Picture by Myles! on flickr
Girl Talk. Mash-up artist extraordinaire. I had the privilege of seeing him live three or four months ago up at Trinity. It was awesome. He even came down off stage and pushed me! (In the good, dancey sorta way.)
Someone asked in my Intellectual Property class the other week why the hell Girl Talk hasn’t been sued. I was kinda wondering the same thing. There are a couple theories–the record industry doesn’t want the bad rep of causing the downfall of a guy with such a huge fanbase, etc. etc. Really, I don’t think anyone knows why he hasn’t been sued.
But we should step back a second and ask ourselves: Can he be sued at all in the first place?
In his latest album, Feed the Animals, Greg Gillis–Girl Talk’s real name–fluidly mixed and seamed together hundreds of samples to create a really impressive, amazing piece of music. The defenders of current copyright law claim you cannot use others’ creative works to create your own. Wrong. Gillis is a musician.
Besides his artistic nature, his work may even be perfectly legal. When I went to the website to download Feed the Animals, I was surprised it was licensed under a Creative Commons Attribution-Noncommercial license. How can he license something when it’s made fully up of other works? Well, he claims Fair Use.
(Before I go on, I would like to let you know that I’m reading up on Fair Use right now, and I may come back to edit this post. Or post another post. We’ll see!)
Fair Use is kinda cool, but kinda ambiguous at the same time. From what I’ve experienced, copyright law is messy, and people mainly argue whether or not a supposed copyright infringement falls under Fair Use or not. Fair Use basically says that, under certain circumstances, people can sometimes use some of another person’s copyrighted work sometimes. Sometimes. Depending. On stuff. This is why lawyers get paid a lot.
Well, this is what the law says about Fair Use.
US Code (via Cornell Law)
Title 17 § 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
First of all, I’m not sure why they use words like “such as.” This seems to unnecessarily confuse things. What would Girl Talk’s album fall under? Well, none really. Which is why they include the following:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
Girl Talk’s album is out there for an artistic purpose, but one that is somewhat commercial in nature. As in, the album is out there for free, but you can purchase the album, you can purchase higher quality files, and you can purchase the physical CD. Then again, I’m not sure if this really affects whether or not his works are copyright infringements. See (4) for more!
(2) the nature of the copyrighted work;
The copyrighted works are songs. I’m pretty sure that’s what this means. Though that seems very superficial. Someone correct me on this if I’m wrong.
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
This is Girl Talk’s main defense, I think. His samples are short, and he reworks them enough to make them unique (yet still recognizable). Some of his samples are as short as a couple seconds long, which he feels constitutes fair use. It’s like taking a couple notes someone has played and putting them in your own song… except taking that a little further. You’re taking the actual recording that someone has made.
(4) the effect of the use upon the potential market for or value of the copyrighted work.
This is an interesting clause. It seems to be the antithesis of what Lessig wants with a remix culture–if you can add value to a work, then more power to you. This clause takes into account, though, whether the use of someone else’s work diminishes the original copyright holder’s market. This is where Gillis’ defense #2 comes in: He claims he’s pretty much advertising, as noted in this video from the blog RyanIsHungry. He says:
I may sample James Taylor for twenty seconds on my album. No one is buying my album because they want to hear that James Taylor song instead of James Taylor’s thing. There is hundreds, maybe thousands of kids, who have emailed me being like ‘What’s that sample?’ Fifteen seconds on the track 3 of Night Ripper, and it’s like ‘That’s James Taylor’ and they’re going to go download that song and they may end up buying that album.
And it’s pretty true too. I pretty much agree that this album has no impact on the market of other albums or songs. And if it does, it is, if anything, positive.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
I’m not sure what this means. Oh well.
Meanwhile, we come to my situation. In a previous post, I put up an unfinished mash-up I made. After uploading it, I went to the Creative Commons website and licensed it! Then I immediately took the license down, because I was pretty sure what I did at the time was copyright infringement.
And, to tell you the truth, I still think it may be. I basically kept one song the same, spliced up another song, and put them together. The sample isn’t short, and I didn’t really alter it to any extreme. But my intention was… well… just for fun. And I don’t think I’m taking away from the market share of Justice or Carl Orff (died 1982). But still. I was inspired to just license the work anyways, but something just doesn’t feel right.
But really. Shouldn’t I be able to license that? In my ideal, copyleft, remix-encouraging, free culture of the future, yes. But in the real world, this day and age… well, maybe.
-Adi
In response to the nature of the work, I think that refers to whether it is mainly factual or creative. Something like an encyclopedia or a telephone book would be considered more factual than a song. The more factual it is, the more it helps the defendant, and the more creative, the more it helps the copyright owner. In the article we read by Carroll, it mentions that in general this guideline helps copyright owners since most works have some level of creativity in them. This would most likely hurt Girl Talk since all the copyright work he takes is completely creative in nature.
Girl Talk’s work is surely highly transformative, and this should weigh positively for factor #1.
As for factor #2, the nature of the copyrighted work, the works sampled from are creative in nature instead of factual. While this factor may slightly weigh against him, it is not dispositive.
For factor #3, do you think Girl Talk is sampling the “heart of the work?” As discussed in class, under Harper & Row, even the use of a short portion of the work may not be fair if it is considered to be the “heart” of the work. I think this may be Girl Talk’s greatest challenge.
It’s also why lawyers usually tell their clients to get a license to use even small portions of copyrighted works rather than taking their chances in court.
On another note, I’m pretty sure your definition of fair use is at least as coherent as the one in my IP textbook…
Your question at the end seems to be about what the law should allow, and not about what the law does allow. (If you’re talking about what the law allows, if I understand the process correctly, one can license anything, procedurally. The real question is whether the license will stand up if contested. Assuming those artists have traditional copyrights on those works, they’d be able to make a strong argument that your creation was not fair use.)
We should not be so quick to say that licensing a mashup of a certain type “should” be allowed, independent of context, use and who has consented to it. To play devil’s advocate, people being hesitant to post/license/promote highly derivative mash-ups has some positive effects. For example, I suspect that the unacceptability of mashups that are too similar to the original may be desirable for less famous artists. Some artists might want their work to have a chance to penetrate a market in its original form, and would not appreciate a slightly altered version being distributed and promoted by another.
I think this experiment illustrates the rationality of Creative Commons and similar licenses, though. Considering how readily people can make derivative works, it makes sense for authors to explicitly address the relationship they want to have with people who make derivative works. Ideally, the norm will be for creators to think of each work as a potential parent work, and consciously determine, in licensing that work, how they want to relate to daughter works. Staking the widest claim possible on your copyrighted work is not really the most practical or profitable model anymore.