“Mash-up” artists are now allowed to freely use any songs or videos without worry of copyright infringement… If the judge thinks it is funny.
A recent exception applied to UK copyright law came into affect on October 1 that allows “mash-up” artists to use other artists’ materials without the original artists’ consent. There is only one caveat to this exception, however: the judge must think it is funny.
A “mash-up” is when an artist takes the work of another artist and makes a parody of it. This work may be a video, song, book, and so on. The new exception was added to the Copyright, Designs, and Patent Act of 1998. The lawmakers believed this exception would allow mash-up artists to use their creativity freely without worrying about being prosecuted. The old rule required the mash-up artist to first seek approval from the original artist before she could use the work in the mash-up production. However, the new rule leaves this decision up to the sense of humor of the ruling judge.
The old rule appears to have a very clear-cut answer on whether a copyright infringement has occurred: If the original artist says no, the mash-up artist may not use the material. Now, though, the decision will be left to judges with varying sense of humors. One judge might think a mash-up is creative and humorous, while another may think the work is distasteful. It seems as if creating a test for this facet of law would be almost practically impossible due to the arbitrary nature of the question at hand. Also, some are worried the judges are out of touch with what us humorous these days. These people call for the judges to possibly hire people from younger generations to help judge if the material is funny. This measure seems fairly arbitrary, as well though, because people all have different ideas of what is funny, not matter if they are from the same generation or not.
One must wonder if this new exception will cause more potential litigation over mash-ups infringing copyrighted work?
Since mash-up artist no longer have to ask the original artist for permission, it seems as if more mash-up materials will now be released. With more mash-up materials being released without the original artist’s consent, it seems like more of these artists would challenge the mash-up for being copyright infringement if they thought the mash-up was distasteful.
This new exception still does not change the libel and slander laws of the UK, so hopefully this will keep the litigation numbers low. If mash-up artists know they have to do their work in good taste and not disrespect the original artists’ work to not violate these laws still in place, maybe this will keep the original artists satisfied. Also, the original work still may not be used on its face completely unaltered, so it will be preserved in its original form.
Only time will tell if allowing leniency of mash-up artist creativity will be worth the potential litigation and arbitrary court rulings. Maybe the UK courts will surprise us all and come up with a valuable test to determine what is funny and what is not? This seems highly unlikely, though.