Adapting Copyright for the Mashup Generation

72 Pages Posted: 13 Mar 2015 Last revised: 11 Dec 2017

See all articles by Peter S. Menell

Peter S. Menell

University of California, Berkeley - School of Law

Date Written: February 1, 2017

Abstract

Growing out of the rap and hip hop genres as well as advances in digital editing tools, music mashups have emerged as a defining genre for post-Napster generations. Yet the uncertain contours of copyright liability as well as prohibitive transaction costs have pushed this genre underground, stunting its development, limiting remix artists’ commercial channels, depriving sampled artists of fair compensation, and further alienating netizens and new artists from the copyright system. In the real world of transaction costs, subjective legal standards, and market power, no solution to the mashup problem will achieve perfection across all dimensions. The appropriate inquiry is whether an allocation mechanism achieves the best overall resolution of the trade-offs among authors’ rights, cumulative creativity, freedom of expression, and overall functioning of the copyright system. By adapting the long-standing cover license for the mashup genre, Congress can support a charismatic new genre while affording fairer compensation to owners of sampled works, engaging the next generations, and channeling disaffected music fans into authorized markets.

Keywords: copyright, remix, mashup, compulsory license

Suggested Citation

Menell, Peter S., Adapting Copyright for the Mashup Generation (February 1, 2017). 164 University of Pennsylvania Law Review 441 (2016); UC Berkeley Public Law Research Paper No. 2576929. Available at SSRN: https://ssrn.com/abstract=2576929

Peter S. Menell (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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