Adapting copyright for the mashup generation.

Author:Menell, Peter S.
Position:Abstract through II. The Legal, Market, and Policy Divides A. The Copyright Backdrop, p. 441-477

Growing out of the rap and hip hop genres as well as advances in digital editing tools, music mashups have emerged as a defining genre for post-Napster generations. Yet the uncertain contours of copyright liability as well as prohibitive transaction costs have pushed this genre underground, stunting its development, limiting remix artists' commercial channels, depriving sampled artists of fair compensation, and further alienating netizens and new artists from the copyright system. In the real world of transaction costs, subjective legal standards, and market power, no solution to the mashup problem will achieve perfection across all dimensions. The appropriate inquiry is whether an allocation mechanism achieves the best overall resolution of the trade-offs among authors' rights, cumulative creativity, freedom of expression, and overall functioning of the copyright system. By adapting the long-standing cover license for the mashup genre, Congress can support a charismatic new genre while affording fairer compensation to owners of sampled works, engaging the next generations, and channeling disaffected music fans into authorized markets.

INTRODUCTION I. Music Mashups A. A Personal Journey B. The Mashup Genre 1. Creation of Music Mashups 2. Types of Music Mashups 3. Marketing, Distribution, and Monetization 4. Live Performance, DJ Production, and Collaboration with Established Artists II. THE LEGAL, MARKET, AND POLICY DIVIDES A. The Copyright Backdrop 1. General Framework 2. Application of Copyright Law to Digital Sampling B. What's Past Is Prologue?: The Rap and Hip Hop Genres and Digital Enforcement 1. Rap/Hip Hop's Rocky Road to Constrained Copyright Legitimacy 2. The Digital Copyright Enforcement Debacle C. The Uncertain and Distorted Music Mashup Marketplace D. The Copyright Policy Divide III. BRIDGING THE DIVIDE: THE CASE FOR A REMIX COMPULSORY LICENSE A. Economic Analysis of the Music Mashup Stalemate B. The "Cover" License as a Model for Opening up the Remix Marketplace C. Designing a Remix Compulsory License 1. Eligibility Requirements 2. Revenue Sharing 3. Administrative Process 4. Additional Features and Limitations a. Interplay with Fair Use b. Use Limitations c. Endorsement Disclaimer d. Changes to Statutory Damages 5. Possible Extensions D. Additional Benefits of a Remix Compulsory License 1. Enrich Input Materials 2. Channel Remix Artists and Their Fans into Authorized Content Markets 3. Enhance Notice Institutions and Databases 4. Reduce Antitrust Concerns E. Objections and Responses 1. Potential Abuse 2. Freedom of Contract 3. Potential Distortions to Fair Use 4. Moral Rights IV. BROADER RAMIFICATIONS: BRIDGING FAIR USE'S BINARY DIVIDE CONCLUSION INTRODUCTION

Advances in digital technologies in conjunction with Napster's charismatic file-sharing technology unleashed a digital tsunami that continues to reshape the content industries and the broader culture. While these technologies have empowered creators and enabled them to reach vast audiences without the high share of proceeds demanded by traditional record labels, publishers, and distributors, they have also introduced new challenges for those seeking to earn a living in the creative arts. (1) The very technologies that liberate creators from the shackles of the old intermediaries make it ever more difficult to achieve an adequate return on their investments in training, time, expense, and opportunity cost to produce art. (2) Copyright enforcement, which was rarely a problem in the pre-Internet age, has taken center stage in the post-Napster era, especially for independent creators. And although the much anticipated celestial jukeboxes--Pandora, Spotify, YouTube, and others--have arrived, they too are beholden to the old intermediaries. (3) To quote Pete Townshend, "Meet the new boss, same as the old boss." (4)

Whereas prior generations of consumers and creators had few options for accessing copyrighted works outside of authorized channels, the Internet has irreversibly altered the technological constraints channeling most consumers into content markets. In the Internet Age, kids, as well as grown-ups, can now find just about any copyrighted work with relative ease. While this new reality curtails some of the more exploitive practices of copyright owners, it also jeopardizes the funding and development of high-cost and high-risk creative projects through decentralized market mechanisms, the economic foundation of copyright protection.

A just, effective, and forward-looking copyright system would ideally channel new-age creators and consumers--the post-Napster generations--into well-functioning digital-content marketplaces. (5) Such a system must come to grips with the reality that a growing segment of the population does not view copyright markets as the only means to access creative works. (6) To many, participation in markets for copyrighted works is voluntary; it is more about convenience and fairness than compliance with the rule of law. (7) Thus, trends in technology, social dynamics, and moral conscience have eroded copyright protection. Heavy-handed responses by copyright owners--such as mass litigation campaigns, efforts to ramp up enforcement tools, and troll litigation--have alienated consumers, judges, and legislators and spurred work-arounds that lead new generations away from authorized digital content marketplaces and copyright-based creative careers. (8)

Notwithstanding the decline of the copyright system's public approval rating, the core social, economic, and moral foundations on which copyright was built have not been rendered obsolete by technological advance. To a large extent, what many creators want and need has remained the same: freedom to create and fair compensation based on the popularity of their art. (9) And what many consumers want has also largely remained the same: easy access to creative original art at a fair price. (10) These two forces create the conditions for copyright to provide a critical engine of creative and free expression. But for the copyright system to remain vital, copyright reform must channel post-Napster creators and consumers into a balanced marketplace, not alienate them. In a recent lecture, I sketched a comprehensive plan for adapting copyright law, institutions, and business practices for the Internet Age. (11)

This Article builds on that project by exploring the challenges posed by music mashups. Although a relatively small slice of the overall content landscape, the mashup genre is of particular cultural and symbolic significance for transitioning the copyright system to the post-Napster era for several reasons.

First, popular music exerts strong biological, (12) social, and cultural force on every generation and has long been among the most important formative copyright experiences for many young people during the past half century. The opportunities for adolescents to collect their favorite musical recordings and develop their own musical abilities--often inspired by their favorite composers and recording artists--can shape lifelong passions, tastes, and values.

Second, new genres--from R&B to rock 'n' roll, metal, disco (and the first wave of electronic dance music (EDM)), grunge, rap, hip hop, house/EDM (second wave), and mashup--define and differentiate the youth of each generation from prior generations. As such, they play a critical formative role in each generation's values, self-identity, autonomy, and creative development.

A copyright system that fails to understand, accept, and embrace these formative and social processes sacrifices relevancy among a key demographic, which over time will make the system progressively less acceptable to a growing proportion of society. Since digital and Internet technology provide easy access to unauthorized sources of copyrighted works, failure to accommodate new and popular art forms encourages "work-arounds" to copyright markets, alienates post-Napster generations (and increasingly those who grew up in the era in which copyright markets were obligatory) from copyright markets, and confronts judges responsible for adjudicating copyright disputes with difficult choices, as reflected in the file-sharing and Internet safe harbor cases. (13)

The emergence of mashup creativity over the past decade epitomizes the marginalization of copyright as an economic, social, and cultural institution. Advances in remix hardware and software in conjunction with the ease of online distribution have empowered a new wave of mashup artists--from a new generation of disc jockeys (DJs) to bold new creators (such as Girl Talk) to adventurous teenagers developing their own identity--to assemble mashup tracks and distribute them outside of copyright markets. Yet legal uncertainty surrounding this new art form stunts and distorts its development and breeds contempt for the copyright system.

This Article contends that by extending a compulsory license to mashup artists, Congress can invigorate the copyright system and channel new generations of consumers and creators into well-functioning online marketplaces for digital content. By augmenting the cover license, which has been in place for more than a century, with digital technologies for identifying and tracking usage of preexisting copyright works, a remix compulsory license would provide a calibrated mechanism for enabling both mashup artists and owners of sampled works to profit equitably from the public's enjoyment of the resulting work.

Such a regime would remove the dark cloud constraining and distorting the mashup genre. It would not supplant fair use, but rather sidestep its amorphous contours in those situations in which mashup artists choose to operate within the compulsory license regime. Others would be free to test the limits of fair use, but it seems likely that an increasing number of mashup artists would see the virtue in sharing the proceeds of their success with those whom they...

To continue reading