Last year, I spoke on a panel about sampling with a few academics and copyright lawyers. One of the panelists was Martin Schwimmer, a partner in a law firm practicing trademark and copyright law. A big part of his job is going after copyright infringers. Schwimmer assured the audience that no one will ever sue Girl Talk, regardless of the legal merits, because in terms of real-world consequences, it’s a lose-lose proposition.
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Let’s say one of the umpteen copyright holders sampled by Girl Talk decides to go after him. Greg Gillis is white, nerdy and well-educated. He’s a generally sympathetic, press-friendly defendant with a rabid online following. If the copyright holder wins, the internet will rise up as one in protest, resulting in a public relations disaster that’ll cost way more than any amount of money that could conceivably be wrung out of Gillis. If the hypothetical copyright holder loses, it opens the floodgates to unlicensed sampling under Fair Use, which right now has tenuous status at best as a legal argument. Rights holders prefer the status quo, where the law is murky and everyone is so nervous that they mostly license their samples. Girl Talk might be popular, but until unlicensed mashups dominate the pop charts, the music industry will probably just keep ignoring them.
I should add that Schwimmer himself owns and loves all of Girl Talk’s albums. I think Gillis is pretty safe.