Dealing with Talking Girls and Dangerous Mice: An Assessment of Mashups and their Place in Copyright in Canada
by
Michael J. Hughes
A thesis submitted in conformity with the requirements for the degree of Master of Laws University of Toronto
© Copyright by Michael J. Hughes, 2011
Dealing with Talking Girls and Dangerous Mice: An Assessment of Mashups and their Place in Copyright in Canada
Michael J. Hughes
Master of Laws
Faculty of Law University of Toronto
2011 Abstract
Mashups are a controversial form of music as they frequently infringe copyright in the songs they sample and these composite works are not likely to be saved by the “fair dealing” copyright exemption. Moreover, those who attempt to produce mashups legitimately by obtaining licenses to music samples encounter numerous problems, including high license fees and a complex licensing system. In light of these issues and the fact that mashups are a particularly beneficial form of music in several respects, a change to the current legal/licensing status quo would be prudent. The introduction of a compulsory licensing regime for samples would facilitate mashup creation while still protecting the interests of the underlying copyright holders, which helps strike a better balance between the copyright goals of ensuring just rewards for creators and encouraging the dissemination of creative works.
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TABLE OF CONTENTS INTRODUCTION...... 1
1 MASHUP BACKGROUND ...... 3 1.1 Mashups Defined/History...... 3 1.2 The Artistic/Musical Legitimacy of Mashups ...... 7 1.3 Mashups and Musical Borrowing...... 9
2 MASHUPS AS WORKS PARTICULARLY WORTH ENCOURAGING...... 11 2.1 Mashups as Enhancing Exposure to Music...... 11 2.2 Mashups as Beneficial for the Music Industry ...... 12 2.3 Mashups as User-Generated Content ...... 14
3 MASHUPS AND COPYRIGHT ...... 15 3.1 Canada...... 15 3.1.1 Infringement ...... 15 3.1.2 Fair Dealing...... 20 3.2 The United States ...... 23 3.2.1 Infringement ...... 23 3.2.2 Fair Use/Parody ...... 26
4 ARTICULATION OF THE PROBLEM ...... 29 4.1 Constraints on Mashup Creation...... 29 4.1.1 Licensed Mashups ...... 29 4.1.2 Unlicensed Mashups...... 33 4.2 The Mashup Status Quo and Balance in Copyright...... 35
5 CANADIAN COMPULSORY LICENSING REGIME...... 38 5.1 Compulsory Licensing Background...... 38 5.2 Proposed Canadian Compulsory Licensing Regime ...... 39 5.3 Benefits of Compulsory Licensing ...... 43 5.4 Compulsory Licensing of Music Samples and Moral Rights...... 45 5.5 The Reach of Compulsory Licensing? ...... 47 5.6 Alternatives to Compulsory Licensing—Potential Expansion of Fair Dealing ...... 47
CONCLUSION ...... 51
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BIBLIOGRAPHY ...... 53
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INTRODUCTION
The digital age has entailed several fundamental changes to the music industry, frequently involving significant legal implications. Over the past decade, courts and legislators have for the most part been preoccupied with modes of distribution of digital music, such as the spread of peer-to-peer file sharing, rather than the very creation of music.1 Musical mashups,2 one relatively new form of musical creation, however, are worthy of further examination in light of the legal questions they present. These controversial musical works will frequently infringe the copyright of the songs of which they are composed, but, paradoxically, they themselves are also creative works, and, as such, their creation should arguably be promoted under the Canadian copyright system. Nevertheless, the current business and legal landscape does not encourage the production of mashups, and, therefore, changes to the regime should be considered in order to facilitate the production of more mashups. The introduction of a system of compulsory licensing for the samples used in the creation of mashups is an attractive option for amendment to the current scheme, wherein mashups would be encouraged while other important interests under copyright would also be considered and respected.
Part 1 of this thesis opens with a description and brief history of mashups and an argument with respect to the legitimacy of mashups as art, particularly given that they are part of an extensive tradition of musical borrowing. Part 2 advances the contention that mashups are a form of art that is particularly worthy of encouragement for several reasons: they expose listeners to a wide variety of music, they have the potential to create significant benefits for the music industry and they are a form of “user-generated content” which have the effect of democratizing the production of music.
1 Urs Gasser and Silke Ernst, “From Shakespeare to DJ Danger Mouse: A Quick Look at Copyright and User Creativity in the Digital Age” Berkman Center Research Publication No. 2006-05, online:
2
Next, Part 3 discusses copyright issues associated with mashups arising from their reliance on samples of pre-existing copyrighted musical works. This Part concludes that under both Canadian and American copyright law many forms of mashups are likely to be infringing works that cannot be saved under exemptions for unlicensed use of copyrighted material via fair dealing in Canada nor by fair use in the United States.
These copyright problems contribute to the central difficulty addressed in this thesis, as discussed in Part 4, namely, that the current legal and licensing system for music samples dissuades potential mashup creators. This Part also includes a discussion of other difficulties encountered by potential mashup creators, such as the convoluted nature of the current licensing scheme and the power imbalance in sample negotiations. Such constraints on the production of mashups are particularly troubling in light of the Canadian copyright goal of balance between just rewards for creators’ works and dissemination of the greatest possible number of creative works, as the status quo disproportionately favours the former part of that balance.
Given the multiple positive aspects of mashups and the fact that the current copyright system constrains their creation, reform may be necessary, as discussed in the recommendation for a Canadian compulsory licensing regime for mashup samples set out in Part 5. Such a compulsory licensing system acknowledges the importance of creators of existing musical works and the significance of financial incentives for such individuals to continue creating these works. Simultaneously, the system outlined in Part 5 emphasizes that copyright holders of existing musical works cannot have unfettered rights given the importance of derivative works such as mashups and the need for potential mashup creators to have easier access to more reasonably priced samples. This section also includes a discussion of the implications for authors’ moral rights in a compulsory licensing system for mashup samples and concludes that such a strategy is not at odds with Canada’s regime of moral rights protection. Additionally, this section briefly considers the merits of expanding compulsory licensing beyond the realm of sample-based music considered here and suggests that broader application of such an approach may not be prudent. Finally, Part 5 briefly discusses the potential expansion of fair dealing in Canada as an alternative strategy for the difficulties associated with mashup creation and concludes that an expansion of fair dealing may not be advisable at this point in time.
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1 MASHUP BACKGROUND
1.1 Mashups Defined/History
At the outset, it is necessary to provide background for mashups which first necessitates discussion of the practice of audio sampling.3 Audio sampling, initially popularized in its analog format by Jamaican DJs in the 1960s,4 involves taking portions of recorded musical works as part of the creation of new songs.5 The initially analog variety of sampling went digital in the late 1970s and early 1980s, which led to “an increase in sampling activity among musicians”6 corresponding with the meteoric rise of hip-hop, which is likely the most notable form of sample-based music.7 Mashups picked up where hip-hop left off in terms of sample use.8 A mashup, also known as a form of “bastard pop”,9 is part of one particular subset of sample-based music10 which can be defined as “a song or composition created from the master track and
3 Shervin Rezaie, “Play Your Part: Girl Talk’s Indefinite Role in the Digital Sampling Saga” (2011) 26 Touro L Rev 175 at 178 notes that “[t]he origins of hip-hop and sampling’s role in it are necessary to understand the context of copyright issues involved with sampling.” 4 Jeffrey Omari, “Mix and Mash—The Digital Sampling of Music has Stretched the Meaning of the Fair Use Defense” (2010) 33 LA Law 35 at 35. 5 Gasser and Ernst, supra note 1 at 7. 6 Peter DiCola, “Sequential Musical Creation and Sample Licensing” (2010) Northwestern University School of Law, Law and Economics Series No. 10-06 at 7. 7 Sampling took North America by storm in the 1970s with the genesis of hip hop, when DJs at neighbourhood block parties would loop the “break beat” (or portion of the musical work in which the bass and drums are frequently highlighted) of one song continuously, as an M.C. or rapper, would vocalize over the sampled-based creation. Rezaie, supra note 3 at 179. 8 David Tough, “The Mashup Mindset: Will Pop Eat Itself?” in George Plasketes, ed., Play it Again: Cover Songs in Popular Music (Surrey, England: Ashgate, 2010) 205 at 205. At 211, Tough notes that many contend that the first modern mashup is found in the album “Gunderphonic” produced by the group Evolution Control Committee in the 1990s. However, arguably mashups have been produced since as early as 1982, when hip hop artist Afrika Bambaata combined two musical works by German group Kraftwerk in his song “Planet Rock”, Kembrew McLeod and Peter DiCola, Creative License: The Law and Culture of Digital Sampling (Durham: Duke University Press, 2011) at 114. One may look even earlier in history for an example of a mashup with a non-musical component, as the work “Flying Saucer” by Bill Buchanan and Dickie Goodman combined a musical track with samples of Orson Welles’ “War of the Worlds”, Tough, supra note 8 at 210. 9 Gasser and Ernst, supra note 1 at 7. 10 Graham Reynolds, “A Stroke of Genius or Copyright Infringement? Mashups and Copyright in Canada” (2009) 6:3 SCRIPTed 639 at 642.
4 instrumental music of one song and the a cappella vocal master track from another.”11 In many cases, “[t]he objective of the mashup artist is to combine two well-known songs and make them sound like a totally original piece of music. The two songs should remain recognizable to anyone who has heard the original versions.”12
Mashups did not receive significant mainstream exposure until the successful experiment in 2004 by American DJ Brian Burton—hereinafter referred to by his musical moniker “Danger Mouse”13—who combined the a cappella raps from American hip hop impresario Jay-Z’s Black Album with various instrumental samples from the legendary Beatles’ White Album to create the aptly-titled Grey Album.14 The Grey Album was praised by critics—Rolling Stone hailed it as “an ingenious hip-hop record that sounds oddly ahead of its time”15 and “the ultimate remix record”16, while the Boston Globe referred to Burton’s creation as “the most intriguing hip-hop album in recent memory.”17 Danger Mouse’s musical experiment went on to become the most downloaded mashup album of all time18 and conservative estimates indicate that over one million fans obtained the album.19
11 Tough, supra note 8 at 205. 12 Ibid. at 207. Mashups may be made up of more than two songs, however, as discussed later in this section. 13 Michael Allyn Pote, “Mashed-Up In Between: The Delicate Balance of Artists’ Interests Lost Amidst the War on Copyright” (2010) 88 NCLR 639 at 641. 14 Reuven Ashtar, “Theft, Transformation and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime” (2009) 19.2 Alb LJ Sci & Tech 261 at 302. Burton worked on the Grey Album 15 hours a day for two weeks, using his computer and audio mixing software, as outlined in Ben Greenman, “The Mouse That Remixed” The New Yorker (9 February 2009), online:
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Although the Grey Album was referred to as “the most prominent musical mashup in history”20, arguably the mashups of Pittsburg-based DJ “Girl Talk” are beginning to surpass Danger Mouse’s creation in terms of popularity, if they have not already done so. The musical creations of Girl Talk, or Greg Gillis as he is known offstage, have been referred to as “‘the next stage’ in the use of sampling”21 as he skillfully employs an exceptionally wide variety of vocal and instrumental samples to create his mashups. On his fifth album, 2008’s Feed the Animals,22 Girl Talk used over 300 samples to produce one extended mashup that he later split into multiple tracks.23 One critic noted that Feed the Animals was not simply the album of the year, but rather “the album of every year, with its mash-up of 322 unlicensed samples,”24 further adding that “[t]he familiarity of the music being craftily sampled makes Feed the Animals an instantly accessible album, even for those who’ve never a heard a mash-up before.”25 Girl Talk’s earlier work has also been lauded by critics, and his 2006 Album Night Ripper earned top album of the year honours with both Rolling Stone and the well-established alternative music website Pitchfork.26 Girl Talk is not only successful from a critical perspective, though, as his music is increasingly popular and caters to an ever-growing market for mashups.27
Despite the common elements in the music of artists such as Girl Talk and Danger Mouse and the existence of the very basic definition of mashup outlined above, it is impossible to define this
staged, various organizations encouraged people to share the Grey Album and an estimated 100,000 copies were downloaded on February 24, 2004. 20 Gasser and Ernst, supra note 1 at 7. 21 Rezaie, supra note 3 at 182. 22 AllMusic—Discography: Girl Talk, online:
6 postmodern28 form of music production with any further precision. There is no monolithic type of mashup. Even the examples cited above vary in significant ways and one of the major distinctions is outlined in the following:
While the Grey Album was created by blending music from two different artists, Girl Talk’s Albums consist of songs that are sonic collages, layering one sample over another sample. His first album, Night Ripper, uses roughly 250 samples from more than 160 different artists.29
Therefore, given that Girl Talk inserts so many more musical snippets into a particular mashup, his samples will generally be shorter in length than the samples employed by Danger Mouse, or other such mashup creators.
Moreover, the way in which samples are utilized in mashups may vary a great deal. While some samples used in mashups may still be familiar, the tempo of samples can be slowed down or sped up, their pitch and tone can be altered and they can be transformed in a variety of other ways, in such a manner that in some cases they may be rendered unrecognizable.30 Hence, it is important not to treat mashups as an easily demarcated musical genre capable of being regulated by one set of rules, whether under copyright or otherwise.31 With this caveat in mind, it is worth noting that the variety of mashups under focus here are the very common variety employing recognizable samples of pre-existing musical works, and although there is a great deal of diversity within this class, such mashups contain sufficient commonalities to make the following prescriptive analysis feasible. The most important such factor is a mashup’s use of recognizable samples of pre- existing musical works, and such use has implications for copyright as discussed below.
28 Rezaie, supra note 3 at 181. 29 Omari, supra note 4 at 39. See also Pote, supra note 13 at 654 and Reynolds, supra note 10 at 641. At 648 Reynolds states that there are two varieties of mashups, those relying on just two works, sometimes called A+B mashups, and those composed of three or more works. 30 Robert M Szymanski, “Audio Pastiche: Digital Sampling, Intermediate Copying, Fair Use” (1996) 3 UCLA Ent L Rev 271 at 280, 300. 31 There are, however, certain commonalities amongst many mashups that enable the writing of a piece such as this, as further discussed below under “PART 3: MASHUPS AND COPYRIGHT—Canada—Infringement”.
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1.2 The Artistic/Musical Legitimacy of Mashups
It is also fundamental at the outset to orient mashups as legitimate works of art that are worthy of encouragement in the same manner as other cultural products that are facilitated by the Canadian copyright scheme.32 This may require some explanation, as mashups are not yet widely accepted as legitimate cultural works by many critics. While other sample-based music, such as certain variants of hip hop, have been controversial due to critics’ questions with respect to creative legitimacy, mashups have been criticized even more so given that they generally lack “original” musical or lyrical contributions, unlike rap or hip hop which frequently rely on the musical backbone of other works, while incorporating novel lyrical additions.33 Some of the criticism of mashups arises from the viewpoint that they are created in lieu of other musical works for reasons of economy—i.e. it is cheaper to build a song from samples of pre-existing musical works than it is to write and record a song oneself.34
This perspective disregards the many fundamentally important non-financial motivations for sampling pre-existing musical works. Undue emphasis on the financial impetus to create sample- based works tends to lead critics to ignore the various other motivations that creators of such music may have for relying on previously created works, as is conveyed in the following excerpt:
Like quoting, sampling may have a myriad of purposes and effects, from giving new meaning to work to paying homage to past musicians, evoking a time, person or place, or aiming for a certain musical aesthetic. For most producers, digging for sounds is seen as aesthetically superior to simply plugging in popular ones, and some see re-contextualizing existing sounds as a greater creative challenge than starting from scratch with traditional instruments.35
Moreover, while some contend that those using samples should attempt to simply recreate the desired sound in the studio—either by themselves or with the assistance of studio musicians— this may not be feasible to recapture the desired musical qualities.36 The sonic quality created in
32 See discussion of the goal of dissemination of creative works under the Canadian copyright system below under “PART 4: ARTICULATION OF THE PROBLEM—The Mashup Status Quo and Balance in Copyright”. 33 Rezaie, supra note 3 at 181. 34 Szymanski, supra note 30 at 288. 35 Ashtar, supra 14 at 284. 36 Ibid. at 307.
8 the desired sample may be the result of a number of elements, such as distinctive voices, period equipment or the particular acoustics of the recording space, and it may be impossible to recreate the sound in question.37 Moreover, it has also been said that attempting to recreate a particular sound in studio misses the point as “it is the actual embodied performance that contains the value, not the configuration of a particular combination of notes.”38 As such, one cannot undervalue the importance of sample use for artistic rather than simply economic purposes.
Other critics indict sample-based music such as mashups as being the province of the lazy and creatively uninspired.39 These commentators assert that any individual with a computer and the appropriate software can create mashups similar to those that have achieved widespread success.40 They refer to mashups as “just crap” and contend that it is extremely easy for mashup creators to produce well-liked works so long as they sample popular songs.41 This perspective ignores the great deal of labor, creativity and skill involved in the selection and arrangement of samples and the creation of a mashup.42 Contending that the “average bedroom producer”43 can create the same quality mashups as Danger Mouse or Girl Talk drastically trivializes the skill and creativity of such artists and is akin to asserting that anyone with a guitar can create music just like celebrated axe men Jimi Hendrix or Eric Clapton.44 The following excerpt conveys the work, creativity and skill involved in mashups creation exemplified by Danger Mouse’s production of the Grey Album:
Burton worked on his new project for two weeks. First, he measured the amount of beats per minute on each track of the Black Album. Burton then immersed himself in every musical element on the
37 Ibid. at 308. 38 Ibid. 39 Szymanski, supra note 30 at 288. 40 Pote, supra note 13 at 653-654. 41 Pote, supra note 13 at 677-78. Weisblott, supra note 24, compares Girl Talk to various ‘parasitic’ individuals in North American pop culture who maintain their own fame and status by exploiting the fame of others, such as celebrity gossip ‘writer’ Perez Hilton. 42 Katz, supra note 23 at 27. 43 Pote, supra note 13 at 653-54. 44 Although not all mashups produced will meet the standard of quality of those made by artists such as Girl Talk, the accessibility of this mode of creation is nevertheless significant as discussed below under “MASHUPS AS WORKS PARTICULARLY WORTH ENCOURAGING—Mashups as User-Generated Content”.
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White Album—he began with individual drum and cymbal beats, moved on to bass guitar samples, and finished by collecting various sounds and beats that appealed to him. Once he finished collecting the elements, Burton used the aid of a software program called ACID Pro to combine various tracks of the samples. In addition to layering tracks, ACID Pro also allowed Burton to modify the samples from the White Album, giving the tracks a more “hip-hop” feel.45
As conveyed in this excerpt, mashup creation frequently involves the same degree of effort, talent and skill that may be required to produce a high quality and entirely “original” music work.46 Similarly, on the opening track of Girl Talk’s Night Ripper, despite combining “nearly twenty songs, ranging from classic rock artists such as Boston and Genesis to contemporary rap and pop artists like Ludacris and Oasis”47, Gillis was able to turn what could have been a “schizophrenic” music work into something that has been described as “seamless”48. There is without a doubt an art to combining songs that will appropriately complement/contrast each other, selecting elements of each song to highlight, and modifying various elements of the samples to achieve a desired effect in a mashup.49 Although not every mashup creator will have the same talent as Girl Talk or Danger Mouse, and many will not apply as much effort to their creations, this is no reason to completely dismiss the legitimacy of the mashup genre, as there are ranges of quality in every style of music.50
1.3 Mashups and Musical Borrowing
The foregoing critiques of mashups on the basis of their lack of originality also fail to acknowledge the extent to which borrowing has been common throughout musical history.51 It
45 Lim, supra note 15 at 371. As noted in Tough, supra note 8 at 207-208, the process of obtaining the vocal tracks from desired songs in particular is often very complicated. 46 Zachary Lazar, “The 373 Hit Wonder” The New York Times (6 January 2011), online: The New York Times
10 has been contended that all art is in some way derivative,52 and music in particular utilizes “basic building blocks like notes, scales, chords, compositional forms, and instruments.”53 Furthermore, it is has been argued that “[o]nly the rarest of musical works fail to use techniques of appropriation, borrowing or reference.”54 Nevertheless, the importance of musical borrowing is “largely unacknowledged” in academic literature, legal or otherwise,55 notwithstanding that the “use of existing works has historically been a core feature of the musical composition process.”56 Musical borrowing, like borrowing in other forms of art such as literature, is “not necessarily antithetical to originality or creativity.”57 However many critics of sample-based music disregard this fact and draw comparisons between sample-based music and an “invented tradition” of the European classical music.58 This mischaracterized history “incorporates notions of Romantic authorship that assume independent and autonomous authorship and even genius in the creation of musical works.”59 The fictional standard of autonomous creation in classical music has largely been debunked as it has been noted that even many classical music icons such as Johann Sebastian Bach and George Friedrich Handel “found founts of creativity in borrowing”60 and this tradition continued through 19th century popular music,61 jazz, blues, rock and roll and, most
52 Pierre N. Lavel, “Toward a Fair Use Standard” (1990) 103 Harv L Rev 5 at 1105. 53 Dicola, supra note 6 at 3. 54 Ibid. at 3. 55 Arewa, supra note 50 at 550. 56 Ibid. at 590. At 551, Arewa comments that “[t]he centrality of the autonomous vision of musical authorship to both copyright law structures and conceptions of the canonic classical musical tradition reflects an increasing tendency to minimize the importance and continuity of musical borrowing practices generally.” 57 Ibid. at 630-31. 58 Ibid. at 644. 59 Ibid. at 547. 60 Ibid. at 579. Ashtar, supra 14 at 283 notes that “[c]omposers such as Beethoven and Mendelssohn quoted and manipulated past styles, and techniques such as looping were conceived before they were technologically feasible.” 61 Arewa, supra note 50 at 613.
11 recently, hip-hop.62 Therefore, mashups can be characterized as a continuation of the rich tradition of musicians relying on previous works to create new songs.63
2 MASHUPS AS WORKS PARTICULARLY WORTH ENCOURAGING
2.1 Mashups as Enhancing Exposure to Music
Mashups are creative works that generally possess certain characteristics that make them particularly beneficial in several respects. For instance, mashups have the capacity to introduce listeners to various artists or genres of music in one song, which is directly related to the copyright goal of disseminating creative works, as articulated by the Supreme Court of Canada in Theberge v. Galerie d’Art du Petit Champlain Inc.64 Whereas a more orthodox musical work is typically classified as part of one musical genre, mashups may be composed of samples of a diverse range of musical artists, eras and styles simultaneously. For example, on the Girl Talk track “Smash Your Head” the listener is not only experiencing a new creative work in the mashup itself, but is also exposed to the songs underlying the mashup—including “East Coast” hip-hop from the 1990s via the sample of Notorious B.I.G.’s rags-to-riches anthem “Juicy” as well as the 1970s classic rock hit “Tiny Dancer” by Elton John.65 In this manner, mashups may spark interest for new listeners in unlikely artists and genres including potentially “commercially passé songs or artists.”66 After listening to mashups, listeners will frequently seek out the
62 Ibid. at 615-618. See also Achenbach, supra note 19 at 213 where the author discusses the importance of artists building on the work of their predecessors. 63 While the legacy of musical borrowing must be borne in mind when assessing the legitimacy of mashups, an important distinction must be drawn between the borrowing common in musical history before the onset of sampling and the borrowing employed in sample-based works. Sampling utilized in the creation of mashups, and many forms of hip hop for that matter, involve a form of reproduction, not simply imitation as was typically the case with previous instances of musical borrowing. Moreover, while previous forms of musical borrowing involved reliance on a previous artist’s composition or style, sampling also involves use of the that artist’s sound recording. In that sense, sampling has been contrasted with previous musical borrowing such as the creation of cover songs in that the former constitutes physical appropriation whereas the latter is intellectual in nature. Tracy L Reilly, “Debunking the Top Three Myths of Digital Sampling: An Endorsement of the Bridgeport Music Court’s Attempt to Afford “Sound” Copyright Protection to Sound Recordings” (2008) 31 Colum JL & Arts 355 at 378-80. 64 Theberge v. Galerie d’Art du Petit Champlain Inc., 2002 SCC 34, [2002] SCR 336 at paras 30-31 [Theberge]. 65 Rezaie, supra note 3 at 198-199; AllMusic—Overview: Ready to Die, The Notorious B.I.G., online:
12 underlying source material, which is all the more relevant where the audience is from a different era than the sampled material or where that audience would typically not listen to music from the sampled song’s genre.67 A mashup fan’s exposure to “new” content through samples of existing musical works may be particularly significant in instances in which one mashup track may contain as many as 20 samples68 and, therefore, potentially 20 songs that the listener is either reminded of or to which she is introduced for the first time.69 Mashups consequently have a dual impact of both exposing listeners to new creative works while concurrently bringing pre-existing musical content to light. This makes these creative works particularly significant with respect to the copyright goal of disseminating creative works.
2.2 Mashups as Beneficial for the Music Industry
In addition to being particularly well suited to meeting one of the fundamental goals of copyright in Canada, mashups may also be worthy of encouragement given some of their beneficial aspects beyond copyright. In this vein, it is worth briefly discussing the potential positive impacts of mashups on the music industry. Such positive effects occur due to the makeup of mashups, given that they typically contain portions of a variety of songs from multiple diverse musical genres, as discussed above.70 Accordingly, mashups have enormous cross-marketing potential for the works of which they are composed in light of the fact that listeners are exposed to new songs or reminded of songs from a previous period. This rejuvenating effect of sampling has been investigated in the hip-hop context and was likely responsible for renewed interest in the music of many of the artists whose samples were quintessential in rap music, such as George Clinton and James Brown.71 When this rejuvenating effect is combined with musical cross-pollination—
67 Greenman, supra note 14. Danger Mouse’s comment with respect to the reaction of some fans to the Grey Album is apposite in this respect: “After hip-hop fans hear it, they’re like, ‘I gotta get this White Album.’” 68 Dicola, supra note 6 at 20. 69 While many of the samples on which Girl Talk relies are from recognizable classics, his work has also been praised as being beneficial for increasing exposure to “up-and-coming” artists, as emphasized by Rezaie, supra note 3 at 205. 70 See above at “PART 2: MASHUPS AS WORKS PARTICULARLY WORTH ENCOURAGING—Mashups as Enhancing Exposure to Music”. 71 McLeod and DiCola, supra note 8 at 90-93; Katz, supra note 23 at 27; Achenbach, supra note 19 at 210; Carl A Falstrom, “Thou Shalt Not Steal: Grand Upright Music Ltd. v. Warner Bros. Records Inc. and the Future of Digital Sound Sampling in Popular Music” 45 Hastings LJ 359 at 374; Reynolds, supra note 10 at 664; McLeod and DiCola
13 or exposure of fans of one genre to another musical style via the combination of the two styles of music in one song—the potential for increased music industry revenues is considerable.72 Furthermore, contrary to the misplaced fear of certain critics of sample-based music, mashups are not likely to diminish revenue streams of artists who are sampled, but likely stand to benefit those artists and the music industry generally.73
Potential revenue generation from mashups is also significant given that they have moved beyond the “shadowy underground culture” where they previously resided and into the mainstream.74 Moreover, mashups are unlikely to be fleeting as they appear to “have staying power in the music market place.”75 Given the still slumping state of the North American recording industry—exemplified by the estimated $525 million annual industry losses in Canada and the accompanying 20% reduction in the music industry work force76—any such opportunity for revenue generation from a source as popular as mashups should not be ignored.
The music industry has not neglected to embrace mashups altogether, however. In fact, it appears as though there has been at least some recognition of the popularity of mashups and “remix culture” generally.77 For example, Jay-Z, who helped facilitate the creation of the Grey Album by making an a cappella version of the Black Album available to those who wanted to remix his
note at 20 that “[m]any musicians—hip hop artists or otherwise—view sampling as a technique that can revive lost or forgotten music that has been relegated to the literal and metaphorical used record bins.” 72 Ashtar, supra 14 at 298. 73 Reynolds, supra note 10 at 664 explains that fears about cutting into the sampled artists’ revenues are often irrational in the following excerpt: “Many mashups will not compete with the market for the original work. This is certainly true for mashups like Girl Talk’s albums where a few seconds of an original work is woven together with many other sound recordings. It is unlikely that an individual who wishes to purchase that original work will settle, instead, for a few seconds of that song combined with various other works. It is also unlikely that individuals who wish to purchase either the Beatles’ White Album or Jay-Z’s Black Album will, instead, purchase the Grey Album.” 74 Weisblott, supra note 28. 75 Tough, supra note 8 at 206. 76 John Kennedy, “Canada: A Land of Lost Opportunity” (2010), online: International Federation of Phonographic Industries
14 work, also released the vocal stems for his follow-up album, American Gangster.78 Jay-Z’s music was also legitimately mashed up with that of rap-rock group Linkin Park on the album Collision Course.79 Clearly, Jay-Z and executives at Roc-A-Fella records recognize the cross- marketing and revenue generation potential of mashups, as did David Bowie when he teamed up with carmaker Audi in the staging of a contest for the creation of the best mashup of his songs.80 Although the record industry response to the ascendance of mashups has been characteristically slow, there has been at least some acknowledgement of the significance of these works.
2.3 Mashups as User-Generated Content
Beyond the fact that mashups are often particularly beneficial to the music industry, they are also worth encouraging given they are often a form of user-generated content. Given that they are frequently distributed by peer-to-peer networks, mashups are a part of what has been dubbed “Web 2.0”81, a term referring to the Internet’s “promise to transform passive recipients of information into active users and creators who can interact with digital information, personalize information, participate in the creation of new content, and make transformative uses of existing works.”82 Mashups are frequently an accessible “do it yourself”83 art form that can be created by anyone with a computer and the appropriate software, such as GarageBand, which now comes standard with Apple computers.84 As such, they are significant in that the potential simplicity of
78 Katz, supra note 23 at 48. 79 AllMusic—Review: Collision Course, online:
15 creation85 may aid more music fans to become music makers.86 Such an egalitarian and democratic approach to the creation of art generally and music specifically has been heralded in some of the literature as being positive in and of itself.87 Indeed, individuals who were previously solely music fans can now be more intimately involved in the creation of music given the removal of certain entry barriers and the reduction in front end costs previously associated with musical production. 88 This is but a further step away from previous models for the production of music in which “audiences were expected to passively receive…music and other elite forms of cultural production in silence and without participation.”89 Such “semiotic democracy”90 is worth encouraging through the facilitation of mashups, even in the absence of the other advantageous characteristics of such works discussed in the foregoing.
3 MASHUPS AND COPYRIGHT
3.1 Canada
3.1.1 Infringement
It has been said that “[t]he application of copyright to music has been tested historically by the introduction of new technologies in musical performance and practice”91 and mashups are
85 Although at base level mashups are fairly easily created, it should be acknowledged that not all mashups will meet the standard set by Girl Talk, as described above under “PART 1: MASHUP BACKGROUND—The Artistic/Musical Legitimacy of Mashups”. Again, in this respect mashups are comparable to other musical genres in that one will find a range of complexity and quality in any given musical style. 86 Reynolds, supra note 10 at 666. 87 Katz, supra note 23 at 36-37. 88 Gasser and Ernst, supra note 1 at 5. 89 Arewa, supra note 50 at 601. 90 Gasser and Ernst, supra note 1 at 15.
91 Arewa, supra note 50 at 552.
16 certainly no exception. Some background discussion of mashups’ orientation within copyright law is necessary in order to understand the manner in which they have tested the limits of copyright. The difficulty arises with mashup creators’ reliance on samples of existing songs which are frequently original musical works protected pursuant to s. 5 of Canada’s Copyright Act.92 Recorded musical works93 may be protected by two layers of copyright in Canada—one for the musical composition,94 or the work as it could be written on sheet music,95 and the other for the sound recording,96 which is “a particular recorded rendition of an underlying musical composition, which includes the melody, chords, rhythm, structure and lyrics.”97 The first owner of the musical composition copyright is the author,98 while the first owner of the sound recording copyright is the maker of the sound recording.99 In either case, the copyright owner possesses a set of exclusive rights, including but not limited to “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever.”100 Moreover, the copyright owner of both the sound recording and the musical composition has the exclusive right to authorize reproduction of that recording.101 It is an infringement of a copyright holder’s
92 Copyright Act, R.S.C., 1985, c. C-42, s. 5. Not all musical works will necessarily be subject to copyright. For example, s. 6 sets out that the term of copyright is for the author’s life plus 50 years, and after that point the work will become part of the public domain. 93 Musical work is defined in s. 2 of the Copyright Act, ibid., as “any work of music or musical composition, with or without words, and includes any compilation thereof.” 94 Protected under Copyright Act, supra note 92, s. 3. 95 Rezaie, supra note 3 at 184. 96 Protected under Copyright Act, supra note 92, s. 18. Reynolds, supra note 10 at 647 notes that there may also be a separate copyright in the song’s lyrics as a literary work.
97 Dicola, supra note 6 at 5. The term “sound recording” is defined in s. 2 of the Copyright Act, supra note 92 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.” Rezaie, supra note 3 at 183-84 explains that the two layers of copyright are necessary for musical works since “the sound recording of a musical composition, even when performed by the same artist may change from performance to performance and, therefore, the sound recording of each performance will need its own separate copyright protection.” 98 Copyright Act, supra note 92 at s. 13(1). 99 Ibid. at s. 24(b). 100 This right is granted by the Copyright Act, ibid. at s. 3 for the musical composition, and the same right is granted by s. 18 for the sound recording. Note that there are various other exclusive rights which may be infringed in mashup creation and performance including the musical composition owner’s right to make a sound recording, rights involved with translation, rights to communicate to the public via telecommunication and the right to perform the work in public, as outlined in Reynolds, supra note 10 at 652. 101 Copyright Act, ibid. at s. 15(1)(b)(ii).
17 rights for anyone other than that person to perform the activities within the exclusive purview of the copyright holder,102 and such infringement entitles the copyright owner “to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.”103
The unauthorized use of samples of musical works in mashups may constitute copyright infringement where samples are used without permission.104 Samples may be used legitimately if the relevant copyright holders issue requisite licenses to the mashup artist,105 however, the majority of mashups, including those by the most popular mashup creators such as Danger Mouse,106 Girl Talk107 and those distributed online by groups such as the Kleptones,108 are composed of unlicensed samples.109 Such unapproved sampling will involve both the sound recording and musical composition copyrights since “taking a fragment of a sound recording necessarily means using the part of the composition underlying that fragment.”110
102 Ibid. at s. 27 for musical compositions and s. 18 for sound recordings. 103 Ibid. at s. 34(1). Moreover, s. 35(1) sets out that the infringing party “is liable to pay such damages to the owner of the copyright as the owner has suffered due to the infringement and, in addition to those damages, such part of the profits that the infringer has made from the infringement and that were not taken into account in calculating the damages as the court considers just.” Also, in lieu of profits and damages, the copyright owner can elect pursuant s. 38.1(1) to recover statutory damages “in a sum of not less than $500 or more than $20,000 as the court considers just.” 104 Dicola, supra note 6 at 2. 105 Copyright Act, supra note 92 at s. 13(4). See discussion of legitimate mashups above under “PART 2: MASHUPS AS WORKS PARTICULARLY WORTH ENCOURAGING—Mashups as Beneficial for the Music Industry”. 106 Reynolds, supra note 10 at 643. 107 Katz, supra note 23 at 33; Pote, supra note 13 at 647. 108 “The Kleptones Invite You To…‘A Night at the Hip Hopera’”, online:
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To constitute infringement, the sample used must reproduce the whole underlying work or a substantial part thereof.111 Guidance for determining whether or not a substantial part of a musical work has been reproduced was provided by the Ontario High Court of Justice in Canadian Performing Right Society Ltd. v. Canadian National Exhibition Association.112 In that case, the Defendant used between five and thirty-two measures of the Plaintiff’s musical work in an exhibition without permission. The Court determined that the assessment for infringement could not be exclusively quantitative in nature and that the test should be whether an individual familiar with the Plaintiff’s work would recognize it as used in the Defendant’s work.113 This issue was considered by a Canadian court again in Grignon v. Roussel,114 in which the Defendant copied eight measures of the Plaintiff’s song, and, again, the Court emphasized the qualitative nature of the taking in that it was found to constitute “the ‘hook’ that the ear retains for the purpose of identifying a piece.”115 The upshot of this jurisprudence is that even if only a small amount is taken from a song, if the amount taken is sufficient to make the original song recognizable or identifiable within the allegedly infringing work, the amount taken will constitute a ‘substantial part’ of the original work and a finding of copyright infringement will be made.116
For mashups combining only two songs, AKA the “A vs. B” variety mashup117, such as DJ Faroff’s combination of Bob Marley’s “No Woman, No Cry” and the Beatles’ “Let it Be” in the mashup “Let it Be No Cry”118, it is likely that a quantitatively substantial part of the underlying
111 The establishing of objective similarity between the plaintiff and defendant’s works is only one of three steps en route to a finding of copyright infringement, as the Plaintiff must also show that she has a valid copyright in the underlying work, that the Defendant had access to that work and that the Defendant’s work is based on the Plaintiff’s. Given the popularity of the songs which mashups are typically composed of, access can be presumed, and the use of sampling effectively negates the requirement to show that the Defendant’s work is based on the Plaintiff’s. Reynolds, supra note 10 at 650. 112 Canadian Performing Right Society Ltd. v. Canadian National Exhibition Association, [1934] 4 DR 154 (Ont HCJ), cited in Reynolds, supra note 10 at 649. 113 Ibid. at 649. 114 Grignon v. Roussel (1991), 44 FTR 121 (FCTD), cited in Reynolds, supra note 10 at 649. 115 Reynolds, supra note 10 at 649. 116 Ibid. 117 Ibid. at 648. 118 Audioporn Central—Faroff—Let it Be, No Cry, online:
19 songs are reproduced.119 In such cases, even if it is only one of the instrumental or vocal tracks that is utilized in the mashup, the portion used is typically fairly lengthy, and in some cases the full length of the underlying song’s vocal or instrumental track will be sampled. At any rate, and more importantly, such lengthy samples may be more likely to be recognizable, and therefore more likely to infringe the copyright in the songs from which they were taken.
Similarly, in cases in which much shorter samples are used, such as Girl Talk’s mashups, which may employ over 320 samples in less than an hour of music,120 the qualitative aspect of the samples is such that they are frequently recognizable and therefore potentially infringing. Therefore, whether mashups are composed of only two longer samples or multiple shorter samples, it is likely that the portions borrowed form other musical works are recognizable.
Of course, whether or not the use of a particular sample in a mashup is a copyright infringement must be assessed on a case-by-case basis, depending on the mashup in question and the sample used.121 It is notable, however, that maintaining the listener’s familiarity with the component parts of a mashup is often part of a mashup creator’s motivation.122 The musical portions used in mashups are frequently sampled in such a manner that they intentionally can be identified by listeners, so that the mashup creator can contrast an instrumental from one song with a vocal track from another.123 Girl Talk exemplifies this standard approach to mashups as illustrated by following quote by the mashup maker: “I like to use [samples] in a way that everything is recognizable. That’s part of the fun where you recognize the sample and you heard how it can be manipulated.”124 This speaks to the difficulty with respect to mashups’ copyright legitimacy in
119 Reynolds, supra note 10 at 648. 120 Ibid. at 648. 121 Pote, supra note 13 at 680. 122 Reynolds, supra note 10 at 650. 123 Aaron Power, “15 Megabytes of Fame: A Fair Use Defense for Mashups as DJ Culture Reaches its Postmodern Limit” (2007) 35 SW U L Rev 577 at 585 cited in Katz, supra note 23 at 27. 124 Reynolds, supra note 10 at 650.
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Canada and leads to the conclusion that by definition many mashups will prima facie infringe copyright, particularly where the samples relied upon are recognizable, as is often the case.125
3.1.2 Fair Dealing
Although unlicensed mashups relying on recognizable samples126 are arguably prima facie infringing, there are provisions in Canada’s copyright system on which mashups creators may attempt to rely to skirt a finding of infringement, namely the sections pertaining to fair dealing. Fair dealing, as outlined in ss. 29, 29.1 and 29.2 of the Copyright Act127, is an “integral part of the scheme of copyright law”128 and is always available for a defendant in a copyright infringement action.129 There are two steps to a fair dealing assessment, the first of which is a determination as to whether or not the defendant’s use of the plaintiff’s copyright material falls within one of the exceptional uses set out in the Copyright Act130—research or private study,131 criticism or review,132 or news reporting.133 In CCH Canadian Limited v. Law Society of Upper Canada134 the Supreme Court of Canada emphasized that these fair dealing provisions “must not be interpreted restrictively”135, however, it is only when the defendant’s dealing falls into one of the enumerated categories that she can proceed to the second step of the fair dealing analysis
125 Reynolds, supra note 10 at 652. As noted in Ruiz, supra note 110 at 403, some samples used in mashups will be “qualitatively insignificant” in that “someone familiar with the original work would not easily identify or recognize the source of the sample without having been told of its source.” An argument can be advanced that such samples can be used by mashup creators without infringing the copyright underlying the samples, but the focus of this paper is on qualitatively significant samples, which arguably constitute the heart of mashups. 126 For the sake of simplicity, subsequent references to mashups in this thesis are meant to encompass only those containing unlicensed recognizable samples. 127 Copyright Act, supra note 92 at ss. 29, 29.1 and 29.2. 128 CCH Canadian Limited v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339 para 49 [CCH]. 129 Ibid. 130 Ibid. at para 50. 131 Copyright Act, supra note 92 at s. 29. 132 Ibid. at s. 29.1. 133 Ibid. at s. 29.2. 134 CCH, supra note 128. 135 Ibid. at para 48.
21 which is a factual assessment of whether or not the dealing was, in fact, fair.136 Therefore, an assessment of fair dealing with respect to mashups must start with an attempt to categorize them under one of the enumerated categories in the Copyright Act.
Notwithstanding the Supreme Court’s emphasis on the importance of a broad reading of these categories in CCH, attempting to classify mashups under one of the listed headings very much appears to be akin to fitting a square peg in a round hole. For example, even though the Court noted in CCH that “‘[r]esearch’ must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained”137 it is difficult to conceive of mashups as research works, or as pertaining to private study generally. Although the Federal Court of Appeal recently found that song previews on legitimate music download services such as iTunes can constitute research for fair dealing,138 this broad reading of research will likely not extend to mashups since “generally mashups cannot be said to be part of the research process involved in purchasing a CD.”139 If a mashup is created by an individual solely for her/his own personal enjoyment and not distributed to others, this may fall under the heading of private study, but the widely disseminated mashups of artists such as Girl Talk and the Kleptones certainly could not benefit 140 from such fair dealing.
The categories of criticism and review provide a better foothold for mashup creators to advance a claim of fair dealing, but these will also likely be an inadequate basis for a defence, particularly for the works of mashup creators like Girl Talk.141 In Canada, “review” has been construed to require more engagement with a work than simply sampling part of it.142 It has been speculated
136 Ibid. at para 50. 137 Ibid. at para 51. 138 Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, [2010] F.C.J. No 570. 139 Reynolds, supra note 10 at 655. 140 Reynolds, supra note 10 at 656; Reynolds points to the decision in Hager v. ECW Press Ltd. [1999] 2 FC 287 (TD), in which the Court found that communication to the public precludes classification of a dealing as research or private study. However, Reynolds also notes that this decision is clearly in conflict with the Supreme Court’s expansive reading of fair dealing in CCH. 141 Some mashups are more likely to be caught under the heading of review, such as the mashing of the entire catalogue of Canadian folk-rockers the Weakerthans on to one track or the combination of a particular year’s top 40 hits into one song. Reynolds, supra note 10 at 640. 142 Canada v. James Lorimer & Co (1984), 77 CPR (2d) 262, cited in Reynolds, supra note 10 at 656.
22 that “this additional requirement could potentially be satisfied by the insertion of various comments into the mashup, noting, for instance the passage of time, the names of the artists’ albums, or prominent historical events giving context to the artist’s career.”143 Mashups indeed may be used as a vehicle to make a comment on their underlying works or on some other social target and thereby become classifiable as criticism or review in that sense. For example, it is possible that “a mashup artist may wish to critique the homogeneity of contemporary pop music by combining sound recordings from multiple artists into one seamless track.”144 However, the most popular examples of mashups, and the ones generally addressed here, do not typically involve such commentary and, as such, cannot be classified as review. 145 Such mashups are created exclusively for the sonic qualities they exhibit and neither their creators nor fans typically desire further comment.
Similar difficulties are encountered in attempting to classify mashups as critical works for fair dealing purposes. An unduly restrictive reading of criticism is inappropriate following the Supreme Court’s emphasis on the importance of user rights in CCH, but difficulty is encountered in labeling mashups as critical works given that a critical assessment of the sampled music is simply not the purpose of many of the most popular mashup creators. Rather, many of these DJs create such mashups as homages to underlying works. For example, Danger Mouse utilized samples from the Beatles and Jay-Z to create the Grey Album because he is an “avid fan” of their music, 146 and the album, devoid of any apparent critical assessment, seems to be better described as a “sincere, sophisticated homage to two acclaimed works and the musical celebrities who created them.”147 Likewise, Girl Talk’s work has been characterized as being an homage to the underlying artists and not a critical assessment.148 Even if not necessarily classifiable as
143 Ibid. at 656. 144 Ibid. at 657. 145 Ibid. at 666 where Reynolds states that “[s]ome mashups are parodies, some satire and some homages” but the variety of mashups on which I am focusing and which arguably constitute the most orthodox type of mashup are those that fall into the category of homage exclusively, as exemplified in the mashups of Danger Mouse or Girl Talk. 146 Lim, supra note 15 at 371. 147 Reynolds, supra note 10 at 660-661. 148 Ibid.
23 works revering the content of which they are composed, mashups may simply be created for a particular sonic quality—a given sound that could only be achieved by using a particular sample. As with works of homage, this hardly suggests an engagement with the underlying work which could be described as critical in a substantive sense. One may try to force the critique label on such mashups, but this is extremely difficult in light of the orientation of the most popular mashup creators, insofar as their works lack a critical engagement with the component songs.149
Finally, while a news report could certainly include a mashup as an interesting way of breaking a particular story, “it is unlikely that many mashups will be created for the purpose of news reporting.”150 Mashups may be created for a variety of purposes, but artists such as Girl Talk likely do not envision themselves to be playing the same role as news anchors Lloyd Robertson or Peter Mansbridge, as hip as these individuals may be. Given that mashups—other than those created privately and not distributed widely—can generally not be classified under any of the categories set out in the Copyright Act for fair dealing, those provisions will not apply to enable a mashup creator to evade a finding of copyright infringement. As such, it is not necessary to proceed to the second step of the analysis, the consideration of whether or not the dealing is in fact “fair”.
3.2 The United States
3.2.1 Infringement
In light of the absence of directly applicable case law with respect to sample-based music in Canada, the American jurisprudence may be instructive in attempting to gain a better understanding of the domestic copyright regime.151 While there are no American cases on mashups specifically, there are numerous decisions from U.S. courts dealing with music
149 Reynolds, supra note 10 at 657 comments that even to the extent that mashups may be described as a form of parody, this does nothing for their legitimacy vis-à-vis fair dealing, given that “Canadian courts have consistently rejected the claim that parody is a defence to copyright infringement.” 150 Ibid. at 656. 151 There are several similar theoretical and policy foundations in the Canadian and American copyright systems, as noted in Robert G Howell, Recent Copyright Developments—Harmonization Opportunities for Canada”(2004) 1 UOLTJ 149 at para. 6.
24 sampling generally, typically in the hip-hop context. The American sampling case law is riddled with gaps and the “tests relevant to sampling are vague, making it difficult for sampling artists to know boundaries,”152 but it will still help to shed light on the Canadian situation. The first major American case dealing with sampling came about in 1991 with the decision in Grand Upright Music Ltd. v. Warner Bros. Records, Inc.,153 in which rapper Biz Markie was sued for his use of a ten second sample of the song “Alone Again (Naturally)” by Raymond “Gilbert O’Sullivan.154 The tone of the decision, and of much of the subsequent American jurisprudence on sampling, was set by the Court with its opening line from the book of Exodus—“Thou shalt not steal.”155 Critics of the Grand Upright decision have commented that “rather than properly scrutinizing the matter and devising standards, the court created a bright-line rule” wherein there were no situations in which musicians could sample the work of others without permission. 156 One of the consequences of the decision in Grand Upright and the bright line approach it endorsed was a chilling effect on the use of samples in American hip-hop in the aftermath of the ruling.157
The more recent American decision by the Sixth Circuit Court of Appeals in Bridgeport Music, Inc. v. Dimension Films158 was similarly discouraging for creators of sample-based music. In that case, Bridgeport, the owner of the copyright to George Clinton’s song “Get Off Your Ass And Jam” sued rap group N.W.A. for the latter’s sampling of that song in the track “100 Miles and Runnin”. Once again, a bright line test was employed and the Court warned sampling
152 Ruiz, supra note 110 at 402. The music sampling jurisprudence is not terribly well-developed given that the vast majority of legal disputes have settled out of court, Dicola, supra note 6 at 8; Rezaie, supra note 3 at 181. 153 Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 183 (S.D.N.Y. 1991)[Grand Upright]; Reilly, supra note 63 at 368. 154 Grand Upright, ibid., at 183. The ten second sample was continuously looped through Biz Markie’s song “Alone Again”. Falstrom, supra 71 note at 362. 155 Falstrom, ibid. at 364 comments that this biblical quote constituted the decision’s “only reference to any authority or precedent.” 156 Ashtar, supra 14 at 266. It has also been said that the ruling in Grand Upright contained “minimal copyright analysis” and that the Court lacked any degree of appreciation for sample-based music as a form of art. Szymanski, supra note 30 at 301; Falstrom, ibid. at 377. 157 Ashtar, supra 14 at 267-68. Certain hip-hop groups such as Public Enemy changed their styles altogether in light such a sample-unfriendly legal regime. 158 Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830 (M.D. Tenn 2002), rev’d., 383 F.3d 390 (6th Cir. 2004), aff’d on reh’g, 410 F.3d 792 (6th Cir. 2005)[Bridgeport].
25 musicians to avoid sampling if they could not obtain the requisite licenses.159 The ruling essentially meant that any unlicensed sampling of a sound recording of any length amounts to infringement of both the musical composition and the sound recording itself.160 The Bridgeport Court found that musical samples are used because they are valuable and that sampling is a form of theft.161 The decision diverged from some previous jurisprudence on sampling in which minor uses of others’ musical composition could be overlooked and the Court refused to allow de minimis sampling for a sound recording.162
The Bridgeport Court has been heavily criticized for the paucity of judicial precedent on which it relied and its pronounced dependence on law review articles to justify its ruling.163 Additionally, like the ruling in Grand Upright before it, the Bridgeport Music decision has been heavily criticized for discounting “‘any potential artistic or critical value in the selection and execution of a sample,’ implying that artists who sample do not want to do work or pay another for the use of the creator’s work.”164 As such, the Court did not consider the value in the proliferation of sample-based works, notwithstanding American copyright law’s concern for the proliferation of creative works generally.165
The decisions in Grand Upright and Bridgeport Music should not be given too much weight here for a number of reasons. Firstly, they are decisions by lower courts rather than the U.S. Supreme
159 Ibid. at 398. 160 Achenbach, supra note 19 at 199. Rezaie, supra note 3 at 187 emphasizes that the Bridgeport Court “reasoned that any sampling of a sound recording constituted copyright infringement, and thereby eliminated the substantial similarity element when determining whether an unauthorized copying occurred.” 161 Bridgeport, supra note 158 at 189. 162 As was the case in Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003) where the Court found that the portion sampled was a de minimis taking from the musical composition and, as such, was not infringing. 163 Achenbach, supra note 19 at 199. Bridgeport has been questioned in terms of both law and policy. McLeod and DiCola, supra note 8 at 147. 164 Katz, supra note 23 at 27. 165 Ibid. at 28. In this vein, Dicola, supra note 6 at 2 comments that decisions such as Bridgeport Music have focused disproportionately on “upstream creators’ incentives.”
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Court and, as such, they are not applicable throughout the United States.166 Secondly, and more importantly, since Grand Upright and Bridgeport Music are American cases they are not applicable in Canada. They can be, however, quite helpful in assessing copyright infringement for sample-based works, particularly in light of the lack of Canadian cases in that realm and the significant similarity between the Canadian and American copyright systems.167 In that sense, these cases may tacitly reaffirm previous comments with respect to the frequently infringing nature of mashups.
3.2.2 Fair Use/Parody
As with fair dealing under the Canadian copyright system, in the U.S. “fair use” may be employed in order to permit “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.”168 In that vein, it is helpful to consider the potential application of fair use in the mashup context. A germane case is the decision in Campbell v. Acuff-Rose Music, Inc.169 where the U.S. Supreme Court assessed the claim to fair use protection for parody. In that case, Acuff-Rose Music, Inc. sued 2 Live Crew for their unlicensed parody of Roy Orbison’s song “Oh, Pretty Woman” in the rap group’s raunchier “Pretty Woman”.170 The Court noted that if it were not for fair use via parody, “[i]t is uncontested…that 2 Live Crew’s Song would be an infringement of Acuff-Rose’s rights in ‘Oh, Pretty Woman’ under the Copyright Act.”171 The Court applied the four-part test to assess fairness of the use172, which encompasses analysis of
166 Dicola, ibid. at 11, emphasizes for example that Bridgeport is technically only the law in the 6th Circuit, which is composed of Tennessee, Kentucky, Ohio and Michigan. However, he warns that given the absence of another higher court’s comment on the matter, “Bridgeport has effectively become the law of the land for the time being.” 167 Howell, supra note 151. 168 Omari, supra note 4 at 38. It is notable that, unlike fair dealing in Canada, fair use is not limited to pre- determined categories, but is open, as noted in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994) at 342. [Acuff-Rose]. 169 Acuff –Rose, ibid. 170 Ibid. at 572. 171 Ibid. at 575. 172 This test predictably echoes what is outlined above in the assessment of fair dealing, or, more accurately, fair dealing echoes fair use, as latter was based in part on the former, as noted in CCH, supra note 128 at para 53.
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(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.173
With respect to first step, the Court commented that a relevant consideration will be whether or not the allegedly infringing work “adds something new, with a further purpose or a different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.”174 The Court went on to comment that “the more transformative the new work, the less will be the significance of the other factors, like commercialism, that may weigh against a finding of fair use.”175 It found that the transformative value of parody made fair use applicable given that it “can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”176
Many mashups can be classified as transformative works as that concept was outlined in Acuff- Rose. Samples employed in mashups are frequently recast in new contexts, intermingled with unexpected pieces of music and delivered to an audience that is frequently unfamiliar with the genre from which the samples were taken. As such, it can be contended that mashups alter the original works used with new expression. There is still difficulty associated with attempting to rely on Acuff-Rose as precedent to justify commercial mashup creation, however. The Court commented that if the portion of another’s work allegedly used in parody “has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly.”177 While the transformative nature of the works in question is a significant factor under the American fair use analysis, the absence of
173 Acuff-Rose, supra note 168 at 577. 174 Ibid. at 579. 175 Ibid. at 579. 176 Ibid. at 579. At 580, the Court clarified that “the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” 177 Ibid. at 580. At 527 Justice Kennedy commented that “parody may qualify as fair use only if it draws upon the original composition to make humorous or ironic commentary about that same composition.” (emphasis mine) This also causes difficulty for applying the fair use exemption to mashups.
28 any critical element in certain mashups—as previously discussed with respect to both Danger Mouse and Girl Talk in the Canadian fair dealing context—tends to suggest that they would be subject to the same fate under fair use as outlined previously with respect to fair dealing.178
Therefore, in terms of the guidance it potentially provides in light of the absence of Canadian decisions on point, once again the U.S. jurisprudence is not helpful for those desiring to legitimately create mashups. Moreover, even if such mashups could be classified as parodies, such works do not have the foothold in Canada under fair dealing that they do in the U.S. under fair use. The leading Canadian case dealing with parody vis-à-vis fair dealing is Cie Generale des Etablissements Michelin-Michelin & Cie v C.A.W.-Canada et al (Michelin),179 in which the Defendant union reproduced the Plaintiff’s cartoon mascot in material used as part of a labour organizing campaign. The Plaintiff sued on several bases, including copyright infringement for the Defendant’s reproduction of the Michelin Tire Man (or ‘Bibendum’) character. The Defendant union contended that its use of the Plaintiff’s copyright constituted parody, and argued that such parody falls under the fair dealing heading of criticism.180 The Federal Court of Canada rejected this line of argument and found that parody does not fall under the heading of criticism.181 Although Michelin is, at least in part, questionable law in light of the restrictive view it took of the fair dealing categories182 given the more expansive approach subsequently taken by the Supreme Court in CCH, it still stands as the only Canadian case directly addressing
178 An argument may be advanced that the U.S. Supreme Court acted in a somewhat arbitrary manner by encouraging parody but not satire, which it said at 580 “can stand on its own two feet and so requires justification for the very act of borrowing,” however, an extensive discussion of that issue is beyond the scope of this thesis. Moreover, the argument has been made that a mashup may be parodic in any one of a number of ways—for instance if it criticizes the homogeneity of current pop music by combining several songs into a unified track. Reynolds, supra note 10 at 657. However, the legitimacy of such “weapon parodies” [i.e. critiques not of the underlying material but of some other subject] in copyright is debatable at best. Reynolds, supra note 10 at 660. Furthermore, as noted above, mashups containing such critical elements constitute exceptions to the rule, and this thesis is generally concerned with the more orthodox variety of mashups. 179 Cie Generale des Etablissements Michelin-Michelin & Cie v C.A.W.-Canada et al. (1996), 71 CPR (3d) 348. 180 Ibid. at 49. 181 Ibid. at 42. The Court commented at paragraph 62 that insofar as it pertains to fair dealing, criticism “requires analysis and judgment of a work that sheds light on the original.” 182 Ibid. at 63.
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parody’s absence from the fair dealing framework. As such, it points to the currently poor prospect for success for a fair dealing argument based in parody.183
4 ARTICULATION OF THE PROBLEM
4.1 Constraints on Mashup Creation
4.1.1 Licensed Mashups
Given that the creation of mashups apparently infringes copyright in underlying musical works, creators of these musical compilations likely need to obtain licenses to create their mashups legitimately. There are, however, several impediments to the licensed creation of mashups, one of which is the complicated current system under which such musical works can be produced without infringing underlying copyrights. Let us consider a hypothetical amateur up-and coming mashup creator—dubbed Boy Speak for the purposes of this assessment—who wants to create and distribute a mashup relying on recognizable samples that her listeners will readily identify. As noted above, Boy Speak may legitimately create such a mashup if she obtains licenses for the relevant samples she intends to use, where the use of those samples would otherwise constitute copyright infringement.184 Nevertheless, the obtaining of such licenses proves to be a tremendous hurdle for those wishing to legitimately create mashups for a variety of reasons, the first being the complicated nature of the copyright interests involved in musical works.185 While it is not impossible that Boy Speak (or any other amateur mashup creator for that matter) may be well versed in copyright law as it pertains to musical works, generally the Byzantine system of rights and entitlements are very difficult for a layperson to understand.186 For example, in order to obtain licenses for a sample, Boy Speak must first locate the copyright holders to the sound
183 The recent proposed amendments to Canada’s Copyright Act found in Bill C-32 included provisions which would have added parody, along with satire and education, to the fair dealing sections in the Act. Bill C-32, Copyright Modernization Act, accessed at:
30 recording and the underlying musical composition. This search is made more complicated by the fact that those copyright interests can be split between many parties, and persons other than the author/musician, such as a record label or publisher, frequently hold them.187 This perplexity will be exponentially increased if Boy Speak wishes to sample a work composed of samples, which is problematic in light of the use of hip-hop songs in the composition of many mashups.188 This process of clearing samples has been described as so complicated that it requires an individual to be intimately “connected” within the music industry to successfully obtain the rights to use a particular sound recording in a mashup.189 The often confusing nature of the sample clearing process arguably leads to a creation of fewer legitimate mashups by artists in Boy Speak’s position.190
Of course, even if Boy Speak were so wise (and lucky) as to successfully navigate the labyrinth of rights holders and locate the relevant parties who own the rights to the sample in question, there is no guarantee that these rights holders will grant licenses for use of her desired sample. Such license refusals are a significant impediment to legitimate mashup creation for many DJs.191 While these denials may be objectively understandable in some instances, such as for serious moral rights concerns,192 under the current licensing system copyright holders are not required to provide reasonable justifications for such sample denials, which clearly may be
187 Ashtar, ibid.; Dicola, supra note 6 at 5 states that “[r]ecording artists often transfer their sound recording copyrights to record labels in return for financing and marketing their works, as well as advance and royalty payments. Composers and songwriters generally sign contracts with publishers to administer their copyrights, splitting the revenue.” 188 McLeod and DiCola, supra note 8 at 181, where the authors note the astoundingly complex nature of the copyright issues associated with Girl Talk’s mashups, given his sampling of several hip-hop songs, in particular, which have themselves sampled previous musical works. 189 Reynolds, supra note 10 at 646; Katz, supra note 23 at 31. Furthermore, the confusion on the part of mashup creators is exacerbated by inconsistent behaviour by music copyright holders who choose to enforce their rights in some instances, but not others, as discussed at Katz, supra note 23 at 47. 190 Katz, ibid. at 21. 191 McLeod and DiCola, Creative License, supra note 8 at 119, where the authors state that it is standard practice for some music publishers to refuse sample licenses. 192 Moral rights concerns are addressed below under “PART 5: CANADIAN COMPULSORY LICENSING REGIME—Compulsory Licensing of Music Samples and Moral Rights”.
31 problematic for potential mashup creators such as our hypothetical heroine.193 Sampling artists who wish to use the music of bands such as AC/DC and the Beatles have encountered this frustrating problem, as the copyright holders of their catalogues categorically refuse to license samples of their music.194
In the event that Boy Speak’s sampled artists grant permission, our hypothetical mashup maker may still be unable to proceed if these rights holders demand exorbitant licensing fees.195 This proves to be a serious problem for many mashup creators196 and is encapsulated in the following statement by hip hop artist Mr. Dibbs: “…you can call me on the phone personally, and I’m not giving you [expletive] because I’m not making enough money to pay eight grand for an ‘uh’ from James Brown.”197 This quote points to the extremely high license fees that are charged by copyright holders for what are in many cases short samples.198 It is not uncommon for a sample license to cost as much as $5000 for a 3 second loop, 199 although such short samples have been known to cost as much as $50,000.200 More lengthy samples are, not surprisingly, likely to be even more expensive. Therefore, Boy Speak will face even larger economic hurdles if she wishes to use entire instrumental or vocal tracks, such as those found on Danger Mouse’s Grey Album. Additionally, this financial difficulty is only exacerbated as more samples are used, as conveyed in the following excerpt:
193 Given that the copyright in desired songs is often not held by the relevant artists but by “sample trolls”, Lim makes the following observation in “Grey Tuesday”, supra note 15 at 377: “It is one thing for the artists who toil to create these artistic pieces to personally wish to prevent others from using them. However, the spirit of copyright law does not seem to apply when faceless corporations use the law to dissuade other artists from using works within the corporations’ control.”
194 McLeod and DiCola, supra note 8 at 181; Bill Werde, “Defiant Downloads Rise from Underground” The New York Times (25 February 2004), online:
200 Josh Norek, Note, “You Can’t Sing Without the Bling”: The Toll of Excessive Sample License Fees on Creativity in Hip-Hop Music and the Need for a Compulsory Sound Recording Sample License System” (2004) 11 UCLA Ent L Rev 83 at 89; Ashtar, supra 14 at 273.
32
In practice, musicians who use multiple samples per song—creating, say, a collage of twenty or more existing songs—cannot hope to obtain the necessary licenses without pushing their revenue to zero or less.201
Moreover, if Boy Speak intends on using popular songs in her mashup it will be all the more financially difficult for her to clear the desired samples. Licenses for well-known songs are likely to be more expensive,202 which is problematic given that the motivation in making a mashup is often to combine multiple familiar songs in order to play on listeners’ recognition of those songs, albeit in a new context.203 Such high license costs will often preclude the making of the contemplated mashup,204 particularly for the vast majority of mashup creators who are not well- established financially.205 Even more financially stable mashup creators face great financial difficulty in creating mashups under the current licensing system, however. For example, Girl Talk has stated that had he tried to create his previous albums using only cleared samples, the 206 license fees would likely have prevented these albums from being made at all.
Assuming our imaginary music maker Boy Speak is able to successfully clear yet another hurdle and obtain licenses for her desired samples of preexisting music, the current business/legal regime creates yet another disincentive to the creation of legitimate mashups, given the publishing rights that may be demanded by the sampled artists.207 This problem is encapsulated in the following excerpt:
…an artist seeking to produce an album like the Grey Album legally would have to get permission to use copyrighted material and negotiate compensation with the copyright holder, who might request more than 50 percent of publishing rights for a new song created from the copyrighted work. With regard to mash-up, an artist would have to make arrangements to give away all of his revenues if he tried to obtain permission from all the copyright holders.208
201 Dicola, supra note 6 at 20. 202 Lim, supra note 15 at 377. 203 See above under “PART 1: MASHUP BACKGROUND—Mashups Defined/History”. 204 Reynolds, supra note 10 at 646. 205 Lim, supra note 15 at 377. 206 McLeod and DiCola, supra note 8 at 181. 207 Gasser and Ernst, supra note 1 at 13. 208 Ibid.
33
This is a very serious issue for mashup creators in that it removes much of the financial incentive to create. While it is true that mashups may be created without the incentive of financial compensation, the prospect for reimbursement for one’s work certainly encourages mashup creators to produce their works.
Moreover, under the current free market system for the licensing of samples, sampling artists are in a distinctly disadvantaged position with respect to those holding underlying musical copyrights.209 Typically a mashup creator will be unable to obtain a license prior to making her song since “[a] musician often does not know what sample is desired until she spends the studio time to create a song with that sample.”210 Therefore, frequently a mashup creator will be approaching a rights holder with a completed song in hand and, as such, that rights holder will have more leverage in the negotiation for the sample license. The underlying copyright holder will be acutely aware of the fact that a refusal to provide a license may pose a major problem for the mashup creator who has already spent time and possibly money creating the mashup. Such disparity of power in bargaining as between the mashup creator and the copyright holder contributes to the high sample costs discussed in the two preceding paragraphs and has the effect of dissuading many potential mashup makers from producing new works.
4.1.2 Unlicensed Mashups
While an assessment of the difficulties in creating legitimate mashups is essential in sketching out the fundamental problems associated with the creation of such works, it is worth emphasizing that the majority of mashups are made illegitimately, in that licenses are not sought for their creation and two or more musical copyrights are likely infringed.211 Indeed, many mashups “exist solely as fly-by-night bootleg internet uploads, mainly for fear of legal repercussions from publishers and record labels.”212 Danger Mouse and Girl Talk are just two of
209 Achenbach, supra note 19 at 199. 210 Dicola, supra note 6 at 13. At 16 DiCola notes that “[o]nly ex post licensing is realistic in the music industry, when songs generally have to be created and heard to be evaluated.” 211 Reynolds, supra note 10 at 646; However, see discussion above under “PART 2—MASHUPS AS WORKS PARTICULARLY WORTH ENCOURAGING—Mashups as Beneficial for the Music Industry” where several legitimate mashups are discussed. 212 Tough, supra note 8 at 208.
34 the high profile examples of mashup makers who have not cleared their samples. Returning to our theoretical mashup creator—Boy Speak may decide that in order to avoid the confusion, uncertainty and cost associated with legitimately licensing samples for her mashup, she should proceed as most of her predecessors did and create the work with unlicensed samples. In spite of the advantages associated with employing unlicensed samples, including the avoidance of upfront costs and complications as outlined above, there are obviously many drawbacks which will still dissuade Boy Speak from creating her mashup in this manner. Chief among these disadvantages is the threat of litigation from the samples’ copyright holders.
Danger Mouse provides an example of this legal risk as his production of the Grey Album created the potential for lawsuits from at least four entities—the owners of the copyright in the sound recordings in both the White Album and the Black Album, as well as the owners of the musical composition underlying both of those sound recordings.213 Potential legal pursuit by four plaintiffs appears paltry, though, when compared to the prospect for litigation arising from more than 300 uncleared samples, as was the case on Girl Talk’s Feed the Animals.214 A similar number of samples on his 2006 album Night Ripper has been estimated to give rise to potential legal liability of as much as $45 million USD.215 Such threats of costly litigation serve as a disincentive to potential mashups creators who would have produced works without licenses, and, as such, lead to the production of fewer mashups.216
213 Lim, supra note 15 at 374. Ashtar, supra 14 at 303 notes that while EMI objected to the Grey Album, Jay-Z and his label, Roc-A-Fella records, did not. Conversely, as discussed in Katz, supra note 23 at 48, they tacitly encouraged the production of remixes and mashups by releasing a cappella raps from the Black Album. 214 Katz, supra note 23 at 33. 215 Douglas Gelevan, “Getting RiPped—Brett Gaylor’s RiP: A Remix Manifesto” Douglas Gelevan Reports (2 April 2010), online:
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The difficulties associated with creating mashups legitimately—such as confusion for mashup creators, refusal of licenses by underlying copyright holders, and a bargaining environment which unduly favours those copyright holders and allows them to demand exorbitantly high fees—and the litigation risks associated with the creation of mashups with unlicensed samples present an unattractive catch-22 for potential mashup creators. Those who may potentially try to create mashups are confronted with a situation in which it is difficult and costly to produce them legitimately but extremely risky to create them with unlicensed samples. The result of the current licensing system, therefore, is ultimately the creation of fewer mashups.
4.2 The Mashup Status Quo and Balance in Copyright
The current free market licensing regime for samples is ineffective for the reasons outlined above, and unfortunately the consequence is that fewer mashups are created and “meaningful contributions to culture are lost.”217 This is problematic with respect to the importance under copyright of the proliferation of creative works, as discussed by the Supreme Court of Canada in Theberge.218 As alluded to above, in that case Canada’s highest court emphasized that copyright law is concerned not only with protecting author’s works, but also with the facilitation and dissemination of works of the arts.219 This rationale was echoed in the Supreme Court’s decision in CCH. In that case, the majority of the Supreme Court of Canada hearkened back to the decision in Theberge and emphasized that “the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”220
Although the Supreme Court has recently emphasized the importance of the dissemination of creative works, it was not simply paying lip service to the concept of just rewards for authors. Copyright holders of existing musical works are indeed due some degree of protection for their works. Such copyright protection for musical works provides an important incentive for the
217 Achenbach, supra note 19 at 222. 218 Theberge, supra note 64.
219 Ibid. at paras 30-31. 220 CCH, supra note 128 at para 23.
36 creation of music, as songwriters/producers create music with the comfort that they will have a certain degree of control over their works, which may include a right to financial remuneration in certain instances, as illustrated in the following excerpt focusing on the sampling context:
Copyright holders, at least some of the time, have a legitimate interest in compensation when their songs are sampled. Some musicians count on licensing revenue to keep their careers going. The rewards of sampling licensing might allow them to spend more time and effort on their compositions or recordings, and licensing can provide an additional revenue stream to augment musicians’ income from album sales or live concerts.221
American funk legend Curtis Mayfield provides an interesting example in this regard. Mayfield’s songs, typically defined by a particularly “funky” sound, are extremely popular in sample-based works,222 and the income from licensed samples of his work secured his family financially following a tragic accident which paralyzed him and from which he ultimately died.223 While the contemplation of sample licensing may not be the primary motivation for creating music—so much as the creative rush one receives or, more cynically, the more immediate revenue streams from record sales—this certainly provides incentive to create. As such, the concept of just rewards for copyrighted works should be considered in the crafting of a solution to the mashup problem articulated above.
Notwithstanding the importance of this financial incentive as it pertains to copyright, in the context of mashups and other sample-based works, the currently exclusive and largely unfettered rights of copyright holders of existing musical works have a detrimental effect on the ultimate proliferation of more creative works. Many academics have contended that copyright systems such as those in Canada and the United States unduly emphasize the protection of “upstream works” to the detriment of the creation of derivative “downstream works”.224 Such theorists emphasize that the protection offered to existing authors’ works is only one means of encouraging creativity225 and contend that facilitating easier production for new artists also
221 McLeod and DiCola, supra note 8 at 108. 222 Sample Details—Curtis Mayfield, online Who Sampled: Exploring and Discussing the DNA of Music:
37 encourages creativity.226 In attempting to incentivize creation of art through unduly strong protection of existing musical works the current copyright system may fail in certain instances, as encapsulated by Peter DiCola in the following:
….copyright’s regime for sampling can backfire when it attempts to maximize copyright holders’ incentives rather than providing a balance between copyright holders and subsequent users. When the sample-based work is not created, the copyright holder in the existing work receives no licensing revenue, harming the creators of existing works that the stronger copyright regime was supposed to help.227
It is in this vein instructive to revisit the example involving Curtis Mayfield. While it is established above that copyright protection of his works and the associated economic benefits were important incentives spurring him to write songs initially, the question becomes one pertaining to balance and just how much incentive is necessary. For instance, Curtis Mayfield’s samples have been known to attract license fees of as much as $350,000,228 pricing them well out of the range of the majority of mashup makers. While a certain degree of protection is necessary for his works, arguably allowing this complete control is detrimental to the copyright goal of the creation of more creative works insofar as mashups are concerned. This is troublesome in light of the desired copyright balance in Canada between just reward for the author and the dissemination of creative works.
Therefore, in the mashup context, one must not focus exclusively on the rights of the holder of the sample copyrights with respect to the protection of their works even if these rights are quite significant. Rather, the dissemination of further works, including mashups, is also factored into the balance such that one must weigh the underlying author’s rights against rights of mashup creators. Arguably, the Canadian status quo for the licensing of mashups skews the balance too heavily in favour of those who hold the copyright in existing musical works to the detriment of potential mashup creators. Again, potential mashup creators are confronted with a complex, costly process to clear samples, and copyright holders can refuse permission on a whim.
226 Ibid. at 193. 227 Dicola, supra note 6 at 4. 228 Steve Morse, “Setting the New Market in Sampling Sellers Are Looking to Make a Deal, But Buyers Are Wary” Boston Globe (3 March 2002), online:
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Alternatively, mashup creators are forced “underground”, and their works take on an infringing character. Such a set of alternatives is far from ideal.
5 CANADIAN COMPULSORY LICENSING REGIME
5.1 Compulsory Licensing Background
In light of the importance of mashups as a particularly beneficial form of musical works, the copyright goal of dissemination of more creative works, and the fact that the current business/legal system results in the creation of too few mashups, it is clear that a change to the current Canadian licensing regime is necessary. One potential solution is the creation of a compulsory licensing regime for the samples of which mashups are composed.229 A compulsory license has been described as “a provision…which forces or ‘compels’ a copyright owner to allow others to use his or her work at a specified royalty rate”230 and in this context would entail holders of the copyright in musical works accepting pre-determined fees in exchange for mashup creators’ rights to sample their musical works.
Such a system would not be entirely unprecedented and could be based on the compulsory license currently in place in the United States for cover songs, as set out in s. 115 of the American 1976 Copyright Act.231 Under that scheme, musicians can legitimately record cover versions of existing songs for a predetermined fee, so long as their use falls within the following parameters: the license applies to non dramatic musical works only;232 to be eligible, the song
229 The compulsory licensing approach has typically been discussed in the legal academy vis-à-vis samples employed in hip-hop music, as in Chris Johnstone, “Underground Appeal: A Sample of the Chronic Questions in Copyright Law Pertaining to the Transformative Use of Digital Music in a Civil Society” (2004) 51 J Copyright Soc'y U.S.A. 569 at 594, Szymanski, supra note 30 and Ruiz, supra note 110. Note that in most respects such a regime may also be suitable for samples used in hip-hop, but the discussion here will be limited to mashups for the sake of brevity. 230 Lesley Ellen Harris, Canadian Copyright Law (Toronto: McGraw-Hill Ryerson, 1992) at 129. 231 17 U.S.C. § 115 (2006); Ruiz, supra note 110 at 403. 232 Donald S. Passman, All You Need to Know About the Music Business 7th ed. (New York: Free Press 2009) at 209. Passman notes at 210 that songs from operas or musicals are likely excluded from the ambit of the compulsory license.
39 must have been previously recorded and distributed in phonorecords;233 and, finally, the cover version must not “change the basic melody or fundamental character of the song.”234 Those satisfying the foregoing requirements can obtain a license for the higher of 9.1 cents per song or 1.75 cents per minute of play time.235
The compulsory license in the U.S. has occasionally been controversial but despite considering its repeal in 1967 Congress ultimately retained it,236 at least in part due to the benefits arising from the scheme as outlined in the following:
When Congress was considering dismissing the compulsory license provisions from the Copyright Act, record industry leaders argued vigorously to retain it, claiming ‘performers need unhampered access to musical material on non-discriminatory terms.’ They claimed that the compulsory licensing scheme resulted in ‘an outpouring of recorded music, with the public being given lower prices, improved quality and a greater choice.’237
The decision to persist with the compulsory license, then, was due to the increased creative output, although it is notable that such a system does not disregard the importance of reimbursement of the underlying copyright holder. Therefore, such a system may be appropriate in attempting to attain a balance between just rewards for creators and the dissemination of creative works under the Canadian copyright system in the mashup context.
5.2 Proposed Canadian Compulsory Licensing Regime
A Canadian sample licensing system could be similar in many respects to the current scheme under s. 115 in the U.S. Like the American regime for cover songs, the proposed sample licensing system in Canada should be centrally administered, perhaps under the guidance of a
233 Ibid. at 210; Passman also explains at 210 that the purpose of this stipulation is to allow the copyright holder to control who gets the first license issued and at what rate. 234 Ibid. 235 Ibid. 236 Bryan Bergman, “Into the Grey: The Unclear Laws of Digital Sampling” 27 Hastings Comm & Ent LJ 619 at 649-50. 237 Ibid.
40 new branch of the Canadian Intellectual Property Office.238 However, the involvement of major music industry players would also be essential in ultimately arriving at the best possible system, given their particular background knowledge of the music industry. As such, the Canadian Musical Reproduction Rights Agency (“CMRRA”)239 and the Canadian Recording Industry Association (“CRIA”) 240, inter alia, would play a major role in the setting of license fees such that they are ultimately beneficial for the various parties involved in mashup creation.241
The determination of the mechanics of license fee rates is admittedly complex, given the variation in samples that may be employed by mashup creators in terms of length and quality. At any rate, license fees would need to be controlled in a similar manner to the license price under the American s. 115, otherwise these fees will frequently be excessively expensive for mashup creators who will be encouraged to produce works using unlicensed samples.242 Additionally, it may be logical that mashup creators be required to pay more for longer samples, given that “[w]hile not perfect, sample length is an attractive policy lever because it is objective, not requiring private parties or judges to engage in aesthetic assessments to understand the reach of copyright law.”243 The sample license could either be a flat fee or based on a certain portion of ultimate sales of the mashup in question. Theoretically, both options could exist under the compulsory licensing regime, and the licensee or licensor could opt for one or the other.
238 The logistic elements of the compulsory licensing scheme discussed here were inspired in part by Ankur Srivastava’s discussion of solutions to issues associated with digital file sharing in “The Anti-Competitive Music Industry and the Case for Compulsory Licensing in the Digital Distribution of Music” (2007) 22 Touro L Rev 375 at 449. 239 In its own words, the CMRRA is “a non-profit music licensing agency, which represents the vast majority of music copyright owners (usually called music publishers) doing business in Canada.” “What is CMRRA?” Canadian Musical Rights Reproduction Agency, online:
41
Moreover, only samples that reach the threshold set out with respect to infringement—i.e. those that would be recognizable as coming from the sampled work244—would need to be cleared under such a system. In this respect, it is important that Canadian courts adopt the de minimis doctrine with respect to sampling for short, unrecognizable samples245 and not interpret the rights of underlying music copyright holders in the same manner as the 6th Circuit Court in Bridgeport.246
While the payment of a license fee for the sample used in a mashup acknowledges the importance of the underlying work in the new creation, the compulsory licensing system would need to also acknowledge the importance of the mashup artist’s creativity in determining royalty allotment. As noted, sample copyright holders’ demands for significant royalties from mashups in many cases prevent these creative works from being made at all. Therefore, the total royalties claimed by underlying artists would need to be limited to a particular percentage, so as to balance the incentives to create for both those artists and the creator of the new mashup. The division of royalties would, of course, need to be contingent on the number of samples employed.
Additionally, unlike the American compulsory regime for covers, which prohibits cover artists from fundamentally changing “the basic melody or fundamental character of the song”247 the proposed compulsory licensing regime for mashups would require the mashup artist to change the nature of the sample in question. This is necessary to ensure that the sampling artist is not simply attempting to reproduce a copy of the sampled work, which would directly undercut the sampled artist. Instead, the sampling artist would have to establish that she is using the sample from the underlying work as part of a new work of art. The purpose of the proposed compulsory licensing regime is to encourage the creation of transformative works such as mashups, not to contribute to the ability of uncreative artists to misappropriate existing musical works.
244 See discussion of infringing samples above under “PART 3: MASHUPS AND COPYRIGHT—Canada— Infringement”. 245 Ruiz, supra note 110 at 402. 246 See discussion of the ruling in Bridgeport above under “PART 3: MASHUPS AND COPYRIGHT—The United States—Infringement”. 247 Passman, supra note 241 at 210.
42
The comments of the United States Supreme Court in Acuff-Rose and the academic literature discussing that case may provide helpful guidance in assessing just what is transformative, and in that regard it has been noted that rather than merely ‘repackag[ing] or repubulish[ing] the original [work,]’ transformative use adds value by using the quoted matter ‘as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings…248
Transformativeness can be assessed based on how much has been added to the sample taken, and how much the tone, nature or purpose of the underlying sample has changed.249 Moreover, in order to meet the standard of transformativeness necessary to take advantage of the compulsory licensing regime the new work would need to demonstrate “intellectual labor and judgment” rather than use of large samples in “wholesale mechanical fashion.”250 While this determination of transformativeness will be “highly subjective” the assessment of the application of “intellectual labor and judgment” could be determined based in part on the threshold of “skill and judgment” used to determine whether a work meets the standard of originality in the Canadian copyright context. This would call for the mashup to be “more than a mere copy of another work”251 and it could not be the result of “mechanical effort”.252 The requirement for skill means “the use of one’s knowledge, developed aptitude or practised ability in producing the work”253 while judgment means “the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.”254 The mashups of artists such as Danger Mouse and Girl Talk, which involve careful selection and arrangement of particular samples, provide perfect examples of the standard that mashup artists should aspire to meet with respect to skill and judgment in the creation of their musical works.255
248 Ashtar, supra 14 at 309. Note, however, that the standard employed for transformativeness here will not be as rigid as that employed in Acuff-Rose, supra note 169, in that it was potentially limited to parodic works in that case. 249 Ashtar, supra 14 at 309; Omari, supra note 4 at 38. 250 Ashtar, supra 14 at 312. 251 CCH, supra note 128 at para 16. 252 Ibid. at para 16. 253 Ibid. at para 16. 254 Ibid. at para 16. 255 Hetcher, supra note 77 at 16 contends with respect to Girl Talk’s mashups that “[i]t cannot plausibly be claimed that the new work is a recasting, adaptation or transformation of all or even one of these works.” This does not represent the universal response to the potentially transformative nature of mashups, however, as Lim, in “Grey
43
The following comment with respect to the transformative nature of Girl Talk’s work is instructive in that vein:
Greg takes a modest sample from a single song and mixes it with twenty or more other modest samples from different songs to form one innovative track, adding considerably more to each original work than he takes. Therefore, by taking only miniscule portions, making ample additions and building upon the original work, Greg makes his use sufficiently transformative.256
This is not to say that more simple mashups involving just two songs would not meet the standard of transformativeness, but rather that the more work that has been done with the samples the easier it will be to establish that the threshold has been met. Mashups which do not meet this transformativeness standard, however, would be subject to the system of voluntary bargaining for samples currently in place.257
5.3 Benefits of Compulsory Licensing
Compulsory licensing strategies such as the one outlined above have the potential to achieve the following five important goals: the setting of clear boundaries for sampling artists; the setting of sample licenses at reasonable levels; ensuring adequate compensation for creators of sampled songs; minimization of litigation; and minimization of difficulty in sampling negotiation.258 The setting of clear boundaries is an important goal which relates to the overly complex nature of the current sample licensing system, to the extent that it can even be accurately referred to as a system rather than a web of ad hoc negotiations. The establishment of such a compulsory licensing system sends a clear message that mashup creators will frequently need to pay for samples. It would also be helpful to have an express statement from a Canadian court with respect to the legitimacy of sampling to better demarcate these boundaries.
Tuesday”, supra note 15, Rezaie, in “Play Your Part” supra note 3 and many others have taken the contrary position. 256 Rezaie, supra note 3 at 198. 257 As suggested in Ashtar, supra 14 at 317. 258 Ruiz, supra note 110 at 403.
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Additionally, the establishment of a system with reasonable sample license fees will ensure that the creation of mashups is not unduly restrained by exorbitant demands by copyright holders, such as the six-figure prices discussed in the foregoing analysis. Again, the current free market system results in sample fees which are frequently set at such a rate that the creation of many mashups is altogether prevented. Moreover, since the scheme would be “compulsory”, holders of copyright in musical works cannot refuse permission for licenses so long as mashup creators pay the appropriate fees. This circumvents the problem of “hold outs” to sample licensing.
Nevertheless, a compulsory licensing regime would also recognize the importance of compensation for those whose music is sampled in the creation of mashups, which is important in light of the copyright goal of attaining just rewards for the producers of creative works. As discussed, this is fundamental, given the importance of an incentive to create for these underlying artists, which helps facilitate their works and therefore also leads to more source work from which mashups can draw. Reforming the current regime in such a way that encourages reasonable compensation for copyright holders of sampled musical works also helps minimize potential copyright infringement litigation.
The minimization of litigation is also a key element of the proposed compulsory licensing strategy. Currently, the fear of legal reprisal is a disincentive to the creation of mashups in situations in which the mashup artist has decided not to create her song using licensed samples, whether for reasons pertaining to legal complexity, refusal of samples or cost. By providing mashup creators with the opportunity to create their works with more reasonably priced samples the risk of such litigation is significantly reduced.
Finally, the proposed compulsory licensing system would be advantageous as difficulty of sample licensing negotiations would be minimized, in that mashup artists could go to a central body to clear use of all copyright interests associated with an underlying work, rather than being forced to seek out these various entities. Currently, it is frequently very difficult for mashup artists to determine who has the rights to a particular song, and a centralized licensing system could alleviate some of this confusion by gathering musical copyrights in a clearing house. Moreover, the cost of samples would be determined in advance according to set formulae, which removes the need for time-consuming and costly case-by-case negotiation, thereby reducing the
45 transaction costs—or the “ancillary costs that accompany the act of buying things”259— associated with sample clearance.260
5.4 Compulsory Licensing of Music Samples and Moral Rights261
Although such compulsory licensing schemes are advantageous in several respects, they are not uncontroversial. Some critics of such strategies point to difficulties related to the moral rights of copyright holders forced to license samples of their music for mashups.262 Moral rights—or those rights that “grant the individual creator of a work the legal authority to control its use and attribution under certain circumstances that [are] independent of economic rights embedded in copyright”263—are potentially impacted by such a compulsory regime given that creators no longer have the right to refuse the licensing of their works.264
However, the potential moral rights difficulties associated with a compulsory licensing regime for music samples in Canada would be manageable. Unlike the U.S. copyright system,265 the Canadian Copyright Act includes explicit protection for creators’ moral rights.266 Canadian copyright holders possess the right to the integrity of their work, which is deemed to be infringed if the work is “to the prejudice of the honour or reputation of the author (a) distorted, mutilated or otherwise modified; or (b) used in association with a product, service, cause or institution.”267 It would be difficult for a songwriter to assert that every sample of her music is prejudicial to her honour or reputation, though, as the determination of this prejudice is based only partly on that
259 McLeod and Dicola, supra note 8 at 165. 260 Dicola, supra note 6 at 29. 261 This section “samples” portions of one of my previous unpublished papers entitled “Under the Covers: Compulsory Licensing, Copyright and Their Implications for Musical Tributes”. 262 Ashtar, supra 14 at 312. 263 Lucille M. Ponte, “Preserving Creativity from Endless Digital Exploitation: Has the Time Come for the New Concept of Copyright Dilution?” (2009) 15 BU J Sci & Tech L 34 at 38. 264 Aurele Danoff, “The Moral Rights Act of 2007” (2007) 1 JBUSEL 181 at 193. 265 Ibid. at 38. 266 Copyright Act, supra note 18 at s. 14.1. 267 Ibid. at s. 28.2.
46 particular author’s judgment, which must be “reasonably arrived at.”268 Moreover, in assessing the existence of prejudice to the honour or reputation of the author a court will also look to the opinions of “other well respected artists and people knowledgeable in [the] field.”269 As not all uses of a sample of another’s music will necessarily be prejudicial to that author’s honour or reputation, the existence of a compulsory sampling regime is not inherently at odds with Canada’s system of moral rights protection. That said, even under a compulsory licensing regime the current safeguards that are in place would still help to ensure protection if an artists’ music is indeed sampled in a manner that is prejudicial to her honour or reputation, or used in association with a product, service, cause or institution that the artist does not favour. For example, a songwriter may have a moral rights claim if a sample of her song were incorporated into a mashup with an overtly homophobic, racist or misogynistic theme. A compulsory license could be refused or revoked in such a situation. As such, if a compulsory licensing regime for samples were implemented in Canada, even if a creator could not refuse permission for a license, her/his creation would still be protected in many instances.
It can be conceded that under a compulsory licensing regime a songwriter may be required to surrender a certain degree of control over her work, and the significance of this for the artist should not be understated. However, it bears repeating that the dissemination of more creative works is one of the paramount goals of Canadian copyright law, and such a compulsory licensing regime will likely lead to a proliferation of such works. Given the protection of moral rights under Canada’s Copyright Act, an artist’s non-economic rights in her work will still be protected, insofar as the Act prevents dealings with his work that are prejudicial to her reputation. When the sampling of an artists’ work could not be said to be prejudicial in this manner, then, so long as the appropriate fee is paid, the goal of dissemination of more creative works should override the ability of that artist to refuse permission to license that work.
268 Snow v. The Eaton Centre Ltd. et al, (1982) 70 C.P.R. (2d) 105 (Ont. H.C.J.) at para. 5. 269 Ibid. at para. 6.
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5.5 The Reach of Compulsory Licensing?
In light of the advantageous elements of compulsory licensing strategies, it has been proposed that a licensing approach should be employed more broadly in copyright, and even used in areas that may currently be covered by fair dealing in Canada or fair use in the United States.270 Although, an in-depth analysis of the appropriateness of licensing beyond the music sample market is beyond the scope of this thesis, some brief comments are necessary to confront such arguments. In Canada the creative content covered by fair dealing—again, namely, works related to research, private study, criticism, review or news reporting—is generally not subject to the same complications as outlined above with respect to the creation of mashups. Mashups are basically infringing works by nature and as such require particularly special treatment. While implementing an admittedly complex licensing system may be an appropriate strategy for a relatively novel and problematic set of works such mashups, such a copyright overhaul may not be justified for the well-established fair dealing categories. In this sense, a compulsory licensing strategy might not be suitable for the fair dealing categories in light of the well-worn maxim “if it ain’t broke, don’t fix it.”271
5.6 Alternatives to Compulsory Licensing—Potential Expansion of Fair Dealing
Given some of the apparent advantages of a fair dealing regime, another proposed strategy to the mashup problem is an expansion of fair dealing to cover more works than those currently enumerated in provisions 29.1-29.2 of the Copyright Act.272 Such a strategy may entail treating fair dealing in a more “open ended manner” so as to include certain works that are sufficiently transformative, as is done in the United States.273 Such a fair dealing expansion could encompass works such as mashups, assuming they demonstrate the requisite level of originality and
270 Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine, (1998) 76 NC L Rev 557; Robert P. Merges, The End of Friction? Property Rights and Contract in the “Newtonian” World of On-line Commerce, (1997) 12 Berkley Tech LJ 115, 130. 271 In the absense of a reliable source to whom to attribute this quote, I will give credit to my father, Brian Hughes, although I have removed the expletives that are occasionally found in his delivery of this pearl of wisdom. 272 See discussion of the difficulties associated with classifying mashups under fair dealing above under “PART 3: MASHUPS AND COPYRIGHT—Canada—Fair Dealing”. Another more extreme strategy is the removal of musical copyright altogether, as described in Dicola, supra note 6 at 18. 273 Reynolds, supra note 10 at 667.
48 transformativeness in relation to the works on which they are based. It may be contended that Canadian courts could and should endorse such a strategy, given the expansive reading of fair dealing taken by the majority of the Supreme Court of Canada in CCH.274 Moreover, such a strategy could have the effect of encouraging more mashup production, as the creators of these works would not have to deal with the inconvenience of clearing samples nor bear the cost. An expansion of fair dealing would allow creative individuals to create transformative mashups without the complexity and other issues associated with the current licensing regime and without the cost and administrative issues associated with a compulsory licensing regime as outlined above.
Although an expansion of fair dealing could have the effect of facilitating the creation of more mashups and would thereby further the public interest in the creation of more creative works, it is nevertheless controversial in its own right.275 While it was submitted above that the sample licensing status quo favours existing copyright holders excessively, an expansion of fair dealing which allows use of others’ copyrighted music may swing the pendulum too far in the opposite direction. Although, the Supreme Court has recently emphasized the importance of user rights in copyright, these rights still must be balanced with the rights of authors to just rewards for their work and the realm of sample-based music is no exception. The importance of the protection of authors’ rights is outlined in the following:
[c]opyright plays an important role in ensuring a broad array of choices for consumers by providing the proper incentives for long-term investment in creativity and innovation. They result in the availability of creative products for consumers, thereby promoting the public interest in the creation and dissemination of creative works.”276
Therefore, copyright protection itself can ultimately contribute to the public interest in the dissemination of creative works.
274 CCH, supra note at 128 para 51. 275 Barry Sookman, “Copyright Reform for Canada: What Should We Do? A Submission to the Copyright Consultation” (2008) 22 IPJ 1 at 25 notes that the fair use doctrine in the US is “open-ended and vague” and leads to uncertainty along with higher transaction and legal costs associated with fair use determinations. 276 Sookman, supra note 275 at 13.
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The danger associated with an expansion of fair dealing is that “it is less likely that the sampled musicians will meet their incentive constraint.”277 Reduced incentives for musicians may mean reduced creation of new musical material, which is detrimental to the copyright goal of proliferation of creative works. Moreover, the diminished creation of such works may very well eventually lead to diminished mashup creation, given the smaller available pool of “source material”.278 This demonstrates the importance of the maintenance of incentives for sampled artists. Unlike a fair dealing expansion, a compulsory licensing system maintains a certain level of incentives for musical creators while also reducing the cost and complication for creators of sample-based musical works—i.e. it may strike a better balance between the rights of authors and the dissemination of more creative works in the form of mashups composed of those authors’ works.
In this vein, it may be helpful to emphasize the importance of incentives in the mashup context briefly. Despite the apparent current absence of economic incentives many mashups are still produced and it could be contended that this is an indication that the financial motivation should not be emphasized vis-à-vis the continued creation of these works. Additionally, some might point to the continued creation of mashups despite the apparent absence of financial incentive as a justification for the expansion of fair dealing. The continued popularity of mashups does not necessarily support such a line of argument, however. Firstly, one could predict that more mashups would be created if there were stronger financial incentives in place for potential mashup creators. Copyright protection contributes to such financial incentive which could be unduly eroded by an expansion of fair dealing. Although a large number of mashups are currently created where incentives are limited, arguably a larger number of people would be able to dedicate more time to the creation of mashups if they were financially compensated for the time spent doing this.279
277 Ibid. 278 Ibid. where DiCola describes this “negative feedback loop”. 279 Hetcher, supra note 77 at 10. This point is conveyed in a straightforward manner by mashup producers the Kleptones who have the following posting on the portion of their website where they solicit donations in exchange for downloads of their mashups: “Although obviously we would never dream of charging you for any of the music we've created and made available on this site, we're still human, and therefore need to buy food, pay rent and deal with website hosting bills just like the next person.” “Spare a Dime?” The Kleptones, online:
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Moreover, the contention that mashups are typically created without any concern for financial incentive is at best a generalization and at worst an outright falsehood. In many cases the financial benefits related to mashup creation are simply indirect, in that they are not derived from the creation of the mashup but some spillover economic benefit is incurred by the mashup creator. At the risk of ad nauseum reference to the “usual suspects” in the mashup field, once again Danger Mouse is relevant here. Although he distributed the Grey Album without charge, it was effectively used as a promotional tool to springboard his professional music career. In a somewhat ironic twist, Danger Mouse was subsequently signed by EMI to produce the album Demon Days for British rock group Gorillaz,280 and has had success as one half of the group Gnarls Barkley.281 Similarly, Girl Talk has also frequently experienced indirect financial benefits from mashup creation. Although he does collect some revenue from album sales, his mashup collections are offered on a “pay-what-you-like basis”282, so the direct financial incentive for the creation of mashups may not be as strong as for artists who employ more orthodox distribution systems. However, the popularity of Girl Talk’s albums has led to extremely successful live shows which regularly sell out all over the world.283 As such, Girl Talk’s mashup creation is also financially incentivized in an indirect manner. This demonstrates that despite the lack of direct financial incentives for mashup creation there are many indirect monetary motivations, which illustrates the importance of such incentives and therefore copyright protection in the production of such works. Therefore, expanding fair dealing and diminishing this profit motive for those whose content is used may be perilous.
280 Rezaie, supra note 3 at 182. The co-opting of Danger Mouse’s talent was foreshadowed by Glenn Otis Brown, former Director of the Creative Commons, who commented in response to EMI’s reactions to the Grey Album "Why not just sign the guy?...Why not license the record, and have everybody make a bunch off of it?" Shachtman, supra note 16. 281 AllMusic—Biography: Gnarls Barkley, online:
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Finally, although an expansion of fair dealing would entail certain benefits for mashup production, it must be borne in mind that fair dealing is a defence to a copyright infringement action. Therefore, mashup creators could still be pulled into litigation and would be forced to deal with the inconvenience and expenses associated with such court proceedings. This litigation would be particularly onerous for amateur mashup creators in cases involving copyright owners of popular works, who may have comparatively more resources from which to draw. This litigation could be especially lengthy and complicated in light of the absence of Canadian jurisprudence on music sampling generally and mashups specifically. Moreover, even if the mashup creator’s use of another’s music is found to be fair, the prospect of litigation is still a major deterrent and a successful defense in such a context may constitute a pyrrhic victory for that mashup DJ. Ergo, while an expansion of fair dealing could be helpful for some mashup creators it does not facilitate mashup creation in the short term given such practical deficiencies when compared to a compulsory licensing approach.
CONCLUSION
Mashups, alternatively referred to as “a carefully and meticulously constructed form of art”284 or “a mess of stolen noise”285 are certainly relevant in the current cultural and legal landscape. Due to the idiosyncrasies of copyright law and the current voluntary regime for sample clearance, currently there are many constraints on the creation of mashups. This is problematic not only with respect to the copyright goal of dissemination of more creative works, but it is also unfortunate given the potential that mashups have to provide a much needed boost to the Canadian recording industry and given the special character of mashups as works which encourage music fans to become music creators. Given the importance of incentives for both “upstream” and “downstream” creators, there is no easy solution to this problem, but “[s]ome happy medium must be reached within the law because sampling will only continue to permeate the face of popular music.”286 One such “happy medium” is a compulsory licensing regime, which would ensure compensation for those whose work is sampled, while making it easier and
284 Gelevan, supra note 215. 285 Ibid. 286 Lim, supra note 15 at 380.
52 more affordable for mashup creators to produce their highly demanded works. Such a solution, while not without complications, will ensure that future generations will not be robbed of works from one of the few novel musical genres of the 21st century.
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