We are overdue for a few things on Blawgconomics; a post in general for one. More specifically we are long past due for some comments on Frank Gonzalez' mashup posts. Frank's legal analysis was very thorough and interesting. There is not much that we could add on what legal standards courts might utilize in deciding such a question, nor could we add anything on how a legislature might craft a law regarding the rights of mashup artists. However, we can take a few minutes to discuss the economics behind the legal question, shining some light on the thought processes each respective branch of government might utilize.
Almost any legal question has some economic factors behind it (indeed this is one of the inherent premises behind our site). In the case of the legal rights of mashup artists, the economic question is who we as a society wish to place property rights with. On the one hand are the rights of artists who have produced the sampled materials. On the other are the rights of mashup artists to potentially use those materials without legal or financial repurcussions. Protecting the first set of rights would obviously favor artists who have created intellectual property, while protecting the second would not only prioritize the rights of mashup artists, but more importantly would prioritize innovation. While Frank's piece suggested this in title and substance, let's take a closer look at why, exactly, this is.
The best explanation has to do with how parties would interact post assignation of rights. For example, under a regime which places the rights with the original producers, mashup artists would have to pay for the right to use samples. As a practical matter this would obviously have a chilling effect as many mashup artists are working out of garages and basements on their laptops. They simply don't have the resources to pay artists for materials. On the other hand, were legal rights granted to the mashup artists, artists would either have to pay for the discontinuation of sampling, or at least would not be able to bring claims against those who sample. This would have the obvious impact of allowing mashup artists to produce music without fear of legal actions, stimulating both current artists and probably leading to new artists entering the field.
As a society, we often set up legal regimes which stimulate innovation. The expiration of patent rights on drugs is but one excellent example of many. However, such expirations typically come with a certain time period, one which allows the original producer to profit off of their intellectual property. A statutory framework legalizing mashups would, in a way, be a framework of innovation on steriods. This is not to say whether this would be good or bad, but it would be a very strong declaration that innovation is preferred, at least in this case, over creation rights. As Frank noted, it is unclear how this question might come out whether it is a court which decides it or if it is rather the legislative branch which takes it up. However, economic analysis is likely to be utilized and could have a tremendous impact on what results. Granting rights to mashup artists would allow an interesting and popular genre to thrive. Alternatively, placing rights with original artists would most likely mean the end of the genre altogether.