mashups
are
simply "made
by
cynical,
tired
people
with
no
ideas"
and
discourage talented
artists
from
using
their
imagination.
3
Just
as
there
is
discrepancy
among
music
fans
about
the
artistic
value
of
mashups,
the
music
industry
itself
is
divided
with
regard
to
the
practice
of
using
others'
works.
5
4
Some artists, like
David
Bowie
and
Nine
Inch
Nails,
actually
support
the
idea
of
others
using
their
songs
to
create
new
music.
55
In fact,
many artists
have
Creative
Commons
licenses,
which
provide
greater
access
to
copyrighted
material.
5 6
With
a
Creative
Commons
license,
an
artist
can'
declare
which
exclusive
rights
he
wishes
to
retain
over
his
work,
allowing
others
to
avail
themselves
of
the
remaining
rights.
5
7
For
example, someone
with
a
Creative
Commons
license
may approve
of
another
artist's
unauthorized
reproduction
of
his
work
as
long
as
the
use
is
not
for
commercial
purposes.
5 8
On
the
other
hand,
there
is
a
history
of
jurisprudence
that demonstrates
many
artists
and
record
labels'
disapproval
of
the
use
of
their
work
by
others.
5
9
Most
famously,
Roy
Orbison's
record
label sued
rap
group
2
Live
Crew
for
the
unauthorized
use
of
"Oh, Pretty
Woman"
in
a
parody entitled "Big
Hairy
Woman."
60
53.
Martin
Turenne,
Pop's
Bastards:
Are
Mash-Ups
a
Clever
Culture
Jam
or
Mere
Cynical
Sarcasm?,
EXCLAIM
(Apr.
2003),
http://exclaim.ca/articles/pointofview.aspx?csidl-46;
see
Pote,
supra
note
3,
at
653.
54.
See
Bridgeport
Music, Inc.
v.
Dimension Films,
410
F.3d
792,
804
(6th
Cir. 2005),
aff'g,
383
F.3d
390
(6th
Cir.
2004)
(explaining
that the
music
industry
is
always
on
both
sides
of
the
fence
as
"today's
sampler
is
tomorrow's
samplee");
Lee,
supra
note
10,
at
1503
(acknowledging artists
like
Nine
Inch
Nails who
have
encouraged
others
to
use their work
for free);
Molly
McGraw,
Sound
Sampling
Protection
and
Infringement
in
Today's
Music Industry,
4
HIGH
TECH.
L.J.
147,
152
(1989)
(quoting
a
Grammy
award-winner
who
said,
"[w]e're
all
blatantly
stealing
from
everyone
else");
Jurgensen,
supra
note
50
(noting
that
bands will
tolerate
unauthorized
use
of
their
music
if
it
exposes
them
to
new
fans);
see
also
Turenne,
supra
note
53
(demonstrating
that
not
all
music
fans
approve
of
mashups).
55.
Lee,
supra
note
10,
at,
1503;
Enter
and
Win,
BOWIENET,
http://davidbowie.com/
neverFollow/#
(last
visited
Mar.
16,
2011)
(showing
that David
Bowie held
an
amateur
mashup
contest
awarding the
winner
with
a
new Audi);
see
Hellweg,
supra
note
6;
Reynolds,
supra
note 36;
Share,
Remix,
Reuse-Legally,
CREATIVE
COMMONS,
http://creativecommons.org/
(last
visited
Mar.
16,2011).
56.
See
Pote,
supra
note
3,
at
686-87;
Share,
Remix,
Reuse-Legally,
CREATIVE
COMMONS,
http://creativecommons.org/
(last
visited
Mar.
16,
2011);
see
also
Reynolds,
supra
note
36
(explaining
that
Creative Commons
licenses
allow
mashup
artists
to
lawfully
create
and
distribute
mashups).
57.
See
Pote,
supra
note
3,
at 686-87.
58.
See
id
at
687.
59.
See, e.g.,
Campbell
v.
Acuff-Rose
Music,
Inc., 510
U.S.
569,
572-73
(1994);
Bridgeport,
410
F.3d
at
795;
Newton
v.
Diamond,
388
F.3d 1189,
1190
(9th
Cir. 2004); A&M
Records,
Inc. v.
Napster,
Inc.,
239
F.3d
1004,
1010-11
(9th
Cir.
2001);
Lenz
v.
Universal Music
Corp.,
572
F.
Supp.
2d
1150,
1151-53
(N.D.
Cal.
2008);
UMG
Recordings,
Inc.
v.
MP3.com,
Inc.,
92
F.
Supp.
2d
349,
350
(S.D.N.Y.
2000);
Grand Upright
Music
Ltd.
v.
Warner
Bros.
Records,
Inc., 780
F.
Supp.
182,
183
(S.D.N.Y.
1991).
60.
Campbell,
510
U.S.
at 571-72.
2010]
MU7SIC
MSHUPS
411
7
Harper: Music Mashups: Testing the Limits of Copyright Law as Remix Cultu
Published by Scholarly Commons at Hofstra Law, 2010