Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
Girl Talk: If they passed out paints on the street for free, I’m sure there’d be a lot more painters.
Dickie Goodman & Bill Buchanan: The Flying Saucer — the first hit mashup and its legacy
Chuck Miller on the first controversial hit recording using samples of other songs:
[I]n June 1956, [Dickie] Goodman came up with an idea. “Bill Buchanan and I were writing some songs at the time,” said Goodman in a print interview, “trying to break into the business. We were sitting around and suddenly we got an idea. How would it be if we had a disc jockey show being interrupted by reports of a flying saucer – THE FLYING SAUCERS ARE REAL! – and suddenly the Platters line (from “The Great Pretender”) came to me – ‘Too real when I feel what my heart can’t conceal’ and we said ‘Hey!’ and we didn’t know any better so we put the thing together.”
Within a few days, Goodman and Buchanan spliced together a four-minute reworking of Orson Welles’ “War of the Worlds” radio broadcast. Goodman played “John Cameron Cameron,” an unflappable reporter interviewing people, officials and even the Martians themselves. Buchanan was heard as a title-mangling disc jockey (allegedly based on Alan Freed), who interrupted a Nappy Brown dance number with news of an invasion from Mars.
Buchanan: We interrupt this record to bring you a special bulletin. The reports of a flying saucer hovering over the city have been confirmed. The flying saucers are real!
Radio:Too real, when I feel, what my heart can’t conceal… (from the Platters’ “The Great Pretender”)
Buchanan: That was the Clatters’ recording, “Too Real!”
And that set the pattern. Goodman would interview eyewitnesses about the spaceship, whose responses were the lyrics of popular songs.
Goodman: This is John Cameron Cameron downtown. Pardon me madam, would you tell our audience what would you do if the saucer were to land?
Witness: Duck back in the alley (from Little Richard’s “Long Tall Sally”) . . .
The record continued. While the flying saucer landed on Earth, Buchanan and Goodman greeted its arrival with more splices, in-jokes and primitive technical wizardry.
Goodman: This is John Cameron Cameron on the spot. And now I believe we’re about to hear the words of the first spaceman ever to land on earth.
Martian: “A WOP BOP A LOO MOP A LOP BAM BOOM” (from Little Richard’s “Tutti-Frutti”) . . .
The duo shopped their pastiche to every record label in New York. Nobody was interested; many record execs dismissed the recording as a cheap “sampler.” Undaunted, they took the tape to radio station WINS, where disc jockey Jack Lacy agreed to play it. He gave the song a couple of airings, then let the next DJ – Alan Freed – play the track during his show.
Meanwhile, Buchanan and Goodman visited George Goldner, a producer at Roulette Records. In a print interview with Art Fein, Goodman remembers that meeting. “We were in George’s office, but before we got a chance to play our record, one of his salesmen burst in and asked if anybody knew about a record that was played on WINS the night before – something about Elvis Presley and spacemen. Everybody in town wanted it. George took it on immediately.”
* * *
Although the record was an immediate hit in New York, it took a couple of weeks for the rest of the country to catch on. The NBC and ABC radio networks initially banned the song, because they didn’t want any listeners misunderstanding the gag record as an actual announcement of an invasion. Other parts of the country couldn’t get their hands on the record fast enough. In Cleveland, for example, the record was so scarce that stores were charging customers as much as $1.75 for each copy.
Meanwhile, the Music Publishers Protective Association, through the offices of its trustee, the Harry Fox Agency, claimed “The Flying Saucer” was guilty of at least 19 different instances of copyright infringement and unauthorized usages. “If we can’t stop this,” said one record insider to Billboard, “nothing is safe in our business.”
“No industry exec believes [Buchanan and Goodman] have a leg to stand on in their use of copyrighted material and other disk artists without permission,” said an unnamed source to Variety.
But although the record companies publicly moaned and wrung their hands over the issue, they initially let the publishing houses go after Buchanan and Goodman for copyright infringement, rather than litigate the matter themselves. Part of the reason may have been because “The Flying Saucer” actually increased sales of records included in its collage. For example, because a snippet of “Earth Angel” was part of “The Flying Saucer,” requests for the Penguins song forced DooTone Records to reissue their hit. As an unidentified publishing representative told Time magazine, “It’s the greatest sampler of all. If you’re not on ‘Saucer,’ you’re nowhere!”
Some record company executives questioned whether Buchanan and Goodman actually infringed on any rights at all. The fragments were all part of ASCAP’s and BMI’s libraries, and Buchanan and Goodman’s lawyers argued that the question was really whether “The Flying Saucer” contained any material that wasn’t part of those two libraries. One record exec told Variety that he was ready to forget the whole business and just let the record run its course. Another industry lawyer said that because of all the publicity this case received, he didn’t think anybody would dare make another “snippet” record for at least another decade.
After much negotiation among all parties, an agreement was finally reached. The publishing houses would split 17 cents in royalties from every 89 cent copy of “The Flying Saucer” – approximately 1 cent for each publisher per disc sold. Buchanan and Goodman could still sell their single, and the song was finally cleared for jukeboxes and radio airplay.
By August 15, 1956, “The Flying Saucer” had sold 500,000 copies in three weeks, and was a regional #1 hit in Pittsburgh, Louisville and Cleveland. By the end of August, “The Flying Saucer” had doubled those sales figures, and climbed as high as #3 in Billboard’s and Variety’s national sales charts, just behind Elvis Presley’s two-sided hit “Don’t Be Cruel”/”Hound Dog” and the Platters’ “My Prayer.” In some cities, “The Flying Saucer” actually beat Elvis for a few weeks in sales and local airplay. Jukebox owners purchased three or four copies of “The Flying Saucer” for their businesses – and a couple extra for themselves. Disc jockeys loved the song, and began working on “break-in” collages of their own.
Some of those “break-in” records actually made it to disc – many of them while “The Flying Saucer” was flying up the charts. . . .
The publishing houses were furious. Instead of “break-in” records stopping, now they were multiplying like weeds in a garden. In an attempt to limit the production of new “break-in” records, the publishing houses demanded an increase from the standard two-cent royalty for each song used, to eight cents per song from each of the new “break-in” discs!
Many of the smaller companies simply gave up. . . . Plus Records . . . pressed 53,955 copies of an Elvis-themed “break-in” record, “Dear Elvis, With Love From Audrey” . . . , but could sell only 30,000 copies before the increased royalty rate was assessed. As part of a settlement agreement, Plus Records turned over the master of “Dear Elvis” to the publishing houses, who promptly destroyed the master.
In November 1956, Buchanan and Goodman began work on their second single, “Buchanan and Goodman on Trial” (Luniverse 102), a “break-in” record satirizing their experience in the courtroom. With Little Richard as their defense attorney and a jury full of Martians acquitting the “break-in” duo of all charges, “Buchanan and Goodman on Trial” became both a moderate hit and a not-so-veiled jab at the legal system.
This time the record companies fought back. Four record labels – Imperial, Aristocrat, Modern and Chess – along with two performers, Fats Domino and Overton Lemon (Smiley Lewis), filed suit in New York District Court for an injunction against all Buchanan and Goodman recordings, as well as $130,000 in compensatory and punitive damages. They also wanted 6 cents per single for use of such songs as “Ain’t That A Shame,” “Maybelline,” “I Hear You Knocking” and “Hard to Tell” on the two Luniverse singles. Two publishing companies, Commodore Music and Arc Music, joined in the suit, both refusing Luniverse’s original penny-per-sample out-of-court settlement from the first trial.
During the trial, Saul Goodman, Dickie Goodman’s father and co- counsel for the defendants, brought a copy of “The Flying Saucer” into the courtroom as Exhibit A. “My grandfather took it up to the judge,” said Jon Goodman,” and he asked the judge to take it home and listen to it. At first the judge didn’t want to do it, but he went ahead and did it.”
The next day, judge Henry Clay Greenberg denied the injunction, writing in his decision: “The defendants [Buchanan and Goodman] artfully and cleverly have devised interesting novelty records which make use of portions of records of successful performers under exclusive contract with the plaintiffs and others … In this highly competitive industry, the fruits of labor may be gathered in or lost quickly … Undoubtedly some considerable value attaches to the portions of the plaintiffs’ records which have been adopted by the defendants … the court is not able to determine whether or not the defendants have exceeded the bounds of permissible fair competition … A temporary injunction ought not to issue in a case unless the offense is clear.”
“The judge later said that the “Flying Saucer” was a satire, a parody, a new work – a burlesque, in effect – and there was no reason to charge Luniverse with violation of anybody’s copyright,” said Jon Goodman. “There were out of court settlements – they arranged clearances for the publishing houses and whatever. My father made the Harry Fox Agency, which was in charge of collecting mechanicals and royalties, a more interesting organization to work with.”
* * *
In fact, Goodman’s snippet records may have been the rock equivalent of the compositions of John Cage, David Tudor and George Rochberg – using tape recorders and phonograph records as instruments, slicing up reel-to-reel tapes and resplicing them at random; creating new recordings from the fragments of old ones. It was the music of indeterminacy, as Luciano Berio composed “Sinfonia” by quoting from a Mahler symphony and fragments of a theatrical production. It was new uses for old technology, as Ferrante and Teicher plucked the wires of a “prepared piano” for a harp-like sound. Music barriers were being torn down, as Edgard Varese’s aural symphonies influenced the work of Frank Zappa; and as Karl-Heinz Stockhausen’s electronic compositions left an indelible imprint on the Beatles’ “Revolution No. 9.”
And Dickie Goodman may have been the first to turn this “music of indeterminacy” into pop recordings. Other unsuccessful attempts at “break-in” records could be found as early as the 1920′s, according to syndicated radio host and music expert Dr. Demento. “In 1928, The Happiness Boys (Billy Jones and Ernest Hare) recorded a comedy sketch for Victor called ‘Twisting the Dials,’ about listening to the radio. It used a few snatches of other phonograph records to simulate the music that was encountered while ‘twisting the dials.’ The record was not a big seller. Spike Jones and Stan Freberg often used quotes from existing songs for humorous effect, but not bits of actual hit records. I would say that for all intents and purposes, ‘The Flying Saucer’ was the first successful release in that genre.”
* * *
Goodman’s legacy is still alive today. . . .
And most of all, he wants anybody who ever sampled a track, anybody who ever transposed a lyric into an entirely new song, anybody who had to contact the Harry Fox Agency to determine proper mechanical rights – to remember Dickie Goodman. “This is what I was meant to do. What I’m trying to do is stop something that can last forever from fading away. I’m trying to save my father’s work.”
Again: Culture is Collaborative. Kembrew McLeod this time.
In the Atlantic, there is an interview with “intellectual property scholar (and Atlantic contributor) Kembrew McLeod,” who, with copyright lawyer Peter DiCola, argues in Creative License: The Law and Culture of Digital Sampling that “current digital copyright practices unfairly burden musicians who sample snippets of other artists’ songs in their own music. begins by taking us back to the golden age of hip-hop, demonstrating how lawsuits quashed a nascent art form during its artistic ascendancy.” In the course of the interview, McLeod touches on several points I have emphasized in this blog, including the ways sampling (like any sort of artistic appropriation) serves perfectly traditional and ordinary artistic purposes:
Sounds can bring back memories. Some samples remind the listener of a particular era, or connect a song with a particular moment in time. Artists want to transport themselves, and the listener, for nostalgic reasons—or to provide historical resonance. Sampling can function like an audio time machine.
McLeod also articulates a point I have made over and over again: that our conventional notions of “authorship” as the creation of wholly original art from the mind of an inspired genius is not at all consistent with the reality of artistic creation:
The old-school notion of the individual genius author is embedded in European and American copyright law—the lone individual genius toiling away until a burst of creativity creates a truly original work unlike anything else that previously exists. But we know that, in the world of music, you can’t really create a new song without referring to an old song in some way. So the law itself assumes a Romantic notion of authorship, though we know this isn’t how culture is produced. Culture is collaborative.
The entire interview is worthwhile. It covers a wide range of matters relevant to these issues and is especially informative on the history of the music industry’s ways of dealing with sampling.
Can you be original if you do nothing but appropriate the work of others?
From Wikipedia: Ophir Kutiel (born 1982), professionally known as Kutiman, is a musician, composer, producer and animator from Israel. He is best known for creating the online music video project ThruYOU, an online music video project mixed entirely from samples of YouTube videos which has received more than 10 million views. Time Magazine named it one of the 50 Best Inventions of 2009.
Here is This is What it Became, one cut from ThruYOU:
Mike Masnick of techdirt, writes yesterday, in terms that a lawyer for Gregg Gillis would love:
[T]o hear some people talk about these things, none of this is “creative.” It’s all just “copying.” In some cases it’s outright “piracy.” After all, Kutiman is using the works of others, and doing so entirely without permission. And yet, I have trouble seeing how anyone can legitimately claim that these songs are “piracy” in any real sense of the word. Kutiman is clearly a musician. That he uses a note played by someone else on a YouTube video, and then “plays” it himself, strikes me as no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar. A musician is putting different sounds together to create music. Does it really make a huge difference if that music involves someone making a note from an instrument directly themselves… or by taking the note originally played by someone else and doing something creative and amazing with it?
I think Masnick is right on in stating that the use of technology widely available only in the last several years to compose a work from pieces of other recorded work is “no different than playing a keyboard that plays a recorded sounded, or even strumming a guitar.” What many fail to recognize is that the music the likes of Kutiman, Gillis, DJ Earworm and a myriad of others are producing today is the result of new technology, not a new mindset. There are plenty of people out there who would tell you that rampant sampling is the consequence of a generation without respect for property rights. But I think people who say such things are missing the real point: ten years ago, it would have been very difficult for people like Gillis and Kutiman to compose the work they compose today. Twenty years ago it would have been impossible without efforts few but the most dedicated would resort to.
In short, we have new instruments today. That those instruments produce their sounds by means of reproducing pre-recorded sounds does not make them any less instruments than instruments that can produce only a limited number of notes.
Substantially similar or original? Can’t it be both?
From The Millions: “’Substantially Similar? (after Koons 2010),’ [right] is composed of 36 rectangular panels, each contributed by a different artist and then assembled by the artist who conceived the piece, Alfred Steiner. The result was an instantly recognizable riff on Jeff Koons’s ‘Popeye’ series [left] – an appropriation from an appropriator who has made headlines in several highly publicized copyright cases. A note beside ‘Substantially Similar?’ left no doubt about its creator’s stance on the passionate arguments for and against copyright laws: ‘By engaging these issues, the project may also suggest how copyright antagonizes artistic freedom while providing artists no discernible benefit.’”
Steiner is a “lawyer who happens to be an artist.” Steiner described his methods in composing Substantially Similar? (after Koons 2010):
I took an electronic version of the Koons original and divided it up into 36 pieces and sent each artist just one little piece, via e-mail, so they wouldn’t recognize the whole thing. I gave them instructions on how to create an image based on the image that I’d e-mailed them. The only other instructions were a very close paraphrase of the 2nd Circuit’s test for copyright infringement – which is, “would a reasonable person regard the two works’ esthetic impact as the same?”
TM: In other words, would a layman recognize these two works as being the same thing?
AS: Right.
TM: So the contributors didn’t know what they were reproducing?
AS: Right.
TM: And the result was a piece that looked vaguely like Koons, but was different.
AS: It had the essence of the original but was clearly a new work.
In connection with Girl Talk, Steiner states what is very much my thinking — why would we want to stop something so good?
[Greg Gillis] will make songs that are totally based on samples. One song may have 200 samples, so many that there’s no way you could pay each artist. He’s very well received critically. The question is, should it be possible to make that kind of work or not? I kind of think, yes, it should be possible.
There’s no such thing as a free sample? That’s ridiculous.
It’s arguments like those set forth in Curtis Smolar’s column, “There’s no such thing as a free sample,” that give the music industry and its advocates a bad name. He’s wrong — or, at the very least, more prescient than I, in concluding that “[t]here’s no such thing as a free sample.” As I’ve written about at length in the past, the music industry’s practice of requiring payment for any sample of recorded music was a self-interested decision by the music companies themselves in the wake of 2 court decisions, the legitimacy of which are subject to serious question, that are not controlling precedent in most of the country.
Smolar begins his column stating, “Just because something is commonplace doesn’t always mean it’s legal.” I would counter that with this: just because the record companies made a decision back in 1991 that they each would pay for permission to use recorded samples of each other’s music doesn’t mean that payment is required.
Smolar also seems to imply that because fair use is used as a defense to copyright claims and can be characterized as an “exception” to the real rule that any use of a copyrighted work constitutes infringement it somehow has little importance. One could just as easily characterize fair use in this way: Under the First Amendment to the Constitution, we can express ourselves any way we want, even in ways that “steal” your own forms of expression, unless there’s a good reason to stop us. In short, copyright is an exception to the foundational right to free expression.
But Smolar isn’t interested in being accurate — he appears interested only in scaring anyone off of unlicensed sampling. He and his ilk haven’t been too successful in that effort. But then why would he be successful in scaring people if he misrepresents the law as egregiously as he does when he states that “[sampling fails to meet each and every one of the four prongs of the" statutory elements courts consider in determining whether the use of copyrighted material constitutes fair use. It's a whole lot more complicated than that. First, of course, the four-part test does not call for an "either-or" determination on each factor. So it's just plain wrong to write "[t]he use must be for non-commercial purposes.” It’s not true either that “[t]he nature of the copyrighted must be in the public interest.” The mere fact someone samples the identifiable part of a song does not make the sampling an infringement either. Finally, Smolar states that sampling damages the market for the song from which the excerpt was taken “because the new song may be purchased for as much as the original.” I’m not sure what that means. He can’t possibly mean that if I get Girl Talk’s “Triple Double” I therefore wouldn’t buy “Steppin’ Out” by Joe Jackson. But all he might otherwise mean is that if Girl Talk’s songs are so good that people are willing to pay a lot of money for them (though they can get them for free), that can’t be right. The more the appropriation is valued in its own right, the more “transformative” it is and, therefore, the more likely it constitutes fair use.
But Smolar isn’t interested in the law. He’ just interested in scaring people into believing they’ll be sued by the record industry if they sample anything.
Addendum: For an good discussion of fair use and its complexities (in a context entirely divorced from music), see “Fair Use Controversy: The Gift That Keeps On Giving.”
Why hasn’t Girl Talk been sued? My answer, sampled and remixed in a new article
Why hasn’t Greg Gillis, who performs and records as Girl Talk, been sued despite (1) the fact his music consists entirely of recorded samples of other recordings, (2) his high profile and success, and (3) the music industry’s insistence — based on very shaky legal grounds — that no recorded sample can be appropriated without permission?
Well, I’ve been saying it for a long time, and I believe I was the first — Gillis is just too good:
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.
And now comes Joe Mullin, of paidContent.org explaining Why The Music Industry Isn’t Suing Mashup Star ‘Girl Talk“:
So why hasn’t Gillis been hauled in front of a judge by the music industry? Probably because he’s the most unappealing defendant imaginable. Gillis would be a ready-made hero for copyright reformers; if he were sued, he’d have some of the best copyright lawyers in the country knocking on his door asking to take his case for free.
At the Electronic Frontier Foundation, probably the most well-funded public interest group working in the copyright space, lawyers have made it clear for years that they’re positively eager to litigate a case over music sampling, which they believe is a clear-cut case of fair use.
And I’ve said it before myself. I’d love to represent Gillis in that case should it ever come about.
If Girl Talk does get sued, I’d love to represent him.
Greg Gillis and I see things very similarly, and I”m a big fan too:
Why the music industry won’t sue certain samplers such as Girl Talk and the producers of Copyright Criminals.
I’ve discussed extensively in the past (most prominently, perhaps, here) my view regarding the music industry’s view that considers any unlicensed sample of a copyrighted recording, no matter how small and how transformed, a copyright infringement. In short, I think it likely the case law on which that view is based would be overturned if it is challenged in any case in which the sampling is used in a way sufficiently transformative that the sampling work stands on its own as a creative work. In short, that’s why I don’ t think Girl Talk has been sued.
Transformative uses of copyrighted work are permitted under the fair use doctrine, and so are critical uses. That’s why I don’t think Kembrew McLeod needs to worry about a lawsuit in connection with the documentary film he co-produced “titled Copyright Criminals, which examines the messy three-way collision between digital technology, musical collage, and intellectual property law.” So why does McLeod worry? Because he’s right in explaining the following:
The music industry believed that the law didn’t distinguish between copying one second or half a minute of a sound recording. Therefore, record companies now insist that every fragment of sound needs to be cleared, something that fundamentally altered the aural evolution of hip-hop music. The more complex you make your sound collage, the more impossible it is to share with the world. And in the course of documenting the legal and cultural history of this art form, Ben [McLeod's co-producer] and I are risking being sued.
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 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.
Why has Girl Talk not been sued? You won’t find the answer at SXSW.
You might think that the expert-filled session at the SXSW Festival on “Why the Recording Industry Hasn’t Sued Girl Talk?” and the Texas Observer’s reporting on the session might come up with more profound (and unfounded) statements than the Observer’s unqualified declaration that ‘[T]he totally fascinating upshot of all this is that it turns out that what Girl Talk is doing is definitely NOT legal.”
But why should a bunch of critics and experts who feel they’re at the center of the music universe down in Austin Texas put more thought into the issue than that? Any regular reader of this blog (and many less-than-regular readers) know that I have written extensively on why I believe Girl Talk has not been sued. And it’s not because what Girl Talk is doing “is definitely NOT legal.” One might wonder too why the legal and music experts at SXSW think the legal regime that requires a license for any recorded sample, no matter now brief, is as well-founded in the actual law as they seem to assume.
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?
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.