Remix - Copyright Implications

Copyright Implications

Because remixes may borrow heavily from an existing piece of music (possibly more than one), the issue of intellectual property becomes a concern. The most important question is whether a remixer is free to redistribute his or her work, or whether the remix falls under the category of a derivative work according to, for example, United States copyright law. Of note are open questions concerning the legality of visual works, like the art form of collage, which can be plagued with licensing issues.

There are two obvious extremes with regard to derivative works. If the song is substantively dissimilar in form (for example, it might only borrow a motif which is modified, and be completely different in all other respects), then it may not necessarily be a derivative work (depending on how heavily modified the melody and chord progressions were). On the other hand, if the remixer only changes a few things (for example, the instrument and tempo), then it is clearly a derivative work and subject to the copyrights of the original work's copyright holder.

The Creative Commons is a non-for-profit organization that allows the sharing and use of creativity and knowledge through free legal tools. They created a website that allows artists to share their work with other users, giving them the ability to share, use, or build upon your work, under the Creative Commons license. The artist can limit the copyright to specific users for specific purposes, while protecting the users and the artist.

The exclusive rights of the copyright owner over acts such as reproduction/copying, communication, adaptation and performance – unless licensed openly – by their very nature reduce the ability to negotiate copyright material without permission. Remixes will inevitably encounter legal problems when the whole or a substantial part of the original material has been reproduced, copied, communicated, adapted or performed – unless a permission has been given in advance through a voluntary open content license like a Creative Commons license, there is fair dealing involved (the scope of which is extraordinarily narrow), a statutory license exists, or permission has been sought and obtained from the copyright owner. Generally, the courts consider what will amount to a substantial part by reference to its quality, as opposed to quantityand the importance the part taken bears in relation to the work as whole.

There are proposed theories of reform regarding the copyright law and remixes. Nicolas Suzor believes that copyright law should be reformed in such a manner as to allow certain reuses of copyright material without the permission of the copyright owner where those derivatives are highly transformative and do not impact upon the primary market of the copyright owner. There certainly appears to be a strong argument that non commercial derivatives, which do not compete with the market for the original material, should be afforded some defense to copyright actions.

Stanford Law Professor Lawrence Lessig believes that for the first time in history creativity by default is subject to regulation because of two architectural features. First, cultural objects or products created digitally can be easily copied, and secondly, the default copyright law requires the permission of the owner.The result is that you need the permission of the copyright owner to engage in mashups or acts of remixing. Lessig believes that the key to mashups and remix is "education – not about framing or law – but rather what you can do with technology, and then the law will catch up". He believes that trade associations – like mashup guilds – that survey practices and publish reports to establish norm or reasonable behaviours in the context of the community would be useful in establishing fair use parameters. Lessig also believes that Creative Commons and other licences, such as the General Public Licence are important mechanisms which mashup and remix artists can use to mitigate the impact of copyright law.

The Fair Use agreement allows users to use copyrighted materials without asking the permission of the original creator (section 107 of the federal copyright law).Within this agreement, the copyrighted material that is borrowed must be used under specific government regulations. Material borrowed falls under fair use depending on the amount of original content used, the nature of the content, the purpose of the borrowed content, and the effect the borrowed content has on an audience. Unfortunately, there are no distinct lines between copyright infringement and abiding by fair use regulations while producing a remix. However, if the work that is distributed by the remixer is an entirely new and transformative work that is not for profit, copyright laws are not breached. The key word in such considerations is transformative, as the remix product must have been either sufficiently altered or clearly used for a sufficiently different purpose for it to be safe from copyright violation.