Copyright Industry vs Free Culture

Digital Technology has effected how we respond to art, defining new forms of original expression. Hip Hop, mash ups and fan videos are all examples of how technology has been used to create new genres.

A defining characteristic of Hip Hop and Rap is sampling, breaking the composers’, the recording and the performers copyright. Even using a single drumbeat will have broken the copyright of the original recording as well as the performer of that instrument. A Video Mash–up can be seen as a video equivalent of audio sampling. As with Fan Videos, they tend to feature known copyright works, breaking copyright on the films used. The potential marketing that could arise from a video distributed virally amongst friends could potentially outweigh any market loss.

The Hitler ‘Downfall’ Meme has achieved a cult following, both for the spoofs and for the original film by featuring a 3-minute segment of the film, unaltered with new and inappropriate sub titles. There are a large number of variations, with ‘Hitler getting banned from Xbox’ receiving around 3.5million hits. Since the idea is parody, there would be a ‘Fair Use’ argument for its use. Indeed, the parody about the takedown notices has currently survived due to it actually being a comment and criticism on the situation (Rohrer 2010).

There are arguments to say this is legal under fair use. Each interpretation does transform the meaning of the work and a three minute section of a three hour film can be considered proportional. No one has yet marketed these memes or shown they are damaging the market for the original film. However, as the company explains, they want them removed on the principle that they have the moral rights over their own creation. (Roxborough 2010).

While each of these examples breaks copyright, it also creates a new piece of work which can be classed as an original expression. Under the law, the original copyright still exists – none of these examples is claiming to be the owner of the original work, which can still be distributed to the potential for new markets, created by its new use. There is a clear need for a definitive judgement on this type of work.

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