I. THE GREY BACKGROUND
The United States Constitution, Article 1, Section 8, states: "The Congress shall have the power 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."1 For some innovators, time and exclusivity stifle progress.
When Brian Burton, also known as "Danger Mouse," set out to amalgamate the Beatles' The White Album with Jay-Z's The Black Album, he intended to create The Grey Album.2 Like Mary Shelly's Dr. Frankenstein though, Burton quickly realized that along with the creation comes its consequences. Burton found himself at the center of a worldwide controversy regarding derivative works, copyright infringement, and the legitimacy of sampling in the digital age.
By taking drum hits, piano loops, and guitar riffs, and meshing them into re-contextualized songs featuring the Beatles' sounds and Jay-Z's rapping flow, Burton created a lush landscape of beats, melodies, and musical arrangements. The result rivals any musical concept attempted in the past 40 years. Coincidentally, the sound of the album barkens back to Phil Specter's wild orchestrations that accompanied the final original Beatles album.3 Critics and fans alike are forced to place this redefined sound in a new musical category. As one commentator stated, "What The Grey Album has . . . done is open up Jay-Z to rock fans in a way that his street-reared, club-ready anthems have not. And it may do the same for rap fans who didn't know they liked the Beatles."4
After the project was completed in December 2003, The Grey Album was distributed via the internet and select record stores in Los Angeles. The Grey Album quickly became one of the most highly sought downloaded recordings.5 On February 24, 2004, more than 1,000,000 downloads of the songs were recorded.6 That number bested popular artists such as Norah Jones and Kanye West and made The Grey Album gold in one day after 100,000 complete copies of the album were downloaded.7 At the 2004 South by Southwest music conference, it was exceedingly difficult to find an expert panel that was not asked to give an opinion regarding The Grey Album during a question and answer session. In response to questioning, Ann Chaitovitz of the American Federation of Television and Radio Artists claimed that the production and subsequent dissemination of the album was simply a violation of the derivative works section of the federal copyright law.8
As soon as the album was distributed, copyright law was violated because the owners of the works had not given permission for Brian Burton to release his creation commercially to the public.9 A representative for EMI Records, the company who controls the sound recordings for the Beatles on behalf of Capitol Records Inc., served the cease-and-desist orders to Burton and record stores distributing the album such as Fat Beats and hiphopsite.com.10 Sony Music/ATV Publishing owns the publishing side of the Beatles' catalog.11 Sony/ATV is a venture between Sony Music and Michael Jackson.12 Regardless of who owns the rights to The Grey Album, the composition was made in a Burton's bedroom over the course of a two week period in December of 2003. Instead of looping beats on top of the original recordings of the Beatles for the making of The Grey Album, Burton actually deconstructed the songs from The White Album before adding Jay-Z's vocal tracks. By counting the beats per minute in the Jay-Z songs, Burton had a way to quantify and compare the songs on The Black Album and The White Album. He was able to discover some similarities between instrumental areas of the Beatles' songs and the beats per minute of Jay-Z's rhymes. Then Burton digitally pilfered The White Album and isolated the drum, guitar, and bass parts to use as samples. These samples were separately inputted into the software ACID Pro.13 Within ACID Pro is an option to layer separate tracks of samples, which Burton used to mesh the beats he had stripped, sometimes using up to 37 separate tracks simultaneously. …