Aural Collage and the Law

Click on the picture below to see my PowerPoint presentation from last week’s COSE Arts Forum on Intellectual Property and the Arts.

Why is music the main battleground in the copyright wars?

Andrew Dubber is an established scholar working in Britain, an author, and an online music consultant writing a book “about the music industries and intellectual property in the digital age.” He’s also writing a blog as “a scrapbook of material for” the book. The book and the blog, Deleting Music, are “[s]pecifically . . . about the problems that arise when music is only considered in terms of its function as commerce, rather than as culture.”

Two days ago Dubber raised this question: why is his focus on music when the issues he is exploring “extend[] way beyond popular music into books, visual arts, academic works, medicine… and extend[] into the realms of international trade, global politics and genuine life and death issues”? He believes that the reason is that the music industry is uniquely threatened by the commercialization of culture:

There’s a genuine cultural crisis going on in the music industries. Master tapes are decaying in vaults. Original works – by artists you’ve heard of, not just obscure and irrelevant wannabes – are not being preserved. Archives and libraries are only reluctantly being supplied with copies of released material – and not reliably so.

In music, perhaps in more than any other field, culture is not merely being prevented from being remixed – it’s completely disappearing, preventing it from forming the basis of any future works or research. And it’s that, more than anything else, that I want to communicate through this book.

This is not a hypothetical problem, or merely an unfair distribution of power. Popular music culture is literally vanishing right now. Magnetically-charged metal oxide particles are falling from master tapes as we speak.

To me, that’s important, urgent – and worthy of its own book

Music has been the center-piece in the recent copyright wars. Dubber knows better than I the impact of the music industry’s practices on the culture, but I think there’s a very good legal explanation for the music industry’s centrality to today’s copyright disputes.

In both the plastic arts and in literature there is a long history of, well, “remixing” as a legitimate method of creation. There has been in music as well, but not in quite the concrete and specific way there can be in painting and literature. Collage is a long-established artistic genre, and in literature the wholesale copying and rearranging of existing work as a composition method goes back to the foundation of Western literature in Homer. In music, on the other hand, while composition has always been a matter of reworking existing formulas, we’ve been operating in recent times on a general assumption that lifting a single note from an earlier recording constitutes copyright infringement. For long enough this practice has been the norm in the music industry that most people I know simply assume it’s an indisputable fact that if you sample anything from a copyrighted work you must pay for the sample.

But that’s a very debatable proposition. So where did it come from?

Paying for every last sampled note from a copyrighted song only became standard industry practice beginning in 1991 practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc. , 780 F. Supp. 182 (S.D.N.Y. 1991), 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 cheesy hit “Alone Again, Naturally.” Duffy wasn’t satisfied with a mere injunction; he also referred the defendants to the U.S. Attorney’s office for criminal prosecution and began his opinion, like a preacher from the pulpit with these words:

“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. One likes to think the prosecutors were more thoughtful about the copyright issues the case raised than was Judge Duffy.

But Biz Markie’s record company did not appeal the decision and, in fact, the decision marked the beginning of the music industry’s practice of requiring permission and payment for any sample. The companies that at the time constituted the industry had a strong interest in maintaining the regime Duffy’s decision put into place (a regime bolstered in 2004 by the decision in  Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), in which the court ruled that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats). Deference to this legal regime meant that each company’s recordings were inviolate without payment. There was no economic reason to challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use was, and no matter how little impact it would have had on the market for the sampled piece. Moreover, artists who would have challenged the existing regime hardly had the financial wherewithal to take on the industry and the enormously successful artists who benefit from it. Thus, as John Pareles 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 “generally speaking, the use of any part of a song requires a license.”

But, as I have emphasized again and on this blog, law is forced to change when the material conditions it governs change, and the ability to make and stitch together samples into compositions that can be disseminated world-wide — an ability that in 1991 was held almost exclusive by the recording industry — is now within reach of, literally, millions of people. It is inevitable that with this change the deference given to a trial court decision in 1991 would be challenged and that the arguments Judge Duffy entirely ignored in that decision would be examined anew.

But when, and in what circumstances? That is the interesting legal question right now. As I’ve previously written, Greg Gillis, who performs as Girl Talk, creates music that does nothing but violate the rule Judge Duffy declared inviolate since the dawn of civilization — Girl Talk’s work consists entirely of samples of recordings (virtually all copyrighted) stitched together into entirely new works.

Girl Talk’s work therefore has been described as a “lawsuit waiting to happen.” Gillis’s compositions include samples of recordings made by such artists as Metallica, who have demonstrated their willingness to sue people they believe have violated their copyrights, and the Guess Who, whose representative has stated ,  “We’ll chase [Girl Talk] down. What more can you do?” Yet no one, as far as I know, has yet sued Gillis. Why?

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.

We are very confused about the difference between similarity and illicit copying. Down Under and Kookaburra this time.

Another in a long line of this type of case: Larrikin Music is suing for compensation from royalties earned by Men at Work, alleging that the distinctive flute riff in “Down Under” was copied from the refrain of a 1934 children’s tune, “Kookaburra Sits in the Old Gum Tree.” As I suggest in the post liked to above (as well as many others on this blog), one has to ask these questions: Do our markets reward plagiarism, or are we confused in believing that an artist or author only has rights in his work if his work is unique? And if an artist does have rights to work that is derivative (as I believe most creative work is), don’t appropriators (collage artists, musicians who create “aural collages” by weaving together samples of copyrighted recordings) also have rights in their works?

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.

We are all cultural magpies.

I’ve written before that many consider all creative endeavors collaborative. This collaborative quality obviously has significance in an environment in which, for example, the RIAA states that “generally speaking, the use of any part of a song requires a license.” (emphasis added). Although until now the courts have indeed found that a sample of any part of a song does require a license, a more nuanced approach is, I think, inevitable. That inevitability is not just because groups like Girl Talk and Negativeland are creating works that sound genuinely “original” by weaving together pieces of other recordings. It is also because there is a growing recognition that some of the people we consider our greatest originals are cultural magpies.  And pop music, the “property” the record industry protects most fiercely, is likely the most unoriginal original art there is. As the KLF put it in The Manual (How to have a Number One the Easy Way):

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested.

You don’t believe them? Check out Kid Rock (and don’t get me wrong — I like the song, but no small part of my liking it is knowing the songs it’s derived from):

And just to make your head spin, read this.

Negativeland’s positivity

I’ve written before here about Girl Talk.  As I wrote then, Girl Talk’s music, which consists entirely of the weaving together of samples from other recording artists, is a direct challenge to a legal and business regime that  has treated as theft any sample of any recording without permission, regardless of the size of the sample and regardless of the appropriating work’s origniality.  

Long before Girl Talk, however, came Negativeland, doing the same thing and, unlike Girl Talk, articulating intelligently along with the music the theoretical justifications for its methods.  Here, as post-modern as it gets, is Negativeland’s “No Business”:

Negativeland’s art can lead to amusing ironies.  including its confrontation with U2 or, rather, as they found out later, when they actually ran into U2’s Dave Evans (a/k/a “The Edge”), U2’s record company, which had never actually consulted with the members of U2 before taking legal action that wiped Negativeland’s “U2,” a tape collage satire of U2’s “I Still Haven’t Found What I’m Looking For,” off the face of the earth.

One may not agree with Negativeland’s stance (and they can go on about it), but it is a thoughtful and undeniably compelling one, as this excerpt one of their essays should begin to make clear:

We think it’s about time that the obvious esthetic validity of appropriation begins to be raised in opposition to the assumed preeminence of copyright laws prohibiting the free reuse of cultural material. Has it occurred to anyone that the private ownership of mass culture is a bit of a contradiction in terms?

. . . We are now all immersed in an ever-growing media environment — an environment just as real and just as affecting as the natural one from which it somehow sprang. Today we are surrounded by canned ideas, images, music, and text. . . .  Most of our opinions are no longer born out of our own experience. They are received opinions. Large increments of our daily sensory input are not focused on the physical reality around us, but on the media that saturates it. As artists, we find this new electrified environment irresistibly worthy of comment, criticism, and manipulation.

The act of appropriating from this media assault represents a kind of liberation from our status as helpless sponges . . . . Appropriation sees media, itself, as a telling source and subject, to be captured, rearranged, even manipulated, and injected back into the barrage by those who are subjected to it. Appropriators claim the right to create with mirrors.

Our corporate culture, on the other hand, is determined to reach the end of this century while maintaining its economically dependent view that there is something wrong with all this. . . .

Our cultural evolution is no longer allowed to unfold in the way that pre-copyright culture always did. True folk music, for example, is no longer possible. The original folk process of incorporating previous melodies and lyrics into constantly evolving songs is impossible when melodies and lyrics are privately owned. We now exist in a society so choked and inhibited by cultural property and copyright protections that the very idea of mass culture is now primarily propelled by economic gain and the rewards of ownership. . . .

. . . That being the case, there are two types of appropriation taking place today: legal and illegal. So, you may ask, if this type of work must be done, why can’t everyone just follow the rules and do it the legal way? Negativland remains on the shady side of existing law because to follow it would put us out of business. Here is a personal example of how copyright law actually serves to prevent a wholly appropriate creative process which inevitably emerged out of our reproducing technologies.

In order to appropriate or sample even a few seconds of almost anything out there, you are supposed to do two things: get permission and pay clearance fees. The permission aspect becomes an unavoidable roadblock to anyone who may intend to use the material in a context unflattering to the performer or work involved. This may happen to be exactly what we want to do. Dead end. Imagine how much critical satire would get made if you were required to get prior permission from the subject of your satire? The payment aspect is an even greater obstacle to use. Negativland is a small group of people dedicated to maintaining our critical stance by staying out of the corporate mainstream. We create and manufacture our own work, on our own label, on our own meager incomes and borrowed money. Our work is typically packed with found elements, brief fragments recorded from all media. This goes way beyond one or two, or ten or twenty elements. We can use a hundred different elements on a single record. Each of these audio fragments has a different owner and each of these owners must be located. This is usually impossible because the fragmentary nature of our long-ago random capture from radio or TV does not include the owner’s name and address. If findable, each one of these owners, assuming they each agree with our usage, must be paid a fee which can range from hundreds to thousands of dollars each. Clearance fees are set, of course, for the lucrative inter-corporate trade. Even if we were somehow able to afford that, there are the endless frustrations involved in just trying to get lethargic and unmotivated bureaucracies to get back to you. Thus, both our budget and our release schedule would be completely out of our own hands. Releases can be delayed literally for years. As tiny independents, depending on only one release at a time, we can’t proceed under those conditions. In effect, any attempt to be legal would shut us down.

So OK, we’re just small potato heads, working in a way that wasn’t foreseen by the law, and it’s just too problematical, so why not just work some other way? We are working this way because it’s just plain interesting, and emulating the various well-worn status quos isn’t. How many artistic perogatives should we be willing to give up in order to maintain our owner-regulated culture? The directions art wants to take may sometimes be dangerous, the risk of democracy, but they certainly should not be dictated by what business wants to allow. Look it up in the dictionary — art is not defined as a business! Is it a healthy state of affairs when business attorneys get to lock in the boundaries of experimentation for artists, or is this a recipe for cultural stagnation?

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.