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Mashed-Up Music
An unnamed reader submits: "The New York Times is running this article (also available here) about "mash-ups:" songs created by digitally synchronizing instrumental tracks with vocal tracks from two (or more) existing songs. Often the source songs are wildly disparate, and the result is frequently better sounding than you might first expect. Who knew that Christina Aguilera mixes well with The Strokes or that Nirvana and Destiny's Child make a good combo?" This is an interesting answer to arguments that online music sharing is nothing but theft.
How is it theft?
With "traditional" filesharing, you can argue that if you download Christina whats-her-name's latest album then you're not going to buy it and therefore Miss Aguilera is losing out on the 15 cents that the RIAA will begrudgingly pay her.
But the record companies are never going to release Christina Aguilera mixed with The Strokes, so who is losing anything? For there to be a theft, there has to be a loss.
No, it's illegal distribution of a copyrighted work. Theft involves the removal of property from its owner. The lay term "intellectual property" isn't legally the same sort of thing as material property.
Leave aside wether it is theft or not, let me indicate why this activity is illegal.
Copyright. Copyright is a right given to the author to allow them to control how thier work is used, with the intention that (but not restricted to) the rights granted to them will promote production of further works.
There means that, if you wish to use an authors work , then you have to get thier permission. They can say no. It's that simple. Consider the GPL, which relies on copyright. It is not acceptable for a company to take GPL code, add a few bits, and then sell it on. The same applies to musical works.
Granted, there is the clause of fair use. However, fair use is inherently limited, either in scope (to a few friends prehaps), or in extent (a 5 second sample, or a shot quote from a book). With my understanding, fair use doesn _not_ extend to the works outlined above.
(Consider also, that there is more than just the perfromer, there is also the writer to be considered, in terms of claims to copyright).
Okay, let's follow this logic using the print media.
I take Stephen King's Carrie and Tom Clancy's The Hunt for Red October, and and I "mash" it together so that it is arguably a new and different work.
The originals haven't been touched (literally, Stephen and Tom have the master manuscripts), and "clean" originals can still be published, so no plagiarism has taken place.
But has plagiarism occurred? I argue yes, and the definition of plagiarism certainly helps my argument: to commit literary theft : present as new and original an idea or product derived from an existing source.
Now, I submit that, if borrowing text is theft, then so is borrowing musical samples.
We can quibble over definitions, and the greater need of society, and your rights to do what you want with anything that you have purchased, but you are still a thief if you deprive me of anything that is rightfully mine, and this includes depriving me of profits from any of my creations.
If Stephen King and Tom Clancy want to have their works "mashed" together, then it is their right to decide whether this occurs, and their right to the resultant profits.
Ditto musical creations and musical artists.
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