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!
“Fair Use?” There is nothing “fair” about taking another persons talent(s) and using them for your personal distribution on any network or in any manner. Too much worry aout how the public would react to a charge of theft…for the man has used his ability to work an audio/visual editor to supply entertainment without paying for the intelectual or physical product he edits. This is obvious “unfair use”. Yes, I am a 53 year veteran of an entertainment union and spent many hours tracking down people who refused to pay artists who had their talents stolen and used for financial gain without compensation to the originators of the product. Did he provide the vocals? No. Did he provide the instrumental backgrounds? No. Did he compose the music or the words? No. Then what right has he to use his technical dexterity to obtain any type of recompense either monetary or by listener admiration?
Bob Wilson, let’s further your argument: Did Elton John develop the scale and time signatures he used to sing his songs and play his music? Someone spent a ton of time developing those ideas of scale, notes, and time signatures, Elton John is a rip-off artist.
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Thanks for taking the time to share this, I feel powerfully about it and enjoy reading more on this topic.
On a related note, my question is, are Girl Talk’s songs themselves copyrightable subject matter? By the terms of s. 103 of the ’76 Act, “copyright in … derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work”. I don’t hear any original material in Girl Talk’s songs, so that makes me wonder if any part of his song could be copyrightable. If he had laid down original lyrics on sampled beats (a la The Beastie Boys), I could see him being entitled to copyright for the vocals of the song (as well as the lyrical composition), but this has none of that. The statute seems to reject taking a gestalt perspective (i.e. it doesn’t provide copyright for a creation that may be compiled from all unoriginal works but, when looking at the product as a whole and as distinct from its parts, he’s created something new) . I’d be interested in hearing your take on this issue.
(note: I’m a law student taking a Copyright course and we’ve only had one assignment, so please excuse any naivete on my part).
On a related note, my question is, are any contemporary writers works themselves copyrightable subject matter? By the terms of s. 103 of the ’76 Act, “copyright in … derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work”. I don’t see any original original alphabetic characters in contemporary novels, so that makes me wonder if any part of them could be copyrightable. If an author were to lay down original characters on the standard English left-to-right, top-to-bottom writing direction (a la the cipher in Edgar Allan Poe’s “The Gold Bug”), I could see him or her being entitled to copyright for that original material, but most books I read have none of that. The statute seems to reject taking a gestalt perspective (i.e. it doesn’t provide copyright for a creation that may be compiled from all unoriginal works but, when looking at the product as a whole and as distinct from its parts, he’s created something new).
Perhaps s. 103 should include a disclaimer, a la Potter Stewart: This statute shall not attempt further to define the kinds of material to be embraced within that shorthand description ["copyright in derivative work"]; and perhaps it could never succeed in intelligibly doing so. But a person of reasonable intelligence will know it when he or she sees it.
There are manifestations of original ideas = copyrights.
There are novel processes = patents.
There are unique marks to identify the source of goods or services = trademarks.
There is cultural knowledge generally knwn by the people, like food (think recipes) and a generally discover-able processes (like reading) = traditional knowledge (unprotected).
There is what would be traditional knowledge, but for one’s secrecy efforts for economic gain (like the Colonel’s secret 11 herbs & spices) = trade secret.
Since reading a Poe-cipher isn’t for economic gain, I’m not sure what a court of law would want with regulating it’s secrecy?
Or, could you say, his arrangement is original, entitling his unique arrangement to copyright?
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