THE recent mashup of a TVJ news interview on the plight of people living in a community in rural St Andrew went viral over the last few weeks. The mashup, Nobody Canna Cross It, or The Bus Can Swim was produced by a university student, DJ Powa, who has no formal training in music production and without any apparent intent to create a hit recording. It was reported in the press that the song was available for purchase on iTunes and T-shirts with the title of the recording being produced for sale. As with any popular hit, there are concomitant rights such as royalties, publishing, licensing rights owned by various people involved in its production. Who exactly owns this song and who is entitled to benefit from its ancillary rights? The rights to the video footage will not be considered here.
A mashup, also known as Smashups or Bastard pop, is the art of combining multiple sound recordings into one continuous and seamless sound recording. Mashups are not unique to music, and the term ought to be used to reference the combination of artistic content from a number of different sources to produce a new and unique work. The digital age has made it that much easier to create mashups. More often than not, however, it is the mixing of two or more songs to produce one seamless recording. Sugarhill Gang's track, Rapper's Delight in 1979, is noted as being one of the first songs to bring hip hop mainstream in the USA and the world, as well as being one of the first mashups, sampling Chic's popular disco song, Good Times. One of the most widely known producers of our time in this genre is Danger Mouse who produced the critically acclaimed and seminal mashup album, The Grey Album, which was released in 2004 and combined a cappella versions of Jay Z's The Black Album over beats crafted from samples of the Beatles' White Album. Like DJ Powa, Danger Mouse did not set out with any intent to create or profit from a hit recording. The Grey Album was originally produced to share his creativity with his friends who put the album on the Internet. It thereafter became very popular with both the general audience and critics. One of the leading music industry magazines, Rolling Stone, called the album the ultimate remix record and Entertainment Weekly ranked it the best record of 2004.
In order to get a better view of who is entitled to the copyright and ancillary rights of Nobady Canna Cross It, it is important we deconstruct the sound recording and consider its various elements. First are the lyrics of the song, mainly the product of Clifton Brown. Other lyrics were also contributed by Thelmeletta Lester and Dara Smith. The lyrics were recorded by TVJ, hence TVJ was the first producer of the lyrics and the owner of the sound (and video) recording created for the nightly news as well as the lyrics by Dara Smith as a TVJ reporter. TVJ was free to use Clifton Brown's lyrics recorded in the news broadcast under the Copyright Act which permits use of copyrighted material under its fair dealing provisions which are being used in reporting of a current event. TVJ's sound recording was later combined with a musical composition (a "riddim") produced by DJ Powa which resulted in the hit Nobody Canna Cross It.
Clifton Brown and co-authors of the lyrics have an underlying copyright in the lyrics of the song. Having a copyright in the underlying lyrics would place the authors in the position of songwriters and would entitle them to royalties from the sale of the song and publishing from other uses of the song, such as from mechanical, performance and synchronisation licences, unless they have waived these rights otherwise in writing.
The copyright of TVJ's recording of the interview of Clifton and others on that day are clearly owned by TVJ. Copyright in the musical track, if originally produced by DJ Powa, belongs to him. Copyright law gives the copyright holder the exclusive right to copy the work, to issue copies of the work to the public; to perform the work in public, or in the case of a sound recording, to play or show the work in public; to broadcast the work or include it in a cable programme service; or to make an adaptation of the work, and in relation to such adaptation, to do any or all of the foregoing acts.
I confess I don't know the arrangements, if any, which exist between DJ Powa and TVJ over his use of TVJ's copyrighted material. The use of TVJ's recording arguably does not seem to fall under any of the fair dealing exceptions to the use of copyrighted material, except perhaps the reportage of a current event. Furthermore, Jamaican copyright law does not seem to recognise the subsistence of copyright in mashup recordings as section 6 (4) states, "Copyright shall not subsist in a sound recording... which is, or to the extent that it is, a copy taken from a previous sound recording..." So even though DJ Powa created the mashup sound recording, copyright does not subsist in the portion that was copied from TVJ's previous sound recording and would subsist only in the riddim he created. If DJ Powa's use of TVJ's recording was not authorised or licensed by TVJ, then he cannot own the copyright resulting from the unauthorised use of the material, that is, the mashup recording, and neither can anyone else.
Interestingly, mashups are for the most part made by underground DJs with no intention to infringe copyright or to profit from the original copyright holder's rights, but merely to express musical creativity. According to Damien O'Brien and Brian Fitzgerald (2006) in "Mashups, remixes and copyright law" Internet Law Bulletin 9(2) pp 17-19, "Mashups and remix(es) will inevitably encounter legal problems when the whole or a substantial part of the original material has been reproduced, copied, communicated, adapted or performed -- unless a permission has been given in advance."
The copyright law has not yet found the right balance between protecting the copyright holder's interests and encouraging creativity and nourishing this fairly new art form. For now the law favours the copyright holder. Unfortunately, technology favours the underground mashup producer who provides entertainment and enjoyment to many with their creativity.
Camille Royes is an attorney-at-law who specialises in entertainment law.