How can something new come entirely from old things?

I’ve written before (here and elsewhere) about Girl Talk, the name under which Greg Gillis records and performs his aural collages, made up of hundreds of samples of pop recordings re-worked by him through contemporary technology into what can only be considered new songs. Gillis continues to get attention as he makes his way on tour across the country, this week in Tuscon and Dallas. As I have previously pointed out, on its face, Gillis’s work seems to run afoul of legal authority which holds that the use for commercial benefit of any recorded sample, no matter how brief, constitues copyright infringement. As the Tuscon Weekly points out, Gillis is a little tired of hearing about this:

Gillis says he’s tired of the media characterizing his music as a “lawsuit waiting to happen,” yet he admits: “There’s definitely a component there of seeming like an outlaw, and I think that appeals to some people.” Girl Talk’s appeal, perhaps, speaks to the preoccupations of a new generation raised online–and he may be just the sort of celebrity it fosters.

And indeed, Gillis samples such litigation-happy groups as Metallica. Nevertheless, I suspect Metallica will not sue Gillis. Why? Because lawyers no you don’t sue people who have the strongest case on the question of law you are concerned about. In other words, Gillis poses the greatest risk to the legitimacy of the cases ruling that any sample, no matter how brief, is an infringement. Metallica, thus, would rather sue someone who sampled their music in some ham-fisted way that plainly did exploit the value Metallica has created. Metallica would win the lawsuit against such a defendant.

Gillis, however, really does seem to have transformed his raw materials into something entirely new. (You can hear for yourself by downloading his album here, for any price (even zero — itself an interesting move in legal terms).)

In fact, whether a work is “transformative” is, exactly, what is determinative in deciding whether its appropriation of copyrighted work is fair use or infringement. No one is going to listen to a Girl Talk “song” that samples a Metallica song as a substitute for the Metallica song. The Girl Talk song is something entirely new, even if it is made up of things entirely old. This focus on the “transformative nature” of an appropriating work comes from one of those rare law review articles that actually have an impact on the real world, although in this case it was by a judge, Pierre Leval.