Defining ‘transformative’ use

10.6 In this chapter, the term ‘transformative’ is used generally to refer to uses of pre-existing works to create something new, that is not merely a substitute for the pre-existing work. Works that are considered transformative include those described as ‘sampling’, ‘mashups’ or ‘remixes’.

10.7 Sampling is the act of taking a part, or sample, of a work and reusing it in a different work. The concept is most well-known in relation to music, where samples of one or more sound recordings are reused in a different composition.[1]

10.8 A mashup is a composite work comprising samples of other works. In music, a mashup is a song created by blending two or more songs, usually by overlaying the vocal track of one song onto the music track of another.[2] Remixes are generally a combination of altered sound recordings of musical works.[3] For example:

  • The Grey Album by Danger Mouse, is a mashup remixing music and vocals from Jay Z’s The Black Album and the self-titled The Beatles album, known as ‘The White Album’.

  • Somebodies: A YouTube Orchestra, created by Australian artist Gotye, samples and remixes audio-visual material, combining YouTube covers and parodies of the hit single Somebody I Used to Know.[4]

10.9 Many other instances of sampling, mashups and remixes of copyright material can be found on the internet, including musical compositions, new films, art works and fan fiction.[5]

10.10 More broadly, transformative use can also refer to some appropriation-based artistic practices, including collage, where images or object are ‘borrowed’ and re-contextualised. Examples of appropriation art include Jeff Koons’ sculpture, String of Puppies,[6] and Shepard Fairey’s poster of Barack Obama (‘Hope’), which were both based on photographs taken by others.

[1]The Macquarie Dictionary Online.

[2]The Macquarie Dictionary Online.

[3] See The Macquarie Dictionary Online; APRA/AMCOS, Submission 247.

[4] ADA and ALCC, Submission 213.

[5] See examples cited in Ibid.

[6] See Rogers v Koons, 960 F 2d 301 (2nd Cir, 1992), in which the US Court of Appeals found Koons liable for copyright infringement.