"Give Me a Beat:" Mixing and Mashing Copyright Law to Encompass Sample-Based Music

By Shapell, Anna | The Journal of High Technology Law, July 2012 | Go to article overview

"Give Me a Beat:" Mixing and Mashing Copyright Law to Encompass Sample-Based Music


Shapell, Anna, The Journal of High Technology Law


Cite as 12 J. HIGH TECH. L. 519 (2012)

I. Introduction

What might be appropriately termed a culmination of music history, mash-ups are compilations of pre-existing songs blended and spliced together to create an entirely new song. (1) The most basic form of mash-up pits artists with clearly opposed styles against each other. (2) For example, one popular mash-up blends Jay-Z's "H.O.V.A." and Miley Cyrus's "Party in the U.S.A." layering Jay-Z's lyrics on top of Cyrus's instrumentals. (3) Mash-ups like this generally consist of two songs "warring" against each other, lyrics and instrumentals fading in and out. (4) In contrast, certain sound artists have taken the blending process to a new level: instead of mixing two songs together, these artists overlay multiple songs at one time, quilting an entirely new song from a dozen or more preexisting ones. (5)

This Note is, in part, concerned with one particular way in which technology has facilitated abrupt and dramatic changes in music production and regulation. It is no secret that technology changes, on an almost daily basis, the way the public interacts with music. (6) From changes in song and genre popularity, to technological advancements that introduce new listening interfaces like mp3 players and iPods, to, most significantly, the Internet, technology has been both a blessing and a curse to those who make music, and to those who listen to it. (7) Mash-ups are syntheses of these technological advancements: a simultaneous blend of two or more existing songs resulting in a new recording. (8) The last ten years has seen a proliferation in mash-up popularity, but along with popularity comes the glare of legal scrutiny, which has favored original compositions at the expense of songs created--in part or entirely--from borrowed music. (9)

As it stands, existing copyright law has been adapted to regulate the sampling of music, but both the novelty of mash-ups and the fact that most mash-up artists sell their music through independent labels, have protected mash-up artists from both litigation and suit. (10) Yet, the current structure of licensing, which is eschewed by many mash-up artists, fails to facilitate a legal way in which mash-up artists can actually obtain permission to sample copyrighted sound recordings. (11)

Section II provides the appropriate context of current copyright law, and discusses the legal history of sample-based music as well as the relevant aspects of U.S. copyright law. It also explains the current licensing structures for both musical works and sound recordings. Section III turns to the topic of Girl Talk, also known as Gregg Gillis, a prominent mash-up artist whose sound collages provide the basis for this Note's analysis. Section IV dissects the ways in which current copyright law has failed to respond to technological improvements in the musical arena, and suggests that the licensing schemes for obtaining permission to reproduce and distribute sound recordings should be similar to those for musical works. It also explores the various ways in which the licensing schemes can be modified, and discusses the policy implications of adapting copyright to mash-ups and other technology-driven forms of musical expression.

II. The History of Sample-Based Music and U.S. Copyright Law

A. Purpose of U.S. Copyright

The purpose of U.S. copyright law is to "Promote the Progress of Science and the Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (12) The fruit of this progress is intended to benefit the public by providing incentives to create original works, and the rights included therein "are designed to assure contributors to the store of knowledge a fair return for their labors." (13) A system of rewards and benefits, U.S. copyright law is organized to ensure that those who contribute to the public vault of creative works are granted exclusive rights of control over reproduction, derivative works, distribution, public performance, and, for audiovisual works, public transmission. …

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