A Stroke of Genius or Copyright Infringement? Mashups, Copyright, and Moral Rights in Canada

A Stroke of Genius or Copyright Infringement? Mashups, Copyright, and Moral Rights in Canada

Graham Reynolds is an Assistant Professor in the Faculty of Law at Dalhousie University in Halifax, Nova Scotia, Canada, a member of Dalhousie Law School's Law and Technology Institute and the Co-Editor-in-Chief of the Canadian Journal of Law and Technology.  He is also an IP Osgoode Research Affiliate.

Have you ever wanted to see Metric's Emily Haines on stage with Burton Cummings and Neil Young? To hear the raw vocals of Kathleen Edwards backed by iconic Winnipeg band The Weakerthans? If so, you may like mashups, songs created by combining pieces of two or more pre-existing sound recordings into one new sound recording. Anyone with an internet connection, a computer, and easily obtainable sound editing software can make a mashup. The classic mashup, described as A vs. B, combines the lyrics of one song with the instrumental portion of another song. One prominent A vs. B mashup is Freelance Hellraiser's "A Stroke of Genius", which combines the lyrics of Christina Aguilera's "Genie in a Bottle" with the music of indie rock band the Strokes. Most mashups are of the A vs. B variety. Some mashups, however, are much more complex. For instance, mashup artist Girl Talk's 2008 album Feed the Animals is composed of pieces of 322 songs. Though some mashups are created by professional musicians, the majority of mashups are created by amateur musicians and music fans on their personal computers. Many individuals, after creating their mashups, post them on file sharing websites like YouTube.com.

Among other uses, mashups give individuals the opportunity to explore the consequences of juxtaposing the music of two artists who perform in different genres (for instance by combining the lyrics of Somali-Canadian rapper, musician and poet K'naan's song "Dreamer" with the music of Stompin' Tom Connors' "The Hockey Song"); to critique artists, the music industry, or society by creating an ironic collision between two or more works (for instance to critique the homogeneity of contemporary "pop music" by weaving the music of a variety of acts together into one seamless work); and to celebrate one's favourite band by creating a mashup of their works (for instance to pay homage to the Tragically Hip by bringing together some of their iconic works - like "At The Hundredth Meridian", "Wheat Kings", and "Fireworks" - into a single track).

Some artists, recognizing the positive impact that mashups can have on their careers through increased record sales, concert attendance, and media attention, have either explicitly or tacitly supported the creation of mashups made from their copyright-protected expression. Other artists wishing to support mashups or other modifications of their works publish their works under a Creative Commons licence. Mashups created and distributed in compliance with Creative Commons licences do not infringe copyright. The majority of mashups, however, are created without the permission of the copyright owner. As it is an infringement of copyright to do anything, without the permission of the copyright owner, that only the copyright owner has the right to do, it can be argued that a significant number of mashups created and distributed in Canada today infringe copyright. It can also be argued that many mashups violate moral rights.

Detailed analyses of whether mashups infringe copyright and violate moral rights in Canada are beyond the scope of this blog post. Rather, the purpose of this post is two-fold: to draw attention to the specific issues of mashups, copyright infringement, and moral rights infringement in Canada; and to the larger question of the extent to which Canada's copyright laws should be revised to allow individuals to engage with the re-creation of copyright-protected expression.

The rights and responsibilities of copyright owners are set out in the Copyright Act.1 Two of the copyright owners' rights that may be infringed in the creation of mashups are the right to reproduce a work (or the substantial part of a work) and the right to communicate a work to the public by telecommunication. The distribution of mashups may also infringe the rights of copyright owners. If mashups are found to infringe copyright in Canada, it is an open question whether the fair dealing defence could operate to render some mashups non-infringing. Broadly speaking, the fair dealing defence gives individuals the right to use, without the permission of the copyright owner, a substantial amount of copyright-protected expression for various purposes (namely research, private study, criticism, news reporting, and review), provided they do so in a "fair" manner and, in certain cases, mention the source of the work and the name of the author of the work. There is a strong possibility that many mashups would fall outside the fair dealing purposes listed in the Copyright Act. Though some mashups can be seen as critical, it would be difficult to describe mashups created as homages, tributes, or simply playful exploration as "criticism". And although mashups created at home could be seen as "private study", the act of posting mashups to online communities or websites would remove the work from the ambit of this category.

It is also arguable that mashups violate the moral rights of copyright owners. Mashup artists cut, slice, and plaster lyrics onto walls of sound built from pieces of various musical works. They bring together disparate genres of music, gluing together songs that might never be played at the same bar, on the same radio station, or even in the same decade. As a result, mashup artists may be found to have infringed an artist's moral rights. Specifically, they may be found to have infringed the artist's moral right to the integrity of their work. This right, in part, protects works from distortions, mutilations, or modifications that are prejudicial to the honour or reputation of the author.

Today's digital technologies give individuals an unprecedented opportunity to engage with culture, interacting with it, changing it, modifying it, and using it as the raw material for one's own expression. Mashups are one of the many ways through which individuals are using digital technologies to participate in the re-creation of Canadian culture. This participation, however, may both constitute copyright infringement and violate artists' moral rights. As Canada enters its next round of copyright reform, the question of the extent to which copyright laws and laws dealing with moral rights should be revised to permit the creation of mashups should be addressed; and the question of the extent to which individuals should be permitted to engage with the re-creation of copyright-protected expression must become a topic of debate. More is at stake than the future of the mashup genre. The manner in which these questions are resolved will speak volumes about the future of culture, creativity, and freedom of expression in Canada. 

 1 Copyright Act, RSC 1985, c. C-42.