Nore's Legal Series - Mashups and Remixes

Music Mashups: Testing the Limits of Copyright Law as Remix culture Takes Society by Storm by Emily Harper
Mashed Up Videos and Broken Down Copyright: Changing Copyright to Promote the First Amendment Values of Transformative Videos by Andrew S. Long
Using Social Norms to Regulate Fan Fiction and Remix Culture by Steven A. Hetcher
15 Megabytes of Fame: A Fair Use Defense for Mash Ups as DJ Culture Reaches Its Postmodern Limits by Aaron Power
The Girl Talk Dilemma: Can Copyright Law Accommodate New Forms of Sample-Based Music by David Mongillo

In the case of remixes and mashups, there seems to be fine line between the two genres and both are connected by the use of sampling of other works. Remixes can be described as songs where the instrumental background of the original song has been manipulated in some fashion (whether it has been completely recomposed or simply altered in some way) while the vocal line remains largely unchanged. Mashups, whether they are video mashups or song mashups, take elements from two or more different original composition and “mash” together elements from the source material to create an entirely new work. Remixes tend to be created for clubs and originated within DJ/club culture while mashups, particularly video mashups, are an extension of fan culture and can be seen as critiques on the works from which they are borrowing.
While both remixes and particularly mashups stem from a culture of sampling, there is a distinct dearth of case law concerning these two genres. As with sampling this can largely be attributed to the fact that neither the creators of remixes and mashups nor the original artists wish to help create any kind of precedent whether it be negative or positive. While television and movie production companies have taken steps to regulate the use of their copyrighted materials (largely by pressuring websites such as YouTube to take down any potentially offending material) no actual court cases have been presented. This has left lawyers and academics to postulate how best to deal with remixes and mashups without the worry of creating precedent that would favor either side.
The overall sentiment from legal academics is that to properly deal with the issues presented by remixes and mashups, copyright law as a whole needs to be overhauled. However experts are divided as to what direction such an overhaul should head in. One option would be to lean towards a more utilitarian view of transformative works. As it stands now, it is very difficult to argue that a work, such as a mashup or remix, is in fact transformative and therefore would fall under the fair use doctrine. According to the article by Aaron Power, mashups in particular should be analyzed as “quasi” parodies and like parodies should be able to use the fair use defense if and when such a case is presented to the courts. The other option, for those scholars that believe that mashups and remixes do not fall under the fair use doctrine, would have Congress or the record companies setup some kind of compulsory licensing system. Under this system creators of remixes and mashups would use their already existing community standards to ascertain what percentage of their income would be given back to the original authors. The other option concerning compulsory licensing would see a blanket licensing system similar to that used by BMI and ASCAP where mashup and remix artists would pay an annual fee for the right to sample copyrighted material. In both cases amateur mashup and remix artists would not have to pay these fees because their creations “cause no harm” and in fact should be legalized.
While it seems that legal scholars tend to prefer a softening of the definition of transformative work to include mashups and remix, there is no clear consensus as to how the genres of mashups and remixes should be treated under copyright law. The only agreed upon fact is that copyright law must be changed to deal with the issues presented by these two genres.