Time To Remix Copyright Law?

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November 9, 2010 by DJ Elroy

Came across this on Techdirt … Thoughts? Should samples and more be “free” to use for digital and electronic artists? How should copyright change? ~ djElroy

Time To Remix Copyright Law: The Hip Hop Case Study

Michael Scott points us to an interesting paper by a law professor, Tonya Evans, talking about how poorly copyright law is designed to handle a concept like hip hop. Of course, this is an issue that we (and plenty of others) have covered for years — noting how copyright law has drastically hindered certain aspects of hip hop music, once the lawyers started accusing samplers of infringement, and some courts suggested that using just a tiny snippet of a song, and even changing it so the original was unrecognizable, still constituted copyright infringement. From the abstract:

For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition. And hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music.

Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits.

Evans concludes that “intellectual property should be most narrowly tailored when innovation in the field tends to be highly cumulative” such as the case in music. But what really caught my eye was the claim that “copyright law must be remixed.” While I think Evans, like many copyright reform advocates, makes the mistake of focusing on balance, rather than looking to optimize the best results for everyone, there’s just something amusing about using the term “remix,” which is usually used when discussing the content itself, to discuss how copyright law might be reformed.

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