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Mashups: Copyright Infringement Without a Fair Use Defense?

November 30, 2010

On November 15, Girl Talk released his fifth mashup album entitled All Day. This brilliant collection of music will inevitably stoke the fires on the issues of fair use and copyright boundaries. This post will be the first of a three-part post where I analyze the availability of a fair use defense for mashup songs, arguing both sides in separate posts, and concluding in the third.

For those unfamiliar, a mashup as defined by Wikipedia is: “a song or composition created by blending two or more pre-recorded songs, usually by overlaying the vocal track of one song seamlessly over the instrumental track of another.”

Mashup music, by sampling portions of copyrighted songs, technically constitutes copyright infringement because it violates the exclusive rights of a copyright holder as set forth in 17 U.S.C. 106. The looming question is if a fair use defense is available. Based on the statutory fair use factors of 17 U.S.C. §107, it can be seen that mashups are not a fair use of the copyrighted works they are comprised of. Moreover, by interfering with the rights granted to copyright holders, protecting mashups discourages the creation of new music, and runs counter to the goals of copyright law.

17 U.S.C §107 sets forth four factors to consider when determining a fair use defense:

(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.

Regarding the first three factors, Campbell v. Acuff-Rose Music provides guidance on the analysis.

The first factor, the purpose and character of the use, does not favor a finding of fair use because the mashup is pure copying with no parodic or commentating value. In Campbell the court distinguished protected “social commentary” and parody from pure copying. As far as mashups are concerned, there is little to no social commentary or parody involved. Instead, the mashup simply contains copied portions of copyrighted works. Therefore the first factor weighs against a finding of fair use.

The second factor, the nature of the copyrighted work, weighs against fair use because the musical recordings are the type of work that is at the core of copyright protections. This factor looks to the type of work that has been infringed to determine if it is, as stated in Campbell: “within the core of copyrights protective purposes.” The Court held that a musical work would indeed fall within the core of copyright protections. Musical works are at issue, therefore the second factor weighs against a finding of fair use because they are at the core of copyright protections.

The third factor, the amount and substantiality of the portion used, weighs against fair use because the mashup artist typically samples substantial portions of songs so that the listener can identify and enjoy them. In Campbell a song was initially copied but quickly shifted to an original work “substituting predictable lyrics with shocking ones”. The Court found that this minimal use favored fair use. Alternatively, a mashup artist samples substantial portions of copyrighted works to mash them together. These portions generally include the most identifiable, and therefore most protected, portions of the original songs. Further, unlike Campbell, there is no modification of the mashed up songs, a mashup is simply a rearrangement of vocal and musical tracks. Therefore the third factor weighs against a finding of fair use.

Finally, the fourth factor, regarding the effect for the potential market of the original work, weighs against a finding of fair use because mashups may interfere with the value and sales of original songs. This fourth factor can be considered the most significant because it touches at the basic policy of copyrights: to provide economic incentives for creators to create. The Court in Campbell notes that if a “substantial portion of the infringing work was copied verbatim from the copyrighted work,” it suggests a “greater likelihood of market harm.” In the case of mashups, it has already been established that a substantial portion of the songs are copied verbatim. Therefore it is likely that consumers will acquire mashup songs instead of paying for the original music, thereby violating the purpose of copyright law, and preventing creators from benefiting from their creations.

Allowing mashups will discourage creativity and therefore runs counter to the constitutional copyright policy of promoting progress in science and the useful arts. Mashups discourage creativity by preventing creators from capitalizing on their works, and by allowing the works that are created to be chopped and mashed with other songs. Mashup music is precisely the type of activity that copyright law seeks to prevent. It takes substantial portions of different songs, rearranges them and combines them with other songs, resulting in profit for the mash up artist while the original songwriter is left with nothing.

Mashup music certainly constitutes copyright infringement. In addition, it has been shown that a fair use defense will likely fail because of the purpose of mashups, the substantial amount taken from the original works, and the nature of mashups interfering with the market value of the originals. Indeed all four factors weigh against a fair use defense. Moreover, policy favors against a finding of fair use because it prevents creators from controlling their works and discourages their continued creativity.

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5 Comments leave one →
  1. Alex Ferre permalink
    December 3, 2010 8:34 am

    Nice blog ! Will continue reading

  2. Alex Ferre permalink
    December 3, 2010 8:40 am

    I had written a nice long reply but something bugged….
    Briefly: while I agree that fair use would almost never work in the case of mashups made to be sold to the public, I don’t think that infringement is as cut and dry as you make it sound. Mainly, I have issues with the improper appropriation element of the infringement analysis. I could see situations where a baseline is used from one song or maybe a repeating one liner throughout the song (similar to a techno/trance remix) . Alternatively, say 100 songs are used for a one minute track, wouldn’t you lose the identity of the original works (under the objective test) and wouldn’t the average listener no longer see it as taking a sufficient amount of a plaintiff’s work.
    It’s just a good old case by case basis if you ask me…granted, I haven’t listened to the album.

  3. December 3, 2010 8:59 am

    Hi Alex! Good to hear from you and I hope all is well.

    You raise a good point, and I agree that the fair use analysis would be highly fact dependent. I plan on arguing for fair use in my next post so stay tuned…

Trackbacks

  1. The Fair Use of Mashups « 1.8.8. The IP Policy Blog
  2. Mashups and Fair Use: Final Judgment « 1.8.8. The IP Policy Blog

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