Why Hasn't The Recording Industry Sued Girl Talk?

from the because-they're-scared-to-death-they'll-lose dept

Peter Friedman has another wonderful post, discussing why music is the "main battleground" in the copyright wars, raising a few good points -- including the idea that music master tapes are dying in vaults, causing locked up music to disappear, and highlighting a troubling series of case law decisions that seem to entirely ignore the concept of fair use when it comes to music (some of which we've discussed in the past here).

But the most interesting point may come at the end, when he brings up something that's been confusing here as well: how come Greg Gillis -- better known as Girl Talk, the popular mashup musician -- hasn't been sued yet. Especially since his Feed the Animals CD came out, generating a ton of publicity and popular press coverage (and sampled from hundreds of songs), pretty much everyone has been waiting for him to get sued. Friedman tosses out a suggestion that makes a lot of sense: the recording industry is scared to death that a court will rule in Girl Talk's favor and return "fair use" to music:

Well, I think I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis's argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I'd go after someone I am more likely to beat. Othewise, I'd lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.

When asked, Gillis has repeatedly stated that if he's sued he believes he has a strong fair use defense. Perhaps the lawyers at the record labels (and representing certain musicians) have all recognized the same thing. Gillis will almost certainly win in court, and all those terribly decided cases that ignore fair use in music will get pushed aside.

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Girl Talk On Remix As An Art Form

from the knock-on-wood dept

Greg Gillis (aka Girl Talk) recently participated in a live chat as part of a Download Decade series run by the Globe and Mail. Gillis makes music entirely from samples, combining existing songs in creative ways to make something new. His last album, which was offered as a pay-what-you-want download, used over 300 samples. Even though he's been held up in Congress as an example of why traditional copyright laws might no longer make sense, it seems like a lawsuit is inevitable because Gillis doesn't license any of the samples he uses. Yet, there has been no legal action to date (knock on wood!). Gillis argues that his sampling is fair use because it's transformative, but that hasn't been tested in court.

In the chat, he responded to a question I raised about why he uses a noncommercial license for his music (as he makes commercial use of others' works), arguing that transformative fair use would still allow commercial use of his music and noting that his label suggested the noncommercial license as a "safe move." Gillis was also asked whether he's surprised that he still hasn't faced a lawsuit, even though his profile has been much higher in the past few years.

Kind of. I believe in what I'm doing. I do not think it should be illegal. But at the same time, if you look at the history of sample-based music, it is somewhat surprising. Biz Markie, 2 Live Crew, Danger Mouse, Negativland, etc. Those are the people who laid the groundwork. They all had issues.

He notes that he was under the radar with his first couple albums, but since 2006, it's been hard for him to ignore publications like the Rolling Stone and the New York Times talking about how he's going to get sued. Yet, no lawsuits. He says times are changing.

The way the general public views intellectual property in 2009 is much different than in 1999. Look around the internet. So much content comes from pre-existing media. We're used to it now. Christian Bale goes crazy on the set of T4. That turns into a techno song, which then turns into a cartoon on YouTube, which will then turn into a T-shirt. Everyone is constantly exchanging ideas and building upon previously existing material. So the idea of a remix being a real artform is being validated in our culture every day.

Certainly, artists like Girl Talk, as well as others ranging from DJ Kutiman to the creator of the "rap chop" video, have been debunking the myths about "original" content, showing people that remixing can be creative and original and that it contributes to culture. Still, there are plenty of people who believe otherwise. Hopefully, Gillis continues to avoid legal troubles, though I don't think things have changed so much that this isn't still a huge risk. But, insofar as the remix is increasingly validated as an art form, perhaps a lawsuit would end up highlighting the limits that copyright law places on artistic expression nowadays.

Blaise Alleyne is an expert at the Insight Community. To get insight and analysis from Blaise Alleyne and other experts on challenges your company faces, click here.

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Why Doesn't Girl Talk Allow Commercial Use?

from the go-big-or-go-home dept

Legal trouble for Girl Talk -- an artist named Greg Gillis who released a "mash up" album using the pay what you want model -- is almost inevitable, but the situation gets even more interesting when you consider how the music is licensed. Girl Talk uses a Creative Commons Attribution-Noncommercial license for Feed the Animals, even though the songs on the album were made by using hundreds samples from other artists. Gillis claims his songs are fair use on the basis of being transformative and because the clips used are very short.

Aside from potential legal claims over the license if the fair use defense fails, why would Gillis -- an artist making commercial use of samples from others -- put a noncommercial restriction on his work? It seems a bit hypocritical. Granted, he does claim that "the CC license does not interfere with the rights you have under the fair use doctrine, which gives you permission to make certain uses of the work even for commercial purposes," but is the noncommercial restriction for other uses really necessary?

First of all, as Mike Masnick pointed out in his critique of a noncommercial copyright, the distinction between commercial and noncommercial use is extremely blurry. Equally blurry in this case is the distinction between transformative and non-transformative use. At what point exactly does a derivative work become transformative? But, more importantly, Mike asks "if someone else is able to do something commercially useful with my content, why should that be a problem?" Girl Talk ought to be a perfect example of this, yet Gillis seems to deliberately limit the possibilities through his choice of license.

Why attempt to limit the positive externalities? Maybe some of the artists sampled on the Girl Talk album will really like a song their music appears in and want to include it somehow on a release of their own, make use of it on their website, etc. Should those artists then be required to pay for the use of a song which includes samples of their own music? Maybe, but it seems like respecting "upstream" would help an artist like Gillis maintain a better relationship with the artists from which he's sampling.

Furthermore, what about people who might do something with the album that's potentially commercially useful for Girl Talk? For example, if someone were to make an interesting remix or video using Girl Talk's music , not only would they be required to refrain from commercial use themselves (unless it was fair use), but Gillis would require their permission to make use of it himself. If he had used a copyleft license like the Creative Commons Attibution-Share Alike, both he and any artists making derivative works would have the ability to monetize their efforts. Instead, derivatives are relegated to the realm of the amateur because, with a noncommercial license, the barriers of a permission culture are still intact for artists trying to make a living from their work. One would hope that Greg Gillis, of all artists, might realize the benefits of removing these barriers, especially on commercial use.

Blaise Alleyne is an expert at the Insight Community. To get insight and analysis from Blaise Alleyne and other experts on challenges your company faces, click here.

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Who Will Be The First To Sue Girl Talk Over Music Samples?

from the taking-bets? dept

A few weeks back when we mentioned that the musical act Girl Talk was releasing a new album using the pay what you want model, one element we didn't dwell on was the fact that Girl Talk's genre might be best described as "mash up music." That is, Greg Gillis, the guy who is Girl Talk, takes samples from tons of songs and mixes them together to create something totally new. While there may be some who disagree, listening to Girl Talk, I find it difficult to believe that Gillis is any less of a musician than the musicians he samples -- he's just playing a different kind of instrument.

But there's a big question -- whether or not Girl Talk's albums are legal or are they basically massive copyright infringement cases. If Gillis were to actually go around licensing all the snippets he samples, such an album would be impossible to make -- showing (yet again) how copyright would act as disincentive for creation rather than incentive. So far Gillis hasn't actually been sued, though that seems unlikely to last. On the positive side, some big name musicians interviewed in a recent Wall Street Journal article about Girl Talk sound much more honored than litigious to be included on a Girl Talk album. However, with over 300 samples used on the album, there's almost certainly going to be a few who get upset. The article, for example, suggests that the woman in charge of the copyright for the band the Guess Who is planning to go after Girl Talk, noting that: "We'll chase it down. What more can you do?" Well, actually, there's plenty more that you can do -- such as recognizing that no one who hears the music on Girl Talk is going to see that as a replacement to the Guess Who's album -- and, if anything, it might entice new fans to the original.

But, eventually a legal battle is going to pop up -- and while Gillis and his label are banking on "fair use" claims to protect them, the history of court cases on this particular question have shown the courts (wrongly) seem to count nearly any sample, no matter how minor to require a license. This has created a small industry of "sample trolls" getting the rights to various songs (often via very questionable means) and then suing anyone who samples just a few notes from it. It seems quite likely that sooner or later someone is going to go after Gillis for this. And, while it's nice that some artists are honored by Gillis's use of their music, that probably won't stop others from suing. Luckily, Gillis has at least one big supporter in Congress -- and perhaps a lawsuit against him will help bring this issue to the attention of lawmakers.

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Less Well Known Musicians Embracing 'Pay What You Want'

from the small-musicians,-big-musicians-alike dept

It still amuses me how often when we talk about specific music business models, defenders of the old system rush in to explain why any particular example is an exception. For years, we showed examples of less well known musicians embracing these kinds of new business models, critics would complain that they might work for unknown musicians who have "nothing to lose" and need attention more than anything else, but it would never ever work for a big star who has too much to lose. Then, of course, we talked about big time musicians like Radiohead and Nine Inch Nails embracing these kinds of models, and the critics said "well, sure, it works for them with their well recognized name, but it would never work for unknown artists." Hell, someone said that just yesterday in response to a post here, leading another commenter to jokingly (I hope) coin the phrase "Masnick's Law", which is loosely defined as

"in any conversation about musicians doing something different to achieve fame and/or fortune someone will inevitably attempt to make the argument that 'it only worked for them because they are big/small and it will never work for someone who is the opposite,' no matter how much evidence to the contrary might be readily available."

I might expand on that definition a bit to have it go beyond just big/small. People will keep looking for excuses why each example is an exception, (big/small just being an easy such reason) to the point that they'll eventually miss the fact that all of those exceptions are the rule.

Anyway, based on all of this, it will be interesting to see how Girl Talk's new album does. Girl Talk is a one man DJ once mentioned (positively) in Congress as an example of why traditional copyright laws might not make sense anymore. With the release of his latest album, he's decided to use a Radiohead-style model, with a few improvements. That is, rather than just a pure "give it away and pray," he's giving people an additional reason to buy -- though I think he could still put together a better model. His is set up so you can pay what you want (including nothing at all) and get 320 kbps MP3 files, but if you pay over $5, he offers FLAC files as well, and at $10 you'll also get a copy of the physical CD when it comes out. If you pay $0, he does ask that you fill out a little survey explaining why. There still are some problems with this model (it's still a little too much like a give it away and pray model), but overall, it's quite similar to Radiohead's experiment.

Now, of course, all the folks who insisted that Radiohead's model would never work for a relatively obscure musician are supposed to now insist that this model won't work at all for Girl Talk, right? But what happens if Girl Talk is actually happy with the results, whether in direct payment amounts or in the fact that it gets him more publicity? Will they finally admit that the model isn't just an exception?

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