The Work of Remix in the Age of Digital Reproduction - Essay Example

?The Work of Remix in the Age of Digital Reproduction Walter Benjamin, an eminent German critic, argues that a work of art loses its originality and authenticity through the mechanical reproduction of art1. In the modernist world of mechanical reproduction, the “original” work of art loses its “aura”, as Benjamin called it. Nevertheless, we no longer live in the modernist world of mechanical reproduction, but we entered into the postmodern world of “digital” reproduction or remix along with the internet. As Fitzgerald and O’Brien notes “New digital technologies along with the Internet have opened up enormous potential for what has become known as “remix” – cutting, pasting, mashing, sampling etc”2. In the age of remix culture, remix rebels have begun to question the “originality” of an artwork. Thus, today, what is at stake is not just a work of art’s “aura” but even its very originality. Indeed, remix rebels, including prominent scholars such as Lawrence Lessig, argue that everything is a remix and derived from past works. Their argument automatically brings up the issue of copyright. As K. Mathew Dames notes “the rebels claim that if nothing is original and originality is a key component of copyright protection, then how can copyright exist?”3.The aim of this paper is to compare American and Australian Media Policy in regards to musical remix culture with respect to the copyright issues. Contemporary American Law on musical creativity treats the subject rather arbitrarily. While covering is permitted freely, sampling is automatically regarded as copyright infringement. Noah Shachmant points out this double standard and gives the example of Beatles: "[W]hile the Beatles’ tunes have been recorded by thousands of bands, their song catalog [of recordings] has been notoriously off-limits to hip-hop and dance-music producers’ manipulations."4 DJ Danger Mouse’s “Grey Album” is a good case exemplifying this phenomenon. DJ Danger Mouse, his real name Bruce Burton, is a mash-up artist, who remixed the vocals of Jay Z’s “Black Album” and Beatles’ “White Album” and made his own album called “Grey Album”. Nevertheless, he was sued by EMI, Beatles’ record company, with the charge of copyright infringement and agreed to cease the distribution5. Burton defended himself saying that it was an artistic project, which had no commercial purpose, and stopped the distribution. However, Downhill Battle organised an online protest, which was called “Grey Tuesday” and the copies of “the Grey Album” were posted on the internet6. They declared that “We cannot allow these corporations to continue censoring art; we need commonsense reforms to copyright law that can make sampling legal and practical for artists”7. The controversy over the Grey Album accelerated as EMI together with Sony/ATV Publishing tried to stop online distribution of the Album. However, EFF (Electronic Frontier Foundation) analysed the situation and concluded that there was no federal copyright protection for sound recordings before 1972: “Because the White Album was released in 1968, it appears that EMI has no federal copyright rights in the sound recording”8. The dispute over mash-up of Grey Album poses a number of legal issues with regard to copyright law and digital sampling. The American Copyright Law limits the exclusive rights of copyright owners in a number of ways including “fair use” and “licensing”. Fair use, which means “reasonable and limited use of a copyrighted work without the author’s permission”, added to the copyright statute in 1976.9 Furthermore, licensing allows anyone, who wants to record their own version of a musical composition, to get a licence for it. 10 However, this compulsory licensing cannot be applied to sound recordings. As Vrana notes “to this day, a record company’s right to duplicate the recordings it has produced may not be exercised by others without the company’s permission; the protection is airtight, and, unlike compositions, copyright owners cannot be forced to grant a license.”11 Unfortunately, contemporary American copyright law is designed for conventional musical forms and does not cover non-traditional remix/mash up forms, which are highly popular in rap and hip hop cultures and the newest method of sampling. Sampling is defined as “[t]he process of taking a small portion of a sound recording and digitally manipulating it as part of a new recording.”12 However, sampling is neither allowed in American copyright law nor Australian copyright law without the owner’s permission under “fair use” doctrine in America and “fair dealing” doctrine in Australia. Nonetheless, there is difference between “fair use” and “fair dealing” doctrines. As Fitzgerald and O’Brien notes “While Australian law will still consider whether a “substantial part” of the original material has been reproduced through the sampling, the approach in the recent US decision of Bridgeport Music Inc v Dimension Films Inc,3 applying a somewhat similar quantitative/qualitative test is to suggest that any copying of the sound recording will amount to an infringement”13. Thus, while the difference between two doctrines is rather a matter of degree, Australian law still offer a little bit more flexibility with regard to the issue of digital sampling in order to support creative innovation. Nevertheless, similar to the American copyright law, the Australian system also does not allow licensing for sound recordings. Thus, a sound recording of a song cannot be copied without the permission of its owner.14 This treatment blocks the creativity of an artist who would like to try different sounds in the innovation process, since s/he cannot use the samples without the expensive permission of a record company who holds the copyrights of sound-recordings. Furthermore, another issue arises in regards to the copyright of sound recordings: what constitutes the “substantial part” of a sound recording. According to Lord Pearce, “whether a part is substantial must be decided by its quality rather than its quantity”. Mason CJ affirmed this and the High Court approved Mason CJ’s statement in Autodesk Inc v Dyason (No 2)15. Economic significance and commercial appeal of the part is also considered important in determining “substantial part”. As Fitzgerald and O’Brien states “This was alluded to in TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) where Finkelstein J held that one of the determining factors is the economic significance of that which has been taken”.16 Universal Music Australia Pty Ltd v Miyamoto is one of the rare cases in Australia with regard to the digital sampling. A number of recording companies sued five DJs for copyright infingement due to their remix CD. DJs defended themselves by stating that they did the CD in order to satisfy consumer demands. However, since the DJs took entire songs to make a remix CD, the Court did not take “substantial part” into consideration and the judge found five DJs guilty for the infringement of copyright law. 17 Nevertheless, this case cannot be considered as a precedent for smaller amounts of digital sampling, since the entire songs were taken. American and US courts have been allowing very small portions (de minimis) of digital sampling for years, but a recent decision in Bridgeport Music Inc v Dimension Films Inc span the wheels of justice into the opposite direction. In Bridgeport case, two seconds of a rap song was copied for the movie called “I Got the Hook up” and repeated five times for the duration of seven seconds each. Although a District Court and Middle District Court held that the amount taken was de minimis, thus, it cannot be considered copyright infringement; the Court of Appeals overruled this decision by declaring “even where a small part of a sound recording is sampled, the part taken is something of value”.18 The decision clearly blocks further samplings and it makes it impossible for creative artists to experiment with sample music without a licence. As Fitzgerald and O’Brien notes it also shows the courts’ changing attitudes in regards to the use of music samples based on the legal maxim of de minimis.19 Bridgeport case is the opposite of Newton v Diamond, in which the principle of de minimis had been applied in a more flexible manner. Time will tell which approach (strict or flexible) would prevail in the US, but Fitzgerald and O’Brien thinks that Australian courts should blend the reasoning of both cases for determining substantial part in future cases.20 While the legal battle between rebellious remix-ers and the owners-record companies is still going on, a new institution assisting creative innovations, the Creative Commons, has emerged in 2001. In a sense, it has formed a bridge between illegal remix culture and the world of corporations by providing an outlet for the creative activities of the artists. The Creative Commons offered legal and valid copyright licences in order to increase online materials supporting creative production and they stated that “‘The Sampling licenses will help authors foster a broad range of culture, from photo collage to musical “mash-ups”, that the law currently deems illegitimate — despite its growing popularity and acceptance online”. The CC provides a pool of common resources so that the artists could use, at least, some of the existing cultural materials for their creative endeavours without the permission of copyright owners. Furthermore, “In contrast to the dominant copyright model, which gives creators of copyrighted works no option to permit others using their work in a professional manner except through legal requirements on those users to seek permission, Creative Commons licences enable content creators to determine, at the moment of making their works public, the conditions under which they can be used by others”21. The Creative Commons is based on an open source system and it operates on the premises of openness, freedom, creativity and innovation. One of the founders of the CC, Lawrence Lessig argues that creativity and innovation go hand in hand with cultural availability: “to guarantee that follow-on creators and innovators remain as free as possible from the control of the past”22. However, although the CC provides some degree of freedom to the creators and innovators and mitigates the effects of strict copyright laws, it is still very far from being sufficient. Indeed, Lawrence Lessig stresses the necessity of “compulsory licences” for sound recording as well. He states that “‘give DJ Danger Mouse a compulsory right to remix”.23 Of course, the musicians can still apply for licences without compulsory licensing, but in this case obtaining the licence depends solely on the whim of its owner. Furthermore, as Robert M. Vrana notes “Obtaining all the necessary permissions quickly becomes a scavenger hunt of such gigantic proportion and expense that makes it easier never to create remix music in the first place”24. Under these circumstances, the remix artist has only three impossible choices: quit remixing, rely on infringement defences or embark upon a desperate and very expensive journey of licensing. No wonder why s/he prefers illegitimate ways. Actually, it must also be noted that is not only the remix artists but everybody is remixing in our contemporary culture. The following statement of Lessig clearly shows that how widespread is remixing: “In this sense, culture is remix; knowledge is remix; politics is remix. Remix in this sense is the essence of what it is to be human. Companies do it. Apple Corporation says it took its iPod and remixed it. Politicians do it. Bill Clinton took the Republican Party’s platform, remixed it, called it ‘Democrat’ and became President. Liberals do it.”25 This citation also shows the necessity of reform for both American and Australian copyright laws. Since everybody does remix in our contemporary digital culture, new policies and reforms must be implemented in order to regulate remix and mashups so that it will no longer be an illegal activity. As Jason Schultz of Electronic Frontier Foundation concludes “this is a battle over creativity, do we want a world where the law criminalises that?” In Australia, the issue of mashups and remixes is still unclear under the Copyright act and they have to be evaluated on a case by case basis.26 It might be argued that the US doctrine of fair use offers a wider scope for artists to remix and mashup than the Australian fair dealing provisions. Nevertheless, both copyright laws are sufficient to cope with the emergence of remix and necessities of the digital life. As Vrana notes “The emergence of remix has provided a strong example of the confusion inherent in applying copyright law designed for traditional culture to modern, digitally influenced culture”.27 Girl Talk, a pre-eminent remix artist, exemplifies the gap that contemporary copyright law faced with the advent of remix culture. Girl Talk, whose real name is Gregg Gillis, released his first and very succesful album, Feed the Animals, which contained more than 300 samples from other people’s songs. 28 Gillis plays loops from so many artists at the same time, he explains his art as follows: ““So when you hear a drum beat going, there might be a loop of a kick drum, a loop of a snare, a loop of a high hat, and you’ll hear claps come in, or a high hat drop out, or a melody come in, or vocals come in and that’s actually me triggering that sample in real time.”29 Besides music, Gillis also knows the copyright law very well. He says that “There’s a doctrine in United States copyright law called Fair Use, and it basically states that you can sample previously existing works without asking for permission if it falls under certain criteria”.30 He is also aware that if your work is transformative and doing no commercial harm to the original sources, there is nothing to be afraid of; hence, he feels justified and no court has proved him wrong yet. As Vrana notes “his fair use claim remains untested as he has not yet been sued” 31 Gillis’ case is not unique, since there are many remix artists like him; and there is still a gap in the copyright laws with regard to the remix. The Attorney General has recently announced major copyright reforms in Australia; nevertheless it seems that new reforms would not be addressing the issue of remix and mashups. As O’Brien and Fitzgerald states “There appears to be no provision for any fair dealing exception for mashups or remixes which are highly transformative, non-commercial derivatives that do not compete with the primary market of the copyright owner.” 32However, ironically, a new provision of a fair dealing exempts remixes and mashups for the purposes parody and satire. In stark contrast to the the US where the freedom of speech protected with the First Amendment to the Constitution, Australian commonwealth law offers no explicit protection to the right of freedom of speech or freedom of expression.33In the US, the doctrine of fair use is supported with the right of freedom of speech. As Melissa de Zwart states that “The recent introduction of a specific parody and satire defence within the fair dealing provisions of the Copyright Act represents a significant enhancement to the rights of freedom of communication in Australia”34. Nevertheless, the Copyright Act still does not support creative innovations of the remix culture for transformative and educational purposes. To sum up, both Australian and American copyright laws, which are very similar with respect to their “fair use” and “fair dealing” doctrines, fail to address the necessities of the digital age. In the postmodernist age of digital reproduction, prominent thinkers like Foucault have already declared “the death of the author”; thus, the modernist conceptualizations of copyright laws have become outmoded. The institution of copyright is based on modernist authorship concept; however, the postmodern culture plays with the very idea of authorship with its own techniques of collage, pastiche, parody and irony. Musical remix culture also reflects this postmodernist trend of questioning the original creator; thus, brings forth the issue copyright with its radical and rebellious attitude. However, writer have already begun discussing “postmodern copyright”, if such thing is possible. Peter Jazsi asks “Is There Such a Thing as Postmodern Copyright?” in his article and prophesizes that it is coming: “It is too soon to pronounce the death of the Modernist conception of authority in copyright, or the desuetude of the related concept of the fixed work. But change may, nevertheless, be underway”35.   References Benjamin, Walter. “The Work of Art in the Age of Mechanical Reproduction”. Illuminations. New York: Schocken Books, 1969. Black’s Law Dictionary (9th ed. 2009). Dames, K. Matthew. How 'remix rebels' confuse core copyright. Information Today 28 (8) (2011): 24. Downhill Battle. www.downhillbattle.org. Fitzgerald, Brian and Damiend O'Brien, “ Digital Sampling and Culture Jamming in a Remix World: What Does the Law Allow?” Media and Arts Law Review 10(4) (2005): 279-298. Flew, Terry. “Creative Commons and the creative industries”. Media and Arts Law Review, 10(4) (2005): 257?264. Peter Jazsi, Is There Such a Thing as Postmodern Copyright?, Fall, 2009, 12 Tul. J. Tech. & Intell. Prop. 105. Lessig, Lawrence. Free Culture: How big media uses technology and the law to lock down culture and control creativity. New York: Penguin Books, 2004. Lessig, Lawrence. ‘The Black and White Waged By Grey Tuesday’, 24 February (2004) www.lessig.org/blog/archives/001754.shtml. Lessig, Lawrence. “The Vision for the Creative Commons: What are we and where are we headed? Free Culture”. Open Content Licensing: Cultivating the Creative Commons. Sydney: Sydney University Press, 2007. Rimmer, Matthew, “The Grey Album: Copyright Law and Digital Sampling" Media International Australia Incorporating Culture and Policy Feb. (2005): 40-53. Shachtman, Noah. “Copyright Enters a Gray Area”. WIRED (Feb. 14, 2004). Trimlett, Andy. “Girl Talk, The Musical Dr. Frankenstein”. KPBS (Sep. 11, 2009), http://www.kpbs.org/news/2009/sep/11/girl-talk-musical-dr-frankenstein/ (last visited Nov 7, 2011) O'Brien, Damien and Fitzgerald, Brian. “Mashups, remixes and copyright law”. Internet Law Bulletin 9(2) (2006): 17-19. Vrana, Robert M. The Remix Artist’s Catch-22: A Proposal for Compulsory Licensing for Transformative, Sampling-Based Music, 68 Wash. & Lee L. Rev. 811 (2011). Zwart, de Melissa. “The Future Of Fair Dealing In Australia: Protecting Freedom Of Communication”, Scripted Volume 4, Issue 1, March (2007): 96-116. Read More