Audio Mash-Ups and Fair Use: The Nature of the Genre, Recontextualization, and the Degree of Transformation

S. Todd Herreman
Southern Illinois University

Abstract

Is the very nature of the genre of audio mash-ups sufficiently transformative to inherently qualify as fair use of protected music and sound recordings? Or must each instance be analyzed on a case-by-case basis, as the Supreme Court held in determining if a commercial parody would qualify for a fair use defense? If so, is it a quantitative or qualitative analysis, or both? The theory of recontextualization suggests that such use outside the original intent of the creator exceeds the threshold of transformation required for a fair use claim. On the other side, the Sixth Circuit’s literal interpretation of the statute held that any unauthorized sampling of a protected sound recording is infringing. The tension between these opposing perspectives yields a vast landscape of uncertainty, leaving the innovator either risking liability or chilling their creativity (potentially the very essence of what the Constitution intended to encourage). This paper examines possible applications of fair use in the context of audio mash-ups. To that end, Girl Talk’s “Feed The Animals” mash-up album (illegal art, 2008), which contains over 300 unauthorized samples, will serve as the primary example for this inquiry. In addition, this paper will consider the likely outcome should an infringement claim(s) be made against Girl Talk and litigated. Additional infringement issues will be addressed, such as other possible defenses and vicarious and contributory liability by the label distributing the content, the independent distributor, and the manufacturer that duplicated the CD.

Keywords: mash-up, fair use, sound recordings, commercial parody, recontextualization, digital sampling, Girl Talk, Feed The Animals, illegal art, copyright infringement, music industry, recording industry

Herreman, S. Todd. “Audio Mash-Ups and Fair Use: The Nature of the Genre, Recontextualization, and the Degree of Transformation.” Journal of the Music and Entertainment Industry Educators Association 9, no. 1 (2009): 13-40. https://doi.org/10.25101/9.1

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