Recognizing the Grey: Toward a New View of the Law Governing Digital Music Sampling Informed by the First Amendment
Durbin, William Y., The William and Mary Bill of Rights Journal
A trio of rappers from New York,1 working with a pair of producers from California,2 broke new musical ground in 1989 with the release of the album Paul's Boutique.3 The Beastie Boys and Dust Brothers wove together a complex tapestry of samples and highly referential raps4 the likes of which the music industry had never seen.5 Fortunately for the Beasties and their producers, they released the album at a time when the laws governing sampling were not clearly defined.6 Nor were they strictly enforced. With the subsequent tightening of laws governing the use of sampling in music,7 however, it became unlikely such an album would ever be seen again. Fifteen years later, an equally ground-breaking, sample-rich album surfaced. In early 2004, DJ Danger Mouse8 released The Grey Album, mixing the vocals of rapper Jay-Z's The Black Album with the instrumentation of The Beatles' self-titled album commonly referred to as The White Album.9 Producing just 3,000 copies of the album and intending it to remain "underground," Burton never thought he would need permission to use the other artists' material.10 But once the album found its way to the Internet, it reached an audience far wider than Burton had envisioned.11 The album met immediate critical acclaim, with Rolling Stone calling it an "ingenious hip-hop record that sounds oddly ahead of its time."12
With this wider audience and critical acclaim, it was soon no secret that Burton never received permission to use The Black Album or The White Album in his new composition. 13 For their part, Jay-Z and his record label, Roc-A-Fella Records, did not object to Burton's use of The Black Album; in fact, they tacitly encouraged the use of the album in remixes, going so far as to release a vocals-only version that made mixing it with other music all the easier. 14 But EMI, which represented the owner of the Beatles' sound-recording copyrights, Capitol Records, and Sony Music/ATV Publishing, owner of the compositions on The White Album, sent Burton letters claiming he was infringing upon their copyrights and ordering him to cease and desist in distributing The Grey Album.15 The music industry thus demonstrated that it was determined to protect its monopoly on the music by hook or by crook.
Neither EMI nor Sony Music/ATV Publishing filed suit against Burton or those distributing The Grey Album online because they complied with the companies' ceaseand-desist letters and discontinued distribution of The Grey Album.16 Although music activists staged a one-day protest by putting the album back online, and links to download the album remain in a few hard-to-reach corners of the Internet, for the most part, the record industry succeeded in burying The Grey Album under a pile of dusty legal arguments.17 Given the record industry's threats of legal action, and given its greater ability to outlast any opponent it would be likely to face in such litigation, it is unlikely that such a sample-rich album will ever be seen again - that is, unless the law evolves to allow for more creativity and freedom in the art.
This Note addresses what happened to the law governing the use of samples in music during those fifteen years between Paul's Boutique and The Grey Album, how it has succeeded, and how it may be improved. It begins by defining and contextualizing the musical technique known as sampling and by discussing the technology and the cases that have helped shape the law in recent years. Part I takes a closer look at the law governing sampling in music, including its constitutional and statutory bases. More specifically, this Note looks at recent developments in the case law as well as the goals the law seeks to achieve.
In Part II, this Note revisits The Grey Album events as a case study in the law governing sampling. It addresses how the law succeeded and failed with respect to that work and why, given the current state of the law, such a work might not appear again. Part III considers how the law governing sampling in music is broken - how, in its current state, the law fails to meet its goals. …