Ruling Imagination: Law and Creativity

The Age of Collage and the RIAA

“The principle of collage is the central principle of all art in the twentieth century.”– Donald Barthelme (1931-1989)

Barthelme, one of the greatest and least appreciated writers of the Twentieth Century, has been described as “a man who, when the dust of critical obfuscation settles, will surely be remembered as one of the few truly important players in postmodernism’s controversial history.”  But while visual and literary collage are, if not fully accepted, well-established artistic forms, aural collage is not.

We live in a regime in which the recording companies require payment for any sample of recorded music, no matter how brief.

Paying for every last sampled note from a copyrighted song became industry practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc. , in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie’s third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s schlock hit “Alone Again, Naturally.” Duffy wasn’t satisfied with a mere injunction, however: he referred the defendants to the U.S. Attorney’s office for criminal prosecution and wrote in his opinion, like a preacher from the pulpit, “‘Thou shalt not steal’ has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed.”

The U.S. Attorney’s office exercised its prosecutorial discretion and refused to seek an indictment against Biz Markie or his producers.

Record companies certainly have no interest in challenging the existing regime. The recordings they own are held inviolate too, so why challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use is, and no matter how little impact it will have on the market for the sampled piece? Artists who would challenge the existing regime hardly have the financial wherewithal to challenge the industry and the enormously successful artists who benefit from it. Thus, as Jonathan Lethem has written, “[a]lthough sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use. “

Thus, the the RIAA states that “generally speaking, the use of any part of a song requires a license.”(emphasis added)

I’ll go more into questions of fair use in future posts, but for now let me put it this way: the RIAA’s position is, in light of the right of fair use, indefensible.  For business reasons, the RIAA’s policy has not faced serious challenge — record companies who issue work containing samples will pay for those samples so they in turn will be paid for samples of their own recordings.

But, as I mentioned in my post yesterday, technology changes everything, and we are on the verge of an age of legitimate unauthorized appropriation of recorded samples.  Girl Talk’s “Feed the Animals” is the latest product from Illegal Art that raises the question, posed by the N&VR Journal: “at what point does sampling end, and a new creation with a new ’songwriter’ begin?” It’s a question posed again and again by musical collage. It is not, as I am likely to point out again and again, a position that is “anti-copyright.” Rather, as Illegal Art’s founder, Philo T. Farnsworth, explains:

I should clarify that we are and we aren’t anti-copyright. We’re against copyright law when it impedes an artist’s ability to interact with pre-existing recordings. We’re not against copyright protecting artists from someone copying their material and selling it without compensating them.

And watch out — Girl Talk is one of the big new things.  Of course, it seems likely Girl Talk will be put to the legal test one of these days. That would be a good thing: we might finally have a genuine examination of the relationship between copyright, fair use, and sampling.