The Black and White about Grey Tuesday
The Grey Album is a remix of Jay-Z's Black Album and the Beatles' White Album by DJ Danger Mouse. It is a remix without permission. In our legal system, permission is required to remix others' art (except if the work is in the public domain, and of course, nothing enters the public domain anymore). The Grey Album is therefore illegal art.
Today is Grey Tuesday -- a day set by many to protest the war waged on the Grey Album. Sites across the net are posting the Grey Album. Go here to see scads of sites engaging in this act of disobedience. Lawyers representing EMI have already started warning the sites about the legal liability they face.
Under American law, you don't need permission to make a cover album. That freedom has been assured since 1909 when Congress granted creators a compulsory right to remake music, so long as a small fee was paid. The record companies have fought hard to defend that compulsory right. As a 1967 Congressional report put it:
The record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.Copyright Law Revision, Committee on the Judiciary, 90th Cong. 1st, Sess., Rep. No. 83 66 (March 8, 1967) (emphasis added).
But the cover right does not cover a remix. So DJ Danger Mouse must, under the law, ask permission before he can practice his art.
Some artists think this is fair. Some don't like the idea of their work used without permission. What if Disney remixed DJ Danger Mouse into a re-release of Mickey-jailed-since-1928-Mouse, without asking or paying first?
And indeed, it is just this defense that the record companies offer first: we're just enforcing the wish of the copyright owners. This is not, they say, a record company cartel. This is about the rights of artists.
But that defense would be more credible if the record companies were to allow artists the choice to set their content free for remix at least. We've been working with Gilberto Gil to push a sampling license, under which artists could set their music free for dangerous mice and others to remix. But we've yet to find a record company that will allow their artists this freedom. Indeed, the legal department at Vivendi purported to ban us from "approaching" "their" artists.
Should the law give DJ Danger Mouse the right to remix without permission?
Should the law give DJ Danger Mouse a compulsory right to remix? That is, the right, conditioned upon his paying a small fee per sale?
But should the record companies give artists the right to choose to free their content so that artists like DJ Danger Mouse could remix without seeking permission first?
There is nothing grey about that question. It is absolutely black and white. Artists should at least have the right to free their content to mash or remix. And record companies absolutely should not stand in the way of at least that.
After doing so much to destroy their reputation in the eyes of most consumers and artists, signaling at least this would be a useful first step towards showing that the record companies care about "their" artists first.
| Permalink | technorati
Comments (25)
Were EMI ever assigned the web site electronic distribution rights to the works they are claiming are being infringed?
But why should they have the right to license the music they produce how they like?
"Artists" are just paid-for-hire contractors right?
I mean, does Microsoft give its developers the right to license their code how they want?
Does McDonalds give its burger makers the right to sell the burgers they make however they want?
The music business is a business. If the general public realized that, they might be less in awe of highly-promoted "artists" and seek out more independent music.
I don't get to sell the stuff I produce. It belongs to the company that hired me.
Mark said exactly what I wanted to say.
Let me add that if an artist wants to set his recordings "free," then he needs to pay for them in the first place so he owns them.
On a semi-related matter, Eminem's publisher today announced they were suing Apple for using an Eminem song without permission. Most of us have probably seen the commercial.. if features a kid listening to his iPod and singing the lyrics to "Lose Yourself".
Now, to me that seems like a cover of the song... the actual song was not used. But I dont know what the legalities of covering a song in a commercial are. I'd be curious if someone could shed some light on this issue.
CNN Story: Eminem's publisher sues Apple
this nicely frames it: if "artists" are just corporate slugs, then they get, and should get, just the rights that corporate slugs get -- nothing. But if that's who artists are, then we have indeed lost a great deal.
The artists DO pay for the production of the material, typically from recoupable advances. Many also write it and perform it.
From the perspective of musicmakers, the music industry cartel is little more than a massive marketing operation which also owns nearly ALL the channels of distribution of music. Try getting played on a ClearChannel station if you're not signed to a major. And forget MTV. Try getting a supporting spot on a national tour. Try ekeing out a living in music outside of this system - even the best can starve due to lack of opportunity outside the major label grinder.
Though they create the music, and perform it, and PAY FOR IT, the company owns the copyright to their creation, and damn near everything else too. The language of most recording contracts is such that the artists can't get so much as a haircut without the label's approval.
While under that contract, besides owning any music that artist creates (even a little tune one hums to oneself in the shower falls under this distinction) the label typically owns the rights to one's appearance and likeness, their distinctive voice or playing style, even their birth name. And fulfilling a 4 record contract can easily be made into an insurmountable task if the label refuses to release your third album. Such cases are fairly common, and they amount to little more than indentured servitude.
No other industry demands such concessions by it's worker drones, with the exception of the military. The major labels (for 99.9999% of artists anyway) present little more than the fast track to serfdom.
In the UK a trend has started which points to the future that record companies would like.
Several of the recent boy/girl band/acts have been signed up on the basis that all rights are signed over to the record company - touring, performing etc. and they are simply paid a salary.
Whilst you might not like this type of music - and indeed these acts rarely write their own tunes - you should take heed. The majors would like to push 'product' on us, where the product is whatever toothsome youngster is flavour of the month. Or to put it another way, when Sony bought Dreyfus they removed the possibility that Dreyfus would sign a creative and iconoclastic musician like Michel Petrucciani ever again.
This idea of 'rights of artists' is, as Nietzsche might say, far too European for my tastes. I'm sure you're speaking in the legal sense Professor, but I'm far more comfortable talking in terms of monopolies granted as economic incentive. Atleast from this philosophers perspective, but likely also that of many non-lawyers, when talk turns to rights the next thing that enters into it is morality...and that's right where the record companies want you.
Anyway, I did my part for the cause today...I took my settlement check from the CD price fixing suit and donated it to the EFF.
-kd
A problem here might be the definition of "re-mix". If I take the White Album and add just the tiniest amount of sound, does that constitute a re-mix or is it a copy? Covers of well known works have a much lower perceived value than the original. Can this be said of re-mixes which are almost indistinguishable from the original? Even with a fee the original artist is scantly rewarded for his imagination and effort and a smart-aleck philistine makes off with the bulk of the loot.
No other industry demands such concessions by it’s worker drones, with the exception of the military. The major labels (for 99.9999% of artists anyway) present little more than the fast track to serfdom.
edverb, the problem, it seems, is that the major labels, for all the reasons you cited, also provide the fast track to stardom and wealth.
listen no one is holding a gun to the artist's head. no one is making them sell out to the record company's draconian terms, no one, that is, except the artist's own selfish greed and longing for fame.
why not stop blaming corporations for being corporations and start criticizing the artists who sell themselves like whores for a fast buck?
the freedom is there, edverb, the problem is that too few artists who are bold enough to exercise it and too few people who are willing to support them with their dollars when they do.
I've just listened to Eben Moglen's talk at Harvard.
He said a lot of things about freedom and free software, but the thing that struck me most was his perspective on the music industry.
He points out that the "music" industry is not in the music business at all. Rather, they are in the business of creating celebrities.
If it wasn't for the public's desire to have celebrities, the music industry wouldn't exist becuase, as he so elequently points out "children are doing a better job distributing music that the people who are paid to do it."
Amazing.
I'm very glad that you have endorsed this project. More people need to get some balls and stand up for people doing innovative things.
Three Blind Mice, I agree substantially with your point (if you aren't prepared to abide by the contract, don't sign it), but you must concede that when technologies have evolved to democratize the distribution of music which could provide alternative channels for atrists tp be heard (P2P, internet radio, etc.), the label cartel has tripped over themselves to kill it before it grows, strangling the music over IP baby in the crib.
Cynically speaking, if artists (the bottom of the food chain, ironically, also the sine qua non of the industry) were able to fund & lobby Congress like the labels do, the situation would be different and likely fairer.
If the artists want to allow this additional, uncompensated access to their work, then they should contract with their record companies to allow for it -- and take a hit on their bottom line. This kind of restriction is obviously worth something to the recording industry, so the artist ought to make sure it's allowed in their contract... or maybe it's just not that important to the artist to allow DJ Dangermouse to ply his trade.
I found this Negativeland interview with the Edge, of U2 an interesting account of a record company suing on behalf of an artist (U2).
I agree with what "three blind mice" said about
the choice that the artists have. They are
responsible for their choices.
We the consumers are also responsible for
our choices. We can decide to support the
major labels which give very little money to
artists or we can decide to support independent
artists directly. As the saying goes, vote
with your money - not with illegal downloading
or copyright infringement.
Not everything is lost for the artists. They
still have the termination right as found in
Section 203. However, they should be totally
prepared when 36-year anniversary come. They
must initiate the termination process themselves.
The year 2013 is going to be very interesting.
Will the artists invoke the termination right?
Will they care about their copyrights? Will the
major labels fight against their termination right?
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Joseph Pietro Riolo and Three Blind Mice both say that it is largely the responsibility of the consumer to consume music from independent lables if they would like to see the "system" change.
My question to them: Given five record labels comprise 85 percent of the industry, and can therefore afford to pay radio stations to play their music, and can also afford to market their musicians on MTV, in buses, etc., isn't it difficult for the average consumer to gain access to any independent music at all?
Oh wait. There's this new technology I've heard about that might give them unlimited access to music. It's called peer-to-peer. It's, like, so cool, man. Have you heard about it? You can find any music you want, and that means you will be introduced to tons of new stuff you really could not afford to own because CDs are, like, $18 and shit.
But apparently the major record labels do not consider it advantageous for their consumers to have said access, given it would likely refine too many people's taste in music. If that happened, whither Britney?
In response to Elizabeth's comment:
Surely, there are some difficulties that the
average consumers may encounter when they seek
independent artists. It is not any different
from other difficulties that consumers have
in getting whatever they want.
But, just because a person has difficulty does
not give him the license to violate the copyright
law routinely.
The people who use peer-to-peer technology to
infringe copyright routinely are casting bad light
on the people who use the technology legitimately.
These infringers are giving the major labels big
legal ammunition to destroy the technology. They may
think that they will change the system through the
infringing actions but they are just doing more harm
on the whole society. If they don't like the
current system as provided by the major labels,
there are several legitimate ways to change the
system: 1) They can complain to the major labels
and artists that work for them. 2) They can
boycott their products. 3) They can support the
independent artists by buying their products
directly, no matter how difficult it is. 4) They
can write letters to Congress. The independent
artists on the other hand can do their part such
as setting up their own organization to promote
their works.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
While certainly a remix seems to require permission, there is art within a work that uses a limited subset of the first art's composition. While even George Harrison was sued and found in the wrong for using part of the melody of "She's So Fine" when he composed "My Sweet Lord", and there is extensive and pervasive sampling of the Beatle's Whitel Album, although only in limited portions of the album, what are the rights held by EMI?
The EFF notes that there is no US Federal Copyright existing for sound recordings made before 1972. (See: http://www.eff.org/IP/grey_tuesday.php) Somehow I believe that must be incorrect, and if it is there are still other rights held on the work. With this work - the Grey Album - now being distributed for no cost does that change anything? Does it only change it while it is a protest?
In response to Steve Pribut's comment:
It is correct that sound recordings that are
made before 1972 do not have rights as granted
by federal copyright law. Instead, some (or
all?) states grant copyright-like rights in
these sound recordings. For more details,
see:
http://www.teleread.org/blog/2003_10_26_archive.html#106768614604144566
Also, use Google to search for "Project Gramophone".
Regarding your last two questions, it does not
matter if the distribution is free of cost or
if the distribtion is for protest unless the
Fair Use Doctrine or First Amendment can be
applied to the distribution. I don't think
the Grey Album can satisfy the tests of fair
use or is even a speech.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Jay writes:
> I found this Negativeland interview with the Edge, of U2 an interesting
> account of a record company suing on behalf of an artist (U2).
> (http://www.negativland.com/edge.html)
A fine article that's well worth reading. Thanks!
Thought this was interesting to you all..
Cheers
Santos
------
LIBRE SOCIETY MANIFESTO
David M. Berry & Giles Moss
A constellation of interests is now seeking to increase its ownership and control of creativity. They tell us that they require new laws and rights that will allow them to control concepts and ideas and protect them from exploitation. They say that this will enrich our lives, create new products and safeguard the possibility of future prosperity. But this is a disaster for creativity, whose health depends on an ongoing, free and open conversation between ideas from the past and the present.
— In response, we wish to defend the idea of a creative field of concepts and ideas that are free from ownership.
1. Profit has a new object of affection. Indeed, profiteers now shamelessly proclaim to be the true friend of creativity and the creative. Everywhere, they declare, “We support and protect concepts and ideas. Creativity is our business and it is safe in our hands. We are the true friends of creativity!”
2. Not content with declarations of friendship, the profiteers are eager to put into practice their fondness for creativity as well. “Actions speak louder than words” in capitalist culture. To display their affection, profiteers use legal mechanisms, namely intellectual property law, to watch over concepts and ideas and to protect them from those who seek to misuse them. While we are dead to the world at night, they are busily stockpiling intellectual property at an astonishing rate. More and more, the creative sphere is being brought under their exclusive control.
3. The fact that the profiteers are now so protective of creativity, and jealously seek to control concepts and ideas, ought to rouse suspicion. While they may claim to be the true friends of creativity, we know that friendship is not the same as dependency. It is very different to say, “I’m your true friend because I need you”, than to say, “I need you because I’m your true friend”. But how are we to settle this issue? How do we distinguish the true friend from the false one? In any relationship between friends we should ask, “Are both partners mutually benefiting?”
4. The profiteers’ insatiable thirst for profit clearly benefits from their new friendship with the creative. Through their use of intellectual property law – in the form of copyright, patents and trademarks – concepts and ideas can be transformed into commodities that are controlled and owned. An artificial scarcity can then be established. But, unlike physical objects, concepts and ideas can be shared, copied and reused without diminishment. No matter how many people use and interpret a particular concept, the creators’ use of that concept is not surrendered or reduced. But, much money is to be made when creative flows of knowledge and ideas become scarce products to be traded in the market place. Thus increasingly, intellectual property law is providing profiteers with vast accumulations of wealth. Indeed, immaterial labour (based on information, knowledge and communication) has now replaced industrial manufacture as the main producer of wealth in the age of technological capitalism. As such, the relationship codified in intellectual property law between creativity and profit can be seen as a core element of this wider structural transformation of the productive processes.
5. For many of us, the thought of intellectual property law still evokes romantic apparitions of a solitary artist or writer seeking to safeguard his or her creative work. It is therefore unsurprising that we tend to view intellectual property law as something that defends the rights and interests of the creative. Perhaps, in some removed and distant time, there was a modest respect in this specious notion. But this romantic vision of the creative is certainly ill at ease with capitalist ‘reality’. Creators have become employees and each concept and idea they produce is appropriated and owned by the employer. Profiteers are using intellectual property law to amass the creative output of their employees and others. What is more, they continually lobby to extend the control of intellectual property law for greater and greater lengths of time
6. The creative multitude is becoming legally excluded from using and reinterpreting the concepts and ideas that they produce. In addition, this legal exclusion is now being supported by technological means. Profiteers use technology to enforce copyright and patent law through the technical code that configures information, communications, networks and machines. The use of digital rights management software, for example, locks creative works, preventing any copying, modification and reuse. In the current era of technological capitalism, public pathways for the free flow of concepts and ideas and the movement of the creative are being steadily eroded — the freedom to use and re-interpret creative work is being restricted through legally based but technologically enforced enclosures.
7. This development is an absolute disaster for creativity, whose health depends on an ongoing conversation and confrontation between concepts and ideas from the past and present. It is shameful that the creative multitude is being excluded from using concepts and ideas. Creativity is never solely the product of a single creator or individuated genius. It always owes debts to the inspiration and previous work of others, whether these are thinkers, artists, scientists, teachers, paramours or friends. Creativity, as a fusion point of these singularities, cannot subsist in a social nothingness. Concepts and ideas depend upon their social life, and it could not be otherwise.
8. An analogy can be drawn with everyday language, that is, the system of signs, symbols, gestures and meanings used in communicative understanding. Spoken language is shared. A meaningful utterance is only made possible by drawing on the words that freely circulate within a linguistic community of speakers and listeners. Language, then, is necessarily non-owned and free. But imagine a devastating situation where this were no longer the case. George Orwell’s 1984 dystopia — and the violence done to freethinking through ‘newspeak’ — helps to illustrate this. In a similar way, the control and ownership of concepts and ideas is a threat to creative imagination and thought, and so also a grave danger to what we affectionately call our freedom and self-expression.
9. Previously, the creative multitude could decide either to conform or rebel. In conforming they became creatively inert, unable to create new synergies and ideas, mere consumers of the standardised commodities that increasingly saturate cultural life. In rebelling, they continued to use concepts and ideas in spite of intellectual property law. But then they are labelled “pirates”, “property thieves” and even “terrorists”, answerable as criminals to the courts of global state power. In other words, profiteers declare a permanent state of exception, a political emergency, which is then used to justify the coercive use of state power and repression against a newly criminalised culture of creativity. As we will soon discuss, a growing number of the creative are also moving beyond rebellion, through an active resistance to the present and the creation of an alternative creative field for flows of concepts and ideas.
10. There will be immediate objections to all we have said. The profiteers will turn proselytizers and say, “If there is no private ownership of creativity there will be no incentive to produce!” The idea that the ownership of knowledge and ideas promotes creativity is a shameful one, however plausible it may seem from the myopic perspective of the profiteers. To say that creativity can thrive whilst lacking the freedom to reuse concepts and ideas is clearly upside-down. After giggling a little at this absurdity, we should now turn this thinking the right way up.
11. According to this “incentive” claim, there cannot have been any creativity (i.e., art, music, literature, design and technology) before the profiteer’s owned and controlled our concepts and ideas. This seems like pure fantasy. Historians frequently profess to us that creativity was alive and well in pre-capitalist times, before the advent of intellectual property laws. But, even so, we might concede that history is now enough of a fiction to raise some doubt about the previous incarnations of creativity and the creative. Perhaps more bizarrely, it also implies that there cannot be any creativity currently operating outside of the intellectual property regime, thus contradicting our current experiences as historical actors and witnesses. We can now be sure of something that we have always already known — creativity is not reducible to the exploitation of intellectual property.
12. A new global movement of networked groups that operate across a variety of creative media — e.g., music, art, design and software — is now emerging. These groups produce a gathering of concepts, ideas and art that exist outside the current intellectual property regime. Hence, the creative works of the Free/Libre and Open Source communities, for instance, can all be examined, challenged and modified. Here, knowledge and ideas are shared, contested and reinterpreted among the creative as a community of friends. Their concepts and ideas, like the symbols and signs of language, are public and non-owned. Against the machinations of profit, these groups are in the process of constituting a real alternative — of constructing a model of creative life that reflects the force and desire of the creative multitude.
13. Through the principles of attribution and share-alike, existing works and ideas are given recognition in these communities. This means that although a work may be copied, modified and synthesised into new works, previous creative work is valued and recognised for its contribution to creativity as a whole. Attribution and share-alike are constitutive principles of the Free/Libre and Open Source movements, and chromosomes of the new mode of creative life that their social practice intimates.
14. These movements adopt an ingenious viral device, implemented through public licences, known as copyleft. This ensures that concepts and ideas are non-owned, while guaranteeing that future synergies based on these concepts and ideas are equally open for others to use. Whereas copyright acts through law to prevent the modification and re-use of concepts and ideas, copyleft ensures that they remain openly available and not capable of being commodified. In this way, copyright (‘all rights reserved’), is stood back on its feet by copyleft (‘all rights reversed’). It now stands the right way up for creativity and can once again look it in the eyes.
15. We believe that the creative multitude should embrace and defend the ideas and practices of these groups and the untimely model of creative life that they intimate. Indeed, we, who are already quite a crowd, must defend these ideas and practices. For it is only the creative multitude that will determine whether this possible transformation of our times is realised.
16. Just as the violence of the Profiteers’ intellectual property regime is seeking to intensify, a real countervailing force is now beginning to confront it. Indeed, the vision and practice of these rhizomatic groups is defiantly growing in strength, both deepening and widening through a variety of forms of media. They offer a glimpse of a creative field in formation that supports flows of concepts and ideas that are shared freely among friends. They are acting in a way that is ‘counter to our time and, let us hope, for the benefit of a possible time to come’ — Creativity is creating resistance to the present.
(version 1.5.2) 09 Mar 2004 http://www.libresociety.org
awesome you are completely correct moshe yankovich
The problem with many of the arguments posted here is that DJ Danger Mouse and others who have remixed Jay-Z's album are not selling their product. It is available for free, for anyone. If the re-mixing artist is not making any money from the distribution of said remixes, why should they need to compensate anyone? Obviously these arguments may apply to artists who are using another's music for profit, but not for the pro-bono remixer.
this nicely frames it: if "artists" are just corporate slugs, then they get, and should get, just the rights that corporate slugs get -- nothing. But if that's who artists are, then we have indeed lost a great deal.