1.25.2011

Mashups: Should Innovation Excuse Infringement? (Part 1 in a Series)

Today Blawgconomics is very happy to be able to continue our tradition of posting the worthy work of colleagues who have written about topics in our claimed domain; the intersection of law and economics. In this post, the first in a short series, Frank Gonzalez takes a look at some of the issues surrounding one of the latest trends in the popular music arena, the mashup.

Introduction

On November 15, 2010, Girl Talk released the album “All Day,” which contained over 370 unauthorized samples of sound recordings. Girl Talk, the stage name of Pittsburg mashup artist Greg Gillis, has now released five mashup albums under the label Illegal Art as well as numerous other EPs under various independent labels. All of Gillis’ albums contain hundreds of unlicensed and unauthorized songs; and, much to the recording industry’s chagrin, Gillis is not alone.

Sampling, an artist’s incorporation of a short segment of a preexisting sound recording into a new recording, has come a long way from its humble beginnings in the 1960s when Jamaican disc jockeys “used portable sound systems to mix segments of prior recordings into new mixes” and sang over them. 1 Today, producers and - with the development of affordable, yet sophisticated, digital devices - even amateurs can infuse a number of songs, sounds, and sequences into their new recordings.

Although sampling has been around for decades, many date mashups’ public debut to 2004, when Danger Mouse “released” his Grey Album. 2 The Grey Album was a combination of Jay-Z’s a cappella version of the Black Album with The Beatle’s White Album. 3 Shortly after getting wind of the release, EMI, owner of the publishing rights of The Beatle’s sound recordings, sent a cease and desist letter to Danger Mouse. 4 In response, music activist group Downhill Battle organized what they termed “Grey Tuesday.” 5 And, on February 24, 2004, over 100,000 copies of the album were downloaded for free, as an expression against EMI’s “corporate censorship.” 6

Although courts have addressed the issue of sampling, albeit not providing any unanimous conclusions or clarity, 7 mashup artists have not yet been sued by any artists or recording companies. However, it is important to recognize that even if mashup artists like Gillis are hailed into court at some future date, mashups and sampling differ in very serious regards and, accordingly, would likely produce different outcomes. While sampling customarily incorporates a prior work into a new work, mashups are entirely comprised of prior recordings and contain little to no original material. 8 Further, sampling artists typically obtain licenses prior to using a preexisting recording, whereas mashup artists obtain such permission seldom, if ever. 9 The absence of mashup artists from the courtroom, however, should not be taken as an endorsement of their legality.


Are Mashups Infringements?

The Copyright Clause of the U.S. Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the Exclusive Rights to their respective Writings and Discoveries.” 10 In pursuance of this objective, Congress enacted the Copyright Act, which grants authors the following set of exclusive rights: the reproduction right, the right to derivative works, the public distribution right, the public performance right, the public display right, and, in the case of sound recordings, the right to digital audio transmission. 11 Even a cursory glance at this list reveals that a mashup artist’s unauthorized use of samples constitutes infringement of at least some of the exclusive rights held by original authors.
For example, the Copyright Act defines a derivative work as a “work based upon one or more preexisting works, such as a translation, musical arrangement . . ., sound recording . . ., abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” 12 A mashup by definition is a derivative work, as it is a new work based upon one or more sound recordings. Therefore, without authorization from the copyright owners of the incorporated recordings, a mashup is an infringement. Additionally, although Section 114 of the Copyright Act limits the exclusive rights of the owner of a sound recording, a mashup nonetheless infringes upon the owner’s “right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence and quantity.” 13

By way of further illustration, a mashup also violates the reproduction right, as it clearly reproduces “the copyrighted work in copies or phonorecords.” 14 A mashup reproduces a work on a phonorecord when it places the work on “material objects in which sounds . . . are fixed by any method now known or later developed, and from which sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 15

The illustrations above indicate that mashups infringe upon the rights that federal law has granted to authors. Mindful of the constitutional purpose behind the Copyright Clause, however, congress and the judiciary have imposed several limitations on authors’ exclusive rights, recognizing that certain uses should be excepted from infringement. 16 If mashups satisfy the conditions for any of these exceptions, as listed in the Copyright Act, their use would be permissible.

Part 2, discussing the limitations on artist rights which courts have built into copyright law, can be found here.


1. Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004).
2. See Aaron Power, 15 Megabytes of Fame: A Fair Use Defense for Mash-Ups As Dj Culture Reaches Its Postmodern Limit, 35 SW. U. L. REV. 577, 580-1 (2007).
3. See Danger Mouse Speaks Out on ‘Grey Album’, BILLBOARD.COM, http://www.billboard.com/#/news/danger-mouse-speaks-out-on-grey-album-1000455930.story.
4. See Joseph Patel, Grey Tuesday Group Says 100,000 Downloaded Jay-Z/Beatles Mix (March 5, 2004), http://www.mtv.com/news/articles/1485593/20040305/jay_z.jhtml.
5. See id.
6. See id.
7. See Newton, 388 F.3d 1189; see also Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).
8. See Michael Allyn Pote, Mashed-Up In Between: The Delicate Balance of Artists’ Interests Lost Amidst the War on Copyright, 88 N.C.L. REV. 639, 646 (2010).
9. See id.
10. U.S. Constitution art. I, § 8, cl. 8.
11. 17 U.S.C. § 106 (2009).
12. § 101.
13. § 114.
14. § 106(1).
15. § 101.
16. See §§ 107-122.

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