Related:

Original post on Quora

Many mash-up artists seem unaware that their work implicates any rights at all, and copyright owners may be reluctant to alienate fans with copyright restrictions. Artists such as Girl Talk remain outspoken against copyright restrictions on mash-up culture. Individual copyright owners, such as the owners of Star Wars, have adopted terms of use for mash-ups.

Is fan and other mash-up activity important to enrich our culture? Are existing allowances for fair use adequate? Should mash-up artists and fan fiction publishers have any right (legal or moral) to complain when others copy and redistribute their work? What is a copyright owner or licensee to do when it has contractual obligations to third parties in connection with their contributions? How should these issues be resolved?

The panelists: Professor Sonia Katyal of Fordham Law School, Professor Shaka McGlotten of Purchase College, Martin Schwimmer (Partner, Moses & Singer), and me! The moderator is Jay Kogan (DC Comics and MAD Magazine).

February 24th, 2010
12:00 p.m.-12:30 p.m.: Cocktails (cash bar)
12:30 p.m.-1:00 p.m.: Lunch
1:00 p.m.-2:00 p.m.: Program
The Princeton Club, 15 West 43rd Street, New York, NY
Cost: $65.00 (members) $75.00 (non-members)

SPEAKERS (besides me):
SONIA KATYAL is a Professor of Intellectual Property, Property and Civil Rights Law at Fordham Law School. Her work focuses on intellectual property, civil rights, and new media, with a special focus on art and freedom of expression. Katyal was awarded a grant from the Warhol Foundation for her book, Contrabrand, which studies the relationship between art, advertising and intellectual property. Her new book, Property Outlaws, (co-authored with Eduardo M. Penalver), which studies the role of civil disobedience in property and technology, was just published from Yale University Press, and her work on fan fiction focuses on how copyright affects the representation of gender and sexuality. Her scholarly work has appeared in prominent legal publications, including the Texas Law Review, the University of Pennsylvania Law Review, the UCLA Law Review, and the Yale Law Journal. She received her A.B. from Brown University and her J.D. from the University of Chicago Law School.

SHAKA MCGLOTTEN is an Assistant Professor of Media, Society, and the Arts at Purchase College, where he teaches courses on media, ethnography, and digital culture. His research focuses on the intersections of media technologies with categories of gender, sexuality, and race in particular. He also works in what might be broadly called “affect studies,” or the study of the ways feelings are central to our individually lived and shared social experiences. He is currently at work on a manuscript that explores these themes. “Virtual Intimacies: Media Cultures and Queer Sociality” examines a range of media sites DIY porn, online gaming, gay chatrooms to examine the mutual intensification between digital media culture and the creativity of queer sociality.

MARTIN SCHWIMMER is a partner in the New York law firm of Moses & Singer, practicing trademark and copyright law. He publishes The Trademark Blog, the nation’s oldest blog devoted to IP law. He is a fan of the Mets, the Jets, Arsenal, Lost, Fringe and Arrested Development. He has all of Girltalk’s albums.

MODERATOR:
JAY KOGAN is Vice President Business & Legal Affairs and Deputy General Counsel for “DC Comics” and “MAD Magazine”, where he serves as the companies chief intellectual property counsel. Jay is also an adjunct professor at New York Law School, where he teaches Intellectual Property Licensing and Drafting. Jay received his J.D. and Masters Degree in Mass Media in a dual degree program at Boston University School of Law and his Bachelor of Arts from the University of Connecticut.

Sponsored by the Copyright Society Of America

Biz belongs to the period in the late eighties and early nineties that many hip-hop heads refer to as the golden age. The tracks of this period were dense with samples and quotes, most of which were used without permission. Biz was no exception to this trend. This map shows only a few of the samples he used.

The golden age came to an end in 1992, when Biz was sued for illegally sampling “Alone Again (Naturally) ” by Gilbert O’Sullivan.

“Alone Again (Naturally)” is a fine song, but it’s not spectacularly original. The chord progressions, melodic motifs and verbal imagery are all popular music boilerplate. The rhyme schemes are mostly cliches like cried/died. Gilbert O’Sullivan was the first person to use this exact combination of standard musical modules, but the modules themselves can be heard in zillions of other songs. I’m giving you all this music criticism because I think it’s ironic that Biz could be sued for stealing from a song that is itself assembled from other pre-existing ideas.

Biz’s song “Alone Again” isn’t on YouTube, but you can hear an mp3 here.

Biz uses a loop of Gilbert O’Sullivan’s piano and a quote from the chorus. He also uses the frequently-sampled beat from “Impeach The President” by The Honeydrippers. Biz’s song follows the time-honored hip-hop strategy of semi-ironically quoting a well-known chorus and writing new verses around it, all over a funkier beat.

Biz’s label, a subsidiary of Warner Bros, attempted to get clearance to use the piano sample from Grand Upright Music, Gilbert O’Sullivan’s publishing company. When Grand Upright denied the request, Biz and his people went ahead and used it anyway. In response, Grand Upright Music filed an injunction. The decision in Grand Upright Music, Ltd. v. Warner Bros. Records Inc. ruled emphatically in Grand Upright’s favor. The decision was the death knell of sample-intensive hip-hop at the commercial level. Judge Kevin Thomas Duffy began his opinion in the case by quoting the Bible:

“Thou shalt not steal.” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country… [I]t is clear that the defendants knew that they were violating the plaintiff’s rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records. This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures.”

Judge Duffy concluded by referring the matter to the US Attorney, recommending prosecution of Biz et al for criminal copyright infringement.

This ruling makes me sad for several reasons. First of all, Judge Duffy wasn’t in complete possession of the facts. If you choose to define sampling as “stealing,” then stealing was in fact rampant in the music business, and not just among hip-hop artists. Rock and roll was built on uncredited borrowing from blues and R&B musicians. The Beatles used unauthorized samples of copyrighted materials in their artsier tracks like “Revolution 9.” Experiments with tape collage by the classical avant-garde go back to the fifties.

I also take issue with Judge Duffy’s equation of sampling and stealing. There has never been a wholly original piece of music. For that matter, there has never been a completely new idea of any kind that didn’t draw extensively on its intellectual context. Sampling is a novel technological practice, but it’s a seamless extension of the way music has always been made. All creativity consists of recombining and repurposing fragments of existing works into new ones. I would go so far as to say that there is no other kind of artistic practice.

I’m not completely unsympathetic to Gilbert O’Sullivan’s position. I wish that some kind of licensing or profit-sharing agreement could have been reached in this particular case. But where does it end? Would we require Gilbert O’Sullivan to pay every previous user of his harmonic and melodic cliches, and every previous user of the cried/died rhyme? Would there be any kind of art at all if we did?

Meanwhile, I detect more than a tinge of racism in Judge Duffy’s ruling, and in the cultural consensus that produced it. This article from the UCLA/Columbia Copyright Infringement Project is sympathetic to Biz’s legal position, but it slips in some ignorant music criticism:

[A]part from the gibberish chanted over O’Sullivan’s ostinato, there is nothing original in Biz Markie’s song or his recording except his performance of it.

Biz doesn’t enunciate his rhymes very clearly, but there’s a big difference between mumbly delivery of slang and “gibberish.” Maybe the slight wasn’t have a racial motivation, but it’s hard to imagine why else the writer would be so dismissive of the hip-hop art form.

Personally, I value Biz Markie’s music much more highly than Gilbert O’Sullivan’s. I resent the chilling effect that copyright law has on sampling culture, which I regard as the a rich and vibrant method of musical expression. A big part of the pleasure of hip-hop is encountering a familiar sample in a new song. It mixes the warm thrill of recognition with the strangeness of a novel context. Hip-hop has this wonderful ability to make well-worn cliches fresh again.

Even when it’s unauthorized, sampling generally helps the sampled artists more than it harms them in the long run. It keeps the sampled artist culturally relevant to new generations of listeners who otherwise wouldn’t care. I would never have even heard of Gilbert O’Sullivan if Biz hadn’t paid him the compliment of sampling him.

Just for fun, here’s Biz’s best-known song. Like “Alone Again”, the chorus quotes an older song, “You Got What I Need” by Freddie Scott.

Boo copyright. Yay quotation.

Update: Kevin Nottingham posted all the samples from Biz’ I Need A Haircut on his blog. Download and remix to your heart’s content.

Further update: the web site for the documentary Copyright Criminals links to this post.