On Tuesday, July 17, I appeared on the Colin McEnroe Show on Connecticut Public Radio to talk about my pet topic, remixes and mashups. The great DJ Earworm was on the show too, which I was totally geeked out about. You can stream or download the show here. Or listen to my remix of it:
My friend Jesse had a lot to say about the discussion on the program. Read his response (and my response to his response.)
This post is longer and more formal than usual because it was my term paper for a class in the NYU Music Technology Program.
Questions of authorship, ownership and originality surround all forms of music (and, indeed, all creative undertakings.) Nowhere are these questions more acute or more challenging than in digital music, where it is effortless and commonplace to exactly reproduce sonic elements generated by others. Sometimes this copying is relatively uncontroversial, as when a producer uses royalty-free factory sounds from Reason or Ableton Live. Sometimes the copying is legally permissible but artistically dubious, as when one downloads a public-domain Bach or Scott Joplin MIDI file and copies and pastes sections from them into a new composition. Sometimes one may have creative approval but no legal sanction; within the hip-hop community, creative repurposing of copyrighted commercial recordings is a cornerstone of the art form, and the best crate-diggers are revered figures.
Even in purely noncommercial settings untouched by copyright law, issues of authorship and originality continue to vex us. Some electronic musicians feel the need to generate all of their sounds from scratch, out of a sense that using samples is cheating or lazy. Others freely use samples, presets and factory sounds for reasons of expediency, but feel guilt and a weakened sense of authorship. Some electronic musicians view it as a necessity to create their tools from scratch, be they hardware or software. Others feel comfortable using off-the-shelf products but try to avoid common riffs, rhythmic patterns, chord progressions and timbres. Still others gleefully and willfully appropriate and put their “theft” of familiar recordings front and center.
Is a mashup of two pre-existing recordings original? Is a new song based on a sample of an old one original? What about a new song using factory sounds from Reason or Ableton Live? Is a DJ set consisting entirely of other people’s recordings original? Can a bright-line standard for originality or authenticity even exist in the digital realm?
I intend to parse out our varied and conflicting notions of originality, ownership and authorship as they pertain to electronic music. I will examine perspectives from musicians and fans, jurists and journalists, copyright holders and copyright violators. In so doing, I will advance the thesis that complete originality is neither possible nor desirable, in digital music or elsewhere, and that the spread of digital copying and manipulation has done us a service by bringing the issue into stark relief.
Thomas Wuil Joo. A Contrarian View of Copyright: Hip-Hop, Sampling, and Semiotic Democracy. 44 CONN. L. REV. — (2012)
As both a fan and a producer of sample-based music, I’m naturally sympathetic to Lawrence Lessig and the free-culture movement, a group of legal scholars advocating reforms to copyright law that would make it easier to sample, remix and mash up the works of others. The free-culture adherents believe that copyright law exceeded its original purpose to “foster the Useful Arts and Sciences,” and that now it mostly stifles less-powerful creators while benefiting more-powerful entities. A narrative has emerged in this movement implicating the high-profile sampling lawsuits of the 1990s like Grand Upright Music v. Warner Bros. Records and Bridgeport Music Inc. v. Dimension Films in suppressing sample-based hip-hop and related collage-like popular music.
Lessig and company think that sampling and remixing of popular culture can empower us, enabling us to take ownership over the products of the dominant culture industry and enhancing “semiotic democracy.” Copyright law inhibits recoding and is grossly overbalanced in favor of large corporate entities and other powerful actors. In particular, so the narrative goes, marginalized hip-hop artists have suffered under the heavy hand of lawsuits and exorbitant licensing fees.
Is the free-culture movement right?
Thomas Joo challenges the free-culture movement’s assertions both theoretically and empirically. He analyzes the infamous lawsuits and finds only reinforcement of a longstanding status quo. He provides extensive evidence that commercial hip-hop artists of the “golden age” (the 1980s and early 1990s) were perfectly aware of the requirement that they license their samples, and that they were able to produce and profit from their music nonetheless.
Girl Talk doesn’t actually isolate sounds; it’s almost impossible to do that. You can use EQ to quiet background sounds to a limited extent, but there’s no way to perfectly isolate sounds from a mixed track. Girl Talk and other mashup artists rely heavily on a capellas (vocal-only mixes) and instrumentals, which are included with DJ versions of most pop, hip-hop and dance tracks. A few isolated stems have also been leaked from the Rock Band and Guitar Hero games, they pop up online here and there. Every so often an artist will release tracks separated into stems officially. Kanye West even gives away stems of “Love Lockdown” for free on his blog.
I don’t enjoy Girl Talk’s music all that much — I find it overwhelming, like watching someone flip channels on a TV. But I think he’s really important, and anyone who cares about music, technology, originality and ownership should be paying close attention. Adam Bossy raised an intriguing idea in his answer — describing an unlikely pairing of Black Sabbath and Ludacris, he observes: “It sounds as though each song was originally written with the other in mind.” At his best, Girl Talk finds connections between seemingly distant genres and styles, and shows that maybe the commonalities run deeper than the differences. This is a big idea, and an exciting one.
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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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Fan Wars: Copyright vs. Mash-ups and Fan Fiction
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?
Back in 1966, Glenn Gould predicted that recorded music would become an interactive conversation between musician and listener. He described dial twiddling as “an interpretive act.” He was wrong about the dials, but right about the main point, that technology would make listening to music more like making music. Anybody with iTunes instantly becomes a DJ. It doesn’t take much more software than that to produce your own electronica. Some copyright holders and their lawyers are feeling a lot of anguish about this development. For the rest of us, I think it’s an exciting new opportunity, a chance to restore music to its rightful and natural state as shared property, a dynamic conversation anyone can be part of. Continue reading