This article was written by Shantanu Rawat a student of Hidayatullah National Law University, Raipur.
This is the age of the internet. YouTube, SoundCloud and platforms of the similar ilk have come forward as a stage to show an artist’s creativity in the form of remixes and mashups.
The efforts put in by the amateur creators in creating this form of culture has not escaped the eyes of the law. Often we see myriads of cases where some recording or the other is taken down from the internet and/or other platforms citing “Copyright Infringement”. This essay aims to enlighten its readers regarding the challenges faced by content creators, especially amateur creators in the process of remixing existing works and how these challenges are to be tackled through fair use and creative commons license. Moreover, this essay discusses a few major cases regarding music remixes as well as how the legal framework has changed regarding this culture.
“I invented nothing new, I simply assembled the discoveries of other men behind whom were centuries of work… progress happens when all the factors that make for it are ready and then it is inevitable.” – Henry Ford
“Thou shalt not steal” of the Ten Commandments, has been the line of thought in the conundrum surrounding the term “remix.”1 Today, it refers to the act of creating something new based on existing materials. The present essay while limiting the scope of remix as musical remixes, also extends in its applicability to other forms of art as well.
Remix is a form of appropriation art where an existing piece(s) of work is used to create a new work. Indian Courts have interpreted remixes as a sound recording made of any already published song by using another voice or voices and with different musicians and arrangers.2 Lawrence Lessig defines remix as an essential act of Read/Write creativity, the expression of a freedom to take “the songs of the day or the old songs” and create with them. “Remix culture” is a practice enabled by widespread access to sophisticated
“Thou shalt not steal.” Judge Duffy’s opinion in Grand Upright v. Warner 780 F. Supp. 182 (SDNY 1991) regarding whether an existing work of music can form the basis of a new work.
SeeGramophone Co. of India v. Super Cassettes Industries Ltd., 1996 PTC(16).
Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy 56 (Bloomsbury 2008).
computer technology whereby existing works are rearranged, combined or remixed to create a new work.4
Simply put, a remix is:
any altered version of a song;
new media created from old media;
to copy, transform and combine.5
Remixes can be Inspirational, Incremental or Component-based.6
1.1 HISTORY OF REMIX
Remixes of various art forms have been done since time immemorial. Different cultures have gone through with mixing and merging prior arts to form a new work, like folk music.7
Example of which would be Cento, a Medieval European literary work based on modification made to older works. The Art and Architecture of Renaissance Europe is a remix of Rome and Greece in the 15
Musique Concrete in the 1940s, by Pierre Schaeffer, a French engineer who recast pre-recorded sounds by manipulating the speed and direction of turntables and magnetic tape, was one of the first recorded remixes in the world. Later, in 1956, “The Flying Saucer” by
he earliest example of mainstream recognition was “Rapper’s Delight” (1979) by Sugarhill Gang, which sampled the bass riff from Chic’s Good Times.
In the 1980s era, sample based Rap and Hip-Hop music, earlier considered underground,
Guilda Rostama, Remix Culture and Amateur Creativity: A Copyright Dilemma, available at http://www.wipo.int/wipo_magazine/en/2015/03/article_0006.html.
Transcript of Everything is a remix, available at: http://everythingisaremix.info/blog/everything-is-a-remix-part-4-transcript.
Andres Monroy-Hernindez, Designing for Remixing:Supporting an Online Community of AmateurCreators (Ph.D Thesis) available at http://hdl.handle.net/1721.1/78202 .
US media scholar Professor Henry Jenkins argues that “the story of American arts in the 19th century might
be told in terms of the mixing, matching and merging of folk traditions taken from various indigenous and immigrant populations.”
witnessed massive popularity after being signed by major record labels.8 The most notable example would be “Amen Break”, a six-second drum break from a recording of soul music group called The Winstons.9 It is perhaps the most well-known sample as it has been used in numerous recordings since the 1980s10 and it is said to be responsible for being the basis of various genres of electronic music such asdrum and bass.11
In the Late 1990s – Early 2000s, India also saw the emergence of remix culture as old Hindi songs were subject to catchy beats which were often accompanied by videos featuring scantily clad women.
Now the era of remixes and mashups has taken the internet by storm. Millions of remixes and mashups are uploaded on the internet every day.
CHALLENGES FOR THE AMATEUR ARTIST
The concept of remixes faces its own challenges, the primary being the moral rights of the creator. The Berne Convention supports the original artist instead of the amateur creator12, most of the original authors file for copyright infringement when even a little part of their work has been used, citing prejudice to their reputation. The concept of idea/expression dichotomy does not apply to music as it does on other arts because of the fact that it is nearly impossible to objectively differentiate between both. Going by extremes no music can be similar to other because there will be an element of difference on the basis of the idea which was behind it and the expression as it came out. Since there is only a finished product which can be assessed as idea and expression both. Hence the threshold of judging the amateur content is much higher.
However it is not entirely true that international conventions are always prejudicial towards amateur creators.14 In an era and industry that have grown accustomed to “property talk,”
Run DMC’s version of Aerosmith’s Walk This Way (1986) among others, would be the perfect example of an 80s rock-rap remix. The aforementioned trend continued well till the mid-1990s.
Ellen Otzen, Six seconds that shaped 1,500 songs, http://www.bbc.com/news/magazine-32087287 (Retrieved on April 1 2015).
List of songs that sampled the recording, available at http://www.whosampled.com/The-Winstons/Amen,-Brother/.
Josh Jones, The “Amen Break”: The MostFamous 6-Second Drum Loop & How It Spawned a SamplingRevolution,http://www.openculture.com/2013/03/the_amen_break_the_most_famous_6second_drum_loop_ho html (Retrieved on April 1 2015).
Berne Convention, Art. 6bis: “the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification […] which would be prejudicial to his honor or reputation.”
Siva Vaidyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How it ThreatensCreativity 119 (Reissue edition New York University Press 2003)
TRIPS Agreement, Art. 13: “certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder” the use of the work by an amateur artist would not constitute “normal exploitation.”
lawsuits have become frequent tools for resolving disputes over authorship, ownership, and originality.15
It is helpful to think of remixes as musical forms of “fan fiction,” amateur creative writing and artistic productions.16 Implicit in both musical collage and fan fiction cultures is the concept of the “public life” of a work: once it has been created and released to the public, it ceases to be the sole property of its creator.17 Just because images from a cinematographic work are mixed with a specific song does not mean that the public will stop purchasing either of them. On the contrary, such remixes or mash-ups may constitute free publicity for the pre-existing work.18 “The system is designed to promote innovation, but the consequence of granting a limited term monopoly19 is that restrictions are put on what others can do.”20 The restriction, in the view of the authors is prima facie unfair because putting restrictions and granting monopoly is sure to stifle creativity as music is art and creativity being the fuel to the soul of artists.
2.1. THE FAIR USE DEBATE
The copyright law of United States provides for usage of copyrighted material without the author’s permission in case of a fair use.21 Whether the use of copyrighted material is done in a fair manner is decided by the Court on case-to-case basis. The Courts relies on four factors while deciding on the usage as provided22:
Supra note 13 at 128.
Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity 79 (The
University of Georgia Press 2006).
Rostama, supra note 4.
WIPO Intellectual Property Handbook: Policy, Law and Use available at: www.wipo.int/about-ip/en/iprm/pdf/ch2.pdf.
Rabecca Martin, Remix Culture: A Rights Nightmare, available at http://www.abc.net.au/catapult/indepth/s1645533.htm
Stephanie Lenz v. Universal Music Corp., Universal Music Publishing Inc., and Universal Music Publishing Group, Case No. 5:07-cv-03783-JF, January 24, 2013.
US Copyright Act of 1976 § 107:
Purpose and Character of the work
Transformative Quality – Whether the work is the same as the original or innovation has transformed the work into a new art?
Commercial relevance – Whether the amateur creator is getting monetary benefit or is it for nonprofit, educational or for personal usage only?
Nature of the work – Mostly a factual work is likely to be made use of in a fair manner compared to a creative work
Amount or substantive part of material used – Copying nearly all of the original work, or copying its “heart,” may weigh against fair use.
Effect on the market of the original work – If the original work is used in such a way that the new work replaces its value in the market, it cannot be called fair use.
Advocates of remixing argue that sampling of copyrighted recordings constitutes fair use because the resulting collages extend beyond mere copying to function as cultural critique.23
Demers has criticized fair use for being an affirmative defense as the burden of establishing the defense remains with the defendants. The plaintiff in an infringement suit does not have to prove that the borrowing was “unfair”; rather the defendant must prove that it was “fair”.
As a result, most cases end up being settled out of Court due to high litigation costs and time issues. She also states that there is a difficulty in establishing what “fair” means.24
Lessig believes that fair use is an area of law’s failure, it is designed to limit the scope of copyright regulation.25 He goes on to state that it is nothing but an extraordinarily complicated balancing act, and a totally inappropriate burden for most amateur creators. He suggests that the concept should be simplified in a way that even a kid can understand it. Fair use could do its work better if legislature followed in part the practice of European copyright systems. Specifically, it could specify certain uses that were beyond the scope of copyright law while retaining the flexible character of the existing concept because it encourages the development of law.26
Lessig has termed deregulation as the most obvious change to restore a copyright law that leaves “amateur creativity” free from regulation. Regulation could be avoided most simply by exempting “noncommercial” uses from the scope of the rights granted by copyright, copies of professional work should continue to be regulated in the traditional manner.
Deregulation does not mean supplanting fair use but it aims to exempt an area of creative work from the requirements of fair use or the restriction of copyright, it would remain a critical part of any professional creativity.
SCOTUS’ ruling in Campbell v. Acuff-Rose Music, Inc.27 is highly relevant as it brought commercial works in the ambit of fair use if it is in consonance with its other essentials. The case involved a song by hip-hop group 2 Live Crew, Pretty Woman, a parody of Roy
Orbison’s Oh, Pretty Woman. The 2 Live Crew version was a ‘cover’ of the original and it also borrowed its famous opening guitar motive. The original lyrics were replaced by humorous lyrics. However, the ruling was eventually remanded to a lower Court and it was
Demers, supra note 16 at 119.
Lessig, supra note 3, at 266-268.
510 U.S. 56 (1994).
decided out of Court. It was observed that Courts must employ the doctrine so as to “avoid rigid application of the copyright statute as it would stifle the very creativity which the law is designed to foster.28 The Campbell ruling continues to act as a template for subsequent decisions.29
The most important recent development for the remix and appropriative art culture is Cariouv. Prince30 wherein the defendant created a series of art works incorporating the plaintiff’s photographs. The defendant copied the original photographs and used a variety of transformations including blurring or sharpening, adding content, compositing multiple photographs together or with other works etc.31 upon appeal, the Second Circuit reversed the District Court’s decision, finding that most of Prince’s works were indeed transformative and thus constituted fair use.32 It held that appropriation artwork need not comment on the original to be transformative. The Court then found 25 of 30 works to be transformative fair use under its newfound principle and remanded the case to the lower Court for reconsideration of the remainder. However, in March, 2014, this matter was also settled out of Court.
2.2. CREATIVE COMMONS
The strongly held opinion of some that it’s in the public interest to make information free, has been the catalyst for a nebulous movement that’s pushing for information and material to be more accessible.33 The Creative Commons Licence has come forward as a response which gives the original artists the right to choose in what forms and ways their work can be used by the aforementioned amateur creators. “It’s actually a movement that allows creators to decide how much of their information can be made public, and gives them an opportunity to make it more available than what the copyright legislation outlines,34”says Jessica Coates of the Australian Centre for Creative Commons. And rightfully so, she goes on to suggest that instead of using the clichéd “All Rights Reserved” the artists under Creative Commons should use “Some Rights Reserved” hence promoting wider utility of their creation.
See Castle Rock Entertainment, Inc. v. Carol Publishing Group, 50 F.3d 132, 142 (2d Cir. 1998)
3d 694 (2d Cir. 2013).
In March 2011, the District Court held that Prince’s works were infringing as these works were not transformative, in part because the defendant did not claim to be commenting upon the original works of the plaintiff.
Barry Werbin, The ‘Transformation’ of Fair Use After Prince v. Cariou, Art & Advocacy, Volume 16, Winter 2014, available at http://www.herrick.com/publications/the-transformation-of-fair-use-after-prince-v-cariou/.
Rabecca Martin, Remix Culture : A Rights Nightmare, available at http://www.abc.net.au/catapult/indepth/s1645533.htm
Jessica Coates of the Australian Centre for Creative Innovation at Creative Commons Global Summit 2015, Seoul, South Korea 14-17 October 2015.
3.1. DEAN GRAY
Dean Gray is a DJ-duo based in Australia specialising in parodies and remixes of famous albums.35 In December 2005 they released their new album online titled American Edit a remix of American Idiot, an album by San Francisco based punk-rock band Green Day which made the band one of the most selling music artists of the generation. Due to the remix nature of this famous album, the Dean Gray version of it became an instant hit online but also caught the eye of the Warner Bros. Music Ltd. the record label of Green Day. The label sent a ‘cease and desist’ notice to Dean Gray sparking an outrage among the online community. Around 400,000 petitions were signed against the album being taken down from the internet and Green Day itself said in a press release that they liked the music and it was quite flattering. But the fact remained that the label owned the rights of the album, hence the album still is not allowed to remain on the internet.
3.2.THE GREY ALBUM
In 2003, Brian Burton, aka DJ Danger Mouse, mixed an a cappella version of Jay-Z’s 2003
Black Album with instrumental parts from the Beatles’ 1968 White Album, resulting in what he called the Grey Album. He also released some physical promotional copies of the same. Later, he received a cease-and-desist letter from EMI, the copyright owner of the Beatles’
White Album. EMI also threatened legal action to any individuals who sold or transmitted copies of the Grey Album over eBay or through file-sharing networks.
This led to a public backlash against the EMI in the form of an event called “Grey Tuesday” which involved protests EMI’s threats by inviting participants to download free copies of the impugned album. It saw support from media and university radio stations who also aired the album. However, In March 2004, DJ Danger Mouse complied with the cease-and-desist letter and stopped selling and distributing copies of the album.
These two cases are just the tip of the iceberg. Many artists are forced to cease the distribution of their work because a major record label “owns” the rights to the music.
35 About the Artist Dean Gray, available at http://bootiemashup.com/sf/deangray.
However, with the increasing support of these artists has led to a free content movement where they are demanding “a much broader right, a right to mashup and remix material – to take on the role of producers – to cut, paste, sample of jam with content, in order to produce something which is distinctive of their own social and creative innovation.”36
LEGAL POSITION ON REMIXES
The legal position on the remix culture and the rights of amateur artists has been confusing. A close analysis of the situation prior to the Copyright (Amendment) Act, 2012 reveals that the copyright laws have transcended from being creative-friendly to more of ownership-friendly. The only remedy which were available with the original musicians are available were the compliance of condition under Section 52 (1)(j) (prior to the amendments) which were not more than the formalities required under Copyright Act, 1957. In other words, judiciary had nodded indirectly to the remixes.37
But this situation has changed after Section 31C was introduced by the Act of 2012. It has been inserted with a view to protect the rights of musicians by protecting them against copyright infringement through remixes.38
It follows without any doubt that due to very nature of the act of remixing, it will have its fair share of litigation. Most cases are of unauthorized sampling in recording. An interesting thing is that most of these lawsuits end by way of out of Court settlements rather than a judicial pronouncement. A famous early example is when Queen and David Bowie sued American rapper Vanilla Ice, for illegally sampling the bassline and piano part of the song Under Pressure in his breakthrough hit, Ice Ice Baby in 1990. The dispute eventually reached an out of Court settlement, which resulted in Queen, and David Bowie receiving
36, Damien O’Brien and Brian Fitzgerald, Mashups, remixes and copyright law, Internet Law Bulletin 9(2): 17-19 (2006).
Gramophone Co. of India v. Super Cassettes Industries Ltd., 1996 PTC(16).
Copyright (Amendment) Act, 2012,Section 31C:
The section mainly lays down six principles for a remix to escape from being copyright infringing:
Consent or license from the owner of the right and same medium of cover version as that of the original version.
Prior written notice to the owner for version recording is required and the royalty shall be paid in advance at the rate as specified by the Copyright Board and for a minimum of 50000 copies.
A cover version cannot be reproduced until the expiration of 5 years from the date it was actually made.
Cover version shall have to mention that it is a cover version and shall not contain he name or depict in anyway any performer of an earlier sound recording of the same work.
A person cannot make any alteration in the literary or musical work which has not been made previously by or with consent of the actual owner.
Alteration in original recordings are only allowed for technical purpose now, however, previously it was allowed for adaption of the work.
Grand Upright Music, Ltd v. Warner Bros Records Inc.39.turned out to be the game changer for the music industry. In 1991, Grand Upright Music sued Marcel Hall (Biz Markie),
Warner Records, and Cold Chillin’ Publishing for unauthorized sampling of Gilbert O’Sullivan’s Alone Again (Naturally) (1972) in Biz Markie’s Alone Again (1990) on the album “I Need a Haircut”. The impugned sampling comprised the three title words sung by the rapper and usage of the recording of O’Sullivan’s piano accompaniment. The presiding Judge, Kevin Duffy not only granted an injunction against the defendants, effectively pulling out the song from future releases of the album but he also made a reference to the Seventh Commandment of the Bible thou shalt not steal. Judge Duffy then went on to refer the matter for criminal prosecution due to the defendants’ intentional copyright infringement which was a more serious. However, no criminal charges were filed and the dispute was settled out of Court.
The Grand Upright ruling had a lasting impact on various other artists as well who made sample-heavy music. After the ruling, prior sample clearance was viewed as an industry norm.
However, the ruling was not free of criticism. Critics have pointed out that the Biblical reference demonstrates the Judge’s bias against the defendants while deciding the matter.40
The decision has also been termed as an “iffy understanding on the part of this judge of the facts and issues before him in this case.”41
The legal position post the Grand Upright ruling was perceived to be concrete but Courts showed a more flexible approach, deciding copyright issues in matters of appropriation art on a case-to-case basis. A notable example is of Newton v. Diamond42, wherein a District Court in California found that the Beastie Boys’ use of a three-note portion of James
Newton’s flute piece Choir was not infringement because the borrowed notes were not original enough to warrant copyright. Other examples of a case-by-case approach include
780 F. Supp. 182 (S.D.N.Y. 1991).
The Copyright Infringement Project of UCLA Law and Columbia Law School, available at http://mcir.usc.edu/cases/1990-1999/Pages/granduprightwarner.html.
204 F. Supp. 2d 1244 (D.C. Calif. 2002).
Tuff ’N’ Rumble Management Inc. v. Profile Records Inc.43, and Williams v. Broadus. 44
However, this approach was put to rest in 2004 in Bridgeport Music, Inc. v. DimensionFilms45 wherein the plaintiff accused the rap group N.W.A of illegally sampling its recording of Funkadelic’s Get off Your Ass and Jam. The impugned sample comprised of a repeated, three- note electric guitar arpeggio. A Tennessee District Court, as in Newton, had earlier ruled that the sample, was a de minimis sample requiring no clearance.46 However, The Sixth Circuit Court overturned this ruling. The Court stated: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”
From the inception of art to the present era of modern technology; artists have been reinvigorating earlier works by adding a pinch of their creativity and talent. When an amateur musician samples an existing song, his main motive is to be as creative as possible so that the music he makes has a different impact. Hence the motivation comes from creative thinking and channelizing that into reality through talent. In the course of this whole essay, we have proven the fact that remixing requires a lot of creativity. Jason Schultz of Electronic Frontier Foundation contends, – ‘this is a battle over creativity, do we want a world where the law criminalises that?’47
The idea-expression dichotomy and the concept of property does not apply to music in a linear fashion. But due to the obsession of “owning” the work by Record labels and artists, a lot of creativity is stifled by lawsuits. However, there are tools such as the concept of fair use and creative commons licensing, but their scope is very much limited.
Hence cases like American Edit and the Grey Album controversy have become commonplace. The legal framework in our country among many has failed to support the amateur creators in protecting their creative endeavours. But, there is still hope for a change as large number of people, organisations and jurists are supporting remixing of existing songs. Will there ever be a free sampling era in the music industry where artists create without any hindrances? That, only time will tell. But the author being avid fans of music, sure hopes so.
42 U.S.P.Q. 2d (S.D.N.Y. 1997).
S. Dist. LEXIS 12894 (S.D.N.Y. 2001).
410 F.3d 792 (6th Cir. 2005).
Bridgeport v. Dimension, 230 F. Supp. 2d 830 (MD Ten. 2002).
Michael Hill and Jennifer Dudley, Do the mixed-up movie mash, The Courier Mail, Thursday March 9 2006, at 17.
 Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity 76 (The University of Georgia Press 2006).