Last Friday, IP Osgoode hosted a panel of copyright thinkers at Osgoode Entertainment and Sports Law Association’s 11th Annual Entertainment and Sports Law Conference. The panel was entitled “Copyright in the Remix Era”, but if the panelists could agree upon one thing it was that this new era is actually a return to old principles. One panelist, Reuven Ashtar of Borden Ladner Gervais, was able to present examples of derivative works of visual art as far back as the 16th century, which is to say nothing of “oral cultures” where people have long been able to share and build upon each other’s ideas freely.
The panel included:
- Reuven Ashtar of Borden Ladner Gervais
- Marcus Bornfreund of Creative Commons
- Casey Chisick of Cassels Brock
- Brett Gaylor, a Canadian film director from Montreal
All the panelists opened with a presentation, with the most well produced one coming from documentarian Brett Gaylor. In a clip from his film “Rip!: A Remix Manifesto”, he played an audio clip of an interview between bluesman Muddy Waters and American folk musicologist Alan Lomax from the early 20th century. Waters revealed that many of the songs he performed essentially had no author, because these were spiritual songs that had become common knowledge long ago.
The presentations from Gaylor and Ashtar both referred to one specific song to illustrate how culture can build upon the past. The story of this song may actually be more than a century old, beginning with a spiritual song called “This May Be The Last Time”. This song was a spiritual not unlike other “authorless” songs that Muddy Waters spoke of, and The Staple Singers recorded a version of this classic in 1955. In the 1960s, American blues music hit a critical mass among British musicians, and the song’s chorus was appropriated by the Rolling Stones in their song “The Last Time”. Andrew Oldham, the manager of The Rolling Stones, turned “The Last Time” into an orchestral version played by London session musicians. Thirty years later, The Verve sampled a few seconds of the orchestra for their hit. This story is a powerful example of how culture builds upon the past, and how an entirely new work can emerge from past work over time. This was a theme that all panelists affirmed, in spite of their different viewpoints.
Of course, the panelists did not find time to mention the biggest irony of this song’s lineage. ABKCO Records, the copyright holder in the Rolling Stones song, sued The Verve for copyright infringement. In the end, the copyright in “Bittersweet Symphony” reverted to ABKCO, with the Verve’s song being credited to the Rolling Stones. Not only did the Verve not make a penny from their hit, neither did the Staple Singers. (Nor any of the previous unnamed authors.) If this does not raise legitimate doubts about whether copyright law ensures a proportional reward to authors based on their creative contributions, then perhaps we have forgotten the original purpose of copyright to begin with.
This example also illustrates the challenge of gaining copyright protection for a derivative work of art. Not only is the cost of licensing the older work a major obstacle, but in many cases, it becomes difficult to track a song’s “true” author, and indeed many songs have multiple authors with varying contributions. By the time a song has evolved over a century, it may be difficult or even impossible to get permission from all the relevant stakeholders. Thus, many remixes remain uncommercialized if only out of sheer inconvenience. The few artists making a living from remixes either have immense cultural cache and bargaining power, or distribute remixes of older works for free (legally or not) in order to attract a following.
It would probably be unfair for a remix artist to enjoy all the profits of their work, with no compensation to the artists they took from. But that many remixes become popular without anyone seeing any profit should illustrate a lost opportunity. A fair economic model for the remix may not require a new copyright regime. It may be enough for large copyright holders to create an accessible but fair licensing scheme that makes it easy to obtain permission to create a remix, and only claims a percentage of profits should a remix become commercially successful.