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.
Adapting Copyright for the Mashup Generation
- Peter S. Menell
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- Koret Professor of Law and Director, Berkeley Center for Law & Technology, University of California at Berkeley, School of Law. I thank my sons Dylan and Noah, Peter DiCola, Kembrew McLeod, Gregg Gillis, DJ Guzie, and DJ Solarz for inspiration and background about mashup culture. I also thank Mark Avsec, Jane Ginsburg, Eric Goldman, Molly Van Houweling, David Nimmer, Dotan Oliar, Sean Pager, and participants at the Berkeley Law IP Scholarship Seminar, Berkeley Law Faculty Seminar, and Fifth Annual Internet Law Work‐in‐Progress Conference for comments.