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The Grey Album

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Illegal Art is doing what they do best, stirring up copyright-related controversy. This time it’s about Danger Mouse’s Grey Album:

    DJ Danger Mouse’s recent Grey Album, which remixes Jay-Z’s The Black Album and the Beatles White Album, has been hailed as a innovative hip-hop triumph. Despite that and the fact that only 3,000 copies of the album are in circulation, EMI sent cease and desist letters yesterday to Danger Mouse and the handful of stores that were selling the album, demanding that the album be destroyed.
    “EMI isn’t looking for compensation, they’re trying to ban a work of art,” said Downhill Battle’s Rebecca Laurie.

    “Special interests, including the major labels, have turned copyright law into a weapon,” said Downhill Battle co-founder Holmes Wilson. “If Danger Mouse had requested permission and offered to pay royalties, EMI still would have said no and the public would never have been able to enjoy this critically acclaimed work. Artists are being forced to break the law to innovate.”

    The Grey Album has been widely shared on file sharing networks such as Kazaa and Soulseek, and has garnered critical acclaim in Rolling Stone (which called it “the ultimate remix record” and “an ingenious hip-hop record that sounds oddly ahead of its time”), the Boston Globe (which called it the “most creatively captivating” album of the year), and other major news outlets.

The result is certainly interesting – a high-end mash-up. Click over to download the entire album.

Waxy.org hosted the files themselves and got to deal with this:

    February 13, 2004

    I was cc’d on an e-mail from EMI’s lawyers to my ISP, stating that I’m in violation of the Digital Millenium Copyright Act. As such, I have removed all of the MP3s from my web server. The text of the EMI letter is below.

    Jeff Lowenberg
    Vice President Operations/Designated Agent
    Everyone’s Internet
    2600 Southwest Freeway, Suite 500
    Houston, TX 77098

    Re: Unauthorized Use of Sound Recordings Performed by the Beatles

    Dear Mr. Lowenberg:

    It has come to our attention that Andrew Baio is currently exploiting sound recordings that are owned and/or controlled by Capitol Records, Inc. (“Capitol”). In particular, it appears that Mr. Baio is using, without authorization, on his website, http://www.waxy.org/archive/2004/02/11/danger_m.shtml,
    (the “Website”), copies of sound recordings embodying performances of the Beatles, including but not limited to recordings of “Long, Long, Long,” “While My Guitar Gently Weeps,” “Glass Onion,” “Savoy Truffle,” “Mother Nature’s Son,” “Helter Skelter,” “Julia,” “Happiness is Warm Gun,” “Piggies,” “Dear Prudence,” “Rocky Raccoon,” “Revolution 1,” “Revolution 9,” “I’m So
    Tired,” and “Cry Baby Cry” (the “Capitol Recordings”).

    Andrew Baio’s unauthorized exploitation of the Capitol Recordings constitutes copyright infringement, and renders Andrew Baio, and any other company engaged in the unauthorized exploitation of the Capitol Recordings with Andrew Baio, liable for all of the remedies provided by the relevant laws occasioned by
    Andrew Baio’s unfair competition and dilution of our valuable property.

    I am the agent authorized to act on behalf of Capitol, the complaining party. It is our understanding that Everyone’s Internet, Inc. is the Internet Service Provider for Andrew Baio and the Website, and as such, you are the authorized agent for service of this notice in accord with The Digital Millennium Copyright Act of 1998, 17 U.S.C. � 512 et seq. (the “DMCA Notice”) for Everyone’s Internet, Inc.
    We request that following your investigation of this matter you provide us full remedy under the DMCA Notice requirement, including but not limited to,
    expeditiously removing or disabling access to our copyrighted material. Unless we receive full and immediate compliance with this demand within a
    reasonable amount of time, we will be forced to consider pursuing our other remedies at law and in equity.

    This letter is written without prejudice to any of our rights or remedies, all of which are expressly reserved herein.

    By placing my signature herein, I state under penalty of perjury that the information contained in this notification is accurate and that I am authorized
    to act on behalf of the owner of an exclusive right of the Copyright alleged to be infringed.

    Sincerely,
    Jonathan H. Campbell
    Legal and Business Affairs
    EMI Recorded Music, North America

So you still think of the DMCA as some kind of abstract evil? Not to Andrew. That’s why I am only linking to the files and not hosting them.

The Beatles are in no way harmed by this, of course. They should be compensated for the use of their work, but they should not be able to stop the use of their work.

Wired has looked into the matter as well:

    Unlike other illicit remixers — such as avant-garde ensemble Negativland, which got into a famous fight with a certain Irish rock band over their album U2 — Danger Mouse won’t challenge EMI’s directive.

    “He wants a career after this,” a source close to the DJ said.

    “I’m just worried … whether Paul and Ringo will like it. If they say that they hate it, and that I messed up their music, I think I’ll put my tail between my legs and go,” Danger Mouse recently told The New Yorker.

    But remixers like Danger Mouse shouldn’t have to worry about hurting musicians’ — or labels’ — feelings, argues Nicholas Reville, co-founder of the music industry gadfly group Downhill Battle.

    “All kinds of artists have always borrowed and built on each others’ work,” he said. “These corporations have outlawed an art form.”

    ….There is no freedom to beat-match. And there are no set licensing fees. So while the Beatles’ tunes have been recorded by thousands of bands, their song catalog has been notoriously off-limits to hip-hop and dance-music producers’ manipulations. (The one exception to the rule, the Beastie Boys’ Paul’s Boutique, came out before the rules of sampling were clearly established.)

    To Zittrain, that smacks of “copyright as a means of control, rather than a means of profit.” In the American legal tradition, he notes, copyright is seen as a way to make sure innovators get paid for their work, not to keep others from being creative.

    “So long as there’s money to be made, it’s a negotiation,” he said. “There’s not a lot of excitement for further downstream innovation being blocked. Nobody wants to see that.”

    Jay-Z’s engineer, Young Guru, told MTV.com last month that the rapper released a words-only version of The Black Album so DJs could “remix the hell out of it.” And they have.

    ….With all that hype, “Why not just sign the guy?” asks the Creative Commons’ Brown. “Why not license the record, and have everybody make a bunch off of it?”

Because it’s all about control.

UPDATE
Illegal Art’s policy position on why they are hosting the Grey Album files:

    The laws governing “intellectual property” have grown so expansive in recent years that artists need legal experts to sort them all out. Borrowing from another artwork–as jazz musicians did in the 1930s and Looney Tunes illustrators did in 1940s–will now land you in court. If the current copyright laws had been in effect back in the day, whole genres such as collage, hiphop, and Pop Art might have never have existed.
    The irony here couldn’t be more stark. Rooted in the U.S. Constitution, copyright was originally intended to facilitate the exchange of ideas but is now being used to stifle it.

    The Illegal Art Exhibit will celebrate what is rapidly becoming the “degenerate art” of a corporate age: art and ideas on the legal fringes of intellectual property. Some of the pieces in the show have eluded lawyers; others have had to appear in court.

    Loaded with gray areas, intellectual property law inevitably has a silencing effect, discouraging the creation of new works.

    Should artists be allowed to use copyrighted materials? Where do the First Amendment and “intellectual property” law collide? What is art’s future if the current laws are allowed to stand? Stay Free! considers these questions and others in our multimedia program.

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About Eric Olsen

  • JR

    I’m not sure I have this right: you can cover any song with or without permission, you just have to pay royalties; but you can’t use the actual sound recordings without permission?

    And is there some point at which the sound recordings enter the public domain? Or are these mash-ups going to be illegal for all eternity (not just an MTV eternity)?

  • Eric Olsen

    They do eventually enter the public domain, but that period has grown exponentially over the last century, and that is another huge problem.

  • http://search4friction.com wKen

    It’s an interesting take on rap. I especially liked track 2 “What More Can I Say”, which is done over samples from “While My Guitar Gently Weeps” and track 5 “99 Problems” which uses riffs from “Helter Skelter”.

    Paul and Ringo and MJ and whoever else holds the rights to the music (and Jay-Z too) should get together and work out a royalties agreement and release the album. I’m sure MJ could use the money right now.

  • http://search4friction.com wKen

    I went to the links and read what the different sides had to say, and I’m not sure that “it’s all about control”.

    I don’t see any effort to compensate the Beatles or anyone else for their work. Downhill Battle’s Holme’s Wilson says that “If Danger Mouse had requested permission and offered to pay royalties, EMI still would have said no…”. How do they know what EMI would say, if a real offer was made?

    If you go to Downhill Battle’s site, it seems they are against large companies being involved in music, and think that it is better for nobody to make money off of music, including the artists themselves. That’s a pretty extreme position to me.

    Why shouldn’t someone like Madonna be able to sell part of her rights to a large record company (even if she negotiates a bad deal), and why shouldn’t they be able to reasonably and legally protect what they have paid for? How is super rich and famous Madonna being harmed? How are those that agree to pay for the music being harmed?

    That doesn’t mean that I agree with all of the Recording Industry’s tactics, but DB seems to suggest that any attempts to control intellectual property rights (such as the iTunes Music Store) are evil.

    The brief samples from the White Album could be rerecorded as performed by new musicians, and nobody could stop the album from being sold. Royalties would have to be paid for the use of the songs, but that is only fair.

    I don’t think it’s a bad thing to allow artists to decide what other commercial works they appear on. I want control of my image and work, and don’t think it’s alright for other people to be selling me without my consent or compensation. Okay, nobody wants to use me right now, but if they did, I better have the right to say “no”, and get paid if I say “yes”.

    Would you like another writer using parts of your work and image (which are only of value because they’re from you) and selling them as a new artistic approach to writing? What if they included your writing and image in something you find personally objectionable, then try to make money off of it without even talking to you or offering a part of the proceeds?

    I bet that if I found a way to make money off of the name and work of Holmes Wilson, without his consent and without compensation, I’d get a letter from his lawyer too. Maybe I’m wrong, but I doubt it.

    I just hate to see intellectual property painted in such a black and white or good versus evil way. People who create should have some rights over their creations. That should include the ability to sell all their rights to someone else (even a big business).

    I don’t claim to have all the answers, but making everything free and open for any use at all is a sure way to make most artists get full-time jobs and stop creating. That isn’t in anyone’s best interests.

  • Eric Olsen

    I don’t buy Downhill Battle’s extreme position either, but to answer a few or your questions: the Beatles have made it clear that no one can sample their work, period. That is common knowledge within the industry.

    I think all creators should be compensated but I don’t think they should any more control over their work once it is published than songwriters do over who records or performs their songs. Once it out in the world, it belongs to the world, as long as the creator gets compensated.

  • http://multimedea.blogspot.com Dew

    I am in here. I agree that artist should get paid no matter what for the use of their art, but I also know as an artist the feeling of wanting to protect your work.

    If someone or some form of artist wants to use your work in a manner which you believe takes away from the emotion or idea you were originally trying to convey, I do believe you should have the right to refuse them.

    To the listener it may just be a song or a symbol of a memory or emotion, but to the writer or creator of that song it is apart of them. Ultimately they feel like they are lending you apart of their person. I know that seems deep but its true to most artists. Would you give yourself to just anyone?

  • http://multimedea.blogspot.com Dew

    P.S. Thanks for the link!

  • HoJo

    I agree that artists should be paid if their work is being incorporated into another person’s commercial product (i.e., if I’m making money off samples of your music, you should be getting a chunk of that money), but I think it’s ridiculous to apply that to non-commercial works.

    If Danger Mouse is not attempting to sell the Grey Album, and the websites (or P2P networks) currently hosting it are not charging for it, then where’s the harm? Nobody’s “stealing money” from the artist, because nobody’s making money from this use of the artist’s work. It’s just out there for fun… no different than me making a CD mix for my girlfriend or forwarding a funny e-mail to everyone in my address book. Or even using a picture of an actor or cartoon character I found on the web as my chatroom avatar.

    And, unless the Beatles were planning to release a similar product (and I *seriously* doubt that), where’s the infringement?

    I understand wKen’s comment about artists controlling their “image and work,” but c’mon… Jay-Z released the a capella vocals specifically so people could mix ‘em up however they liked, and the Beatles… well, they’ve been around for 40+ years, and I seriously doubt a 3,000 unit mash-up release is going to confuse or change anyone’s perceptions about their music or their artistic intentions.

    I mean, did any Nirvana fans jump off the bandwagon because somebody mixed “Smells Like Teen Spirit” with “Bootylicious”…? It’s silly.

    The other part of this conversation is about whether artists should be able to control fair use of their works once those works have been released to the public (“fair use” meaning that the samples are paid for if they’re used in a for-profit project), and I say no.

    If you choose to release it into the public arena, it should be available for fair use (similar to the rules governing parody and satire). If you don’t want parts of your artwork to inform, inspire, or be incorporated into someone else’s artwork (a bit arrogant, IMHO), then don’t release it into the public. Just keep it enshrined in your basement, put tinfoil and soundproofing over the windows so no one else can see or hear it, and spend every free afternoon and evening all alone, worshipping yourself and your incredible, untouchable genius. Otherwise, get over yourself.

    If you’re worried that a mash-up is going to distort your image, then maybe your image wasn’t so strong to begin with…

    In the end, this whole thing does seem to be about control. And, quite honestly, if he were alive today, I think John Lennon would be disgusted by the record company’s iron-fisting. “Imagine no possessions…”

    I just wish Paul and/or Ringo would step up and defend DM’s use of the samples, at least in their current non-profit form. They may no longer own the copyrights to all the songs being used, but at least it would further highlight the ridiculously greedy and controlling nature of the current copyright holders’ objections (I mean, if the Beatles themselves don’t care about their image/work being repurposed for the sake of non-profit art, why should anyone else? (And, if the remaining Beatles *do* care… well, I for one would lose a little respect for them. Again, get over yourselves)).

    My last comment is about this bit from wKen’s post: “making everything free and open for any use at all is a sure way to make most artists get full-time jobs and stop creating.”

    If that’s true, wKen, then I would say that those people are not truly artists. True artists make art because they have no other choice – something inside compels them to do so. It’s the difference between, say, Bob Dylan and Aaron Carter. One creates music because it’s in his soul and has to come out or else he’d go crazy; the other makes music for money and chicks. If all the record companies folded and music was suddenly free to all, I have a feeling Dylan would still write songs. Carter, I suspect, would move on to something else…

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