Volume 6, Issue 3, August 2009 A Stroke of Genius or Copyright Infringement? Mashups and Copyright in Canada * Graham Reynolds Abstract Mashups, songs created by combining pieces of two or more pre-existing sound recordings into one new sound recording, allow anyone with access to a computer and sound editing software to engage with and participate in the (re)creation of culture. Among other purposes, mashups allow individuals to critique artists, to make satirical statements on the nature of pop music or the music industry, to make new works out of existing cultural expression, and to craft homages to favourite artists or works. This article examines the extent to which mashups are permitted by copyright law in Canada. It is structured as follows. First, it will provide an introduction to mashups, defining the term and discussing the popular emergence of mashups. Second, it will examine whether mashups prima facie infringe copyright in Canada. Third, it will look at whether mashups are protected by the fair dealing defence. This article will demonstrate that many mashups created and disseminated in Canada prima facie infringe copyright. Furthermore, a large number of mashups that prima facie infringe copyright will not be protected by the fair dealing defence as it is currently being applied by Canadian courts. The question, therefore, of the extent to which the Canadian Copyright Act should be revised to permit individuals to create and disseminate mashups without infringing copyright merits discussion during Canada’s ongoing process of copyright reform. One possibility for reform is to incorporate a right to create and disseminate transformative works within the Canadian Copyright Act. DOI: 10.2966/scrip.060309.639 © Graham Reynolds 2009. This work is licensed under a Creative Commons Licence. Please click on the link to read the terms and conditions. * Assistant Professor, Schulich School of Law at Dalhousie University, Halifax, Nova Scotia, Canada; member of Dalhousie University’s Law and Technology Institute; Co-Editor-in-Chief of the Canadian Journal of Law and Technology. (2009) 6:3 SCRIPTed 640 1. Introduction Alternatively described as an “exercise in irreverence,”1 “another step on the path towards the democratization of creativity”2 and “surprisingly vapid,”3 mashups are songs created by combining pieces of two or more sound recordings into one new sound recording which is both “at once familiar yet often startlingly different.”4 Through mashups, anyone with access to both a computer and sound editing software can engage with and participate in the (re)creation of culture. Among other purposes, mashups allow individuals to critique artists through the comical juxtaposition of their works with other artists’ works (for instance, to staple the dark, brooding lyrics of Montreal’s The Dears to the music of Walter Ostanek, “Canada’s Polka King”), to explore what the lyrics of Vancouver indie pop band Said the Whale would sound like when played over the big band music of Rob McConnell and his Boss Brass, and to create tributes to iconic bands such as Winnipeg’s The Weakerthans by mashing their entire musical library onto one track. Due to both the cost and logistical difficulty of obtaining licences,5 most mashups are created without the permission of those who hold copyright in the underlying works.6 The purpose of this article is to examine the extent to which mashups are permitted by copyright law in Canada. It is structured as follows. First, it will provide an introduction to mashups, defining the term and discussing the popular emergence of mashups. Second, it will examine whether mashups prima facie infringe copyright in Canada. Third, it will look at whether mashups are protected by the fair dealing defence. This article will demonstrate that many mashups created and distributed in Canada prima facie infringe copyright. Furthermore, many mashups that are found to prima facie infringe copyright will not be protected by the fair dealing defence as it is currently being applied by Canadian courts. The question, therefore, of the extent to which the Canadian Copyright Act should be revised to permit individuals to legally create and disseminate mashups merits discussion during Canada’s ongoing process of copyright reform. In seeking to “maintain an appropriate balance”7 between copyright owners and users, one possibility for reform is to revise the Canadian 1 M Serazio, “The Apolitical Irony of Generation Mash-Up: A Cultural Case Study in Popular Music” (2008) 31 Popular Music and Society 79-94, at 83 (henceforth Serazio). 2 S Howard-Spink, “Grey Tuesday, online cultural activism and the mash-up of music and politics” (2005) available at http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/1460/1375 (accessed 14 November 2009). 3 See note 1 above, at 91. 4 P Rojas, “Bootleg Culture” (2002) available at http://dir.salon.com/story/tech/feature/2002/08/01/bootlegs/index.html (accessed 14 November 2009). 5 N Netanel, Copyright’s Paradox (New York: Oxford University Press, 2008) at 15-16 and 20-21 (henceforth Netanel). 6 As noted in the Copyright Act, “copyright” is defined as the rights described in s 3, in the case of a work; ss 15 and 26, in the case of a performer’s performance; s 18, in the case of a sound recording; or s 21, in the case of a communication signal: Copyright Act, RSC 1985, c C-42 (Canada), at s 2 (henceforth Copyright Act). 7 Théberge v Galerie d’Art du Petit Champlain Inc, [2002] 2 SCR 336, 2002 SCC 34 (henceforth Théberge). (2009) 6:3 SCRIPTed 641 Copyright Act to incorporate a right to create and disseminate transformative works – a right to “rework [copyright-protected] material for a new purpose or with a new meaning.”8 2. Introduction to Mashups 2.1. What is a mashup? In its simplest form, a mashup, also referred to as a “bootleg,” a “blend” or “bastard pop,” mixes one song’s vocals over another song’s instrumental or rhythm section.9 This type of mashup can be described as “A vs B,” in that portions of two sound recordings are combined into one new work.10 Frequently, the source songs come from disparate musical genres and differ in tone, subject matter, style or other characteristics. Many of the songs used in mashups are popular or “Top 40” works. Various elements of the source songs, such as tempo, key and pitch, may have to be manipulated in order for the works to co-exist within the same track. Though most mashups are of the “A vs B” variety, some are much more complex. For instance, Jordan “DJ Earworm” Roseman, in a piece entitled “United States of Pop (2008): Viva La Pop,” arranged Billboard Magazine’s Top 25 hits of 2008 into one four and a half minute song. For the purposes of this article, a mashup will be defined as a sound recording composed entirely of pieces of two or more pre-existing recordings.11 The Copyright Act defines “sound recording” as a “recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work”.12 Mashups, as recordings fixed in digital form, consisting of pieces of preexisting songs, satisfy the definition of “sound recording” under the Canadian Copyright Act. Before proceeding, it is important to distinguish mashups from the related terms “sampling” and “remix.” Sampling “refers to a broad spectrum of musical techniques that involve taking some portion of a preexisting sound recording and incorporating it into a new sound recording.”13 Many artists who engage in sampling integrate the sample (the portion of the pre-existing sound recording) into their own expression. For instance, in “Ice Ice Baby,” Vanilla Ice combines his original lyrics with the bass line and piano from “Under Pressure,” a song written by Queen and David Bowie. 8 A Gowers, “Gowers Review of Intellectual Property” (London: HM Treasury, 2006) (henceforth Gowers). 9 F Preve, “Mash It Up” (2006) 32 Keyboard 38-44, at 38. 10 J Roseman, Audio Mashup Construction Kit (Indianapolis: Wiley Publishing, 2007), at 16 (henceforth Roseman). 11 A Power, “The Mouse That Roared: Addressing the Post-Modern Quandary of Mash-ups through Traditional Fair Use Analysis” (2006) 3 Vanderbilt Journal of Entertainment and Technology Law 531-540 at 532. 12 See note 6 above, at s 2. 13 Ibid. (2009) 6:3 SCRIPTed 642 Mashups, as songs composed entirely of pieces of pre-existing sound recordings, can be seen as a “subset of sampling.”14 Remix can be defined as “the activity of taking samples from pre-existing materials to combine them into new forms according to personal taste.”15 Though mashups are a type of remix, the scope of remix is much broader than mashups. Remixes can involve art, literature or film in addition to music, and need not be composed entirely of pieces of preexisting expression.16 2.2. Popular Emergence of Mashups Early versions of mashups have existed for decades.17 Working from a New York City apartment in 1983, Steve “Steinski” Stein and Doug “Double Dee” DiFranco created a song called “The Payoff Mix” which combines samples from Culture Club, Little Richard, Humphrey Bogart, and Herbie Hancock, among many others. In creating this song, Steinski and Double Dee “took in a wide range of pop culture, chopped it all up, and manically reassembled it as something you could bop your head to.”18 In 1988, Kitchener, Ontario’s John Oswald (who, along with “Negativland had long been creating new work from bits and pieces of pre-existing music”19)