it shouldn’t. It costs money, effort, and time to create music, and the copyright owners
should receive their rightful compensation for their work. But the system could have
been modified, and it still can, to include the possibilities of new creative processes
and productions, and not to impede on them, while still creating value and income for
the copyright owners as well. We could, for instance, have a system of compulsory sampling
licenses, like the existing mechanical license, where an appropriate and financially reasonable
statutory rate would be required in order to use limited portions of the copyrighted
music for sampling. Or some other relevant and realistic licensing system that would
make it possible to legally utilize even large number of copyrighted music segments for sampling
purposes in the production of new works.
Because it is clear that sampling and using copyrighted music in making new artistic creations
is here to stay, and that more and more people are using it, in more and more ways. So wouldn’t
it be productive, prudent, and conducive to the progress of creative processes, and for
business, to modify the current system, so it truly balances the needs of the new art
forms and the copyright owners?
The extreme example of what the current system causes, is the situation with Gregg Gillis,
better known as Girl Talk. Gillis creates mashup-type remixes, using a large number
of segments of the copyrighted songs, edited in a way that they fit together into a seamless
whole. And when I say a large number of samples, I mean a large number of samples. For instance,
Girl Talk’s 2010 album, All Day, consists of 372 samples of different artists’ songs
overlaid and edited in Gillis’ mashup style. So how did he get all those sampling licenses,
and how much did that privilege cost him? Nothing. He doesn’t obtain sampling licenses,
and therefore doesn’t pay for any.
So you are telling me that the whole hip-hop genre was changed and forced to take a different
direction because of the strict sample licensing requirements, that Biz Markie was prevented
by court action from using even one unlicensed sample, and yet Girl Talk is allowed to use
372 samples without a license? Well, he is not allowed or permitted to do it by anyone.
He just figured, he will do it, until someone sues him. And over ten years and five albums
later, no one has sued him yet. So what’s wrong with that picture? So many things, that
a full commentary on it simply couldn’t fit into a course like this. But a few fundamental
things need to be said here, and the situation addressed, because it is indicative of our
current state of the regulations in that area.
Gillis publically claims that his use of all the copyrighted music is fair use. That he
creates transformative, and not imitative music pieces, that those pieces put the copyrighted
songs he uses in very different context than the original versions, and that the way he
uses those songs does not impede on the original’s market or value. That if anything, he makes
the other artists’ songs, that he uses in his work, more popular, which widens their
audiences, thus increasing their sales and commercial potential. And that given all that,
his work is fair use. Of course, this hypothesis has not been tested in courts, and has no
legal precedent, so it remains just Gillis’ personal opinion.
But why? Why have the labels and publishers not sued for copyright infringement? Ambiguity
and fear. The ambiguity of the law regarding the fair use issue, and the fear that the
case thus might be lost in the courts just as easily as it may be won. The price of losing
such a case, and creating a new precedent, where a transformative type of sampling work,
like Girl Talk’s, is officially considered fair use, might at the end cost labels more
than what they are losing now. That’s the logic that stopped them dead in their tracks
on the way to the court. Because if Girl Talk would win by any chance, then the floodgates
would open, and the labels would also lose the royalties they are now collecting from
those producers who do pay for their samples.
So why do those producers pay? Because they are either with majors or large indies, and
a sample clearance through licensing, is a mandatory company policy for all the releases;
or they are using just a few samples in their work, and don’t want a risk of a copyright
infringement lawsuit. But if they are creating transformative type of works by using copyrighted
songs, and their work is not diminishing the original’s market and financial potential,
and that amounts up to fair use, like Greg Gillis claims, why worry? Because, as we said
earlier, that is, at best, an informed private opinion, based on the fair use provisions
in the law, but the courts did not have a chance yet to test that angle, so ambiguity
and fear rule. The Copyright Act is simply not clear enough about the issue for anyone,
on either side of the issue, to be sure which way that might go in the courts. The system
of sample licensing, as it stands now, is clearly inefficient, unpredictable, uneconomical,
volatile, and out of touch with the realities of new creative practices.
But there is an alternative out there that is gaining in strength, acceptance, and popularity,
when it comes to the copyright issues like these, and the current copyright law’s inability
to cope with new ways of artistic creation and creativity. It’s called Creative Commons.
And you should definitely know about it, and consider its system as a possible alternative
to the way things are in the world of the copyright licensing at the moment.
Darko VelichkovskiMusic Industry Program Director
