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result: Hastings communications and entertainment law journal
article: "The Transformative Tribute: How Mash-Up Music Constitutes Fair Use of 

Copyrights."

source: San Francisco : University of California, Hastings College of the Law

LEXISNEXIS SUMMARY:
... A sophisticated level of transformation, exhibited by artists such as Girl Talk, reintroduce the original songs to modern consumers' ears. ... While several copyright infringement suits have challenged artists' sampling, Gillis, who used 372 unlicensed samples in his 2010 album All Day, and is touring the country, has yet to be sued by an artist or record company. ... This Note will argue that Gillis' All Day album does not infringe on the copyright or artistic integrity of the sampled artists, but rather constitutes fair use because the result is mutually beneficial, an artistic contribution that is simultaneously a tribute to the original musicians and a parody of the notion of artistic innovation. ... Finally, this Note will propose an approach to the recent emergence of sampling for the music industry that incorporates a modern concept of creativity but does not disregard the originality that inspires artists to reinterpret in the first place. ... The Sixth Circuit recognized the industry's desperate need for a rule clarifying when digital sampling of copyrighted sound recording constituted infringement. ... Instead of sampling aspects of songs that listeners may or may not attribute to the original artists, mash-up music transparently takes others' songs and transforms them as the focal point of the art. ... By embracing new forms of consumption, and encouraging innovation in the industry regarding this issue, artists can gain popularity and credibility themselves.

HIGHLIGHT: 
The music industry faces copyright protection issues in light of the transformative digital sampling trend, which has carved out a new genre: mash-up. Without obtaining licensing agreements, creators of mash-up music use parts of copyrighted songs as the ingredients for a fusion of sounds that arguably amounts to more creative value than the sum of its parts. In confronting the legality of mash-up music, courts and legislators must strike a balance between securing original artists' interest and promoting new frontiers of expression. This article presents a background of digital sampling, applies the fair use defense to mash-up music, and proposes that the doctrine include protection for artistic re-contextualization. A sophisticated level of transformation, exhibited by artists such as Girl Talk, reintroduce the original songs to modern consumers' ears. This exposure, as well as changing notions of originality and accessibility, can explain the absence of legal challenge for Girl Talk, who used 372 unlicensed samples in his last album, All Day. Indeed, mash-up music pays tribute to sampled artists, and taps into current trends of consumption. By offering a dynamic musical experience that is novel, yet nostalgic, mash-up artists can give consumers an innovative product worthy of the fair use defense.

source citation:

Golosker, Vera. "The Transformative Tribute: How Mash-Up Music Constitutes Fair Use of 

     Copyrights." Hastings Communications and Entertainment Law Journal (Spring 2012): 

     n. pag. LexisNexis Academic. Web. 17 Oct. 2012.