99 problems but a riff ain’t one: How sampling helps copyright promote originality A thesis submitted for the degree of Doctor of Philosophy of The Australian National University © Copyright by Alan Hui 2017 All Rights Reserved Page 1 of 252 Statement of originality This thesis is my own original work. It has not been conducted with any other person. I assert fair dealing exceptions for the uses of the following artistic works embodied as album cover art: • The Avalanches – Since I Left You • The Avalanches – Wildflower • Sly and the Family Stone – There’s a Riot Goin’ On • Gorillaz – Demon Days Word count: 58,589 words Alan Hui Page 2 of 252 Acknowledgements I would like to acknowledge: • My supervisory panel—Desmond Manderson, Dilan Thampapillai and Catherine Bond—and my previous supervisor Matthew Rimmer for bringing equal measures of intellectual heft and kind support; • My academic friends and colleagues over the years at the ANU College of Law— including Michelle Worthington, Justine Poon, Peter Burnett, Camille Goodman, Carol Lawson, Alice Taylor, Sarah Bishop, Scott Joblin, Amy Constable, Johannes Krebs, Caroline Compton, Likim Ng and Bal Kama—for the many stimulating conversations, HDR morning teas and lunches, writing sessions, corridor chats and our inaugural HDR forum; • My academic colleagues dotted around the world, especially Tami Gadir, Ragnhild Brøvig-Hanssen and Carys Craig, for generously sharing their research in music and law; • The successive Higher Degree Research directors and support staff at the ANU College of Law—particularly Mark Nolan, Tim Bonyhady, Leighton McDonald and Codi De Veau, for their support through supervision changes, college funding support processes, administration and submission; • The Australian Government for supporting this research with an Australian Research Training Program (RTP) Scholarship; • My family for their support and advice, especially my parents who remind me through genetics that creation is incremental, not absolute; • My piano teacher Lily Chang and school music teacher Pamela Herring who inspired a lifetime of music; • Brad Sherman and Lionel Bently for inspiring the research question for this thesis; and • The Avalanches for being my virtual writing partner and an inspiration for this thesis, especially Darren Seltmann for sharing his insights one fine day in Geelong. Page 3 of 252 Abstract This legal policy thesis asks: Is sampling so inconsistent with copyright that it warrants a unique system? Sampling is the musical practice of arranging new recordings from existing recordings. Often, it conflicts with copyright, a legal system that aims to encourage progress and innovation, primarily by granting exclusive rights as incentives to create and distribute original works. Two countervailing positions in existing literature articulate the conflict between sampling and copyright. The first views sampling as an appropriative practice that subverts copyright safeguards against unauthorised copying and adaptation. If this is true, then appropriation art cannot be reconciled with copyright law in any stable, lasting or meaningful manner. The second views copyright as an excessive restraint on creativity, a leash on artists. Scholars holding this position point to copyright’s longstanding discrimination against sampling, evident from US copyright cases restricting 1990s hip-hop artists and admonishing one sampling artist with biblical commandment: ‘Thou shalt not steal’. This thesis argues that sampling can align with the purpose of copyright to encourage progress and innovation. It shows how sampling is consistent with originality, the core concept that separates the copyright wheat from the unprotected chaff. Originality calls not for the conjuring of material from thin air, but rather the rearrangement of prior works, genres and conventions. By locating rearrangement at the heart of originality, we can see that sampling can contribute to the body of original works and therefore the purpose of copyright. In doing so, this thesis shows that sampling conflicts with the operation of copyright, as expressed in international treaty, national laws and industry conventions. While amending the operation of copyright is difficult, it is possible and indeed desirable to reform copyright to encourage rearrangement, not because it enables sampling, but because it promotes originality. Building on the concept that the rearrangement of past material is the foundation of originality, this thesis explains two potential policy responses to promote Page 4 of 252 originality. Encouraging transformative use, as a conceptual foundation for fair use exceptions, can promote the rearrangement of existing original works into new original works. Likewise, ex post monitoring, as an alternative to ex ante licensing, can enable tolerated uses, incremental originality and distributed innovation at the scale of digital platforms. Page 5 of 252 Table of contents I. INTRODUCTION: COUNTER POINT OR COUNTERPOINT? 9 Counter point between sampling and copyright’s operation 9 Counterpoint between sampling and copyright’s purpose 23 Framing the piece 29 II. MAIN THEME: ORIGINALITY AS REARRANGEMENT 37 Sampling and originality in Vogue 43 Originality beyond ex nihilo 49 Divisibility of original works 57 Sound recordings as lesser of equals 64 Reimagining originality as rearrangement 74 III. FIRST VARIATION: SOUND RECORDING AS REARRANGEMENT 80 Rearrangement in popular music recording 83 Gorillaz recording as rearrangement 90 Gorillaz remixing as rearrangement 97 More Gorillaz in the jungle 101 IV. SECOND VARIATION: INTEGRITY AS WHOLENESS OF ARRANGEMENT 108 Relationship between originality and integrity 109 Carl Orff and debasement 117 Pitbull and integrity 125 Bridge from originality to morality 132 V. DEVELOPMENT: TRANSFORMATIVE USE AND ORIGINALITY 135 Rearrangement in transformative use 138 Transformative use in the four factors 142 Mashups and the four factors 149 Bridge from infringement to subsistence 160 VI. DEVELOPMENT: EX POST MONITORING AND ORIGINALITY 163 Shortcomings of ex ante licensing for remixes 166 Content identification and ex post monitoring 173 Harlem Shake and distributed originality 187 From ex-post monitoring to originality 193 VII. RECAPITULATION: HARMONY BETWEEN SAMPLING AND ORIGINALITY 202 A reprise of counter point 202 Towards a revised theory of originality 208 VIII. CODA: ONE TALE OF 99 PROBLEMS 217 Page 6 of 252 IX. BIBLIOGRAPHY OF REFERENCED WORKS 228 Judgements and court documents 228 Legislation, treaties and legislative documents 230 Other government documents 230 Journal articles 232 Books and chapters 234 News, magazine and non-audiovisual web sources 237 Audio 244 Audiovisual 246 Other 248 APPENDIX A: RESEARCH QUESTION AND THESIS STRUCTURE 250 Research question 250 Parts of the thesis 250 Chapters of the thesis 250 Page 7 of 252 Table of figures Figure 1: Album cover from Since I Left You ........................................................................... 9 Figure 2: Photo of The Sinking of the USS President Lincoln on 31st May 1918 ....... 10 Figure 3: Remixing the Marsh image into an album cover.............................................. 10 Figure 4: The Brasilia font ............................................................................................................ 11 Figure 5: Main parts of this thesis ............................................................................................. 30 Figure 6: Structure of this thesis................................................................................................ 32 Figure 7: Versions in the 40-year evolution of a horn hit ................................................ 45 Figure 8: Horn hits in Love Break and Vogue ........................................................................ 72 Figure 9: Album cover from Demon Days ............................................................................... 81 Figure 10: Comparing fair use factors with select reasonableness factors ........... 115 Figure 11: 44 years of rearrangement of Tu vuò fà l’Americano ................................ 128 Figure 12: Incentives for transformative use .................................................................... 141 Figure 13: Transformative value of mashups.................................................................... 152 Figure 14: YouTube comments, The Harlem Shake v1 (TSCS original) ................... 191 Figure 15: Album covers from There’s a Riot Goin’ On and Wildflower ................... 203 Figure 16: From rights and exceptions to a chain of originality ................................ 211 Figure 17: Chronology of select versions of 99 Problems ............................................. 217 Page 8 of 252 I. Introduction: Counter point or counterpoint? Counter point between sampling and copyright’s operation The story of The Avalanches forms a précis to the clash between sampling and copyright. At the turn of the millennium, this band of musicians was embarking on their maiden voyage. This musical odyssey led The Avalanches through many mixtape iterations, culminating in an album entitled Since I Left You. Appropriation permeated not only the musical philosophy of The Avalanches, but also their words, sights and sounds. Even the name of the band was appropriated from an Australian band that released the 1963 surf-rock album Ski Surfin’.1 Figure 1: Album cover from Since I Left You2 Since I Left You’s album cover counters the common caution against judging a text by its