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Hofstra Law Review

Volume 39

Issue 2 Article 4

2010

Music Mashups: Testing the Limits of Copyright

Law as Remix Culture Takes Society by Storm

Emily Harper

Follow this and additional works at: h7p://scholarlycommons.law.hofstra.edu/hlr

Part of the Law Commons

6is document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law

Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact lawcls@hofstra.edu.

Recommended Citation

Harper, Emily (2010) "Music Mashups: Testing the Limits of Copyright Law as Remix Culture Takes Society by Storm," Hofstra Law

Review: Vol. 39: Iss. 2, Article 4.

Available at: h7p://scholarlycommons.law.hofstra.edu/hlr/vol39/iss2/4

NOTE

MUSIC MASHUPS: TESTING

THE

LIMITS

LAW

REMIX

CULTURE TAKES

SOCIETY

STORM

INTRODUCTION

In an

age

where

rapidly

changing

technology

transforming

traditional

methods

communication

and

expression,

many

wonder

the

laws

the

twentieth

century

will

suffice

in the

new

millennium.'

The

Framers

the

Constitution

certainly

did

not

anticipate

the

World

Wide

Web, and

it is

unlikely

that

the

drafters

the

Act

1976

could have foreseen

the

difficulties

that would

arise

in the

digital

era.

Digital

technology

and

the

Internet

have not

only

made

infinite

collections

unique

art

available,

but

they

have

also made

possible

for

people

mix

and

mash

others'

works

with

little

difficulty

and

authorization.

Consequently,

society

witnessing

shift

away

from

passive

involvement

culture

toward

active,

participation-

oriented

scheme.

The

practice

borrowing

ideas

create

and

inspire

new

art

has

never

been

prevalent

now.

One

area

that

increasingly

affected

this

shift

music.

fact,

there

entire

genre

music,

commonly

known

"mashups,"

dedicated

borrowing

See

Lawrence

Lessig,

Free(ing)

Culture

for

Remix,

2004

UTAH

REV.

961,

964.

See

LAWRENCE

LESSIG,

FREE

CULTURE:

THE

NATURE

AND

FUTURE

CREATIVITY

131

(2004).

See

Edward

Lee,

Developing

Practices

for

User-Generated

Content,

INTERNET

L.,

July

2009,

13;

Lessig,

supra

note

at 965;

Michael Allyn

Pote,

Comment,

Mashed-Up

Between:

The

Delicate

Balance

Artists'

Interests

Lost

Amidst

the

War

N.C.

REV.

639, 646

(2010).

See

Lee,

supra

note

14.

LAWRENCE

LESSIG,

REMIX: MAKING

ART

AND

COMMERCE

THRIVE

THE

HYBRID

ECONOMY

82-83

(2008)

(discussing

how

technological

advances

have

facilitated

the practice

borrowing

from

others

create

new

works

art).

Eric

Hellweg,

Mix

and

Mash:

The

Mashup

Born

from

Blend

Two

Songs,

EDUTOPIA

(Sept.

2004),

http://www.edutopia.org/node/5708.

405

Harper: Music Mashups: Testing the Limits of Copyright Law as Remix Cultu

Published by Scholarly Commons at Hofstra Law, 2010

and

mixing others'

works.'

music

mashup

a song

formed

combining

two

preexisting

songs.

This

Note

argues

that

mashups

constitute

infringement,

and

that

mashup

artists

are

not

entitled

the

affirmative

defense

fair

use.

Ambiguity

and gaps

current legislation

illustrate

the

need

for

reform

world

increasingly

dependent

the

Internet

and

technology

general.o

Although

one

has

brought

suit

allege

infringement

mashup

artists,

it is

unlikely

that original

artists

and

record

companies

will

ignore

the

problem

forever,

and

therefore

imperative

that

legislators

address

mashups

before

this

ticking

time

bomb

explodes."

For example,

and

when

holders

decide

sue

mashup

artists,

they

will

run

the

risk

creating

unfavorable

precedent

which

could give

mashup

artists

freedom

use

preexisting

works

without

authorization.

the

alternative,

a court

might

find

that

mashups

are

illegal,

thereby

providing

incentive

for

holders

sue

mashup

artists.

Either

way,

one

group would

suffer

catastrophic

loss

while

the

other

would

savor

landslide

victory.

Part

this

Note

discusses

the

rising

popularity

mashups

and

the

unlikelihood

that

they

are

passing

fad.

Part

III

then

addresses

the

legal

issues

associated

with

mashups.

Section

demonstrates

why

mashups

are

not

entitled

protection,

while

Section

illustrates

why mashups

constitute

infringement.

Section

then explains

why

mashup

artists

are

not entitled

any

affirmative

defenses,

and

are

therefore

liable

for

infringement.

Part

points

out

various

gaps

legislation,

arguing

that

lawmakers

should

See

Pote,

supra

note

646;

Hellweg,

supra

note

The

term

"mashup"

will

refer

music

mashups

only. Also,

although

there

are

various

spellings

the

term,

this

Note

will

adhere

"mashup"

for

the

sake

consistency.

See

Aaron

Power,

Comment,

Megabytes

Fame:

Fair

Use

Defense

for

Mash-Ups

Culture

Reaches

Its

Postmodern

Limit,

Sw.

REV.

577, 579

(2007).

10.

Edward

Lee,

Warming

User-Generated

Content,

2008

ILL.

REV.

1459,

1473;

Lessig,

supra

note 1,

at 969.

11.

See

David

Mongillo,

The

Girl

Talk

Dilemma:

Can

Law

Accommodate

New

Forms

ofSample-Based

Music?,

PITT. J.

TECH.

POL'Y,

Spring

2009,

Pote,

supra

note

640.

12.

See

Mongillo,

supra

note

11,

13.

See

Steven

Hetcher,

Using

Social

Norms

Regulate

Fan

Fiction

and

Remix

Culture,

157

U. PA.

REv.

1869,

1885

(2009)

(noting

that

many

mashup

artists

have

not

released

commercial

albums

for

fear

litigation);

see

also

Girl

Talk

Fair

Use

Martyr,

COPYCENSE

(Mar.

12,

2009),

http://www.copycense.com/2009/03/girl

talk

asfair

usemartyr.html

(asking

why

one

has

sued

Girl

Talk,

artist

who

"playing

game

statutory

chicken

with

the

music

labels

from

whose

records

has

culled

his

considerable

sample

list").

14.

See

Lessig,

supra

note

969

(noting

that

the

current

system does

not

enable

protection

for both

remix artists

and

original artists).

406

HOFS7RA

VIEW

[Vol.

39:405

Hofstra Law Review, Vol. 39, Iss. 2 [2010], Art. 4

http://scholarlycommons.law.hofstra.edu/hlr/vol39/iss2/4

reform

law

account

for

recent

technological

advances.

Part

suggests alternatives

the

problematic

aspects

law

today,

specifically

applies

remix

culture, such

mashups.

And

finally, Part VI concludes

highlighting

the

need for copyright

reform

the

demand

for

remix

culture increases.

II.

POPULARITY

MASHUPS:

SMASH

HIT

Long before Rihanna

brought

Soft

Cell's

"Tainted

Love"

back

into

the

spotlight with

her

chart-topping

hit

"S.O.S."

2006,

musicians

had

discovered

that

integrating

preexisting

works

into

their

music

tended

increase the

newer

work's

popularity.'

This

process

using

one

sound

recording

new

sound

recording

known

digital

sampling.1

Although

digital

sampling

often

associated with

the rise

hip-

hop

the

1980s,

the process has

roots

earlier

genres,

such

folk

music, Jamaican Dub

music,

and

disco

music.'

Nevertheless,

music

lovers

inevitably

consider

artists

Vanilla

Ice

and

Notorious

B.I.G.

the

forerunners

digital

sampling

for

their

unforgettable

hits

"Ice,

Ice,

Baby"

and "Juicy."'

Vanilla

Ice

and

B.I.G.

were

not

alone,

however,

developments

technology

facilitated

many

other hip-hop artists'

ability

sample

preexisting

works

without

permission.19

Over

the

years, musicians

have

offered various defenses

for

their

unauthorized

use

others'

works.20

For example,

rapper

Biz

Markie

claimed

that

should

not be

liable

for

sampling

without

permission

because

the

practice

had

become

widespread

that

everyone

the

business

was

doing

it.21

Unsurprisingly,

however,

the

Southern

District

New

York

rejected

that

argument

Grand

Upright

Music,

Ltd.

Warner

Brothers

Records,

Inc.

Others

have

unsuccessfully

opined

that

incorporating

short,

edited

samples

into

new

songs

should

not

give

rise

liability

because

the

use

minimis,

insubstantial

that

may

be deemed

excusable.

15.

See

Power,

supra

note

at 579;

Rihanna's

Sample-Based

Music,

WHO

SAMPLED,

http://www.whosampled.com/artist/Rihanna/

(last

visited

Mar.

16,

2011).

16.

Power,

supra

note

579.

17.

See

Pote,

supra

note

644;

Power,

supra

note 9, at 579.

18.

See

Mongillo,

supra

note

11,

Matthew

Dames,

Uncleared

Sample

Halts

Sales

Seminal

Hip

Hop

Album,

COPYCENSE

(Mar.

20, 2006,

10:14

hrs.

EST),

http://www.copycense.com/

2006/03/uncleared-sampl.html.

19.

See

Pote,

supra

note

645.

20.

See

Power,

supra

note

585.

21.

See

Grand

Upright

Music,

Ltd.

Warner

Bros.

Records,

Inc.,

780

Supp.

182,

183

(S.D.N.Y. 1991);

Power,

supra

note

583-84.

22.

See

780

Supp.

183;

Power,

supra

note

583-84.

23.

See

Power,

supra

note

584

n.56.

MUSIC

MASHUPS

2010]

407

Harper: Music Mashups: Testing the Limits of Copyright Law as Remix Cultu

Published by Scholarly Commons at Hofstra Law, 2010

HOFSTRA

LAW

REVIEW

2004,

the

issue

digital

sampling

came

before the

Sixth

Circuit

Bridgeport

Music,

Inc.

Dimension

Films.

response

the

question

whether

musicians

may

sample

others'

works

without

authorization,

the

court

created

bright-line

rule,

which

still stands.

result

Bridgeport,

now

illegal

digitally

sample

another's

music

without

first

obtaining

license.

Despite

the

bright-line

rule

for

digital

sampling,

there

great

uncertainty

surrounding

the

legality

mashups

because

courts

have

not

yet

addressed

the

matter.

2 7

unclear

whether

the

rule

for

sampling

should

apply

mashups

because

mashups

are

distinguishable

from

conventional

sampling.

For

example,

traditional

sampling

consists

incorporating

preexisting

sound

recordings

into

otherwise

new,

original

songs.

2 9

One

example

this

Puff

Daddy's

"I'll

Missing

You,"

which

features

instrumentals

from

The

Police's

"Every

Breath

You

Take"

and

new

vocals

Puff

Daddy

and Faith

Evans.

contrast,

mashups

contain

original

content.

Rather,

mashup

artists

create

mashups

solely

combining

preexisting,

copyrighted

songs.

Unlike

hip-hop

artists

who

add

original

vocals

the

beats

they

sample,

mashup

artists

offer

nothing

new.

Thus,

given

the

differences

between

the

sampling

involved

Bridgeport

and

the

sampling

involved

mashups,

one

should

not

assume

that

the

bright-line

rule

from

Bridgeport

automatically

applies

mashups.

Despite

legal

ambiguities,

professionals

and

amateurs

(either

bravely

indifferently)

continue

create

mashups

for

variety

purposes.

Such

purposes

include,

but

are

not

limited

to,

tribute,

homage,

criticism,

education,

curiosity,

and

popular

demand.

24.

See

383

F.3d

390, 398

(6th

Cir.

2004).

25.

See

id.;

Power,

supra

note

584-85.

26.

See

Bridgeport,

383

F.3d

at 398;

Power,

supra

note

585.

Common

types

authorization

include

licenses,

permission

from

the

original

work's

holders,

and

implied

licenses.

See

Pote,

supra

note

684,

686.

worth noting

that

this

bright-line

rule

applies

even

when

the

sample

insubstantial.

See

Power,

supra

note

584-85.

Bridgeport,

for

example,

the

plaintiff

prevailed

even though

the

defendant

had

only

taken

two-second

sample

and edited

the point

that

was

virtually

unrecognizable.

Id.

27.

See

Mongillo,

supra

note

11,

(noting

that

Girl

Talk, the

most

celebrated mashup artist,

has

not

yet

been

sued).

28.

See

Power,

supra

note

583-86.

29.

See

Pote,

supra

note

646.

30.

See

Brett

Kaplicer,

Note,

Rap

Music

and

Minimis

Copying:

Applying

the

Ringgold

and

Sandoval

Approach

Digital

Samples,

CARDOZO

ARTS

ENT.

L.J.

227,

233

(2000).

31.

Pote,

supra

note

646.

32.

Id.

33.

Id.

34.

See

Power,

supra

note

585.

35.

See,

e.g.,

CTR.

FOR

SOC.

MEDIA,

RECUT, REFRAME,

RECYCLE:

QUOTING

COPYRIGHTED

408

[Vol.

39:405

Hofstra Law Review, Vol. 39, Iss. 2 [2010], Art. 4

http://scholarlycommons.law.hofstra.edu/hlr/vol39/iss2/4

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