Mashup music as expression displaced and expression foregone

Abstract

This article focuses on mashup music, a form of sampling expression combining samples from two or more recognisable and popular music recordings into a new whole. It explains how platforms often regulate, displace and silence mashup producers, through a combination of content identification and content moderation, in spite of copyright exceptions. While there is case law from US and EU courts concerning music and unlicensed sampling, unlicensed sampling has never been found to qualify for US or EU copyright exceptions. However, it remains possible that unlicensed mashups are lawful under other copyright exceptions. Despite this uncertainty regarding the lawfulness of unlicensed mashups, content platforms have blocked and taken down mashups, and suspended and terminated user accounts. Drawing on empirical research with dozens of mashup producers that the author and his colleagues in the University of Oslo's MASHED project conducted in 2019, this article sets out how copyright regulation and content moderation on platforms have caused mashup producers to forego their would-be expressions.