Mashups: Should Innovation Excuse Infringement? (Part 4 in a Series)

In this post, the fourth and final in a short series, Frank Gonzalez continues to look at some of the legal issues surrounding one of the latest trends in popular music, the mashup. Part 3, which explored courts' analysis of the fair use exception, can be found here. Today, Frank summarizes the issues and offers some concluding remarks.

Conclusion

The stated purpose of copyright is to “promote the Progress of Science and useful Arts.” 1 Now, whether the combination of Neil Diamond, Nirvana, Willow Smith, Devo 2 and others is the type of progress the Framers were considering is subject to varied interpretation. Regardless of one’s particular opinion, mashups’ innovation and corresponding ubiquity are undeniable. Mashups are in clubs, YouTube pages, and iPods around the globe. Their appeal even intrigued Pittsburg Representative Mike Doyle, who asked Congress to consider that “maybe mash-ups are [a] transformative new art that expands the consumers experience and doesn't compete with what an artist has made available on iTunes or at the CD store.” 3

Well I suppose that settles it...

Not only do mashups not compete with an artist’s particular market, they also provide an overwhelming additional benefit, which it appears artists are ignoring: mashups expose consumers to a wide variety of artists and genres that they would probably never choose to listen to on their own. Fans of mashups are likely to be younger in age, and most of this audience listens to contemporary music. Mashups that contain a wide variety of artists expand listeners’ musical palates and provide consumers with an unparalleled level of exposure to “new” artists. So, despite the condemnation of the recording industry, mashups are increasing the markets and demographics for existing artists whose songs are incorporated into these pieces.

Unfortunately, even if the above analysis is correct, and mashups are not infringements based on the fair use exception, it is unfair to subject mashup artists to such a precarious legal position. Fair use is a defense, meaning that artists may only assert such a claim after they are sued. And, in order to successfully assert such a defense, mashup artists, most of whom lack sufficient financial means, must battle the recording industry giants and their formidable arsenals of highly compensated lawyers. Therefore, Congress must intervene and protect this innovative expression by specifically establishing its legality, before an inequitable proceeding potentially eviscerates this valuable genre.

1. See U.S. Constitution art. I, § 8, cl. 8.
2. See Girl Talk, Triple Double, (Illegal Art 2010).
3. Congressman Doyle Calls for Reevaluation of Copyright Law (March 7, 2007), http://doyle.house.gov/newsrel/070307.htm.