White, Black and Grey

What happens when you mix together the Beatles’ White Album with Jay-Z’s Black Album? DJ Danger Mouse did just that and created the Grey Album, by mixing Jay-Z’s vocals (taken from a CD of just the vocal tracks from the Black Album) over music tracks built using samples from the White Album. Rolling Stone calls it “the ultimate remix record.” Boston Globe music critic Renee Graham thinks that the Grey Album is “the most intriguing hip-hop album in recent memory.”
EMI, who owns the copyright in the Beatles sound recordings, has requested that Danger Mouse stop distributing the album and requested that web sites stop hosting Grey Album MP3’s. For a sampling of the press coverage, see BBC News: EMI blocks Beatles album remix, Wired News: Copyright Enters a Gray Area, and MTV News: Producer Of The Grey Album, Jay-Z/ Beatles Mash-Up, Gets Served. Illegal-Art.org continues to host MP3’s of the Grey Album tracks.
Even before the era of recorded music, musicians would build on existing songs written by other artists. Recording artists cover standards and songs written by other songwriters. In order to allow recording artists to more easily record new versions of existing songs, the Copyright Act provides for a compulsory license to make and distribute phonorecords of non-dramatic musical works. 17 USC §115. The rise of hip-hop and DJ culture in music over the last 25 years or so has changed the way that artists create new music, by building on the work of earlier artists through direct audio sampling.
In the sampling era, the legal departments of record labels, particularly those that specialize in hip-hop or the other genres that sample heavily, spend significant amounts of time clearing samples for use on records.
Under current copyright law, the Grey Album is clearly illegal—the right to make derivative works is an exclusive right of the copyright holder. 17 USC §106(2). Because sampling has become so prevalent, perhaps copyright law needs to allow for more sampling.
Four approaches towards sampling are currently available for samplers: unlicensed sampling, ad-hoc licensing, fair use sampling and sampling from the public domain. Each of these carries significant drawbacks. One alternative may be to legislate a compulsory license for sampling. Another emerging alternative is for artists to preemptively license their work for sampling.
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Unlicensed sampling
This is the approach adopted by DJ Danger Mouse and its flaws are obvious. The most obvious is that unlicensed sampling infringes on the exclusive rights of copyright holders. Even where a copyright holder grants tacit approval to the sampler by not sending cease and desist requests or filing a lawsuit, the sampled artist gets no compensation. Disapproval of a copyright holder ends up with suppression of the copyrighted works and no compensation at all for the sampled artist or the sampling artist, or in a lawsuit.
Ad-hoc licensing
Currently, this is the most widely used regime for arranging permissive sampling. Each sampler seeks and obtains permission for each sample from the copyright owner. The obvious drawback to this approach is that it has extremely high transaction costs. Ad-hoc licensing does, however, provide significant autonomy to copyright owners and allows them to choose not to have their copyrighted works remixed. This approach gives the most deference to the concept of the moral rights of the author, a concept increasingly, but not completely adopted by American courts. If artists have an absolute right to the integrity of their works, then they should be able to opt-out of having their works used for samples.
Sampling from the public domain
Artists are currently free to use samples from recordings in the public domain. However, the amount of potential samples in the public domain is very limited. Most recordings are still covered by copyright. Only recordings made prior to 1923, as well as those recordings made before 1964 for which copyrights were not renewed, are in the public domain. Because the Sonny Bono Copyright Term Extension Act of 1998 (whose constitutionality was upheld in Eldred v. Ashcroft), extended the copyright term for 20 years, retroactively, no new recordings will enter the public domain for nearly 20 years.
Because only older, low-fidelity recordings are in the public domain, those are less attractive to samplers than newer recordings made on more modern equipment than wax cylinders. The Public Domain Enhancement Act, H.R.2601, introduced into the House by Rep. Zoe Lofgren (D-CA) would require copyright holders to pay a $1 renewal fee after 50 years and greatly increase the availability of public domain material.
Fair use sampling
Certain uses of sampling may be allowed under Fair Use doctrine (?107), such as a parody (see Campbell v. Acuff-Rose Music) or de minimus sampling (see Newton v. Diamond, which deals with the composition, not the phonorecord.)
Fair use sampling fails to reach the creative goals that remixers like Danger Mouse want to achieve: to mix two (or more) distinctive and unique sources in a new and novel fashion that combines signature elements of each source so that each source is readily identifiable in the remix. Danger Mouse is not commenting on the source works, but instead is seeking to create an independent artistic vision by combining existing works in a novel fashion, so the Grey Album is not fair use parody. A de minimus sample is not readily identifiable as a particular sample and thus will not achieve the artistic goals that most samplers seek.
Because fair use is an affirmative defense to an infringement action, a sampler who relies on fair use sampling may be forced to spend significant time and money defending or settling a lawsuit brought by an uncooperative recording artist. If a sample is fair use, the sampled artist will earn no royalties from the use.
Two alternative schemes would lower transaction costs:
Compulsory license
The most sweeping change would be to legislate a compulsory sampling license. A compulsory license would drastically reduce the transaction costs of licensing. Sampled artists would have a new income stream available.
However, any compulsory sample licensing will requires new legislation, with the requisite delay. The framework of a licensing system will need to be worked out. How will licensing rates be determined? Should all samples require the same compensation, or should the rate depend on an analysis of the length of the sample, the number of times the sample is used in the remix and the importance of the sample to the remix?
The compulsory license does not allow artists to opt-out of having their works sampled, but it creates the largest pool of material available for re-mixers to sample from.
Preemptive licensing
A preemptive licensing scheme lowers transaction costs and allows certain artists to continue to opt-out of having their works sampled. A preemptive licensing approach requires no change in the legal regime and system to copyright, but does require a change in behavior of artists. For a preemptive licensing system to be effective, a significant number of recording artists have to grant permission to sample. It may be difficult to get older copyrighted works participating in the copyrighted scheme. Without a wide variety of material preemptively licensed, the sampler will still have to rely on ad-hoc licensing or public domain sampling for a large portion of her material.
A preemptive licensing system requires a clearinghouse or other easy way to find and acquire recordings that have been preemptively licensed for sampling. The Creative Commons project is doing this today. It provides a licensing system for creators to easily adopt and use to tag works which may be sampled. Creative Commons also provides ways to find content that is preemptively licensed.
This approach lowers transaction costs for artists who choose to participate. It grants artists potential notoriety and a possible new revenue stream. By making it easier for re-mixers to license their work, artists may see a dramatic increase in fees obtained by licensing. This approach lowers transaction costs for re-mixers by providing easy ways to find samples without having to wait for permission. Under a preemptive licensing system, artists are still free to opt-out.
Conclusion
Would the world be a poorer place without hundreds of recorded covers of The Beatles’ “Yesterday”? Would our culture be richer with samples from the White Album, Revolver and Rubber Soul pervasive throughout recorded music? How severely are samplers constrained by having to acquire licensees for every sample? I remain unconvinced that sampling culture requires a radical reinvention of copyright or that the ability of artists to opt-out from having their work sampled is broadly negative. However, the transaction costs of permissive sampling are so high that a widely-used preemptive licensing system would greatly increase the efficiency of clearing samples and give samplers more sources to use. A preemptive licensing may address the key problems with the current approach towards sampling, while avoiding the high costs of adopting a compulsory licensing system. The Creative Commons appears to be on its way towards becoming such a preemptive licensing system.

2 Comments

  1. Gray Tuesday

    daveXtreme.com is gray today. Here’s why. I’m of course not saying whether or not I have a copy of The Grey Album shared somewhere, or that I’ll burn you a copy, but leave a comment or email me and maybe

  2. Grey Tuesday

    Downhill Battle declares that today is Grey Tuesday, “a day of coordinated civil disobedience: websites will post Danger Mouse’s Grey Album on their site for 24 hours in protest of EMI’s attempts to censor this work. ” Last week, I…

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