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Girl Talk On Remix As An Art Form

This article originally appeared on Techdirt.

Greg Gillis (aka Girl Talk) recently participated in a live chat as part of a Download Decade series run by the Globe and Mail. Gillis makes music entirely from samples, combining existing songs in creative ways to make something new. His last album, which was offered as a pay-what-you-want download, used over 300 samples. Even though he’s been held up in Congress as an example of why traditional copyright laws might no longer make sense, it seems like a lawsuit is inevitable because Gillis doesn’t license any of the samples he uses. Yet, there has been no legal action to date (knock on wood!). Gillis argues that his sampling is fair use because it’s transformative, but that hasn’t been tested in court.

In the chat, he responded to a question I raised about why he uses a noncommercial license for his music (as he makes commercial use of others’ works), arguing that transformative fair use would still allow commercial use of his music and noting that his label suggested the noncommercial license as a “safe move.” Gillis was also asked whether he’s surprised that he still hasn’t faced a lawsuit, even though his profile has been much higher in the past few years.

Kind of. I believe in what I’m doing. I do not think it should be illegal. But at the same time, if you look at the history of sample-based music, it is somewhat surprising. Biz Markie, 2 Live Crew, Danger Mouse, Negativland, etc. Those are the people who laid the groundwork. They all had issues.

He notes that he was under the radar with his first couple albums, but since 2006, it’s been hard for him to ignore publications like the Rolling Stone and the New York Times talking about how he’s going to get sued. Yet, no lawsuits. He says times are changing.

The way the general public views intellectual property in 2009 is much different than in 1999. Look around the internet. So much content comes from pre-existing media. We’re used to it now. Christian Bale goes crazy on the set of T4. That turns into a techno song, which then turns into a cartoon on YouTube, which will then turn into a T-shirt. Everyone is constantly exchanging ideas and building upon previously existing material. So the idea of a remix being a real artform is being validated in our culture every day.

Certainly, artists like Girl Talk, as well as others ranging from DJ Kutiman to the creator of the “rap chop” video, have been debunking the myths about “original” content, showing people that remixing can be creative and original and that it contributes to culture. Still, there are plenty of people who believe otherwise. Hopefully, Gillis continues to avoid legal troubles, though I don’t think things have changed so much that this isn’t still a huge risk. But, insofar as the remix is increasingly validated as an art form, perhaps a lawsuit would end up highlighting the limits that copyright law places on artistic expression nowadays.

Read the comments on Techdirt.

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Why Doesn’t Girl Talk Allow Commercial Use?

[This originally appeared on Techdirt.]

Legal trouble for Girl Talk — an artist named Greg Gillis who released a “mash up” album using the pay what you want model — is almost inevitable, but the situation gets even more interesting when you consider how the music is licensed. Girl Talk uses a Creative Commons Attribution-Noncommercial license for Feed the Animals, even though the songs on the album were made by using hundreds samples from other artists. Gillis claims his songs are fair use on the basis of being transformative and because the clips used are very short.

Aside from potential legal claims over the license if the fair use defense fails, why would Gillis — an artist making commercial use of samples from others — put a noncommercial restriction on his work? It seems a bit hypocritical. Granted, he does claim that “the CC license does not interfere with the rights you have under the fair use doctrine, which gives you permission to make certain uses of the work even for commercial purposes,” but is the noncommercial restriction for other uses really necessary?

First of all, as Mike Masnick pointed out in his critique of a noncommercial copyright, the distinction between commercial and noncommercial use is extremely blurry. Equally blurry in this case is the distinction between transformative and non-transformative use. At what point exactly does a derivative work become transformative? But, more importantly, Mike asks “if someone else is able to do something commercially useful with my content, why should that be a problem?” Girl Talk ought to be a perfect example of this, yet Gillis seems to deliberately limit the possibilities through his choice of license.

Why attempt to limit the positive externalities? Maybe some of the artists sampled on the Girl Talk album will really like a song their music appears in and want to include it somehow on a release of their own, make use of it on their website, etc. Should those artists then be required to pay for the use of a song which includes samples of their own music? Maybe, but it seems like respecting “upstream” would help an artist like Gillis maintain a better relationship with the artists from which he’s sampling.

Furthermore, what about people who might do something with the album that’s potentially commercially useful for Girl Talk? For example, if someone were to make an interesting remix or video using Girl Talk’s music , not only would they be required to refrain from commercial use themselves (unless it was fair use), but Gillis would require their permission to make use of it himself. If he had used a copyleft license like the Creative Commons Attibution-Share Alike, both he and any artists making derivative works would have the ability to monetize their efforts. Instead, derivatives are relegated to the realm of the amateur because, with a noncommercial license, the barriers of a permission culture are still intact for artists trying to make a living from their work. One would hope that Greg Gillis, of all artists, might realize the benefits of removing these barriers, especially on commercial use.

[This was largely inspired by a couple Rob Myers posts — Noncommercial ShareAlike Is Not Copyleft and Why The NC Permission Culture Simply Doesn’t Work — which convinced me to license my music under a free license.]

[Read the comments on Techdirt.]

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