Panda's avatar

As you know only legal content is permitted here on Panda.cd. Originally I had intended to take a strict approach removing material that remixed / rearranged other artists work without permission to do so, and this still remains the case.

However due to several attempts to upload mashup albums to the site, which blur the line between what is and isn't legal (depending on your point of view) - we thought we'd spark a little discussion on it to possibly make amendments to the site rules.

Do mashups fall under fair use? How do you think laws on the matter are likely to change in the future? Would a complaint based removal system for such material work best? Or are they fine as long as they are not being sold?

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Monkeymook's avatar

This is a pretty hairy issue to begin with, because when an artist releases their work, (I'm assuming), that their completed work is what is being sold. They're not selling it in parts, or as broken down material, but that doesn't mean the material can't be used in that way.

Poorly defined legal boundaries and restrictions blur the line between what is considered fair use, and what isn't, and in the scenario of mashups, I believe they should fall under fair use.

This issue was thoroughly discussed in the film RiP!: A Remix Manifesto.

In Lawrence Lessigs' CC-licensed book, 'Free Culture', he discusses the boundaries consisting of Fair Use, and what lies within those regulated uses.

He states; (verbatim)

LL; Free Culture wrote:
3. Free Use Vs. Fair Use

As I observed at the beginning of this book, property law originally granted property owners the right to control their property from the ground to the heavens. The airplane came along. The scope of property rights quickly changed. There was no fuss, no constitutional challenge. It made no sense anymore to grant that much control, given the emergence of that new technology.

Our Constitution gives Congress the power to give authors “exclusive right” to “their writings.” Congress has given authors an exclusive right to “their writings” plus any derivative writings (made by others) that are sufficiently close to the author’s original work. Thus, if I write a book, and you base a movie on that book, I have the power to deny you the right to release that movie, even though that movie is not “my writing.” Congress granted the beginnings of this right in 1870, when it expanded the exclusive right of copyright to include a right to control translations and dramatizations of a work.

The courts have expanded it slowly through judicial interpretation ever since. This expansion has been commented upon by one of the law’s greatest judges, Judge Benjamin Kaplan.

So inured have we become to the extension of the monopoly to a large range of so-called derivative works, that we no longer sense the oddity of accepting such an enlargement of copyright while yet intoning the abracadabra of idea and expression.

I think it’s time to recognize that there are airplanes in this field and the expansiveness of these rights of derivative use no longer make sense. More precisely, they don’t make sense for the period of time that a copyright runs. And they don’t make sense as an amorphous grant. Consider each limitation in turn.

Term: If Congress wants to grant a derivative right, then that right should be for a much shorter term. It makes sense to protect John Grisham’s right to sell the movie rights to his latest novel (or at least I’m willing to assume it does); but it does not make sense for that right to run for the same term as the underlying copyright. The derivative right could be important in inducing creativity; it is not important long after the creative work is done.

Scope: Likewise should the scope of derivative rights be narrowed. Again, there are some cases in which derivative rights are important. Those should be specified. But the law should draw clear lines around regulated and unregulated uses of copyrighted material. When all “reuse” of creative material was within the control of businesses, perhaps it made sense to require lawyers to negotiate the lines. It no longer makes sense for lawyers to negotiate the lines. Think about all the creative possibilities that digital technologies enable; now imagine pouring molasses into the machines. That’s what this general requirement of permission does to the creative process. Smothers it.

This was the point that Alben made when describing the making of the Clint Eastwood CD. While it makes sense to require negotiation for foreseeable derivative rights—turning a book into a movie, or a poem into a musical score—it doesn’t make sense to require negotiation for the unforeseeable. Here, a statutory right would make much more sense. In each of these cases, the law should mark the uses that are protected, and the presumption should be that other uses are not protected. This is the reverse of the recommendation of my colleague Paul Goldstein. His view is that the law should be written so that expanded protections follow expanded uses. Goldstein’s analysis would make perfect sense if the cost of the legal system were small. But as we are currently seeing in the context of the Internet, the uncertainty about the scope of protection, and the incentives to protect existing architectures of revenue, combined with a strong copyright, weaken the process of innovation. The law could remedy this problem either by removing protection beyond the part explicitly drawn or by granting reuse rights upon certain statutory conditions. Either way, the effect would be to free a great deal of culture to others to cultivate. And under a statutory rights regime, that reuse would earn artists more income.

I believe Chapter 12; Constraining Creators (Innovators), and Corrupting Citizens does a much better job explaining the issues behind regulated uses of works.

He states that the uses of copyright works are only regulated, so long as they make a copy. If those uses do not make a copy, they are not regulated by copyright law, but I'm not here to put it in a nutshell.

His words;
LL; Free Culture wrote:
If you read a book, that act is not regulated by copyright law. If you give someone the book, that act is not regulated by copyright law. If you resell a book, that act is not regulated (copyright law expressly states that after the first sale of a book, the copyright owner can impose no further conditions on the disposition of the book). If you sleep on the book or use it to hold up a lamp or let your puppy chew it up, those acts are not regulated by copyright law, because those acts do not make a copy.

Obviously, however, some uses of a copyrighted book are regulated by copyright law. Republishing the book, for example, makes a copy. It is therefore regulated by copyright law. Indeed, this particular use stands at the core of this circle of possible uses of a copyrighted work. It is the paradigmatic use properly regulated by copyright regulation.

Finally, there is a tiny sliver of otherwise regulated copying uses that remain unregulated because the law considers these “fair uses.” These are uses that themselves involve copying, but which the law treats as unregulated because public policy demands that they remain unregulated. You are free to quote from this book, even in a review that is quite negative, without my permission, even though that quoting makes a copy. That copy would ordinarily give the copyright owner the exclusive right to say whether the copy is allowed or not, but the law denies the owner any exclusive right over such “fair uses” for public policy (and possibly First Amendment) reasons.

In real space, then, the possible uses of a book are divided into three sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that are nonetheless deemed “fair” regardless of the copyright owner’s views. Enter the Internet—a distributed, digital network where every use of a copyrighted work produces a copy. And because of this single, arbitrary feature of the design of a digital network, the scope of category 1 changes dramatically. Uses that before were presumptively unregulated are now presumptively regulated. No longer is there a set of presumptively unregulated uses that define a freedom associated with a copyrighted work. Instead, each use is now subject to the copyright, because each use also makes a copy—category 1 gets sucked into category 2. And those who would defend the unregulated uses of copyrighted work must look exclusively to category 3, fair uses, to bear the burden of this shift.

The entire scope of his writings for Fair Use, is the sense that, 'I am creating based off your work.'

The law is poorly defined, in the sense that it criminalizes people who are doing the same exact act as what was done to create much of Disney's work. I use Disney as an example, because they are such a massive Copyright monolith and have so much work they have created, but which was based upon works in the PD.

If I was to take a work from the PD, and build upon it; let's say, Shakespeare, then why should that very same act be a criminal act when the work has an active Copyright?

The issue is hard to define, because digital IP has to be handled differently than physical property.

I think the ultimate definition should be settled with 3 questions:

1. Is the primary work creating a copy of a copyrighted work?
2. If so, is the primary work defined under Fair Use?
3. If not, why?

Wikipedia wrote:
In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur."

Creating a mashup does not create a duplicate of the originally copyrighted work, and therefore, if the primary work differs within a reasonable spectrum, it has the inability to replace demand for the Copyrighted work.

Regarding this scenario, I'd say allow mashups, because mashups (in their literal sense) differ greatly from the original work.

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K3V's avatar

Sorry if this is a little off-topic but i just thought it fitted in.

How about adding a Royalty Free/Samples/Remix section so Panda members can provide Royalty Free Samples for other Panda members to use to create remix's and whatnot of their work ?! Just an idea.

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Monkeymook's avatar

K3V wrote:
Sorry if this is a little off-topic but i just thought it fitted in.

How about adding a Royalty Free/Samples/Remix section so Panda members can provide Royalty Free Samples for other Panda members to use to create remix's and whatnot of their work ?! Just an idea.

Excellent idea. This gives other artists on the site the incentive to work within a license-free sample collective, without stifling monetary resources.

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AddaeDans's avatar

Well, I always tought that if a human creates something, it creates it for the world. He/she can make benefits about it some way, but I would never force people to give something they do not want or can't. To answer to the fair rules dilemma, I think it falls under it if new stuff is named properly(shows the original artist(s) and point to the original material. So it also advertise the original artists. I don't se why it would be bad for anyone. Do it! If the law will come, just smile and wave our hands(or whatever you want).

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Monkeymook's avatar

AddaeDans, I agree.

But I think once you put something into the publics' hands, then it is fair game for mashups and improvisation.

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OneBlockWest's avatar

As far as I see it, from a composer's perspective, a mashup is simply a formalized/concrete embodiment of the process that happens naturally when one listens and absorbs the music of another artist. A person's work is always an amalgamation of their influences. So, with this in mind, the mashup or the remix or the 'theme and variations' is simply an outward homage to one's on influence. To say that under authorship, by simply authoring a work, you are protecting against the so-called derivative work, doesn't seem realistic to me.

I don't think that I have really contributed anything substantial to the debate but it's just a thought on the role of mashup as simply an extension of the natural musical/creative process anyway.

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