“They’re creepy and they’re kooky” and They’re Copyrighted: How Copyright Is Used to Dampen the (Re-)Imagination

Steve Collins

Abstract


Introduction

The mediascape abounds with examples of re-imaginings, works that re-interpret existing media texts (many of which have been the focus of lawsuits). Alice Randall’s The Wind Done Gone (2001), re-imagines the narrative of Margaret Mitchell’s Gone with the Wind (1936) to tell the story from the perspective of Cynara, one of Scarlett O’Hara’s slaves. Gregg Gillis, a.k.a. Girl Talk, re-imagines the music of the ‘Top 40’ bringing together Elton John and Notorious B.I.G. on ‘Smash Your Head’ (2006). Dream Country (1991), the third Sandman graphic novel, sees author Neil Gaiman re-imagine A Midsummer Night’s Dream as a creative partnership between Shakespeare and Dream (a cosmic entity charged with governing the realm of dreams). Media frequently builds on existing media, and in more overt cases, media is directly made from media; this is especially true of user-generated content, in which media is frequently sampled, mashed-up and remixed to shed new light and create new meaning. The freedom to re-imagine media texts, however, is problematised by copyright law, which confers exclusive rights to make copies and derivatives. That contemporary copyright laws can stifle creativity and innovation is a mantra that was repeated throughout the late 1990s and early 2000s by proponents of the free culture movement such as Lawrence Lessig, Siva Vaidyanathan and Kembrew McLeod. This paper questions whether these critiques are still valid through the deployment of recent examples including Robin Thicke’s ‘Blurred Lines’ and Melissa Hunter’s web series, ‘Adult Wednesday Addams’. There is a focus herein on the copyright regime of the US as many of the key global players in the content industries are based there, a factor that exerts considerable influence over how the rest of the world can interact (or not) with copyrighted works.

The Benefits of a Re-imagination

In the copyright discourse, re-imaginings are typically referred to as transformative works; works that build on and supersede the original. Transformative works create and uncover meaning and values by disrupting the barriers between diverse histories, traditions and genres to comment, parody, bolster, undermine and emphasise the cultural values of past, present and future. Existing works can find themselves re-presented in ways never expressed, nor perhaps intended or explored by the original authors, such are the cultural lives of intellectual properties (Coombe). Derivative works are always the intellectual progeny of a parent work but the legal understanding of that relationship can be problematic.

Transformation of existing works is by no means a recent phenomenon and some argue it is a fundamental part of creativity (Lessig 24). Digital technologies make it relatively easy to appropriate, remix and distribute, leading some commentators to claim that we live in a remix culture. Nicholas Diakopoulos et al. suggest that “Remix culture refers to a society that encourages derivative works by combining or modifying existing media” (1). Similarly, Negativland state that “free appropriation is inevitable when a population bombarded with electronic media meets the hardware that encourages them to capture it” (251). Sue Morris argues that digital technology enables and even promotes the appropriation of existing works. Appropriating and re-imagining existing media is a method for casting a critical eye over society to reveal “contested issues and deep fissures”, something which Neil Netanel argues is essential to a democratic civil society (“Copyright in a Democratic Civil Society” 351). Nicolas Suzor lauds the “significant benefits arising from transformative use, including the enhanced availability of diverse and decentralised speech and the freedom of individuals to express themselves, but also including the social benefits that come from deconstructing the media saturated environment we inhabit, and the benefits of not having such a large portion of that environment off-limits to creative expression” (24).

Not all derivative works, however, are charged with such critical civic purpose. Sequels, spin-offs, crossovers and migrations into alternative platforms and territories can be highly lucrative for copyright owners. For example, aside from appearing in an eponymous Marvel Comics title, the superhero character Daredevil has featured in animations, live action film, television series, video games and toy lines. The potential value in horizontal markets moves copyright owners to aggressively protect their intellectual properties and clamp down on unauthorised uses of copyrighted works. J.K. Rowling and Warner Bros. flexed their legal muscles to enjoin various international publishers from producing Harry Potter derivatives such as the anonymously authored Harry Potter and Leopard Walk Up to Dragon (actually a textual mashup of J.R.R. Tolkien’s The Hobbit with characters from Rowling’s series) and Dmitri Yemets’ Tanya Grotter and the Magic Double Bass, in which the titular character is a female apprentice wizard. These, amongst similar derivatives, reimagine both the character and world of Harry Potter in alternative and previously unexplored (and culturally local) contexts and scenarios. Whilst J.K. Rowling and Warner Bros. can be forgiven for protecting their interests against piracy, it is unlikely these derivative titles represented any serious competition in the market. As Tim Wu argues, “in the end, few people are likely to mistake Tanya Grotter for Harry Potter; it is akin to mistaking Burger King for McDonalds.”

Copyright

The process of re-imagining an existing work is likely to encounter the obstacle of copyright law. We tend to talk about copyright in the singular, but it is actually a bundle of rights secured to an author (who may assign any or all of those rights to another individual or company such as publisher or record label). The creative expression of authors is protected by a range of exclusive rights concerning copying, publication and performance, as well as the creation of derivatives from the copyright work. The grant of copyright is a temporary monopoly intended “to provide an incentive to create works that would inform and advance society” (Young 47), and temporary to prevent perpetual monopolies being formed on the backs of such a right. At first blush, it might appear that copyright exists purely to benefit authors, but this reward is a secondary concern. Copyright was established with society as the primary beneficiary for the free expression incentivised by copyright: “The overall social good is served by the progress of science and the useful arts. The progress of science is served by the encouragement of authors. The encouragement of authors is secured by providing them with the incentive of legally secured monopoly profits from the sale and circulation of their works over a limited period of time” (Waldron 286). Thus, copyright’s production and structural functions underpin a democratic civil society (Netanel, “Copyright in a Democratic Civil Society”; Patry, How to Fix Copyright 131).

The limited monopoly provided by copyright offers an incentive for the production of “creative expression on a wide array of political, social, and aesthetic issues, thus bolstering the discursive foundations for democratic culture and civic association” (Netanel 288). Sherman Young summarises copyright as an exercise in balancing competing interests in creative works (46–47), and William Patry describes it as “a privilege granted by governments on everyone’s behalf” (How to Fix Copyright 141). Structurally, copyright fosters free creativity and expression outside of state subsidies, elitism, and patronage. Limitations on copyright such as finite duration (currently the author’s life plus seventy years) and the doctrine of fair use ostensibly ensure that protection is porous enough that works can be freely re-used without objection or obstacle (Netanel, “Copyright in a Democratic Civil Society” 21), but as the remainder of this paper will argue, re-imagining of copyrighted works is far from free of objection or obstacle.

The right to create derivatives of a work is a relatively new addition to the suite of rights enjoyed by copyright owners. Prior to the emergence of copyright, there were no legal measures to prevent the publication of unauthorised derivatives. In fact, Benjamin Kaplan attributes the wave of literary creativity that occurred during the Elizabethan era to “this freedom of appropriation and derivations” (Bettig 105; Kaplan 23–24). The Copyright Act 1790, the first US federal copyright law, only prevented wholesale copying, not derivatives in the form of abridgements or translations. Pamela Samuelson states:

For more than two hundred years after the English Parliament enacted the first modern copyright law, authors in England and the U.S. had no statutory right to control the making or exploitation of derivatives of their works. It was considered fair practice, for example, to translate an author’s work from one language to another, to abridge an existing work as long as the abridgement was itself creatively done, and to reproduce substantial parts of another’s work as long as the second comer made improvements. This was not because judges took a literalist approach to copyright infringement (i.e., regarding only exact or near-exact copying as infringement), but rather because the judges perceived translations, abridgements, and improvements as intellectual products of the second comers’ creativity and because new works that built on pre-existing works contributed to the advancement of knowledge, the very goal of modern copyright law. (1506–507)

In Story v. Holcombe, in 1847, Justice McLean held that abridgment did not interfere with copyright even though the abridged version was a market substitute for the original full-length version. Six years later, Justice Grier found a German translation of Uncle Tom’s Cabin did not infringe Harriet Beecher Stowe’s copyright in her original. Prior to the existence of any copyright regime.

The free re-use of existing works was increasingly curtailed starting with the Copyright Act 1870, which granted authors “the right to dramatize or to translate their own works.” The 1909 Act subsequently introduced a more general suite of derivative rights that informed the current law (Patry, Copyright Law and Practice Volume II 820); section 106(2), Copyright Act 1976 grants copyright owners “the exclusive rights to do and authorize […] derivative works based upon the copyrighted work.” The Act defines “derivative work” as one “based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Drawing such a wide scope of re-uses within the contours of copyright does not leave much opportunity for free expression through re-imagining existing works. 

A Permission Culture

Contemporary copyright law has been critiqued for straying too far from its original remit to incentivise free expression, arguing that the regime is instead overly concerned with emphasising exclusivity as a means for financially exploiting intellectual properties through licensing and monetising schemes (McLeod). Lyman Ray Patterson and Stanley Lindberg argue that the law must accommodate a distinction between use of a work and use of a copyright in that work (66). Netanel (“Copyright in a Democratic Civil Society” 286) argues that contemporary copyright reflects neo-classical economic property theory, in which intellectual property is increasingly treated as rivalrous real property and vehicle for investment. Lessig employs the simpler, but no less troubling, label of “permission culture”, in which every use must be licensed (8). Emanations of such a permission culture are evident in cases such as Bridgeport Music v. Dimension Films in which Judge Guy found that the transformative sampling of just three notes amounted to copyright infringement: “Get a license or do not sample. We do not see this stifling creativity in any significant way” (397).

The next section of this article considers several recent scenarios in which copyright law has stifled free expression and arguably punishes authors for re-imagining existing works.

Blurred Lines

‘Blurred Lines’ is a song by Robin Thicke featuring Pharrell Williams and Clifford Harris (a.k.a. the rapper and producer T.I.) The song raised some controversy upon its release in 2013 due to its misogynistic themes but it also attracted the ire of Marvin Gaye's children who publicly accused songwriters Thicke and Williams of copying their father’s 1977 hit, ‘Got to Give It Up’. Thicke and Williams preemptively applied to the court for a declaratory judgment that no copyright infringement had occurred, as they had only evoked the feel of ‘Got to Give It Up’ and not actually copied any of the protectable elements constituting Gaye’s song. They claimed homage and the evocation of a ‘feel’ not plagiarism, citing that despite certain audible similarities pertaining to the choice of sounds and groove, the two tracks are in different keys, do not share the same melody or chord progression. In a surprise verdict, a jury found Thicke and Williams liable for copyright infringement and awarded damages of $7.3 million. The decision has been heavily criticised by copyright scholars and lawyers. Gordon argued that the jury had been misled on a point of law and DiCola stated “he knew of several entertainment lawyers who witnessed the trial and thought the Gayes would lose.” New York University Law Professor, Christopher Sprigman opines that the verdict gives the impression that, “Marvin Gaye owns a certain style. Did the first impressionist own impressionism? This is not what copyright law is supposed to be” (Fuchs).

Fortunately, decisions of the District Courts are not precedent setting and whilst Thicke and Williams have committed to appeal the verdict (Christman), it is a troubling decision for two main reasons. First, that copyright law has become increasingly stringent with regards to re-use of works and examples of palpable inspiration or influence are apparently now actionable. Even if threats of legal action do not eventuate in court cases, the ‘Blurred Lines’ decision may provide enough uncertainty for copyright owners to leverage a financial shakedown in the form of an out-of-court settlement. This is not an isolated incident, and agreements (known as interpolation rights) for songwriting credits, royalties, and licensing are often quietly negotiated outside of the courtroom in cases where audible similarities and accidental appropriation exist (Aswad). The ‘Blurred Lines’ verdict reportedly influenced Mark Ronson’s decision to err on the side of caution and offer royalty payments to influential artists such as Trinidad James (Christman). According to their respective depositions, Thicke and Williams wanted to evoke the ‘feel’ of Marvin Gaye’s music in their own way and whilst no protectable elements were actually copied, the influence of Marvin Gaye was evident enough for a jury to find infringement. Second, just as troubling as this result is the fact that the current intellectual property climate provides enough confidence for a copyright owner to sue for the appropriation of a feel; as Williams and Thicke’s lawyers put it, “In reality, the Gaye defendants are claiming ownership of an entire genre” (Grow).

Adult Wednesday Addams

“They’re creepy and they’re kooky”, but The Addams Family are also copyrighted, which led to the takedown of comedian Melissa Hunter’s YouTube series, ‘Adult Wednesday Addams’ in April 2015. The series re-imagines original Addams Family character Wednesday Addams as an adult living in Los Angeles amongst “the culture of reality shows, kale smoothies, and hikes to the Hollywood sign” (Lanning). The series has been internationally acclaimed through outlets such as Marie Claire, People, Huffington Post, and BuzzFeed, but the Tee & Charles Addams Foundation, which owns the copyright in the Addams Family issued a takedown notice with which YouTube must comply under the ‘safe harbor’ provisions of the Digital Millennium Copyright Act 1998. Episodes are still available on YouTube via other uploaders, but Hunter’s own channel is no longer carrying the series (which ran for two seasons and two specials, totalling 15 fan-made episodes). 

‘Adult Wednesday Addams’ is a parody, a well-established fair use, but a combination of law and YouTube policy led to its takedown. Under the ‘safe harbor’ provisions of the Digital Millennium Copyright Act (DMCA) YouTube enjoys immunity from the infringing activities of its users providing it responds to copyright owners’ complaints in a timely fashion. Users on the receiving end of a takedown notice are able to challenge it using YouTube’s internal dispute resolution process by claiming fair use (amongst other options). The question of whether a use is fair, however, is referred back to the copyright owner. If an assertion of fair use is refuted, the user’s only options are to give in or seek a declaratory judgment in court, much like Thicke and Williams attempted with ‘Blurred Lines’. As pop-culture hacker Jonathan McIntosh discovered, this can be a drawn out, expensive and exasperating process (Collins 98–99). McIntosh mashed-up scenes culled from the ‘Buffy the Vampire Slayer’ series and ‘Twilight’ film to produce “a visual critique of gender roles and representations in modern pop culture vampire media.” Despite its extensive re-use of copyrighted material, ‘Buffy vs. Edward: Twilight Remixed’ should have been protected as a fair use. This did not stop ‘Twilight’ copyright owner Lionsgate from issuing not one, but two successive takedown notices for unauthorised use of the individual visual and audio tracks ripped from its intellectual property. Several months passed, YouTube’s dispute resolution process exhausted, and a law firm specialising in user-generated content and intellectual property rights was engaged before Lionsgate finally acquiesced and released its claim. Again, these are not isolated incidents. Adi Shankar’s popular Power Rangers fan-film was also on the receiving end of a takedown notice from Saban Entertainment, copyright owners of the Power Rangers franchise.

The cases point to the prevalence of Lessig’s permission culture in which every use must be licensed, even if it is an established and protected fair use. In McIntosh’s case, Lionsgate wanted to leverage the popularity of his mash-up and monetise it by placing advertising on the YouTube clip. (Monetisation is one of the options available to copyright owners when infringement is alleged on videos uploaded to YouTube.) McIntosh refused to allow advertising, relying on fair use to dissuade Lionsgate’s claims of ownership over the mash-up. Reportedly, this underpinned Lionsgate’s decision to seek takedown (Collins 99). The takedown of ‘Adult Wednesday Addams’ occurred within a fortnight of writing this paper and as yet the rationale behind the action is unknown, but speculation that a deal negotiated in 2013 with MGM to create an animated Addams Family movie suggests that the Tee & Charles Addams Foundation want to regulate the presence and usage of the characters. In the absence of any news of further developments of an Addams Family revival, one commentator notes that “for iconic characters who are not readapted to the silver screen often, YouTube is vital in keeping those characters—such as Wednesday—relevant and relatable to the younger generation” (Lanning). Speaking of his own Power Rangers fan-film, Adi Shankar plaintively argues that “As children our retinas are burned with iconic images and as we grow older these images come to represent crucial moments within the trajectories of our own lives [...]. Films like my Power/Rangers “Bootleg” are vital expressions of creativity in our troubled world. If we suppress this creativity and become passive participants in the consumption of the culture we live in, we implicitly allow a dangerous precedent to be set for the future of the internet.”

So, What about Fair Use?

Ostensibly, many forms of re-imagining are fair uses of copyright works. The doctrine of fair use is supposed to mitigate the exclusivity of copyright and allow works to be re-used in certain circumstances, especially where the new work promotes the goals of copyright (Patry, The Fair Use Privilege in Copyright Law 4–5). This applies even when the re-use is commercial; as Kaplan states, “parody may quite legitimately aim at garrotting the original destroying it commercially as well as artistically” (69). Fair use is codified into section 107 of the Copyright Act 1976 and is designed to recognise the discursive benefits of re-using copyrighted works, but the boundaries between fair use and infringement are often blurry at best (Madison 1577). The Copyright Act affords rightsholders with an exclusive right to create derivative works whilst also providing a defence of fair use for other authors seeking to use the same protected work. This apparent legal contradiction can create some tension between copyright owners and authors of transformative works. As Judge Easterbrook put it in Kienitz v Sconnie Nation: “To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2)” (4). The success of a fair use defence is far from guaranteed. For example, Los Angeles News Service owns the copyright in the footage capturing Reginald Denny’s beating by the ‘L.A. Four’ from 1992. The News Service successfully defeated a claim of fair use when KAL-TV and Reuters re-broadcast portions of the footage without authorisation, yet when Court TV used the same clip no infringement was found and the fair use defence was upheld. Thus, fair use can be unpredictable (Heins and Beckles 10–11) and costly for unsuccessful defendants. As a result, those using copyrighted works are often reluctant to rely on it (Lessig 95–99) and opt to either remove the offending copyrighted portion or pay a licensing fee. Either result reinforces the permission culture identified by Lessig and empowers copyright owners to effectively police creative expression. In the context of YouTube and user-generated content the effects of a permission culture are exacerbated through technological surveillance in the form of YouTube’s Content ID system and a dispute resolution process that leaves fair use determination in the hands of complainant copyright owners.

In March 2015 a District Court found that ‘3C’, a play parodying ABC television series ‘Three’s Company’ (which ran from 1977 to 1984 and was itself a derivative of the British sitcom, ‘Man about the House’) was protected as a fair use. Playwright David Adjmi responded to copyright owner DLT Entertainment’s cease-and-desist letter by seeking a declaratory judgment in favour of fair use as his production commented on “ways the television show presented and reinforced stereotypes about gender, age and sexual orientation” (Gardner). In her ruling, Judge Preska noted that copyright:

is designed to foster creativity. It does so by, in effect, managing monopolies in knowledge: granting one in original work to reward its creator, but ensuring it is limited, temporary, and does not operate as a moratorium on certain ideas. The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge. Here, ‘further protection against parody does little to promote creativity, but it places substantial inhibition upon the creativity of authors adept at using parody.’

The decision here is encouraging and demonstrates that copyright law remains porous enough to allow re-imaginings, but also highlights that cases have to get to court to be heard, and of course, as Thicke and Williams discovered, nothing is clear cut where copyright is concerned. Adjmi’s case is not dissimilar to the position that Melissa Hunter finds herself in with ‘Adult Wednesday Addams’; but whilst both involve parodies of television series that are no longer produced, Melissa Hunter’s series was distributed online and as a result has become embroiled in YouTube’s dispute resolution system. As Jonathan McIntosh’s experiences with Lionsgate testify, resolution can take several months, and in the meantime the web series is unavailable through Hunter’s official channel and disrupting her ability to self-market her work. This suggests that the benefits of new distribution channels such as YouTube are marred by vulnerabilities sparked by a copyright regime that gives rightholders too much latitude in the digital environment and not enough accountability for frivolous actions.

Conclusion

In the late 1990s and early 2000s a body of scholarship (much of which has been mentioned above) emerged to critique the current state and future directions of copyright law. The broad message was simple: strict copyright laws chill creativity and innovation as new technologies simultaneously make it easier than ever to create and distribute. This claim remains as valid today, if not exacerbated (primarily in the digital environment) by monetisation opportunities and automated systems like YouTube’s Content ID. The relationships between authorship and ownership are complex. The balance of competing interests is difficult to regulate, yet copyright expansion seems assured and fair use increasingly marginalised. In instances like ‘Adult Wednesday Addams’ there exists an overwhelming presumption in favour of the copyright owner, whereas in the case of ‘Blurred Lines’ the problem seems to be more with court processes that allow a jury to reach a verdict based on intuition rather than musicological expertise (Fuchs). Digital technologies, tools of production, and internet-based distribution offer so much promise for creative expression that we deserve a copyright system that competently balances the competing interests of monopoly rights holders and the wider needs of society (Young 46). After all, as Paul Goldstein notes, copyright law occupies a “special place in ordering a nation’s culture” (35). Whilst rights are afforded under the law, obligations are also due because judicial and rightsholder decisions about copyright involve: “not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression—in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture” (Eldred v. Ashcroft 3). 

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Keywords


copyright; remix; reuse; creativity



Copyright (c) 2015 Steve Collins

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