A remix is
|“||the process of users taking content or data and modifying it to create something new. It generally requires that the original content be in the public domain or be released under a sufficiently permissive form of copyright license, such as Creative Commons.||”|
Often, these works are part of a growing trend of 'user-generated content' that has become a hallmark of today's Internet, including sites like YouTube. Advances in digital technology have made remixing existing works easier and cheaper than ever before and provided greater opportunities for enhanced creativity. But because remixes typically rely on copyrighted works as source material — often using portions of multiple works — they can raise daunting licensing issues.
Under current U.S. law, some remixes may qualify as a fair use of the copyrighted material they draw on. They are likely to be considered transformative, taking parts of the original work and altering it with new meaning or purpose, so the key questions will ordinarily be whether they are commercial, how much they use from any given work, and the extent to which they can serve as a substitute in the market. A body of precedent already exists with respect to fair use claims for quoting the works of others in new works of art. One line of cases involves parody; others deal with 'appropriation art.' The results have turned in large part on the extent to which the second artist was either transforming or commenting on the source. Music sampling, however, has generally not been excused as fair use, and continues to be the subject of litigation.
In some contexts, licensing mechanisms have been developed as a less risky alternative to relying on fair use. Particularly promising are those that rely on commercial intermediaries to enable remixes by their individual users. One model is YouTube's Content ID system, which allows users to post remixes that may be monetized by the relevant right holders. Under this system, however, it is the right holder's decision whether to allow the posting. Another tool is the Creative Commons license . . . through which creators can authorize remixes of their works subject to certain provisos. Other online licensing mechanisms may also be available as alternatives for licensing specific content quickly and easily.
In addition, best practices and industry-specific guidelines have been developed to help artists looking to use existing works make informed choices, including a code of best practices specifically for creating online videos.
Despite these alternatives, a considerable area of legal uncertainty remains. The question is whether the creation of remixes is being unacceptably impeded. There is today a healthy level of production, but clearer legal options might result in even more valuable creativity. Is there a need for new approaches to smooth the path for remixes, and if so, are there efficient ways that right holders can be compensated for this form of value where fair use does not apply? Can more widespread implementation of intermediary licensing play a constructive role? Should solutions such as microlicensing to individual consumers, a compulsory license, or a specific exception be considered? Are any of these alternatives preferable to the status quo, which includes widespread reliance on uncompensated fair uses? The Task Force will convene a series of roundtables to examine this issue."
"Remixes make valuable contributions to society in providing expressive, political, and entertainment content. It is important that the copyright framework continues to allow the broad range of remixes to thrive, ensuring that a vibrant fair use space coexists with effective licensing structures. The Task Force concludes that the record has not established a need to amend existing law to create a specific exception or a compulsory license for remix uses. We have several recommendations that would make it easier for remixers to understand when a use is fair and to obtain licenses when they wish to do so. Specifically, the Task Force recommends pursuing three goals:
- The development of negotiated guidelines providing greater clarity as to the application of fair use to remixes;
- Expanding the availability of a wider variety of voluntary licensing options; and
- Increasing educational efforts aimed at broadening an understanding of fair use."
- ↑ Copyright Policy, Creativity, and Innovation in the Digital Economy, at 28.
- ↑ Government 2.0 Taskforce, Engage: Getting on with Government 2.0, App. C: Glossary (full-text).
- ↑ The remix itself, assuming a modicum of creativity, should qualify as a derivative work protected by copyright law, but the copyright will not extend to any part in which the preexisting material is used unlawfully. 17 U.S.C. §103(a).
- ↑ Whether, and to what extent, a new use is transformative "is not absolutely necessary for a finding of fair use," but "the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). Ultimately, "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Id.
- ↑ See id.; see also Brownmark Films, LLC v. Comedy Partners, 800 F.Supp.2d 991, 1000-02 (E.D. Wis. 2011); Bourne Co. v. Twentieth Century Fox Film Corp., 602 F.Supp.2d 499, 508-11 (S.D.N.Y. 2009).
- ↑ White Paper on Remixes, First Sale, and Statutory Damages, at 4.
- "Overview" section: "Copyright Policy, Creativity, and Innovation in the Digital Economy, at 28-29."