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

UPDATE: Alright, I'm going to edit your paper now and then write my own version at the end, hopefully all by Friday night.

Hey Christopher -

Before I plunge into extensive editing or commenting (that may not be for another few days), I just wanted to share my first impressions in case you wanted to do more revising. I did my moot court brief on fair use, so that jumped to my mind as I read through this, and I was wondering why you didn't mention it. I'm far from being an expert on the subject, but 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 (they need only show that one of their exclusive rights from 17 U.S.C s106 has been infringed). The mashup creator should then be able to try and claim fair use (17 U.S.C. s107) - the biggest two things they need to show is that the new work is transformative (different character/different function, provides different sort of social benefit, etc.) and that it poses no harm to the market of the original song or of its derivatives (not a market substitute) - and in my mind, that's where "end-product analysis" comes in.

Anyway, that's how this issue is framed in my mind ("component analysis" = prima facie infringement stage, "end-product analysis" = fair use stage). Let me know if I'm mischaracterizing the issue. If you think my framing is accurate though, I think your essay would benefit from delving deeper into the fair use issue (perhaps even argue for changes in the fair use doctrine in light of the Internet age). Also, if you want to share any articles or cases on this particular issue, I'd be happy to take a look. Be back later.

-- Grace

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.

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? 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.

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. 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. 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.

-- ChristopherCrismanCox - 17 Apr 2010