Stealing Is Believing

[robviti]

The New York Times

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's songs; there are more than 300 samples on "Feed the Animals," the album he released online at illegalart.net in June. He doesn't 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's "fair use" principle (and perhaps because doing so would be prohibitively expensive).

Girl Talk's 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 "mash-ups" 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 "Feed the Animals" 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 "Feed the Animals" took him about a day to create.

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

Mr. Gillis's 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.'s 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 "Feed the Animals," "Play Your Part (Pt. 1)," starts with a sample of a rap song by UGK and the ba-ba-ba-ba-ba-DUM rhythm of the Spencer Davis Group's "Gimme Some Lovin,' " 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.

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

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's 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't 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, "Night Ripper," 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 "copyleft," who argue that copyright law has grown so restrictive that it impedes creativity. And it has become enough of an issue that Mr. Gillis's congressman, Representative Mike Doyle, Democrat of Pennsylvania, spoke on his behalf during a hearing on the future of radio.

"You have to look at the length of those samples," Mr. Doyle said in a phone interview. "Case 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."

Not all lawyers agree. "Fair 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," said Barry Slotnick, head of the intellectual property litigation group at the law firm Loeb & Loeb. "What you can't do is substitute someone else's creativity for your own."

Mr. Gillis chose to allow fans to decide how much they wanted to pay to download "Feed the Animals" 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's owner, who goes by the pseudonym Philo T. Farnsworth, after an inventor of television, believes that the law limits artists unfairly.

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

Mr. Gillis declined to say how many copies of "Feed the Animals" 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's also become well versed in the legal issues. "I get swept up in thinking of it as another album," he said of "Feed the Animals," "but I'm certainly conscious of the issues it raises."

[Rooster_Ties]

C-SPAN represent...

[Jazzmoose]

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.

Um...his logic is somewhat underwhelming.

[catesta]

I wonder how he would feel if somebody in L.A. or New York started using the name "DJ Girl Talk", only, they spelled it different or said it really fast.

[JSngry]

Listened to a few Girl Talk clips on YouTube. Not particularly my thing, but I'm really not seeing what the problem is, not particularly. I mean, really, we cut music education funding in schools for a couple decades while at the same time creating technology which makes it possible for anybody to make music out of any combination of 1s & 0s they can get their hands on, and then when people start feeling the creative urge and use the tools they have at hand, the old guard freaks out.

Well DUH, bitches, what the hell did you think was going to happen? That motherfuckers were going to save up and pay to play with those 1s & 0s? That they would forevermore suck your dicks instead of finding some nice, friendly place to put their own? These are people, remember, and people gonna do what people gonna do. Eventually. When they get able.

And now, it seems, they are able.

You'd think that a society built on/by centuries of superimposing itself over preexisting cultures on their land, with no particular regard for established ownerships and customs (and no, this is not a dis or anything, it's just a recognition of How The West Was Won, and I've been getting through 100 + degree days not all that upset about any of that, thank you), would recognize the inevitability of what is happening rather than being outraged at having its own essential impetus held up to itself as a sign of its self-created changing of the guard.

Guess not.

[JSngry]

I think we should make any motherfucker who wants to create music today buy an expensive-ass license, have it have to be renewed annually, and fine the hell out of them any time they sample. Make a motherfucker pay to play, and slap his ass silly with fineage every time he pulls from us old folk. That would be an environment conducive to the creation of new music now, wouldn't it now.

Damn straight it would be!

[John L]

I think we should make any motherfucker who wants to create music today buy an expensive-ass license, have it have to be renewed annually, and fine the hell out of them any time they sample. Make a motherfucker pay to play, and slap his ass silly with fineage every time he pulls from us old folk. That would be an environment conducive to the creation of new music now, wouldn't it now.

Damn straight it would be!

The point is well taken, but the issue is still a complex one. The problem is that, in addition to people wanting to fulfill genuine individual creative urges, there are even more sharks out there thinking only about money, and who would prefer making money using other peoples' shit if they can get away with it. The solution is not an easy one, but there is no avoiding tough decisions about what constitutes creation and what constitutes theft.

[JSngry]

Yeah, so?

I mean, this is the world we've made for ourselves. Too late to wish it away, and even later than that if anybody wants to kill it before it spreads.

[JSngry]

The point is well taken, but the issue is still a complex one. The problem is that, in addition to people wanting to fulfill genuine individual creative urges, there are even more sharks out there thinking only about money, and who would prefer making money using other peoples' shit if they can get away with it....

The more things change...

[JSngry]

...what constitutes creation and what constitutes theft.

If one man fucks another man's wife and a child is conceived from the union and grows up to be a successful human being, that makes it both, and then some, no?

People with a weak stomach for ambiguity better just...stay inside for the next few decades.

[ejp626]

I think we should make any motherfucker who wants to create music today buy an expensive-ass license, have it have to be renewed annually, and fine the hell out of them any time they sample. Make a motherfucker pay to play, and slap his ass silly with fineage every time he pulls from us old folk. That would be an environment conducive to the creation of new music now, wouldn't it now.

Damn straight it would be!

The point is well taken, but the issue is still a complex one. The problem is that, in addition to people wanting to fulfill genuine individual creative urges, there are even more sharks out there thinking only about money, and who would prefer making money using other peoples' shit if they can get away with it. The solution is not an easy one, but there is no avoiding tough decisions about what constitutes creation and what constitutes theft.

I think most people who have paid close attention to copyright in the US believes it seriously impedes rather than fosters creativity. Thinking back to different eras, how much of our classical music canon would we have if we had lawyers from the majors going around saying -- hmm this bar sounds a lot like my client's bar here, your honor? We've already discussed how Shakespeare would have had his quills impounded under the current copyright climate. I despise the law as it stands, but more to the point I find the work that the mash-up artists do is very much in the spirit of using the creative commons -- and I do believe it falls under Fair Use doctrine. Obviously people can dispute that, but calling these guys thieves seems absurd to me.

[catesta]

I think we should make any motherfucker who wants to create music today buy an expensive-ass license, have it have to be renewed annually, and fine the hell out of them any time they sample. Make a motherfucker pay to play, and slap his ass silly with fineage every time he pulls from us old folk. That would be an environment conducive to the creation of new music now, wouldn't it now.

Damn straight it would be!

Why is music the exception?

In business I can't go around stealing ideas and property from people that have it all protected. At least, not legally.

Even though I to have to pay for and renew annually my expensive-ass licenses, permits and all kinds of other bullshit.

Go figure.

It's not like DJ Girl Talk (lame ass name, by the way) is doing this for the love of it all and is not getting paid. Why should he not pay a token to those that really own it?

[John L]

...what constitutes creation and what constitutes theft.

If one man fucks another man's wife and a child is conceived from the union and grows up to be a successful human being, that makes it both, and then some, no?

People with a weak stomach for ambiguity better just...stay inside for the next few decades.

No worry. We spend a good share of our money of lawyers to protect us from ambiguity every day.

[JSngry]

Some further research...

The first track on "Feed the Animals," "Play Your Part (Pt. 1)," starts with a sample of a rap song by UGK and the ba-ba-ba-ba-ba-DUM rhythm of the Spencer Davis Group's "Gimme Some Lovin,' " 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.

Ok, the best you can say about this is that it's "clever". It's in no way artful, nor is it particularly creative. Cats have been dpoing sampling and collages for years a helluva lot better than this. This is like a severe dumbing down of the whole sampling/collage trip. The K-Tel analogy is both apt and telling...

But it's precisely because of that, the fact that this is a really cheap exposition of what others have done artfully, that makes the real issue for me a simple one - this is bad music. End of story. (Which means, though, that the people who do it well are making good music (imo).)

Now, if we gonna fine everybody who makes bad music, hey, we oughta be able to pay off the National Debt in, what, 20 minutes? That's a good thing.

But if we're going to say that as a matter of principal that it is not ok to use records as building blocks for new musical constructions but that it is ok to lift a bar or a phrase from a preexisting composition and incorporate it into a new work to be performed by "real people", then it seems to me that that's not too much different than dictating to a painter what media they can or cannot use under penalty of law. An imperfect analogy, sure, but the fat remains - there is, and has been for some time now - a collection of talent that is both compelled to and quite adept at using records the way other people use manuscript paper and a pencil. I suppose we can do our damnedest to kill it, but really, what good would come of that? And what more good would come from encouraging those who really are good at it to keep on exploring and growing?

If the measure of any creative movement's irrevocable entrenchment in the creative landscape is the appearance of a hack who becomes wildly popular, then perhaps Girl Talk is to sampling what Vanilla Ice was to hip hop (and on backward into perpetuity). So, if a movement is in fact entrenched, and if the "laws" are still not able to get even a basic grasp as to what's going on, doesn't that tell us that the car is out of the garage and a few hundred miles down the road and that Grandpa is standing in the driveway waiting for it to get back from the corner gas station"

[JSngry]

I think we should make any motherfucker who wants to create music today buy an expensive-ass license, have it have to be renewed annually, and fine the hell out of them any time they sample. Make a motherfucker pay to play, and slap his ass silly with fineage every time he pulls from us old folk. That would be an environment conducive to the creation of new music now, wouldn't it now.

Damn straight it would be!

Why is music the exception?

In business I can't go around stealing ideas and property from people that have it all protected. At least, not legally.

Even though I to have to pay for and renew annually my expensive-ass licenses, permits and all kinds of other bullshit.

Go figure.

It's not like DJ Girl Talk (lame ass name, by the way) is doing this for the love of it all and is not getting paid. Why should he not pay a token to those that really own it?

Hey - lameass buttugly rockstar posers (and look on the bright side - what all this is doing is killing the rock star as we've known and loathed it for several decades now...) can pull al the hot babes while a hardworking buttugly schoolteacher has to get by with the lovely and talented Rosy.

Because life's not fair. That's why.

[John L]

I still say that it is far from that simple, Jim.

Create what you want out of existing music, but if you decide to market it as your own, you better be ready (if necessary) to defend in court the value that you have added to it.

Copyright laws are highly imperfect, of course, and there are tradeoffs in whatever is chosen. I have worked in a few countries that had nonfunctional copyright laws. Yes, one could argue that a large part of the population of those countries was better off without them. But I seriously doubt that this would have been true if there were not a steady flow of creation coming from countries with functional copyright laws that can be stolen in this context.

The extreme point of no copyright laws is not good for creation. On the contrary, people will become reluctant to create (especially with their minds) if they suspect that anything of value that they generate will be stolen right away.

[JSngry]

It's not like DJ Girl Talk (lame ass name, by the way) is doing this for the love of it all and is not getting paid. Why should he not pay a token to those that really own it?

Ok, Devil's advocate question here - we're talking about American Popular Music of the last 50 years or so, a common - sometimes horribly so - language of deep but also narrow origins (note the plural, origins). Who really, really "owns" it? The people who created the basic root vocabulary? The people who wrote the songs based on that vocabulary? The people who made the records? The people who now own the rights to the records?

[JSngry]

I still say that it is far from that simple, Jim.

Create what you want out of existing music, but if you decide to market it as your own, you better be ready (if necessary) to defend in court the value that you have added to it.

Copyright laws are highly imperfect, of course, and there are tradeoffs in whatever is chosen. I have worked in a few countries that had nonfunctional copyright laws. Yes, one could argue that a large part of the population of those countries was better off without them. But I seriously doubt that this would have been true if there were not a steady flow of creation coming from countries with functional copyright laws that can be stolen in this context.

The extreme point of no copyright laws is not good for creation. On the contrary, people will become reluctant to create (especially with their minds) if they suspect that anything of value that they generate will be stolen right away.

I think what we are seeing is the beginning of the final elimination of the last 50 or so years of popular music out of the collective digestive tract.

Inevitable, and long overdue, I say. So let it be. Let all that old fecal material finally get purged out of the system. It's a good thing to happen.

[.:.impossible]

I know he and the media are trying to paint him as a mucisian, but Girl Talk is a party DJ. He makes mixes and travels around the U.S. People pay to get into clubs to dance to his mixes. Hasn't this been going on for a long time now?

So you used to buy a mix on cassette out of someone's trunk outside the club. Now its online. And you don't have to pay if you don't think you should.

If he weren't trying to sell his mixes, would y'all still have a problem?

[Shawn]

I think we should make any motherfucker who wants to create music today buy an expensive-ass license, have it have to be renewed annually, and fine the hell out of them any time they sample. Make a motherfucker pay to play, and slap his ass silly with fineage every time he pulls from us old folk. That would be an environment conducive to the creation of new music now, wouldn't it now.

Damn straight it would be!

Why is music the exception?

In business I can't go around stealing ideas and property from people that have it all protected. At least, not legally.

Even though I to have to pay for and renew annually my expensive-ass licenses, permits and all kinds of other bullshit.

Go figure.

It's not like DJ Girl Talk (lame ass name, by the way) is doing this for the love of it all and is not getting paid. Why should he not pay a token to those that really own it?

I believe the point is that some of these "mash-up" compositions contain pieces from dozens and dozens of songs, with the current state of copyright law it would cost a fortune to acquire the rights to all of these pieces. Thus if forced to do that many people wouldn't even attempt to create these types fo pieces in the first place...thus copyright law stifling creativity.

I'm with Jim on this one.

[Jim Alfredson]

Why aren't blues musicians ever sued? They use the same riffs, chords, melodies, and even full phrases from past tunes (lyrics and all) all the time.

What about quoting a famous melody in a solo over changes?

[RDK]

How many times has "Cherokee" been transformed into another jazz tune?

[Shawn]

How many jazz "compositions" are based on I Got Rhythm for chrissakes?

New technology...but same practice. Screw it, I say let things evolve. Time to throw all the old hang-ups out the window, it's a new century, the world has changed and it ain't ever goin' back. Either embrace the way things are...or prepare to be really unhappy for the rest of your life.

[tkeith]

I can't stand this sort of shit, but I have to begrudgingly respect the basic point.

Example: I had to buy licensing to put Trane's OLE on a disc we released. It's about 22 minutes long. Because of the way licensing works (I had to use Harry Fox for this disc), I had to pay extra due to the length of the song. In total, the them of OLE is stated a total of maybe 2 minutes in the whole tune -- the rest is improvised. Why should I be charged for the parts that our band created? Don't get me wrong, I'm happy to pay composers for the use of their music (though I prefer to contact them directly and avoid HFA as much as possible), and using their song as a base DEFINITELY influences the improv. But the licensing rules are based on pop tunes. If you do a cover of Hey Jude, and you ape McCartney's freak-out vocals, you should pay extra. HFA begins charging extra at the 5-minute mark. Cover a Billy Harper tune and you could be on the clock before the end of the opening chorus, and that's not right. (Though, again, I'd be happy to pay BH directly any amount he desired -- I think he's a great writer).

[zen archer]

Why aren't blues musicians ever sued? They use the same riffs, chords, melodies, and even full phrases from past tunes (lyrics and all) all the time.

What about quoting a famous melody in a solo over changes?

Because they created something new from what they were being influenced by ( or stealing ). Also because they have no money thats why they are singing the Blues.

But these guys are just taking pre-recorded music ....that would be like me ( a photographer) buying

photo books and cutting up all of Walker Evans pictures and than scanning them and presenting them as my Photos/Art.

I have no interest in that i would rather try and create something new on my own ( even though Evans might influence me.)

That to me is more rewarding in the end.

Edited August 7, 2008 by zen archer