The EU's Trouble with Mashups: From Disabling to Enabling a Digital Art Form
| Author | Bernd Justin Jütte |
| Position | PhD student at the Faculty of Law, Economics and Finance of the University of Luxembourg |
| Pages | 172-193 |
2014
Bernd Justin Jütte
172
3
The EU’s Trouble with Mashups
From Disabling to Enabling a Digital Art Form
by Bernd Justin Jütte, PhD student at the Faculty of Law, Economics and Finance of the University of
Luxembourg
© 2014 Bernd Justin Jütte
Everybody may disseminate this ar ticle by electroni c means and make it available for downl oad under the terms and
conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8 .
Recommended citation: Ber nd Justin Jütte, The EU’s Trouble with Mashups: From Disabling to Enabling a Digit al Art Form 5
(2014) JIPITEC 172, para 1.
Keywords: Mashups, Artistic Expressions, Copyright Directive, CJEU, user-generated content
A. Introduction
1
The European Union (EU) desperately wants to be
digital. To achieve this aim, the European Commission
has launched the Digital Agenda1 in 2011, which is
one of the seven agship initiatives on the Europe
2020 Agenda.
2
One part of ‘becoming digital’ is to
incentivize and maintain social interaction on the
Internet in order to enable online creativity. A form
of creativity that has evolved with the advent of
affordable digital editing techniques is the music
mashup.
2
Mashups probably do not fall in the narrow and
rather traditional conception of culture that the
EU had in mind when it adopted its motto “Unity in
Diversity”.3 Yet, mashups are undeniably an aspect
of modern musical culture that Europe shares with
other non-European nations and societies; and,
therefore, they should deserve special attention.
From a legal perspective, support must come
through a framework that enables this art form
instead of hindering new musical creations. In this
context, enabling can only mean to give mashup
creators legal certainty. Since the EU legislator has,
for quite some time now, taken an interest in shaping
copyright law, the EU law dimension is worthwhile
exploring.
Abstract: New tools for editing of digital
images, music and films have opened up new
possibilities to enable wider circles of society to
engage in ’artistic’ activities of different qualities.
User-generated content has produced a plethora of
new forms of artistic expression. One type of user-
generated content is the mashup. Mashups are
compositions that combine existing works (often)
protected by copyright and transform them into new
original creations. The European legislative framework
has not yet reacted to the copyright problems
provoked by mashups. Neither under the US fair use
doctrine, nor under the strict corset of limitations
and exceptions in Art 5 (2)-(3) of the Copyright
Directive (2001/29/EC) have mashups found room to
develop in a safe legal environment. The contribution
analyzes the current European legal framework and
identifies its insufficiencies with regard to enabling
a legal mashup culture. By comparison with the US
fair use approach, in particular the parody defense,
a recent CJEU judgment serves as a comparative
example. Finally, an attempt is made to suggest
solutions for the European legislator, based on the
policy proposals of the EU Commission’s “Digital
Agenda” and more recent policy documents (e.g. “On
Content in the Digital Market”, “Licenses for Europe”).
In this context, a distinction is made between non-
commercial mashup artists and the emerging
commercial mashup scene
The EU’s Trouble with Mashups
2014
173
3
3 The paper focuses on music mashups under the EU
legal regime for copyright. In the absence of much
relevant literature on mashups, relevant US law will
be discussed briey to provide for some guidance to
approach the subject matter from an EU copyright
law perspective.
I. The Object of Scrutiny
4
The scope of this research is limited to music
mashups. While other forms of visual and mixed
mashups exist, an authoritative denition of the term
is missing.4 Mashups based solely on musical works
are a mass-phenomenon that fuels social networks,
and video and music platforms. Quantitatively,
they are by far the most commonly found typology
of mashups; at the same time, they have created
fundamental challenges for (digital) copyright law.5
5
Music mashups constitute a new art form that relies
on combining music from different artists in new
arrangements. These works appear differently, sound
differently, and, when combined, may convey other
messages than the original works. Music mashups
are often supplemented by different forms of visual
support, either by simple photos of the artists whose
songs were used to create the musical digital collage
or, more elaborately, by parts of the corresponding
music videos. Depending on the prociency of the
mashup artist, their works – although it still needs
to be discussed if mashups in general, or only certain
mashups, constitute original works within the
legal meaning of the term ‘work’ under European
copyright law – differ in quality.
6 Mashups can be critical, provocative, ironic, or they
can just reveal a new side of a given work. Be it as
it may in every individual case, mashups as an art
genre are immensely popular. The most viewed
mashups on YouTube have gained more than 58
million views,6 with other mashups still going into
the millions. Mashup artists do not only publish
their works online but also perform them live. One
of the most known mashup artist, Gregg Gillis, who
releases under the pseudonym Girl Talk on the label
Illegal Art, does not only offer his songs for download
for free7 but also tours the world and performs his
mashups live on stage.
7 On his label website the artist does not use the word
‘mashup’ but refers to “samples” and “pop collages”.
The term ‘mashup’, as it is used in this paper, refers to
a work that combines elements of other pre-existing
works to form something new. This means that
mashups rely exclusively on multiple pre-existing
works and do not contain any original material.8
In particular, the author of the new work does not
contribute any element of the new work. DJ Danger
Mouse became famous when he created an entire
album of mashups that exclusively consist of lyrics
of the US rapper Jay-Z’s “The Black Album” and the
ninth Beatles album, which became known as “The
White Album”. He called his new production “The
Grey Album”. Gillis re-used elements of immensely
popular musical works to create something that has
been praised by music critics and is still circulated on
the Internet today.9 One might therefore rightfully
argue that mashups are recycled
10
works with the
advantage that the original works of art continue to
exist and have not been destroyed in the process of
creating a new work.
II. An attempt of a definition
8
As a legal denition, the term ‘mashup’ does not
exist. This paper concentrates on a narrow working
denition of music mashups which, unlike many
other works referred to as mashups,11 combine
pre-existing works by way of reproduction, one-
to-one-copying, and must be distinguished from
other creations that merely incorporate parts of
works from other authors into original creations.
Music mashups can be distinguished from remixes
which mainly re-arrange existing individual songs
and, possibly, add new material, as well as cover
songs, which take existing musical compositions
that are then re-recorded and, possibly, altered.
12
What mashups per denition do not include is any
sort of original or new material, but mashups rely
exclusively on existing sound recordings to create
new works. The process of reproducing small or
larger parts of existing recordings is, therefore,
essential to the concept of music mashup. The
samples as the constituting elements of mashups, or
if one will their inspiration, are usually sufciently
long to make the listener recognize the original
work. When combined with visual support by parts
of corresponding music videos, this effect is further
enhanced. There are, however, several subcategories
within the broader category of music mashups,
which do not exclusively use pre-existing material.
13
9 Mashup artists use pre-existing recordings instead
of performing songs themselves. They arrange these
songs not only horizontally or subsequently but also
vertically and simultaneously. Accordingly, mashups
consist of more than one song, as opposed to classic
remixes, and the number of songs in one mashup
can exceed 30 individual works. Finally, it has been
observed that most mashups contain at least one
popular song;
14
the majority of mashups found on the
Internet are composed from songs that have almost
exclusively been released in the recent past.
10 To summarize, music mashups display a number of
criteria that distinguish them from other musical
works that quote or cite other sources. For the
purposes of a working denition, mashups are
constructed exclusively from existing recordings
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