[Rumori] L.A. Times - When copyright law meets the 'mash-up'

illegal art illegalart at detritus.net
Wed Mar 24 12:25:08 PST 2004

Los Angeles Times Sunday March 21, 2004
When copyright law meets the 'mash-up'
* Sampling has spawned new art forms -- and a complex battle over how 
to treat them.
Home Edition, Sunday Calendar, Page E-1
Calendar Desk
82 inches; 2762 words
By Jon Healey and Richard Cromelin, Times Staff Writers

Record producer Brian Burton knew he'd done something technically 
illegal when he electronically blended tracks from the Beatles' 
"White Album" and vocals from Jay-Z's "The Black Album" into a CD 
called "The Grey Album."

But he was so excited by the mix of Fab Four riffs and Jay-Z raps 
that he badly wanted people to hear it. "When I was finished, it was 
the biggest sense of accomplishment I've had over anything," he said. 
So in January, the Los Angeles-based Burton, who records as DJ Danger 
Mouse, made a couple of thousand copies of the disc and started 
mailing them out.

His wish to be heard has come true many times over, although not in 
the way he expected. On Feb. 10 the Beatles' record company, EMI 
Music, stopped Burton from distributing "The Grey Album." That action 
triggered an online revolt that led tens of thousands of people to 
download digital copies of the CD, generating enough buzz to draw 
reviews from such mainstream outlets as CNN.

EMI's move against Danger Mouse was a spectacular backfire in the war 
over what's fair when the muse runs afoul of copyright law in the 
Digital Age. Technology is making it easier than ever to sample and 
rework recordings, and to the chagrin of entertainment companies and 
some artists who hold copyrights, the public is showing little 
sympathy for their efforts to control original works.

Fred E. Goldring, a Beverly Hills-based music-industry lawyer, 
likened EMI's response to "The Grey Album" to the major labels' 
earlier mishandling of the Napster file-sharing service. "By creating 
a controversy and trying to shut it down, they actually attracted 
more interest in it," Goldring says. "They created their own hell." 
He adds, "It became probably the most widely downloaded, underground 
indie record, without radio or TV coverage, ever. I think it's a 
watershed event."

That's the dilemma faced by entertainment companies and other 
copyright holders in a sampling, file-sharing world. The law may be 
black and white, but among artists and audiences, the creative 
landscape has been remixed in shades of gray.

A landmark skirmish

The main force behind the online release of Burton's album was a 
loosely organized confederation of websites and online activists who 
believe copyright holders in general, and the major record labels in 
particular, have gone too far in trying to enforce their rights.

To them, "The Grey Album" epitomized how new digital tools allow 
artists to build on earlier works in unexpected ways, enriching 
society by turning old creations into new ones -- this time by using 
the originals as raw material, not just inspiration.

It's not in the public interest to hold back that kind of creativity, 
argued the free-"The Grey Album" forces. So despite threats from 
EMI's lawyers, they recruited more than 150 websites to offer 
downloadable versions of the work on Feb. 24 as part of a protest 
called Grey Tuesday.

It was a landmark skirmish in a battle that dates to the mid-'80s, 
when digital recorders, or "samplers," found their way into studios. 
Soon hip-hop artists were routinely borrowing snippets of sounds from 
LPs without seeking permission from the artists who recorded them or 
from their labels.

Those freewheeling days didn't last long. Objections from R&B giant 
James Brown, among others, forced some samplers to pay for the 
material they used. Then, in 1991, a federal judge in New York 
staggered the sampling world by granting British songwriter Raymond 
"Gilbert" O'Sullivan's request for an injunction against rapper Biz 
Markie, who had built a song around samples from O'Sullivan's biggest 
U.S. hit, "Alone Again (Naturally)."

Not only did U.S. District Judge Kevin Thomas Duffy order the 
rapper's label to reclaim and destroy every unsold copy of the 
offending record, but he also referred the case to the U.S. 
attorney's office for possible prosecution. Biz Markie wasn't hauled 
back into court, but Duffy had sent a clear -- and chilling -- 
message to everyone in the field.

Today, most copyright experts say that the rule on sampling is pretty 
clear. With limited exceptions, artists can't use a recognizable 
sample from someone else's recording unless the copyright holder 
grants permission. The copyright holder is in the driver's seat, able 
to set the price for a sample (ranging from a few hundred dollars to 
a share of the revenue from the song) or to withhold permission 

The Beatles, for one, have never given their approval to any sampling 
requests. Jay-Z, on the other hand, doesn't seem to mind. He released 
a vocals-only version of "The Black Album," which was widely viewed 
as an open invitation to people like Burton to use his work. (The 
Beatles did not respond to requests for comment on "The Grey Album." 
Jay-Z was not available but said through a representative, "I applaud 
creativity in any form.")

As Grey Tuesday organizers see it, the law gives copyright owners too 
much control, in part because getting permission to sample an 
existing work is rarely as simple as one artist calling another and 
asking. They tend to peg the artists' record labels as the bad guys 
and unsung musicians as the victims.

"Sampling is something that's been sort of made illegal by the major 
labels over the last decade and a half," says Nicholas Reville, 
co-founder of Downhill Battle, an independent-music advocacy group 
based in Worcester, Mass., that spearheaded efforts to distribute 
Burton's work.

"It sounds hyperbolic, but they really have banned an art form from 
the mainstream. This wasn't about getting whatever album for free 
just to defy the major labels, it was about making sure that they 
weren't able to censor this work of art and about [demonstrating] why 
there needs to be a reasonable and practical sampling right."

"Reasonable" and "practical," though, are somewhat in the eye of the 
beholder. Ask Dexter Holland, the lead singer of the Offspring, how 
he'd feel if someone mixed his band's hit album "Smash" with, say, 
Dylan's "Blonde on Blonde," and he says: "Honestly, I'd be flattered. 
I would think that would be a good thing. That's a tough line, like 
exactly how can you control your music in all ways and all respects?"

Of course, if someone sold that remix, "that would be a different 
story," the Huntington Beach-based musician says. "But in terms of 
just having it, putting it up for people to listen to, I think that's 
totally fine."

Then there's L.A.-based Chris Carter, whose band Dramarama has heard 
its song "Anything, Anything" mashed up with Pink's "Get the Party 

"I think it's extremely clever," he says of "The Grey Album." His 
concern is over potential commercial release of such works. "It's the 
Beatles' musicianship, songwriting and performing that you're 
benefiting from. It's the actual recording. That's what they own. 
They own the masters. You can't take something someone else owns."

Carter, who also hosts the "Breakfast With the Beatles" radio show 
Sunday mornings on KLSX-FM (97.1), doesn't buy the argument that 
intellectual property falls into a different, less protected category 
from "real" property such as a car or a house.

"It's real property. A master tape, I could hit you over the head 
with it. It would hurt."

But inhibiting creators like Burton would hurt the public more, 
argues Creative Commons, which is supplying some of the intellectual 
firepower behind the pro-sampling forces. The group of copyright and 
technology experts says its mission is "to build a layer of 
reasonable, flexible copyright" in what it sees as an increasingly 
restrictive environment.

Board member Lawrence Lessig, a Stanford law professor, says the 
group is trying to develop a "sampling license" that recording 
artists could use to tell other musicians that their works could be 
sampled. The inspiration, he says, came from noted Brazilian singer 
and songwriter Gilberto Gil, who wanted other artists to be able to 
sample his songs for free.

Sampling licenses, though, would require the labels to play along. 
And so far, Lessig says, they've resisted allowing their artists to 
give permission for sampling. The labels often say they're trying to 
protect their artists when they sue file-sharing networks and their 
users for infringement, so, Lessig says, "If their artists say, 'OK, 
fine, I'm happy to have other people remixing my work,' they ought to 
respect that too."

Bowie chimes in

One reason artists may want to keep White Albums from being mashed 
into Grey ones is concern about the integrity of their works.

"Taking it to extremes," says the Offspring's Holland, "what if 
someone took one of your records and put Adolf Hitler over it -- 
something you don't believe in and despise? If you really think about 
it, if you're OK with it one way, you've got to be OKK with it 
always. I think that's part of what free speech is in America. It'd 
be a bummer, though."

David Bowie, whose records are popular material among Internet 
music-mashers and mixers, says he reserves the right of refusal 
because of just such a possibility.

"I would always give the artist the chance to present to me what he 
wishes to do," says the veteran rock star by e-mail. "I would not 
give permission if I felt the work to be morally or politically 
repugnant. I would expect to be compensated for the work used. 
Outside of that, I'm fairly easygoing, as long as there's some kind 
of communication between the artist and myself. I think that is the 
important part."

To some copyright experts, "The Grey Album's" online release was a 
direct attack on artists and their moral rights as creators. The 
"moral rights" concept, which is strongest in Europe, holds that 
artists should have the power to stop their work from being altered 
or reused in ways that affect their reputations. Under this view, 
even if the Beatles sell their copyrights to EMI, they still have a 
moral right to protect the integrity of their recordings.

Russell G. Weiss, a copyright-law expert at Morrison & Foerster in 
Los Angeles, says the concept of moral rights is rarely applied in 
the U.S. to music. Still, he says, the idea of uncontrolled sampling 
doesn't gibe with the original purpose of American copyright law, 
which was "to encourage people to take the time and energy to make 
creative works" by enabling them to benefit from their work's 
commercial success. Forcing copyright holders to allow others to 
sample and transform their work reduces the incentive to create, he 

Samplers are "kind of trading on someone else's property," Weiss 
says. "You shouldn't be forced to allow someone to transform your 
work.... You might not want to give other people that leg up, because 
you worked so long and hard."

The pro-sampling forces retort that artists have been building on 
their predecessors' efforts for centuries. In a sense, "creativity is 
about standing on the shoulders of giants in ways that we haven't 
before," said John Palfrey, executive director of the Harvard Law 
School Berkman Center for Internet & Society.

"I don't see why that's so different than the Beatles listening to a 
Chuck Berry song or trying to cop a certain vibe of someone else's 
sound and put it through their filter to create their new sound," 
says record producer Rick Rubin, whose original, sample-based backing 
track on Jay-Z's "99 Problems" was replaced by a "Helter Skelter" 
sample on "The Grey Album." (Rubin says he loves the result.)

Given how technology is changing the way the public interacts with 
art and enabling more people to be creators, Palfrey said, 
sampling-fueled works "shouldn't be stopped by a set of legal 
doctrines that no longer make sense."

Should Bowie and Holland be able to stop a sampler from using their 
recordings in a way they find repugnant? Sure, Palfrey says -- but 
not by using copyright law. Instead, he said, they can rely on other 
legal doctrines to protect their reputations and ttheir brands.

Goldring disagrees, but he's pragmatic about sampling.

"Artists should have the absolute right to control their work," he 
says. "The problem is, how do you control that in the new world? The 
argument is, all of the fundamentals of copyright law are sound, and 
all of the fundamentals of copyright law should be enforced to 
protect artists' rights. Absolutely. [But] what does that mean in a 
world where everything can be digitized and transmitted around the 
world at the push of a button?"

'Mash-ups' in the mainstream

Fueled by the digital power of the Internet, "mash-ups" like Burton's 
are making their way into the mainstream, and so are protests against 
the record companies trying to prevent them.

An unauthorized mash-up of Nelly's "Work It" and AC/DC's "Back in 
Black" that circulated online is in the regular rotation at KIIS-FM, 
the most listened-to station in Los Angeles. And two other Southern 
California outlets, KDLD-FM in Santa Monica and KDLE-FM in Newport 
Beach, have aired mash-ups by Go Home Productions that blend the Sex 
Pistols with Madonna.

"It's all heating up," says Mark Vidler of Watford, England, the man 
behind Go Home Productions. The field is becoming so popular, he 
says, a growing number of record companies have come calling with 
authorized mash-up proj- ects.

Downhill Battle's Reville estimates that more than 100,000 copies of 
"The Grey Album" were downloaded on Feb. 24 alone. That's a 
remarkable number if it's accurate, but there's no way to know 
because of limited record-keeping by the Grey Tuesday participants. 
Eric Garland, chief executive of Big Champagne, a firm that monitors 
file-sharing networks, says that on Feb. 24 "The Grey Album" "was on 
a short list of the most popular records, period."

Five years ago, widespread acts of civil disobedience against EMI and 
the Recording Industry Assn. of America because of the way they 
enforced copyrights would have been inconceivable, says Lessig of 
Creative Commons. "This is how far the RIAA has pushed the world by 
its own extreme behavior."

Downhill Battle is still considering its next move, Reville says. A 
spokeswoman for EMI, meanwhile, would say only that the company 
intends "to protect our artistic content related to this matter to 
the fullest extent of the law." And EMI is no longer alone in the 
fight. Sony/ATV Music Publishing, which controls the Beatles' 
songwriting copyrights, has asked at least one Internet service 
provider to disconnect a website offering "The Grey Album." The site 
-- illegal-art.org -- switched Internet providers, got a lawyer and 
went back online.

Weiss of Morrison & Foerster said EMI doesn't have much choice. "The 
alternative to not pursuing your legal remedies is no one's going to 
be afraid to infringe," he says. If EMI sues and wins, he adds, "the 
message that you'll see is, A, you don't do this, and B, if a 
cease-and-desist is sent, you better [stop] right away."

In the meantime, the pro-sampling forces continue to press their case 
at the grass-roots.

A group aligned with Downhill Battle has compiled "The Jay-Z 
Construction Set," offering musicians a primer on how to make 
mash-ups on their home computers. The set, which includes "The Grey 
Album" and other remixes of Jay-Z's work, is circulating through 
file-sharing networks.

"What these technologies are making possible is a new form of 
expression that is not going to be able to be contained by something 
as simple as the law and enforcement of the law," says Palfrey of 

He favors allowing works to be sampled while ensuring that the 
original creator gets paid. The law won't change, though, unless 
people believe they have a stake in what might otherwise seem to be 
an arcane legal fight.

"The only way this is going to work is if people get a sense for why 
it matters," Palfrey says. "Real art is being created here."

If so, it's art being created in uncharted territory.

"A one-off, isolated thing like 'The Grey Album,' yeah, it's 
interesting," Carter says. "But I think we're going to be getting a 
lot of it. You're going to get 'The Dark Side of the Moon' album put 
together with this, 'Sandinista' with Bob Marley. It's gonna be 
crazy. I think it's gonna get out of control."

Bowie has observed parallel conflicts played out and resolved, to 
some degree, in the world of visual art, where appropriation of one 
artist's pictorial image by another has led to litigation involving 
such major names as Robert Rauschenberg and Helmut Newton. He's more 

"It will all slowly sort itself out into some kind of workable mess," 
he says, "but will continue to be a gray area for years to come. But 
that is life, isn't it?"

Contact the writers at calendar.letters at latimes.com.


PHOTO: (no caption)
ID NUMBER:20040321huqhh8n1
PHOTOGRAPHER: Stephen Sedam Los Angeles Times
PHOTO: (no caption)
ID NUMBER:20040321hup6oun1
PHOTOGRAPHER: Stephen Sedam Los Angeles Times

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