A Right to Copy

A Right to Copy:

Legitimising Remix Creativity in Copyright Law

Alaister Moughan

A Dissertation presented in partial fulfilment of the requirements of the University of Auckland for the degree of Bachelor of Laws (Hons)

January 2011

2 A Right to Copy: Legitimising Remix Creativity in Copyright Law

Abstract

This paper discusses remix creativity and its relationship with copyright law. Remix creativity is a form of amateur creativity which uses parts of existing mass media, such as songs, films and televisions shows, to create something new. Common forms of remix creativity include: parodies, remixes and mash-ups. Remix creativity can be conceptualised as a new type of active, rather than passive consumption. From an examination of existing copyright infringement law, this creativity appears to be illegal. This paper investigates whether this creativity is socially legitimate by looking at the views of opposing academics the copyleft and the copyright. The copyleft argue that remix creativity is a legitimate and socially valuable activity, which should be legalised. While the copyright assert that existing copyright laws should be enforced against remix creativity, as such derivate works damage an authors moral and economic rights. The author, influenced by copyleft arguments, asserts that remix creativity should be legally legitimate, as it is socially. The cultural value, lack of economic harm and financial and social costs of enforcing current copyright laws against remix creativity is seen as justifying this conclusion. Three potential solutions are explored to reach a position of law, where remix creativity could be legitimised. This includes an examination of Creative Commons licenses, as well as reform within copyright law. The introduction of a fair dealing defence for parodies in Australian is considered, as well as a non-commercial remix exemption which is currently under deliberation in Canada. The author argues that this reform, specifically the fair dealing reform in Australia and Canada, could, if sensibly interpreted and drafted, provide an ideal state of copyright law which would allow remix creativity to thrive, without prejudicing the interests of copyright owners.


Acknowledgements

I wish to thank Paul Sumpter for his tremendous assistance as dissertation superviser. His guidance during the research and drafting state was essential, and very much appreciated. Additionally I would like to thank Max Harris and Akif Mallick for editing various drafts. Finally, thanks to my fellow summer dissertation law students, who encouraged, entertained, and supported me throughout the whole process.


Table of Contents I INTRODUCTION ............................................................................................ 5 II REMIX CULTURE ........................................................................................ 11

A Typical Forms of Remix Creativity ............................................................... 17 1 Remix ................................................................................................. 17 2 Mash-Up ............................................................................................ 18 3 Parody ................................................................................................ 20

III REMIX CREATIVITY AND NEW ZEALAND COPYRIGHT LAW ..... 22 A Rights of Copyright Owners .......................................................................... 22 B Originality ........................................................................................................ 25 C Orthodox Copyright Principles ..................................................................... 27 D Infringement by Copying ............................................................................... 29 E Substantiality and Remix Creativity ............................................................. 33

1 Remix ................................................................................................. 33 2 Mash-Up ............................................................................................ 36 3 Parody ................................................................................................ 37 4 Summary ........................................................................................... 39 5 Fair Dealing ....................................................................................... 40 6 Summary of Current Fair Dealing Provisions ............................... 44 7 Practical Considerations .................................................................. 44

IV SHOULD REMIX CREATIVITY BE ILLEGAL? ..................................... 47 A The Copyleft-Copyright Debate .................................................................... 47 B The Copyleft and Creativity .......................................................................... 49 C The Copylefts Fundamental View on Copyright ........................................ 51 D The Copyright and Creativity ....................................................................... 51 E The Copyrights Fundamental Views on Copyright ................................... 54 F Who is Right Should Remix Creativity be Illegal? ................................... 56

1 The Cultural Value of Remix Creativity ........................................ 56 2 The Economic Harm of Remix Creativity ...................................... 60 3 The Financial and Social Costs of Enforcement ............................ 64

V RECONCILING COPYRIGHT AND REMIX CULTURE ....................... 66 A Creative Commons ......................................................................................... 66 B A Fair Dealing Provision for Parody ............................................................ 69 C Non-Commercial Remix Exception ............................................................... 74 D Analysis ................................................................... 78

VI CONCLUSION ............................................................................................... 84 VII BIBLIOGRAPHY ........................................................................................... 87


I Introduction It was one of the biggest songs of the 2009. Featuring rapper Jay-Z and singer Alicia

Keys, Empire State of Mind captured the ears of many globally, further promoting the

enormous profile of the man believed to be the greatest rapper of our generation.

Topping the charts in the United States, and peaking in New Zealand at number six, the

tune made a significant impact both financially and culturally.1 The song itself is a

celebration of the spirit and style of New York and its inhabitants. This spirit emanates in

the chorus, which entraps the listener with its melodic sing-along lines:

New York!! Concrete jungle where dreams are made of There's nothing you cant do, Now you're in New York!!! These streets will make you feel brand new, The lights will inspire you, Let's hear it for New York, New York, New York One hand in the air for the big city, Street lights, big dreams all looking pretty, No place in the World that can compare, Put your lighters in the air, everybody say yeaaahh2

Perhaps ten years ago that would have been the end of the story. However, a couple of

ambitious British youngsters, apparently with time on their hands, decided to use the song

to tell another story. Using the melody of the song, and closely following the ideas of its

1 Empire State of Mind (2010) Wikipedia < http://en.wikipedia.org/wiki/Empire_State_of_Mind>. 2 Jay-Z Empire State of Mind Lyrics (2009) Direct Lyrics .


music video, the heartening tune was modified to reflect the character of another, less

famous location the small Welsh town of Newport:3

When youre in Newport Chips, cheese, curry makes you feel brand new Washed down with a Special Brew Repeat the word Newport, Newport, Newport One hand in the air for a taxi Fifty quid if youre sick on the back seat But all those bendy roads make me queasy Can someone hold my hair? Everybody say yeaaahh

The parody itself became very popular online. However, trouble was around the corner.

EMI Publishing, which represents four of the seven people credited with writing the

original, requested that the video be removed from YouTube, stating: 4

When a song is created based wholly on any of our writers' works, those writers need to grant their permission. If that permission isn't granted, then we ask the service in question to remove the song.

The existence of parody is nothing new. However, this time it wasnt a professional5 or a

hip-hop artist sampling a recording, but rather a bunch of amateurs looking for a bit of

fun. The group behind the parody created it when they were messing about thinking it

3Newport Empire State of Mind Lyrics (2010) HubPages . 4 Jemima Kiss Newport State of Mind: Songwriters Pulled the Video from YouTube (2010) The Guardian . Note the service here refers to the video streaming website YouTube which hosted the video. 5Such as professional parodist Weird Al Yankovic.


was a funny thing to do.6 The popularity of the parody was really unintentional; it had

been made to amuse a small group of friends. The video was made on a budget of 100.7

In contrast a typical industry music video costs around 100,000.8

Newport State of Mind is an example of what is called remix creativity. Digital

parodies commonly copy parts of existing copyright works to create something new.

Socially such creativity appears to becoming more widespread, and perhaps more

acceptable. A recent poll on the popular news website Stuff asked the following

question: Should content owners be allowed to remove parody clips from YouTube?

Out of a total of 1405 the results were as follows:9

Yes 188 votes 13.4% Only when someone puts the whole thing up 302 votes - 21.5% No, parodies should be protected 915 votes 65.1%

Despite the confusing options10 the overwhelming number of readers considered this

form of creativity to be legitimate and worthy of protection.

6Newport State of Mind removed amid copyright claim (2010) BBC . 7 Ibid. 8Marcus Taylor How much do Pretentious Music Videos Cost the Music Industry? (2010) The Musicians Guide . 9 Louisa Hearn The Downfall of Hitlers YouTube Parody (2010) Stuff . 10 e.g. the poll appears to confusing piracy with parody: Only when someone puts the whole thing up seems to refer to uploading an entire existing copyright work, rather than a parody, which only copies select parts of a copyright work.


This paper will discuss remix creativity and its relationship with copyright law in New

Zealand. Dramatic advances in technology combined with an associated cultural shift

have spawned these new forms of remix creativity. A novel feature of this creativity is

that it can be understood as a form of consumption. Because of this it is important to

engage in a sociological discussion about the changing nature of the consumer. This

discussion focuses on the capability technology provides, which allows consumers to

more actively engage with media works.

Next remix creativity will be defined by considering three typical forms: the remix, the

mash-up and the parody. For the duration of this paper remix creativity will refer to

these distinct creative forms.

These creations use existing copyright works to devise something new. As such they can

be classified as derivative works. A substantial body of copyright common law has

developed concerning derivative works. Orthodox copyright principles, including the

fundamental prohibition of copying parts of works, and the idea-expression dichotomy

are influential in these works typically being considered illegal.11 The legality of remix

works is explored in copyright infringement analysis; specifically, whether a substantial

amount of an earlier work was reproduced in the new creation. The substantial copying

legal test is contextual and vague,12 but based on selected case law, would likely result in

11 Alan Hui Can Daft Punk Play At My House?: A Case Study of Music Sampling and Copyright Bachelor of Arts ( Honours) Dissertation, The University of Sydney, 2009 at 13. 12 Michael Spencer and Timothy Endicott Vagueness in the Scope of Copyright (2005) 121 LQR 657 at 664.


remix creativity being considered copyright infringement. Additionally, no fair dealing

exceptions in New Zealand law provide any defence to such claims of infringement.

The application of these Anglo-American copyright concepts to remix creativity has been

questioned by some academics. Such academics form part of the copyleft movement

(political connotations deliberate). The copyleft movement generally advocate loosening

copyright laws to embrace this new cut and paste culture. They argue that

contemporary, amateur creativity should not infringe copyright laws. In contrast, the

more conservative copyright favour the application of traditional copyright theories to

these creations, seeing the problem as a simple continuation of copyrights continuous

quarrel with derivative works.

This paper argues that remix creativity does represent a novel and legitimate challenge to

orthodox copyright law. An argument will emerge that the cultural importance, minimal

economic harm, and wide-spread nature of remix creativity justify it being exempted

from copyright infringement analysis. This argument is influenced by the views of the

copyleft. Additionally this paper explores and dismisses counter-arguments relating to the

harm caused to an authors moral and economic rights.

There are two ways to legitimise, this creativity under copyright law. One option is the

use of Creative Commons licenses. Creative Commons represents a voluntary scheme, in

which copyright authors themselves would be able to determine how their work can be

re-used. A second way forward would be through the introduction of new fair dealing


provisions, which have been used to face previous challenges to the acceptable scope of

copyrights reach.13 Recent reform in Australia and Canada provides a potential

resolution. This reform is manifested in fair dealing provisions adopted for parodies in

Australia as well as a non-commercial remix exemption proposed in Canada. Fair

dealing parody provisions would effectively provide a defence to commercial creators of

parodies, while a non-commercial exemption would excuse amateur remixes, mash-ups

and parodies from breaching copyright laws.

Overall this paper supports the introduction of both parody and non-commercial remix

exemption sections to existing fair dealing provisions. Creative Commons is considered

a helpful, albeit ineffective (on an individual level) method to legitimise remix creativity.

It is asserted that this fair dealing reform has the required flexibility to legalise remix

creativity within existing copyright law. This reform would create a more favourable

balance between the rights of copyright owners to earn a reasonable economic reward for

their creativity and the rights of the modern consumer to actively engage in remix

creativity.

13 Such as the VCR and the photocopier. See sections 43,44 and 84 of Copyright Act 1994.


II Remix Culture

The arrival of the Internet has introduced what is termed the information age within

modern developed society. Over the last two decades, innovative technologies have

dramatically increased the ease with which information can be shared.14 We now live in a

media age. Media is all around us, almost to the point of saturation. Especially for the

younger generations this exposure has led to changes in the way media is experienced.

This exposure has resulted in an elementary shift in the consumption of copyright works.

First, digitalization has made the reading experience much more interactive. This is

demonstrated in the use of media in real life social interaction, as well as the practice of

remixing these media works together to create something new. Secondly, the distribution

of new technologies with the capacity to easily copy, cut, and paste has become

widespread. As a result, copying deliberately without the permission of copyright

owners is on the rise. Finally, the growth of the internet has liberated the circulation of

amateur creative endeavours, making them accessible on a global scale.

Fundamental changes have occurred in how we share and access information. For

younger generations the previous norms of media delivery and control are simply

redundant. The best source of news stories is not the newspaper, or even the television.

Rather digital services over the internet provide up-to-the-minute access to both print and

visual media, available on demand. Similarly, access to music is no longer primarily

delivered by in-store distribution, with the internet being the first port of call. The merit

14 Consider the consolidation of the internet as a dominant communication device and the advent of sharing applications such as peer to peer software, bit torrents and social media platforms such as Facebook, Twitter, and Flickr.


in the quality of this new media exposure may be debatable; however, what cannot be

denied is that access to this information has never been easier.

This ease of access means that individuals spend much more time interacting with media

than in the past. A recent study has indicated that an average consumer is spending half

their day interacting with media, an amount that surpasses time spent working or even

sleeping.15 Moreover the growth in smart-phone users and social media has resulted in

transformation in media consumption from 2008 to 2010 which was more significant than

any such changes over the last thirty years.16 Arguably, media accessibility is becoming

close to being considered a basic human need in Western developed countries.

This easy, constant and almost obsessive need to be surrounded by media has changed the

way in which people interact with such material. Susan Blum, in her book My Word!

Plagiarism and College Culture,17 explains how this media-obsessed culture has forged

fundamental changes in consumption habits. Additionally Blum explains an increase in

academic plagiarism18 as being reflective of a college remix culture. Blum notices a

growing use of quoting media in general social conversation and observes: 19

A substantial proportion of the transcripts included what I called quoted shared bits from popular culture. These might be line from a TV show, changing over time from The Simpsons, to The O.C., from Family Guy to Friends to Desperate Housewives.

15 Based on Ipsos OTX study with over 7000 online consumers. Brent Lang Ipsos OTX Study: People Spend More Than Half Their Day Consuming Media (2010) The Wrap < http://www.thewrap.com/media/column-post/people-spend-more-12-day-consuming-media-study-finds-21005>. 16 Ibid. 17 Susan D. Blum My Word! Plagiarism and College Culture (1st ed, Cornell University Press, New York, 2009). 18Trip Gabriel Plagiarism Lines Blur for Students in Digital Age (2010) The New York Times < http://www.nytimes.com/2010/08/02/education/02cheat.html>. 19 Blum My Word!, above n 17 at 41.


They might be lyrics from the music that is popular on campus, which varies among different ethnic, regional, and class groups [There existed] impressive overlap and conversational harmony occurs with the sharing of quoted bits. They happen fast and are gone in a flash.

These college students were actively engaging with these songs and television shows.

The popularity, but more importantly the widespread accessibility, of these shows created

an unconscious shared database of dialogue, or reservoir of pop culture references, which

was drawn upon in social conversation. The consumption of these shows is transformed

from a simple individual experience to a shared experience. Shared phrases are no longer

viewed as part of an isolated work, but rather as part of a collective cultural

understanding, used for social expression among certain circles.

From a legal standpoint, college students appear to either neglect or disregard, restrictions

such as plagiarism and copyright law. Socially, students use these phrases from

television show and films without mentioning their source. This was also demonstrated

in the students writing technique, which exhibits some of the same qualities of pastiche

that drive other creative endeavours today TV shows that constantly reference other

shows, of rap music that samples from earlier songs.20

Not surprisingly there has been a growth in plagiarism by new waves of students sourcing

information from collaborative sources such as Wikipedia and blogs.21 This changing

environment has been described as the birth of a whole generation of students whove

20 Gabriel Plagiarism Lines Blur for Students in Digital Age, above n 5. 21 Ibid.


grown up with information that just seems to be hanging out there in cyberspace [which]

doesnt seem to have an author.22

This increased media exposure, combined with a growth in technologies which allows

people to interact with media, has changed not only the aggregate of consumption but

how people consume media. This phenomenon has been described as the shift from the

consumer to the prosumer: 23

[T]he prosumer chooses what to access, when, where, and how (on which device?). They also produce content for their peers, whether that be original creative content (user generated content or UCG including blogs, Twitter feeds, mash-ups, YouTube content) or merely commentary and ongoing feedback about their likes and dislikes.

This change in consumption is distinguished by an ability to actively engage with

content. Lawrence Lessig draws attention to the passive consumption premise of the

consumer model:24

We listen to music. We watch a movie. We read a book. With each, were not expected to do much more than simply consume. We might hum along with the music. We might reenact a dance from a movie. Or we might quote a passage from the book in a letter to a friend. But in the main, this kind of culture is experienced through the act of consumption. Theres a beginning, a middle, and an end to that consumption. Once weve finished it, we put the work away.

22 Ibid. 23 Professor Kathy Bowrey Copyright v Copyleft Finding the Balance: The Copyleft Perspective (Paper presented to 24th Intellectual Property Society of Australia and New Zealand, Noosa Sheraton, Queensland, 10-12 September 2010). 24 Lawrence Lessig Remix Making Art and Commerce Thrive in the Hybrid Economy (1st ed, Bloomsbury, London, 2008) at 28.


This is what Lessig deems a read-only culture, where individuals simply read the

material. This terminology is usually associated with computer files. If the user has

Read-Write permissions, then she is authorized to both read the file and make changes

to it. If she has Read-Only permissions, she can only read the file.

Technological advances in computer software and other devices mean that this read-only

culture is no longer the norm. Instead, the ordinary computer owner can engage in read-

write activities. For example CDs can be ripped into mp3s and remixed using

software on a basic PC. In the past only the committed, such as hip hop artists, would

purchase technology with similar capability, such as standalone music samplers.

Similarly, the ability to cut and paste selections of different video media using digital

software is much simpler, relative to VHS technology. This paper focuses mainly on

these nonprofessional instances of creativity, rather than on similar legal issues in the

professional sector, such as the use of music sampling in hip-hop.

Additionally, creative works using can now be distributed to a potential audience much

more easily and rapidly. This is described as the viral nature of the internet. An

archetypal illustration is the case of Stephanie Lenz.25 Lenz posted an amateur family

video on popular video-sharing website YouTube. The video featured Lenzs toddler

dancing along to the Prince song Lets Go Crazy for a brief, but entertaining 29

seconds. Lenz shared the clip so that relatives could see this brief snippet of family

amusement. The clip soon became a global sensation. With similar speed the clip also

became the subject of copyright infringement claims.26

25 Lessig Remix above n 24, at 1. 26 Ibid at 1.


If this video was produced in a non-digital context, it would be recorded on video tape

and manually sent to its intended audience fellow family members, making the

resulting controversial occurrences unfeasible. The digital age allows for such creations

to be easily distributed, and increases the number of potential copyright owners across the

world who may object to such re-creation.

These observed changes in media availability, consumption, interactivity and distribution

have spurred new forms of derivative creativity, to which we now turn.


A Typical Forms of Remix Creativity To examine whether remix creativity infringes copyright and the value of such

expression, it is necessary to define the relevant works. To that end, three common

examples of read-write creativity are discussed below.

1 Remix

The term remix can be defined in many different ways. Lawrence Lessig describes the

term in its broadest sense as taking a creative work, and remixing it by the addition of

other creative works, or even through mere criticism.27

A tighter definition confined to musical works is a reinterpretation of a pre-existing

song, meaning that the spectacular aura of the original will be dominant in the remixed

version.28 Three common types of such defined musical remixes exist. First is the

extended remix, which expands the original musical work with a long instrumental

section to enable it to be mixed live by a club DJ.29

The second type is the selective remix.30 In a selective remix, material is either added or

taken from the original mix, rather than simply extending the instrumental parts. Despite

this often significant addition or subtraction of material, the essence of the original

work is always maintained. The essence of a work is usually represented by the most

recognisable melody or hook in a musical work. The final type of remix is the

reflexive remix. The distinguishing feature of the reflective remix, is that the essence of 27 Lawrence Lessig (Re)Creativity: How Creativity Lives in H Porsdam (ed) Copyright and Other Fairy Tales (1st ed, Edward Elgar Publishing Limited, Chelthenam, UK, 2006) at 16. 28Eduardo Nava Regressive and Reflexive Mashups in Sampling Culture (2010) Revision at 4. 29 Ibid at 4. 30 Ibid at 4.


the original work being remixed is no longer the critical feature. Rather it is challenged

and the remix claims autonomy by itself.

The unique feature of any defined remix is that is centred solely on one work, which it is

referenced against. This point of reference is seen as pivotal for a remixs success,

which:31

[D]epends on recognition (reading) of a pre-existing text (or cultural code)...the audience is always expected to see within the work of art its history.

The original work is the reference point and the site of familiarity from which the re-

mixer works and builds from. Typically this makes remixes distinguishable based on

their mere title, which explicitly refers to the original work, typically followed by the re-

mixers name and remix.32

The most common form of remix is a musical remix, although it should be noted that the

remix is not limited solely to musical works. For example, a video of President George

W. Bushs State of the Union speech was remixed by Lenka Clayton, so that every word

spoken by President Bush was arranged in alphabetical order.33

2 Mash-Up

In defining mash-up creativity the first distinctive feature is the blending together or two

or more distinct and often contrasting works. The essences of both works are used and

incorporated together to create a transformative work, diverse from the originals standing

alone. The paramount musical mash-up artist is Gregg Gillis, who under the stage name

31 Ibid at 6. 32 e.g. Bruce Springsteen Im On Fire - Cousin Cole Remix. 33Jonathan McIntosh George W Bush in Alphabetical Order (2010) Political Remix Video .


Girl Talk, has released several musical mash-up albums. An example of his

resourcefulness is the recently released album, All Day. The opening track Oh No

contains samples of 20 different works combined in under 5 minutes.34 The works

sampled offer a diverse range of modern popular music, at one stage blending the guitar

line of teen pop sensation Miley Cyrus with the rough vocals of rap icon Dr Dre.35

Although some works are clearly identifiable, several are not, and those that are typically

feature for short 20 second stints. On his website, Illegal Art, Gillis has disclosed all the

samples used on the album with a number of these yet to be detected and identified by

loyal fans, engaged in a game of spot the sample.36

Another popular mash-up work is the Grey Album. Created by the producer DJ Danger

Mouse, the album mixed and rearranged instrumental components of the Beatles White

Album as a musical backdrop for the vocals rap from Jay-Zs Black Album. This

unique combination, distributed online via peer to peer software, became one of the most

talked about and critically acclaimed albums of 2003.37

Other non-musical media have also been used for mash-up creativity; for example video

clips of George Bush and Tony Blair, were synchronized in order, so that they both

appeared to be mouthing the lyrics of Endless Love by Lionel Ritchie. This mash-up

became internationally notorious and popular for a short period during 2007.38

34 All Day (album) (2010) Wikipedia . 35 Ibid. 36 Girl Talk All Day Sample List (2010) Illegal Art . 37 Matthew Rimmer The Grey Album: Copyright Law, Digital Sampling and Mash-Ups in M Rimmer (ed) Digital Copyright and the Consumer Revolution (1st ed, Edward Elgar, Northampton,2007). 38 Lessig Remix, above n 24, at 74.


3 Parody

Parodies often infringe intellectual property laws. Such infringement arises because of

the need for a parody to use a large part of the work it is parodying, or something similar

in order to establish the point of reference that is the subject of lampoon. Michael

Spence neatly summarises the issue: [g]ood parody is both original and parasitic.39

In construing an academic definition of parody, this parasitic necessity is apparent. Alina

Walsh, in a recent United Kingdom journal article, discuses the nature of parody: 40

In essence, parody is reproduction at first, with a twist of ironic inversion at a later stage. Its imitative nature certainly puts parody at risk of being viewed as a form of plagiarism, as appropriation of the original material is a constituent part. However, the aim of repetition is totally different: it is meant to emphasise comic discrepancy with the original, in order to provide humorous criticism. It is obvious that the original work must be recognisable, otherwise the exercise loses its point. In effect, the original is openly used to represent itself, and not to appropriate an artistic idea of another as such.

The problem of parody is nothing new.41 However, because of the availability of

technological reproduction devices, parody making has experienced major resurgence in

the amateur context. By simply logging onto the main video-sharing website, YouTube,

one would be very likely to see a parody on the first page.

39 Michael Spence Intellectual Property and the Problem of Parody (1998) 114 LQR at 114. 40Alina Walsh Parody of intellectual property: prospects for a fair use/dealing defence in the United Kingdom (2010) 21 ICCLR 386 at 391. 41 For example United Kingdom cases start from Gly v Weston Feature Film Co [1916] 1 Ch 261.


Many popular movies or songs are often followed up with amateur parodies uploaded

onto websites such as YouTube. For example, the parody mentioned in the introduction

(Newport State of Mind) is one of many parodies concerning Empire State of Mind.42

Sometimes these parodies are slightly less derivative and use media works to relate with

current events. The Hitlers downfall parodies is one such instance.43 This series of

amateur works take clips from the German film Downfall and uses scenes of Hitlers

emotive speeches and fake subtitles to create a new expression of concern about modern

day incidents, rather than the films original expression of Hitlers imminent downfall.

For example, a scene which initially displayed Hitlers upset over war planning is

transformed into a rant concerning the Fuhrers anguish over the death of Michael

Jackson and the subsequent annulment of his comeback tour.44 These parodies have

suffered similar notice and takedown incidents as the previously mentioned Newport

State of Mind parody.45

42Mike Masnick After Hundreds Of 'Empire State Of Mind' Parodies - Why Does EMI Suddenly Take One Down? (2010) Tech Dirt < http://www.techdirt.com/articles/20100811/03053110580.shtml>. 43 Hearn The Downfall of Hitlers YouTube Parody above n 9. 44 Ibid. 45 Ibid.


III Remix Creativity and New Zealand Copyright Law

A Rights of Copyright Owners The starting point for any analysis of the legality of remix creativity is to consider the

copyright works, that make up their component parts. Per section 14(1) of the Copyright

Act 1994, copyright protection is only granted to original works. This can be separated

into two further considerations: whether the item fits within the categories of works

specified by the Act, and additionally whether this work meets originality requirements

set by common law. This discussion is crucial in order to determine whether remix

creativity constitutes copyright infringement. Before any claims of infringement can be

instigated, it must first be established that the copyright owners works, that are alleged to

have been infringed, are themselves protected by copyright.

For remixes, the obvious potentially infringed works used are sound and film recordings,

which are cut and paste in forming the new work. A sound recording is defined per

section two of the Copyright Act 1994 as:

(a) A recording of sounds, from which the sounds may be reproduced;

or

(b) A recording of the whole or any part of a literary, dramatic, or

musical work, from which sounds reproducing the work or part may be

produced, regardless of the medium on which the recording is made or

the method by which the sounds are reproduced or produced.


Similarly, a film work is described as: a recording on any medium from which a

moving image may by any means be produced.46

Additional to the mere recordings of works, the musical, dramatic and literary copyrights

may be infringed. For example a musical melody, dance routine or selection of existing

lyrics may be copied in a creative remix work. Each of these components represents a

separate and isolated copyright.

Next, these works must be considered original to gain copyright protection. The

concept of originality is considered as one of the fundamental platforms or the sine qua

non 47 of copyright law. Originality can be separated into two issues: whether the work

was independently produced, and whether the work was born as a result of some degree

of labour, skill or judgement.48 There is no need for novelty or inventiveness.49 This test

can be exemplified through the sweat of the brow metaphor,50 meaning that the author

only needs to input labour and skill, rather than any creative innovation into creating the

work. A reasonable amount of labour and skill alone is enough for protection.

The first requirement ensures that an existing copyright owner has a complete monopoly

in their work. That is, another person cannot simply copy that existing work and gain

similar protection. This is reflected in section s14 (2) of the Copyright Act:

46 s2 Copyright Act 1994. 47 Translated from Latin; without which not. Feist Publications v Rural Telephone Service Co Inc (1991) 20 IPR 129 at 132. 48 Paul Sumpter Intellectual Property Law Principles in Practice, (1st ed, CCH, Auckland, 2006) at 8-9. Also see University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601. 49 Ibid. 50 Feist Publications, Inc v Rural Telephone Service Co, above n 47.


(2) A work is not original if: (a) It is, or to the extent that it is, a copy of another work; or (b) It infringes the copyright in, or to the extent that it infringes the copyright in, another work.

The second requirement is traditionally easy to meet, especially for sound recording and

films. The mere recording is considered enough labour skill or judgement for copyright

to subsist.51 For musical, dramatic and literary works the threshold is slightly higher; with

the degree of labour, skill and judgment needing to be more than negligible.52 For

example a one word slogan was not considered to be original.53 Nevertheless, works such

as pop songs, music videos, films and televisions shows would likely met this standard

for separate musical, dramatic and literary copyrights.

Additionally musical, dramatic and literary works must be recorded to be protected.54

Distributed media products undoubtedly are always recorded and hence copyrightable.

Per section 22 and 23, these works will have copyright protection for 50 years relative to

when the work was made, or made available to the public55 or from the end of the

calendar year in which the author dies.56

51 Sumpter Intellectual Property Law Principles in Practice, above n 48 at 33. 52 Ibid at 14. 53 Exxon Corp v Exxon Insurance Consultants International [1982] RPC 69 (UL CA). 54 s15 Copyright Act 1994. 55 s23 Duration of copyright in sound recordings and films. 56 s22 Duration of copyright in literary, dramatic, musical, or artistic works.


B Originality The substantive discussion in this paper focuses on the common law definition of copy

and its role in copyright infringement. This will also have implications for the potential

copyright protection granted to the remix work itself.57

However, whether or not the work infringes copyright is of the most concern. Ultimately,

its infringing or non-infringing status should determine whether the remix could be

challenged, and potentially taken down from the internet. Additionally it also determines

whether the work is labelled with the social stigma of being an illegal activity. The

pivotal focus will be on whether a substantial amount of the existing work is copied in the

remix work.

Notwithstanding, a further discussion of originality is useful. Establishing the copyright

in the component parts of remix works is significant for two additional reasons. First,

this subsistence examination is important in determining whether a remix works infringes

copyright. Secondly, it could affect the ability for derivative works themselves to be

classified as copyright works.

Although the question of originality appears to be concerned solely with whether a work

itself has copyright protection, it is also fundamentally entwined with the question of

infringement. Susy Frankel and Geoff McLay explain how these two areas interact:58

57Graham Reynolds A Stroke of Genius or Copyright Infringement? Mashups and Copyright in Canada (2009) 6 SCRIPTed 639 at 648. 58Susy Frankel and Geoff McLay Intellectual Property in New Zealand (1st ed, LexisNexis Butterworth, Wellington, 2002) at 191.


A determination of originality and the consideration of infringement overlap with each other. The level or originality in a work will determine the extent to which it is protected. If a work consists of original and unoriginal parts, the whole work may be classified as an original work. If a person other than the owner of that work uses the unoriginal parts of the work, that person will not have infringed the original work. If a work is not particularly original, the level or protection will necessarily be slim.

The level of originality in an existing work is therefore important in considering whether

remix creativity, which typically uses selections of existing copyright works, will infringe

copyright law.

In terms of the copyright in a remix work itself, the issues of subsistence and

infringement overlap because, per s 14(2), a work is not capable of being a copyright

work if, or to the extent to which, it infringes the copyright in another work. This means

that if creative remix works are found to infringe, they would not be independently

produced, and therefore not protectable by copyright.

In terms of the second originality requirement of labour, skill and effort, it has been

suggested that while simply re-recording an existing work may not qualify, digitally

sampling various works and combining them may be enough labour to meet the

threshold.59

59 Sumpter Intellectual Property Law Principles in Practice, above n48 at 33. Also see Reynolds, A Stroke of Genius or Copyright Infringement? Mashups and Copyright in Canada, above n 57 at 845.


C Orthodox Copyright Principles There are two features of orthodox Anglo-American copyright law which are important

when considering copyright infringement and remix creativity.

The first is the fundamental regulation of copying.60 Under copyright, copying is

inherently pernicious. Modern copyright law distinguishes illegal uses on the basis of

whether or not a work has been copied. Although copying is only prohibited where a

substantial amount of a work has been copied, case law indicates that creative works

which copy literal parts of existing works are often held to infringe. For example in the

case Grand Upright Music, Ltd v. Warner Bros. Records Inc61, an injunction was granted

against a hip-hop group that copied selections of the plaintiffs sound recording. The

defendants conduct was met with a resounding judicial warning that Thou shall not

steal.62Although this is only one isolated case, one commentator has suggested that

copyright rest[s] upon a distinction between copying and creation.63 As a result, remix

creativity, which involves similar copying may face a similar judicial response.

The other important feature is the idea-expression dichotomy. Similar to the concept of

originality, the idea-expression dichotomy operates as a platform for copyright analysis.

The concept underlies the New Zealand Copyright Act 1994 and is explicitly included in

international intellectual property treaties,64 holding that only expressions rather than

60 Lessig, Remix, above n 24,at 268. 61 780 F Supp 182 (S.D.N.Y. 1991). 62 Ibid at 781. 63Hui Can Daft Punk Play At My House? A Case Study of Music Sampling and Copyright, above n 11, at 20. 64 Trade-Related Aspects of Intellectual Property Rights Agreement (Annex IC, World trade Organisation, Marrakesh Agreement) signed 15 April 1994 and came into effect 1 January 1995 at article 9(2).


ideas are protected by copyright. For example, copyright protection in a novel means that

subsequent writers cannot merely copy sections of this novel for their own. However,

they can take the themes and ideas that underlie the story and build on these to create new

works.65 For remix creativity, the sound and film recordings which are component parts

of the derivative work are individual expressions and hence, protected by copyright.

Both of these core principles are reflected in New Zealand common law. In Newsmonitor

66 Justice Blanchard reflects:67

Ideas can be appropriated so long as they are not expressed simply by copying the words of the author Provided the Copyright Act is interpreted in a manner consistent with this fundamental rule of copyright law there can be no conflict with s 14, for what is protected there is the right to express and receive ideas and opinions. Section 14 does not provide a guarantee of a right to appropriate someone else's form of expression. Freedom of expression does not mean freedom to copy the form in which authors have expressed themselves and without consent having been given.

65 Sumpter Intellectual Property Principles in Practice, above n 48, at 7. 66 Television New Zealand Ltd v Newsmonitor Services Ltd (1994) 5 NZBLC 103,409. 67 Ibid at 95.


D Infringement by Copying

Infringement by copying is found in section 16 of the Copyright Act. This section

specifies restricted acts that the owner of the copyright work has the exclusive right to

engage in. The first of these is the right to copy the work.68 This right is further backed

up by an infringement regime to enforce this exclusive right. This regime consists of

section 30 which deems copying a restricted act for all copyright works, and section 29,

which specifies infringement as the following:

29 Infringement of copyright (1) Copyright in a work is infringed by a person who, other than pursuant to a copyright licence, does any restricted act. (2) References in this Act to the doing of a restricted act are to the doing of that act (a) In relation to the work as a whole or any substantial part of it; and (b) Either directly or indirectly; and it is immaterial whether any intervening acts themselves infringe copyright.

In determining whether infringement has occurred the logical starting point is the

definition of copying. The Act defines copying in section two as:

(a) means, in relation to any description of work, reproducing, recording, or storing the work in any material form (including any digital format), in any medium and by any means; and

(d) includes, in relation to a film or communication work, the making of a photograph of the whole or any substantial part of any image forming part of the film or communication work.

The task of teasing out a more comprehensive meaning of infringement is left to the

Courts as the definition of copying in infringement claims is seldom straightforward.

Although instances of replication or piracy are easily dealt with, what is more difficult

is where a person has taken only part of a work. In these circumstances the Court

68 Per s16(1)(a).


ultimately determines the balance between the exclusive rights of the copyright owner

and those of the public to create new works. This has lead to a pragmatic approach by the

Courts. In this approach the Court evaluates whether a substantial amount of the work

was copied. This test can be described as:69

A type of fairness test to decide this taking into account how original the copyright work is and the extent to which merely ideas as such, not expression, have been taken. Typically, the decisions are fact-driven. Judges are often swayed by any indication that a defendant has taken a short-cut, rarely finding it necessary to venture into a discussion of the public policy underpinning the copyright monopoly.

The current common law approach to copying is reflected by the Court of Appeal in

Wham-O MFG Co v Lincoln Industries Ltd.70 Copying is analysed using a three step

method. To amount to infringement: 71

(a) The reproduction must be either of the entire work or of a substantial part;

(b) There must be sufficient objective similarity between the infringing work and the copyright work, or a substantial part thereof; and

(c) There must be some casual connection between the copyright work and the infringing work. The copyright must be the source from which the infringing work is derived.

The considerations in (b) and (c) are rather straightforward. For most derivative works

the objective similarity will be high. The test is sometimes described as a search for

striking similarities or whether the latter work brings in to mind the original.72 In most

derivative works made up of other existing original works, this appears to be a given.

69Sumpter Intellectual Property Law Principles in Practice, above n 48, at 76. 70 [1984] 1 NZLR 641. 71 Ibid at 666. 72 Thornton Hall v Shanton Apparel [1989] 3 NZLR 304 at 312 per Bisson J.


Similarly, the casual connection test in (c) would be met as the source of the infringing

work is the existing copyright works.

This leaves substantiality as the tipping point in deciding whether copying has occurred.

This consideration is now reflected in the wording of s 29(2) (a), stated above. In

operating this concept, leeway exists for a judge to assess what he or she considers a

legitimate level of copying, for creating new derivative works.

The Supreme Court in discussing substantiality in Henkel73 describes the flexible and

contextual nature of the exercise:74

It is not necessary for the plaintiff to show that the defendant copied the whole of the copyright work or that the copying was exact. It is enough if the plaintiff demonstrates that the defendant copied a substantial part of the copyright work. This can sometimes be a difficult matter of evaluation and is usually the most difficult question which arises in copyright cases. What amounts to a substantial part in an artistic work case depends more on qualitative visual impression rather than on quantitative analysis. As it has helpfully been put, what must have been copied is the essence of the copyright work. This is a subject upon which, in borderline cases, minds can reasonably differ and it is appropriate for appellate courts to give to the trial judge's assessment the degree of latitude that conventionally applies to appellate review of a discretion.

Henkel illustrates that no strict de minims substantial threshold exists, with the inquiry

conducted purely on individual facts. Such a flexible approach leaves open room for

argument, often resulting in a battle between skilful lawyers75 advocating the facts to

their clients best advantage.

73Henkel KGAA v Holdfast New Zealand Ltd [2007] 1 NZLR 577. 74 Ibid at [44]. 75 Frankel and McLay Intellectual Property in New Zealand, above n 58, at 214.


The discussion below focuses on infringement by copying. However, it should be

recognised that there are other legal obstacles that are relevant to remix creativity.

Infringement could also be argued in terms of adaptation of a copyright work.76 Another

standalone cause of action exists in the Moral Rights regime in Part 4 of the Copyright

Act. For example, the right to object to derogatory treatment of a work may be engaged

through mashing it up with another work.77 However copying is the form of copyright

infringement action most likely to be a taken. Additionally the moral rights regime, as a

standalone action, requires much more extensive attention, and is outside the scope of this

paper.

76 Per s16(1)(g) Copyright Act 1994. 77 Frankel and McLay Intellectual Property in New Zealand, above n 58, at 248.


E Substantiality and Remix Creativity

1 Remix

As previously defined remixes tend to be derived from an existing copyright work. The

pivotal infringement issue is whether the selections taken from the existing work,

amounts to substantial copying. From the New Zealand case law this question is

contextual and is guided by qualitative direction. However, with no New Zealand case

law directly involving remixes or similar derivative works, foreign jurisdictions must be

examined.

A case on point in Australia is Polygram Records Inc v Raben Footwear.78 In Polygram

compact discs imported by Raben Footwear, contained remixes of songs by pop singer

Cher. The applicant Polygram Records owned the relevant copyrights in the sound

recordings of Cher songs, which were allegedly remixed, and featured on imported

compact discs. Raben Footwear unsuccessfully argued they had either acquired rights to

the remix, or that the sound recordings were from a different recording session than those

which Polygram owned. Both these arguments were rejected on the facts.79

In terms of substantial copying the fact that several changes had been made to the original

recordings did not stop the remix from being deemed a substantial copy of Polygrams

sound recording. When comparing the two recordings expert evidence illustrated: 80

That certain effects, instruments and vocals had been added to the stereo recording. Parts of the recording had also been edited; for example, certain verses or musical passages had been reordered or repeated. In addition, certain frequencies of the stereo recording may have been enhanced or removed.

78 Polygram Records Inc v Raben Footwear (1996) 35 IPR 426. 79 Ibid at 427. 80Simon Gilchrist Case Comment: Polygram Records Inc v Raben Footwear Pty Ltd (1997) 19 EIPR at 2.


Despite these changes the remix was held to be a substantial copy. A more detailed

analysis of the qualitative aspects a court considers exists in Canadian case law. Graham

Reynolds discusses the relationship between mash-ups and the copyright laws of Canada

in detail, focusing on the issue of substantiality.81 In one case substantial taking occurred

when the essence of the musical work was taken.82 This essence was determined based

on whether the song was recognizable.83 The case was decided, by examining whether

any person in the audience would qualitatively recognise that it was the plaintiffs

musical work, regardless of how brief this recognition would last.84

Another, more recent case also examined the issue of substantiality.85 Grignon86 involved

allegations of copying in a new musical works. In that case, Justice Denault found that,

on the facts, copying of the musical work had taken place. In determining whether this

taking was substantial, emphasis was placed not on how much had been copied but its

effect: 87

I also consider that this resemblance applies to a significant part of the work, not in quantitative but in qualitative terms, in that it concerns the first measures of the refrain which are the "hook" that the ear retains for the purpose of identifying a piece.

These considerations of similarity and recognition play an important infringement for all

derivative works. These issues raised by remix creativity are nothing new in copyright

81Reynolds, A Stroke of Genius or Copyright Infringement? Mashups and Copyright in Canada, above n 57. 82 Canadian Performing Right Society Ltd v Canadian National Exhibition Association (1934) 4 DR 154 (Ont HCJ). 83 Ibid. 84 Ibid. 85 Grignon v Roussel (1991) 44 FTR 121 (FCTD). 86 Ibid. 87 Ibid at [39].


law. For example simply adopting the riff of an existing musical work in a new song

may amount to copyright infringement. A recent example is the Australia litigation

involving the pop group Men at Work and their song Down Under.88 The group were

found to be infringing the well-known Australian song Kookaburra Sits in the Old Gum

Tree. An objective similarity was found in the defendants flute riff which contained two

bars of Kookaburra Sits in the Old Gum Tree. Additionally, it was held that the hook

of the Kookaburra song has been taken, which qualitatively represented a substantial part

of the work.89 Such instances of copying infringes even if it is done unconsciously.90

A final source of guidance for a New Zealand court faced with a remix infringement

claim is United States case law. In the United States there was been several cases on

sound recording sampling. The most recent cases, Bridgeport91and Newton, used

different reasoning, despite the fact that both cases involved rap artists sampling brief

snippets of existing musical works. However, as explained by Jennifer Mueller the

outcomes and analysis, where poles apart: 92

In Newton, the Ninth Circuit determined that the two works were not substantially similar as a matter of law. The court determined that, quantitatively, the portion sampled lasted approximately two seconds, and comprised roughly two percent of Newtons composition, Choir. The court also found that the portion was not qualitatively more important to Newtons composition than any other portion. The Bridgeport court, in contrast, decided that where digital sampling is involved, no substantial similarity analysis is necessary. The court based this conclusion in part on the belief that every sample necessarily takes something of value. However, the Copyright Act itself, and the House Report thereof, clearly indicate that the

88 Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (2010) 263 ALR 155 89 Ibid at 165. 90 Francis Day & Hunter Ltd v Bron [1963] 2 All ER 16 (UK CA). 91 Bridgeport Music Inc v Dimension Films 383 F 3d 390 (6th Cir 2004). 92Jennifer Mueller All Mixed Up: Bridgeport Music v. Dimension Films and De Minimis Digital Sampling (2006) 81 Ind LJ 435.


substantial similarity analysis is to be applied in all cases of copyright infringement, and that sound recordings are not to be treated any differently. Under the Bridgeport rule, it would only be necessary to prove actual copying in order to prove infringement; the two works would not have to be even remotely similar to each other.

These findings of infringement are unlikely to be ignored as legal precedent, because of

the rise of remix creativity. Rather they represent an established copyright doctrine

applied to all derivate creations.

Following these selected cases it would appear that the typical remix made without

permission of the copyright owner would infringe the law. Polygram Records directly

holds so. Meanwhile from the case study of selected Canadian cases a remix, which by

definition is very likely to use the recognisable catching melody or hook of a work,

would infringe. The strict reasoning in Bridgeport would prima facie deem such work

infringing, while the more tolerant qualitative analysis, such as that taken in Newton,

would also likely lead to ruling of infringement.

2 Mash-Up

In considering whether a mash-up would likely infringe New Zealand law a distinction

should be drawn between different types of mash-ups. For those which only use a few

sound recordings, for example the Grey Album, which combined the vocals of Jay Z

with sound recordings of the Beatles, this narrow range of sources would be recognisable

as the essence of each respective work, and hence would likely infringe the copyright in

those work.


What is more disputable are remixes that use many differing sounds or film recordings.

It is more difficult to predict where the court would draw the line for mash-ups, such as a

Girl Talk song or a video mash-up such as Endless Love.

However, sound recordings are typically ruled on in a holistic manner,93 meaning that

even in a regular Girl Talk mash-up, the vocal line at least would likely be recognisable

by ear, and constitute substantial copying.

The use of brief snippets from many different films appears more debatable. Especially if

used for a separate purpose for example not using the hook to attract the audience but to

satirise it it could be argued that the copying was below the substantial threshold.

Nevertheless video mash-ups would likely still infringe based on any sound recordings

which are used as a soundtrack to the video mash-ups.94 Therefore even if the mixing of

various films was held to be non-infringing, the use of substantial parts of sound

recordings may ensure that the mash-up would still constitute an infringement.

3 Parody

The intrinsic nature of parodies often makes it a necessity to copy part of an existing

work: the subject of parody. Without the recognition of an existing work which is

juxtaposed, the parody would be futile. This means that again, the substantial copying

threshold is the critical consideration for the legality of remix parodies.

93 Grand Upright Music, Ltd v. Warner Bros. Records Inc, above n 61, at 781.


The United Kingdom is the most appropriate jurisdiction to look to for guidance, as

similar to New Zealand and unlike Australia and the United States no specific defence for

parodies exists.

The case law relating to parodies can be characterised by inconsistency and ambiguity.

In the case of Joy Music Ltd v Sunday Pictorial Newspapers95 the defendants produced a

parody of a popular song Rock-a-Billy. Without reproducing the underlying music, the

defendants used similar lyrics to those of Rock-a-Billy in creating the newspaper article

Rock-a-Philip, a satire of what was seen as the overly audacious activities of Prince

Philip. An infringement claim was instigated against the unauthorised copying of these

lyrics, as a breach of literary copyright.96 Justice McNair held that it was relevant to

take into account the purpose and intention of the defendants version; and (to consider

whether ) it was sufficiently original not to be an infringement.97 On the facts the

plaintiffs infringement claim was unsuccessful.

Such tolerant reasoning has been out favour in more recent cases. In Schweppes Ltd v

Wellingtons Ltd98 Justice Falconer rejected the argument in Joy Music, to focus on the

defendants work and intention, deeming that it was not a correct statement of law.99

Rather the substantial test was to be applied as per usual. Accordingly, infringement was

found on the facts. This reasoning was later reinforced in Williamson Music Ltd v

Pearson Partnership Ltd.100 Williamson involved a musical jingle parody. Judge Paul

Baker considered that; the only relevant question to ask was whether there has been a 95Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd [1960] 2 QB 60. 96 Ibid at 63. 97 Ibid at 66. 98 Schweppes Ltd v Wellingtons Ltd [1984] 10 FSR 210. 99 Ibid. 100 Williamson Music Ltd v Pearson Partnership Ltd [1987] 13 FSR 97 (UK HC) at 106.


reproduction of a substantial part of the plaintiffs work in the work of the defendant.101

Parodies were not to receive any special treatment. Such logic has been followed in more

recent case law.102 It follows from this authority, that the same substantiality analysis

used for remixes and mash-ups, applies to parodies.

Applying this reasoning, the similar melody used in the Newport State of Mind parody

would likely represent the essence of Empire State of Mind, and be found to infringe.

Parodies using film recordings such as the Hitler parodies are more debatable. The issue

is whether the clips selected are a substantial amount of the entire film. Similar to

musical works, unless the clip is very brief it is likely to be held to infringe. An x-rated

parody in Canadian law103 which used similar character and mis-en-scene was held to

infringe, based on the fact that the author chose to clothe his work with the popularity of

the original work.104 Although the Hitler parodies may be expressing something

completely different than the original film, the popularity and recognition of the scenes

would likely deem it a substantial amount.

4 Summary

At the infringement stage it would appear that remix creativity appears to be prima facie

illegal. Can such remix creativity be rescued from illegality by the fair dealing defences?

We turn to this subject next.

101 Ibid at 106. 102 Ludlow Music Inc v Robbie Williams [2001] 28 FSR 19. 103 Productions Avanti Cin Vido Inc v Favreau (1999) 1 CPR (4th) 129. 104 Frankel and McLay Intellectual Property in New Zealand, above n 58, at 282.


5 Fair Dealing

Given the ostensible protection which copyright grants, to restore the balance between the

rights of copyright owners and the publics right to access and use copyright work, the

legislature created fair dealing provisions. These various provisions provide a safety

zone105 for the public to engage in certain acts with works that would otherwise be

prohibited.

The different fair dealing sections are independent of each of other106 and in practice are

highly dependent on judicial interpretation. Before considering each separately, the issue

of defining fair dealing in a generic sense is useful to demonstrate the application of

these sections to remix creativity.

The meaning of fair dealing was discussed by Justice Blanchard in TVNZ v

Newsmonitor107 Blanchard J regarded that: 108

Fair dealing is simply a reasonable use. What is reasonable must be judged by looking at the nature of the works themselves and the purpose for which the defendant dealt with them. What is a reasonable use of this particular copyrighted material for the purpose of research or private study of the kind being engaged in? The quantity of material which has been taken, both standing in isolation and as compared with the amount of material in the whole of the work, also has to be considered. Of course, only if a substantial part of the work has been taken, will a question of fair dealing arise... In some cases it will further be necessary to pay

105 M de Zwart The Future of Fair Dealing in Australia: Protecting Freedom of Communication (2007) 4 SCRIPT-ed 95 at 111. 106 s40 Copyright Act 1994. 107 TVNZ v Newsmonitor, above n 66. 108 Ibid at 107.


regard to any depreciating effect which the dealing has on the worth to the plaintiff of the work.

Blanchard Js concise statement illustrates the balance the courts undertake when

applying the fair dealing sections. The Court often considers factors in applying the

sections which underpin this inherent conflict. The exercise is considered as a question

of degree with Court weighing up factors such as: 109

The motives of the user;

The genuine objective of the party using the copyright work;

Whether the use was excessive; and

The amount of a work used.

(a) Incidental Copying: s41

The most pertinent feature of s41, which permits incidental110 copying, is that musical

works or a recording of such musical work, if deliberately included, are exempt from

being a permitted use.111 This deems discussion about musical remixes and mash-ups and

the incidental copying defence irrelevant.

On first reading, it may appear that the defence applies to film recordings used for mash-

ups or for parodies. However, the common law behind the section is rather strict, and

does not seem to grant such privileges.

109 Sumpter Intellectual Property Law Principles in Practice, above n 48, at 114. 110 s41(1)(a) and (b). 111 s41(2).


There is limited case law on the meaning of incidental, which has lead to this defence

being described as the forgotten defence of copyright law.112 Case law indicates that

commercial and aesthetic considerations are important when applying the section.113 In

the Football Association114 case the presence of a logo on a football shirt, which was

captured in a photograph, was held not to be incidental copying because of the

commercial context involved. In contrast in Fraser-Woodward115 the use of several

paparazzi photographs in a documentary about David and Victoria Beckham and their

problems with the paparazzi appeared more acceptable for the Court, which held that the

use of 14 photographs was incidental.

A video mash-up or parody would not be covered under section 41. Although its non-

commercial use may be in favour, the extent of content is usually quite substantial. For a

mash-up or parody the amount copied would likely represent a sizeable selection of a

film or television show. In contrast in Fraser only 14 photos where shown in a few brief

seconds during an hour long television documentary.116 Additionally the policy signal

against the use of music works in a similar vein, supports the conclusion that the defence

would not apply.

112 Ian Eagles Incidental Copying: The Forgotten Defence to Copyright Infringement (2004) 10 NZBLQ 236. 113 Sumpter Intellectual Property Law Principles in Practice, above n 48, at 112. 114 Football Assn Premier League Ltd v Panini UK Ltd [2004] 31 FSR 1 (UK CA). 115 Fraser-Woodward Ltd v BBC [2005] 13 EMLR 22. 116 Ibid.


(b) Criticism, review and news reporting: s42

The fair dealing provision for criticism or review could be used as an arguable defence

against copyright infringement actions involving parody. If the elements of the defence

are made out, it also necessary that the copyright work criticised or reviewed is given

sufficient acknowledgement.117

The purpose of a parody is typically to satirize and hence arguably criticise an existing

work, or the views that underlie that work. Nevertheless, there are three aspects which

mean that applying the fair dealing defence to parodies is problematic. First, unlike other

forms of review, parodies often involve taking much more substantial and recognisable

sections from the copyright work.118 Secondly parodies are often pursued for commercial

advantage rather than for the sole purpose of criticism.119 Finally the criticism of parodies

is often aimed at societys view in general and views that underlie or are represented by

the work itself, rather than a concentrated criticism on the work alone.120

Applying the fair dealing factors to the parodies of Newport State of Mind and the Hitler

series, the main issue is the large and potentially excessive use of the respective works.

Although both were made for initially non-commercial reasons, the subsequent success of

both, including the emergence of radio play, could mean they become tainted with a

commercial flavour.

117 Per s42(3). 118Frankel and McLay Intellectual Property in New Zealand, above n 58, at 281. 119 Ibid. 120 Ibid.


Such crossover appeal, could concern the Court. The aforementioned Canadian case of

Productions Avanti Cin Vido Inc v Favreau 121 reflects concerns about masquerading a

work with the esteem of another, without making a genuine attempt to criticise it.122

Similar reasoning could be argued against the parodies mentioned above.

(a) Section 45: copying for educational purposes of films and sound recordings

Section 45 provides an exemption for the copying of film and sound recording works if

the copying is done by the instructor of a course concerning the making of film or a film

soundtrack. This could potentially involve remix creativity, but is a very narrow and

particular exemption, applying only to film and soundtrack education.

6 Summary of Current Fair Dealing Provisions

None of the current fair dealing provisions conclusively apply to remix creativity. This

means that remix creativity is not within the current safety zone of existing permitted

uses of copyright works. Therefore if remix creativity is to be considered a legitimate

and legally permitted use of copyright works, reform is necessary.

7 Practical Considerations

Regardless of the potential illegality of remix works, pragmatically, remix creativity

cases are unlikely to advance to Court. The typical large corporate copyright owner, is

121 Productions Avanti Cin Vido Inc. v. Favreau, above n 103. 122 Ibid.


unlikely to be scanning the internet for infringing material, and insisting that it is

removed.

However, concerns have been raised about the potential use of copyright amendments

such as the proposed s92A,123 which implements notice and takedown measures against

online copyright infringement. A notice from a copyright owner can be issued without

proof that the actual item infringes. The typical layperson receiving such a warning

would be unlikely to challenge this notice, and may not be aware or have the resources to

make a legitimate legal counter-argument about the potential legality of their work. This

has been deemed the chilling effect of such comprehensive internet legalisation.124 Such

legislation in circumstances where an initial infringement notice has been issued, appears

to set the burden of proof on the remix creator to prove they have not infringed copyright,

rather than on the copyright owner to prove their asserted cause of action. A copyright

owner does not need to specify the particulars to their claim, for example whether what

was copied equates a substantial amount of their work.

Added to this concern is the potential use of automatic piracy detection software which

is used to scan sites such as YouTube for copies of existing copyright works, and issue

automated takedown notices without any human referral, further enhancing this potential

chilling effect.125

123 Copyright (Infringing File Sharing) Amendment Bill 2010 (119-2). 124Chilling Effects DMCA Subpoena 2010 Chilling Effects . 125Jennifer Urban and Laura Quilter Efficient Process or Chilling Effects? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act (2005) University of Southern California My Law Portal < http://mylaw.usc.edu/documents/512Rep-ExecSum_out.pdf>.


A report on the use of takedown notices in the United States found that 30% of notices

raised serious concern126 about the fairness and legal viability of copyright owners

claims, while 37% of notices related to content that were hosted on foreign servers,

outside the jurisdiction of the American act.127 These statistics illustrate that the potential

gravity of this chilling effect and indicates how such regimes may discourage amateur

creators.

126 Ibid at 2. 127 Ibid at 2.


IV Should Remix Creativity be Illegal?

Having established the prima facie illegality of remix creativity, the next issue is that of

legitimacy. Is this an acceptable state of law? More particularly, is remix creativity a

novel and culturally significant activity, or is it merely another form of seemingly

parasitic copying? This question will be examined by looking at the academic debate

between the copyleft and copyright. Once this is established an argument will be

presented, influenced by the copyleft, to assert that remix creativity is legitimate, and

should be a legally permissible under copyright law.

A The Copyleft-Copyright Debate For the purpose of my discussion I will attempt to distinguish two roles of copyright law.

The challenges of the internet are not limited solely to new types of derivative works, but

almost with a rampant growth in copyright piracy. In order to focus the arguments on

remix creativity the following distinction is useful: 128

There are two ingredients in the law: the right to buy and sell copies of ideas, and the right to control how other people make use of their copies. The first right is not controversial. In copyright law, when applied to the creator, this right is sometimes called the right of first sale. However, it extends also to the legitimate rights of others to sell their copies. It is the second right, enabling the owner to control the use of intellectual property after sale, that is controversial. This right produces a monopoly enforced by the obligation of the government to act against individuals or organizations that use the idea in ways prohibited by the copyright or patent holder.

128 Michele Boldrin and David K. Levine Against Intellectual Monopoly (1st ed, Cambridge University Press, New York, 2008) at 8.


For present purposes the focus here is on derivative works the use of copyrighted

works, to recreate. This is the playing ground from which the arguments from the

respective views of the copyleft and copyright will be discussed.

In conceptualising the interaction between copyright laws and this new form of creativity,

copyright law can be construed as a fence surrounding the field of creativity. Generally

speaking, the copyleft movement advocates extending the boundaries to ensure that this

creativity (at least in the non-commercial context) is within the boundaries of acceptable

legal conduct. In contrast the copyright school, relying on orthodox theories of

copyright, argue that the current boundaries should remain intact, and that the fence

should be heightened that enforcement of existing copyrights laws should be increased

and modified to ensure that this infringement can be restrained.


B The Copyleft and Creativity

Before proceeding with discussion of the copyleft strict aspects of classification should

be clarified. The term copyleft refers to a licensing model used for developing computer

software in the 1970s and 80s.129 This model encourages innovation in the software

sector by allowing free access to the computer codes of existing software, while also

allowing any modified or derivative works of such programs to remain free.130

Taking inspiration from this model the term copyleft has also become synonymous with a

broader philosophy that other types of works, not just computer software, should operate

within more liberal copyright boundaries which foster derivative creativity.

Neil Netanel and Lawrence Lessig are considered major advocates in the fight of the

copyleft. Netanels fundamental focus is on ensuring that copyright is viewed as an

engine of free speech.131 By viewing copyright through this free speech lens Netanel

ensures that the trade off between providing copyright protection and providing an

incentive to create, against restricting free expression, can be clearly demonstrated.132

Netanel considers that expressions which incorporate existing copyrighted works have

particular importance in modern mass media culture: 133

Mass-media products are central features of daily life. In addition to serving as common reference points for imagination and conversation, they shape the agenda

129 Professor Kathy Bowrey Copyright v Copyleft Finding the Balance: The Copyleft Perspective, above n 23, at 1. 130 What is Copyleft? (2010) GNU Operating System < www.gnu.org/copyleft/copyleft.html>. 131 Neil Netanel. Copyrights Paradox (1st ed, Oxford University Press, Oxford, 2008) at 3. Originally stated by the US Supreme Court in Harper & Row Publishers Inc v National Enters 471 US 539,558 (1985). 132 Ibid at 8. 133 Netanel Copyrights Paradox, above n 130, at 33.


for public discourse and reinforce or redirect widely held assumptions about our social and political universe.

This mass media exposure forms what Netanel terms, an expressive universe.134 Within

this universe individual use media works to communicate and express themselves. Such

expression is our common language.135

Lawrence Lessig has a similar view. For him remixing media in such a universe is

simply a given. No creative works are made in a vacuum. For instance, many pop songs

use a similar drum beat136 as inspiration for a new work, and are protectable by copyright.

Remix creativity is similar in that it uses the work itself for recreation, rather than simply

replication.

Lessig puts strong focus on the amateur nature of remix creativity. This derivative

activity is no longer the domain of professional musicians or full-time artists with

specialized equipment. Rather anyone with a standard personal computer or laptop has

the same opportunity.137 This democratising potential means that this conversing is done

by many, rather than the limited number of large media outlets which dominated

traditional media distribution and creation. This bottom-up democracy138 is seen as

something to foster and develop rather than restrain.

134 Netanel ,Copyrights Paradox, above n 130, at 43. 135 Ibid at 43. 136 The opening drum beat to the Ronettes Be My Baby for example is a recognisable and constant source of inspiration in popular modern music. Jim Waterson Be My Baby the Drumbeat that Changed Pop Music (2010) The Isis . 137 Lessig, (Re)Creativity, above n 27, at 18. 138 Lessig, (Re)Creativity, above n 27, at 18.


C The Copylefts Fundamental View on Copyright The copyleft classically focus on copyright as a government created monopoly right,

which exists, to balance two public interest concerns.139 The first is granting copyright

owners a bundle of rights that rewards them for creating, and establishes an incentive to

craft artistic works.140 This is balanced against the need to allow the public to access

these works, and to re-create.141 The copyleft generally consider this balance needs to be

shifted and adapted to the rise of remix culture.142

D The Copyright and Creativity The value of remix creativity for those in the copyright is commonly viewed from the

perspective of the original copyright owner. Concerns surrounds the fact that, remix

creativity stifles the ability of that owner to economically exploit their own work,

implying that the new remix work may represent a competing substitute for the original

work. Another common belief grounded in moral theories of copyright, is that remix

work are often inferior and prejudicial to the authors expressive intention in their

original work.

Former President and Chief Executive Officer of the Motion Picture Association

A Right to Copy

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