Tuesday, September 2, 2008

In The Matter of Mashups

It has been very pleasing to hear the Australian ABC radio station, Triple J, play the new Girl Talk track 'Let Me See You' from the album 'Feed the Animals' repeatedly in recent weeks. I admire both Gillis skill and tenacity in blending old sounds into new art.

A number of articles have been written recently about the potential legal impediments to this type of creation and the threat that creators of mashups face from copyright holders. Gillis consistently refers to his sampling as a form of fair use suggesting that he transforms the original works by recontextualising them. Others suggest, based on Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), that any sampling requires a license and it is just a matter of time before Gillis ends up before a court.

It was interesting to me to read recently that his music is licensed under a non commercial use creative commons license. One commentator questioned this given that Gillis himself is selling his music and yet he inturn seeks to prevent others from making a profit from sampling his remixes. The argument, which I found hard to agree with, was essentially that he was being hypocritical. I personally recognise the new value he has created and consider a non commercial use license as a generous affirmation of the values of the culture that surround the art form.

The law with respect to sampling highlights the inability of the legal system and the legislatures to keep up with modern developments and trends. It shows a distinct lack of flexibility to emerging art forms with many more creations such as these likely in the future. Indeed a German avant-garde musician Johannes Kreidler recently composed a song that samples 70,200 other musical works in 33 seconds.

Part of the problem is the uncertainty with the legal tests that are applied – in the United States factors such as the amount of the work that is used, whether it is for a commercial or non commercial purpose and the impact the use has on the market for the work are deciding factors. But in themselves as guidelines they are simply too vague for creators to apply to real life situations with certainty.

The situation in Australia is generally considered more strict but turns on whether a substantial portion of the prior work has been used.

I propose that the law be changed to allow an additional fair use/fair dealing right for music mashups. A maximum sample of 15 seconds of any song should be permissible before a license is required. This sample could be used repeatedly in the same song but any longer would require copyright clearance. Attribution should also be provided.

By providing a clear cut, timed segment of music without the need to compensate the copyright holder this art form would be free to develop without negatively impacting on the ability of past creators to receive entitlements from their works. As is often the case, the mashups trigger people’s cultural memories and sometimes even result in an increase in sales of back catalogue items.

Further Reading

MySpace, Girl Talk <http://www.myspace.com/girltalk> at 2 September 2008

Pop Matters, Life Savers: Girl Talk (17 July 2008)
<http://www.popmatters.com/pm/feature/60913/life-savers-girl-talk/> at 2 September 2008

Digital Music News, Resnikoff's Parting Shot: Girl Talk (31 July 2008) <http://www.digitalmusicnews.com/stories/073008parting> at 7 August 2008

TechDirt, Why Doesn't Girl Talk Allow Commercial Use? (25 July 2008) <http://www.techdirt.com/articles/20080707/0016231597.shtml> at 28 July 2008

P2p Blog, Musician mashes up 70,200 songs, delivers lists to rights holders by the truck load (21 August 2008) <http://www.p2p-blog.com/item-826.html> at 22 August 2008

Wikipedia, Good Copy Bad Copy (13 August 2008) <http://en.wikipedia.org/wiki/Good_copy_bad_copy> at 2 September 2008

Wikipedia, Girl Talk (musician) (31 August 2008) <http://en.wikipedia.org/wiki/Girl_Talk_(musician)> at 2 September 2008

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