COPYCENSE

We saw today on the Creative Generalist blog a post about a film entitled Rip! A Remix Manifesto. The film, according to the Open Source Cinema Web site, is “an open source documentary about copyright and remix culture. Created over a period of six years, the film features the collaborative remix work of hundreds of people who have contributed to this website, helping to create the world’s first open source documentary.”

The film debuts March 15 at the South by Southwest film festival, but its trailer is available now.

The film’s protagonist is Gregg Gillis, the personality behind the one man sample band Girl Talk. Gillis has become the poster child for fair use lately: Gillis also was a protagonist in another fair use documentary entitled Good Copy, Bad Copy, which was released in 2007. We want to use this piece to probe Girl Talk’s role in the policy debate about copyright, technology, and fair use.

Reviewing Girl Talk’s Work

Gillis’s Girl Talk has released three “mashup” albums on the provocatively named recording label Illegal Art, including Feed the Animals. “Animals” is available from Illegal Art as a “pay what you want” download, but the album also is available from mainstream retail outlets including Amazon.com. We purchased a CD version of “Animals” from a local record store. (For more information about why Copycense doesn’t do downloads, read the April 2008 piece The Downside of Downloads.)

Gillis has evolved into that oxymoron known as the underground music celebrity, with all the requisite things that come with it, including profiles in The Washington Post, The New York Times and the Times Magazine; and Wired. (Wired seemingly has hitched itself to the Gillis train, giving him a Rave Award in 2007 and lots of other ink, including a sample analysis and an analysis of his business model.) Idolator has devoted at least two pieces to Girl Talk, allowing Gillis to maintain “street cred” and an overall aura of mysterious grunge, even as he grows into a full-scale enterprise brand. (Neither Gillis nor his performing alter ego throw off anywhere near the enigmatic shroud that seems to envelop Danger Mouse, whose sample opus The Grey Album I’ll return to.)

Turning to our inner music critic, we consider the Girl Talk albums to be nice, non-intrusive pop albums. We can listen to some of the singles more than once, and we appreciate the imagination and editing work that go into crafting each of the singles. But when compared to other sample albums (see Madlib’s “Beat Konducta” series; virtually anything by the late J Dilla; Prince Paul’s Handsome Boy Modeling School adventures; the Spectoresque wall of samples presented in the early Public Enemy albums; or even Danger Mouse’s aforementioned Grey Album), the Girl Talk works are tame.

To put it another way, at no time did we listen to Girl Talk’s work and shake our head in amazement (or better yet, turn off the stereo in quasi disgust because we realized we’d just heard genius and never could approach it — which we have done with work by Dilla and Madlib). For us, the best sample albums are those that are orchestrated meticulously like a Gil Evans arrangement. They are a roux of sounds, tones, notes in between notes, and a guttural “boom bap,” rather than compilations that club you over the head with the obvious.

But, we’re not mad at Gillis; he does what he does, and he does it capably. For that we say “vaya con Dios.”

GirlTalk’s Role in the Copyright Policy Debate

What interests us more about Gillis and his sonic adventures, though, is his ascension to the throne of fair use martyrdom. I have no idea whether or not Gillis seeks this position, but I would be shocked to know that he is unaware of this role bestowed upon him. Indeed, if the Rip! trailer is any indication, Gillis seems to revel in at least the rogue role, which allows him to “put [Elton John’s music] into a headlock” and, to date, not face any legal or economic consequences. To this end, part of his business model involves casting himself as a villanous (albeit not too threatening) copyfighter who is willing to playing a game of statutory chicken with the music labels from whose records he has culled his considerable sample list, all while writhing nearly naked on a concert hall stage near you.

Thus far, the labels have layed down and done nothing — an unusual move for an industry that never met a lawsuit it didn’t like.

In light of the current, overheated copyright environment, judicial decisions in cases like Grand Upright Music v. Warner Bros. Records, 780 F.Supp. 182 (S.D.N.Y. 1991) and Bridgeport Music v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), and (for heaven’s sake) FBI raids targeting mixtape creators and distributors, we must ask this question:

Why hasn’t Gregg Gillis been forced to post bail yet?

Copycense challenges anyone with any skin in the copyright game — artists, musicians, lawyers, academics, journalists, policy wonks, lobbyists — to give us one credible reason why Gillis has not had to sign for his personal belongings after being processed, or had an individual approach his home and hand him a set of papers with those dreaded three words: “You’ve been served.”

We’ll post any credible analysis in full on Copycense. We don’t have to agree with the rationale or the conclusions, but anyone who responds to our offer must pose a strong argument. And to help everyone get on the same page, we consider the following to be weak arguments:

1. “Those cases don’t really apply to GirlTalk because he doesn’t use any of their works [or the cases’ holdings apply narrowly to the Second and Sixth Circuits, respectively].” Come on, now. If you’ve read anything on Copycense prior to this, you’re better than that. If you’ve not read Copycense before now, there’s a lot to catch up on.

2. “Madlib, Dilla and Danger Mouse have not been arrested or sued for copyright infringement for their sample albums.” True, but Danger Mouse did receive a “cease and desist” letter — the precursor to an infringement lawsuit — from the Beatles’ record label. Dilla’s sample opus Donuts was released posthumously, and its proceeds are going to his estate in part to support his mother; it would have made for poor publicity to sue a beloved dead producer. And no other sample artist has has (or has had) a public profile approaching that of Gillis and Girl Talk. Further, one could argue reasonably that a sizable portion of the samples that Dilla used and Madlib uses are virtually unrecognizable (whether they’ve been used natively or transformed) to the vast majority of the American populace. In contrast, almost every sample Girl Talk uses is taken from some readily identifiable popular music anthem.

Here’s the Copycense theory. Gillis hasn’t been arrested or sued because his socioeconomic status fits what the mainstream wants to see when it talks about this issue. Gillis’ bio reads well for mainstream public relations purposes — he is white, middle-class, and educated — and his basic story (fell in love with music and sampling while studying science at a renown institution of higher learning) is All-American. For establishment folks like Congressman Mike Doyle (D-PA), who represents the district in which Gillis resides and has testified before Congress on Gillis’ behalf, Gillis’ story presents a squeaky clean image of American innovation — and decidedly not sepia-toned humans toiling against misery in dark, sweaty, basements or ghetto community rooms where sampling and hip hop culture were born out of the need to get by with less.

And here are our problems with this scenario. First, it legitimizes Gillis’ work in ways that do not benefit other sampling artists, particularly artists of color. If Gillis gets praised in the halls of Congress, yet DJ Drama must worry about federal agents ransacking his studio for performing essentially the same activity, our society is implying that sampling is illegal, rogue, and legally actionable until a white biomedical engineer does it (at which time the activity is transformed into yet another sign of American ingenuity).

Second, this portrayal diminishes the contributions of all artists because it elevates the “genius” of Gillis’ mashup over the source materials. This concept took root for us when we listened to jazz musician and educator T.S. Monk discuss sampling on a 2008 Future of Music Coalition panel entitled Creative License.

We don’t agree with all the arguments Monk promoted while on the panel. For example, his conception of copyright seems to be based upon a notion of singular, unique, and Romantic authorship that we reject. Also, Monk’s opinion that the work of composer Irving Berlin should never fall into the public domain because of its uniqueness and value to American society are views we never could share because we believe all work should fall into the public domain sooner than the current “life plus 70” law we have now. (Appropriately, we think “life plus 70” sounds like a prison sentence.) We’re all for Irving Berlin earning from his work; we’re not for Irving Berlin’s estate forever contending that it is owed residuals from Berlin’s work merely by virtue of filial relations.

Artistry and Creation

Still, other of Monk’s comments about the forgotten role of the African-American artist in the sample game are relevant to the instant discussion. During the Creative License panel, Monk told a story about being sent away to attend boarding school in Darien, Connecticut in the early sixties, and the community’s response to a fatal car accident that killed a number of the community’s white students, whom authorities later found were smoking marijuana. “It was at that point that America and the media said, ‘Oh, this drug thing that’s been a problem in the African-American community has now hit the suburbs,” Monk said. “We got a problem.”

Monk’s argued that just as the drug addiction issue seemed to be ignored by most of American society until it seeped out of communities of color and into white, mainstream communities, so too the copyright policy issues wrought by digital sampling have been of little consequence to mainstream America until it began to affect white, mainstream artists like Gregg Gillis. We believe he has an important and valid point.

Few mainstream voices have mentioned the names of sampling artists such as Madlib, Dilla, Prince Paul, Pete Rock, RZA, Ali Shaheed Muhammad or DJ Premier in this debate because (a) they don’t know them; (b) they don’t know their work; (c) they can’t identify the samples these cats have been chopping up for decades; and (d) none of them fall into a socioeconomic demographic that the mainstream values as having a legitimate voice or expression. (To be fair, Public Enemy sonic architect Hank Shocklee, who is African-American, fortunately has been a frequent [WinMedia] and articulate voice in the sampling debate.)

But the policy issues that are inherent in sampling are just as germane to Madlib, Dilla, and RZA as they are to Gillis. The same Congressional testimony that supports Gillis’ use of music samples as a shining example of American ingenuity should apply to the work of artists of color who have been flipping beats for a longer period of time, and arguably doing so in much more ingenious ways.

Monk’s comments on the Future of Music panel also brought into focus the role of the African-American artists as the creative source behind the sampled musical compositions. In addition to arguing that the policy issues in sampling didn’t matter until they affected a white, mainstream sampler, Monk also argued that the sampled music itself never was seen as a problem until mainstream white artists’ work became the source of the samples.

“Just as you had with the drugs, you had [with the digital sampler] a generation of young African-Americans who had been deprived of music education, even though they were at the end of an incredibly rich musical legacy,” Monk commented. “… I remember the first kid I saw standing on the block [in the early eighties]; he’s a human beat box. And I knew he needed a drum kit; he wanted to play some drums, but there were no drums. So he was making due.”

“Then someone says ‘Man, that little two beat piece of James Brown — man, I could loop that …’ The kids didn’t know [the legal ramifications of sampling] because they didn’t understand exactly what they were doing. But the people upstairs knew on day one that we had copyright infringement issues here,” Monk continued. ” … Being [Thelonius] Monk’s son, and having grown up in a house with Miles [Davis], and Dizzy Gillespie, and John Coltrane and all these guys, I know about the rip off. And I know a lot of the rip-off had to do with the fact that these African-American musicians did not have the resources for redress. Nobody was running around sampling Pat Boone [in the early eighties]. This was African-American music. … And somebody upstairs said on day one, ‘Hey main, ain’t nobody gonna sue us. Let’s do it. Let’s see.’ … That’s where it all started.”

Hence, we have the 1991 decision in Grand Upright — which is widely regarded as the first legal decision in American jurisprudence to address illegality in digital sampling — and Judge Duffy’s Exodus admonition that “Thou shalt not steal.” If Biz Markie cannot “steal,” why can Girl Talk?

Conclusion

Like we said above, we’re not mad at Gillis. He seems to have carved out a nice little enterprise for himself. As the kids often say “Don’t hate the player, hate the game.”

This essay explains why we love and support copyright, but hate elements of the game it has become. For Gillis to have avoided legal action this long for producing, distributing, performing and profiting from work that reasonably can be found to be a mass copyright infringement — “piracy” if you will — raises tremendous policy issues about the confluence copyright law and policy, technology, and how artists of color have been treated (or mistreated) in this arena. As we address the copyright policy issues surrounding sampling — a practice that, with hip hop, grew and evolved from artists of color “making due” — we must also address longstanding issues concerning the work of artists of color under the same legal regime.

Copycense™: Incisive IP.™

Technorati Tags: copyright, Girl Talk, Gregg Gillis, Hank Shocklee, J Dilla, Madlib, T.S. Monk