending famous album covers; * Geographical mash-ups, most notably, the Google Australia bushfires map; * Musical mash-ups, such as The Grey Album and the work of Girl Talk; * Cinematic mash-ups, including remixes of There Will Be Blood and The Downfall; and

This survey provides an analysis of why mash-up culture is valuable. It highlights the range of aesthetic, political, comic, and commercial impulses behind the creation and the dissemination of mash-ups. This report highlights the tensions between copyright law and mash-ups in particular cultural sectors. Second, this report emphasizes the importance of civil society institutions in promoting and defending mash-ups in both copyright litigation and policy debates. It provides a study of key organisations – including:

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* The Fair Use Project; * The Organization for Transformative Works; * Public Knowledge; * The Electronic Frontier Foundation; and * The Chilling Effects Clearinghouse

This report suggests that much can be learnt from this network of organisations in the United States. There is a dearth of comparable legal clinics, advocacy groups, and creative institutions in Australia. As a result, the public interest values of copyright law have only received weak, incidental support from defendant companies – such as Network Ten and IceTV – with other copyright agendas. Third, this report canvasses a succinct model for legislative reform in respect of copyright law and mash-ups. It highlights:

* The extent to which mash-ups are ‘tolerated uses’; * The conflicting judicial precedents on substantiality in Australia and the United States; * The debate over copyright exceptions relating to mash-ups and remixes; * The use of the take-down and notice system under the safe harbours regime by copyright owners in respect of mash-ups; * The impact of technological protection measures on mash-ups and remixes; * The possibility of statutory licensing in respect of mash-ups; * The use of Creative Commons licences; * The impact of moral rights protection upon mash-ups; * The interaction between economic and moral rights under copyright law; and * Questions of copyright law, freedom of expression, and political mash-ups.

This report was written in the first half of 2010. The law is as stated as at the 1 June 2010.

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Recommendation 1 There is a need to take a broad, inclusive definition of mash-ups, which encompasses a wide range of cultural fields of production.

Recommendation 2 There is a wide range of popular and high fiction, which could be classified as literary mash-ups.

Recommendation 3. There is a long tradition of artistic mash-ups, both in popular culture and high art.

Recommendation 4 The Federal Government should be encouraged to implement the recommendations of the Government 2.0 Taskforce – particularly as they relate to government data, and information.

Recommendation 5 There has been intense legal, aesthetic, and political debate over mash-ups in respect of musical works and sound recordings – highlighted most prominently by the work of DJ Danger Mouse and Girl Talk.

Recommendation 6 There has been prominent litigation and policy debate over the mash-ups of cinematographic films.

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Recommendation 7 Australia needs a version of the Fair Use Project to support advocacy, litigation and advice with respect to copyright exceptions.

Recommendation 8 Australia also needs an advocacy organization, such as the Organization for Transformative Works, to provide advocacy for fans and amateurs, especially those who create mash-ups out of copyright works.

Recommendation 9 There is a need in Australia for a platform, such as Public Knowledge, to assist remix artists in engaging in personal advocacy for copyright law reform.

Recommendation 10 There is a need in Australia for a platform, such as the Electronic Frontier Foundation, to assist remix artists in engaging in personal advocacy for copyright law reform.

Recommendation 11 It is recommended that an Australian version of the Chilling Effects Clearinghouse be established to document take down notices, particularly in respect of mash-ups and remixes.

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Recommendation 12 There may be limited tolerated use of mash-ups by copyright owners. Given the litigation thus far, one could not rely upon the discretion and tolerance of copyright owners to restrain themselves from bringing copyright infringement actions.

Recommendation 13 Given conflicting precedents and competing jurisprudential traditions, there remains uncertainty and ambiguity about the application of the doctrine of substantiality to digital sampling and mash-ups. It would be worthwhile observing whether the decision in IceTV Pty Ltd v. Nine Network Australia Pty Ltd is applied properly by lower courts in Australia.

Recommendation 14 There is a need for greater clarification of the United States defence of fair use and the protection that it affords to transformative works – including mash-ups.

Recommendation 15 The new defence of fair dealing for parody and satire will provide protection for a limited range of mash-ups of a particular aesthetic or political character.

Recommendation 16 Ideally, the Australian Government should adopt a general defence of flexible use, which covers transformative works, remixes, and mash-ups.

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Recommendation 17 Alternatively, the Australian Government should introduce a defence of reasonable use for economic rights (much like for the regime of moral rights), which includes transformative works, remixes, and mash-ups.

Recommendation 18 Alternatively, the Australian Government should introduce a particular defence of fair dealing, which includes transformative works, remixes, and mash-ups.

Recommendation 19 The approach of the United Kingdom and the European Union to the question of mash-ups should be approached with caution.

Recommendation 20 Alternatively, the Australian Government should introduce a flexible dealing defence, which covers transformative works, remixes, and mash-ups.

Recommendation 21 There is a need to enlarge the range of intermediaries protected by the safe harbours doctrine in Australia.

Recommendation 22 There is a need to be cognisant of the weaknesses of the safe harbour regime. Overall, it provides a reasonable balance.

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Recommendation 23 It is recommended that the counter-notification system be improved in Australia and the United States, and greater remedies made available to address any abuses of the take-down-and-notice system.

Recommendation 24 It is recommended that the ruling in the High Court of Australia case of Stevens v. Sony should be used constructively in delimiting the scope of protection afforded by the technological protection measures regime.

Recommendation 25 It is recommended that Australia introduce an exemption in the technological protection measures regime dealing with transformative works, remixes and mash- ups.

Recommendation 26 It is doubtful that any proposal for statutory licensing or compulsory licensing of transformative works, remixes or mash-ups in Australia will provide an effective solution.

Recommendation 27 Creative Commons licences – particularly those especially adapted to deal with sampling – may facilitate mash-ups. Nonetheless, certain Creative Commons licences, particularly those with no-derivative works clauses, may be used to discourage the creation and production of mash-ups.

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Recommendation 28 It is recommended that the Australian regime in respect of moral rights be amended to provide a defence for parody, and satire, and a defence for transformative work, remixes and mash-ups.

Recommendation 29 It is suggested that, under the moral rights regime, cultural groups and professional associations could create an industry code of conduct, governing remixes and mash- ups, helping to delineate what uses are reasonable and what uses are unreasonable.

Recommendation 30 In light of the ruling in Théberge v. Galerie d’Art du Petit Champlain inc., it is observed that there is a need for Australian courts to show consistency and harmonisation between how mash-ups are dealt with under economic rights and moral rights.

Recommendation 31 It would be useful to explore constitutional arguments in respect of copyright law and freedom of political expression, both in future litigation and policy discussions.

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1. INTRODUCTION

There have been a diverse spectrum of efforts at defining ‘mash-ups’, ranging from quite narrow definitions to much more inclusive attempts at delimiting the subject matter. In popular discourse, ‘mash-ups’ are defined as relating to musical combinations. For instance, Wikipedia offers the definition: ‘A mashup or blend (also mash up and mash-up) is a song or composition created by blending two or more songs, usually by overlaying the vocal track of one song seamlessly over the music track of another.’1 Andrew Long has attempted to provide a somewhat broader definition of mash-ups:

In the parlance of netspeak, a mash-up is some type of digital media containing ‘[a] mixture of content or elements’. Although relatively new, the term has gained popularity since 2005… it should be noted that several categories of mash-ups exist. Regardless of the terminology used, all mash-ups appropriate ‘images and sounds from our culture’ and transform the meaning of the original sources into something different.’2

By contrast, Amanda Trevisanut offers a somewhat more theoretical understanding of the term ‘mash-up’:

The art of remix and mash-ups is a contemporary cultural phenomenon that has been facilitated by the mass availability of digital software. Remix effectively describes the process of taking samples of existing media – for example audio tracks, film and television images – and knitting these samples into a new text. The active and creative use of cultural products by individuals challenges the paradigm of the passive spectator that is the corner-stone of traditional film theory... The characterization of the spectator as a passive site of cultural and ideological reproduction is mirrored by the legalities of copyright that seek to indemnify the economic rights of the authors and producers of audio-visual media.3

1 Wikipedia, http://en.wikipedia.org/wiki/Mashup_(music), accessed 26 May 2010. 2 Andrew Long, ‘Mashed Up Videos and Broken Down Copyright: Changing Copyright to Promote the First Amendment Values of Transformative Video’ (2007) 60 Oklahoma Law Review 317. 3 Amanda Trevisanut, ‘Digital Intervention: Remixes, Mash-ups and Pixel Pirates’, Refractory, 25 June 2009, http://blogs.arts.unimelb.edu.au/refractory/category/browse-by-media/comics/

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Niva Elkin-Koren observes that the ‘remix culture’ has been driven by technological and cultural developments:

A common form of [user-generated content] is appropriating cultural products to express a new meaning: adapting movie scenes and fictional characters, parodying brands, or modifying the words or style of popular songs. The popularity of adapting pre-existing works grows as digital formats enable users to mix and match: cut and paste text, embed a video clip, use a song as soundtrack for a homemade video, edit a photo by using Photoshop, or remixing digital music. Users’ creativity is often reflected in mashing new vocal tracks with a video clip or combining the rhythm track of one song with the vocal tracks of another. This is often referred to as a shift to a Remix or Mash-up culture. Originality in such instances might be manifested in the transformative use.4

Puneet Kishor has a much more data-orientated definition of mash-ups:

Mash-ups have existed for as long as content has existed. Jazz musicians routinely quote other songs and tunes, and borrowing and mixing are considered an integral part of jazz music. Robert Rauschenberg is famous for having used Willem de Kooning’s painting to create a new painting called Erased de Kooning. Scientists routinely utilize data from different sources to conduct their own experiments. However, mash-ups, as we know them now, are a peculiarly digital phenomenon of the internet age. They are entirely a product made possible by the portable, mixable and immediate nature of digital technology. We define a mash-up as content formed by an inline combination of two or more different content streams in real time... There is no doubt that mash-ups are very popular, and within mash-ups, map mash-ups are by far the most popular. One API directory, at the time of writing this paper, lists 1,254 documented mash-up APIs with 6,852 mash-ups out of which a highly disproportionate 2,281 or 33% are mapping mash-ups, with Google Maps API being the source of 1,658 mash-ups itself.5

4 Niva Elkin-Koren, ‘Copyright and its Limits in the Age of User-generated Content’, in Eva Hemmungs Wirtén and Maria Ryman (eds). Mashing-up Culture: the Rise of User-Generated Content. Proceedings from the COUNTER workshop Mashing-up Culture, Uppsala University, May 13-14, 2009, 30. 5 Puneet Kishor, ‘Public Policy: Mashing-Up Law and Policy’, in Eva Hemmungs Wirtén and Maria Ryman (eds). Mashing-up Culture: the Rise of User-Generated Content. Proceedings from the COUNTER workshop Mashing-up Culture, Uppsala University, May 13-14, 2009, 127-8.

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The author notes that the blending of copyright sources can often raise legal questions: ‘This can be problematic on two fronts – the creator of the mash-ups has to worry about remaining within the bounds of the permitted uses of the components of the mash-ups, and the users of the mash- ups have to deal with not one but multiple sets of permissions should they decide to use the mash-up in their own work.’6

Recommendation 1 There is a need to take a broad, inclusive definition of mash-ups, which encompasses a wide range of cultural fields of production.

A. Literary Mash-Ups

There is a long pedigree to literary mash-ups. Famously, in response to his rival Samuel Richardson’s Pamela, Henry Fielding wrote in 1741 the satirical response, An Apology for the Life of Mrs. Shamela Andrews, or Shamela.7 It retells the story of Pamela, transforming its chaste heroine into a scheming, lascivious anti-hero. The work was published under pseudonym; and also anonymously; amusingly enough, the work was also pirated. This classic literary mash- up can be found in the public domain, on Google Books. It should be noted, too, that high literary authors often mash-up classical texts for aesthetic, political, and social reasons. Notably, Jean Rhys subverts the work of Bronte in her novel The Wide Sargasso Sea;8 David Malouf reworks The Iliad in his novel, Ransom;9 J.M.

6 Ibid. 7 Henry Fielding, Shamela. [Full title - An Apology for the Life of Mrs. Shamela Andrews. In which, the many notorious Falshoods and Misrepresentations of a Book called Pamela, Are exposed and refuted; and all the matchless Arts of that young Politician, set in a true and just Light. Together with A full Account of all that passed between her and Parson Arthur Williams; whose Character is represented in a manner something different from that which he bears in Pamela. The whole being exact Copies of authentick Papers delivered to the Editor. Necessary to be had in all Families.], republished on Google Books, 1741. 8 Jean Rhys, The Wide Sargasso Sea, New York: WW Norton and Co, 1966. 9 David Malouf, Ransom, Sydney: Random House Australia, 2009.

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Coetzee reinvents the tale of Robinson Crusoe in his novel Foe;10 Lloyd Jones writes a Pacific version of Great Expectations with his novel Mister Pip;11 and Michael Cunningham splices and reinvents Virginia Woolf’s Mrs Dalloway in the award-winning The Hours.12 In recent years, there has been a revival of interest in producing literary sequels and mash-ups. Inspired by the musical example of The Grey Album, the publishing house, Quirk Productions Inc., has published a number of literary mash-ups of classic texts by Jane Austen. In Pride and Prejudice and Zombies, Seth Grahame-Smith interpolates a Zombie story into the classic tale of Pride and Prejudice.13 The subtitle – ‘The Classic Regency Romance – Now with Ultraviolent Zombie Mayhem’ – provides a sense of the ambition of the work. The opening to Pride and Prejudice and Zombies gives a sense of the literary revisionism at work:

It is a truth universally acknowledged that a zombie in possession of brains must be in want of more brains. Never was this truth more plain than during the recent attacks at Netherfield Park, in which a household of eighteen was slaughtered and consumed by a horde of the living dead.14

Quirk Productions Inc. has also commissioned a sequel by Ben. H. Winters called Sense and Sensibility and Sea Monsters,15 a prequel entitled Dawn of the Dreadfuls,16 and a new title by Ben H. Winters called Android Karenina, a mash-up of cyborg stories and the Tolstoy classic.17 Strikingly, Quirk Productions Inc. has claimed copyright over the mash-ups of such public

10 J.M. Coetzee, Foe, New York: Viking Press, 1986. 11 Lloyd Jones, Mister Pip, Melbourne: The Text Publishing Company, 2006. 12 Michael Cunningham, The Hours, New York: Farrar, Straus and Giroux, 1998. 13 Jane Austen and Seth Grahame-Smith, Pride and Prejudice and Zombies, Philadelphia PA: Quirk Productions, 2009. 14 Ibid., 7. 15 Jane Austen and Ben H. Winters, Sense and Sensibility and Sea Monsters, Philadelphia PA: Quirk Productions, 2009. 16 Steve Hockensmith, Dawn of the Dreadfuls, Philadelphia PA: Quirk Productions, 2010. 17 Leo Tolstoy and Ben H. Winters, Android Karenina, Philadelphia PA: Quirk Productions, 2010.

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domain works. Seth Grahame-Smith has also written a historical mash-up named Abraham Lincoln: Vampire Killer with Allen & Unwin.18 In the matter of Dr Seuss Enterprises v. Penguin Books USA, the Court of Appeals for the 9th Circuit held that ‘The Cat NOT in the Hat! A parody by Dr. Juice,’ a retelling of the OJ Simpson murder trial in the manner of the Dr Seuss children’s books, was a copyright infringement and a trade mark infringement.19 On reflection, this dispute might be seen as a copyright conflict over a literary mash-up. In Suntrust Bank v. Houghton Mifflin Company, the Court of Appeals for the 11th Circuit considered an unauthorised sequel to Margaret Mitchell's classic novel, Gone with the Wind.20 The work by Alice Randall was called The Wind Done Gone, a counter-factual history and novel dealing with the events in Gone with the Wind from the perspective of a slave girl. Lifting an injunction granted by a District Court, the Court of Appeals for the 11th Circuit held that The Wind Done Gone was deserving of protection under the doctrine of fair use in relation to criticism and review, because it was a parody. The judges stressed that 'copyright does not immunise a work from comment and criticism'.21 The court of appeals argued that the commercial nature of the publication was strongly overshadowed by its highly transformative use of Gone with the Wind. The judges emphasized that The wind done gone was a specific criticism of the depiction of slavery and race relations in Gone with the wind. It found that the injunction against The Wind Done Gone, was an 'extraordinary and drastic remedy' that 'amounts to unlawful prior restraint in violation of the First Amendment.'22 The Court of Appeals for the 11th Circuit emphasized that the ruling upheld the main constitutional objectives of copyright law: including, the promotion of learning, the protection of the public domain, the granting of an exclusive right to the author, and the prevention of private censorship. In the matter of J. Emily Somma v. Great Ormond Street Hospital, a Canadian children’s novelist, J Emily Somma sought a declaration that her novel After the Rain: A New Adventure for

18 Seth Grahame-Smith, Abraham Lincoln Vampire Hunter, Sydney: Allen & Unwin, 2010. 19 Dr Seuss Enterprises v. Penguin Books USA, 109 F 3d 1394 (9th Cir, 1997) 20 Suntrust Bank v. Houghton Mifflin Company, 268 F 3d 1257 (11th Cir, 2001) (‘Gone with the Wind’ case) 21 Suntrust Bank v. Houghton Mifflin Company, 268 F 3d 1257 (11th Cir, 2001) (‘Gone with the Wind’ case) 22 Suntrust Bank v. Houghton Mifflin Company, 268 F 3d 1257 (11th Cir, 2001) (‘Gone with the Wind’ case)

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Peter Pan did not infringe any copyright in JM Barrie’s books about Peter Pan.23 She contended that copyright in the Peter Pan works had expired in the United States. In any case, her lawyers were confident that the book was protected by the defence of fair use under copyright law in the United States. Moreover, Somma sought a declaration that her activities in publishing After the Rain were protected by the First Amendment. In the end, J. Emily Somma obtained a settlement, allowing her to publish the work. In the case of Salinger v. Colting, the literary author, J.D. Salinger, and, after his death, his literary estate brought an action in the United States for copyright infringement against Fredrik Colting and his publishers.24 Salinger and his estate alleged that Colting’s novel 60 Years Later Coming Through the Rye infringed the economic rights in respect of Salinger’s literary classic, The Catcher in the Rye. At first instance, the District Court judge, Deborah A. Batts, J., considered whether the sequel was entitled to protection as a transformative work under the fair use doctrine. The judge discussed the nature of the doctrine of fair use in the United States:

From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, ‘[t]o promote the Progress of Science and useful Arts ....’At the Constitutional level, while the ‘Copyright Clause and the First Amendment [are] intuitively in conflict, [they] were drafted to work together to prevent censorship’ such that ‘the balance between the First Amendment and copyright is preserved, in part, by the idea/expression dichotomy and the doctrine of fair use.’ ‘Copyright law thus must address the inevitable tension between the property rights it establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them-or ourselves by reference to the works of others, which must be protected up to a point. The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.25

23 J. Emily Somma v. Great Ormond Street Hospital Civil Case No. 02-5889 EMC, United States District Court for the Northern District of California, (2003) 24 Salinger v. Colting 641 F.Supp.2d 250 S.D.N.Y.,2009. 25 Salinger v. Colting 641 F.Supp.2d 250 at 254-5 S.D.N.Y.,2009.

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In her aggregate assessment, the judge held that ‘while the Court does find some limited transformative character in 60 Years, ... it finds that the alleged parodic content is not reasonably perceivable, and that the limited non-parodic transformative content is unlikely to overcome the obvious commercial nature of the work, the likely injury to the potential market for derivative works of Catcher, and especially the substantial and pervasive extent to which 60 Years borrows from Catcher and the character of Holden Caulfield.’26 On appeal, the Fair Use Project has entered the fray, writing an amicus brief on behalf of a number of libraries and the Organization of Transformative Works.27 The executive director, Anthony Falzone, reflected that the injunction banning the publication of 60YL raised fundamental issues about freedom of expression: ‘The injunction issued in this case implicates important First Amendment rights by prohibiting the publication of a book that comments on one of the most iconic literary figures of the 20th century and the author who created him’.28 In addition to arguing that the judge had erred in the granting of a preliminary injunction, the Fair Use Project contended that the District Court had made an error by applying an unduly restrictive fair use standard:

In order to give this creativity-protective doctrine sufficient breathing space, courts must be able to recognize multiple forms of transformativeness. Contrary to Campbell and Blanch, the District Court required the defendant’s use to fit within a narrow definition of parody and criticism, and then used that narrow construction to influence the outcomes on the remaining factors.29

26 Salinger v. Colting 641 F.Supp.2d 250 S.D.N.Y.,2009. 27 Brief of Amici Curiae, including the American Library Association, Association of Research Libraries, Association of College and Research Libraries, The Organization for Transformative Works, and The Right to Write Fund in Support of Defendants in Salinger v. Colting 2010 WL 1729126 (C.A.2 (N.Y.)). 28 Brief of Amici Curiae, including the American Library Association, Association of Research Libraries, Association of College and Research Libraries, The Organization for Transformative Works, and The Right to Write Fund in Support of Defendants in Salinger v. Colting 2010 WL 1729126 (C.A.2 (N.Y.)). 29 Brief of Amici Curiae, including the American Library Association, Association of Research Libraries, Association of College and Research Libraries, The Organization for Transformative Works, and The Right to Write Fund in Support of Defendants in Salinger v. Colting 2010 WL 1729126 (C.A.2 (N.Y.)).

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The Fair Use Project urged: ‘This Court should reject the District Court’s narrow interpretation of transformativeness and reiterate its broader scope.’30 The Court of Appeals for the Second Circuit concluded that the District Court properly determined that Salinger had a likelihood of success of the merits of the case.31 The judges’ notes: ‘It may be that a court can find that the fair use factor favors a defendant even when the defendant and his work lack a transformative purpose’.32 However, the Court of Appeals for the Second Circuit stressed: ‘We need not decide that issue here, however, for when we consider the District Court’s credibility finding together with all the other facts in this case, we conclude, with the District Court, that Defendants are not likely to prevail in their fair use defense.’33 However, in its view, the Court of Appeals for the Second Circuit found that the District Court had failed to properly apply the Supreme Court of the United States’ decision in eBay Inc. v. MercExchange LLC on the factors underlying the grant of an injunction.34 The Court of Appeals for the Second Circuit commented:

The object of copyright law is to promote the store of knowledge available to the public. But to the extent it accomplishes this end by providing individuals a financial incentive to contribute to the store of knowledge, the public’s interest may well be already accounted for by the plaintiff’s interest. The public’s interest in free expression, however, is significant and is distinct from the parties’ speech interests.35

Accordingly, the Court of Appeals for the Second Circuit vacated the District Court’s order and remanded the case to the District Court to apply the proper standard.

30 Brief of Amici Curiae, including the American Library Association, Association of Research Libraries, Association of College and Research Libraries, The Organization for Transformative Works, and The Right to Write Fund in Support of Defendants in Salinger v. Colting 2010 WL 1729126 (C.A.2 (N.Y.)). 31 Salinger v. Colting 2010 WL 1729126 (C.A.2 (N.Y.)) 32 Salinger v. Colting 2010 WL 1729126 (C.A.2 (N.Y.)) 33 Salinger v. Colting 2010 WL 1729126 (C.A.2 (N.Y.)) 34 eBay Inc. v. MercExchange LLC 547 U.S. 388 (2006). 35 Salinger v. Colting 2010 WL 1729126 (C.A.2 (N.Y.))

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No doubt litigation over literary mash-ups will intensify, with the proliferation of fan fiction mash-ups, unauthorised sequels, and slash fiction, particularly deal with popular commodities, such as the Harry Potter series,36 and the Twilight series.

Recommendation 2 There is a wide range of popular and high fiction, which could be classified as literary mash-ups.

B. Artistic Mash-Ups

There have been a string of cases dealing with appropriation art – dating back to the Air Pirates who engaged in rather radical subversions of Disney’s Mickey Mouse series.37 In 1990s and 2000s, the outlandish practitioner of post-modernism, Jeff Koons, was the subject of a number of copyright actions.38 The legal system has struggled to resolve such conflicts. Daniel McClean laments: ‘What emerges is a high degree of mutual incomprehension, with lawyers and artists pursuing their own agendas and showing little understanding of each others’ concerns’.39 If anything, in the 2000s, there has been an intensification of controversies over copyright law and appropriation art.40 Art historian Martha Buskirk comments about the modern trends in respect of appropriation art:

36 See, for instance, the Warner Bros and JK Rowling v. RDR Books 575 F.Supp.2d 513 (2008) (the ‘Harry Potter Lexicon’ case). 37 Walt Disney Productions v. Air Pirates, 581 F 2d 751 (9th Cir, 1978). See also Brett Gaylor, RiP!: A Remix Manifesto, Eyesteel Film and the National Film Board of Canada, 2009, http://nfb.ca/hd/rip_a_remix_manifesto/ 38 Rogers v. Koons 960 F. 2nd 301 (1992); Campbell v. Koons WL 97381 S.D.N.Y. (1993); United Feature Syndicate, Inc. v. Koons 817 F.Supp. 370 S.D.N.Y. (1993); and Blanch v. Koons 467 F.3d 244 (2006); 485 F.Supp.2d 516 (2007). 39 Daniel McClean (ed), The Trials of Art. London: Ridinghouse, 2007. 40 See for instance Hoepker v. Kruger 200 F. Supp. 2d 340 (2002); Mattel Inc v. Walking Mountain Productions 353 F. 3d 792 (2004); Blanch v. Koons U.S. Dist. LEXIS 26299 (2005); and Louis Vuitton Malletier

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In the context of a cultural landscape veritably littered with copyrighted images and trademarked products, it becomes difficult to imagine circumstances in which one could avoid entanglement with protected imagery. It is equally important to note the ongoing importance of artistic strategies of reference and quotation. In the aftermath of 1980s versions of appropriation to which that term was applied, the tactic itself has not gone away; rather, it has been fully assimilated into a field of contemporary art practices where production and reproduction are interwoven and in many cases indistinguishable. As artists continue to traverse intellectual property lines in order to articulate a response to their commodity-saturated environment, conflicts with corporate entities or other artistic authors are certain to arise from the multitude of ownership and authorship claims dotting this terrain.41

This has partly been the product of cultural trends and fashions, with a vogue for mash-ups, guerrilla art, poster art, and amateur art. This has also been partly a reflection of developments in new technologies both of reproduction and dissemination. The use of technological tools such as Photoshop have made it possible for a much wider range of both professional and amateur artists to engage in artistic mash-ups. The most prominent litigation of late has been between Shepard Fairey and Associated Press.42 In this matter, the Fair Use Project brought ‘a civil action for declaratory and injunctive relief to vindicate the rights of visual artist Shepard Fairey and Obey Giant in connection with the series of iconic works Fairey created to support the candidacy of President Barack Obama’.43 The Associated Press argued that Fairey’s work infringed its copyrights in a photograph that was apparently taken by photographer Mannie Garcia, which depicted Obama at a panel discussion at the National Press Club in April 2006 with actor George Clooney. The treatise writer, William

S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 2007 Copr.L.Dec. P 29,476, 84 U.S.P.Q.2d 1969, C.A.4 (Va.), November 13, 2007 (NO. 06-2267) 41 Martha Buskirk, ‘Creative Intent: The Recent Fortunes of Appropriation in the United States’ in Daniel McClean (ed), The Trials of Art. London: Ridinghouse, 2007, 248-9. 42 Fairey v. Associated Press 09-01123 (AKH) United States District Court for the Southern District of New York (2009) http://cyberlaw.stanford.edu/biguploads/Fairey_v_AP_complaint_with_exhibits.pdf 43 Fairey v. Associated Press 09-01123 (AKH) United States District Court for the Southern District of New York (2009) http://cyberlaw.stanford.edu/biguploads/Fairey_v_AP_complaint_with_exhibits.pdf

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Patry, has argued that the poster should be protected under the defence of fair use, both because of its transformative and its political nature:

Mr. Fairey significantly transformed the original, and it is his changes, not the original, that give the poster its power. Without demeaning the original photograph, there is nothing special about it; unlike most forms of appropriation art where the original is not altered and the ‘art’ is in the lack of transformation, the essence of Mr. Fairey’s poster is its transformation from the original. We care about the transformed image only because of the insights provided by Mr. Fairey. Mr. Fairey’s use should be regarded as fair use despite his reliance on Mr. Garcia’s photo... That Mr. Fairey’s poster enriches society has been undeniably proven by its widespread approval by the public, by President Obama, and by its becoming part of the permanent collection of the US National Portrait Gallery.44

By contrast, Professor Jane Ginsburg has maintained that such artistic mash-ups should not be protected under the defence of fair use: ‘What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage.’45 Another piece of litigation to attract attention was the Column Case. The Column case concerned the decision of the United States Postal Service to issue a 37-cent postage stamp commemorating the 50th anniversary of the armistice of the Korean War.46 This stamp featured a photograph taken by John Alli of many of the 19 stainless steel soldier sculptures that are part of the Korean War Veterans Memorial located on the national mall in Washington, D.C. The sculptor, Frank C. Gaylord, an artist and World War II, filed an action against the Postal Service, alleging that the stamp image of ‘The Column,’ infringed his exclusive copyright in the sculpture. The sculptor sought a royalty of ten percent on the Postal Service’s net sales of the commemorative stamp and related merchandise. At first instance, Wheeler J considered whether the stamp was protected under the doctrine of fair use. The judge ruled that the photograph was transformative in its nature: ‘Mr. Alli’s efforts resulted in a work that has a new and different character than ‘The Column’ and is

44 William Patry, Patry on Copyright, updated March 2010. 45 Hillel Italie, ‘AP alleges copyright infringement of Obama image’, Associated Press, 4 February 2009. 46 Gaylord v. The United States 85 Fed. Cl. 59 (2008) (the ‘Column’ case)

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thus a transformative work’. 47 Moreover, the postage stamp was also transformative: ‘The Postal Service further altered the expression of Mr. Gaylord’s statues by making the color in the ‘Real Life’ photo even grayer, creating a nearly monochromatic image. This adjustment enhanced the surrealistic expression ultimately seen in the Stamp by making it colder’. 48 A copyright maximalist made light of the ruling: ‘It appears that Gaylord’s effort to enforce his copyright was undone by the court’s responsiveness to an inspired photographer on a snowy day and to the artistic sensibilities of the Postal Service.’49 In the case of Gaylord v. United States, the United States Court of Appeals for the Federal Circuit considered an appeal against the verdict of the District Court. The Fair Use Project wrote an amicus curiae brief on behalf of The Andy Warhol Foundation for the Visual Arts, Inc., The Andy Warhol Museum, Thomas Lawson, Barbara Kruger, Jonathan Monk, and Allen Ruppersberg.50 The group emphasized:

The decision of the Court of Federal Claims holding the United States Postal Service made fair use of Appellant Frank Gaylord’s sculpture The Column vindicated important rights of free expression and creative freedom. For centuries, art and culture has built on itself. Artists have always manipulated the world around them, including images, objects and scenes – some familiar, some not – to create new works that express new aesthetics and convey new meaning. Much of this imagery and other material is under copyright protection, for copyright now covers nearly every creative work fixed in a tangible medium and often lasts well over a century. The right to use existing imagery under the fair use doctrine is therefore critical to free speech and free expression.51

47 Gaylord v. The United States 85 Fed. Cl. 59 (2008) (the ‘Column’ case) 48 Gaylord v. The United States 85 Fed. Cl. 59 (2008) (the ‘Column’ case) 49 Nicole Rizzo Smith, ‘Postal Service Prevails in Copyright Battle over Korean War Commemorative Stamp’, Sunstein Law, February 2009, http://www.sunsteinlaw.com/publications-news/news- letters/2009/02/200902_RizzoSmithrev.html 50 Amicus Brief of Amici Curiae, including The Andy Warhol Foundation for the Visual Arts Inc., The Andy Warhol Museum, Thomas Lawson, Barbara Kruger, Jonathan Monk, Allen Ruppersberg and Eleven Professors of Law in Support of the Defendant in Gaylord v. United States 595 F.3d 1364, http://cyberlaw.stanford.edu/system/files/Gaylord%20v%20US%20Amici%20brief%20%28filed%29.pdf 51 Amicus Brief of Amici Curiae, including The Andy Warhol Foundation for the Visual Arts Inc., The Andy Warhol Museum, Thomas Lawson, Barbara Kruger, Jonathan Monk, Allen Ruppersberg and Eleven Professors of

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The Fair Use Project emphasized: ‘In holding the postage stamp at issue is protected by fair use, the Trial Court vindicated important rights of creativity and free expression that lie at the heart of the Copyright Act and the fair use doctrine.’52 However, the majority of the Court of Appeals for the Federal Circuit overturned the judgment of the District Court.53 Writing the lead judgment, Moore J held that the Government’s stamp was not a fair use, finding that it was risible to think that the work was transformative:

We conclude that the stamp does not transform the character of The Column. Although the stamp altered the appearance of The Column by adding snow and muting the color, these alterations do not impart a different character to the work. To the extent that the stamp has a surreal character, The Column and its soldiers themselves contribute to that character. Indeed, the Penn State Team suggested that the Memorial have a ‘dream-like presence of ghostly figures.’ Capturing The Column on a cold morning after a snowstorm-rather than on a warm sunny day-does not transform its character, meaning, or message. Nature's decision to snow cannot deprive Mr. Gaylord of an otherwise valid right to exclude.54

The judge concluded: ‘Even though the stamp did not harm the market for derivative works, allowing the government to commercially exploit a creative and expressive work will not advance the purposes of copyright in this case’. 55 In dissent, Newman J protested that ‘Clear error has not been shown in the Court of Federal Claims' factual findings supporting the statutory factors of fair use’. 56 She was of the view that ‘This finding of fair use of itself establishes the right of the United States to use a

Law in Support of the Defendant in Gaylord v. United States 595 F.3d 1364, http://cyberlaw.stanford.edu/system/files/Gaylord%20v%20US%20Amici%20brief%20%28filed%29.pdf 52 Amicus Brief of Amici Curiae, including The Andy Warhol Foundation for the Visual Arts Inc., The Andy Warhol Museum, Thomas Lawson, Barbara Kruger, Jonathan Monk, Allen Ruppersberg and Eleven Professors of Law in Support of the Defendant in Gaylord v. United States 595 F.3d 1364, http://cyberlaw.stanford.edu/system/files/Gaylord%20v%20US%20Amici%20brief%20%28filed%29.pdf 53 Gaylord v. United States 595 F.3d 1364 (2010) 54 Gaylord v. United States 595 F.3d 1364 at 1373-4 (2010) 55 Gaylord v. United States 595 F.3d 1364 at 1376 (2010) 56 Gaylord v. United States 595 F.3d 1364 at 1385 (2010)

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picture of the Memorial on a United States postage stamp, without liability for copyright infringement.’ 57 Moreover, in her view, ‘The use for governmental purposes of a photograph of the Korean War Veterans Memorial, a public monument that was designed and built with public money, is unambiguously covered by the contract and statutes under which this Memorial was built.’ 58 Such legal conflict and disputation – and uncertainty about the lines drawn between copyright infringement and artistic works - has not deterred mash-up artists. The B3TA Challenge has encouraged artists to mash-up and extend famous album covers: ‘Using any tools available - you, your record collection, a camera, photoshop, a scanner, whatever works - show us what happens beyond the borders of classic album sleeves, how the artwork continues’.59 There has been a cultural affinity between artistic mash-ups and musical mash-ups – a connection, interestingly, reinforced by the recent documentaries, Rip! A Remix Manifesto, and Copyright Criminals, and Chevolution. Moreover, there is also a close connection between artistic mash-ups and cinematic mash-ups. Often artistic tools such as Photoshop are used to help mash-up television works and cinematic works.

Recommendation 3. There is a long tradition of artistic mash-ups, both in popular culture and high art.

C. Data Mash-ups

It is interesting that, quite apart from cultural mash-ups, there has also been significant concern and interest in mash-ups of data and geographical information. Damien O’Brien and Brian Fitzgerald observed back in 2006:

57 Gaylord v. United States 595 F.3d 1364 at 1385 (2010) 58 Gaylord v. United States 595 F.3d 1364 at 1386 (2010) 59 B3TA Challenge, Extending Album Art, December 2007, http://b3ta.com/challenge/album_art/popular

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In addition to the many video mash-ups, there are also a variety of website mash-ups available on the internet. For example a mash-up could take live content from one source on the internet, such as traffic data and mix it with online maps from Google, Yahoo or Microsoft to produce real time traffic updates available on virtual maps. One notable mash-up which uses this platform is ChicagoCrime, a mash-up which mixes police data from the Chicago Police Department’s database of reported crimes with Google Maps. The resulting mash-up enables citizens to view crimes that have been committed in their neighbourhood, with each individual crime being plotted on Google Map, right down to where the crime was committed in the street. Another prominent mash-up is Supreme Court Zeitgeist, which takes the United States Supreme Court website and mixes it with current news, opinion and gossip about the United States Supreme Court and other Federal and State Courts.60

There has been much debate about ‘mash-ups’ of maps – particularly some of those associated with Google maps. CNet News reported in 2009 that Google’s bushfire map mash-up was limited in its scope by the refusal of the Victorian Government to provide data due to Crown copyright concerns.61 The story noted the legal difficulties involved in this particular case: ‘With no public feed of the fires' location and an explicit denial of permission to access its own internal data, the engineers were ultimately unable to plot that data on the map as well’. 62 Alan Noble of Google Australia commented: ‘It's ironic that I can download detailed NASA satellite imagery (of Australia) more readily than I can get satellite imagery from the Australian government.’63 In a formal submission to the Victorian Government, Google Australia argued that ‘there are considerable benefits that would flow to the Victorian Government and the wider Victorian community from the unfettered availability of publicly funded, non-confidential government information.’64 It has also found that private enterprises have been reluctant to provide information for the Google PowerMeter initiative.

60 Damien O'Brien, and Brian Fitzgerald, ‘Mash-ups, Remixes and Copyright Law’ (2006) 9 (2) Internet Law Bulletin 17-19. 61 David Braue, ‘Australia government limited Google's bushfire map’, CNet, 12 February 2009, http://news.cnet.com/australia-government-limited-googles-bushfire-map/ 62 Ibid. 63 Ibid. 64 Ibid.

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Google Australia has, as a result, promoted the need for open data. Alan Noble comments:

When you open up all this information, it fuels innovation in ways we can't predict. APIs allow developers to build new products from existing components very, very quickly. We're seeing billions and billions of page views every week. No one company could achieve that kind of scale. And the thing that makes this possible is the openness and innovation that open APIs and open data sets enable.65

John Palfrey and Urs Gasser discuss the need for a stable policy environment to encourage the mashing up of data and web services:

The relevant policy issue in the context of this case on mashups is not how to establish interoperabilty (which exists by definition), but rather how to ensure that this level of interoperability is maintained so that the current rate of innovation continues. As a secondary matter, we concern ourselves with how to ensure that those who have invested in developing (i.e., the company that spends time and money to innovate on top of the interoperable system) or using (i.e., the end user who uses and may save personal data in a service) mashups do not lose their investments arbitrarily. These two concepts are related: if developers and end users cease to trust that their investments will pay off, then they are unlikely to participate in this innovative process to begin with.66

Pursuing such concerns about access to data, such as that relating to mapping, the Government 2.0 Taskforce held a contest called, Mashing Up Australia, to ‘provide a practical demonstration of the benefits that open access to Australian public sector information (PSI) can provide’.67 The Taskforce said of the competition:

Discussion about open access to PSI is often overshadowed by a focus on the risks and issues. What happens if one piece of data is wrong? What happens if someone wants access to the locations of critical

65 Ibid. 66 John Palfrey and Urs Gasser, ‘Case Study: Mashups Interoperability and eInnovation’, Berkman Publication Series, The Berkman Center for Internet & Society, Harvard University2007, http://cyber.law.harvard.edu/interop/pdfs/interop-mashups.pdf, 30. 67 Mashup Australia, http://mashupaustralia.org/about/

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infrastructure? What happens if a bad person uses the data to carry about their bad plans? But much of the PSI which would be made open access for the greatest economic and community benefit does not raise these issues. The Government 2.0 Taskforce is holding this contest to demonstrate that it is possible to enjoy the benefits of open access to PSI now, while we all think and work hard on solving the tough but relatively small subset of big issues.68

The Government 2.0 Taskforce commented: ‘Open access to PSI raises many challenges, some of which may be ‘hidden’ (for want of a better word), eg. the best data may be in legacy systems and difficult to make available to the public’.69 It stressed: ‘In addition to the mashup element, the contest may also award bonuses which encourage people to transform, enrich and enhance data sets into more useful and open formats in the process of building their entries.’70 In its final report, the Government 2.0 Taskforce made a number of recommendations in respect of copyright law, and open government.71 The Government 2.0 Taskforce called on the Federal Government to make a declaration of open government at the highest level, stating that ‘using technology to increase citizen engagement and collaboration in making policy and providing service will help achieve a more consultative, participatory and transparent government’; ‘public sector information is a national resource and that releasing as much of it on as permissive terms as possible will maximise its economic and social value to Australians and reinforce its contribution to a healthy democracy’; and ‘online engagement by public servants, involving robust professional discussion as part of their duties or as private citizens, benefits their agencies, their professional development, those with whom they are engaged and the Australian public.’ Largely, the Federal Government warmly received the recommendations of the Government 2.0 Taskforce.72 Of course, it remains to be seen whether such recommendations

68 Mashup Australia, http://mashupaustralia.org/about/ 69 Mashup Australia, http://mashupaustralia.org/about/ 70 Mashup Australia, http://mashupaustralia.org/about/ 71 The Government 2.0 Taskforce, Engage: Getting on with Government 2.0, the Department of Finance and Deregulation, 22 December 2009, http://www.finance.gov.au/publications/gov20taskforcereport/index.html 72 Australian Government, Government Response to the Report of the Government 2.0 Taskforce, May 2010, http://www.finance.gov.au/publications/govresponse20report/doc/Government-Response-to-Gov-2-0-Report.pdf

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will be implemented, given that the first term of the Rudd Government is coming to an end in 2010.

Recommendation 4 The Federal Government should be encouraged to implement the recommendations of the Government 2.0 Taskforce – particularly as they relate to government data, and information.

D. Musical Mash-ups

In a bibliography of musical mash-ups, Joseph Grobelny has sought to address the problems of defining mash-ups:

Reminiscent of punk rock, mash-ups have become a polarizing musical genre. No one can agree on a definition of the term and how a mash-up differs from similar genres that employ other people’s original material. In their most basic form, mash-ups take the vocal track from one song and add it to the accompanying track of another, but some might incorporate many more in order to produce just one track. These more complex mash-ups are more similar to hip-hop tracks or sound collages, but without more research, it is difficult to state definitively if sample-based hiphop is a precursor to mash-ups or whether the genre developed independently.73

He identifies recurring aesthetic and ethical issues surrounding mash-ups. Grobelny notes that ‘the aesthetic question of whether electronic devices should be used as musical instruments has long been debated, but the technology and techniques that have developed for designing and creating new music are becoming more commonplace as artists attempt to establish the practice as a valid art form’.74 He comments on the perennial disputes over such cultural subject matter:

73 Joseph Grobelny, 'Mash-ups, Sampling, and Authorship: A Mash-upsampliography' (2008) 11 (3) Music Reference Services Quarterly 229-239. 74 Ibid.

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‘Ethical issues of using borrowed material also encircle these genres and techniques, but mash- ups are the most controversial.’75 In an article in First Monday, Sam Howard Spink provides a short history of musical mash-ups:

The mixing of musical styles and texts has a history that far predates the first mash–up, or even Western popular music. In Cassette Culture, Manuel (1993) writes about the legacy of parody and tune borrowing in Indian music, in which familiar ‘texts’ are laid over borrowed tunes and melodies, mixing folk and popular styles. This takes on a new life with the arrival of cassette technology, which ironically helps to reinforce tradition through a shift of control from the centre to the periphery, rather than the other way around. (One could argue that today’s mash–ups also draw on and to an extent reinforce traditional ‘folk’ uses of music — as well as appropriating older songs — and with a corresponding shift in control). Mash–ups, in a Western context, are not a revolutionary new musical invention but a branch on the musical family tree that can be traced back to at least the early days of hiphop. DJs such as Kool Herc and Grandmaster Flash combined drum breaks on vinyl records to produce extended tracks that could then be rapped over by vocalists, and the first hiphop hit — ‘Rapper’s Delight’ by the Sugarhill Gang — uses the instantly recognizable bassline from a Chic hit. From these roots one can trace the phenomenon of remixing, which became a standard way to expand the lifespan and sales potential of pop hits through the 1980s and 90s.76

Howard-Spink recognises the role of new technologies in the development of the cultural form of the musical mash-up: ‘The explosion in mash–ups occurred in large part because cheap computers and easy–to–use software, such as Acid and Pro–Tools, have proliferated far beyond the sound–proofed walls of the professional recording studio’.77 He adds: ‘As well as simplified production, the Internet — and P2P in particular — was also necessary for the distribution and dissemination of mash–up tracks around the scene and around the world.’78

75 Ibid. 76 Sam Howard-Spink, 'Grey Tuesday, Online Cultural Activism and the Mash-Up of Music and Politics' (2004) 9 (10) First Monday, http://www.firstmonday.org/issues/issue9_10/howard/index.html 77 Ibid. 78 Ibid.

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In his documentary, Copyright Criminals, Kembrew McLeod considers the history of musical sampling in the hip-hop community, and the debates over artistic expression, copyright law, and royalties.79 It provides an important background to the contemporary debates over mash-ups. In an academic article, McLeod reflects that the current vogue for mash-ups was anticipated by opera compilations, the medleys found on disco singles:

The origins of the mash-up can be heard in the medleys found on disco 12’ singles, in which a mixer would seamlessly segue from one song to the other. Sometimes these were unlikely medleys, like Donna Summer’s eighteen-minute dance masterpiece that effortlessly fused her versions of ‘Heaven Knows,’ ‘One of a Kind,’ and ‘MacArthur Park.’... As far back as the 1910s, record companies were making megamixes of opera. Because the 78- r.p.m. disc could only hold a few minutes per side, Wayne Koestenbaum notes that tempos had to be quickened and episodes trimmed, even for arias. In a 1911 catalog, the Victor Company boasted about a Carmen medley: ‘An amazing number of the most popular bits of Bizet’s masterpiece have been crowded into this attractively arranged potpourri’. Even closer to the potpourri spirit of mash-ups, the postmodern disco duo the Pet Shop Boys masterfully blended the highminded ‘Where the Streets Have No Name’ by U2 with the 1960s schlock of ‘Can’t Take My Eyes Off You,’ made popular by Engelbert Humperdinck and others...80

MacLeod comments that earliest example of pop music surgical grafting is Alan Copeland’s ‘Mission: Impossible Theme/Norwegian Wood,’ from 1968: ‘Copeland started out in the late- 1940s as a member of the vocal group the Modernaires, became an arranger for Ella Fitzgerald, Frank Sinatra, and others, then did work as a TV-theme composer’.81 He wonders: ‘Just what gave him the idea to plop the vocal melody of the Beatles’ ‘Norwegian Wood’ (originally in a 3/4 waltz time signature) on top of the Mission: Impossible theme song (in jazzy 5/4 time) is a complete mystery’.82 McLeod notes that this ‘real space-age bachelor-pad music’ had a modicum

79 Benjamin Franzen and Kembrew McLeod, Copyright Criminals, IndiePix Films, 2010, http://www.copyrightcriminals.com/ 80 Kembrew McLeod, ‘Confessions of an Intellectual (Property) Academic: Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist’ (2005) 28 (1) Popular Music and Society 79– 93. 81 Ibid. 82 Ibid.

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of success: ‘Even more remarkably, it won a Grammy for ‘Best Contemporary Pop Performance by a Chorus,’ though Copeland’s song didn’t have enough cultural impact to start a new trend in the late 1960s.’83 In 2003, Brian Burton remixed the vocals from Jay-Z's The Black Album and The Beatles' White Album and called his creation The Grey Album.84 He released 3,000 promotional copies of the album under the pseudonym, DJ Danger Mouse, a nickname referring to the quaint British animation series.85 The musical creation of The Grey Album was accompanied by additional artistic creations. The artist, Justin Hampton, created a CD cover for the album, featuring Jay-Z, flanked by The Beatles, in shades of grey. Other artists experimented in mash-ups of the album covers of The Beatles and Jay-Z. In addition, a music video of the track ‘Encore’ from The Grey Album was made in the fall of 2004 by the directing team Ramon and Pedro. The video features clips from The Beatles’ movie A Hard Day’s Night, footage from a Jay-Z performance, as well as computer-generated imagery involving John Lennon and Ringo Starr. The record company EMI, the owner of the rights to the sound recording of the White Album, sent cease and desist letters to DJ Danger Mouse and stores such as Fat Beats and hiphop.com, demanding they destroy copies of the album and remove them from their web-sites. DJ Danger Mouse agreed to cease distribution of The Grey Album.86 However, on the 24th February 2004, 170 websites posted copies of The Grey Album on the Internet in an act of protest and civil disobedience called ‘Grey Tuesday’.87 In a recent 2010 article, Michael Allyn Pote comments that The Grey Album controversy had a galvanizing impact upon the mash-up community:

In 2004, audio mashups entered the public spotlight as another mashup remixer, DJ Danger Mouse, released a limited-production, noncommercial mashup album, The Grey Album, which combined Jay-Z's

83 Ibid. 84 DJ Danger Mouse, www.djdangermouse.com. 85 DJ Danger Mouse, www.djdangermouse.com. 86 Reuters, ‘DJ Mixes Beatles, Jay-Z Into Grey’, CNN, 19 February 2004, http://edition.cnn.com/2004/SHOWBIZ/Music/02/19/leisure.grey.album.reut 87 Grey Tuesday, http://www.greytuesday.org

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The Black Album with the Beatles' The White Album. Yet, public interest in the album did not arise until after the release of the album, when EMI, the copyright holder of the Beatles' works, sent Danger Mouse a cease and desist letter to prevent further distribution of the album. Because of this one event, The Grey Album, and, more importantly, audio mashups in general, were thrust into public controversy. In one of the more notable public responses, Downhill Battle, a nonprofit music activism organization, launched the project ‘Grey Tuesday,’ during which over 170 Web sites offered the album for free download, distributing over 100,000 copies in one day, the largest one-day download in history. In the aftermath of ‘Grey Tuesday,’ many more mashup remixers, such as Gillis, have emerged, each joining the movement against copyright law and becoming increasingly more audacious in the unauthorized use of the works they sample.88

The controversy over the mash-up of The Grey Album became an emblem or a symbol of the wider debate over copyright law and digital sampling of cultural works.89 As one cultural critic, Sam Howard-Spink, observed: ‘The tale of The Grey Album and Grey Tuesday offers a rich case study for the examination of a wide variety of contemporary cultural issues within the context of the ‘copyright wars’ remix culture and the age of the digital network.’ 90 In his documentary, RiP!: A Remix Manifesto, Brett Gaylor focuses upon the work of Gregg Michael Gillis, known by the alias, Girl Talk.91 A virtuoso DJ and mash-up artist, Girl Talk has released several albums, including Secret Diary (2002), Unstoppable (2004), Night Ripper (2006), and Feed the Animals (2008). His work is distinguished by its remixes of dozens of samples of musical works and sound recordings; and his hyperkinetic stage performances.

88 Michael Allyn Pote, ‘Mashed-Up In Between: The Delicate Balance of Artists’ Interests Lost Amidst the War on Copyright’ (2010) 88 North Carolina Law Review 639. 89 For a history of copyright law and music, see Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity, Athens and London: The University of Georgia Press, 2006. 90 Sam Howard-Spink, 'Grey Tuesday, Online Cultural Activism and the Mash-Up of Music and Politics' (2004) 9 (10) First Monday, http://www.firstmonday.org/issues/issue9_10/howard/index.html 91 Brett Gaylor, RiP!: A Remix Manifesto, Eyesteel Film and the National Film Board of Canada, 2009, http://nfb.ca/hd/rip_a_remix_manifesto/ The documentary provides an extensive discussion of how Girl Talk creates his music – focusing on the tracks involved and the amount of adjusting he does in terms of pitch, rhythm, and so forth.

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Wired Magazine bestowed a Rave Award on Girl Talk in 2007. 92 In his book, Remix, Lawrence Lessig lionizes Girl Talk, as an exemplar of ‘Remix culture’, observing:

Gregg Gillis is a twenty- five- year- old biomedical engineer from Pittsburgh. He is also one of the hottest new artists in an emerging genre of music called ‘mash- up’ or ‘remix.’ Girl Talk is the name of his one- man (and one- machine) band. That band has now produced three CDs. The best known, Night Ripper, was named one of the year’s best by Rolling Stone and Pitchfork. In March 2007, his local congressman, Democrat Michael Doyle, took to the floor of the House to praise this ‘local guy made good’ and his new form of art experience and doesn’t compete with what an artist has made available on iTunes or at the CD store.’93

In order to stave off the threat of lawsuits from artists, recording companies, and music publishers, Girl Talk very much depends upon protection from the defence of fair use under copyright law. Nonetheless, the DJ and his family remain nervous and anxious about the possibility of litigation from copyright holders, especially with the steady growth of his fame and reputation. In an interview with the Melbourne Age, Gregg Gillis discusses the political implications of RiP!: A Remix Manifesto:

It definitely raises a lot of issues. I feel a certain way about sampling politics, which is implied in the music and the fact that I release it. But I never try to preach that to people. Ideally the music will be the focus. I got into this music because I like sampling, electronic music and hip-hop, not because I'm interested in the politics of it, and I think that comes across. People come to the shows and think 'this is cool party music' but the movie highlights this whole other world that is at the foundation of what I'm doing.94

92 Angela Watercutter, ‘The 2007 Rave Awards’ (2007) 4 Wired Magazine http://www.wired.com/culture/lifestyle/multimedia/2007/04/ss_raves?slide=10 93 Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy. New York: Penguin Books, 2008, 12. 94 Patrick Donovan, ‘Variety is the splice of life’, The Age, 8 January 2010, http://www.theage.com.au/articles/2010/01/07/1262453637393.html

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Gillis observes of the future of the cultural form of mash-ups:

Mash-ups are one small area of sample-based music but they are going to became a bigger part of the musical landscape as people become more and more connected to computers. In the last 20 years, sampling has been responsible for some of the most important albums from bands like Daft Punk and the Avalanches. There are a million remixes done for every pop song released these days and YouTube is full of remixes of previously existing media. In five years everyone will have computers in their pockets and everyone will know how to draw, edit and make collages and it's going to be as common to make music on computers as guitars.95

His suggestion is the cultural form of the ‘mash-up’ will become commonplace, part of the mainstream of cultural creation and production, rather than an unusual novelty. David Mongillo provides a good survey of the manifold legal issues arising out of the work of ‘Girl Talk’.96 He is particularly insightful about distinguishing the work of Gillis from that of digital samplers:

Although some have called him a DJ or a ‘mash-up’ artist, Gillis considers himself a musician whose instrument is the laptop. In distancing himself and his music from the labels of ‘DJ’ and ‘mash-up,’ Gillis seems to imply that his music is something new. If a court is willing to accept that Girl Talk represents a new form of music, then this may loosen the binds of past sampling decisions and may help to show transformativeness. Therefore, in order to accurately apply fair use precedent to Girl Talk, it is important to distinguish Girl Talk, if possible, from other sampling-based forms of music. First, Girl Talk albums contain far more sampled material per song than even the most sample- heavy hip hop albums. Second, a hip hop song will feature original vocals (rapping) and, usually, original drumbeats or other instrumentation. Gillis does not rap over his compositions and provides little, if any, original instrumentation in his songs. In hip hop, a sample will typically be used to ‘add something to the new recording,’ such as a memorable riff or refrain. With Girl Talk, however, the samples don't simply add something to the new song - the samples are the songs. In this respect, Girl Talk's music is dissimilar to sampling-based forms of music such as hip hop, and more similar to what is known as ‘mash-up.’97

95 Ibid. 96 David Mongillo, ‘The Girl Talk Dilemma: Can Copyright Law Accommodate New Forms of Sample- Based Music?’, (2009) 10 The University of Pittsburgh Journal of Technology Law and Policy 3. 97 Ibid., 14.

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There is an intriguing suggestion here that the work of Girl Talk is even unique when compared to other mash-up artists: ‘One factor distinguishes Girl Talk from almost all other current mash- up projects: Girl Talk's music is sold commercially and samples unabashedly from Top 40 artists.’98 Mongillo comments that, in terms of classification, the work of Girl Talk is somewhat enigmatic: ‘Due to its dissimilarity to sampling-based music such as hip hop, the sheer number of songs Girl Talk samples, and the fact that the songs are sold commercially, Girl Talk presents a distinct type of music that does not neatly fit within precedent or within traditional music genres.’99 Mongillo argues that the fair use defence to copyright infringement should be interpreted to apply to Girl Talk's musical worlds. In Mongillo’s view, ‘Superseding the current fair use doctrine with a bright-line license system, as some have suggested, would stifle innovation’.100 He contends that Girl Talk’s music raises distinct issues, which are not anticipated by any existing precedents. Mongillo concludes that the defence of fair use should be available to the work of Girl Talk:

Girl Talk's music provides an example as to why the current fair use doctrine, despite its faults, is superior to a bright line test for copyright infringement in the sampling context. The uncertainty and fact specific nature of § 107 is necessary because every fair use situation is different and the value of each creative work should be measured independently. We can't predict how technology will change music, so more fair uses may manifest in the future. The flexibility of the fair use doctrine will allow the law to adapt to these changes in technology and society.101

Mongillo maintains that an expanded operation of the defence of fair use under copyright law is preferable to a system of blanket-licensing or compulsory licensing.

98 Ibid., 15. 99 Ibid., 16. 100 Ibid. 3. 101 Ibid., 31-32.

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In the Cardozo Law Review, two commentators debated whether Girl Talk could be protected by the defence of fair use. Victoria Elman argued that, although commercial, the work of the mash-up artist was highlight transformative: ‘Because the work is transformative, commercialism is less significant in weighing against a finding of fair use.’102 She maintained: ‘It is highly unlikely that a market could exist for licensing songs for use in a mash-up if most mash-up artists create the works in part to challenge what they find to be a rigid copyright regime that provides copyright owners too much control.’103 By contrast, Alex Middleton suggested that Girl Talk should be denied the protection of the defence of fair use because he was ‘commenting on the entertainment world or on society as a whole, not on the original work itself.’104 He argued that mash-ups have the potential to harm markets: ‘Mash-ups have only been around since the beginning of the 21st century, and it would be impossible for the market in mash-ups to develop if we do not give artists a chance to establish licensing schemes that are appropriately suited for the market.’105 Another commentator, Shervin Rezaie, is sceptical of whether Girl Talk could raise the defence of fair use:

Ultimately, Greg's fair use defense is questionable. It requires the courts to take considerable steps in accepting a new form of expression, one that has previously gone unrecognized. Greg's ability to take twenty small digital samples and bring them together into one audio pastiche is sufficiently transformative and the fact that such an album can be obtained for free supports a finding for fair use under the purpose and character factor. Under the nature of the copyrighted work, the songs Greg used are at the core of works intended to have copyright protection and this weighs slightly against Greg's use. Digital sampling to create a mash-up, like parody, should enjoy a lenient ‘conjure up’ test because in order to be effective it must be allowed to take a substantial portion of the original. This should allow for a finding in favor of fair use under the amount and substantiality factor. The last factor, effect upon the potential market for the copyrighted work, is in Greg's favor when analyzing the impact on the direct market, but is not favorable

102 Victoria Elman, ‘Girl Talk on Trial: Could Fair Use Prevail?’, (2009) Cardozo Law Review De Novo 149 at 157. 103 Ibid., 160. 104 Alex Middleton, ‘Girl Talk on Trial: Could Fair Use Prevail?’, (2009) Cardozo Law Review De Novo 149 at 163. 105 Ibid., 166.

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when analyzing the residual effect on derivative markets. Thus, taken together as a whole, it is unclear as to whether a court would find for Greg under the defense of fair use. The ultimate decision will likely come down to whether the court will find Greg's audio pastiche to be sufficiently transformative. Given the courts' unwillingness to expand what it recognizes as sufficiently transformative use, Greg is left with little hope, regardless of his earnest belief that his use is fair.106

Nonetheless, this critic argues that any legal action against Girl Talk would be unwise and unproductive: ‘Considering all the facts, record labels and original artists should understand that if they allow Greg to promote them, rather than taking him to court, their pocket books and reputations will be best served.’107 It should be noted that musical mash-ups have become quite mainstream – authorised ‘mash-ups’ are celebrated in the television series, Glee.

E. Cinematic Mash-ups

It is worth recalling that cinematic mash-ups are not a contemporary invention. Timpson has provided an entertaining history of the cultural form:

The history of mashing two pop-culture properties together has a long and robust history. Synching, channeling and mashing were all names for the same stoner pastime, the act of combining two or more tracts to create a new work of pleasure. Synchronicity has been defined by psychologist Carl Jung as a

106 Shervin Rezaie, ‘Play Your Part: Girl Talk’s Indefinite Role in the Digital Sampling Role’ (2010), 26 Touro Law Review 175. 107 Ibid.

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phenomenon in which coincidental events ‘seem related but are not explained by conventional mechanisms of causality’. Non-eggheads explain it away as the brain scrambling to recognize patterns amid disorder.108

Timpson suggests that there are two important precursors for film mash-ups. The first is The Darkside of the Rainbow, a mash-up of The Wizard of Oz and the album is The Darkside of the Moon by Pink Floyd.109 The second is Apocalypse Pooh, what he calls ‘a hilarious and surreal amalgamation of Apocalypse Now and Winnie The Pooh.’110 Timpson observes: ‘The simple and highly effective pairing of two endearing and enduring iconic 20th Century properties, became an 80s tape-trading sensation.’111 The cultural form of the mash-up was reinvigorated by the rise of internet video sites – such as YouTube and Google Videos. In ‘The Rise of the YouTube Auteur’, Jaime Weinman commented on the popularity of the form in 2007:

The ultimate YouTube form is the ‘mash-up,’ where a user takes an existing film or TV show and recuts it to look like a trailer for something else. Though the mash-up craze started in 2005 with the video Shining (which turned a horror movie into a romantic comedy), it has grown to a point where it has hits and flops, sub-genres, and its own auteurs. With the rise of the fake trailer, YouTube is becoming a training ground for new filmmakers, just like the movies. Except that movies don't have grainy Flash picture and commenters who can't spell.112

There are multiple prominent examples of this genre of mash-ups – including the parody ‘Bush and Blair’s Endless Love’;113 a mash-up of the Steven Spielberg’s thriller Jaws and love songs,

108 Ant Timpson, ‘Apocalypse Pooh and the Birth of the Video Mash-up’, Movie City News, 10 February 2010, http://www.moviecitynews.com/voices/2010/100210_toddgraham.html 109 For a segment, see Wizard of Oz Money: http://www.youtube.com/watch?v=H_pgcapIisc 110 Ant Timpson, ‘Apocalypse Pooh and the Birth of the Video Mash-up’, Movie City News, 10 February 2010, http://www.moviecitynews.com/voices/2010/100210_toddgraham.html 111 Ibid. 112 Jaime Weinman, ‘The Rise of the YouTube Auteur’, MacCleans.ca, 13 August 2007, http://www.macleans.ca/culture/entertainment/article.jsp?content=20070813_108151_108151&page=1 113 ‘Endless Love’, http://politicalhumor.about.com/cs/bushmultimedia/v/blendlesslove.htm

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Must Love Jaws; a reinvention of the Back to the Future series as a story about gay cowboys; and various remixes of iTunes advertisements for the iPod.114 In the film, There Will Be Blood, Paul Thomas Anderson provides a radical reinvention of Upton Sinclair’s novel, Oil.115 In his screenplay, he added some dialogue, which was inspired by a transcript of the 1924 congressional hearings over the Teapot Dome scandal. In the stunning denouement to There Will Be Blood, Paul Thomas Anderson works such language into a dialogue between an oil tycoon, Daniel Plainview, and a rather disingenuous evangelist, Eli:

Daniel, loudly, drooling: ‘Drainage! Drainage! Eli, you boy. Drained dry. I’m so sorry. If you have a milkshake and I have a milkshake—there it is. [He holds up his index finger]. That’s the straw, you see. [He turns and walks away from Eli] And my straw reaches acrooooooossssss [walking back toward Eli] the room … I … drink … your … milkshake. [He makes a sucking noise] I drink it up!’ Eli: ‘Don’t bully me, Daniel.’116

Quite swiftly, the tragic conclusion to There Will Be Blood was mashed-up with Kelis’ 2003 song, ‘Milkshake’, which has the suggestive lyrics: ‘My milkshake brings all the boys to the yard,/ And their like/ It's better than yours,/ Damn right it's better than yours,/ I can teach you, / But I have to charge’. The resulting cinematic mash-ups are certainly striking. One by Leafy Bug Productions has been viewed nearly a half-a-million times.117 The YouTube page provides a link to iTunes – where one can buy and download the Kelis song. A version by Kevin Koonz has been watched 600,000 times.118 He notes, though, that he has been asked to remove the Keli song from his version. The USA Today reported that the director was unperturbed by the mash-ups: ‘Not that Anderson minds—or worries that it will undermine the gravitas of the movie, which is up for eight Oscars, including best picture, director and actor. ‘I love the YouTube video. It’s

114 Damien O'Brien, and Brian Fitzgerald, 'Mash-ups, remixes and copyright law' (2006) 9 (2) Internet Law Bulletin 17-19. 115 Upton Sinclair, Oil!, Melbourne: Penguin Books, 1926, reprinted, 2008. 116 Paul Thomas Anderson, There Will Be Blood, Miramax Films, 2007. 117 ‘I Drink Your Milkshake!!!’, http://www.youtube.com/watch?v=8hXJMFW25nY&feature=fvw 118 Kevin Koonz, ‘There Will Be Milkshakes’, http://www.youtube.com/watch?v=MCCdZmHk5Fk

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completely insane and hilarious. It’s crazy what people latch onto.’’119 Commenting upon the appropriation of I Drink Your Milkshake, Kirschling contends that ‘the ironic, Internet-fast catchphrasing of a movie as rich and serious as Blood — and a performance as emotional as Day-Lewis' — is more than a little depressing’. 120He suggests: ‘It reduces art to a punchline; it puts an epic in a blender and comes out with...a milk shake.’121 In the journal Fibreculture, Darren Tofts and Christian McCrea consider what can be learned from the endless viral remixes of scenes from the film about the final days of Adolf Hitler, The Downfall: ‘Described in Wired as a ‘popular internet meme’, the obsessive serial mash-up of a key sequence from Oliver Hirschbiegel’s 2004 film of the last days of Adolf Hitler, Der Untergang (The Downfall), is suggestive of the cultural logic of the contemporary formation known as remix.’. 122 In their view, ‘The Downfall meme is a portrait in miniature of the doxa of contemporary remix; namely, the collaborative, socially-networked taste for creatively manipulating work made by someone else’. At last count on YouTube, there were over 198 parodies of The Downfall clip. The variations were endless, covering complaints about bans under Xbox Live; the United States presidential election; Tel Aviv car parking issues; battles over copyright law; and even self-referential works, featuring Adolf Hitler making his own YouTube parody. The director of The Downfall, Oliver Hirschbiegel, has spoken, in a rather baffled yet happy fashion, about the viral use of the clip from his film in internet videos. New York Magazine noted: ‘The German filmmaker is pleased, nay, thrilled that YouTube enthusiasts have taken it upon themselves to reinterpret it to address anything from Hillary Clinton's loss to

119 Kristin Thompson and David Bordwell, ‘Observations on Film Art’, http://www.davidbordwell.net/blog/?p=1959 120 Gregory Kirschling, ‘Shake, Shake, Shake’, Entertainment Weekly, 8 February 2008, http://www.ew.com/ew/article/0,,20176759,00.html 121 Ibid. 122 Darren Tofts, and Christian McCrea, ‘What Now? : The Imprecise and Disagreeable Aesthetics of Remix’, (2009) 15 Fibreculture http://www.journal.fibreculture.org/issue15/index_print.html

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the Taylor Swift-Kanye West feud’. 123 However, the German movie production company, Constantin Film, has used Content ID on YouTube in 2010 to identify, and demand the takedown of a large number of remakes of The Downfall from the internet video site.124 This has led to much public discussion about copyright law, YouTube, take-down notices, and mash-ups. The Electronic Frontier Foundation has, in particular, highlighted the fair use rights of mash-up artists during the controversy.125 Amanda Trevisanut discusses a brilliant Australian example of cinematic mash-ups – Soda Jerk and Sam Smith’s 2002-2006 film Pixel Pirate II: Attack of the Astro Elvis Video Clone. 126 She seeks to explain how ‘the specific use of digital software to sample and remix audio-visual images testifies to an existing (if largely theoretically neglected) dynamic relationship between individuals, society and media artefacts.’127 Trevisanaut comments: ‘This sixty minute ‘sci-fi / biblical epic/ action movie with a subplot of troubled romance’ (sodajerk.com.au/sj/ppii.html) is entirely – and illegally – constructed of samples from Hollywood film, television, popular music, audio tracks, studio trademarks, DVD menus, copyright advertisements, games and online software.’.128 The creative artists involved certainly had an awareness of practical policy issues in respect of copyright law. In the DVD booklet Soda_Jerk commented: ‘To clear the vast number of samples involved in this project would not only have been astronomically time consuming but also financially impossible’.129 The film-makers observed: ‘The present cost of sample licensing is notoriously

123 Emma Rosenblum, ‘The Director of Downfall Speaks Out on All Those Angry YouTube Hitlers’, The New Yorker Magazine, 15 January 2010, http://nymag.com/daily/entertainment/2010/01/the_director_of_downfall_on_al.html. 124 MG Siegler, ‘Hitler is Very Upset That Constantin Film Are Taking Down Hitler Parodies’, Tech Crunch, 19 April 2010, http://techcrunch.com/2010/04/19/hitler-parody-takedown/ 125 Corynne McSherry, ‘Everyone Who’s Made a Hitler Parody Video Leave The Room’, Electronic Frontier Foundation, 20 April 2010, http://www.eff.org/deeplinks/2010/04/everyone-who-s-made-hitler-parody-leave-room 126 Amanda Trevisanut, ‘Digital Intervention: Remixes, Mash-ups and Pixel Pirates’, Refractory, 25 June 2009, http://blogs.arts.unimelb.edu.au/refractory/category/browse-by-media/comics/ 127 Ibid. 128 Ibid. 129 Ibid.

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prohibitive…This situation places the art of remix squarely in the hands of those with money – branded artists and corporate advertising’.130 The film-makers noted: ‘Money doesn’t buy you sample rights unless you’re using those samples in a way that is pleasing to the proprietor (i.e. not mashing Elvis with Jesus).’131 Soda_Jerk concluded: ‘The battle over copyright then is also the battle over history – what is at stake is the very relationship of the past to the present.’132

Recommendation 6 There has been prominent litigation and policy debate over the mash-ups of cinematographic films.

Summary

This survey has highlighted the diversity and variety of mash-ups. Mash-ups are not confined to the particular cultural fields of music and film. Mash-ups traverse the full range of subject matter protected by copyright law – literary works, compilations of data, artistic works, musical works, dramatic works, cinematographic films, and television broadcasts. Mash-ups have infiltrated the cultural fields of literature, art, geography, music, film, and politics. Some mash-ups mine public domain – such as Pride and Prejudice and Zombies, which marries Jane Austen’s famous public domain novel with a gothic, Zombie genre. Other mash-ups risk legal sanction by splicing and dicing copyright works, without authorisation. On occasion, large parts of copyright works are used – as was in the case of the production of The Grey Album by DJ Danger Mouse. In other instances, mash-up artists use a welter of samples from many works – such as in the case of Girl Talk. Some mash-ups rely upon copyright work, which is subject to Creative Commons licences or Free software licences or Open Source licences. The relationship of mash-ups to capitalism is ambiguous. Some mash-ups are undeniably commercial – such as Girl Talk’s albums, for

130 Ibid. 131 Ibid. 132 Ibid.

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instance - and complicit with consumer capitalism. This obviously would heighten concerns about copyright infringement. Other mash-up artists, such as the makers of the Pixel Pirate II, are highly critical of commercialism, and purely non-commercial. In light of the diversity and variety of mash-ups, it is perhaps understandable that copyright law does not necessarily treat the subject matter in a uniform fashion. The fate of mash-ups depends upon both questions of access to justice and advocacy, and fine matters of doctrinal discrimination and hermeneutics.

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2. ADVOCACY

It is noticeable that, in controversies and litigation, mash-up artists have been supported by advocates, civil society groups, and non government organisations. In the United States, a number of advocacy groups have played a key role in defending and promoting the interests of mash-up artists. There is a healthy civil society of copyright advocates, friends of the court, and policy advisers. By contrast, in Australia, there has been a dearth of such organisations. Community legal centres like the Arts Law Centre of Australia, and government-funded organisations such as the Australian Copyright Council are generally focused upon the protection of economic and moral rights of creative artists. There is no such entity devoted to the interests of creative artists in gaining access to copyright works – for the purposes of fair dealing or otherwise. There are a number of models of advocacy organisations that could be emulated in Australia – either in one large holistic body, or in a networked community of advocacy groups.

A. The Fair Use Project

In 2006, the Stanford Center for Internet and Society established the ‘Fair Use Project’ to provide legal support to a range of projects designed to clarify, and extend, the boundaries of ‘fair use’ in order to enhance creative freedom.133 The Center has three main objectives. First, the Fair Use Project ‘represents filmmakers, musicians, artists, writers, scholars and other content creators in a range of disputes that raise important questions concerning fair use and the limits of intellectual property rights’.134 The venture ‘relies on a network of talented lawyers within the Center for Internet and Society, as well as attorneys in law firms and public interest organizations that are dedicated to advancing the mission of the [Fair Use Project].’135 Second,

133 The Stanford Center for Internet and Society, ‘The Fair Use Project’, http://cyberlaw.stanford.edu/node/5979 134 The Stanford Center for Internet and Society, ‘The Fair Use Project’, http://cyberlaw.stanford.edu/node/5979 135 The Stanford Center for Internet and Society, ‘The Fair Use Project’, http://cyberlaw.stanford.edu/node/5979

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the Fair Use Project offers counselling to content creators: ‘It has advised prominent creators and distributors of documentary films concerning fair use, defamation, trademark infringement, and other issues relating to the appropriate bounds of free expression’.136 The organization notes: ‘While is impossible to eliminate completely the risk of a dispute, this analysis helps reduce and identify liability and litigation risks before the fact, so that informed decisions can be made.’137 Third, the Fair Use Project has been ‘developing a pilot project to reduce the costs of the insurance needed to show or distribute documentary films and other creative works’. The Fair Use Project hoped: ‘Ultimately, we seek to not only define and expand the law, but change the way content owners approach fair use issues.’138 In Australia, there is no equivalent entity to the Fair Use Project. In the absence of any such advocacy group, the defence of fair dealing is currently championed by ill-suited defendants in Australia. Large media broadcasters – such as Network Ten - have been the main ones to raise the defence of fair dealing in litigation.139 Such entities are clearly poor champions of the defence of fair dealing, because they equally have a vested interest in protecting a large portfolio of copyright works.

Recommendation 7 Australia needs a version of the Fair Use Project to support advocacy, litigation and advice with respect to copyright exceptions.

136 The Stanford Center for Internet and Society, ‘The Fair Use Project’, http://cyberlaw.stanford.edu/node/5979 137 The Stanford Center for Internet and Society, ‘The Fair Use Project’, http://cyberlaw.stanford.edu/node/5979 138 The Stanford Center for Internet and Society, ‘The Fair Use Project’, http://cyberlaw.stanford.edu/node/5979 139 See, for instance, TCN Channel Nine v. Network Ten (2001) 108 FCR 235; TCN Channel Nine Pty Ltd v. Network Ten (2002) 118 FCR 417; and Network Ten Pty Ltd v. TCN Channel Nine Pty Ltd (2004) 59 IPR 1.

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B. The Organization for Transformative Works

The Organization for Transformative Works is an emerging civil society group, which is an exciting blend of cultural support and legal advocacy of fan works.140 It is a ‘nonprofit organization established by fans to serve the interests of fans by providing access to and preserving the history of fanworks and fan culture in its myriad forms.’141 In short, ‘We believe that fanworks are transformative and that transformative works are legitimate.’ 142 The vision of the group is:

We envision a future in which all fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity. We are proactive and innovative in protecting and defending our work from commercial exploitation and legal challenge. We preserve our fannish economy, values, and creative expression by protecting and nurturing our fellow fans, our work, our commentary, our history, and our identity while providing the broadest possible access to fannish activity for all fans. 143

The Organization for Transformative Works has five key values. First, ‘We value transformative fanworks and the innovative communities from which they have arisen, including media, real person fiction, anime, comics, music, and vidding.’ 144 Second, ‘We value our identity as a predominantly female community with a rich history of creativity and commentary.’ 145 Third, ‘We value our volunteer-based infrastructure and the fannish gift economy that recognizes and celebrates worth in myriad and diverse activities.’ 146 Fourth ‘We value making fannish activities as accessible as possible to all those who wish to participate.’ 147 Fifth, ‘We value the unhindered cross-pollination and exchange of fannish ideas and cultures while seeking to avoid the

140 The Organization for Transformative Works, http://transformativeworks.org/about 141 The Organization for Transformative Works, http://transformativeworks.org/about 142 The Organization for Transformative Works, http://transformativeworks.org/about 143 The Organization for Transformative Works, http://transformativeworks.org/about 144 The Organization for Transformative Works, http://transformativeworks.org/about 145 The Organization for Transformative Works, http://transformativeworks.org/about 146 The Organization for Transformative Works, http://transformativeworks.org/about 147 The Organization for Transformative Works, http://transformativeworks.org/about

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homogenization or centralization of fandom.’ 148 The group has participated in a number of copyright disputes as an amicus curiae, and has also raised policy questions before the Copyright Register.

C. Public Knowledge

The civil society group, Public Knowledge, has played an active role in promoting and defending remix culture.149 On the 12th January 2010, the group held the first annual World's Fair Use Day (WFUD), ‘a day-long celebration of creativity, innovation and remix culture’.150 With a keynote address by United States Congressman and champion of Girl Talk, Mike Doyle, the event sought to promote a broad reading of fair use to cover a wide range of transformative works, remixes and mash-ups:

Fair use is the legal right that allows creators to make limited uses of copyrighted materials for purposes like comment, criticism and education. At World's Fair Use Day, we'll demonstrate how fair uses of existing works, ranging from recontextualized audio mash-ups to documentary films, enrich our culture and contribute to the ongoing dialog on copyright. Speakers at the event will include Ben Huh (CEO of the Cheezburger Network, the publishing company behind ICanHasCheezburger and FailBlog), Dan Walsh (creator of the web comic ‘Garfield Minus Garfield’), Pennsylvania Congressman and mash-up fan Mike Doyle, TechDirt founder Mike Masnick, mash-up artist DJ Earworm and many more. The night before the main event, we'll kick things off with a ‘Movie Night,’ hosted by Mark Hosler of the pioneering audio

148 The Organization for Transformative Works, http://transformativeworks.org/about 149 Public Knowledge, http://www.publicknowledge.org/ 150 Public Knowledge, ‘Public Knowledge Announces First Annual World Fair Use Day’, 9 December 2009, http://www.publicknowledge.org/node/2806

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collage band Negativland and featuring Brett Gaylor, director of RIP: A Remix Manifesto and Kembrew McLeod, director of Copyright Criminals. 151

In addition to promoting the views of sympathetic politicians, Public Knowledge also provided a platform for remix artists to discuss the policy implications of their creations. Most notably, remix artist, Elisa Kreisinger, provided a powerful account of the impact of copyright law on her artistry, noting: ‘Video remixers are on the front lines of the battle between new media technologies and impeding copyright laws that threaten to obstruct the public space for popular culture critique.’ 152 The strategy of Public Knowledge in promoting the policy views of remix artists is a good means of countering the testimonials of creative artists who support strong copyright protection.

Recommendation 9 There is a need in Australia for a platform, such as Public Knowledge, to assist remix artists in engaging in personal advocacy for copyright law reform.

D. The Electronic Frontier Foundation

Modelled on the American Civil Liberties Union, the Electronic Frontier Foundation is a longstanding civil society organisation, which has played a critical role in the debate over copyright law, Internet videos, and mash-ups.153 It has sought document controversies – for instance, through its Takedown Hall of Shame.154 In a number of matters, it has intervened in disputes, seeking to protect the rights of consumers from take-down notices – most notably, in

151 Ibid. 152 Elisa Kreisinger, ‘Remix, Rights, and Removal’, 24 September 2009, http://www.publicknowledge.org/node/2663 153 The Electronic Frontier Foundation, http://www.eff.org/ and http://www.eff.org/about 154 Takedown Hall of Shame, http://www.eff.org/takedowns

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the dispute between Stephanie Lenz and Universal Music.155 Putting in an amicus brief with other like-minded groups in 2010 in the litigation between Viacom and YouTube, the Electronic Frontier Foundation commented:

As is now abundantly evident, the Internet has grown into an unprecedented, global, accessible, vibrant platform for free speech and creative expression. Never before have so many citizens been able to reach an audience across so many mediums, at such low cost. All of this activity depends in turn upon a thriving marketplace of service providers - including YouTube, MySpace, Facebook, Blogger, and Flickr, to name a few - providing inexpensive (or free) public fora for speech and innovation. Changes to the legal climate for these service providers can have profound consequences for the future of free expression online. Thus, proper interpretation of copyright laws as applied to online service providers is a matter of crucial public interest.156

The group stressed that the safe harbours regime had promoted the growth of social networking services: ‘Services no longer merely host simple text and images on websites, in chatrooms, and in discussion forums, but now also offer myriad platforms for speech and commerce, including web stores (e.g., Amazon ZShops); e-commerce listings (e.g., eBay); blogs (e.g., Blogger); tweets (e.g., Twitter); photographs (e.g., Flickr); documents (e.g., Scribd); video (e.g., YouTube); and audio (e.g., SoundCloud) on behalf of tens of millions of Internet users.’157 The group complained that the ‘Plaintiffs attempt to thwart Congress’ intent and reintroduce the very

155 Lenz v. Universal Music Slip Copy, 2008 WL 962102, 2008 Copr.L.Dec. P 29,540, N.D.Cal., April 08, 2008 (NO. C 07-03783 FJ). 156 Amicus Brief of Amici Curiae, including the American Library Association, Association of College and Research Libraries, Association of Research Libraries, Center for Democracy and Technology, Computer and Communications Industry Association, Electronic Frontier Foundation, Home Recording Rights Coalition, Internet Archive, Netcoalition, and Public Knowledge in Viacom International Inc. v. YouTube 07 Civ. 2103 (LLS) (2010) 157 Amicus Brief of Amici Curiae, including the American Library Association, Association of College and Research Libraries, Association of Research Libraries, Center for Democracy and Technology, Computer and Communications Industry Association, Electronic Frontier Foundation, Home Recording Rights Coalition, Internet Archive, Netcoalition, and Public Knowledge in Viacom International Inc. v. YouTube 07 Civ. 2103 (LLS) (2010)

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climate of uncertainty it sought to ameliorate—a climate that would inevitably hamper innovation and free expression.’158

Recommendation 10 There is a need in Australia for a platform, such as the Electronic Frontier Foundation, to assist remix artists in engaging in personal advocacy for copyright law reform.

E. The Chilling Effects Clearinghouse

The Chilling Effects Clearinghouse is a joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics.159 The Clearinghouse explains the nature of the project in these terms:

The project invites recipients and senders of cease and desist notices to send them to a central point (here, at chillingeffects.org) for analysis, and to browse the website for background information and explanation of the laws they are charged with violating or enforcing. Clinical law students will prepare issue-spotting analyses of the letters in the question-and-answer style of FAQs, which we will post alongside the letters in an online database. The site aims to educate C&D recipients about their legal rights. Site visitors may search the database by subject area or keyword.160

The Clearinghouse has been particularly good at tracking take-down notices and cease-and-desist notices in respect of musical and cinematic mash-ups. For instance, a recent April 2010 notice

158 Amicus Brief of Amici Curiae, including the American Library Association, Association of College and Research Libraries, Association of Research Libraries, Center for Democracy and Technology, Computer and Communications Industry Association, Electronic Frontier Foundation, Home Recording Rights Coalition, Internet Archive, Netcoalition, and Public Knowledge in Viacom International Inc. v. YouTube 07 Civ. 2103 (LLS) (2010). 159 The Chilling Effects Clearinghouse FAQ, http://www.chillingeffects.org/faq.cgi 160 The Chilling Effects Clearinghouse FAQ, http://www.chillingeffects.org/faq.cgi

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from the International Federation of the Phonographic Industry to Google asked the search engine to take down mash-ups of the Lion King from a blog.161 It is striking, in Australia, that there is no equivalent to The Chilling Effects Clearinghouse, and, moreover, it is difficult to monitor take-down and cease-and-desist notices, beyond an anecdotal level.

Recommendation 11 It is recommended that an Australian version of the Chilling Effects Clearinghouse be established to document take down notices, particularly in respect of mash-ups and remixes.

161 IFPI, ‘DMCA (Copyright) Complaint to Google’, 10 April 2010, http://www.chillingeffects.org/dmca512c/notice.cgi?NoticeID=37613

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3. REFORM OPTIONS

The cultural form of mash-ups raises a multitude of questions in respect of copyright law reform. This section of the report seeks to develop a model for legislative reform, considering issues, such as:

* Tolerated use of mash-ups; * Substantiality and mash-ups; * Copyright exceptions and mash-ups; * Safe Harbours, Take-Down notices, and Counter Notifications; * Technological Protection Measures; * Statutory licensing and compulsory licensing; * The use of Creative Commons licences to facilitate the creation of mash-ups; * The interaction between economic and moral rights under copyright law; * Questions of copyright law and freedom of expression, and * A copyright industry approach to mash-ups.

A. Tolerated Use

In a 2007/2008 article, Timothy Wu developed the concept of a ‘tolerated use’ under copyright law.162 He comments upon the phenomenon of copyright owners tolerating certain technical copyright infringements:

Copyrighted works are today used in many ways they once were not. There is a giant grey zone in copyright, consisting of millions of usages that do not fall into a clear category but are often infringing. These usages run the gauntlet, from PowerPoint presentations, personal web sites, social networking sites, church services, and much of Wikipedia's content to well-known fan guides. Such casual and often harmless uses of works comprise the category of tolerated use... The critical aspect of this phenomenon are uses of works that are of a mass quantity and low value per transaction. Copyright's property structure, like

162 Timothy Wu, ‘Tolerated Use’ (2007/2008) 31 Columbia Journal of Law and Arts 617.

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most property systems, works best given relatively few significant uses of a given work that are each of high value.163

Wu contends that there are several ways to clarify boundaries and reduce uncertainty in scenarios involving tolerated use. He suggests that ‘mash-ups’ are an example of a cultural form, which may fall within the realm of ‘tolerated use’: ‘Given that the creation of political satire has become increasingly widespread as tools for remix have become cheaper and easier to use, and the low economic value of most satires, it is likely that more and more of them will fall into the ‘tolerated use’ gray area’.164 Wu comments: ‘Use of complement/substitute as an analytical tool for measuring fair use in these satires would lead to more predictability for creators, and a corresponding shrinkage in the scope of ‘tolerated use.’’165 Wu concludes: ‘When thinking about the waves of mass casual infringement that characterize modern copyright, and the related rise in tolerated use, it helps to remember that copyright has faced challenges like this before, and will likely face more in the future’.166 He preaches: ‘To succeed copyright must adapt, sometimes drastically’.167

163 Ibid., 317. 164 Ibid., 633. 165 Ibid., 633. 166 Ibid., 634. 167 Ibid., 634.

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B. Substantiality

The position of mash-ups has been made particularly murky by conflicting decisions and approaches to the question of substantiality in respect of copyright infringement.

i. United States

In the United States, there has been much litigation over copyright infringement in respect of musical works and sound recordings. In recent litigation, the courts have stressed the legal maxim of ‘de minimis non curat lex’ - ‘the law cares not for trifles’.168 In the case of Newton v. Diamond, the jazz flutist and composer, James W. Newton, claimed that the band, the Beastie Boys, had sampled a six-second, three-note performance of his composition, ‘Choir’.169 In 1992, Beastie Boys obtained a licence from ECM Records to use portions of the sound recording of ‘Choir’ in various renditions of their song ‘Pass the Mic’ in exchange for a one-time fee of $1000. Beastie Boys did not obtain a licence from Newton to use the underlying composition. At first instance, the District Court granted summary judgment that there was no copyright infringement in favour of the defendants.170 For the majority, Schroeder CJ of the 9th Circuit Court of Appeals provides a definition and a history of the practice of ‘digital sampling’. She affirmed that Beastie Boys’ use was de minimis and therefore not actionable:

Because Newton conceded that ‘Choir’ and ‘Pass the Mic’ ‘are substantially dissimilar in concept and feel, that is, in [their] overall thrust and meaning’ and failed to offer any evidence to rebut Dr. Ferrara's

168 Brett Kaplicer, 'Rap Music and De Minimis Copying: Applying the Ringgold and Sandoval Approach to Digital Samples' (2000) 18 (1) Cardozo Arts and Entertainment Law Journal 227; and David Blessing, ‘Who Speaks Latin Anymore?: Translating De Minimis Use For Application to Music Copyright Infringement and Sampling’ (2004) 45 William and Mary Law Review, 2399. 169 Newton v. Diamond 204 F. Supp. 2d 1244 (2002); Newton v. Diamond 388 F.3d 1189 (9th Cir. 2004); and Newton v. Diamond 125 S.Ct. 2905 (2005). 170 Newton v. Diamond 204 F. Supp. 2d 1244 (2002).

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testimony that the sampled section is not a quantitatively or qualitatively significant portion of the ‘Choir’ composition, the Beastie Boys are entitled to prevail on summary judgment. On the undisputed facts of this case, we conclude that an average audience would not discern Newton's hand as a composer, apart from his talent as a performer, from Beastie Boys' use of the sample. The copying was not significant enough to constitute infringement. Beastie Boys' use of the ‘Choir’ composition was de minimis.171

The court observed that the sole basis of Newton’s infringement action was his remaining copyright interest in the ‘Choir’ composition, because Beastie Boys’ use of the sound recording was authorized. It held that Beastie Boys’ use of a brief segment of that composition, consisting of three notes separated by a half-step over a background C note, was not sufficient to sustain a claim for copyright infringement. It affirmed the District Court’s grant of summary judgment on the ground that Beastie Boys’ use of the composition was de minimis and therefore not actionable. Dissenting, Graber J held that a jury reasonably could find that Beastie Boys’ use of the sampled material was not de minimis. She observed: ‘The majority, then, reads the record selectively when it states that Newton failed to offer sufficient evidence that the sampled material is qualitatively significant’.172 First, Newton offered a letter from Professor Olly Wilson of the University of California at Berkeley, which emphasized that the distinctiveness of the sampled material was due to Newton’s performance.173 Second, Newton presented a letter from Professor Christopher Dobrian of the University of California, Irvine, which described the three- note sequence at issue as a simple, neighbouring tone figure.174 Accordingly, Graber J held that summary judgment was inappropriate in this case, because Newton had presented evidence establishing that reasonable ears differ over the qualitative significance of the composition of the sampled material. In her view, Newton should have been allowed to present his claims of infringement to a jury.

171 Newton v. Diamond 388 F.3d 1189 at 1197 (9th Cir. 2004). 172 Newton v. Diamond 388 F.3d 1189 at 1198 (9th Cir. 2004). 173 Newton v. Diamond 388 F.3d 1189 at 1197 (9th Cir. 2004). 174 Newton v. Diamond 388 F.3d 1189 at 1197-1198 (9th Cir. 2004).

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Newton petitioned for a writ of certiorari, complaining that the ‘denial of copyright protection for ‘Choir’ renders a substantial body of jazz, electronic and contemporary works by some of America's most distinguished composers virtually unprotected by copyright law’.175 In support of Newton, an amicus brief by a group of musical composers claimed that the measurement of a musical sample was a matter of great public importance. Referring to the controversy over The Grey Album, the group observed:

Low cost audio editing software such as Pro-Tools have enabled a new generation of amateur and professional musicians to craft new compositions out of pre-existing musical works on their home computer. The musical practice of digital sampling has also spawned numerous articles, books, and law review articles. This explosion of sampling technology and lack of uniform legal precedent brings to mind the pending high profile case of MGM v. Grokster, with one exception. Whereas the controversy surrounding file-sharing of musical works has existed for only a few years, the debate surrounding digital sampling in the music industry has continued unabated for over two decades.176

Nonetheless, the United States Supreme Court was unconvinced, and refused to grant special leave to Newton to appeal against the decision of the Federal Court.177 In Bridgeport Music Inc. v. Dimension Films Inc, the owner of a partial interest in copyright for the musical composition, ‘100 Miles’, brought an infringement action against the producer of the motion picture, I Got the Hook Up.178 In the District Court, Higgins J held that there was de minimis use of the copyright work: ‘The portion of the song at issue here is an arpeggiated chord — that is, three notes that, if struck together, comprise a chord but instead are played one at a time in very quick succession — that is repeated several times at the opening of ‘Get Off’’.179 His Honour emphasized that ‘a balance must be struck between protecting an artist’s interests, and depriving other artists of the building

175 Newton, ‘Appellate Petition, Motion and Filing in Newton v. Diamond’, 2005 WL 585205, 27. 176 Amicus Brief of Meet the Composer and others in Newton v. Diamond, 2005 WL 1170246, 10. 177 Newton v. Diamond 125 S.Ct. 2905 (2005). 178 Bridgeport Music Inc. v. Dimension Films Inc. 230 F Supp 2nd 830 (2002). 179 Bridgeport Music Inc. v. Dimension Films Inc. 230 F Supp 2nd 830 at 839 (2002).

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blocks of future works’.180 The judge concluded: ‘Since the advent of Western music, musicians have freely borrowed themes and ideas from other musicians’.181 In the Court of Appeals for the 6th Circuit, Guy J reversed the District Court’s decision to grant summary judgment in respect of the matter of copyright infringement.182 His Honour observed that the requirement to seek permission from a copyright owner to sample a sound recording would not stifle artistic creativity:

A sound recording owner has the exclusive right to ‘sample’ his own recording. We find much to recommend this interpretation. To begin with, there is ease of enforcement. Get a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a ‘riff’ from another work in his or her recording, he is free to duplicate the sound of that ‘riff’ in the studio.183

The judge was disinclined to adopt an analysis of de minimis use: ‘This case also illustrates the kind of mental, musicological, and technological gymnastics that would have to be employed if one were to adopt a de minimis or substantial similarity analysis’.184 The matter was remanded back to the District Court for a consideration of the availability of the defence of fair use. This hostility to digital sampling has attracted much unfavourable academic criticism.185 There is clearly a conflict between the approaches of the Court of Appeals for the 6th Circuit and the Court of Appeals for the 9th Circuit in respect of digital sampling and de minimis

180 Bridgeport Music Inc. v. Dimension Films Inc. 230 F Supp 2nd 830 at 842 (2002). 181 Bridgeport Music Inc. v. Dimension Films Inc. 230 F Supp 2nd 830 at 842 (2002). 182 Bridgeport Music Inc. v. Dimension Films Inc. 410 F.3d 792 (6th Cir. 2005). 183 Bridgeport Music Inc. v. Dimension Films Inc. 410 F.3d 792 at 801 (6th Cir. 2005). 184 Bridgeport Music Inc. v. Dimension Films Inc. 410 F.3d 792 at 802 (6th Cir. 2005). 185 Janice Mueller, ‘All Mixed Up: Bridgeport Music v. Dimension Films and de Minimis Digital Sampling’ (2006) 81 Indiana Law Journal 435; M. Leah Somoano, ‘Bridgeport Music Inc. v. Dimension Films: Has Unlicensed Digital Sampling of Copyrighted Sound Recordings Come to an End?’ (2006) 21 Berkeley Technology Law Journal 289; and Steven Kim, ‘Taking De Minimis out of the Mix: The Sixth Circuit Threatens to Pull the Plug on Digital Sampling in Bridgeport Music Inc. v. Dimension Films’ (2006) 13 Villanova Sports and Entertainment Law Journal 103.

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use. Perhaps the United States Supreme Court will eventually need to intervene to resolve this ongoing dispute. Thinking about the Bridgeport decision, David Mongillo comments that such an approach would make mash-ups impossible to create:

The Bridgeport decision, with its ‘get a license or do not sample’ rule, came down firmly in favor of greater protection for copyright holders. The value of a bright line rule in this area, as the Bridgeport court pointed out, is its predictability. The rule, applied uniformly, would make copyright violations easy to spot, and would prod sampling artists, who would have previously relied on fair use or the de minimus defense, to seek out licenses. The downside of this rule, of course, is that it would limit creativity. Sampling would most likely decline and many creative uses would not occur. Girl Talk's style of music would almost certainly die out under this type of system. With victory assured, certain copyright holders would probably not hesitate to bring action against Girl Talk. Gillis would be forced to seek out and pay for hundreds of licenses per album, at whatever price the copyright holders would demand. The court in Bridgeport argued that market pressures would keep sample prices reasonable. However, nothing would stop copyright holders who object to Girl Talk's use from either charging exorbitant license fees or simply refusing to license their songs. However, even assuming that market pressures would keep sampling prices reasonable for the purposes of most sampling artists, Girl Talk's music would still be impossible to create.186

Mongillo suggests: ‘Even if Girl Talk could pay for the required licenses, however, the mere administrative process of clearing every sample would be a practically insurmountable barrier’.187 In his view, ‘the time and money required to pursue the licenses for ‘Feed the Animals’ would have ‘likely ... sunk the project.’’188 Aaron Power suggests that ‘mash-ups are different from the traditional digital sampling model, and consequently, that it would be inappropriate to analyze mash-ups under the new rule announced in Bridgeport Music, Inc. v. Dimension Films’.189

186 David Mongillo, ‘The Girl Talk Dilemma: Can Copyright Law Accommodate New Forms of Sample- Based Music?’, (2009) 10 The University of Pittsburgh Journal of Technology Law and Policy 3 at 17. 187 Ibid. 188 Ibid. 189 Aaron Power, ‘15 Megabytes of Fame: A Fair Use Defense for Mash- Ups as DJ Culture Reaches it Postmodern Limit’, (2007) 35 Southwestern University Law Review 577.

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ii. Australia

In Australia, there has been conflicting precedents in respect of the question of copyright law and substantiality. In the recent case of IceTV Pty Ltd v. Nine Network Australia Pty Ltd, the High Court of Australia was adamant the concept of substantiality was a demanding, meaningful standard.190 Gummow, Hayne and Heydon JJ were highly critical of the approach of the Full Federal Court to the question of substantiality:

The effect of s 14(1)(a) of the Act is that an infringement by reproduction of a work may result from the reproduction of ‘a substantial part of the work’. The word ‘substantial’ has been said to be ‘not only susceptible of ambiguity’ but to be ‘a word calculated to conceal a lack of precision’. However that may be, which of the various possible shades of meaning the word bears in a provision such as s 14 of the Act will be determined by the context... The proposition that in a case such as the present one looks to the literary originality of what IceTV copied, rather than to the Weekly Schedule as a whole, in answering the question whether IceTV reproduced a substantial part of the Weekly Schedule, shifts consideration to an extraneous issue. This is whether what the primary judge called the ‘slivers’ of information may themselves be classified as original literary works. The issue requiring the comparison between what was taken and the whole of the work in suit may be distorted by a meditation, inspired by Desktop Marketing, upon the protection given by the Act against misappropriation of any investment of skill and labour by the author. In the present case, the temptation then is to classify the slivers each as original literary works. An important proposition may be overlooked. This is that the statutory requirement that the part of a work taken must be substantial assumes there may be some measure of legitimate appropriation of that investment.191

The High Court of Australia emphasized the need for members of the Federal Court to take greater care in the assessment of substantiality Nonetheless, there have been a number of occasions where lower courts have applied the standard of substantiality in a harsh way, particularly when dealing with musical works and sound recordings.

190 IceTV Pty Ltd v. Nine Network Australia Pty Ltd [2009] HCA 14; (2009) 254 ALR 386 191 IceTV Pty Ltd v. Nine Network Australia Pty Ltd [2009] HCA 14; (2009) 254 ALR 386

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In Australia, the Federal Court of Australia has shown little fondness for the practice of digital sampling.192 The 2010 Federal Court of Australia decision in Larrikin Music Publishing Pty Ltd v. EMI Songs Australia Pty Limited raises concerns about the status of mash-ups in Australia.193 In this matter, Larrikin Records sued EMI and members of Men at Work, alleging that the 1980’s pub rock anthem, ‘Down Under’ infringed copyright in the song, ‘Kookaburra Sits in an Old Gum Tree’. Following a peculiar line of reasoning, Jacobson J held that there was indeed infringement:

It is true that Kookaburra is a short work and that it is not reproduced in Down Under as a round. But it was not suggested by the respondents that Kookaburra is so simple or lacking in substantial originality that a note for note reproduction of the entire work was required to meet the ‘substantial part’ test. Nor could any such submission be sustained. The short answer to the qualitative test is to be found in Mr Hay’s performance of the words of Kookaburra to the tune of the flute riff in Down Under. In my opinion, that was a sufficient illustration that the qualitative test is met. The reproduction did not completely correspond to the phrases of Kookaburra because of the separation to which I have referred. But Mr Hay’s performance of the words of Kookaburra shows that a substantial part was taken. Moreover, although the question of quantity is secondary to that of quality, it is worthwhile noting that two of the four bars or phrases of Kookaburra have been reproduced in Down Under (or 50% of the song).194

If the reproduction of a small segment of the Kookaburra song in a pub rock anthem is considered to be a substantial part, what hope is there for a mash-up to avoid a finding of copyright infringement? Obviously, there is a question of whether ruling of Jacobson J is consistent with High Court authority on substantiality.

192 Universal Music Australia Pty Ltd v. Miyamoto [2003] FCA 812 (18 July 2003); and Universal Music Australia Pty Ltd v. Miyamoto [2004] FCA 982 (20 July 2004); and Commonwealth Director of Public Prosecutions v. Ng, Tran and Le (unreported, Sydney Central Local Court, Henson DCM, 18 November 2003). 193 Larrikin Music Publishing Pty Ltd v. EMI Songs Australia Pty Limited [2010] FCA 29 (4 February 2010) 194 Larrikin Music Publishing Pty Ltd v. EMI Songs Australia Pty Limited [2010] FCA 29 (4 February 2010)

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iii. The European Union

In the 2008 case of Metall auf Metall (Kraftwerk, et al. v. Moses Pelham, et al.), the German Federal Supreme Court considered the question of copyright infringement in respect of digital sampling of the work of Kraftwerk.195 Neil Conley and Tom Braegelmann comment upon the ruling:

The decision is of great importance because it was the first music sampling case heard by Germany’s Federal Supreme Court — Germany’s highest civil law court. The Federal Supreme Court gave the case the official title of Metall auf Metall, which is the name of the song that was sampled in the case. The case is also known as the ‘Kraftwerk Decision’ in German legal circles, which refers to the plaintiffs - a very influential German musical group who pioneered modern electronic music. In deciding this case, the German Federal Supreme Court ended a twenty-year-long controversy in Germany regarding the issue of whether the sampling of small parts of a sound recording constituted an infringement of the producers’ neighboring rights in the sound recording. The Court also held that the German Copyright Law doctrine of ‘Freie Benutzung’ applies to neighboring rights just as it does to copyrights, although this is not explicitly stated in the German Copyright Act. Although ‘Freie Benutzung’ literally translates to ‘free use,’ the reader should not equate this German legal concept with the U.S. legal concept of ‘fair use,’ as the elements and scopes of both concepts differ considerably.196

The commentators suggest that ‘The Kraftwerk Decision mirrors, in many ways, the Bridgeport Music, Inc. v. Dimension Films case decided by the Sixth Circuit in 2005.’197

195 Metall auf Metall (Kraftwerk, et al. v. Moses Pelham, et al.), Decision of the German Federal Supreme Court no. I ZR 112/06, dated November 20, 2008 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1504982 196 Ibid. 197 Ibid.

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whether the decision in IceTV Pty Ltd v. Nine Network Australia Pty Ltd is applied properly by lower courts in Australia.

C. Copyright Exceptions i. The United States

The doctrine of fair use became codified in the United States copyright regime. Section 107 of the Copyright Act 1976 (US) provides:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

(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.

Moreover the provision states: ‘The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.’198 Since that time, the doctrine of fair use has been applied in a dazzling array of factual situations and technological environments. As Pamela Samuelson has observed:

Fair use has been invoked as a defense to claims of copyright infringement in a wide array of cases over the past thirty years, as when someone has drawn expression from an earlier work in order to parody it, quoted from an earlier work in preparing a new work on the same subject, published a photograph as part of a news

198 Folsom v. Marsh 9 F.Cas. 342 (1841).

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story, made a time-shift copy of television programming, photocopied a document for submission as evidence in a litigation, reverse engineered a computer program to get access to interface information, cached websites to facilitate faster access to them, or provided links to images available on the Internet, just to name a few.199

Moreover, the defence of fair use has migrated into other adjoining fields of intellectual property. The codification of trade mark dilution law features a defence of fair use. There are strong parallels between the defence of fair use under copyright law and the defence of experimental use under patent law (not least because Justice Joseph Story invented both doctrines).200 In addition to such legal jurisprudence on the topic, there has been a publishing boom in academia on the topic of copyright law and fair use. There have been ferocious debates over the merits and the demerits of the legal doctrine. Academics have suggested a spectrum of theories and reforms to improve the doctrine of fair use under copyright law. Pamela Samuelson surveys the literature on the topic:

Some commentators have proposed to ‘fix’ fair use by establishing a low-cost administrative tribunal so that putative fair users could explain uses they wished to make of another author’s work and get feedback from the tribunal about whether the use is fair. Another has suggested that the U.S. Copyright Office be given more rule-making authority to develop fair use guidelines or create new exceptions. Still others have recommended quantitative safe harbors for common kinds of appropriations (e.g., so many seconds of a song, so many words from a text). A fourth approach has been to articulate ‘best practices’ guidelines for groups of creators who typically reuse parts of previous works in developing new ones (e.g., documentary filmmakers). Many commentators have also urged that courts take into account some factors not set forth in Sec. 107, the fair use provision of the Copyright Act of 1976 (1976 Act), including the likelihood of market failure, the plaintiff’s rationale for insisting that the use must be licensed, chilling effects on free speech, chilling effects on innovation, the impact of network effects, whether the defendant’s use was reasonable and customary in her field of endeavor, how ‘old’ the work is, distributive values, and even the fairness of the use.201

199 Pamela Samuelson, ‘Unbundling Fair Uses’, (2009) 77 Fordham Law Review 2537. 200 Ibid. 201 Ibid.

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Samuelson has sought to identify policy clusters underlying the cases dealing with the fair use doctrine. She suggests: ‘The policies underlie modern fair use law include promoting freedom of speech and of expression, the ongoing progress of authorship, learning, access to information, truth-telling or truth-seeking, competition, technological innovation, and privacy and autonomy

202 interests of users’ In his book, Remix, Lawrence Lessig makes the case that mash-ups involve both originality and creativity:

Anyone who thinks remixes or mash- ups are neither original nor creative has very little idea about how they are made or what makes them great. It takes extraordinary knowledge about a culture to remix it well. The artist or student training to do it well learns far more about his past than one committed to this (in my view, hopelessly naive) view about ‘original creativity.’ And perhaps more important, the audience is constantly looking for more as the audience reads what the remixer has written. Knowing that the song is a mix that could draw upon all that went before, each second is an invitation to understand the links that were drawn— their meaning, the reason they were included. The form makes demands on the audience; they return the demands in kind.203

Andrew Long argues that mash-ups would not necessarily be protected as fair use in the United States because the artificial distinction drawn between parody and satire:

Courts will likely classify mash-ups as satire because mash-ups often target their criticism at politics or society. By aiming at these external elements and not at the works they are composed of, the ‘claim to fairness in borrowing from another's work needed to create mash-ups essentially vanishes, leaving mash- ups outside of the protection of fair use and as an infringement on the original author's derivative works right. Arguably, the Court established a low standard for finding parody when it held that ‘[t]he threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.’ The ‘porous’ nature of the distinction between parody and satire can potentially allow a mash- up creator to assert that a mash-up comprises fair use as a parody.204

202 Ibid. 203 Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy. New York: Penguin Books, 2008, 93. 204 Andrew Long, ‘Mashed Up Videos and Broken Down Copyright: Changing Copyright to Promote the First

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He recommends that ‘courts alter existing fair use doctrines to both find transformation in works such as mash-ups and give these transformative works a presumption of fair use in order to enhance the First Amendment values mash-ups embody.’205

Recommendation 14 There is a need to clarify that the United States defence of fair use and the protection that it affords to transformative works includes mash-ups.

ii. Australia

The current Australian Copyright Act 1968 (Cth) has a defence of fair dealing, which provides protection against claims of copyright infringement. The defence is limited to particular purposes – such as research and study, criticism and review, reporting the news, use for judicial proceedings, and parody and satire. The defence of fair dealing has been questioned for lacking clarity and certainty – famously, judges of the Federal Court of Australia could not agree on whether The Panels’ use of Channel Nine segments constituted a fair dealing in particular cases. The defence has also been criticised for failing to keep up with technological and cultural developments. Over the past decade, policy-makers have systematically documented the deficiencies of the defence of fair dealing under copyright law. In 1998, the Copyright Law Review Committee undertook a review of exceptions to the exclusive rights of copyright owners. The law reform body recommended the expansion of fair dealing to an open-ended model that referred to the current exclusive set of purposes - such as research or study, criticism or review, reporting the news and professional advice - but was not limited to those purposes. In a subsequent inquiry, the Committee recommended that the defence of fair dealing should not be able to be modified

Amendment Values of Transformative Video’ (2007) 60 Oklahoma Law Review 317. 205 Ibid.

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or overruled by private contract law. The Phillips Fox Digital Agenda review emphasized that the defence of fair dealing should not be undermined by technological protection measures. In 2004, the Joint Standing Committee on Treaties and the Senate Select Committee on the Free Trade Agreement between Australia and the United States of America recommended that the current defence of fair dealing be expanded to address time-shifting and space-shifting. During the course of parliamentary debate, Aden Ridgeway of the Democrats proposed that Australia should adopt an open-ended defence of fair use, like the United States. The courts have also expressed great frustration at the lack of legislative action in respect of the defence of fair dealing. Most notably, the Federal Court of Australia struggled to provide clear guidance as to the operation of the defence in TCN Channel Nine v. Network Ten and TCN Channel Nine Pty Ltd v. Network Ten.206 The determination of fair dealing seemed to depend upon very much upon subjective judicial impressions of the facts of individual cases. There appeared to be little in the way of overarching principles guiding such decisions. In Network Ten Pty Ltd v TCN Channel Nine Pty Ltd, the High Court of Australia made it clear that it was up to Parliament to reform the current defence of fair dealing.207 Justice Kirby observed: ‘To the extent that it is suggested that the fair dealing defence under the Act is unduly narrow, that submission should be addressed to the Parliament.’208 His Honour observed: ‘The correction of any remaining defects is a matter for the Parliament. It is not for this Court.’209 In 2006, the Federal Government did add a new defence of fair dealing in respect of parody and satire. The Attorney-General, Philip Ruddock, emphasized the need for such a defence:

Australians have always had an irreverent streak. Our cartoonists ensure sacred cows don't stay sacred for very long and comedians are merciless on those in public life. An integral part of their armory is parody and satire - or, if you prefer, 'taking the micky' out of someone.

206 TCN Channel Nine v. Network Ten (2001) 108 FCR 235 and TCN Channel Nine Pty Ltd v. Network Ten (2002) 118 FCR 417. 207 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 59 IPR 1 208 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 59 IPR 1 209 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 59 IPR 1

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Sally McCausland, a senior lawyer with SBS, has commented on the scope of the exception:

The express protection of satire under the Bill appears to be a world first. It will be up to the Australian courts to determine the balance of competing interests, the application of moral rights, and the relevance of precedent in other jurisdictions. Domestic litigation seems likely, as various copyright owner groups disappointed with the Bill identify the parody or satire exception among their concerns: ‘Australian copyright societies also fear that the ... 'fair use' statutory exception for parody or satire will be exploited by users in order to avoid having to obtain permission to use copyright material. This additional blow to the income of copyright owners would make expensive litigation an inevitable result of the amendments.’ There is also the issue of whether the law would survive a reference to the WTO. Despite these potential challenges, the Australian Government has provided greater freedom for Australian comics, cartoonists, writers, artists, performers and political commentators to use copyright material in the practice of Australia's ‘fine tradition of satire’.210

Maree Sainsbury has also written about the nature and the scope of the new defence of fair dealing in respect of parody and satire.211

Recommendation 15 The new defence of fair dealing for parody and satire will provide protection for a limited range of mash-ups of a particular aesthetic or political character.

210 Sally McCausland, ‘Protecting ‘A Fine Tradition of Satire’: The New Fair Dealing Exception for Parody or Satire in The Australian Copyright Act’ (2007), 29 (7) European Intellectual Property Review 287-292 211 Maree Sainsbury, ‘Parody, Satire and Copyright Infringement: The Latest Addition to Australian Fair Dealing Law’, (2007) 12 (3) Media and Arts Law Review 292-319; and Maree Sainsbury, ‘Parody, Satire, Honour And Reputation: The Interrelationship Of The Defence Of Fair Dealing for the Purposes of Parody And Satire And The Authors Moral Rights’ (2007) 18 (3) Australian Intellectual Property Journal 149- 166.

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Recommendation 16 Ideally, the Australian Government should adopt a general defence of flexible use, which covers transformative works, remixes, and mash-ups.

Recommendation 18 Alternatively, the Australian Government should introduce a particular defence of fair dealing, which includes transformative works, remixes, and mash-ups.

iii. The United Kingdom and the European Union

Giuseppe Mazziotti observes that ‘EU supranational law-making does not seem to ensure an adequate consideration of the public interest when it touches upon both market and public policy aspects of national copyright law’.212 In 2006, the Gowers Review in the United Kingdom suggested ‘that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test.’213 The Gowers Review commented:

Transforming works can create huge value and spur on innovation. ‘Good artists borrow; great artists steal.’ So said Pablo Picasso, borrowing from Igor Stravinsky, or perhaps from T. S. Eliot. Hip hop is not the first

212 Giuseppe Mazziotti, EU Digital Copyright Law and the End User, Berlin: Springer, 2008, 36. 213 Andrew Gowers, The Gowers Review of Intellectual Property, December 2006, http://www.mileproject.eu/asset_arena/document/TY/GOWERS_REVIEW_OF_INTELLECTUAL_PROP ERTY.PDF

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genre to ‘sample’ music: composers from Beethoven to Mozart to Bartok to Charles Ives have regularly recycled themes, motifs, and segments of prior works. Under the current copyright regime, these creators would need to clear permission and negotiate licences to avoid infringement suits. The barriers that new musicians have to overcome are extremely high, and the homogenisation of hip hop music is, critics argue, a direct response to the costs of clearing rights.214

The Gowers Review observed: ‘Enabling transformative use would not negate existing moral rights, the right to be identified and the right to object to derogatory treatment’.215 In its opinion, ‘Creators would still be able to use defamation laws to prevent works that are offensive or damaging to the original creator from being made available.’216 The Gowers Review also demanded that there be a new exception for parody in the United Kingdom:

As well as reducing transaction costs across Europe, an exception to enable parody can create value. Weird Al Yankovic has received 25 gold and platinum albums, four gold-certified home videos and two GRAMMYs® by parodying other songs, but he had to ask permission from rights holders. Furthermore, many works which are considered to have high value could be considered parodies, for example Tom Stoppard’s Rosencrantz and Guildenstern Are Dead. The Information Society Directive specifically allows for ‘caricature, parody or pastiche’, and the Review recommends such an exception should be introduced into UK law.217

In its 2008 green paper, Copyright in the Knowledge Economy, the European Commission broached the question of whether new exceptions should be introduced into the European Union Information Society Directive.218 Somewhat conservatively, the Commission broached the question of whether there should be an exception in respect of user-generated content:

214 Ibid., 67. 215 Ibid., 68. 216 Ibid., 68. 217 Ibid., 68. 218 European Commission, Copyright in the Knowledge Economy, 2008, http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/greenpaper_en.pdf

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Consumers are not only users but are increasingly becoming creators of content. Convergence is leading to the development of new applications building on the capacity of ICT to involve users in content creation and distribution. Web 2.0 applications such as blogs, podcasts, wiki, or video sharing, enable users easily to create and share text, videos or pictures, and to play a more active and collaborative role in content creation and knowledge dissemination. However, there is a significant difference between user-created content and existing content that is simply uploaded by users and is typically protected by copyright. In an OECD study, user-created content was defined as ‘content made publicly available over the Internet, which reflects a certain amount of creative effort, and which is created outside of professional routines and practices’. The Directive does not currently contain an exception which would allow the use of existing copyright protected content for creating new or derivative works. The obligation to clear rights before any transformative content can be made available can be perceived as a barrier to innovation in that it blocks new, potentially valuable works from being disseminated. However, before any exception for transformative works can be introduced, one would need to carefully determine the conditions under which a transformative use would be allowed, so as not to conflict with the economic interests of the rightsholders of the original work.219

Such a stance reflects a rather conservative view of the operation of the three-step test in respect of the Berne Convention and the TRIPS Agreement: ‘Under the Berne convention, a transformative use would be prima facie covered by the reproduction right and the right of adaptation. An exception to these rights would have to pass the three-step test.’ The Green Paper noted that there were flexibilities in the European Union Information Society Directive. Article 5(3)(d) allowed quotations ‘for purposes such as criticism or review’. Article 5(3)(k) of the Directive exempts uses ‘for the purposes of caricature, parody or pastiche’. The Green Paper observed: ‘Although these uses are not defined, they allow users to reuse elements of previous works for their own creative or transformative purpose.’220 For those who wish to revise copyright law in respect of remixes and user-generated content, the response of the United Kingdom government to the European Commission’s Green Paper on Copyright in the Knowledge Economy makes for salutary reading.221 The Government

219 Ibid. 220 Ibid. 221 ‘UK Government Response to European Commission’s Green Paper – Copyright in the Knowledge Economy’, December 2008, http://www.ipo.gov.uk/c-eupaper.pdf

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addressed the questions, Should there be more precise rules regarding what acts end users can or cannot do when making use of materials protected by copyright? Should an exception for user- created content be introduced into the [European Union Information Society] Directive? The United Kingdom government commented in a tone of vague disapprobation:

Technological development and the internet have fuelled a growth in the creation and dissemination of user generated content. Some of this content is exploited commercially by the creator but much of it is considered to be non-commercial. Where such content draws upon existing creative works this raises important questions about the correct application of copyright law. Many stakeholders take the view that the copyright framework already provides a comprehensive list of 'rules' as to what can and cannot be done with works which are protected by copyright. The suggestion for an exception for user-created content seems to create a distinction between those who use and those who create works, which in many cases is not justified. Another significant concern is the extent to which such an exception might allow others to use works in a way that the existing rights holders do not approve of and the impact that exceptions in this area might have on remuneration.222

The United Kingdom government emphasized: ‘In considering any possible exceptions in this area it is important to consider carefully the potential impact on existing rights holders, in terms of both commercial and non commercial UGC.’223 The United Kingdom government suggested that parties should be left to engage in individual licensing:

An alternative to exceptions is to deliver improved licensing to aid the development and dissemination of creative content. Such developments aim to make it easier for 'users' to create and post material on the web, which has been adapted from other sources. We are aware that rights holders and creators are already developing ways of permitting the use of their works online and future innovation in this area may provide solutions. In addition to the 'Creative Commons' licence we have seen the 2007 agreement between the MCPS-PRS Alliance and YouTube which enables You Tube users to include certain musical works in their video clips under a licence given to You Tube. Rights clearance for individual works can be a complex

222 Ibid. 223 Ibid.

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business although we note that some rights holders are seeking to address this through simplified web based systems (like EMI's system for clearance for sampling).224

There is a peculiar amalgamation of different forms of licensing in this statement – ranging across Creative Commons licences, YouTube’s licences, and EMI’s system of clearing licences. Notwithstanding the policy discussions about remixes and mash-ups, the Digital Economy Act 2010 (UK) focuses largely on the online infringement of copyright and penalties for infringement of copyright and performers’ rights. There is no provision for any new exceptions or any new innovative licensing schemes.

Recommendation 19 The approach of the United Kingdom and the European Union to the question of mash-ups should be approached with caution.

iv. Canada

Like Australia, Canada has purpose-specific defences of fair dealing. Whereas Australian courts have provided little relative guidance on the operation of the defence of fair dealing, the Supreme Court of Canada has played an active role in defining nature of the defence of fair dealing in Canada. In the 2004 case of The Law Society of Upper Canada v. CCH Canadian Limited, the Supreme Court of Canada provides an articulation of general principles informing the defence of fair dealing. 225 McLachlin CJ observed:

The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: 'User rights are not just loopholes. Both

224 Ibid. 225 The Law Society of Upper Canada v. CCH Canadian Limited (2004) SCC 13.

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owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.'226

Her Honour takes heed of Binnie's J cautionary warning in the Théberge case against the over- protection of copyright: 'Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.'227 The Supreme Court of Canada emphasized that the fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study. It notes: ''Research' must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained.'228 McLachlin CJ commented:

The Law Society's custom photocopying service is provided for the purpose of research, review and private study... There is no other purpose for the copying; the Law Society does not profit from this service.229

The Supreme Court of Canada agreed with the Court of Appeals that research is not limited to non-commercial or private contexts. It observed: 'Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29 of the Copyright Act.'230 In the 2010 case of Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, LeTourneau JA considered whether the defence of fair dealing for the purpose of research or study extended to consumers previewing an excerpt of thirty seconds or less of a musical work.231 The judge agreed with the Copyright Board that a broad, expansive definition should be given to ‘research’:

226 The Law Society of Upper Canada v. CCH Canadian Limited (2004) SCC 13. 227 Théberge v. Galerie d'Art du Petit Champlain inc. (2002) SCC 34. 228 The Law Society of Upper Canada v. CCH Canadian Limited (2004) SCC 13. 229 The Law Society of Upper Canada v. CCH Canadian Limited (2004) SCC 13. 230 The Law Society of Upper Canada v. CCH Canadian Limited (2004) SCC 13. 231 Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2010 FCA 123 (CanLII).

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The legislator chose not to add restrictive qualifiers to the word ‘research’ in section 29. It could have specified that the research be ‘scientific’, ‘economic’, ‘cultural’, etc. Instead it opted not to qualify it so that the term could be applied to the context in which it was used, and to maintain a proper balance between the rights of a copyright owner and users’ interests. If, in essence, the legal research such as that referred to in CCH has a more formal and rigorous aspect, the same is not necessarily true for that conducted by consumers of a work subject to copyright, such as a musical work. In that context, it would not be unreasonable to give the word ‘research’ its primary and ordinary meaning. The consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it. I agree with the Board that ‘[l]istening to previews assists in this investigation’.232

The judge noted: ‘SOCAN argues that the primary purpose of previews is not research, but rather increased sales and, accordingly, increased profits’.233 However, the judge noted that there are other important purposes: ‘We must consider previews from the point of view of the person for whom they are intended: the consumer of the subject-matter of the copyright. Their purpose is to assist the consumer in seeking and finding the desired musical work.’234 On the 15th March 2010 in the Canadian Parliament, the NDP MP Charlie Angus introduced a motion: ‘That, in the opinion of the House, the government should amend section 29 of the Copyright Act in such a way as to expand the Fair Dealing provisions of the act, specifically by deleting section 29 and inserting the following: ‘29. Fair dealing of a copyrighted work for purposes such as research, private study, criticism, news reporting or review, is not an infringement of copyright. 29.1 In determining whether the dealing made of a work in any particular case is fair dealing, the factors to be considered shall include: (a) the purpose of the dealing; (b) the character of the dealing; (c) the amount of the dealing; (d) alternatives to the dealing; (e) the nature of the work; and (f) the effect of the dealing on the work.’.’ In a press release, Angus maintained: ‘The fair dealing provisions of the Copyright Act have been

232 Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2010 FCA 123 (CanLII). 233 Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2010 FCA 123 (CanLII). 234 Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2010 FCA 123 (CanLII).

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characterised by the Supreme Court as a key user’s right’.235 He contended: ‘The futures of the creative, innovation and education communities all hinge on a reasonable interpretation of fair dealing.’236 In a piece, entitled ‘Angus Shakes Up Copyright Landscape’, Michael Geist comments upon the simple yet compelling motion for a flexible defence of fair dealing in Canada:

Under Canadian law, fair dealing permits the use of copyright works without permission for a limited set of purposes, including research, private study, news reporting, criticism, and review. Fair dealing is regularly relied upon by the public - by students when they quote from texts, journalists in their reporting, authors writing books or book reviews, and scientists engaged in research. Yet because the fair dealing categories are limited, the provision does not currently apply to consumers recording television shows, artists creating parodies or satires, or businesses introducing innovative new goods or services. Rather than adopting an exception-by-exception approach vulnerable to changing technologies, the Angus proposal merely opens to the door to other possible categories of fair dealing. In many respects, it is a made-in-Canada version of the U.S. fair use provision, since it shares similar flexibility, but is grounded in Canadian rules for determining what qualifies as fair dealing. The approach is precisely what thousands of Canadians supported during last summer's copyright consultation since it seeks to strike a balance by ensuring that uses are fair, not necessarily free. Interestingly, while Moore and Clement were outspoken in their criticism of the levy proposal, they kept mum on the fair dealing motion, perhaps recognizing that it is consistent with their stated desire for a technology-neutral, forward looking approach to copyright.237

The proposed Copyright Modernization Act Bill 2010 (C-32 – Canada) proposes an expansion of the defence of fair dealing in Canada: ‘Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.’

235 Charlie Angus, ‘Angus Proposes Steps to Update Copyright Act’, 16 March 2010, http://www.charlieangus.net/newsitem.php?id=551 236 Charlie Angus, ‘Angus Proposes Steps to Update Copyright Act’, 16 March 2010, http://www.charlieangus.net/newsitem.php?id=551 237 Michael Geist, ‘Angus Shakes Up Copyright Landscape’, 22 March 2010, http://www.michaelgeist.ca/content/view/4893/135/

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Recommendation 20 Alternatively, the Australian Government should introduce a flexible dealing defence, which covers transformative works, remixes, and mash-ups.

D. Safe Harbours

As documented by the Chilling Effects Clearinghouse, there has been a litany of cases, in which copyright owners have used the take-down-and-notice system under the Digital Millennium Copyright Act 1998 (US) to remove remixes and mash-ups from the Internet. Wendy Seltzer reflects upon the process:

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the ‘safe harbors’ of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law’s shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech. Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material ‘expeditiously’ in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non infringement, DMCA requires the service provider to keep the post offline for more than a week. 238

Niva Elkin-Koren has observed: ‘Even though a Safe Harbor regime was established under section 512 of the DMCA (Digital Millennium Copyright Act), to exempt online service providers from liability for storing or transmitting infringing material posted by their users,

238 Wendy Seltzer, ‘Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment’ (2010) Berkman Center Research Publication No. 2010-3, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577785

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owners are routinely bringing lawsuits against social media platforms, seeking to establish direct and indirect liability for copyright infringement due to [user-generated] content’. 239 Pat Aufderheide and Peter Jaszi make the point that concerns of copyright owners have not necessarily been assuaged by the existence of a take-down and notice scheme:

The Digital Millennium Copyright Act requires ‘takedowns,’ or removals from the site, of material to which a copyright owner objects. This tactic has not proven sufficient to allay the concerns of copyright holders about the proliferation of unlicensed copyrighted works online. In the attempt to address unauthorized copying, content providers and online video platform providers have established guidelines that articulate how platform providers can accommodate content providers' piracy concerns through filtering of content. These provisions acknowledge, but leave vague, how to address or assess fair use. At the same time, nonprofit organizations led by the Electronic Frontier Foundation have asserted alternative guidelines intended to leave room for new content creation using copyrighted works while honoring the concerns of copyright holders. These guidelines, however, do not yet have industry support. Although both sets of guidelines acknowledge and seek to protect fair use, neither attempts to define it in this new media context.240

In the case of Viacom International v. YouTube, Stanton J considered whether YouTube was entitled to ‘safe harbor’ protection under the Digital Millennium Copyright Act 1998 (US) against Viacom’s claims of direct and secondary infringement claims, including claims for ‘inducement’ contributory liability, because they had insufficient notice, under the DMCA, of the particular infringements in suit.241 Drawing comparisons with trade mark litigation involving eBay and Tiffany,242 the judge commented about the operation of the safe harbor under copyright law:

239 Niva Elkin-Koren, ‘Copyright and its Limits in the Age of User-generated Content’, in Eva Hemmungs Wirtén and Maria Ryman (eds). Mashing-up Culture: the Rise of User-Generated Content. Proceedings from the COUNTER workshop Mashing-up Culture, Uppsala University, May 13-14, 2009, 30. 240 Pat Aufderheide and Peter Jaszi, ‘Recut, Reframe, Recycle: The Shaping of Fair Use Best Practices for Online Video’ (2010) 6 A Journal of Law & Policy for the Information Society 13. 241 Viacom International v. YouTube 2010 WL 2532404 (S.D.N.Y. 2010) 242 Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. April 1, 2010).

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Although by a different technique, the DMCA applies the same principle, and its establishment of a safe harbor is clear and practical: if a service provider knows (from notice from the owner, or a ‘red flag’) of specific instances of infringement, the provider must promptly remove the infringing material. If not, the burden is on the owner to identify the: infringement. General knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringements. 243

The judge noted: ‘Indeed, the present case shows that the DMCA notification regime works efficiently: when Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.’ 244 The judge also rejected the arguments of Viacom about inducement of copyright infringement:

The Grokster model does not comport with that of a service provider who furnishes a platform on which its users post and access all sorts of materials as they wish, while the provider is unaware of its content, but identifies an agent to receive complaints of infringement, and removes identified material when he learns it infringes. To such a provider, the DMCA gives a safe harbor, even if otherwise he would be held as a contributory infringer under the general law. In this case, it is uncontroverted that when YouTube was given the notices, it removed the material. It is thus protected ‘from liability for all monetary relief for direct, vicarious and contributory infringement’ subject to the specific provisions of the DMCA.245

The judge noted that the comparisons between YouTube and peer to peer networks were inapt: ‘On these cross-motions for summary judgment I make no findings of fact as between the parties, but I note that plaintiff Viacom's General Counsel said in a 2006 e-mail that “... the difference between YouTube's behavior and Grokster's is staggering.’ 246 The judge concluded: ‘Defendants are granted summary judgment that they qualify for the protection of 17 U.S.C. § 512(c), as expounded above, against all of plaintiffs' claims for

243 Viacom International v. YouTube 2010 WL 2532404 at 10 (S.D.N.Y. 2010) 244 Viacom International v. YouTube 2010 WL 2532404 at 9 (S.D.N.Y. 2010) 245 Viacom International v. YouTube 2010 WL 2532404 at 11 (S.D.N.Y. 2010) 246 Viacom International v. YouTube 2010 WL 2532404 at 11 (S.D.N.Y. 2010)

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direct and secondary copyright infringement.’ 247 No doubt Viacom International will appeal against this ruling. After the ratification of the Australia-United States Free Trade Agreement 2004, Australia adopted a safe harbours regime for Internet intermediaries, similar to the United States (although somewhat limited in terms of its definition of Internet intermediaries). In February 2010, the Federal Court of Australia handed down its decision in the iiNet case, which provides some guidance as to the operation of the regime in Australia.248 In his public summary of the case, Cowdroy J observed:

The critical issue in this proceeding was whether iiNet, by failing to take any steps to stop infringing conduct, authorised the copyright infringement of certain iiNet users. The first step in making a finding of authorisation was to determine whether certain iiNet users infringed copyright. I have found that they have. However, in reaching that finding, I have found that the number of infringements that have occurred are significantly fewer than the number alleged by the applicants. This follows from my finding that, on the evidence and on a proper interpretation of the law, a person makes each film available online only once through the BitTorrent system and electronically transmits each film only once through that system. This excludes the possible case of a person who might repeatedly download the same file, but no evidence was presented of such unusual and unlikely circumstance. Further, I have found, on the evidence before me, that the iiNet users have made one copy of each film and have not made further copies onto physical media such as DVDs. The next question was whether iiNet authorised those infringements. While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users.249

An appeal is currently being heard before the Full Federal Court in August 2010. There are similar concerns, though, in Australia about the use of take down notices in respect of mash-ups.

247 Viacom International v. YouTube 2010 WL 2532404 at 14 (S.D.N.Y. 2010) 248 Roadshow Films Pty Ltd v. iiNet Limited (No. 3) [2010] FCA 24 (4 February 2010) 249 Roadshow Films Pty Ltd v. iiNet Limited (No. 3) [2010] FCA 24 (4 February 2010)

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Recommendation 21 There is a need to enlarge the range of intermediaries protected by the safe harbours doctrine in Australia.

i. Take Down Notices

Public Knowledge and the Samuelson Law, Technology, and Policy Clinic have observed that the current takedown notice system lacks transparency and accountability:

Unfortunately, the system as it stands is also susceptible to abuse because rights holders can in some instances employ takedown notices without significant accountability. This can chill otherwise valid uses of their works, particularly those made by nonprofessional follow-on users, who are unlikely to understand the full extent of their rights. The present lack of transparency in the system, and the lack of appropriate repercussions for rights holders that issue such notices excessively or aggressively, have shifted the balance against the targets of notices.250

Most famously, in 2004, EMI and Capitol Records sent cease-and-desist notices to websites, which hosted The Grey Album during the protest for Grey Tuesday.251 Capitol Records warned in its cease-and-desist letters:

We are counsel to Capitol Records, Inc. (‘Capitol’), the exclusive U.S. licensee and/or owner and distributor of musical sound recordings featuring performances by The Beatles. We write concerning your announced intention of distributing an unlawful and unauthorized sound recording known as The Grey Album on February 24, 2004. This infringing album contains extensive samples from recorded performances by the Beatles, including ‘Long, Long, Long,’ ‘While My Guitar Gently Weeps,’ ‘Glass Onion,’ ‘Savoy Truffle,’ ‘Mother Nature's Son,’ ‘Helter Skelter,’ ‘Julia,’ ‘Happiness is Warm Gun,’ ‘Piggies,’ ‘Dear Prudence,’ ‘Rocky Raccoon,’ ‘Revolution 1,’ ‘Revolution 9,’ ‘I'm So Tired,’ and ‘Cry Baby Cry’ (the ‘Capitol Recordings’). Distribution of The Grey Album constitutes a serious violation of

250 Pam Lee, Daniel Park, Allen Wang, and Jennifer Urban, Copyright Reform Act, 13 February 2010, http://www.publicknowledge.org/pdf/cra-introduction-02132010.pdf 251 Cowan, Liebowitz & Latman, P.C. ‘Re: The Grey Album and Misappropriation of Capitol Records, Inc.'s Sound Recordings’, 23 February 2004, http://www.chillingeffects.org/piracy/notice.cgi?NoticeID=1142

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Capitol's rights in the Capitol Recordings - as well as the valuable intellectual property rights of other artists, music publishers, and/or record companies - and will subject you to serious legal remedies for wilful violation of the laws. We accordingly demand that you cease any plans or efforts to distribute or publicly

perform this unlawful recording. 252

The record company warned the participants in the Grey Tuesday event: ‘Any unauthorized distribution, reproduction, public performance, and/or other exploitation of The Grey Album will constitute, among other things, common law copyright infringement/misappropriation, unfair competition, and unjust enrichment rendering you and anyone engaged with you in such acts liable for all of the remedies provided by relevant laws.’253 Reflecting upon Grey Tuesday, the academic Kembrew McLeod recalls his experience of receiving a cease-and-desist notice from EMI:

In response, the music activists at downhillbattle.org coordinated a major online protest—dubbed ‘Grey Tuesday’—where at least 170 websites risked a lawsuit by hosting the album. It was kind of a virtual sit-in. I was one of many who received a cease-and-desist letter from EMI after I posted the album on my website, Kembrew.com, and, along with a few others, I refused to back down from this intimidation... I simply ignored the letter and kept the album on my website.254

McLeod reflected: ‘I risked a lawsuit because I felt a responsibility to show that fair use exists in practice, not just in theory’.255 He commented: ‘It was in the spirit of promoting conversation and debate about an illegal artwork (and a broken copyright regime) that I engaged in this act of copyright civil disobedience’.256 McLeod concluded: ‘As our culture increasingly becomes fenced off, it becomes all the more important for those of us in the university setting to protect

252 Ibid. 253 Ibid. 254 Kembrew McLeod, ‘Confessions of an Intellectual (Property) Academic: Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist’ (2005) 28 (1) Popular Music and Society 79– 93. 255 Ibid. 256 Ibid.

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fair use rights and guard against further privatizations that stifle creativity and the free exchange of ideas that are essential to maintaining a functioning democracy.’257 In 2005, Sony/ATV Music Publishing LLC sent a cease-and-desist notice, to the ThePlanet.com internet services for advertising and promoting a musical group called ‘Beatallica’ – no doubt a group which mashed-up The Beatles and Metallica.258 The record company claimed that the group has infringed its extensive catalogue of copyrighted works, ‘including musical compositions written, individually and jointly, by John Lennon, Paul McCartney, George Harrison and Richard Starkey (individually and collectively, ‘The Beatles’) and recorded and performed by The Beatles.’259 Furthermore, there was a legal action against David Dixon, the webmaster for the ‘Beaticalla’.260 Here it was alleged that there had been wilful infringement of the Beatles’ back catalogue, ‘Run For Your Life,’ ‘Back In The USSR,’ ‘Taxman,’ ‘And I Love Her,’ ‘Got To Get You Into My Life,’ ‘Lady Madonna,’ ‘Hey Jude,’ ‘I Want To Hold Your Hand’ and ‘We Can Work It Out.’ EMI has also sent cease-and-desist notice in respect of mash-ups of The Beatles and The Beach Boys. In 2006, the international news broadcaster, CNN, sent a cease and desist letter in respect of a College Humour mash-up hosted at http://a.parsons.edu/~haraldur/chnn/ and hosted by Parsons School of Design.261 The claim alleged copyright and trademark infringement. As a result, the mash-up was taken down. The site, College Humour, remains active in remixing various media.262

257 Ibid. 258 Sony ATV/ Music Publishing, ‘Re: Notice of Willful Copyright Infringement (Beatallica.org)’, 17 February 2005, http://www.chillingeffects.org/fairuse/notice.cgi?NoticeID=1683 259 Ibid. 260 Sony/ATV, ‘Notice of Willful Copyright Infringement’, 17 February 2005, http://www.chillingeffects.org/derivative/notice.cgi?NoticeID=1805 261 CNN / Cable News Network LP, LLLP, ‘Re: Notice of Intellectual Property Infringement’, 26 March 2006, http://www.chillingeffects.org/fairuse/notice.cgi?NoticeID=3810&print=yes 262 College Humor, http://www.collegehumor.com/

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In 2008, EMI sent a cease and desist letter in an effort to censor video mash-ups commenting on the lawsuit between Joe Satriani and Coldplay.263 Joe Satriani had complained that Coldplay’s song ‘Viva La Vida’ was an infringement of his musical work, ‘If I Could Fly’. Joe Satriani observed: ‘I felt like a dagger went right through my heart. It hurt so much. …Everybody noticed the similarities between the songs. It's pretty obvious.’ Coldplay denied, initially, that there had been any infringement: ‘If there are any similarities between our two pieces of music, they are entirely coincidental, and just as surprising to us as to him. Joe Satriani is a great musician, but he did not write the song Viva La Vida.’ However, in the end, there was a confidential information settlement between the parties. In 2010, it was reported that the record label, EMI, sent a cease and desist letter to DJ Lobsterdust and Bootie SF regarding ‘NirGaga,’ a mash-up combining Nirvana's ‘Smells Like Teen Spirit’ and Lady Gaga's ‘Poker Face.’ The Wall Street Journal blog, Speakeasy, of all places, had lauded the mash-up:

Nirvana’s ‘Smells Like Teen Spirit’ + Lady Gaga’s ‘Poker Face.’ It just sounds like a pop mash-up destined to go disastrously wrong. But surprisingly, DJ Lobsterdust’s ‘NirGaga,’ which has been floating around since last month but went viral this afternoon (amongst the 14 people actually at work and online today), is a pretty catchy mix of the two distinctive tunes. Just goes to show: No matter how much slicing and dicing you do, it’s hard to ruin a good song.264

Fred von Lohmann from the Electronic Frontier Foundation commented that ‘The song is obviously transformative, and it's hard to imagine it as a substitute for the originals.’265 He noted: ‘As far as we've been able to tell, mash-ups rarely draw the attention of record label lawyers’.266

263 Joe Satriani v. Christopher Martin and co CV08-07987 (2008), United States District Court for the Central District of California, http://kierenmccarthy.com/2008/12/10/satriani-vs-coldplay-court-docs-and-audio-links/ (Settled) 264 ‘Nirvana + Lady Gaga = NirGaga: Love it or Hate it?’, Wall Street Journal Blog, 30 December 2009, http://blogs.wsj.com/speakeasy/2009/12/30/nirvana-lady-gaga-nirgaga-love-it-or-hate-it/tab/article/ 265 Fred von Lohmann, ‘EMI Attacks NirGaga Mashup’, Electronic Frontier Foundation, 13 January 2010, http://www.eff.org/deeplinks/2010/01/emi-attacks-nirgaga-mashup 266 Ibid.

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Von Lohmann thought that this action was a rare occurrence: ‘Is this the beginning of a general crackdown on mash-ups by EMI, or, we hope, just a misguided one-off?’267 In 2010, EMI sent a cease-and-desist notice in respect of a popular mash-up, which mixed The Beatles with The Wu Tang Clan. The mash-up was put together by Tom Caruana and Tea Side Records, and called ‘Wu-Tang vs. The Beatles: Enter the Magical Mystery Chambers.’268 A blogger noted: ‘So, yes, as EMI/Capitol are battling for survival, its lawyers thought the best thing to do with their time was to send a cease & desist to an album that might actually get them some attention and sell some Beatles albums - and they do so knowing how badly this backfired with The Grey Album, leading many to swear off EMI releases’. 269 In 2010, there has been a flurry of cease-and-desist notices sent by the International Federation of the Phonographic Industry to Google over mash-ups – such as Britney Spears mash-up.270

Recommendation 22 There is a need to be cognisant of the weaknesses of the safe harbour regime. Overall, it provides a reasonable balance.

ii. Counter-Notifications

Section 512(f) of the Digital Millennium Copyright Act 1998 (US) provides that a copyright owner who makes knowing false statements in a takedown notice ‘shall be liable for any damages, including costs and attorneys’ fees, incurred by [by the 512(f) plaintiff] as the result of

267 Ibid. 268 ‘EMI Apparently Forgets the Grey Album Disaster; Issues of Takedown of WuTang vs. Beatles’, 15 February 2010, http://techdirt.com/articles/20100215/1235058169.shtml 269 Ibid. 270 IFPI, ‘DMCA Copyright Complaint to Google’, 12 January 2010, http://www.chillingeffects.org/dmca512c/notice.cgi?NoticeID=32202

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the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.’ Although it is not specifically a mash-up case, the litigation in Lenz v. Universal Music is important, because it highlights the importance of counter-notifications in the process.271 In this matter, Stephanie Lenz, using the screen name, ‘edenza’, videotaped her toddler son dancing in the family’s kitchen to a song entitled ‘Let’s Go Crazy’ by Prince. On February 8, 2007, Lenz uploaded the video from her computer to an Internet video hosting site, YouTube.com. On the 4th June 2007, Universal sent a takedown notice pursuant to the s 512(c) of the Digital Millennium Copyright Act 1998 (US), demanding that YouTube remove the ‘Let’s Go Crazy’ video because of an alleged copyright violation. In response, YouTube removed the video and sent Lenz an email notifying her that it had done so and warning her that repeated incidents could lead to the deletion of her account. As a rejoinder, Lenz sent a counter-notification and the ‘Let’s Go Crazy’ video was reinstated to the YouTube website about six weeks later. On the 24th July 2007, Lenz filed an action seeking redress for Universal’s alleged misuse of the Digital Millennium Copyright Act 1998 (US) takedown process, its accusation of copyright infringement, and its alleged intentional interference with her contractual use of YouTube’s hosting services In April 2008, a District Court dismissed the complaint, writing: ‘It is undisputed that the song ‘Let’s Go Crazy’ is copyrighted, and Universal does not concede that the posting is a fair use. The judge observed: ‘Lenz also fails to allege why her use of ‘Lets Go Crazy’ was a ‘self-evident’ fair use.’’ 272 Amending her complaint, Lenz argued: ‘Lenz’s use of the Prince song ‘Let’s Go Crazy’ is a self-evident non-infringing fair use under 17 U.S.C. § 107’. In particular: ‘This is in part because the Holden Dance Video non commercially transforms the song into partially obscured background music for a family video about a toddler just learning to

271 Lenz v. Universal Music Slip Copy, 2008 WL 962102, 2008 Copr.L.Dec. P 29,540, N.D.Cal., April 08, 2008 (NO. C 07-03783 FJ). 272 Lenz v. Universal Music Slip Copy, 2008 WL 962102, 2008 Copr.L.Dec. P 29,540, N.D.Cal., April 08, 2008 (NO. C 07-03783 FJ).

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dance, uses only a small, nonsubstantial portion of the original work, and does not substitute for the work or harm any market for the work.’ 273 In 2009, Fogel J rejected procedural objections about the case by Universal Music, noting:

Universal is a sophisticated corporate litigant and a repeat player in lawsuits regarding copyrighted material it administers on behalf of artists who own the copyrights. Universal admits that it did not raise the work product doctrine in its original privilege logs, in defending against Plaintiff's motion to compel, or before Magistrate Judge Seeborg. Rather, Universal asserted the work product doctrine's protections for the first time in its revised logs after Magistrate Judge Seeborg issued the August 25th Order. Having failed to make a specific and timely assertion of work product protection, Universal waived such protection.274

On February 25, 2010, Fogel J issued a ruling rejecting several of Universal's affirmative defences.275 The judge held that ‘Universal’s proffered evidence is insufficient to establish that Lenz acted in bad faith in claiming injury as a result of the takedown notice’. 276 The judge also ruled: ‘Further, given the state of the law on damages under the statute and the unfamiliarity of lay people with statutory language, no reasonable jury could find that Lenz’s allegations of ‘substantial and irreparable injury’ are the kind of unconscionable acts against which the defenses of bad faith and unclean hands are intended to guard.’ 277 Fogel J held that Lenz could receive some damages: ‘A fair reading of the statute, the legislative history, and similar statutory language indicates that a § 512(f) plaintiff’s damages must be proximately caused by the misrepresentation to the service provider and the service provider’s reliance on the misrepresentation.’ 278

273 Lenz v. Universal Music Slip Copy, 2008 WL 962102, 2008 Copr.L.Dec. P 29,540, N.D.Cal., April 08, 2008 (NO. C 07-03783 FJ). 274 Lenz v. Universal Music 2009_WL_3573990_2-3-10_2203 275 Lenz v. Universal Music 2010 http://thepriorart.typepad.com/the_prior_art/files/Lenz.2.25.order.pdf 276 Lenz v. Universal Music 2010 http://thepriorart.typepad.com/the_prior_art/files/Lenz.2.25.order.pdf 277 Lenz v. Universal Music 2010 http://thepriorart.typepad.com/the_prior_art/files/Lenz.2.25.order.pdf 278 Lenz v. Universal Music 2010 http://thepriorart.typepad.com/the_prior_art/files/Lenz.2.25.order.pdf

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It will be interesting to see whether mash-up artists will start avail themselves of the counter-notification process like Stephanie Lenz, particularly on the point of fair use. Wendy Seltzer maintains that there are a number of reforms which could improve the safe harbours regime of the Digital Millennium Copyright Act 1998 (US), particularly to protect the interests of consumers and users of carriage service providers:

Even modifications to the DMCA could help: Limiting takedowns to claimed commercial appropriation of entire works, requiring proof to be submitted along with the notification so ISPs could make informed determinations; trimming the counter-notification requirements to match the minimal elements required for initial notice, and eliminating the 10-day holding period; stiffening the penalties against claimants who obtained takedowns through misrepresentation of infringement. Thus we might clear SPs from any inability where the claimed infringement was less than entire commercial appropriation of a copyrighted work. If the duty to respond to notice came with a notice that fully identified the claimed infringing work and pointed to a situation almost certain to be infringement, the ISP could cheaply compare the two, verify the complaint, and run much less risk of erroneous takedown. 279

Seltzer maintains that ‘Substantial alterations to the structure of the DMCA would be necessary to correct the fundamental flaw that targets of notifications are presumed guilty, and punished with the loss of speech, before they can contest the charges’.280 She contends that ‘The focus of copyright law should be put back on the direct infringer, with claims redressed through damages rather than prior restraint’.281 In her view, there should be changes to the timing requirements as well: ‘Rather than ‘expeditious’ takedown, copyright claims should be deferred until the poster has been notified and given an opportunity to respond.’282 Seltzer suggests: ‘Counter-notification would toll the takedown obligation immediately, eliminating the 10-14 business day

279 Wendy Seltzer, ‘Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment’ (2010) Berkman Center Research Publication No. 2010-3, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577785 280 Ibid. 281 Ibid. 282 Ibid.

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downtime.’283 Seltzer concludes: ‘Strengthening the counter-suit provisions could encourage a plaintiffs' bar to take up these cases as private attorneys general.’284 However, it should be acknowledged that current trends in policy reform tend towards further slanting the rules of intermediary liability in favour of copyright law – such as in the Digital Economy Act 2010 (UK), and the proposals in the Anti Counterfeiting Trade Agreement. It is also worthwhile considering the future potential impact of any ‘3-strikes’ approach to mash- up artists.

E. Technological Protection Measures

There has been some concern that technological protection measures – so called ‘para-copyright’ - may interfere with the creation of mash-ups. The Electronic Frontier Foundation and the Organization for Transformative Works have campaigned for an exemption under the technological protection measures of the Digital Millennium Copyright Act 1998 (US) for the making of non-commercial remix videos. In a December 2008 petition to the United States Copyright Office, the Electronic Frontier Foundation proposed an exemption for ‘Audiovisual works released on DVD, where circumvention is undertaken solely for the purpose of extracting clips for inclusion in

283 Ibid. 284 Ibid.

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noncommercial videos that do not infringe copyright’.285 Summarizing its argument, lawyer Fred von Lohmann commented:

Every day, thousands of Americans create and share original, noncommercial videos that include clips taken from movies and television shows released on DVD (referred to hereafter, for the sake of brevity, as ‘remix videos’). Thanks to the falling price of digital video editing technologies and the popularity of video hosting websites like YouTube, this activity has grown from a niche hobby into a mainstream activity that is certain to become even more popular over the next three years. Some remix videos doubtless infringe copyrights; others, thanks to the fair use doctrine, just as surely do not. Regardless, for most of modern American copyright history, the fair use doctrine has left room for this kind of ‘remix culture.’ Whether any particular creation was, or was not, infringing, was to be determined only after a court had undertaken a fair use analysis. Moreover, as applied by the courts, the fair use factors favor remix video creators who recontextualize existing works for transformative purposes.286

The Electronic Frontier Foundation maintained: ‘If the courts are to have the opportunity to address these fair use questions, the Librarian must grant an exemption where a plausible fair use argument would otherwise be foreclosed by a § 1201(a)(1) claim’.287 The civil society group asserted: ‘Noncommercial remix videos present precisely such a circumstance—most will have plausible fair use arguments to make, and none will see their day in court unless an exemption to excuse circumvention claims arising from ripping DVDs.’288 The Electronic Frontier Foundation complained: ‘Unfortunately, the DMCA's anticircumvention provisions threaten to alter this balance’.289 von Lohmann noted: ‘In the view of many rightsholders, once a creator circumvents CSS in order to obtain clips from a DVD, that creator cannot invoke the fair use doctrine in her defense against a claim brought under §

285 Electronic Frontier Foundation, ‘In the matter of exemption to prohibition on circumvention of copyright protection systems for access control technologies’, United States Copyright Office, Library of Congress, Docket No. RM 2008-08, 2 December 2008, http://transformativeworks.org/projects/eff-comment 286 Ibid. 287 Ibid. 288 Ibid. 289 Ibid.

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1201(a)(l).’290 He elaborated upon the threat posed to remixers by the prohibition on circumvention of copyright protection systems for access control technologies:

Section 1201(a)(1)'s prohibition on circumvention has, and will continue to, adversely affect the noninfringing activities of remix video creators. Most obviously, to the extent the circumvention ban prohibits ripping DVDs in order to extract clips, the law puts remix video creators in legal jeopardy when they engage in authorship that would otherwise be protected by fair use. This adverse affect is compounded by a lack of access to sophisticated copyright counsel and the fact that DVD ripping is an ‘attractive nuisance’—the fastest, cheapest, and easiest way for most amateur videographers to obtain clips from DVD. These two realities mean that the majority of remix video creators will unintentionally violate § 1201(a)(1) in the course of authoring their noninfringing videos.291

von Lohmann added that the problem was compounded by the interaction between the technological protection measures regime and the safe harbors regime under the Digital Millennium Copyright Act 1998 (US). He noted that it would be difficult for a remixer to invoked the counter-notice scheme if they had ripped DVDs in order to obtain clips in a video: ‘Thanks to § 1201(a)(1)'s ban on circumvention, remix video creators are unable to take full advantage of the protections they would otherwise enjoy against having their noninfringing works improperly censored off the Internet’.292 In his opinion, ‘This short circuits the fair use inquiry, denies the creator her day in court, and dries up an important well of future fair use precedents to the detriment of remixers and rightsholders alike.’293 In support of the proposed exemption, the Organization for Transformative Works submitted a reply comment to the United States Copyright Office authored by Rebecca Tushnet, a prominent member of the group and a law professor.294 In its comment, the group affirmed its

290 Ibid. 291 Ibid. 292 Ibid. 293 Ibid. 294 The Organization for Transformative Works, ‘Reply Comment in Support of the Exemption Proposal by the Electronic Frontier Foundation’, 2 February 2009, http://transformativeworks.org/projects/reply-comment

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support for a proposed exemption for noncommercial remix videos that do not infringe copyright:

Fan-created videos, or vids, that include clips from popular television shows or film rework these clips in such a way that comments on or critiques the original source. Known as ‘vidding,’ this method of grassroots filmmaking generally relies on footage digitally copied from DVDs. OTW, and the vidders it represents, believe these works to be transformative and a legal use of the source material under the fair use provision of the Copyright Act, and that there should therefore be no legal prohibition on the process by which this source material must be extracted. Accordingly, OTW supports EFF’s proposal for an exemption that would allow the extraction of clips from a DVD for inclusion in noncommercial remix videos that are found to be fair use.295

The Organization for Transformative Works contended that ‘vidding’ was a ‘legitimate artistic and culturally valuable pursuit that represents an established and growing community’.296 The group contended: ‘Vids that comment on and critique popular media and fall under fair use in regards to copyrighted material represent legitimate cultural contributions’.297 The Organization for Transformative Works concluded: ‘In the spirit of copyright law’s dedication to promoting creative work, OTW supports the acceptance of this exemption for non-infringing, noncommercial remix videos.’298 In May 2009, the United States Copyright Office held hearings on proposed exemptions to the technological protection measures regime under the Digital Millennium Copyright Act 1998 (US). Three members of the Organizational for Transformative Works - Rebecca Tushnet (chair of Legal) and Francesca Coppa (chair of Communications and Vidding History) and TWC review editor Tisha Turk – provided evidence to the Office. In September 2009, a coalition of organizations, including the Electronic Frontier Foundation, the Organization for Transformative Works, a number of library associations (ALA, AALA, ARL, ACRL), film and media studies professors, and documentary filmmakers and their

295 Ibid. 296 Ibid. 297 Ibid. 298 Ibid.

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organizations, wrote a joint reply.299 The United States Copyright Office posed the question: ‘From your unique perspectives, is there a limitation, either in terms of duration or percentage (or both), which could be incorporated into the definition of an exempted class of works?’ The Coalition was opposed to the addition of a quantitative limitation on any exemption, arguing: ‘If the Copyright Office is concerned that the proposed exemptions not be permitted to sweep beyond the scope of fair use doctrine, a superior solution would be to incorporate into each exemption a requirement that the use in question be noninfringing, as proposed Classes 11A, 11B have already done’.300 The group emphasized: ‘The traditional fair use evaluation of the amount used could then be applied to concrete factual circumstances by the courts, yielding further jurisprudence to guide future lawyers and users.’301 The Coalition made additional recommendations – in the event that the United States Copyright Office wished to persist with the qualitative limitations on non-commercial remixing. Responding to supplementary questions, the Organization for Transformative Works and the Electronic Frontier Foundation also specifically addressed the question of a quantitative limit.302 The two groups suggested that ‘a bright line quantitative restriction is likely to be of limited assistance to noncommercial video remix artists’, especially given that ‘these creators generally lack access to sophisticated copyright counsel’.303 The pair feared that there would be practical problems for remix artists:

Many video remix creators require access to substantial amounts of an underlying work in order to assemble their own works. For example, RSG-BLACK-1 (Black Hawk Down), by the Radical Software Group, is a 22-minute edit of Black Hawk Down, a movie about Somalia, which includes all (and only) the

299 ‘Joint Supporters Response To August 21 Supplemental Questions On Proposed DVD-Related DMCA Exemptions’, 8 September 2009, http://transformativeworks.org/joint-supporters-response-august-21-supplemental- questions-proposed-dvd-related-dmca-exemptions 300 Ibid. 301 Ibid. 302 ‘OTW & EFF Response To August 21 Supplemental Questions, Specific To Noncommercial Video Remix Creators’, 8 September 2009, http://transformativeworks.org/otw-eff-response-august-21-supplemental-questions- specific-noncommercial-video-remix-creators 303 Ibid.

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parts of the film in which no white characters appear. The nonprofit media arts group Electronic Arts Intermix, a leading curator of multimedia art, has featured RSG-BLACK-1 as an important work, noting that ‘[t]he result is a 22-minute conceptual investigation of representation and ideology... Other genres of remix creativity, however, may also require the use of the entirety, or near-entirety, of a film or television episode.304

The organisations argued: ‘Presenting noncommercial video remix creators with a unified standard (i.e., noninfringement) is not only more consistent with the goals of this rulemaking, but also will send a more consistent, readily understandable educational message to users.’305 In July 2010, the United States Copyright Office recognised a number of new exceptions to the technological protection measures regime.306 Remarkably, the Librarian of Congress announced six classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. The exemptions included:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: (i) Educational uses by college and university professors and by college and university film and media studies students; (ii) Documentary filmmaking; (iii) Noncommercial videos.

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

304 Ibid. 305 Ibid. 306 Library of Congress, ‘Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies’ (2010) 75 (143) Federal Register 43825, 27 July 2010, http://www.copyright.gov/fedreg/2010/75fr43825.pdf

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(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and (ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and

(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

With the advent of the Australia-United States Free Trade Agreement 2004, the Australian Government has updated its technological protection measures regime in order to harmonize its system with that of the United States. Of course, there are divergences between the two countries. The High Court of Australia in the case of Stevens v. Sony took the view that the definition of technological protection measures should be a restricted one.307 It remains to be seen what currency this approach has, in the wake of the Australia-United States Free Trade Agreement 2004. Somewhat less positively, the Australian defence of fair dealing is much more cramped and restricted than its counterpart – the United States defence of fair use. The

307 Stevens v. Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58

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Australian scheme has scope for exemptions – much like its United States counterpart. It could be worthwhile lobbying for a specific exemption for non-commercial remixes.

Recommendation 25 It is recommended that Australia introduce an exemption in the technological protection measures regime dealing with transformative works, remixes and mash- ups.

F. Statutory Licensing

An instinctive reaction to the arrival of new technologies and cultural forms has been to call for statutory licensing. This has occurred in relation to such developments as radio broadcasting, television broadcasting, and internet transmissions. A number of proponents of statutory levies point towards historical antecedents - statutory licensing schemes developed to accommodate new technologies, such as the pianola roll, radio broadcasting, and audio home recording – and contemporary proposals, in respect of private copying levies and statutory licensing schemes, which deal with Internet transmissions.308

308 For a map of the various proposals, see: Peter Yu (2005) 'P2P and the Future of Private Copying' 76 University of Colorado Law Review 653. Yu identifies and evaluates 8 distinct proposals, including: (1) mass licensing, (2) compulsory licensing, (3) voluntary collective licensing, (4) voluntary contribution, (5) technological protection, (6) copyright law revision, (7) administrative dispute resolution proceeding, and (8) alternative compensation. See also Raymond Ku, 'The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology' (2002) 69 University of Chicago Law Review 263; Neil Weinstock Netanel, 'Impose A Noncommercial Use Levy To Allow Free Peer-to-Peer File Sharing' (2003) 17 (1) Harvard Journal Of Law And

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Not surprisingly, some commentators have suggested that the appearance of mash-ups could be resolved by compulsory licensing – described by one commentator as the ‘licence to mash’. For instance, David Mongillo has said that the United States regime could accommodate mash-ups through a blanket licence system:

Some have suggested that Congress should enact a blanket license system, similar to the system currently used for song performance rights, to strike a fair balance between the rights of copyright holders and the interests of sampling artists. Licensing associations such as BMI and ASCAP, which charge radio stations and public establishments such as bars, restaurants and hotels yearly fees for the right to transmit and perform copyrighted music, currently employ the blanket license model. Establishments, for example, pay different rates based on their type of use, frequency of use, and the size of establishment. The money that the licensing associations acquire from fees is then distributed as royalties to participating artists. Congress may be able to create blanket sampling licenses under which sampling artists pay a set fee for each sample they use, based on categories such as the length of the sample and the popularity of the original artist. Provided the rates are reasonable, a blanket sampling license would bypass the administrative and economic obstacles set up by the current licensing system, offering a theoretically viable solution for artists such as Girl Talk.309

Technology 1; William Fisher. Promises To Keep: Technology, Law, And The Future of Entertainment. Stanford: Stanford University Press, 2004; Lawrence Lessig, Free Culture: How Big Media Uses Technology And Law To Lockdown Culture And Control Creativity. New York: Penguin Books, 2004; Daniel Gervais, 'The Price of Social Norms: Towards a Liability Regime for File-Sharing' (2004) 12:1 Journal of Intellectual Property Law 39-73; Jessica Litman, 'Sharing and Stealing' (2004) 27 Hastings Law Communications and Entertainment Law Journal, 1; and Peter Eckersley, 'Virtual Markets for Virtual Goods: The Mirror Image of Digital Copyright?' (2004) 18 (1) Harvard Journal of Law and Technology 85–166.

309 David Mongillo, ‘The Girl Talk Dilemma: Can Copyright Law Accommodate New Forms of Sample- Based Music?’, (2009) 10 The University of Pittsburgh Journal of Technology Law and Policy 3 at 19.

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Similarly, Kenneth Achenbach has suggested that compulsory licensing would be of benefit for mash-up albums like The Grey Album.310 Randy Kravis has argued that compulsory licensing should be adopted to promote digital sampling.311 However, not all commentators have been enamoured of such schemes for statutory licensing and private levies. Andrew Long is somewhat less enthusiastic about compulsory licensing in respect of mash-ups. He raises three caveats about compulsory licensing.312 First, he observes that ‘a compulsory licensing system increases the costs of producing a mash-up’.313 He notes: ‘Certainly, a compulsory licensing system could decrease the transactional costs of negotiating with individual copyright holders for the rights to transform their works.’314 Long comments: ‘Especially in cases where a mash-up creator assembles a mash-up from many copyrighted materials, the creator would face licensing costs so significant that the costs could deter the creator from making the mash-up.’315 Second, Long comments that ‘a system of compulsory licensing might deter creators from making mash-ups by denying them the ability to engage in anonymous speech.’316 He makes the pertinent point that identification of mash-up artists may interfere with the ability to engage in anonymous freedom of expression:

For example, viewers of the mash-up George Bush Doesn't Care About Black People know the creators only by their Internet monikers of The Black Lantern and The Legendary KO. If the creators complied with a compulsory licensing system, however, someone could determine the creators' identities with relative ease

310 Kenneth M. Achenbach, ‘Grey Area: How Recent Developments in Digital Music Production Have Necessitated the Reexamination of Compulsory Licensing for Sample-Based Works’ (2004) 6 N.C. J.L. & Tech. 187. 311 Randy S. Kravis, ‘Does a Song by Any Other Name Still Sound as Sweet?: Digital Sampling and Its Copyright Implications’ (1993) 43 American University Law Review 231. 312 Andrew Long, ‘Mashed Up Videos and Broken Down Copyright: Changing Copyright to Promote the First Amendment Values of Transformative Video’ (2007) 60 Oklahoma Law Review 317. 313 Ibid at 358. 314 Ibid at 358. 315 Ibid at 358. 316 Ibid at 359.

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by searching the licensing database for people who had licensed all the various video and audio clips used in the mash-up. Consequently, mash-up creators would encounter difficulties if they tried to engage in anonymous expression. In fairness, a determined investigator might still discover the identities of mash-up creators even without the aid of compulsory licensing records. Nonetheless, increased ability to determine a mash-up creator's identity in a relatively quick and easy manner using such records would serve to discourage mash-up creators from engaging in expression within the confines of the compulsory licensing system.317

Long comments at last: ‘Finally, a compulsory licensing system that allowed copyright holders to ‘opt out,’ would make the system highly ineffective’. He suggests that ‘given that many of these companies have previously pushed for greater control over their copyrighted materials, mass opting-out by these companies seems likely’.318 Long concludes: ‘Hence, a compulsory licensing system with an ‘opt out’ feature will only provide minimal benefits to mash-up creators because media companies would likely exclude from the system a substantial amount of the content mash-up creators could use.’319 One would have to weigh up the interaction between any new defence or exception created in respect of mash-ups and the operation of statutory licensing. It could be quite complex, distinguishing between uses which were considered free, and those requiring a payment under a statutory licence. This has often been complicated, for instance, in the educational sector, where the defence of fair dealing for research and study, and criticism and review, sits alongside statutory licenses administered by the Copyright Agency Limited.

Recommendation 26 It is doubtful that any proposal for statutory licensing or compulsory licensing of transformative works, remixes or mash-ups in Australia will provide an effective solution.

317 Ibid at 359. 318 Ibid. at 359-360. 319 Ibid at 360.

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G. The Creative Commons

Headquartered in San Francisco, the United States, Creative Commons was officially launched in 2001. The group is a non-profit organization, which has relied upon contract law to expand the range of creative work available for others to legally build upon and share. This project relies upon a variety of standard contract and licensing schemes to enable copyright holders to grant some of their rights to the public while retaining others. The Creative Commons movement had its origins in the failed efforts to challenge the Sonny Bono Act. Founder Lawrence Lessig recounts that the electronic publisher Eric Eldred encouraged him to develop a constructive alternative to the current copyright laws.320 The academic envisaged a volunteer, collaborative project, which would seek to promote ‘free culture’:

Creative Commons is just one example of voluntary efforts by individuals and creators to change the mix of rights that now govern the creative field. The project does not compete with copyright; it complements it. Its aim is not to defeat the rights of authors, but to make it easier for authors and creators to exercise their rights more flexibly and cheaply. That difference, we believe, will enable creativity to spread more easily.321

The Creative Commons movement positions itself as a voice of reason and moderation in an otherwise polarised political debate. It invokes the slogan ‘some rights reserved’ as a mission statement and preaches a message of bringing balance and harmony to the legal system. 322 The movement has sought to counter the effects of the dominant and restrictive permission culture pervading modern society: ‘A single goal unites Creative Commons' current and future projects:

320 Lawrence Lessig, ‘CC in Review’, The Creative Commons, http://creativecommons.org/weblog/entry/5661, 5 October 2005. 321 Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: The Penguin Press, 2004, 286 322 The Creative Commons, ‘Some Rights Reserved: Building a Layer of Reasonable Copyright’, http://creativecommons.org/about/history

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to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules’.323 Nonetheless, the group disclaims any broader advocacy role in the copyright debate. The Creative Commons draws inspiration from a number of theoretical traditions and intellectual heritages. The group invokes the key legal concepts of ‘the public domain’, ‘the commons’, ‘open content’ and ‘intellectual property conservancies’. First, it emphasizes the importance of the public domain: ‘We stand on the shoulders of giants by revisiting, reusing, and transforming the ideas and works of our peers and predecessors.’ 324 The group to replenish a public domain which has been depleted by successive copyright term extensions and the dramatic expansion of digital copyright protection.325 Second, the movement endeavors to invoke the notion of the ‘Commons’, property held in commons: ‘Creative Commons aspires to cultivate a commons in which people can feel free to reuse not only ideas, but also words, images, and music without asking permission — because permission has already been granted to everyone.’326 Third, Creative Commons draws upon the idea of ‘Open Content’ as developed by the free software movement, open source software developers, and projects like the on-line encyclopedia, Wikipedia.327 The group notes: ‘Creative Commons hopes to build on the work of these pioneers by creating a menu of license provisions that people can combine to make their work available for copying and creative reuses.’328 Fourth, it serves as a conservation group, hoping to provide a public sanctuary for works of special value.329 The Creative Commons movement enunciates its ambition: ‘Our ultimate goal is to develop a rich repository of high-

323 The Creative Commons, ‘Some Rights Reserved: Building a Layer of Reasonable Copyright’, http://creativecommons.org/about/history 324 The Creative Commons Legal Concepts, http://creativecommons.org/about/legal 325 For a discussion of the various meanings ascribed to the ‘public domain’, see Pamela Samuelson, ‘Mapping the Digital Public Domain: Threats and Opportunities’ (2003) 66 Law and Contemporary Problems 147; and Pamela Samuelson, ‘Enriching Discourse on Public Domain’ (2006) 55 Duke Law Journal 783-834. 326 The Creative Commons Legal Concepts, http://creativecommons.org/about/legal 327 Bryan Pfaffenberger, ‘Why Open Content Matters’, Linux Journal, 11 April 2001, http://www.linuxjournal.com/article/4709 328 The Creative Commons Legal Concepts, http://creativecommons.org/about/legal 329 James Boyle, 'A Politics of Intellectual Property: Environmentalism for the Net?' (1997) 47 Duke Law Journal 87.

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quality works in a variety of media, and to promote an ethos of sharing, public education, and creative interactivity.’330 There are several types of Creative Commons licences, including attribution, noncommercial, no derivative, and share alike licences. An attribution licence means that the creator requires attribution as a condition of using his or her creative work.331 A non-commercial licence means that the creator allows only non-commercial uses of his or her work.332 A no derivative licence means the creator asks that the work be used as is and not as the basis for something else.333 A share alike licence means that any derivative you make using the licensed work must also be released under the same terms.334 Creative Commons licences bear a clause preserving fair use rights: ‘Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.’335 The agreements are also a means of counter-acting technological protection measures and digital rights management. Indeed, the organisation observes: ‘We are in the business of digital rights expression, not management.’336 Ultimately, the Creative Commons licences recognise that, subject to the conditions of the contracts, users have the freedom to copy and distribute, display and perform the work. In 2003, the Creative Commons launched new Sampling Licenses to encourage the creative transformation of existing works. The Executive Director, Glenn Otis Brown, commented:

330 The Creative Commons Legal Concepts, http://creativecommons.org/about/legal 331 The Creative Commons Attribution Licence 2.5, http://creativecommons.org/licenses/by/2.5/legalcode 332 The Creative Commons Attribution-Non Commercial Licence 2.5, http://creativecommons.org/licenses/by- nc/2.5/legalcode 333 The Creative Commons Attribution No Derivatives Licence 2.5, http://creativecommons.org/licenses/by- nd/2.5/legalcode 334 The Creative Commons Attribution Share Alike Licence 335 The Creative Commons legal code, http://creativecommons.org/licenses/by-nc-nd/2.0/legalcode 336 The Creative Commons Frequently Asked Questions, http://wiki.creativecommons.org/FAQ

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The Sampling License is among the most exciting projects we've taken on so far. The technology and culture of the Net already facilitate the remixing of culture. The law does not, so we're helping it catch up by remixing copyright itself.

He suggested: ‘The Sampling licenses will help authors foster a broad range of culture, from photo collage to musical 'mash-ups,' that the law currently deems illegitimate - despite its growing popularity and acceptance online.’ The Creative Commons offered two models of Sampling Licences. Under the first version, 'The Sampling license will let authors invite others to transform their work, even for commercial purposes, while prohibiting distribution of verbatim copies, or any use in advertising.' Under the second version, 'the Sampling-Plus license will offer the same freedoms as the Sampling license, but will also allow noncommercial sharing of the verbatim work'. The Creative Commons explains: 'So, an artist could release her song under a Sampling-Plus license to encourage her fans to trade it on file-sharing networks, then remix or build upon it however they like.' The Creative Commons deed provides that a user is free to ‘sample, mash-up, or otherwise creatively transform this work for commercial or noncommercial purposes.’ The Creative Commons movement developed the Sampling Licences in collaboration with the experimental music collective, Negativland. Don Joyce called for the legal acknowledgment of the ‘state of modern audio/visual creativity in which quoting, sampling, direct referencing, copying, and collaging have become a major part of modern inspiration.’ 337 The sampling group observed:

There's a crucial difference between bootlegging another's work and the creative transformation of it. Collage is a technique that has an undisputed currency in virtually all art forms today. Originally, copyright was designed to prohibit the piracy or bootlegging of complete works; that was and remains a worthy goal. But copyright is now also routinely used to prohibit collage, as if it were no different from outright piracy. With Creative Commons, we're trying to build a license that will allow copyright holders to invite transformation of their works - even for money - while preventing this sort of verbatim bootlegging.338

337 Glenn Otis Brown, ‘Mmm . . . Free Samples (Innovation 1a)’, Creative Commons, 11 March 2003, http://creativecommons.org/weblog/entry/3631 338 http://creativecommons.org/press-releases/entry/3707

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The Creative Commons movement also enlisted Gilberto Gil, the Minister for Culture of the Brazilian Government, to help develop the Sampling Licences. Most notably, the Brazilian Government has embraced open source models.339 The Minister for Culture, and tropicalismo musician, Gilberto Gil, observed:

A world opened up by communications cannot remain closed up in a feudal vision of property. No country, not the US, not Europe, can stand in the way of it. It's a global trend. It's part of the very process of civilization. It's the semantic abundance of the modern world, of the postmodern world - and there's no use resisting it.340

Gilberto Gil has sought to ‘tropicalize’ Brazil's approach to intellectual property in the networked age. His hope is ‘to make the digital world join in the samba.’341 Gil has given his imprimatur to the digital sampling licences of the Creative Commons. He has even released a number of his own songs under Creative Commons licences. Rather than call them ‘Sampling licences’, Creative Commons Brazil has renamed the ‘Recombo licences’, a name inspired by a Brazilian art collective called, Re: Combo.342 The musician, Jeff Tweedy, of the alternative country band Wilco is also positive about the venture: ‘Creative Commons is a great idea and I'm sure it could work on some level in music.’343 He argues that creating an adversarial relationship with the listener is a mistake: ‘The industry is hiding behind a smokescreen of artists' rights - it is terrified of people being able to listen to music and deciding whether they like it before the industry can tell them what to like.’344

339 Julian Dibbell, ‘We Pledge Allegiance to the Penguin’, Wired Magazine, November 2004, http://www.wired.com/wired/archive/12.11/linux.html 340 Ibid. 341 Ibid. 342 Glenn Otis Brown, ‘Recombo Brazil’, Creative Commons, 4 June 2004, http://creativecommons.org/weblog/entry/4234 ; and http://www.recombo.art.br/ 343 Hamish Mackintosh, ‘Talk Time: Jeff Tweedy’, The Guardian, 5 May 2005, http://technology.guardian.co.uk/online/story/0,3605,1476170,00.html 344 Ibid.

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The technology bible, Wired magazine, released a collection of sixteen songs produced under the Creative Commons licenses, encouraging its consumers, 'Rip, Mix, Burn. Swap till you drop. The music cops can't do a thing - it's 100 percent legal, licensed by the bands.'345 Thomas Goetz commented:

Creative Commons is trying to find a middle ground. In the past two years, the nonprofit has created around a dozen licenses that let artists open their work to others. CC licenses give musicians - as well as authors, designers, and other creators - a flexible, opt-in licensing system, letting them determine what secondary uses are allowed and under what conditions. Work released under a CC license grants before-the-fact permission, so that another musician or artist doesn't have to call a lawyer before building on or sharing a licensed work. It's a some-rights-reserved approach, versus the old analog-age standard of all rights reserved. It's copyright for the 21st century. At root, Creative Commons is simply codifying what modern culture has already decided it wants to be: a hybrid nation of explicit influences, generous borrowings, and inside references. It's a remix culture, a layer-upon-layer construction that lets us marvel at Tarantino's Hong Kong homages, delight in the Dean Scream, and wink at phantom edits. 346

The concept album even featured a piece by DJ Danger Mouse and Jemini entitled, 'What U Sittin' On?' Doctor Paradox argued that Creative Commons licensing was part of the re-connecting of art to what it is meant to be, an organic part of everyday lifestyle:

‘Even as recently as a few decades ago, music was still something people did in their homes to entertain themselves, their families, and friends. Now in the midst of a radical technological revolution, we are starting to have access to the tools we need to craft music in our own vision, according to our own philosophies. For me, the dream and vision of Creative Commons is that by making an enormous amount of high-quality art available to society, our culture's demand for, and appreciation of art itself is bound to increase.’347

345 Thomas Goetz, 'Sample the Future' (2004) 12 (11) Wired http://www.wired.com/wired/archive/12.11/sample.html 346 Ibid. 347 Victor Stone, ‘The Metaphysician’, Creative Commons, 30 April 2004, http://creativecommons.org/weblog/archive/2004/04

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ccMixter is a community music site – with the directive to ‘download, sample, cut-up, share’ - which features remixes licensed under Creative Commons licences.348 The site explains to visitors the nature of the endeavour:

Music on this site is licensed under a Creative Commons license. You are free to download and sample from music on this site and share the results with anyone, anywhere, anytime. Some songs might have certain restrictions, depending on their specific licenses. Each submission is marked clearly with the license that applies to it. Sometimes, however, a contributor might accidentally upload copyrighted materials he or she doesn’t have permission for. If you know of such a case or are the copyright holder of something posted here without your permission or a Creative Commons license, please let us know.

ccMixter observes that users can post remixes to their own site, as long as they are not making commercial use of the musical work or sound recording. The site notes: ‘Many tracks on this site (e.g. by the Beastie Boys, Chuck D and the Fine Arts Militia, and My Morning Jacket) are under some form of Noncommercial license, which allows file-sharing and sampling but prohibits any commercial use whatsoever’.349 Moreover, ‘Many other tracks on the site are under licenses which allow noncommercial file-sharing and even commercial use of samples.’350 The site spotlights the work of mash-ups artists such as DoKashiteru, Brad Sucks, Robert Nunnally, Shannon Hurley, Calendar Girl and Trifonic. Creative Commons’ licences have not been without legal controversy. The most striking litigation has been the matter of Chang v. Virgin Mobile USA, LLC.351 In a certain light, this dispute could even be considered to be about a mash-up of a photograph, albeit a commercial

mash-up. In this matter, Susan Chang, as next friend of Alison Chang, a minor, and Justin Ho- Wee Wong sued defendant Virgin Mobile Pty Ltd. an Australian-based company, in Texas state court on claims for invasion of privacy, libel, breach of contract, and copyright infringement based on Virgin Australia's use of an image of Alison in its ‘Are You With Us or What’

348 Mixter site, http://ccmixter.org/ 349 Ibid. 350 Ibid. 351 Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009).

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advertising campaign. In 2007 Virgin Australia launched the campaign in selected Australian cities, such as Sydney and Adelaide. The Campaign featured a collection of over 100 photographs downloaded at no cost to Virgin Australia from Yahoo!'s public photo-sharing website, Flickr. In the United States District Court for the Northern District of Texas, Fitzwater J noted:

Alison's photograph was taken by her church counsellor, Wong, a resident of Fort Worth, Texas, who then published the photograph on Flickr under a Creative Commons Attribution 2.0 license agreement that provides for the most unrestricted use available to any worldwide user (including commercial use and no monetary payment). Virgin Australia used the photograph in an advertisement encouraging viewers to ‘DUMP YOUR PEN FRIEND’ and advertising ‘FREE VIRGIN TO VIRGIN TEXTING.’ The advertisement was placed on bus shelter ad shells in major metropolitan areas in Australia. Virgin Australia never distributed the advertisement incorporating Alison's image in the United States, including Texas, and it never posted the photograph on its website or on any other website.352

The causes of action were sixfold – including 1. Invasion of Privacy; 2. Libel Per Se (Defamation); 3. Libel Per Quad; 4. Breach of Contract; 5. Negligence; and 6. Copyright Infringement. Initially, the Creative Commons Corporation a Massachusetts nonprofit that licenses sharing of Flickr photos, was named amongst the defendants. In response, the Creative Commons noted: ‘Although the photographer licensed the photo to the public for commercial use under one of CC’s commercial licenses, Virgin’s commercial use of the picture apparently surprised him’.353 The group observed: ‘So now he is suing CC, claiming that we failed ‘to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.’’354 Lawrence Lessig commented:

352 Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009). 353 Mike Linksvayer, ‘Lawsuit against Virgin Mobile and Creative Commons’, 27 September 2007, http://creativecommons.org/weblog/entry/7680 354 Ibid.

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I doubt that any court would find the photographer in this case had violated any right of privacy merely by posting a photograph like this on Flickr. Nor would any court, in my view, find a noncommercial use of a photograph like this violative of any right of privacy. And finally, as the world is just now, while many might resist the idea of Virgin using a photograph of theirs for free (and thus not select a license that explicitly authorizes ‘commercial use’), most in the net community would be perfectly fine with noncommercial use of a photograph by others within the net community. 355

In the end, the complaint against the Creative Commons group was withdrawn. In a statement, Virgin Mobile said the use of the photo was lawful and fitted Virgin's image: ‘The images have been featured within the positive spirit of the Creative Commons Agreement, a legal framework voluntarily chosen by the photographers. It allows for their photographs to be used for a variety of purposes, including commercial activities.'' Virgin Australia argued that it was not subject to personal jurisdiction anywhere in the United States, including in Texas, based on either specific or general jurisdiction. Fitzwater J agreed with this argument:

Alison's photograph was only used on billboards at bus stations in Australian cities, and Alison only learned about the use of her image in Virgin Australia's Campaign after a third party saw the billboard at a bus station in Adelaide, Australia, took a picture of it, and then posted it on the Internet. The nondescript content of Alison's photograph, moreover, unlike the picture in Noonan, did not clearly indicate where any injury would be felt. Alison's Texas injury-i.e., her distress at seeing her image used in an allegedly disparaging way-is insufficient to support personal jurisdiction in the state of Texas over Virgin Australia. Because none of the three contacts on which plaintiffs rely establishes sufficient minimum contacts between Virgin Australia and the state of Texas, the court cannot constitutionally exercise personal jurisdiction over Virgin Australia. 356

Fitzwater J cited past authority on this point: ‘Because [the court] find[s] that the first due process condition of minimum contacts was not satisfied, [the court] need not address whether

355 Lawrence Lessig, ‘On the Texas Suit Against Virgin and Creative Commons’, 22 September 2007, http://lessig.org/blog/2007/09/on_the_texas_suit_against_virg.html 356 Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009).

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the exercise of personal jurisdiction in this case would offend traditional notions of fair play and substantial justice.’357 The case is a curious one. It is hard to determine whether it is an exceptional case or more representative of more systematic problems. Nonetheless, it is an important reminder that commercial uses of copyright works subject to Creative Commons licences can be contentious and controversial. Michael Allyn Pote suggests that, notwithstanding the limitations of contract law, devices such as Creative Commons licences can restore an equilibrium to the operation of copyright law: ‘By obtaining sampling licenses - whether licensing agreements, implied licenses, or Creative Commons licenses - and using original samples, recreated samples, ideas, and utilizing fair uses of works, mashup remixers are able to appropriately use the works of artists to advance the arts while not unfairly impeding the rights of artists to be incentivized’.358

H. Moral Rights

Article 6bis of the Berne Convention obliges nation states to provide recognition of two moral rights - in particular, the moral right of the author to be attributed as the author of a work; and the moral right of the author to object to derogatory treatment of a work which is prejudicial to their honour and reputation.

357 Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009). 358 Michael Allyn Pote, ‘Mashed-Up In Between: The Delicate Balance of Artists’ Interests Lost Amidst the War on Copyright’ (2010) 88 North Carolina Law Review 639.

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i. The United States

The United States Congress has resisted the introduction of comprehensive moral rights into the framework of copyright law.359 It maintains that the concerns of other copyright creators are adequately recognised under such doctrines as the common law of misrepresentation and unfair competition; trade mark protection under the Lanham Act; and defamation law. At most, the Congress has only recognised limited moral rights protection for visual artists under the Visual Artists Rights Act 1990 (US) (VARA). Roberta Rosenthal Kwall provides a good summary of its manifold limitations:

VARA provides very circumscribed federal statutory protection for the moral rights of certain visual artists by prohibiting unauthorized, intentional modifications to their works that will prejudice their honor and reputation. In addition, VARA safeguards an artist’s right of attribution in situations not limited to intentional changes, but still does not guarantee an author the ability to exercise the rights of anonymity or pseudonymity. VARA additionally provides, in the case of works of visual art of ‘recognized stature,’ the right to prevent their destruction, either by intentional or grossly negligent acts. 360

Kwall goes on and notes that VARA ‘only applies to a very narrow category of visual art such as paintings, drawings, prints and sculptures.’ 361 Moreover, ‘VARA also specifically excludes protection for reproductions of works, and fails to provide any remedy when works are used in a context found objectionable or distasteful by the author’. 362 Accordingly, VARA may only be relevant to mash-ups of original artistic works in the United States. Nonetheless, very recently, the United States courts did provide a rather more robust interpretation of the Visual Artists Rights Act 1990 (US) in the case of Massachusetts Museum of Contemporary Art Foundation Inc. v. Buchel.363 Summarizing its findings, the court held that the

359 Roberta Rosenthal Kwall, The Soul of Creativity: Forging a Moral Rights Law for the United States, Stanford: Stanford University Press, 2010. 360 Ibid. 28. 361 Ibid. 28. 362 Ibid. 28. 363 Massachusetts Museum of Contemporary Art Foundation Inc. v. Buchel 2010 WL 297834 C.A. 1 (Mass).

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‘VARA's protection of an artist's moral rights extends to unfinished creations that are ‘works of art’ within the meaning of the Copyright Act.’ 364 Second, the court ruled that the ‘The right of integrity under VARA protects artists from distortions, mutilations or modifications of their works that are prejudicial to their reputation or honor, and prejudice must be shown for both injunctive relief and damages.’ 365 Third, the court found that ‘ Büchel has adduced sufficient evidence to raise a genuine issue of material fact as to whether MASS MoCA violated his right of integrity on one of his three asserted bases for liability, namely, by modifying ‘Training Ground’ over his objections in a manner that harmed his honor or reputation. His right-of- integrity claims based on the yellow tarpaulins and the mere display of ‘Training Ground’ lack merit’. 366 Fourth, it held that the ‘Büchel's right-of-attribution claim is moot, as VARA provides only injunctive relief to protect the right of attribution and the installation no longer exists. 367 Fifth, the court held that ‘The record reveals a genuine issue of material fact as to whether MASS MoCA violated Büchel's exclusive right under section 106(5) of the Copyright Act to display his work publicly’. 368 Finally, the judge held that ‘Büchel fails to adequately develop his claim that MASS MoCA violated his exclusive right under section 106(2) to prepare derivative works based on ‘Training Ground,’ and that claim is therefore waived.’ 369 It is hard to know whether this ruling signals a change in the jurisprudential approach to moral rights in the United States. It would, in any case, only affect mash-ups of artistic works.

ii. Australia

In contrast to the United States Congress, the Australian Government introduced comprehensive moral rights legislation with the enactment of the Copyright Amendment (Moral Rights) Act

364 Massachusetts Museum of Contemporary Art Foundation Inc. v. Buchel 2010 WL 297834 C.A. 1 (Mass). 365 Massachusetts Museum of Contemporary Art Foundation Inc. v. Buchel 2010 WL 297834 C.A. 1 (Mass). 366 Massachusetts Museum of Contemporary Art Foundation Inc. v. Buchel 2010 WL 297834 C.A. 1 (Mass). 367 Massachusetts Museum of Contemporary Art Foundation Inc. v. Buchel 2010 WL 297834 C.A. 1 (Mass). 368 Massachusetts Museum of Contemporary Art Foundation Inc. v. Buchel 2010 WL 297834 C.A. 1 (Mass). 369 Massachusetts Museum of Contemporary Art Foundation Inc. v. Buchel 2010 WL 297834 C.A. 1 (Mass).

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2000 (Cth).370 It recognised the right of attribution; the right against false attribution; and the right of integrity. In her magnum opus, Elizabeth Adeney comments upon the idiosyncratic nature of the Australian regime:

In its general treatment of the rights and its focus on the author, the Australian Act is largely faithful to conventional moral rights concepts. In its formulations of the rights, the Act has diverged from those statutes that might have served as its models. The extensive process of consultation and drafting resulted in the longest and most detailed set of moral rights provisions in the world. The object has been the kind of completeness and thoroughness that Stromholm noted in 1967 as typical of the common law jurisdictions. The main feature of the Australian provisions is that their detail is regulatory rather than exclusionary, unlike their UK counterparts. In other words, Australian legislators have been more concerned to control the way in which the rights are exercised than to exclude large areas of copyright works from their ambit.371

The Attorney-General at the time, Daryl Williams, hailed the legislation as a ‘yet another important landmark in the government's on-going program of copyright reform’. Nonetheless, the Minister emphasized that ‘this bill is not just about fulfilling international obligations’. Williams insisted: ‘More importantly, it is about acknowledging the great importance of respect for the integrity of creative endeavour.’ The Federal Magistrates Court considered the operation of the moral right of attribution and the moral right against false attribution in the case of Meskenas v. ACP Publishing Pty Ltd.372 In this matter, an artist, Vladas Meskenas, objected to his portrait of Victor Chang being published in the magazine, Woman’s Day, with authorship of the work being wrongly attributed to Jiawei Shen. Raphael FM held:

The publication of the portrait gives rise to a requirement for an attribution of authorship under s.194(2)(d). It is clear from the photograph that the portrait itself is of significant importance and is not just incidental to the composition of the photograph. I infer from the fact that an attribution was made, albeit the wrong one,

370 Maree Sainsbury, Moral Rights And Their Application In Australia, Sydney: Federation Press, 2003; and 371 Elizabeth Adeney, The Moral Rights of Authors and Performers. Oxford: Oxford University Press, 2006, 569 372 Meskenas v. ACP Publishing Pty Ltd [2006] FMCA 1136 (14 August 2006).

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that the respondent accepted it was bound by s.194(2)(d). The respondent raises two arguments to resist a finding that it has infringed the applicant’s moral rights, in particular the rights not to have the authorship falsely attributed and the right of attribution. As I understand its argument in respect of the alleged infringement of the right of attribution it says that the making of a wrong attribution has the effect that the author of the work is not identified and thus it can seek to utilise the defence found at s.195AR. The right of attribution expressed in s.193 is a positive right and prima facie was breached by the publication. The publication did not identify Vladas Meskenas as the author. In looking at the matters to be taken into account in deciding whether or not it was reasonable not to identify Mr Meskenas in s.195AR(2), I cannot see there is anything in the nature of the work which would prevent him from being properly identified. As I understand the evidence the portrait was signed. There was no evidence provided to me by the respondents to indicate that there was anything difficult arising out of the purpose for which the work was used in identifying him nor in respect of the manner or context in which it was used. The identification of another artist would seem to indicate that the magazine had no trouble about making an identification, albeit a wrong one. There was no evidence about any practice in the industry which was relevant, nor was there any evidence of a voluntary code or difficulty or expense as a result of identifying the author. I would not be inclined to hold that it was reasonable in all the circumstances not to identify the author. The second argument put by the respondent is that there is a requirement for some form of intent in order to have infringed the author’s right not to have the work falsely attributed. This raises the issue of the meaning of the word ‘falsely’ in the context of the Act... I am satisfied that unless it could be suggested that there were some quasi-penal ramifications to a finding of infringement of moral rights the word ‘falsely’ used in the context of s.194 does not require an intention and will bear the meaning of objectively incorrect. 373

The Federal Magistrates Court required the respondent to pay the applicant the sum of $9,100.00 damages for breach of ss.195AO and 195AP of the Copyright Act 1968 (Cth). The Federal Court of Australia considered the meaning of debasement in the intriguing matter of Schott Musik International GmbH & Co And Others v. Colossal Records Of Australia Pty Ltd And Others.374 The case concerned whether a techno dance adaptation made by the group Excalibur of the ‘O Fortuna’ chorus from Carl Orff's Carmina Burana debased the original work. It involved s 55 (2) of the Copyright Act 1968 (Cth), which provided that the entitlement to a compulsory licence for a record does not apply ‘in relation to a record of an adaptation of a

373 Meskenas v. ACP Publishing Pty Ltd [2006] FMCA 1136 (14 August 2006). 374 Schott Musik International GmbH & Co v. Colossal Records Of Australia Pty Ltd (1997) 75 FCR 321

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musical work if the adaptation debases the work’. 375 At first instance, Justice Tamberlin found that Excalibur preserved substantial and essential elements of the original intact, and communicated an exuberance and rhythmic character consistent with the spirit of the work. His Honour counselled that, in assessing the notion of debasement, it was necessary to take a broad view of artistic tastes and values: ‘As musical tastes are so divergent and varied, (which is amply illustrated by the evidence in this case), it is necessary in approaching the question, to pay due regard to that broad spectrum of taste and values.’ On appeal, the Full Federal Court upheld the finding of Justice Tamberlin.376 There was disagreement, though, over the proper test for debasement. Justice Hill favoured an objective test; whereas Justice Wilcox and Justice Lindgren held that a subjective test of debasement had to be applied. Based on conservative aesthetics and hermeneutics, the moral right of attribution, the moral right to object to false attribution, and the moral right of integrity have the potential to be in conflict with the post-modern sensibilities of creative mash-ups and remixes.

iii. The United Kingdom

In the United Kingdom, there have been a number of judicial considerations of the debasement of musical works. In Sawkins v. Hyperion Records Ltd, Mummery LJ posed the question: ‘Does copyright subsist in modern performing editions of the out-of-copyright music of Michel-Richard de Lalande, the principal court composer at the courts of Louis XIV and Louis XV?’377 He added: ‘If, as Patten J. held, it does and has been breached, the infringements are actionable by Dr Lionel Sawkins [the composer of the performing editions].’ 378 Mummery LJ considered a claim for a breach of the moral right of attribution:

375 Schott Musik International GmbH & Co v. Colossal Records Of Australia Pty Ltd (1997) 75 FCR 321 376 Schott Musik International GmbH & Co v. Colossal Records Of Australia Pty Ltd (1997) 75 FCR 321 377 Sawkins v. Hyperion Records Ltd [2005] EWCA Civ 565 378 Sawkins v. Hyperion Records Ltd [2005] EWCA Civ 565

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The judge held that the acknowledgement by Hyperion of the contribution of Dr Sawkins in the CD booklet (‘With thanks to Dr Lionel Sawkins for his preparation of performance materials for this recording’) was inadequate to identify Dr Sawkins as the author of the performing editions; that the form of identification required by him in his letter of February 6, 2002 was not followed by Hyperion (© Copyright 2002 by Lionel Sawkins); and that of the 1988 Act had not been complied with. It was submitted that, as a matter of law, does not require the use of a specific form of words to describe the authorship of the work and that the judge's conclusion was contrary to evidence that the ‘performance materials’ could only be understood as referring to the scores supplied by Dr Sawkins for the recording. 379

Mummery LJ upheld the view of the lower court that ‘there was a breach of moral rights’ noting that ‘Although the CD sleeve named Dr Sawkins, it did not identify his authorship’. 380 In Morrison Leahy Music Limited v. Lightbond Limited, George Michael and Morrison Leahy Music Limited sought an injunction against Lightbond Limited from releasing samples of his work on the hits album Bad Boys Megamix.381 The plaintiffs argued that Lightbond Limited should be denied a compulsory licence on the grounds that it subjected the work of George Michael to derogatory treatment. Morrit J examined whether the sampling of parts of the music altered the character of the work:

Thus arguably the rights conferred on the second plaintiff by section 80 of the Act do apply. It is plain that what the defendants have done amounts to treatment within subsection (2)(a) and for the same reasons as in the case of the first plaintiff it seems to me that it is arguable that such treatment amounts to distortion or mutilation within. On this issue Mr Leahy on behalf of the plaintiffs says in paragraph 7 of his affidavit, both in reference to the standard of the recording and in reference to the deletion, alteration and adaptation, as he puts it, of the original musical compositions, that they do amount, in his opinion, to wholesale mutilation of the original musical compositions. As against that there are the opinions of the disc jockeys in letters and returns to which I have already referred. Again, for the same reasons as in the case of the first plaintiff, I do not think that it necessarily does amount to distortion or mutilation to take bits and put them into a different context. As with the first plaintiff, it will be a question of fact at the trial to determine whether what has been done, which is treatment, amounts to derogatory treatment within paragraph (b). 382

379 Sawkins v. Hyperion Records Ltd [2005] EWCA Civ 565 380 Sawkins v. Hyperion Records Ltd [2005] EWCA Civ 565 381 Morrison Leahy Music Limited v. Lightbond Limited (Unreported, UK High Court, 21 March 1991). 382 Morrison Leahy Music Limited v. Lightbond Limited (Unreported, UK High Court, 21 March 1991).

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Morrit J also considered whether the lyrics had been modified by being taken from their context and put into a different context. There were three instances where the words ‘bad boys’ had been transposed onto the lyrics. Justice Morrit was quite willing to entertain the possibility that the remix of the work of George Michael amounted to derogatory treatment. He granted an injunction until there could be a trial. In Confetti Records v. Warner Music, the Chancery Division of the High Court of Justice considered a claim based on the alleged derogatory treatment of ‘Burnin’ composed by Andrew Alcee in a remix by the UK Garage band, The Heartless Crew.383 The derogatory treatment was said to be the overlay of the song with a rap containing references to violence and drugs. Justice Lewinson commented that there was a need for expert evidence to decipher the meaning of the words used in the song. His Honour noted ‘that the words of the rap, although in a form of English, were for practical purposes a foreign language.’ 384 He quipped that ‘the occasions on which an expert drug dealer might be called to give evidence in the Chancery Division are likely to be rare.’ 385 Justice Lewinson observed that the hearing involved ‘the faintly surreal experience of three gentlemen in horsehair wigs examining the meaning of such phrases as ‘mish mish man’ and ‘shizzle (or sizzle) my nizzle’. 386 He held: ‘I hold that the mere fact that a work has been distorted or mutilated gives rise to no claim, unless the distortion or mutilation prejudices the author's honour or reputation.’ 387 His Honour found that the fundamental weakness in the case was there was no evidence about Mr Alcee's honour or reputation, or of any prejudice to either of them. As a result, the claim about derogatory treatment failed.

383 Confetti Records v. Warner Music [2003] EMLR 35. 384 Confetti Records v. Warner Music [2003] EMLR 35. 385 Confetti Records v. Warner Music [2003] EMLR 35. 386 Confetti Records v. Warner Music [2003] EMLR 35. 387 Confetti Records v. Warner Music [2003] EMLR 35.

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iv. Canada

In Théberge v. Galerie d'Art du Petit Champlain Inc., the Supreme Court of Canada heatedly debated in the Théberge Case the proper relationship between economic rights and moral rights.388 Trained in a common law tradition, Binnie J for the majority held:

Moral rights act as a continuing restraint on what purchasers such as the appellants can do with a work once it passes from the author, but respect must be given to the limitations that are an essential part of the moral rights created by Parliament. Economic rights should not be read so broadly that they cover the same ground as the moral rights, making inoperative the limits Parliament has imposed on moral rights. 389

In a strong dissent, Gonthier J, with a civil law background, argued:

My colleague, Binnie J, suggests that this case arises out of the conceptual differences between 'the droit d'auteur of the continental civiliste tradition and the English copyright tradition'. I cannot subscribe to that view. The disposition of this case is determined solely by the aspects that derive from the English concept of copyright.’ 390

The case provides a wonderful illustration of the clash over the notion of moral rights between common law and civil traditions. Graham Reynolds of Dalhousie University in Canada contends that mash-ups have the potential to infringe the moral rights of authors:

It is also arguable that mash-ups violate the moral rights of copyright owners. Mash-up artists cut, slice, and plaster lyrics onto walls of sound built from pieces of various musical works. They bring together disparate genres of music, gluing together songs that might never be played at the same bar, on the same radio station, or even in the same decade. As a result, mash-up artists may be found to have infringed an artist’s moral rights. Specifically, they may be found to have infringed the artist’s moral right to the integrity of their work. This right, in part, protects works from distortions, mutilations, or modifications that are

388 Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336 389 Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336 390 Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336

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prejudicial to the honour or reputation of the author. Today’s digital technologies give individuals an unprecedented opportunity to engage with culture, interacting with it, changing it, modifying it, and using it as the raw material for one’s own expression. Mash-ups are one of the many ways through which individuals are using digital technologies to participate in the re-creation of Canadian culture. This participation, however, may both constitute copyright infringement and violate artists’ moral rights.391

He contends that the interaction between moral rights and mash-ups should be considered in the law reform process: ‘As Canada enters its next round of copyright reform, the question of the extent to which copyright laws and laws dealing with moral rights should be revised to permit the creation of mash-ups should be addressed; and the question of the extent to which individuals should be permitted to engage with the re-creation of copyright-protected expression must become a topic of debate.’392

391 Graham Reynolds, ‘A Stroke of Genius or Copyright Infringement?’, IP Osgoode, 24 August 2009, http://www.iposgoode.ca/2009/08/a-stroke-of-genius-or-copyright-infringement-mash-ups-copyright-and-moral- rights-in-canada/ 392 Ibid.

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I. Freedom of Expression: Copyright Law and Political Mash-Ups

The politics of mash-ups are elusive. There are some highly political examples of mash-ups – such as the work of Jib Jab, The Legendary K.O. and Hugh Atken. Other mash-ups seem entirely apolitical – there is no grand political message behind Sense and Sensibility and Sea Monsters. There is also an important sub-genre of political mash-ups – which cuts across the range of cultural forms protected by copyright law (literary works, artistic works, musical works, dramatic works, and other subject matter). It is worth thinking about as a category in its own right – both because there is a specific defence of fair dealing for parody and satire in Australia;393 and, perhaps, broader protection offered by the freedom of implied political communication.394 The defence of fair dealing for reporting the news may also be relevant here. Pat Aufderheide and Peter Jaszi comment that political commentary is common in respect of user-generated videos.395 The pair offer an amusing selection of examples:

In Bush vs The Zombies, video of President Bush at a press conference is re-edited with added comments from a fake journalist, to make it seem as though Bush is talking about zombies instead of terrorists.

393 SS 41A, 103AA of the Copyright Act 1968 (Cth). 394 For further discussion on copyright law and freedom of expression, see: Kembrew McLeod, Freedom of Expression®: Overzealous Copyright Bozos and other Enemies of Creativity, Doubleday, New York, 2005; Jonathan Griffiths and Uma Suthersanen (eds), Copyright and Free Speech: Comparative and International Analyses, Oxford University Press, Oxford, 2005, and Neil Weinstock Netanel, Copyright’s Paradox, Oxford: Oxford University Press, 2008. 395 Pat Aufderheide and Peter Jaszi, ‘Recut, Reframe, Recycle: Quoting Copyrighted Material in User- Generated Video’, American University Center for Social Media, January 2008.

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Genuine press conference footage is re-edited into a parody of a press conference in order to make a political criticism of the President. In victory in Iraq, the movie Star Wars is quoted to evoke the notion of empire, employing movie footage to satirize the administration. This move footage is mashed up with altered video from Pres. Bush’s ‘mission accomplished’ speech on the Iraq invasion. If Dick Cheney Was Scarface combines Cheney press conference news footage with the voice and images of the mouth of Al Pacino, in order to satirize the vice president as a criminal.396

The two note that, in the United States context, there is a distinction drawn between parody and satire: ‘Satire (the use of media content to poke fun at other objects, such as politicians) is also eligible for fair use consideration, although not as readily as possible’.397 Nonetheless, they observe: ‘If the essential hallmark of transformativeness is the repurposing of existing content (thus adding value to it), then many satiric uses – such as occur in the online videos researchers found here – also should qualify as fair use’.398 Sometimes political mash-ups attract legal attention. For instance, the music publisher Ludlow Music, Inc. threatened legal action against web animation studio JibJab Media Inc over the ‘This Land’ animated parody lampooning President Bush and Senator Kerry.399 It was alleged that the video infringed copyright in the classic Woody Guthrie song, ‘This Land is Your Land.’ In response, JibJab obtained legal assistance from the Electronic Frontier Foundation. The Electronic Frontier Foundation argued that its work was a protected ‘fair use’ and did not infringe Ludlow's copyrights.400 The organization emphasized:

Far from treating Jib Jab as an infringer, copyright law recognizes that this kind of transformative, expressive activity is exactly what copyright was meant to encourage. In the words of the Supreme Court,

396 Ibid., 7. 397 Ibid., 8. 398 Ibid. 8. 399 Kenneth Hertz, ‘Re: JibJab Media/ Unauthorized Use of ‘This Land is Your Land’, Sonnenschein, Nath and Rosenthal LLP, 2004, http://www.eff.org/legal/cases/JibJab_v_Ludlow/20040727_jibjabthreat.pdf 400 JibJab v. Ludlow Music Inc (2004), http://www.eff.org/legal/cases/JibJab_v_Ludlow/20040729_JibJab_Complaint.pdf ; and Electronic Frontier Foundation (2004) ‘Re JibJab Media Inc and Ludlow Music Inc’, http://www.eff.org/legal/cases/JibJab_v_Ludlow/20040728_Ltr_to_LiCalsi.pdf

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‘[T]he fair use doctrine… requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’ This is just such an occasion. There is no question that our clients have created a work that contains both transformative and original expressions of creativity the very creativity which copyright law was designed to foster.401

The Electronic Frontier Foundation emphasized: ‘We urge you to reconsider your position and recognize ‘This Land’ for what it is-a humorous political commentary on President Bush, Senator Kerry, the condition of democracy in America, and Woody Guthrie's classic ‘This Land is Your Land.’402 The Electronic Frontier Foundation noted that there were previous precedents to this effect: ‘In the last presidential election cycle, Mastercard sued Ralph Nader for adapting the credit card company's ‘priceless’ commercial in service of a political message.403 As you know, a court just a few months a go found that the use was fair.’404 The group maintained that the Woody Guthrie song was part of the public domain and had been for many years. The case was settled, and JibJab was able to distribute the work, free from interference by the music publisher. In a relief concert for the victims of Hurricane Katrina, Kayne West launched into a passionate yet articulate monologue, complaining about the efforts of the Bush Administration to adequately address the emergency: ‘I hate the way they portray us in the media… George Bush doesn't care about black people!’405 In the wake of Hurricane Katrina and the devastation of New Orleans and the surrounding region, the hip-hop duo, The Legendary K.O. released a protest song called ‘George Bush Doesn’t Care About Black People’. The work takes its title and its opening line from a complaint by Kayne West during A Concert for Hurricane Relief; and also involves a mash-up of

401 Electronic Frontier Foundation (2004) ‘Re JibJab Media Inc and Ludlow Music Inc’, http://www.eff.org/legal/cases/JibJab_v_Ludlow/20040728_Ltr_to_LiCalsi.pdf. 402 Ibid. 403 See Mastercard v. Nader, 2004 WL 434404 (S.D.N.Y. 2004). 404 Electronic Frontier Foundation (2004) ‘Re JibJab Media Inc and Ludlow Music Inc’, http://www.eff.org/legal/cases/JibJab_v_Ludlow/20040728_Ltr_to_LiCalsi.pdf. 405 Lisa De Moraes, ‘Kayne West’s Torrent of Criticism’, The Washington Post, 3 September 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/09/03/AR2005090300165.html

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Kayne West’s song, ‘Gold Digger’. The song features lyrics, such as ‘George Bush ain't a gold digger, but he ain't messin with no broke niggas’, and implores, ‘come down, Bush, come on, come down’ to New Orleans. The musical mash-up was first released on the FWMJ's Rappers I Know website under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 license. The work was sometimes accompanied video mash-ups, with montages from Hurricane Katrina. Andrew Long cites this song as an illustrative instance of the important social and political function of mash-ups:

Alongside their entertainment value, many mash-ups also contain potent social commentary dealing with current events. In these mash-ups, the creators piece together materials in a way that critiques a character appearing in the mash-up or some other element of society.406

One of the leading mash-up artists in Australia is Hugh Atkin, a young lawyer and a causual video artist. He has a channel on YouTube entitled, ‘The Margins of Error’. During the Federal Election in Australia, Hugh Atkin portrayed the leader of the then Opposition, Kevin Rudd, as a Chairman Mao figure, punning upon his speciality in Sinology.407 The clip was described as a ‘Chinese Propaganda Video’. The alleged translated text includes the statements, ‘Rudd impress and frighten Australian person with his earnestness offensive’, ‘He unnerve decrepit Howard by deploying clever principle of 'similar difference'’ and ‘Leader Rudd declares swift and violent Education Revolution.’’. It has been viewed 226,194 times. Atkin explained to the Sydney Morning Herald:

Video editing is just a bit of a hobby. I'd done something similar earlier this year as part of a work video for a law firm I was working for. It's definitely not an anti-Labor ad. Most of my videos have an anti-Liberal bias. Part of the point is to make fun of the Liberals' communist scare in their advertising, which is so over the top, and partly to make fun of the way Rudd has turned his campaign into such a presidential thing…

406 Andrew Long, ‘Mashed Up Videos and Broken Down Copyright: Changing Copyright to Promote the First Amendment Values of Transformative Video’ (2007) 60 Oklahoma Law Review 317 at 325. 407 Hugh Atken, ‘Chinese Propaganda Video’, YouTube, 20 October 2007, http://www.youtube.com/user/hmatkin#p/u/37/ptccZze7VxQ

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I'll be supporting Labor. I'd like to see Labor win the election, but I'd like to make fun of them in the process.408

A sequel considered the triumph of the Rudd team in the election against the Howard Government, presenting it as ‘the Long March’.409 Hugh Atken followed up with a similar clip, marking the initial six month reign of the Rudd Government.410 Strikingly, Hugh Atken’s most popular videos have dealt with United States politics – including ‘I’m F*cking Obama – Featuring Hilary Clinton’;411 ‘Changes – Presidential Candidates, Featuring the Music of David Bowie’,412 and ‘McBain for America’,413 using a minor character in the Simpsons to parody the McCain campaign. Such works have survived, no doubt due to the defence of fair use and the First Amendment, notwithstanding the use of copyright material. Nonetheless, the video artist has experienced copyright issues, with Sony sending a take-down notice in respect of his Barack Roll videos.414 The video uses a 1987 Rick Astley song ‘Never Gonna Give You Up’ and features Barack Obama ‘Rickrolling’. Atkin has reflected upon the problems with the issue:

I've received a number of copyright notifications in the past in relation to different videos. Most (if not all) of these have seemed to be spurious and have been removed by YouTube. The present notification and muting, on the other hand, is on the basis that the videos may use audio content owned or licensed by Sony

408 Mark Coultan, ‘YouTube Revolutionaries Upstage the Party Machine’, The Sydney Morning Herald, 26 October 2007, http://www.smh.com.au/articles/2007/10/25/1192941243230.html 409 Hugh Atken, ‘The Long March’, YouTube, 18 December 2007, http://www.youtube.com/user/hmatkin#p/u/22/rEVHZly21Kk 410 Hugh Atken, ‘Beneficent Rudd’, YouTube, 23 May 2008, http://www.youtube.com/watch?v=g9q6GLCWEBk 411 Hugh Atken, ‘I’m F*cking Obama – Featuring Hilary Clinton’, 1 April 2008, http://www.youtube.com/user/hmatkin#p/u/12/skIlZflDs9Y 412 Hugh Atken, ‘Changes – Presidential Candidates, Featuring the Music of David Bowie’, 17 January 2008, http://www.youtube.com/user/hmatkin#p/u/13/gEaS-K3j3M8 413 Hugh Atken, ‘McBain for America’, 21 April 2008, http://www.youtube.com/user/hmatkin#p/u/14/LYqcngB2k8Y 414 Hugh Atken, ‘Barack Roll Video’, http://www.youtube.com/watch?v=65I0HNvTDH4

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ATV Publishing, which (assuming Sony has the rights to Never Gonna Give You Up) they definitely do. I've always considered that the use constitutes a fair use for the purposes of copyright law. I'm not a specialist in intellectual property law, and certainly not the law outside of Australia. I figure that the video was probably picked up by some audio scanning software, rather than the notification being made specifically. I've made contact with YouTube, and am pretty happy at this stage to live by whatever their determination is, rather than getting involved in formal counter-notification procedures. I've got a fair amount of sympathy for Google in this regard - I understand the complex issues copyright claims give rise to and the practical difficulties in dealing with notifications on a case by case basis.415

In June 2009, Atkin filed a counter notice with YouTube disputing Sony's copyright complaint in relation to his Barack Roll videos. As of February 2010, the video remains unavailable on YouTube; but it is widely available elsewhere, such as at the College Humour site.416 Atkin has made fun of copyright owner trailers that ‘piracy is a crime’ with black comedy – the most amusing being ‘Hollywood does not like pirates… unless they are Johnny Depp’.417 His most recent work involves a mash-up called ‘Tony Soprano is a Wild Thing’, which, is of course, a combination of Where The Wild Things Are and The Sopranos.418 In addition to individual mash-up artists, such as Hugh Atkin, the Australian television broadcaster, ABC, has actively encouraged the production and the creation of political mash-ups:

Q&A wants your video satire on Australian politics. We are also looking for funny or clever user generated ‘mash-ups’ to close the show each week. When we say mash-up we mean fun, fast, political videos which integrate news and current affairs with humour and wit. Q&A mash-ups can be on any topic, we loved

415 Hugh Atkin, ‘A Muted Response’, 8 April 2009, http://hmatkin.blogspot.com/2009/04/muted- response.html 416 Hugh Atken, ‘Barack Roll'd’, College Humor, 11 August 2008, http://www.collegehumor.com/video:1826283 417 Hugh Atken, ‘Historical Piracy Ad Warning, YouTube, 19 August 2007, http://www.youtube.com/user/hmatkin#p/u/19/wdSFe0UgB3E ; Hugh Atken, ‘Piracy Ad: Choses in Action’, YouTube, 5 August 2007, http://www.youtube.com/user/hmatkin#p/u/24/is2KYGDp1Rs and Hugh Atken, ‘Piracy Ad’, YouTube, 28 July 2007, http://www.youtube.com/user/hmatkin#p/u/26/Fr-vvKOB0lk 418 Hugh Atken, ‘Tony Soprano is a Wild Thing’, YouTube, 28 January 2010, http://www.youtube.com/user/hmatkin#p/u/17/qtVsI0OFpp4

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Cyrius01's Krazy Kevin Rudd and sang along to chris compton's ‘George Bush’s chicken’. Your mash-up can reference members of the panel, like Greasy Moose's Parliament Deathmatch or an event relevant to politics, like staa's halftime kevin. It can be on something general like kieranr’s ‘Spin Cycle’. We love animations like poltoon's ‘GFC’ and clever editing like Dave Regos’ ‘Wide World of Sport’. This is a great opportunity for anyone who wants a chance to make a political comment and get their work on national television. Mash-ups should be around 1 minute in length. We have selected some footage for you to get started below, but please feel free to find additional material elsewhere and to mash-up between clips. So, what are you waiting for, mash-up now!419

The site features Tony Jones’ favorite five political mash-ups of 2009. In the Australian context, such political mash-ups could be protected as satire under the defence of fair dealing for the purposes of parody or satire. There is also a larger question of the operation of the implied freedom of political communication under the Australian Constitution.420 It should not be forgotten that one of the earliest cases involved in the development of the implied freedom of political communication was the intellectual property case of Davis v. Commonwealth.421 In the case of Grain Pool Of Western Australia v. Commonwealth, Kirby J remarked in the marginalia about how the implied freedom of communication may play a role in respect of intellectual property matters:

The protection of intellectual property rights must be afforded in a constitutional setting which upholds other values of public good in a representative democracy. In the United States the relevant head of constitutional power has been viewed as containing in-built limitations many of which are derived from the

419 ABC, ‘Mashups’, http://www.abc.net.au/tv/qanda/mashups.htm 420 Australian Capital Television Pty Ltd v. The Commonwealth of Australia (No. 2) (1992) 177 CLR 106; Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1; Theophanous v. The Herald and Weekly Times Ltd (1994) 182 CLR 104; Stephens v. West Australian Newspapers Ltd (1994) 182 CLR 211; Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520; Levy v. The State of Victoria (1997) 189 CLR 579; Brown v. Members of the Classification Review Board of the OFLC (‘the Rabelais case’) (1998) 154 ALR 67; Roberts v. Bass (2002) 194 ALR 161; Herald & Weekly Times v. Popovic [2003] VSCA 161 (21 November 2003); Coleman v. Power (2004) 201 CLR 1; APLA Ltd v. Legal Services Commissioner (NSW) [2005] HCA 44; and Evans v. State of New South Wales [2008] FCAFC 130. 421 On trade mark law and the implied freedom of political communication, see Davis v. Commonwealth (1988) 166 CLR 79.

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competing constitutional objective of public access to information: Graham v. John Deere Co 383 US 1 at 6 (1966); Feist Publications, Inc v. Rural Telephone Service Co, Inc 499 US 340 at 348 (1991). In Australia, the constitutional setting is different but the existence of competing constitutional objectives, express and implied, is undoubted. 422

In the case of Stevens v. Kabushiki Kaisha Sony Computer Entertainment, Kirby J commented that overbroad copyright legislation could raise constitutional questions:

The provisions of the Australian Constitution affording the power to make laws with respect to copyright operate in a constitutional and legal setting that normally upholds the rights of the individual to deal with his or her property as that individual thinks fit. In that setting, absent the provision of just terms, the individual is specifically entitled not to have such rights infringed by federal legislation in a way that amounts to an impermissible inhibition upon those rights constituting an acquisition. This is not the case in which to explore the limits that exist in the powers of the Australian Parliament, by legislation purporting to deal with the subject matter of copyright, to encumber the enjoyment of lawfully acquired chattel property in the supposed furtherance of the rights of copyright owners. However, limits there are.423

Thus, there has been commentary that rights provided under copyright law are subject to certain constitutional limits. There have been discussions about the need for broader, express protection of human rights in Australia. The Rudd Government commissioned a National Consultation in respect of Human Rights.424 Led by Father Frank Brennan, the National Human Rights Consultation Committee recommended that Australia adopt a federal Human Rights Act, based on a ‘dialogue’ model.425 The Committee recommended that such a piece of legislation include a comprehensive list of civil and political rights – including the ‘right to freedom of expression’. The group concluded:

422 Grain Pool Of Western Australia v. Commonwealth (2000) 46 IPR 515 423 Stevens v. Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 424 National Human Rights Consultation 2009, http://www.humanrightsconsultation.gov.au/ 425 National Human Rights Consultation Committee, National Human Rights Consultation Report, Canberra: Attorney-General’s Department, September 2009.

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An Australian Human Rights Act that is broadly consistent with the Victorian and ACT legislation could provide a resilient thread in the federal quilt of human rights protection. Debate about and consideration of this question should not be allowed to delay action to improve the quality of economic and social rights of those Australians who are most disadvantaged. The Committee finds there has been a tendency for supporters and detractors of the Victorian and ACT models to overstate the models’ achievements and their shortcomings. A Human Rights Act on its own will not mend the largest holes in the quilt of Australian rights protection, but that is no reason to oppose such an Act. An Australian Human Rights Act that recognises and fully protects the non-derogable civil and political rights and that offers a process for engagement by all three branches in government when parliament legislates to set limits on other civil and political rights could constitute a useful, cost-effective means of repairing some of the holes in Australia’s patchwork of rights protection. It would trespass on the domain of state and territory public authorities only when they were performing public functions under Commonwealth law.426

However, this proposal found little favour with the Rudd Government. In April 2010, the Rudd Government released its response, the establishment of a Human Rights Framework.427 This was focused upon human rights education and human rights protection through parliamentary scrutiny. As such, it would provide little help as an interpretative aid in terms of thinking about copyright law and political mash-ups.

Recommendation 31. It would be useful to explore constitutional arguments in respect of copyright law and freedom of political expression, both in future litigation and policy discussions.

426 Ibid. 427 Human Rights Framework, http://www.ag.gov.au/humanrightsframework

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CONCLUSION

As this discussion highlights, there are a multitude of law reform options available to address the situation of mash-up artists. Individually, such options might only make a marginal difference to the position of mash-up and remix artists. There have been efforts to put forward integrated packages of law reform for mash-up and remix artists. Brett Gaylor’s documentary promotes, amongst other things, a ‘Remix Manifesto’.428 In his book, Remix, Lawrence Lessig provides a sketch of five reforms to copyright law – including deregulating amateur copyright; clear title; simplify copyright law; and decriminalize copying and peer to peer network file-sharing.429 He draws a distinction between amateur remixes and professional mash-ups:

With this matrix then, we can now see at least one clear example of where culture should be deregulated – amateur remix. There is no good reason for copyright law to regulate this creativity. There is plenty of reason – both costs and creative – for it to leave that bit free. At a minimum, Congress should exempt this class of creative work from the requirements of clearing rights to create... Professional remix, and amateur distribution, are more complicated cases. There should be a broad swath of freedom for professionals to remix existing copyrighted work; there’s little reason to worry much about amateur or non-commercial distribution of creative work – at least if the compensation plan described below is adopted. These categories could thus also be deregulated partially. But neither should be deregulated to the extent that amateur remix should.430

Lessig contends: ‘Together [these five shifts in the law] would go a long way toward making the system make more sense of the creative potential of digital technologies’. 431 Public Knowledge and the Samuelson Law, Technology and Public Policy Clinic have drafted a model Copyright

428 Brett Gaylor, RiP!: A Remix Manifesto, Eyesteel Film and the National Film Board of Canada, 2009, http://nfb.ca/hd/rip_a_remix_manifesto/ 429 Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy. New York: Penguin Books, 2008, 253-273. 430 Ibid., 255. 431 Ibid., 253.

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Reform Act.432 This blueprint brings together fair use reform; updating copyright exceptions; reforms to the Digital Millennium Copyright Act 1998 (US); copyright abuse and notice; and musical licensing provisions. A similar comprehensive package of progressive law reforms could be developed in the Australian context. There is also a lot of scope for organising popular support for reforms to copyright law promoting remixing and mash-ups. As can be seen in the recent YouTube documentary, Walking on Eggshells, personal testimony by mash-up artists and remixers is an incredibly effectively tool in both highlighting legal problems and promoting the need for law reform.433

432 Pam Lee, Daniel Park, Allen Wang, and Jennifer Urban, Copyright Reform Act, 13 February 2010, http://www.publicknowledge.org/pdf/cra-introduction-02132010.pdf 433 Jacob Albert, Ryan Beauchamp, and Brendan Schlagel, ‘Walking on Eggshells: Borrowing Culture in the Remix Age’, Yale Law School, 12 May 2010 http://www.youtube.com/watch?v=Jt0ASo_6Sdg&feature=PlayList&p=6DE7C8C33450E9CC&playnext_from=PL &index=0&playnext=7

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BIBLIOGRAPHY

Books and Articles

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Achenbach, Kenneth M. ‘Grey Area: How Recent Developments in Digital Music Production Have Necessitated the Reexamination of Compulsory Licensing for Sample-Based Works’ (2004) 6 North Carolina Journal of Law and Technology 187.

Adeney, Elizabeth, The Moral Rights of Authors and Performers, Oxford: Oxford University Press, 2006.

Albert, Jacob, Ryan Beauchamp, and Brendan Schlagel, ‘Walking on Eggshells: Borrowing Culture in the Remix Age’, Yale Law School, 12 May 2010 http://www.youtube.com/watch?v=Jt0ASo_6Sdg&feature=PlayList&p=6DE7C8C33450E9CC&playnext_from=PL &index=0&playnext=7

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Atken, Hugh, ‘The Long March’, YouTube, 18 December 2007, http://www.youtube.com/user/hmatkin#p/u/22/rEVHZly21Kk

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Atken, Hugh, ‘Changes – Presidential Candidates, Featuring the Music of David Bowie’, 17 January 2008, http://www.youtube.com/user/hmatkin#p/u/13/gEaS-K3j3M8

Atken, Hugh, ‘I’m F*cking Obama – Featuring Hilary Clinton’, 1 April 2008, http://www.youtube.com/user/hmatkin#p/u/12/skIlZflDs9Y

Atken, Hugh, ‘McBain for America’, 21 April 2008, http://www.youtube.com/user/hmatkin#p/u/14/LYqcngB2k8Y

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Aufderheide, Pat and Peter Jaszi, ‘Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video’, American University Center for Social Media, January 2008.

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Brown, Glenn Otis, ‘Recombo Brazil’, Creative Commons, 4 June 2004, http://creativecommons.org/weblog/entry/4234

Buskirk, Martha, ‘Creative Intent: The Recent Fortunes of Appropriation in the United States’ in Daniel McClean (ed), The Trials of Art. London: Ridinghouse, 2007, 248-9.

The Chilling Effects Clearinghouse FAQ, http://www.chillingeffects.org/faq.cgi

CNN / Cable News Network LP, LLLP, ‘Re: Notice of Intellectual Property Infringement’, 26 March 2006, http://www.chillingeffects.org/fairuse/notice.cgi?NoticeID=3810&print=yes

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Coultan, Mark, ‘YouTube Revolutionaries Upstage the Party Machine’, The Sydney Morning Herald, 26 October 2007, http://www.smh.com.au/articles/2007/10/25/1192941243230.html

131 Copyright Law and Mash-Ups

Cowan, Liebowitz & Latman, P.C. ‘Re: The Grey Album and Misappropriation of Capitol Records, Inc.'s Sound Recordings’, 23 February 2004, http://www.chillingeffects.org/piracy/notice.cgi?NoticeID=1142

The Creative Commons, ‘Some Rights Reserved: Building a Layer of Reasonable Copyright’, http://creativecommons.org/about/history

The Creative Commons Legal Concepts, http://creativecommons.org/about/legal

Cunningham, Michael, The Hours, New York: Farrar, Straus and Giroux, 1998.

De Moraes, Lisa, ‘Kayne West’s Torrent of Criticism’, The Washington Post, 3 September 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/09/03/AR2005090300165.html

Demers, Joanna, Steal This Music: How Intellectual Property Law Affects Musical Creativity, Athens and London: The University of Georgia Press, 2006.

Dibbell, Julian, ‘We Pledge Allegiance to the Penguin’, Wired Magazine, November 2004, http://www.wired.com/wired/archive/12.11/linux.html

DJ Danger Mouse, www.djdangermouse.com.

Donovan, Patrick, ‘Variety is the splice of life’, The Age, 8 January 2010, http://www.theage.com.au/articles/2010/01/07/1262453637393.html

Eckersley, Peter, 'Virtual Markets for Virtual Goods: The Mirror Image of Digital Copyright?' (2004) 18 (1) Harvard Journal of Law and Technology 85–166.

The Electronic Frontier Foundation, http://www.eff.org/ and http://www.eff.org/about

Electronic Frontier Foundation, ‘Re JibJab Media Inc and Ludlow Music Inc’, 2004, http://www.eff.org/legal/cases/JibJab_v_Ludlow/20040728_Ltr_to_LiCalsi.pdf.

Elkin-Koren, Niva, ‘Copyright and its Limits in the Age of User-generated Content’, in Eva Hemmungs Wirtén and Maria Ryman (eds). Mashing-up Culture: the Rise of User-Generated Content. Proceedings from the COUNTER workshop Mashing-up Culture, Uppsala University, May 13-14, 2009.

132 Copyright Law and Mash-Ups

Elman, Victoria, ‘Girl Talk on Trial: Could Fair Use Prevail?’, (2009) Cardozo Law Review De Novo 149.

‘Endless Love’, http://politicalhumor.about.com/cs/bushmultimedia/v/blendlesslove.htm

European Commission, Copyright in the Knowledge Economy, 2008, http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/greenpaper_en.pdf

Fielding, Henry, Shamela. [Full title - An Apology for the Life of Mrs. Shamela Andrews. In which, the many notorious Falshoods and Misrepresentations of a Book called Pamela, Are exposed and refuted; and all the matchless Arts of that young Politician, set in a true and just Light. Together with A full Account of all that passed between her and Parson Arthur Williams; whose Character is represented in a manner something different from that which he bears in Pamela. The whole being exact Copies of authentick Papers delivered to the Editor. Necessary to be had in all Families.], republished on Google Books, 1741.

Fisher, William, Promises To Keep: Technology, Law, And The Future of Entertainment. Stanford: Stanford University Press, 2004.

Franzen, Benjamin and Kembrew McLeod, Copyright Criminals, IndiePix Films, 2010, http://www.copyrightcriminals.com/

Gaylor, Brett, RiP!: A Remix Manifesto, Eyesteel Film and the National Film Board of Canada, 2009, http://nfb.ca/hd/rip_a_remix_manifesto/

Geist, Michael, ‘Angus Shakes Up Copyright Landscape’, 22 March 2010, http://www.michaelgeist.ca/content/view/4893/135/

Gervais, Daniel, 'The Price of Social Norms: Towards a Liability Regime for File-Sharing' (2004) 12:1 Journal of Intellectual Property Law 39-73.

Goetz, Thomas, 'Sample the Future', (2004) 12 (11) Wired, http://www.wired.com/wired/archive/12.11/sample.html

The Government 2.0 Taskforce, Engage: Getting on with Government 2.0, the Department of Finance and Deregulation, 22 December 2009, http://www.finance.gov.au/publications/gov20taskforcereport/index.html

133 Copyright Law and Mash-Ups

Gowers, Andrew, The Gowers Review of Intellectual Property, December 2006, http://www.mileproject.eu/asset_arena/document/TY/GOWERS_REVIEW_OF_INTELLECTUAL_PROPERTY.P DF

Grahame-Smith, Seth, Abraham Lincoln Vampire Hunter, Sydney: Allen & Unwin, 2010.

Grey Tuesday, http://www.greytuesday.org

Griffiths, Jonathan, and Uma Suthersanen (eds), Copyright and Free Speech: Comparative and International Analyses, Oxford University Press, Oxford, 2005.

Grobelny, Joseph, 'Mash-ups, Sampling, and Authorship: A Mash-upsampliography' (2008) 11 (3) Music Reference Services Quarterly 229-239.

Hertz, Kenneth, ‘Re: JibJab Media/ Unauthorized Use of ‘This Land is Your Land’, Sonnenschein, Nath and Rosenthal LLP, 2004, http://www.eff.org/legal/cases/JibJab_v_Ludlow/20040727_jibjabthreat.pdf

Hockensmith, Steve, Dawn of the Dreadfuls, Philadelphia PA: Quirk Productions, 2010.

Howard-Spink, Sam, 'Grey Tuesday, Online Cultural Activism and the Mash-Up of Music and Politics' (2004) 9 (10) First Monday, http://www.firstmonday.org/issues/issue9_10/howard/index.html

Human Rights Framework, http://www.ag.gov.au/humanrightsframework

‘I Drink Your Milkshake!!!’, http://www.youtube.com/watch?v=8hXJMFW25nY&feature=fvw

IFPI, ‘DMCA Copyright Complaint to Google’, 12 January 2010, http://www.chillingeffects.org/dmca512c/notice.cgi?NoticeID=32202

IFPI, ‘DMCA (Copyright) Complaint to Google’, 10 April 2010, http://www.chillingeffects.org/dmca512c/notice.cgi?NoticeID=37613

Italie, Hillel, ‘AP alleges copyright infringement of Obama image’, Associated Press, 4 February 2009.

Jones, Lloyd, Mister Pip, Melbourne: The Text Publishing Company, 2006.

134 Copyright Law and Mash-Ups

Kaplicer, Brett, 'Rap Music and De Minimis Copying: Applying the Ringgold and Sandoval Approach to Digital Samples' (2000) 18 (1) Cardozo Arts and Entertainment Law Journal 227

Kim, Steven, ‘Taking De Minimis out of the Mix: The Sixth Circuit Threatens to Pull the Plug on Digital Sampling in Bridgeport Music Inc. v Dimension Films’ (2006) 13 Villanova Sports and Entertainment Law Journal 103.

Kirschling, Gregory, ‘Shake, Shake, Shake’, Entertainment Weekly, 8 February 2008, http://www.ew.com/ew/article/0,,20176759,00.html

Kishor, Puneet, ‘Public Policy: Mashing-Up Law and Policy’, in Eva Hemmungs Wirtén and Maria Ryman (eds). Mashing-up Culture: the Rise of User-Generated Content. Proceedings from the COUNTER workshop Mashing-up Culture, Uppsala University, May 13-14, 2009, 127-8.

Kravis, Randy S., ‘Does a Song by Any Other Name Still Sound as Sweet?: Digital Sampling and Its Copyright Implications’ (1993) 43 American University Law Review 231.

Koonz, Kevin, ‘There Will Be Milkshakes’, http://www.youtube.com/watch?v=MCCdZmHk5Fk

Kreisinger, Elisa, ‘Remix, Rights, and Removal’, 24 September 2009, http://www.publicknowledge.org/node/2663

Ku, Raymond, 'The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology' (2002) 69 University of Chicago Law Review 263.

Kwall, Roberta Rosenthal, The Soul of Creativity: Forging a Moral Rights Law for the United States, Stanford: Stanford University Press, 2010.

Lee, Pam, Daniel Park, Allen Wang, and Jennifer Urban, Copyright Reform Act, 13 February 2010, http://www.publicknowledge.org/pdf/cra-introduction-02132010.pdf

Lessig, Lawrence, Free Culture: How Big Media Uses Technology And Law To Lockdown Culture And Control Creativity. New York: Penguin Books, 2004.

Lessig, Lawrence, ‘CC in Review’, The Creative Commons, http://creativecommons.org/weblog/entry/5661, 5 October 2005.

135 Copyright Law and Mash-Ups

Lessig, Lawrence, ‘On the Texas Suit Against Virgin and Creative Commons’, 22 September 2007, http://lessig.org/blog/2007/09/on_the_texas_suit_against_virg.html

Lessig, Lawrence, Remix: Making Art and Commerce Thrive in the Hybrid Economy. New York: Penguin Books, 2008.

Library of Congress, ‘Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies’ (2010) 75 (143) Federal Register 43825, 27 July 2010, http://www.copyright.gov/fedreg/2010/75fr43825.pdf

Linksvayer, Mike, ‘Lawsuit against Virgin Mobile and Creative Commons’, 27 September 2007, http://creativecommons.org/weblog/entry/7680

Litman, Jessica, 'Sharing and Stealing' (2004) 27 Hastings Law Communications and Entertainment Law Journal, 1.

Long, Andrew, ‘Mashed Up Videos and Broken Down Copyright: Changing Copyright to Promote the First Amendment Values of Transformative Video’ (2007), 60 Oklahoma Law Review 317.

Mackintosh, Hamish, ‘Talk Time: Jeff Tweedy’, The Guardian, 5 May 2005, http://technology.guardian.co.uk/online/story/0,3605,1476170,00.html

McCausland, Sally, ‘Protecting ‘A Fine Tradition of Satire’: The New Fair Dealing Exception for Parody or Satire in The Australian Copyright Act’ (2007), 29 (7) European Intellectual Property Review 287-292

McClean, Daniel (ed), The Trials of Art. London: Ridinghouse, 2007.

McLeod, Kembrew, Freedom of Expression®: Overzealous Copyright Bozos and other Enemies of Creativity, Doubleday, New York, 2005.

McLeod, Kembrew, ‘Confessions of an Intellectual (Property) Academic: Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist’ (2005) 28 (1) Popular Music and Society 79–93.

McSherry, Corynne, ‘Everyone Who’s Made a Hitler Parody Video Leave The Room’, Electronic Frontier Foundation, 20 April 2010, http://www.eff.org/deeplinks/2010/04/everyone-who-s-made-hitler-parody-leave-room

136 Copyright Law and Mash-Ups

Malouf, David, Ransom, Sydney: Random House Australia, 2009.

Mashup Australia, http://mashupaustralia.org/about/

Mazziotti, Giuseppe, EU Digital Copyright Law and the End User, Berlin: Springer, 2008.

Merges, Robert, 'Locke Remixed ; - )' (2007) 40 The University of California Davis Law Review 101-115.

Middleton, Alex, ‘Girl Talk on Trial: Could Fair Use Prevail?’, (2009) Cardozo Law Review De Novo 149 at 163.

Mixter site, http://ccmixter.org/

Mongillo, David, ‘The Girl Talk Dilemma: Can Copyright Law Accommodate New Forms of Sample-Based Music?’, (2009) 10 The University of Pittsburgh Journal of Technology Law and Policy 3.

Mueller, Janice, ‘All Mixed Up: Bridgeport Music v Dimension Films and de Minimis Digital Sampling’ (2006) 81 Indiana Law Journal 435.

National Human Rights Consultation 2009, http://www.humanrightsconsultation.gov.au/

National Human Rights Consultation Committee, National Human Rights Consultation Report, Canberra: Attorney- General’s Department, September 2009.

Netanel, Neil Weinstock, 'Impose A Noncommercial Use Levy To Allow Free Peer-to-Peer File Sharing', (2003) 17 (1) Harvard Journal Of Law And Technology 1.

Netanel, Neil Weinstock, Copyright’s Paradox, Oxford: Oxford University Press, 2008.

O'Brien, Damien, and Brian Fitzgerald, ‘Mash-ups, Remixes and Copyright Law’ (2006) 9 (2) Internet Law Bulletin 17-19.

The Organization for Transformative Works, http://transformativeworks.org/about

137 Copyright Law and Mash-Ups

Palfrey, John, and Urs Gasser, ‘Case Study: Mashups Interoperability and eInnovation’, Berkman Publication Series, The Berkman Center for Internet & Society, Harvard University, 2007, http://cyber.law.harvard.edu/interop/pdfs/interop-mashups.pdf.

Pfaffenberger, Bryan, ‘Why Open Content Matters’, Linux Journal, 11 April 2001, http://www.linuxjournal.com/article/4709

Pote, Michael Allyn, ‘Mashed-Up In Between: The Delicate Balance of Artists’ Interests Lost Amidst the War on Copyright’ (2010) 88 North Carolina Law Review 639.

Power, Aaron, ‘15 Megabytes of Fame: A Fair Use Defense for Mash- Ups as DJ Culture Reaches it Postmodern Limit’, (2007) 35 Southerwestern University Law Review 577.

Public Knowledge, http://www.publicknowledge.org/

Public Knowledge, ‘Public Knowledge Announces First Annual World Fair Use Day’, 9 December 2009, http://www.publicknowledge.org/node/2806

Reuters, ‘DJ Mixes Beatles, Jay-Z Into Grey’, CNN, 19 February 2004, http://edition.cnn.com/2004/SHOWBIZ/Music/02/19/leisure.grey.album.reut

Reynolds, Graham, ‘A Stroke of Genius or Copyright Infringement?’, IP Osgoode, 24 August 2009, http://www.iposgoode.ca/2009/08/a-stroke-of-genius-or-copyright-infringement-mash-ups-copyright-and-moral- rights-in-canada/

Rezaie, Shervin, ‘Play Your Part: Girl Talk’s Indefinite Role in the Digital Sampling Role’ (2010), 26 Touro Law Review 175.

Rhys, Jean, The Wide Sargasso Sea, New York: WW Norton and Co, 1966.

Rosenblum, Emma, ‘The Director of Downfall Speaks Out on All Those Angry YouTube Hitlers’, The New Yorker Magazine, 15 January 2010, http://nymag.com/daily/entertainment/2010/01/the_director_of_downfall_on_al.html.

138 Copyright Law and Mash-Ups

Sainsbury, Maree, Moral Rights And Their Application In Australia, Sydney: Federation Press, 2003; and

Sainsbury, Maree, ‘Parody, Satire and Copyright Infringement: The Latest Addition to Australian Fair Dealing Law’, (2007) 12 (3) Media and Arts Law Review 292-319.

Sainsbury, Maree, ‘Parody, Satire, Honour And Reputation: The Interrelationship Of The Defence Of Fair Dealing for the Purposes of Parody And Satire And The Authors Moral Rights’ (2007) 18 (3) Australian Intellectual Property Journal 149- 166.

Samuelson, Pamela, ‘Mapping the Digital Public Domain: Threats and Opportunities’ (2003) 66 Law and Contemporary Problems 147.

Samuelson, Pamela, ‘Enriching Discourse on Public Domain’ (2006) 55 Duke Law Journal 783-834.

Samuelson, Pamela, ‘Unbundling Fair Uses’, (2009) 77 Fordham Law Review 2537.

Seltzer, Wendy, ‘Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment’ (2010) Berkman Center Research Publication No. 2010-3, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577785

Siegler, MG, ‘Hitler is Very Upset That Constantin Film Are Taking Down Hitler Parodies’, Tech Crunch, 19 April 2010, http://techcrunch.com/2010/04/19/hitler-parody-takedown/

Sinclair, Upton, Oil!, Melbourne: Penguin Books, 1926, reprinted, 2008.

Sony/ATV, ‘Notice of Willful Copyright Infringement’, 17 February 2005, http://www.chillingeffects.org/derivative/notice.cgi?NoticeID=1805

Sony ATV/ Music Publishing, ‘Re: Notice of Willful Copyright Infringement (Beatallica.org)’, 17 February 2005, http://www.chillingeffects.org/fairuse/notice.cgi?NoticeID=1683

Smith, Nicole Rizzo ‘Postal Service Prevails in Copyright Battle over Korean War Commemorative Stamp’, Sunstein Law, February 2009, http://www.sunsteinlaw.com/publications-news/news- letters/2009/02/200902_RizzoSmithrev.html

139 Copyright Law and Mash-Ups

Somoano, M. Leah, ‘Bridgeport Music Inc. v Dimension Films: Has Unlicensed Digital Sampling of Copyrighted Sound Recordings Come to an End?’ (2006) 21 Berkeley Technology Law Journal 289

Staff Writer, ‘Nirvana + Lady Gaga = NirGaga: Love it or Hate it?’, Wall Street Journal Blog, 30 December 2009, http://blogs.wsj.com/speakeasy/2009/12/30/nirvana-lady-gaga-nirgaga-love-it-or-hate-it/tab/article/

Staff Writer, ‘EMI Apparently Forgets the Grey Album Disaster; Issues of Takedown of WuTang vs. Beatles’, Techdirt, 15 February 2010, http://techdirt.com/articles/20100215/1235058169.shtml

The Stanford Center for Internet and Society, ‘The Fair Use Project’, http://cyberlaw.stanford.edu/node/5979

Stone, Victor, ‘The Metaphysician’, Creative Commons, 30 April 2004, http://creativecommons.org/weblog/archive/2004/04

Takedown Hall of Shame, http://www.eff.org/takedowns

Thompson, Kristin and David Bordwell, ‘Observations on Film Art’, http://www.davidbordwell.net/blog/?p=1959

Timpson, Ant, ‘Apocalypse Pooh and the Birth of the Video Mash-up’, Movie City News, 10 February 2010, http://www.moviecitynews.com/voices/2010/100210_toddgraham.html

Tofts, Darren and Christian McCrea, ‘What Now? : The Imprecise and Disagreeable Aesthetics of Remix’, (2009) 15 Fibreculture http://www.journal.fibreculture.org/issue15/index_print.html

Tolstoy, Leo and Ben H. Winters, Android Karenina, Philadelphia PA: Quirk Productions, 2010.

Trevisanut, Amanda, ‘Digital Intervention: Remixes, Mash-ups and Pixel Pirates’, Refractory, 25 June 2009, http://blogs.arts.unimelb.edu.au/refractory/category/browse-by-media/comics/

United Kingdom Government, ‘UK Government Response to European Commission’s Green Paper – Copyright in the Knowledge Economy’, December 2008, http://www.ipo.gov.uk/c-eupaper.pdf von Lohmann, Fred, ‘EMI Attacks NirGaga Mashup’, Electronic Frontier Foundation, 13 January 2010, http://www.eff.org/deeplinks/2010/01/emi-attacks-nirgaga-mashup

140 Copyright Law and Mash-Ups

Watercutter, Angela, ‘The 2007 Rave Awards’ (2007) 4 Wired Magazine http://www.wired.com/culture/lifestyle/multimedia/2007/04/ss_raves?slide=10

Weinman, Jaime, ‘The Rise of the YouTube Auteur’, MacCleans.ca, 13 August 2007, http://www.macleans.ca/culture/entertainment/article.jsp?content=20070813_108151_108151&page=1

Wikipedia, http://en.wikipedia.org/wiki/Mashup_(music), accessed 26 May 2010.

Wirtén, Eva Hemmungs and Maria Ryman (eds). Mashing-up Culture: the Rise of User-Generated Content. Proceedings from the COUNTER workshop Mashing-up Culture, Uppsala University, May 13-14, 2009.

Wizard of Oz Money: http://www.youtube.com/watch?v=H_pgcapIisc

Wu, Timothy, ‘Tolerated Use’ (2007/2008) 31 Columbia Journal of Law and Arts 617.

Yu, Peter, 'P2P and the Future of Private Copying' (2005) 76 University of Colorado Law Review 653.

Cases

APLA Ltd v. Legal Services Commissioner (NSW) [2005] HCA 44.

Australian Capital Television Pty Ltd v The Commonwealth of Australia (No. 2) (1992) 177 CLR 106.

Blanch v Koons 467 F.3d 244 (2006); 485 F.Supp.2d 516 (2007).

Bridgeport Music Inc. v. Dimension Films Inc. 230 F Supp 2nd 830 (2002).

Bridgeport Music Inc. v. Dimension Films Inc. 410 F.3d 792 (6th Cir. 2005).

Brown v. Members of the Classification Review Board of the OFLC (‘the Rabelais case’) (1998) 154 ALR 67.

Campbell v. Koons WL 97381 S.D.N.Y. (1993).

141 Copyright Law and Mash-Ups

Chang v. Virgin Mobile USA, LLC, 2009 WL 111570 (N.D.Tex. January 16, 2009).

Coleman v. Power (2004) 201 CLR 1

Commonwealth Director of Public Prosecutions v. Ng, Tran and Le (unreported, Sydney Central Local Court, Henson DCM, 18 November 2003).

Confetti Records v. Warner Music [2003] EMLR 35.

Davis v. Commonwealth (1988) 166 CLR 79.

Dr Seuss Enterprises v. Penguin Books USA, 109 F 3d 1394 (9th Cir, 1997) eBay Inc. v. MercExchange LLC 547 U.S. 388 (2006).

Evans v. State of New South Wales [2008] FCAFC 130.

Fairey v. Associated Press 09-01123 (AKH) United States District Court for the Southern District of New York (2009) http://cyberlaw.stanford.edu/biguploads/Fairey_v_AP_complaint_with_exhibits.pdf

Feist Publications, Inc v. Rural Telephone Service Co, Inc 499 US 340 (1991).

Folsom v. Marsh 9 F.Cas. 342 (1841).

Gaylord v. The United States 85 Fed. Cl. 59 (2008) (the ‘Column’ case)

Gaylord v. The United States 595 F.3d 1364 (2010) (the ‘Column’ case)

Graham v. John Deere Co 383 US 1 (1966).

Grain Pool Of Western Australia v. Commonwealth (2000) 46 IPR 515

Herald & Weekly Times v. Popovic [2003] VSCA 161 (21 November 2003).

142 Copyright Law and Mash-Ups

Hoepker v. Kruger 200 F. Supp. 2d 340 (2002)

IceTV Pty Ltd v. Nine Network Australia Pty Ltd [2009] HCA 14; (2009) 254 ALR 386

J. Emily Somma v. Great Ormond Street Hospital Civil Case No. 02-5889 EMC, United States District Court for the Northern District of California, (2003)

JibJab v. Ludlow Music Inc (2004), http://www.eff.org/legal/cases/JibJab_v_Ludlow/20040729_JibJab_Complaint.pdf;

Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520

Larrikin Music Publishing Pty Ltd v. EMI Songs Australia Pty Limited [2010] FCA 29 (4 February 2010)

The Law Society of Upper Canada v. CCH Canadian Limited (2004) SCC 13.

Lenz v. Universal Music Slip Copy, 2008 WL 962102, 2008 Copr.L.Dec. P 29,540, N.D.Cal., April 08, 2008 (NO. C 07-03783 FJ).

Lenz v. Universal Music 2009_WL_3573990_2-3-10_2203.

Lenz v. Universal Music 2010 http://thepriorart.typepad.com/the_prior_art/files/Lenz.2.25.order.pdf.

Levy v. The State of Victoria (1997) 189 CLR 579.

Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 2007 Copr.L.Dec. P 29,476, 84 U.S.P.Q.2d 1969, C.A.4 (Va.), November 13, 2007 (NO. 06-2267)

Massachusetts Museum of Contemporary Art Foundation Inc. v. Buchel 2010 WL 297834 C.A. 1 (Mass).

Mastercard v. Nader, 2004 WL 434404 (S.D.N.Y. 2004).

Mattel Inc v. Walking Mountain Productions 353 F. 3d 792 (2004).

Meskenas v. ACP Publishing Pty Ltd [2006] FMCA 1136 (14 August 2006).

143 Copyright Law and Mash-Ups

Metall auf Metall (Kraftwerk, et al. v. Moses Pelham, et al.), Decision of the German Federal Supreme Court no. I ZR 112/06, dated November 20, 2008 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1504982

Morrison Leahy Music Limited v. Lightbond Limited (Unreported, UK High Court, 21 March 1991).

Nationwide News Pty Ltd v. Wills (1992) 177 CLR 1.

Network Ten Pty Ltd v. TCN Channel Nine Pty Ltd (2004) 59 IPR 1.

Newton v. Diamond 204 F. Supp. 2d 1244 (2002).

Newton v. Diamond 388 F.3d 1189 (9th Cir. 2004).

Newton v. Diamond 125 S.Ct. 2905 (2005).

Roadshow Films Pty Ltd v. iiNet Limited (No. 3) [2010] FCA 24 (4 February 2010).

Roberts v. Bass (2002) 194 ALR 161.

Rogers v. Koons 960 F. 2nd 301 (1992).

Salinger v. Colting 641 F.Supp.2d 250 S.D.N.Y.,2009.

Salinger v. Colting 2010 WL 1729126 (C.A.2 (N.Y.)).

Satriani v. Christopher Martin and co CV08-07987 (2008), United States District Court for the Central District of California, http://kierenmccarthy.com/2008/12/10/satriani-vs-coldplay-court-docs-and-audio-links/ (Settled)

Sawkins v. Hyperion Records Ltd [2005] EWCA Civ 565

Schott Musik International GmbH & Co v. Colossal Records Of Australia Pty Ltd (1997) 75 FCR 321.

Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2010 FCA 123 (CanLII).

144 Copyright Law and Mash-Ups

Stephens v. West Australian Newspapers Ltd (1994) 182 CLR 211.

Stevens v. Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58.

Suntrust Bank v. Houghton Mifflin Company, 268 F 3d 1257 (11th Cir, 2001) (‘Gone with the Wind’ case).

TCN Channel Nine v. Network Ten (2001) 108 FCR 235.

TCN Channel Nine Pty Ltd v. Network Ten (2002) 118 FCR 417.

Theophanous v. The Herald and Weekly Times Ltd (1994) 182 CLR 104.

Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336.

United Feature Syndicate, Inc. v. Koons 817 F.Supp. 370 S.D.N.Y. (1993).

Universal Music Australia Pty Ltd v. Miyamoto [2003] FCA 812 (18 July 2003).

Universal Music Australia Pty Ltd v. Miyamoto [2004] FCA 982 (20 July 2004).

Viacom International v. YouTube 2010 WL 2532404 (S.D.N.Y. 2010).

Walt Disney Productions v. Air Pirates, 581 F 2d 751 (9th Cir, 1978).

Warner Bros and JK Rowling v. RDR Books 575 F.Supp.2d 513 (2008) (the ‘Harry Potter Lexicon’ case).

Amicus Curiae Briefs Brief of Amici Curiae, including the American Library Association, Association of College and Research Libraries, Association of College and Research Libraries, The Organization for Transformative Works, and The Right to Write Fund in Support of Defendants in Salinger v. Colting 2010 WL 1729126 (C.A.2 (N.Y.)).

Amicus Brief of Amici Curiae, including the American Library Association, Association of College and Research Libraries, Association of Research Libraries, Center for Democracy and Technology, Computer and Communications Industry Association, Electronic Frontier Foundation, Home Recording Rights Coalition, Internet Archive, Netcoalition, and Public Knowledge in Viacom International Inc. v. YouTube 07 Civ. 2103 (LLS) (2010)

145 Copyright Law and Mash-Ups

Amicus Brief of Amici Curiae, including The Andy Warhol Foundation for the Visual Arts Inc., The Andy Warhol Museum, Thomas Lawson, Barbara Kruger, Jonathan Monk, Allen Ruppersberg and Eleven Professors of Law in Support of the Defendant in Gaylord v. United States 595 F.3d 1364, http://cyberlaw.stanford.edu/system/files/Gaylord%20v%20US%20Amici%20brief%20%28filed%29.pdf

Amicus Brief of Meet the Composer and others in Newton v. Diamond, 2005 WL 1170246, 10.

Electronic Frontier Foundation, ‘In the matter of exemption to prohibition on circumvention of copyright protection systems for access control technologies’, United States Copyright Office, Library of Congress, Docket No. RM 2008-08, 2 December 2008, http://transformativeworks.org/projects/eff-comment

‘Joint Supporters Response To August 21 Supplemental Questions On Proposed DVD-Related DMCA Exemptions’, 8 September 2009, http://transformativeworks.org/joint-supporters-response-august-21-supplemental- questions-proposed-dvd-related-dmca-exemptions

Newton, ‘Appellate Petition, Motion and Filing in Newton v. Diamond’, 2005 WL 585205.

The Organization for Transformative Works, ‘Reply Comment in Support of the Exemption Proposal by the Electronic Frontier Foundation’, 2 February 2009, http://transformativeworks.org/projects/reply-comment

The Organization for Transformative Works and Electronic Frontier Foundation, ‘Response To August 21 Supplemental Questions, Specific To Noncommercial Video Remix Creators’, 8 September 2009, http://transformativeworks.org/otw-eff-response-august-21-supplemental-questions-specific-noncommercial-video- remix-creators

Legislation

146 Copyright Law and Mash-Ups

Digital Economy Act 2010 (UK)

147 Copyright Law and Mash-Ups

ABOUT THE AUTHOR

Dr Matthew Rimmer is a senior lecturer at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University. Rimmer received a PhD in law from the University of New South Wales for his dissertation on The Pirate Bazaar: The Social Life of Copyright Law. He is a member of the ANU Climate Change Institute, and a director of the Australian Digital Alliance. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, clean technologies, and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works. Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod (Edward Elgar, 2007). With a focus on recent US copyright law, the book charts the consumer rebellion against the Sonny Bono Copyright Term Extension Act 1998 (US) and the Digital Millennium Copyright Act 1998 (US). Rimmer explores the significance of key judicial rulings and considers legal controversies over new technologies, such as the iPod, TiVo, Sony Playstation II, Google Book Search, and peer-to-peer networks. The book also highlights cultural developments, such as the emergence of digital sampling and mash-ups, the construction of the BBC Creative Archive, and the evolution of the Creative Commons. Rimmer has also participated in a number of policy debates over Film Directors' copyright, the Australia-United States Free Trade Agreement 2004, and the Copyright Amendment Act 2006 (Cth). Rimmer is the author of Intellectual Property and Biotechnology: Biological Inventions (Edward Elgar, 2008). This book documents and evaluates the dramatic expansion of intellectual property law to accommodate various forms of biotechnology from micro-organisms, plants, and animals to human genes and stem cells. It makes a unique theoretical contribution to the controversial public debate over the commercialisation of biological inventions. Rimmer also edited the thematic issue of Law in Context, entitled Patent Law and Biological Inventions (Federation Press, 2006). Rimmer was also a chief investigator in an Australian Research Council Discovery Project, ‘Gene Patents In Australia: Options For Reform’ (2003-2005), and

148 Copyright Law and Mash-Ups

an Australian Research Council Linkage Grant, ‘The Protection of Botanical Inventions (2003). He is currently a chief investigator in an Australian Research Council Discovery Project, ‘Promoting Plant Innovation in Australia’ (2009-2011). Rimmer has participated in inquiries into plant breeders' rights, gene patents, and access to genetic resources. Rimmer is a co-editor of a collection on access to medicines entitled Incentives for Global Public Health: Patent Law and Access to Essential Medicines, with Professor Kim Rubenstein and Professor Thomas Pogge. The work considers the intersection between international law, public law, and intellectual property law, and highlights a number of new policy alternatives – such as medical innovation prizes, the Health Impact Fund, patent pools, open source drug discovery, and the philanthropic work of the (RED) Campaign, the Gates Foundation, and the Clinton Foundation. The collection is due to be published by Cambridge University Press in 2009. Rimmer is currently working on a monograph on intellectual property and clean technologies due to be published by Edward Elgar in 2010.

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