The use of mashups and sampling in music has created many questions when it comes to copyright protections. If you’re a musician, you might want to protect your works from being used without permission. On the other hand, if you’re a mashup artist, you want to do it without getting in a copyright infringement lawsuit. As this area of the law evolves, nothing is straightforward. Here’s some background on copyrights, fair use, and how mashup artists have handled this tricky issue.
What’s a copyright?
A copyright is a legal protection given to authors of original works, like songs, paintings, and novels. Copyright owners get certain exclusive rights to their works, and can also limit others from using their works in certain cases.
What’s the challenge with mashups?
At face value, mashups appear to epitomize copyright infringement, but the situation isn’t quite so cut and dry. A mashup is a style of music that contains elements or samples from songs created by other artists. In 2005, a court decision regarding the case of Bridgeport v. Dimension determined that it is possible for mashup artists to be guilty of copyright infringement even if a one second sample of music is used. This suggests that mashups and samplings aren’t, in fact, protected under fair use, but there are still ways that maship artists can defend their works.
Are mashups covered by fair use?
Fair use doctrine was designed as a way to protect the first amendment right to freedom of expression for works deemed valuable to society. For example, fair use has been used regularly to shield parodies. Courts that review cases involving fair use must consider how samples are used and how much they are used when determining if the works are protected by it. Courts also consider the effect a parody or transformative piece has on the market share for the original artist.
Mashup artists who seek protection under fair use may find their works protected, depending on how much it transforms the original work. Mashup artists usually splice up samples, edit pitch and tempo, and mix up the original work. While the samples are meant to be recognizable, mashup artists typically aim to create enough of a difference between the pieces so that the new work has artistic merits of its own.
Using samples of different songs to create a new song could also be a form of critical commentary. In this case, Mashups could be considered a form of free expression protected under fair use. Still, most mashup artists are aware that their work could be questioned at any time by the original artist.
Why some artists embrace mashups
Surprisingly, not all artists are threatened by mashups. In 2004, David Bowie partnered with a German car maker to hold a contest to find out which fan could create the best mashup using a sampling of two of Bowie’s songs. The winner was offered a brand new sports car, and Bowie retained the rights to the music.
It seemed like a win-win situation, but many mashup artists felt like their art was threatened by this commercial venture. Some feared that the maneuver was a sign of the times signaling upcoming crackdowns on their music. Considering the adverse decision regarding Bridgeport v. Dimension that occurred just one year later in 2005, they may have been right.
Artists proceed with caution
If you’re a mashup artist, there isn’t a clear way to avoid copyright infringement, but you can learn from the tactics of other mashup artists. Many test the waters by releasing mashups on P2P networks without licensing the work. Then, if the mashup is well-received by the underground community, they obtain a license and release it legitimately. Other artists, like Danger Mouse, have released versions of their work free to listeners on standard, unlabeled CDs.
Girl Talk, another mashup artist, has found success in the industry by releasing music for free and accepting donations and paid gigs. To date, this artist hasn’t been sued by any record labels, but he realizes that this remains a possibility and has already stated his case to the public at large. It’s not clear whether record labels are declining to pursue a lawsuit with the artist due to his popularity, or whether they feel that the artist is not infringing on various individual works.
There are currently no court opinions offering any guidelines on mashups, and there are no distinct legal guidelines for determining whether or not a non-parodic work is protected under fair use. Until there is, if you’re a mashup artist, you need to be aware that your works could come into question at any time. If you have legal questions about fair use and mashups, find an intellectual property lawyer to help.