When copyright law meets the ‘mash-up’

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 entirely.

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 Started.�

“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 OK 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 argues.

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 their 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 Harvard.

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 philosophical.

“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 [email protected].