As you may have heard by now, Pittsburgh-based artist (let’s not call him a DJ), recently released another album.  The new album, “All Day” was released online for free download on his label, Illegal Art’s website.

Girl Talk is unlike most musical artists.  Rather than creating music using instruments/vocals/digital effects like most artists, Girl Talk (whose real name is Gregg Gillis) creates music almost entirely from snippets of other artists’ music.  He has gained popularity for his unique ability to take seemingly disparate pieces of music (say, Notorious B.I.G. and Elton John, for example) and combining them in a way that’s clever, interesting, listenable, and–you had to see this coming– danceable.

You don’t have to be a copyright lawyer to realize that Gillis’s project might raise some legal concerns.  Each album contains samples from hundreds of copyrighted songs.  For instance, “All Day” clocks in at 372. (It’s actually pretty fun to listen to a Girl Talk album and then compare notes with the Wikipedia entry for that album.  Sort of like “Name That Tune”: Hipster Edition.)

In any event, the more albums Girl Talk puts out, the longer the list of potential plaintiffs becomes.  So the question has to be raised: why hasn’t anyone sued him yet?

Each time Gillis uses another artist’s song without their permission, that use would constitute copyright infringement.   If Gillis were sued for infringement, he would most likely argue that his use of their work constitutes a “fair use” and is thus not infringing.   In Gillis’s case, the fair use question would come down to whether his use was considered “transformative.”  Intelligent minds are in disagreement as to whether or not Gillis would prevail in making a fair use defense.  And this debate has been going on for a while now: during law school, I advised another member of my journal on his student note, which dealt with this question.

However, maybe the real reason why Girl Talk hasn’t yet been sued depends less on the legal strength of his defense and more on the PR considerations involved (namely, that he’d have legal experts and public support at his side right from the start).  As Joe Mullin at paidContent.org points out:

So why hasn’t Gillis been hauled in front of a judge by the music industry? Probably because he’s the most unappealing defendant imaginable. Gillis would be a ready-made hero for copyright reformers; if he were sued, he’d have some of the best copyright lawyers in the country knocking on his door asking to take his case for free.

At the Electronic Frontier Foundation, probably the most well-funded public interest group working in the copyright space, lawyers have made it clear for years that they’re positively eager to litigate a case over music sampling, which they believe is a clear-cut case of fair use.

Then there’s the PR issue. Gillis is a popular artist who was even praised on the floor of Congress by his local representative, Pittsburgh Democrat Mike Doyle, who called Gillis a “local guy done good;” Doyle also suggested that mash-ups might be a “transformative new art that expands the consumers experience.”

For now, though, it seems as though Girl Talk can breathe easy and keep doing what he does best.  Enjoy!

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