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Ripped from today’s headlines! The mash-up train wreck!

Mash-ups are musical collages. A typical mash-up will superimpose the vocal tracks from one popular song to the instrumental tracks to a different song. The original tracks are often electronically chopped, treated, or looped, but the original songs normally remain easily recognizable in the mashed-up version. The results can be startling and provocative. And without the permission of the copyright holders of the source materials, mash-ups are also quite illegal under current copyright law.

Mash-ups (which are also known as “mix tapes” and sometimes erroneously referred to as “bootlegs,” which they’re not) have become staples of club and hip-hop culture, enabled by both turntable artists and creative computer jocks. Many of hottest music producers working today got their initial notices from making mash-ups and getting them played in clubs. With the advent of digital recordings and easy-to-use editing programs, anybody with a computer, an imagination, and a little time can construct a mash-up.

Mash-ups are illegal because they involve the copying of portions of copyrighted sound recordings; the copyrights to recordings are typically assigned by the respective artists to a record company; in order to reproduce a piece of a recording for inclusion in a new work, one must get a license from the record company that owns the recording; record companies are inclined to either deny permission outright, or charge an exorbitant fee for the re-use. The process of securing a license for a “sample” of a recording can take months from the creation of the mash-up, and the delay can turn a brilliant spin on a current smash a stale comment on yesterday’s news. Rather than wait for an expensive sampling license that may never come, mash-up artists instead opt to get their tracks played in dance clubs and to sell their work underground and via shadowy websites. Both alternatives are illegal, although club play is rarely, if ever, prosecuted. And neither yields even the most notorious mash-up artist any real money.

This has been a problem for a while, but recently a couple of things happened that brought the issue into focus and public attention. The rapper Jay-Z released an a cappella version of his multi-platinum “The Black Album” and encouraged “the streets [to] remix the hell out of it.” As Jay-Z owns his own record company, he was in a unique position to do this. And the gift to mash-up artists of unadorned vocal tracks to a Big Hit Record is substantial: clean, isolated vocal tracks, the vital ingredient of a proper mash-up, are rarely readily available. The vocal tracks on most mash-ups are typically the result of stealth leaks by an artist or a recording studio (much to the dismay of the record company), or digital extractions (which usually result in lousy-sounding samples). And Jay-Z’s legitimizing of mash-ups of his own material reflects a judgment that mash-ups likely help, rather than hurt, his bottom line, and that mash-ups are a means of expression that deserve encouragement and recognition.

A DJ named Dangermouse was one of the many who took Jay-Z up on his offer in creating “The Gray Album,” but he was a little more adventurous than most. Dangermouse superimposed Jay-Z’s “Black Album” vocals over treated instrumental loops from The Beatles “White Album” to create “The Grey Album.” The tunes are fun, strident, and sometimes shocking. The most surprising thing is how well the work holds together on its own, and critics have been effusive in their praise. Personally, “The Gray Album” made me rethink and rediscover the Beatles’ tunes, which I’d have thought were immutably hard-wired in my brain, and also to confront and ponder the significance of Jay-Z for the first time. (Let me put it this way: my 11 year old had to explain to me what “bling-bling” means. I thought it was the sound made by the telefizzle. Knowhati’msayin’?) This was all a very pleasant and interesting experience. This is, maybe, the sort of thing that art is supposed to do.

Not everyone has been so thrilled. EMI, the company that owns The Beatles’ recordings, served Dangermouse, within days of The Gray Album’s release, with a cease and desist letter, full of demands and threats and venom. Interestingly, it doesn’t appear that Dangermouse was even planning to sell the work; EMI’s position was that he couldn’t even give away The Gray Album over the Internet. But the digital cat was already out of the bag, and EMI’s heavy-handedness was met in kind by the denizens of the Internet – a show of cyber disobedience was orchestrated by the anti-music industry site, and as a result an estimated million copies of The Gray Album were downloaded in a few days from hundreds of websites around the world. A hit was born.

Pursuant to the current copyright laws, EMI was well within its rights to try to put the kibosh on The Gray Album, and this just doesn’t make a whole lot of sense. The copyright laws are supposed to encourage creativity, not suppress it. And, despite what the corporate lawyers might tell you, owners of copyrights don’t possess some inalienable, god-given provenance to their works – they own only those rights that Congress decides to grant them. And the contours of these rights can change, and it’s time for them to change now.

If this were just a dispute between a handful of goofy DJ’s and the record companies, I wouldn’t be writing about The Gray Album. But it’s more than that. This dispute is on the front lines of a tug-of-war between Big Media copyright owners and creators over how tightly Big Media should control its holdings. Quietly and steadily, the copyright laws have been tightening, particularly with regard to works in digital media. And this tightening has come at the expense of new, creative works.

Many theorists, including the brilliant sound collage artists Negativland, contend that any use of less than an entire recording in the creation of a new work should be considered a “fair use,” that is, any taking short of outright piracy of an existing work should be allowed without compensation to the original copyright owner (I recommend you visit and let them tell you why. You’ll have fun there if you look around.)

I think a more equitable idea is to establish a mandatory licensing system for the partial use of sound recordings. In this way, the copyright owner cannot stop anyone from sampling a sound recording for inclusion in a new work, but will be guaranteed a reasonable royalty for any such use from the creator of the new work.

There is already a very close precedent for this in the copyright law. Mandatory (or compulsory) licenses already exist for musical compositions. Once a song is published by recording or sheet music or otherwise, anyone (even you!) can release their own recording of that song, so long as they pay the copyright owner a royalty (which is currently around eight cents per distributed copy). Licenses for most songs can be secured over the Internet in a matter of minutes. It’s not a perfect system, and sure, people cheat all the time, but it has proven workable (and very profitable for songwriters) for a long, long time.

Record companies argue that similar mandatory licenses for sound recording samples would be a needless government intrusion on what they call a functioning market for such licenses. That’s nonsense. It’s not a market – copyright holders have monopolies to exploit their works, and their exertion of monopoly power in suppressing the creation of new works (including mash-ups) are why my modest proposal is necessary.

Ultimately, this proposal involves the value judgment that the social utility of allowing the paid use of portions of copyrighted recordings in the creation of new musical works is more beneficial than maintaining copyright holders’ objections over such use. Would it work perfectly? Of course not. Would there be some unfairness? You bet. Would it be better than what we’ve got now?

Absolutely. I think mandatory licenses of sound samples will open up a floodgate of creativity, bringing lots of new sounds and new looks at old sounds. It’ll be a blast. And I suspect that once mash-ups hit the charts and the mandatory royalty checks start coming in, the record companies will figure out that maybe this wasn’t such a bad idea after all.

© 2004 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.