Last year we had a post, based on a post by Peter Friedman, suggesting a big reason why Girl Talk hadn't been sued
for creating entirely sample-based music was because there was a good chance that Girl Talk/Gregg Gillis would win that lawsuit, and establish a clear fair use right in sampling. Now, with the more recent discussion about the legality
of the documentary Copyright Criminals
, Friedman is making the same point again: suggesting that the filmmakers won't get sued, because they would likely win
, and redraw the boundaries of the law on music sampling and fair use:
But if McLeod is willing to fight a lawsuit -- and I think he is -- the recording industry won't sue him. The existing precedents requiring licensing of every single recorded sample would be overturned, and the record industry would [have] lost the appearance created by these precedents, an appearance that makes the vast, vast majority of samplers pay license fees for their samples. It's better business for the industry to let the occasional brave and creative soul feel as if he's getting away with something than to have the industry's precious -- and ill-founded -- legal precedents put at genuine risk.
Of course, there's a separate argument, that has been made by Copycense, that race actually plays a role in this
. The musicians who have been sued over sampling tend to be black. Gillis is not:
Gillis hasn't been arrested or sued because his socioeconomic status fits what the mainstream wants to see when it talks about this issue. Gillis' bio reads well for mainstream public relations purposes -- he is white, middle-class, and educated -- and his basic story (fell in love with music and sampling while studying science at a renown institution of higher learning) is All-American. For establishment folks like Congressman Mike Doyle (D-PA), who represents the district in which Gillis resides and has testified before Congress on Gillis' behalf, Gillis' story presents a squeaky clean image of American innovation -- and decidedly not sepia-toned humans toiling against misery in dark, sweaty, basements or ghetto community rooms where sampling and hip hop culture were born out of the need to get by with less.
On that note, while the movie Copyright Criminals
features a mix of artists of different races, many are black. However, the main fillmmakers behind the film, Benjamin Franzen and Kembrew McLeod, are both white. I have no idea how much of a role this actually plays in the decisions about who to sue over sampling, in music, but if race really does play into it, that would be a shame.