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The Black and White about Grey Tuesday

The Grey Album is a remix of Jay-Z’s Black Album and the Beatles’ White Album by DJ Danger Mouse. It is a remix without permission. In our legal system, permission is required to remix others’ art (except if the work is in the public domain, and of course, nothing enters the public domain anymore). The Grey Album is therefore illegal art.

Today is Grey Tuesday — a day set by many to protest the war waged on the Grey Album. Sites across the net are posting the Grey Album. Go here to see scads of sites engaging in this act of disobedience. Lawyers representing EMI have already started warning the sites about the legal liability they face.

Under American law, you don’t need permission to make a cover album. That freedom has been assured since 1909 when Congress granted creators a compulsory right to remake music, so long as a small fee was paid. The record companies have fought hard to defend that compulsory right. As a 1967 Congressional report put it:

The record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.

Copyright Law Revision, Committee on the Judiciary, 90th Cong. 1st, Sess., Rep. No. 83 66 (March 8, 1967) (emphasis added).

But the cover right does not cover a remix. So DJ Danger Mouse must, under the law, ask permission before he can practice his art.

Some artists think this is fair. Some don’t like the idea of their work used without permission. What if Disney remixed DJ Danger Mouse into a re-release of Mickey-jailed-since-1928-Mouse, without asking or paying first?

And indeed, it is just this defense that the record companies offer first: we’re just enforcing the wish of the copyright owners. This is not, they say, a record company cartel. This is about the rights of artists.

But that defense would be more credible if the record companies were to allow artists the choice to set their content free for remix at least. We’ve been working with Gilberto Gil to push a sampling license, under which artists could set their music free for dangerous mice and others to remix. But we’ve yet to find a record company that will allow their artists this freedom. Indeed, the legal department at Vivendi purported to ban us from “approaching” “their” artists.

Should the law give DJ Danger Mouse the right to remix without permission?

I think so, though I understand how others find the matter a bit more grey.

Should the law give DJ Danger Mouse a compulsory right to remix? That is, the right, conditioned upon his paying a small fee per sale?

Again, I think so, and again, you might find this a bit less grey.

But should the record companies give artists the right to choose to free their content so that artists like DJ Danger Mouse could remix without seeking permission first?

There is nothing grey about that question. It is absolutely black and white. Artists should at least have the right to free their content to mash or remix. And record companies absolutely should not stand in the way of at least that.

After doing so much to destroy their reputation in the eyes of most consumers and artists, signaling at least this would be a useful first step towards showing that the record companies care about “their” artists first.

posted by [ Lessig ] on [ Feb 24 04 at 7:49 AM ] to [ free culture ] [ 10 trackbacks ]

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Comments on “The Black and White about Grey Tuesday”

Were EMI ever assigned the web site electronic distribution rights to the works they are claiming are being infringed?

But why should they have the right to license the music they produce how they like?

“Artists” are just paid-for-hire contractors right?

I mean, does Microsoft give its developers the right to license their code how they want?

Does McDonalds give its burger makers the right to sell the burgers they make however they want?

The music business is a business. If the general public realized that, they might be less in awe of highly-promoted “artists” and seek out more independent music.

I don’t get to sell the stuff I produce. It belongs to the company that hired me.

Mark said exactly what I wanted to say.

Let me add that if an artist wants to set his recordings “free,” then he needs to pay for them in the first place so he owns them.

On a semi-related matter, Eminem’s publisher today announced they were suing Apple for using an Eminem song without permission. Most of us have probably seen the commercial.. if features a kid listening to his iPod and singing the lyrics to “Lose Yourself”.

Now, to me that seems like a cover of the song… the actual song was not used. But I dont know what the legalities of covering a song in a commercial are. I’d be curious if someone could shed some light on this issue.

CNN Story: Eminem’s publisher sues Apple

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