What's a copyright?
A copyright is a legal protection given to authors of original works, like songs, paintings, and novels. Copyright owners get certain exclusive rights to their works, and can also limit others from using their works in certain cases.
What's the challenge with mashups?
At face value, mashups appear to epitomize copyright infringement, but the situation isn't quite so cut and dry. A mashup is a style of music that contains elements or samples from songs created by other artists. In 2005, a court decision regarding the case of Bridgeport v. Dimension determined that it is possible for mashup artists to be guilty of copyright infringement even if a one second sample of music is used. This suggests that mashups and samplings aren't, in fact, protected under fair use, but there are still ways that maship artists can defend their works.
Are mashups covered by fair use?
Fair use doctrine was designed as a way to protect the first amendment right to freedom of expression for works deemed valuable to society. For example, fair use has been used regularly to shield parodies. Courts that review cases involving fair use must consider how samples are used and how much they are used when determining if the works are protected by it. Courts also consider the effect a parody or transformative piece has on the market share for the original artist.
Mashup artists who seek protection under fair use may find their works protected, depending on how much it transforms the original work. Mashup artists usually splice up samples, edit pitch and tempo, and mix up the original work. While the samples are meant to be recognizable, mashup artists typically aim to create enough of a difference between the pieces so that the new work has artistic merits of its own.
Using samples of different songs to create a new song could also be a form of critical commentary. In this case, Mashups could be considered a form of free expression protected under fair use. Still, most mashup artists are aware that their work could be questioned at any time by the original artist.
Why some artists embrace mashups
Surprisingly, not all artists are threatened by mashups. In 2004, David Bowie partnered with a German car maker to hold a contest to find out which fan could create the best mashup using a sampling of two of Bowie's songs. The winner was offered a brand new sports car, and Bowie retained the rights to the music.
It seemed like a win-win situation, but many mashup artists felt like their art was threatened by this commercial venture. Some feared that the maneuver was a sign of the times signaling upcoming crackdowns on their music. Considering the adverse decision regarding Bridgeport v. Dimension that occurred just one year later in 2005, they may have been right.
Artists proceed with caution
If you're a mashup artist, there isn't a clear way to avoid copyright infringement, but you can learn from the tactics of other mashup artists. Many test the waters by releasing mashups on P2P networks without licensing the work. Then, if the mashup is well-received by the underground community, they obtain a license and release it legitimately. Other artists, like Danger Mouse, have released versions of their work free to listeners on standard, unlabeled CDs.
Girl Talk, another mashup artist, has found success in the industry by releasing music for free and accepting donations and paid gigs. To date, this artist hasn't been sued by any record labels, but he realizes that this remains a possibility and has already stated his case to the public at large. It's not clear whether record labels are declining to pursue a lawsuit with the artist due to his popularity, or whether they feel that the artist is not infringing on various individual works.
There are currently no court opinions offering any guidelines on mashups, and there are no distinct legal guidelines for determining whether or not a non-parodic work is protected under fair use. Until there is, if you're a mashup artist, you need to be aware that your works could come into question at any time. If you have legal questions about fair use and mashups, find an intellectual property lawyer to help.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.
FAQs
When it comes to mashups and sampling, determining what constitutes fair use can be tricky. Courts consider factors such as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the market value of the original work.
Do mashups qualify as fair use? ›
Using samples of different songs to create a new song could also be a form of critical commentary. In this case, Mashups could be considered a form of free expression protected under fair use. Still, most mashup artists are aware that their work could be questioned at any time by the original artist.
How much of a song can you sample without copyright? ›
There's a wide variety of myths around this subject: two bars, six seconds, short loops, one-shots… All of these are false. Simply put: there's no safe limit to sample legally without clearance. Even a micro-chop or one-shot can get you in trouble.
What is fair use for sampling? ›
Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose, such as for educational use in a classroom or to comment upon, criticize, or parody the work being sampled.
Is mashup copyright free? ›
In such circ*mstances, will making mashups, remixes, or compilations constitute infringement. Essentially, for a work to be considered as a copyrightable work, it should satisfy two conditions: It should be original and. It should be expressed in any fixed tangible form because ideas cannot be copyrighted.
How to make mashups legally? ›
Creating Mashups
Must be solely for non-commercial purposes. You must cite all sources used. Do not use material acquired through a contract or license that prevents using the item in a mashup (e.g. iTunes, iStock Photo). It must be original!
How much of a copyrighted song can I use under fair use? ›
Unfortunately, there are no fixed standards as to how much of a song you can use without infringing the song owner's copyright. Of course, the shorter you can make the clip, the stronger your argument for fair use protection.
Will I get sued for sampling? ›
If you plan to commercially release your music, you probably will need to get written permission from the copyright owners of any music that you are sampling. Otherwise, you could be sued for copyright infringement and prevented from distributing your music.
How to avoid copyright when sampling? ›
Recreate the Music Sample
This means the artist plays and records the music to sound exactly like the original one they want to sample. According to copyright law, infringement only occurs when you use the original master recording. If you mimic or re-record sounds from another artist, you may be in the clear.
Can you get away with sampling? ›
Sampling Without Clearing Is Considered Legally To Be Piracy – No Ifs, Ands, Or Buts. Piracy is the copying and distribution of copyrighted works. Normally, a person may think that this might require them to copy and distribute a significant portion of a copyrighted work or the entire thing.
Purposes mentioned in the statute: Using a work for any of the purposes mentioned in the statute, “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, [and] research,” weighs in favor of fair use.
How do you calculate fair use? ›
There are no clear percentages or calculations that decide how much is too much or where fair use ends and copyright infringement begins. In addition, even relatively small uses can point against fair use if that small use is the “heart” of the work, such as a famous riff in a song or the climactic ending of a film.
What is the 10 sampling rule? ›
The 10% rule states that a sample size should not exceed 10% of the population when using sampling methods like simple random sampling. This helps ensure that the sample is representative of the population.
Is it possible for a remix or mashup to infringe copyright? ›
As long as you choose to register or not, as soon as something is generated, it is subject to copyright laws. Remixing, mashups and compilation creation would be considered infringement under such circ*mstances.
Can you release a mashup? ›
Remixes, Mixtapes, and Mashups
The same rules apply to remixes, mixtapes, or mashups if they include samples of a recording you did not record yourself. You must have a license from the owner of that original recording to distribute these releases.
How to post mashups on SoundCloud without copyright? ›
How to Upload a Remix to Soundcloud without Copyright Infringement?
- Secure Permission First. ...
- Consider Creative Commons Licensed Tracks. ...
- Use Original or Copyright-Free Elements. ...
- Avoid Monetising without Proper Licenses. ...
- Properly Attribute and Cite.
- Stay Updated with SoundCloud's Policies. ...
- Consider Private Sharing First.
You almost always need permission to share content that has been created by someone else. This is true for any content created by someone else, including DJ sets, remixes, and mashups.
