2017/2 - Copyright Law

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The Concept of "pastiche" in Directive 2001/29/EC in the Light of the German Case Metall auf Metall
Döhl, Frédéric (2017)
Frédéric Döhl analyses the development of the “Metall auf Metall” lawsuit from the beginning in 1999 until now and reviews all legal positions on micro-sampling. Moreover, he introduces “pastiche” as an exception in European copyright as a possible basis for the foundations of future copyright. So far, it remains to be clarified whether and how digital adaptations from other musical works and media can achieve the status of an “independent work” according to German copyright. Döhl reminds us that, in adaptation research, it is commonly acknowledged across all arts that, as a matter of principle, all adaptations can reach a state of artistic identity in their own right, no matter how prominent the original material may be in the new work. The controversial question is how and when these new works pass that threshold rather than whether they reach it at all. From an artistic point of view, the concept of independent use as an aesthetic category is a suitable instrument for a free balance of interests.
Editorial. The Reference as Part of the Art Form. A Turning Point in Copyright Law?
Hoffmann, Dagmar; Klass, Nadine (2017)
On 31 May 2016, the Federal Constitutional Court of Germany ruled that specific forms of sampling may fall under the constitutionally protected freedom of art and takes precedence over the property interests of the rights holders (so-called sampling judgement, 1 BvR 1585/13 – “Metall auf Metall” (metal on metal)). The lawsuit concerned a two-second sample from the Kraftwerk song “Metall auf Metall” that had been used by producer Moses Pelham without permission for a Hip-Hop song performed by Sabrina Setlur. Over 19 years, the lawsuit passed through the entire German court hierarchy before recently being taken to the European level. In Germany, this ruling has revived the copyright debate on remixes and similarly transformative media practices within digital media environments. Those copyright related questions were addressed during an interdisciplinary symposium at the University of Siegen in May 2017. Experts from different fields of research presented their investigations and theoretical considerations. The symposium was based on two pillars: approaches from music, culture, and media studies on the one hand, and legal perspectives and evaluations on the other. The papers included in the thematic focus of this issue document selected outcomes of the symposium.
Editorial
Englert, Kathrin; Faust, Lene; Henrich-Franke, Christian; Müller, Claudia; Schubert, Cornelius (2017)
Grounded Design in a Value Sensitive Context
Wulf, Volker; Friedman, Batya (2017)
Volker Wulf in conversation with Batya Friedman
Transformative Works and German Copyright Law as Matters of Boundary Work
Kempfert, Kamila; Reißmann, Wolfgang (2017)
Drawing on the basic assumptions and mechanisms of German Copyright law and the main problems concerning transformative works, Kamila Kempfert and Wolfgang Reißmann introduce “boundary work” as a praxeological perspective to grasp translations and transformations of copyright law within different social worlds. Using the example of fan fiction practices and the lawsuit of “Metall auf Metall“, they attempt to approach law-in-practice and demonstrate different modes and forms of boundary work. In the case of fan fiction authors, boundary work consists of (unconsciously) translating elements of basic assumptions of copyright law to their own works as well as distancing themselves from commercial exploitation, while simultaneously almost ignoring the factual legal situation. In the “Metall auf Metall” lawsuit, boundary work was performed by changing the balance between ancillary copyright law and artistic freedom and by emphasizing commercial effects as important evaluation criteria. The different boundary works partly converge, partly they are contradictious.
Formats as Media of Cooperation
Volmar, Axel (2017)
This paper aims to link the possibility of translocal cooperation to the agency of formats. At first, I discuss some of the basic types, features, and functions of formats in order to show how formats frame and configure media in distinct ways. Building on this, I assess the benefits and relevance of format studies in current media studies. As formats tend to stretch across different domains of media production, distribution, and reception, I argue that they are not only crucial for understanding aesthetic properties of media but also the value chains and infrastructures of media distribution. Furthermore, formats link media more closely to specific media-related practices and communities of practice: each format tells stories about how people create, work with, consume or appropriate media. Formats can thus be thought of as both—usually conventionalized—materializations of media-related practices and default affordances which govern and support those practices. Therefore, I argue that formats should be regarded as paradigmatic media of cooperation. Since formats help establishing and stabilizing connections, relations, and labour chains, they also need to be taken into account as fundamental factors within processes of scaling and growth, such as historical formations or transformations of media systems, infrastructures, and industries.
Referencing in Academia. Videoessay, Mashup, Copyright
Voigts, Eckart; Marshfield, Katerina (2017)
Eckart Voigts and Katerina Marshfield focus on videographic essays as a genuine form of scientific or intellectual performance. They report from a student project entitled “Producing and Podcasting Film Analytical Audio Commentaries” and characterise these productions as a new form of learning and a possibility to appropriate a certain degree of multiliteracy. Especially mashups allow for mixing texts, footage, images, and sounds without having to create substantial semiotic expressions. Mashups and videographic essays are becoming increasingly important as a multi-channel cultural technique for constituting, exchanging, and presenting meanings, ideas, and materials, both for establishing amateur media studies as well as for emerging professional and academic approaches. In their contribution, they discuss the lack of established criteria for such kind of audio-visual student work as well as the lack of clarity regarding copyright issues when referencing audio-visual material.
Re-Use under US Copyright Law. Fair Use as a Best Practice or Just a Myth of Balance in Copyright?
Kocatepe, Sibel (2017)
Sibel Kocatepe takes a look beyond the borders of the German jurisdiction and analyses US-American copyright law and their regulations with regard to referential forms of art. She elaborates on the so-called “fair use” doctrine as a limitation on copyright and its application in US-American judicial practice. Her contribution emphasises that the often-lauded American fair use limitation provides the necessary flexibility for solving conflicts of interests between copyright holders of original works and artists that use them within the restrictions of copyright. At the same time, Kocatepe highlights the fact that this flexibility might also result in a certain degree of unpredictability and legal uncertainty. In this context, she discusses whether the flexible fair use doctrine is actually able to balance conflicts of interests, in order to evaluate whether a legal transplant of this standard is, in fact, advisable. Kocatepe also touches upon the question whether the new Canadian “YouTube Exception” for non-commercial user-generated content might be a more preferable limitation for the German and ultimately the European jurisdiction.
Negotiating Legal Knowledge, Community Values, and Entrepreneurship in Fan Cultural Production
Einwächter, Sophie G. (2017)
Sophie G. Einwächter sheds light on the digital transformation of fan culture leading to the phenomenon of entrepreneurial fans who now gather large audiences for their media and make money with practices that were initially purely rooted in fan culture. Einwächter presents two different cases: First, the well-publicised case of fan-fiction-turned-bestseller-author E. L. James (Fifty Shades of Grey trilogy), which evoked a negative response from within her former online community, (with the criticism mostly referring to the ethical rather than the legal status of her work) and, second, the German case of Harry-Potter-fan-turned-comedian Kathrin Fricke, also known as Coldmirror, which shows that practices of fan culture can find a professional market without causing community backlash. Furthermore, Einwächter demonstrates how especially those fan producers who are in charge of their own sites and media infrastructures respond to copyright uncertainty by using copyright disclaimers, reaching an agreement with copyright holders, expanding their own legal knowledge, or by engaging in risk distribution or pragmatic productivity.

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