[A2k] New York Times: Steal This Hook? D.J. Skirts Copyright Law

[Thiru Balasubramaniam]

August 7, 2008
Steal This Hook? D.J. Skirts Copyright Law
By ROBERT LEVINE

The D.J. Girl Talk has won positive reviews for his new album and news
media attention for its Radiohead-style pay-what-you-want pricing, and
on Friday night he is scheduled to play a high-profile gig at the All
Points West festival in Jersey City. Not bad for an artist whose music
may be illegal.

Girl Talk, whose real name is Gregg Gillis, makes danceable musical
collages out of short clips from other people=92s songs; there are more
than 300 samples on =93Feed the Animals,=94 the album he released online
at illegalart.net in June. He doesn=92t get the permission of the
composers to use these samples, as United States copyright law mostly
requires, because he maintains that the brief snippets he works with
are covered by copyright law=92s =93fair use=94 principle (and perhaps
because doing so would be prohibitively expensive).

Girl Talk=92s rising profile has put him at the forefront of a group of
musicians who are challenging the traditional restrictions of
copyright law along with the usual role of samples in pop music.
Although artists like the Belgian duo 2 Many DJs have been making
=93mash-ups=94 out of existing songs for years, Girl Talk is taking this
genre to a mainstream audience with raucous performances that often
end with his shirt off and much of the audience onstage.

On a sweltering July afternoon Mr. Gillis, 26, who lives in
Pittsburgh, opened his laptop on the bar at the Knitting Factory in
TriBeCa and discussed how he builds songs out of samples. Clad in a
black T-shirt, jeans and a blue sweatband to tame his long hair, he
looked less like a club D.J. than a member of a rock band. Mr. Gillis,
who said he saw =93Feed the Animals=94 as an album of his own work rather
than a D.J. mix, spent several months testing out ideas during live
performances, then several more matching beats and polishing
transitions. He estimates that each minute of =93Feed the Animals=94 took
him about a day to create.

=93I want to be a musician and not just a party D.J.,=94 he said, =93and
like any musician I want to put out a classic album.=94

Mr. Gillis=92s music is pulled from more sources than most hip-hop hits,
which often use a loop of music taken from a single song. But unlike
most D.J.=92s who see themselves as artists, Mr. Gillis does not
radically reconfigure songs or search out obscure samples. Instead he
mixes clips of contemporary hip-hop artists like Jay-Z and OutKast
with time-tested rock riffs from groups like Aerosmith, Cheap Trick
and AC/DC. The first track on =93Feed the Animals,=94 =93Play Your Part (Pt=
.
1),=94 starts with a sample of a rap song by UGK and the ba-ba-ba-ba-ba-
DUM rhythm of the Spencer Davis Group=92s =93Gimme Some Lovin,=92 =94 among
other things. At times the album sounds like a cleverly programmed K-
tel compilation that presents catchy riffs instead of full songs, and
part of the fun is recognizing familiar sounds in a new context.

=93I want to take these things you know and flip them, which is
something I=92ve always enjoyed in hip-hop,=94 Mr. Gillis said. =93This
project has always been about embracing pop.=94

But this embrace may be an illicit one, according to music industry
executives. In legal terms a musician who uses parts of other
compositions creates what copyright law calls a derivative work, so
the permission of the original song=92s writer or current copyright
holder is needed. Artists who sample a recording also need permission
from the owner, in most cases the record label. Hip-hop artists who
don=92t get that permission have been sued, often successfully.

Mr. Gillis says his samples fall under fair use, which provides an
exemption to copyright law under certain circumstances. Fair use
allows book reviewers to quote from novels or online music reviewers
to use short clips of songs. Because his samples are short, and his
music sounds so little like the songs he takes from that it is
unlikely to affect their sales, Mr. Gillis contends he should be
covered under fair use.

He said he had never been threatened with a lawsuit, although both
iTunes and a CD distributor stopped carrying his last album, =93Night
Ripper,=94 because of legal concerns. (It had sold 20,000 copies before
then, according to Nielsen SoundScan.) It may not be in the interests
of labels or artists to sue Mr. Gillis, because such a move would risk
a precedent-setting judgment in his favor, not to mention incur bad
publicity.

Fair use has become important to the thinking of legal scholars,
sometimes called the =93copyleft,=94 who argue that copyright law has
grown so restrictive that it impedes creativity. And it has become
enough of an issue that Mr. Gillis=92s congressman, Representative Mike
Doyle, Democrat of Pennsylvania, spoke on his behalf during a hearing
on the future of radio.

=93You have to look at the length of those samples,=94 Mr. Doyle said in a
phone interview. =93Case law gets built as cases are brought to court,
and I think that more case law is going to fall on his side as this
becomes more mainstream.=94

Not all lawyers agree. =93Fair use is a means to allow people to comment
on a pre-existing work, not a means to allow someone to take a pre-
existing work and recreate it into their own work,=94 said Barry
Slotnick, head of the intellectual property litigation group at the
law firm Loeb & Loeb. =93What you can=92t do is substitute someone else=92s
creativity for your own.=94

Mr. Gillis chose to allow fans to decide how much they wanted to pay
to download =93Feed the Animals=94 from Illegal Art. (He plans to release
the album on CD in September.) Illegal Art puts out sample-based music
that falls into a legal gray area because the company=92s owner, who
goes by the pseudonym Philo T. Farnsworth, after an inventor of
television, believes that the law limits artists unfairly.

=93What the Beastie Boys and Public Enemy were doing, no one could do
anymore,=94 he said, referring to groups that made music from densely
layered samples when record companies were paying less attention to
these legal issues. =93We=92re drawn into this because of the music we
support.=94

Mr. Gillis declined to say how many copies of =93Feed the Animals=94 had
been downloaded or what fans had paid for them. But, he said, he makes
enough money performing that he quit his day job as a biomedical
engineer last year. One major expense for him is computers; his live
show takes such a toll on them that he went through three reinforced
Toughbook laptops last year.

So far, Mr. Gillis said, he is mostly concerned with making sure his
music is heard, although he=92s also become well versed in the legal
issues. =93I get swept up in thinking of it as another album,=94 he said
of =93Feed the Animals,=94 =93but I=92m certainly conscious of the issues i=
t
raises.=94

------------------------------------------------------------


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997