Expressive Manipulation of Copyrighted Media: End-Product Analysis vs. Component Analysis

UPDATE 5/26: Sorry for the enormous delay. Hoping to get my rewrite up soon. I'm done commenting though.

Background and Purpose of the Paper

Increasingly, artists chose to manipulate and combine copyrighted media to create artistic expressions. An obvious example of this is the musical “mash-up,” popularized by artists such as DJ Earworm and Girl Talk. In a “mash-up,” an artist extracts clips from various songs, often altering them through tempo changes, pitch-bending or other techniques, and arranges and layers these clips together to form a new track. Similar techniques can be applied to video, to combinations of audio and video, or to any other combination of cultural artifacts.

The question arises: moving forward, how should the law analyze these creations when determining if they violate intellectual property rights? There are two ways of doing this: (1)traditional, “component” analysis and (2)“end-product” analysis. I will describe these two analyses, and argue for why end-product analysis is superior.

As I mentioned in my earlier note, it seems to me that where "component analysis" comes in is in the initial stage of showing a prima facie copyright infringement by the copyright holders -- that is, they need only show that one of their exclusive rights from 17 U.S.C s106 has been infringed (and Bridgeport(2005) eliminated the de minimis exception). The mashup creator would then be able to try and claim fair use (17 U.S.C. s107), which is where "end-product analysis" comes into play. I think that your thesis could be strengthened by focusing on "end-product analysis" and in particular, delving deeper into the applicability of fair use to mash-ups.

Component Analysis

This is the traditional way of analyzing an artistic creation to determine whether it contains an intellectual property rights violation. In “component” analysis, a creation is examined to determine whether it contains components that are owned by another as intellectual property, and whether these components are used with or without permission from the owner. Continuing with the example of the “mash-up”: if a mash-up by DJ Earworm manipulates and “mashes” together components from four individual copyrighted tracks, then, assuming DJ Earworm has not obtained permission from any of the copyright holders, this mash-up violates the intellectual property rights of the copyright holders for each of those tracks.

End-Product Analysis

This is a fundamentally different way of analyzing an artistic creation to determine whether it contains an intellectual property rights violation. In “end-product” analysis, the question is not whether a work contains copyrighted material (in a formalistic sense.) Rather, the analysis is: viewed as a whole, has this work sufficiently manipulated its ingredients to create a new artistic expression, distinct from the copyrighted work?

This is where I think a more direct engagement with the fair use doctrine would benefit your paper. You appear to indirectly allude to the concept of the "transformativeness" of the work here (Pierre Leval, Toward a Fair Use Standard).

To go back to the mash-up example, if Girl Talk - through the skillful and artistic manipulation of various copyrighted media - creates a track which is greater than the sum of its parts, and which is a unique artistic product, then Girl Talk has not violated any intellectual property rights through the creation of that track.

Your paper can be strengthened by focusing exclusively on the legality of the musical mash-up instead of on the general manipulation of copyrighted media. Open with the musical mash-up in the introduction. Then, there will be no need to use phrases like "continuing with the example of the mash-up" or "to go back to the mash-up example," which are a little choppy.

Why End-Product Analysis is Superior

Today, we are deluged by cultural artifacts to the point where they have become part of a vast, shared landscape. Where technology makes it easy to manipulate these artifacts in order to forge new artworks through manipulation, it only makes sense to use "end-product analysis." Such an analysis allows copyright holders to maintain their rights, but also makes it so that those rights will only be extended as far as is logically sane. That is, copyright will protect the actual intellectual creation which one produces, but will extend no farther. If an artist sufficiently manipulates copyrighted work to create a unique artistic expression, then it is unjust to curtail the production of that expression through copyright law that operates under the traditional, formalistic, “component-based” analysis. Today, where the “culture-sphere” that we live in is a constant and endless bombardment of copyrighted media, art that manipulates these copyrighted products to create unique individual expressions and reactions is especially valuable, arguably more valuable today than a hundred or fifty years ago.

Why "arguably more valuable today"?

Moreover, I can offer personal testimony that a skillfully-done mash-up (especially with an accompanying well-done music video) can offer new ideas and musical insights that could not have been easily seen by listening to the individual tracks themselves.

This personal tidbit feels a bit out of place and doesn't lend much support to your argument (if you want to explain the personal significance of this issue, I would instead put it in your introduction).

Finally, I doubt that such a shift in interpretation would necessarily violate the Takings Clause of the Constitution, as a shift to end-product analysis could be cast as only clarifying the proper extent to which one's intellectual property extends, rather than an outright taking of intellectual property from its current owners.

I don't really see a takings issue with using end-products analysis, so I find it strange you use the word "necessarily" -- as if to imply that the takings argument here is a particularly strong/credible one. I could be wrong though.

Overall, I think the essay could be tightened to avoid repetition. Also, be careful of conclusory statements. You state that a mash-up is a new artistic expression, but you can strengthen your case by elaborating on what makes it new -- what sort of new "ideas and musical insights" do mash-ups offer, for example? And just because technology makes it easier to manipulate copyrighted media, does it necessarily follow that "it only makes sense to use 'end-product analysis'?" I think you would have an easier time trying to argue your case using the fair use framework, which I will try to do in my rewrite.

-- ChristopherCrismanCox - 17 Apr 2010