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Copyright basics Real world Public domain Ethical considerations
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Copyright Basics
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A copyright refers to the exclusive rights given to the creator of a work by the government of the nation where the work is created. This right governs the reuse of that work by others. The concept of modern copyright dates back to 1709 in Britain, where a law was created stating that the author of a book had the exclusive rights to publish his work for 14 years, with an option to renew it for another 14 years at expiration. Even back then, authors routinely sold their rights to publishers, so the concept of larger companies owning artists intellectual properties is not new.
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Modern U.S. Law
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In 1790, the United States created its first copyright law that also allowed a 14-year copyright with an optional 14-year extension. Although some adjustments to the law were made in the following centuries, the copyright law of 1976 was a significant overhauling, addressing many of the
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technological advances of the twentieth century. Before this law, works that didn t specifically have a copyright notice were considered to be in the public domain. After this law was enacted, basically any work that was created was considered to be copyrighted by default. Sections 106 and 107 of this law probably have the most relevance to mashup producers. Section 106 basically gives the following six rights to the copyright holder: 1. The right to reproduce the work. 2. The right to prepare derivative works. 3. The right to distribute copies of the work. 4. The right to perform the work. 5. The right to display the work. 6. The right to perform through digital audio transmission. (This right was amended in 1995.) Because mashups are derivative works, and because they are most likely distributed, section 106 arguably may not favor mashup artists.
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Fair Use
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Fortunately, section 107 outlines some exceptions that seem to be in the mashup producer s favor. This section outlines something called fair use, which helps to define and defend certain forms of what might otherwise be considered copyright infringement. Fair use modifies the draconian prohibitions of section 106 and softens them up a bit. Instead of a blanket denial of rights to create derivative works and distribute them, section 107 basically seems to say that you need a good excuse. Although this provision may have been written primarily for libraries, schools, and corporations, it could benefit mashup producers as well. Interestingly, there has never been a fair use case involving borrowed sound material that has ever gone to court! Although there have been many lawsuits, they have all been settled out of court. A judge granted an injunction against the distribution of sound recordings while a case was pending, as in the 1991 case of Grand Upright Music, Ltd. v. Warner Brothers Records, Inc., involving a Biz Markie song. This case had a chilling effect on hip-hop music, creating in its wake a general policy by record companies of obtaining preapproval from the original copyright owners. Notably, a final decision was never reached in this trial, although the preliminary injunction had a huge effect on commercially available sample-based music. Another significant case was made by Bridgeport Records against Terminator X of Public Enemy, who used an unauthorized George Clinton sample. George Clinton was named as a plaintiff, much to his surprise and befuddlement. The defense was that the sampled recording was so short in duration that it wasn t significant. The court ruled that this was not an adequate defense in and of itself, but never made a decision on fair use. Clinton was basically okay with the sampling, and his disagreement with the record company over ownership ultimately derailed the lawsuit.
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