Mashups, Memes, Remixes & Copyright

Transcription

1 INFORMATION SHEET G118v04 December 2014 Mashups, Memes, Remixes & Copyright This information sheet gives a brief overview of the relevant copyright issues for people using other people s audio, images, video and text to create new works. The purpose of this information sheet is to give general introductory information about copyright. If you need to know how the law applies in a particular situation, please seek advice from a lawyer. Key points You are likely to need permission to use copyright-protected material created by others if an exception doesn t apply. You don t need permission to use copyright-protected material created by others if you can rely on a fair dealing exception. You don t need permission to use material created by others if copyright has expired. What are mashups, memes and remixes? Mashups, memes and remixes are created by combining pre-existing material with new or other pre-existing material to create a new work. This could include: Audio: for example, the vocal line from one song added to the instrumental track of another song to create a new piece of music; Video: for example, different scenes from different films cut together to create a new scene with a different meaning; Text: for example, a zombie story being integrated into the text of a famous novel; Images: for example, adding your own text to someone else s photograph as part of a meme. Advances in audio, video and image editing software have made these new works easier to create. Similarly, the popularity of social media platforms makes it much easier for people to upload, stream, distribute and share their new creations. Copyright plays a role because you may need the copyright owner s permission if you are incorporating any copyright protected material into your new creations. Using material created by others Copyright protects most of the material you will be using including: Music (e.g. the notes, musical phrases, melodies and other elements that make up a song) Sound Recordings (e.g. recordings of music in MP3s or CDs)

2 2 Film and video (e.g. commercially released movies, TV shows and animations) Broadcasts (TV and radio material) Text (e.g., a novel, short story or lyrics) Images (e.g. photographs, artworks or illustrations) Copyright protects each of these separately and one item may contain multiple types of copyright material. For example, an MP3 of a song contains the music, lyrics and sound recording within the one file but each of these is separately protected by copyright. When you don t need permission to use material Using less than a substantial part If you re not using a substantial part of the source material, then you don t need permission. The law does not specify how much a substantial part is; rather, it comes down to whether an important, distinctive, or essential part of the source material is being used. There are no guidelines on how much can be used the test is a qualitative test rather than a quantitative one. You may have heard that it s okay to use 5% or 10% of something without permission, but this is not the case. As a result, it may be tricky to work out whether you are using a substantial part. In practical terms, if you can recognise the source material in the new work, then you are probably using a substantial part. On the other hand, if you chop up audio and video into very small or almost indiscernible or unidentifiable pieces and remix or mash up these, then you may not be using a substantial part. In one famous copyright case, a few bars of one song used in another was found to be a substantial part. Public domain material You don t need permission to use material in which copyright has expired (often referred to as public domain material). The term of copyright protection differs for different types of material films, music, images, text and sound recordings. For detailed information about how long copyright lasts for particular types of material, see our information sheet Duration of Copyright. There are two factors to keep in mind: material may have expired in Australia but not in other countries, so even if copyright has expired under Australian law, you may need permission to use the material if your mashup is being distributed outside Australia or can be accessed from overseas; and one item may contain multiple copyright works (for example, an MP3 may contain (a) music (b) lyrics and (c) a recording of those music and lyrics, and copyright may have expired in the music and lyrics, but not yet in the sound recording) so permission could still be needed for some, but not all the elements of the source material. An example of using public domain material is the recent series of literary mashup novels that have incorporated elements of vampire and zombie genres into well-known Jane Austen novels. The Austen novels are out of copyright and there was no copyright issue in using this as source material for the new work.

3 3 Open licensed material Material released under flexible or open licences may be used without permission. When releasing material under an open or flexible licence, the copyright owner is often indicating that he or she is happy for that material to be used in certain ways without permission. Creative Commons is an example of such licences. The copyright owner may attach different conditions to the Creative Commons licence that signify the ways in which that material may be used. There are four basic Creative Commons conditions: BY, ND, SA and NC. If you want to use something without first obtaining permission, use material that has been licensed CC-BY (attribution only), as this type of material can be edited, chopped up and remixed and generally mashed up without permission as long as the material s creator and location are acknowledged. If you want to use Creative Commons material in your mashup, meme or remix, avoid using material that has been licensed CC-ND (which prohibits making derivative works of that material). You should also consider the other licence conditions like SA (which require you to licence derivative works with the same Creative Commons licence as the source material) and NC (which limits use of the source material in commercial contexts). A number of search engines, platforms and sites allow you to filter search results so that only public domain or open-licensed material comes up. This can be an easy way to find material that you can use without needing further permission. For more information, see our information sheet Creative Commons Licences. Fair Dealing Australian copyright law has several fair dealing exceptions that allow you to use material protected by copyright without needing the copyright owner s permission. The fair dealing exceptions permit fair dealing with copyright material for specific purposes including research or study, parody or satire and criticism or review. In practice, in creating mashups, memes & remixes it is likely that the most relevant fair dealing purpose will be parody or satire. This means that you may not need permission to use audio, images, video and text source material if there is a parodical or satirical basis to making your mashup. You will need to take a case-by-case approach and think about whether you fit within the parody or satire fair dealing exception each time you copy or deal with material. Questions to ask include: a) Am I making a genuine parody or satire of the material? b) Is there any commercial element to the creation and distribution of my mashups? c) Would the copyright owner usually license the way in which I m using the material? If your answer is yes to (a) and no to (b) and (c) - then it s more likely that fair dealing will apply. For more information see our information sheets Parodies, Satire & Jokes and Fair Dealing What Can I Use Without Permission. When you do need permission to use material As discussed above, you will need permission to use a substantial part of copyright protected material unless an exception (such as fair dealing for parody or satire) applies.

4 4 Unlike some other countries, Australian copyright law doesn t contain any provisions allowing fair use or transformative use of material without permission. To use material without permission, you need to fit your use within one of the fair dealing provisions. This means that if after considering all of the above you do need permission, you should approach the copyright owner to obtain a licence to use the material. If the copyright owner is a commercial organisation, there may be an established copyright clearance process in place. This may include standard forms and fees. If an individual copyright owner manages the relevant rights, you may have to directly deal with the copyright owner and formalise the agreement between yourselves. For more information on when you require permission, see our information sheets Permission: do I need it?. For more information on the process of obtaining permissions and clearances, see our information sheet Permission: How to Get It. Who owns copyright? Different ownership rules apply to different types of material. The general rules about ownership for the copyright material most commonly used in mashups, memes and remixes are as follows: Films copyright in most commercially released films will be owned by the studio that produced it however, in some cases, a production company may own the rights. Copyright in personal/home videos is likely to be owned by the person that arranged for the filming to take place or possibly the person that shot the film; Sound recordings copyright will be owned by the person that paid for the sound recording to be created. For most commercially released music, this will be the record company or artist; Text, images and music - the person that created the material or the publisher is usually the copyright owner; and Broadcasts the TV or radio station that broadcast the material is generally the copyright owner. For more detailed information, see our information sheet Ownership of Copyright. Moral rights In addition to copyright rights, creators of music, images, video and text have moral rights in relation to their works. Moral rights do not apply to sound recordings and only apply to films and material included in films if the film was made on or after 21 d2000. These include the right to: 1. be attributed as the creator of the material; 2. take action if their work is falsely attributed as someone else s work; and 3. take action if their material is distorted or treated in a way that is prejudicial to their honour or reputation. You don t need to worry about moral rights if: it is reasonable in the circumstances not to although this is less likely to be the case with most mashups, memes and remixes as arguably, it is reasonable to attribute the creators of the source material; or

5 5 you have the author s consent not to. In the context of mashups, memes and remixes, the first two moral rights are fairly straightforward. It is the moral right relating to derogatory treatment of the source material that may be relevant when remixing, re-cutting or otherwise using material. The threshold for this is fairly high and the creator can t raise an issue if they are merely unhappy with the way in which their work was used. Fair dealing may be a defence to a claim of infringement of copyright, but will not necessarily cover you for any moral rights issues raised by your use of copyright material. For more information, see our information sheet Moral Rights. Uploading mashups, memes and remixes Creators of mashups, memes and remixes often want to upload their work online on social media platforms such as YouTube, Facebook, Twitter, Vimeo, Soundcloud, Scribd, or Wordpress for viewing or listening by a wider audience. Most of these platforms have terms and conditions that you must agree to before uploading material. Be sure to check these to see what a particular site s policy is about uploading material that incorporates third party material. Some have licences in place with rightsholders of music, film and other material that enable third party material to be uploaded, whereas others may only allow users to upload original material that doesn t incorporate any material created by someone else. Issues relating to permission for online use of mashups, memes and remixes should be assessed on a case-by-case basis. If you are at the stage where there is a potential commercial market for your mashup, meme or remix, then it is important to seek private legal advice as to whether you need a clearance or not. Common questions I uploaded a remix of several commercial songs to YouTube. YouTube took it down. Why is it that some people seem to be able to put this type of material on YouTube but others can t? YouTube operates under a system whereby copyright owners can submit takedown notices if they find unauthorised uses of their material on YouTube. However, YouTube also gives copyright owners an option where they can choose to allow the material to stay on the platform (often in exchange for eligibility to earn revenue from the material). I created a meme of several old photos in which copyright has expired. Do I own copyright in my creation? If you have created a new image that is sufficiently original, then the image is likely to be protected by copyright as a new artistic work. This means that technically, others will need your permission to use your image. However, given that copyright has expired in the photos, other people could also choose to use those same photos in creating their own memes. Can I rely on fair use to use other people s material in my mashup? Fair use is an exception that applies under US law. In Australia we have fair dealing exceptions that are tied to particular purposes. You ll need to see whether what you want to do falls within one of the purposes covered by fair dealing (such as parody or satire), and be able to justify that your use is fair.

6 6 It is also important to keep in mind that not all uses of third party material in mashups will be covered by fair use under US law. Further information For further information about copyright, and our other publications and seminar program, see our website. If you meet our eligibility guidelines, a Copyright Council lawyer may be able to give you free preliminary legal advice about an issue that is not addressed in an information sheet. This service is primarily for professional creators and arts organisations but is also available to staff of educational institutions and libraries. For information about the service, see /legal-advice. Reproducing this information sheet Our information sheets are regularly updated - please check our website to ensure you are accessing the most current version. Should you wish to use this information sheet for any purpose other than your reference, please contact us for assistance. About Us The Australian Copyright Council is an independent, non-profit organisation. Founded in 1968, we represent the peak bodies for professional artists and content creators working in Australia s creative industries and Australia s major copyright collecting societies. We are advocates for the contribution of creators to Australia s culture and economy; the importance of copyright for the common good. We work to promote understanding of copyright law and its application, lobby for appropriate law reform and foster collaboration between content creators and consumers. We provide easily accessible and affordable practical, user-friendly information, legal advice, education and forums on Australian copyright law for content creators and consumers. The Australian Copyright Council has been assisted by the Australian Government through the Australia Council, its arts funding and advisory body. Australian Copyright Council 2014