Monday, July 2, 2012

Where does a mashup end and copyright infringement begin?

Don't settle for second best, baby, you were born this way. 

When we define "creative" in advertising class, we say it can be one of two things:

1. Coming up with something completely new.
2. Bringing together two, existing things to make something new.

The first is self-explanatory. My favorite example of the second: Pizza Hut (the restaurant) + Jabba the Hut (the Star Wars character) = Pizza the Hut (the Space Balls Parody)

Pizza the Hut is a parody, but it's also something we haven't seen before. Therefore, it's "creative." However, what if Pizza Hut and/or George Lucas, doesn't think so? Should Mel Brooks fork over the dough?

It's complicated

We live in a remix culture, in which mashups of pre-existing works are one person's "art and a reinterpretation of history" and another's "stealing."

I'm not sure how I feel about it. It's complicated.

As a teacher, I wish I had a nickel for every time a student has asked me, "How much of this photo am I allowed to use in my ad?" or used someone else's tagline or logo.

This is fueled by the Internet, of course, and everyone's favorite "visual samplers:" Photoshop and Google Images.

My favorite "wish-it-wasn't-true, but-it-probably-will-be" joke is that we're just a couple years away from teachers saying, "Be sure to have your papers plagiarized for next Tuesday!"

Creative Commons has tried to reign it in by assigning attribution licenses to websites like Flickr, but the variety of licenses, how and when you can use them, and how to attribute them when you do, aren't as straightforward as one might hope.

This leads to people doing online what they see others doing online, which is: help yourself. Individuals aren't the only culprits, either. I've written before about YouTube's hypocritical copyright policy.

Not ha-ha funny

On one hand, I understand what it's like to be ripped off by someone else, having my stand-up material "sampled" by a young host at Rumor's. On the other, I understand why it was tempting for that comic to build on the work of someone else - it's easier to perfect what someone else has started then to do the heavy lifting yourself.

While I was angry at the time, I now see it as also my fault - my jokes should have been more specific to me, and then no one could have taken them.

As well, I wonder if it's a North American thing to write a joke and believe that you own it, as opposed to other cultures, like The Borg on Star Trek, who all work toward the same common goal for the betterment of all.

Long story short: letting it go has been better for my health and well-being.

As well, every comic has told a joke that he or she thinks is in "the public domain" only to find out that it's someone else's "creative." For me, it was "an old family joke" that another comic revealed to be a Garry Shandling original. I never told it again.

Another time, I told a Howie Mandell joke onstage - intentionally, believing it to be an ironic in-joke - only to find out later that the irony may have been lost on the crowd, who knew nothing of Howie. The sure way to kill the irony, and the joke, would be to say, "I'm being ironic. I know that this is a Howie Mandell original." Does tone and intent matter?

There are other comics who get angry when you tell a joke about the same topic. This is pretty clearly not copyright infringement: if Tom and Katie are getting a divorce, you can bet that every comic on Earth will have something to say about it.

Learn the rules: whatever they are

I've used photos on this very blog from Google Images without so much as a thought from where I got them. I'm not a photographer, so I've never considered photographs to be anything other than "pretty pictures from the Internet that help make your blog look good." Which, I know, is wrong!

But is it also wrong that I embedded the YouTube video at the top of the post? And is it really wrong, because the person who mashed up the Lady Gaga/Madonna hits didn't get their permission? And is it really, really wrong because Lady Gaga's "Born this Way" is reductive of Madonna's "Express Yourself?"

Maybe it's a harbinger of things to come that we now hear people speak of ""aggressive samples"(watch the great - and pirated! - Copyright Criminals for the full discussion) and "progressive copyright."

As Copyright Criminals points out, no one was very much concerned about sampling until artists started making money by doing it. As the old adage goes: "Where there's a hit, there's a writ."

If there was no sampling, we wouldn't have legitimately great albums with uncleared ("illegal") samples, like Beastie Boys' Paul's Boutique, Public Enemy's It Takes a Nation of Millions...", and De La Soul's Three Feet High and Rising.

Of course, Rick James' biggest record was by MC Hammer, for which James was paid. However, the song was terrible. So was Puff Daddy's butchered - but legally obtained - sample of the Police's "Every Breath You Take." So was Vanilla Ice's unholy remix of Queen's "Under Pressure".

But what of Clyde Stubblefield, who played with James Brown from 1965 to 1970? There's evidence that Stubblefield wrote "Funky Drummer," which Copyright Criminals says is the most sampled song of all time - Public Enemy, Big Daddy Kane, N.W.A., Sinead O'Connor, and Prince among them. Stubblefield got paid a fee for being on the original record, but got no writer's credit, and makes no money in royalties.

Is his beef with James Brown? The artists who sample the song? Samplers? All of the above?

The classic example: is Andy Warhol's Marilyn Monroe print copyright infringement? What about the Obama Hope poster? What about my links to both?'s complicated indeed.

As they sing in Rent, "The opposite of war isn't peace, it's creation." The big question: how much of another person's creation can you use in yours?

The answer, my friend, is blowin' in the wind.

I didn't write that line: (Dylan, B. (1962). Blowin' in the Wind. In The Freewheelin' Bob Dylan. Retrieved July 2, 2012, from'_in_the_Wind.)


  1. All mash-ups are copyright infringements.

  2. No, just a musician tired of watching kids rip off the past.


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