Girl Talk Is Not Fair Use

Nov 10th, 2008 // 26 Comments

Toronto alt-weeklies Eye and Now took sides on Greg Gillis, a.k.a. Girl Talk, in warring cover stories last week. Marc Weisblott’s piece in Eye takes the “anti-” position, expanding on some of the criticism of copyfighters posted here in recent weeks and raising further questions about the implications of the BoingBoing model for the record industry. Evan Davies’ Now piece goes for the “pro,” though copyfight supporters might wish he didn’t, given ridiculous arguments like “what [Gillis is] doing isn’t really any different from what Beethoven did early on after studying Mozart.” While both articles assume that what Gillis is doing amounts to theft, they never actually demonstrate that this assumption is true. Indeed, Gillis contends that his CDs are entirely legal, and should be classified not as copyright infringement but as fair use. But would his fair use defense really stand up in court?



Well, why not ask a lawyer? Unfortunately, in this fraught area, any lawyer you ask seems to have a self-interested answer. Ask Creative Commons co-founder Lawrence Lessig, and he thinks that what Gillis is doing amounts to fair use. Ask entertainment lawyer Barry Slotnik, and guess what? He thinks it doesn’t. But hey, who says we need some fancy lawyer to understand the law? We should be able to figure this out on our own.

As I understand it, fair use is intended to make sure copyright continues to be used for its original purpose of encouraging creativity. More specifically, it provides a way for people to use copyrighted material in the context of criticism or education. That’s not to say that it doesn’t apply to new art, but it does not apply to all art that uses other art. To make the distinction of what is fair use and what is not, you’re supposed to look at four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the use, and the effect of the use on the market value for the original copyrighted work. Let’s take them one at a time.

Purpose and character. At issue here is whether the use is only intended to supplant the original work, or if it constitutes a new work Supporters of Gillis’ position argue that because his work is “transformative” rather than “derivative,” it does not violate this consideration. But whether the work is transformative is only part of what makes the purpose and character of a use fair. Again, the reason for fair use is to allow for criticism and education. Girl Talk is not educational music, and since music criticism does not generally get a party started, he would probably have to argue that it’s parody, a form that the courts have protected in the past. A use that employs a copyrighted work to comment upon the original work, like 2 Live Crew’s “Pretty Woman,” is fair use. But though Girl Talk may transform the songs he samples, he doesn’t really do so to make a critical observation about the original. Where 2 Live Crew changed Orbison’s lyrics as a way of making fun of the song, it’s hard to argue that all or even most of Girl Talk’s juxtapositions are commenting on the works involved. If we’re being honest, most of them just sound awesome together. That’s great, but it’s not fair use.

Nature of the copyrighted work. This one’s pretty straightforward. Fair use can be argued for works that aren’t creative but are just ideas or information, and fair use can sometimes be argued for private creations that have been made public. As the recordings Gillis is sampling are regular old copyrighted works, he doesn’t qualify under this consideration.

The amount and substantiality of the use. Gillis and his supporters have repeatedly invoked this consideration, too, arguing that the samples he uses are too short to be considered infringement. (From the NYT article: “Because his samples are short, and his music sounds so little like the songs he takes from that it is unlikely to affect their sales, Mr. Gillis contends he should be covered under fair use.”) But this is pretty obviously not true. Some musicians that sample other songs really do use only a small portion of the song, but Gillis lifts entire verses from rap songs, and 33% of a piece of art would almost certainly be considered a “substantial” chunk Even the short riffs that Gillis drops into his songs may not be considered fair use if they are–as they tend to be–the main riff from the track being sampled. The Supreme Court has ruled that, even if the copied portion is small, if the portion is the most important portion in the original work, the person copying is still guilty of infringement. Gillis loses on this one, too.

Effect on the original work’s value. This is the other thing copyfighters like to harp on (see quote above), and yep, Gillis wins on this one. No reasonable person would buy a Girl Talk CD if they really wanted to hear the artists being sampled, and a good case can be made that Gillis has actually increased the market value for some of the works he samples by making them sound fresh.

Those, then, are the four considerations, and Gillis only wins on one of them. Theoretically, it could be enough for him to be in the clear, since the courts only require that these four aspects of a piece of art be taken into consideration, not that one side win on a majority of them. It seems unlikely, though, and leaving aside the subjective issue of his possible success in court, this non-lawyer thinks it’s fair to say that Girl Talk is not fair use.

Now, don’t get me wrong. I really enjoy Girl Talk, and I’ve written previously about how his use of samples allows him to experiment wildly and productively with arrangement without having to worry about making the raw material. He’s been able to demonstrate some very interesting new structural ideas. I do think it’s good and important art on those grounds, and I would very much like him to keep making music.

And just because his music isn’t fair use doesn’t mean that I think the fair-use test is the best way to judge the legality of 21st-century artworks. I’m fully aware of all the absurdities of modern intellectual property law, and I strongly support efforts to change the system of licensing, to clarify and expand the protections for incidental uses, and to overhaul the whole damn thing in general. (This comic is a good primer on all those issues.) For instance, it would be great if recorded media could be licensed in the same statutory manner as compositions, so that a copyright holder isn’t allowed to deny you a license and the federal government sets a low maximum rate that you can be charged. Or whatever! Again, I’m not a lawyer, but there are some very smart people working on this problem. I would very much like for them to change things.

What I don’t like is the way that Girl Talk’s music has become a political statement–because it’s not a very good one. His claims to fair use, as I hope I’ve demonstrated here, are disingenuous. And while it’s true that, as many smart people have pointed out, it would be nearly impossible for Girl Talk to have put his album out legally, that doesn’t mean we should change the law so Greg Gillis can make more money. There have always been practical impediments to art, and there always will be. Indeed, those impediments are arguably good for creators. While copyright law may be absurd, it is demonstrably not preventing Greg Gilis from making his music, or from making money off it. Considering that he’s almost certainly breaking the law, that seems more like an argument against the onerousness of copyright than for it.

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  1. Poubelle

    “what [Gillis is] doing isn’t really any different from what Beethoven did early on after studying Mozart.”
    Wow. That’s quite a special interpretation.

    Anyway, I thought this was well-done and thought provoking–especially since I generally don’t care how legal Girl Talk is, as I think it’s terrible. (Also, love the “Music Criticism Doe Not Generally Get A Party Started” tag.)

  2. blueeyeddevil

    I agree. Doesn’t Girl Talk’s output/product make a discussion about his ownership and copywrite issues seem silly? It’s like talking about the fetishization of sport and relating it to professional wrestling. How about find and replace with 3 Feet High and Rising?

  3. chaircrusher

    Thank you for taking the time to actually think and write seriously about this subject.

    Personally, I don’t have much use for Girl Talk — I could name several artists who do something similar with much more artistry — Kid 606, Stunt Rock, and Jason Forrest spring immediately to mind. I did my due diligence and saw him play when he came to Iowa City, and my reaction was ‘meh.’ Now I’m old and his target demo is something like 12-21. But for me he loses on several musical grounds, and the cruddy sound quality his stuff has really grates on my ears.

    If he gives his recorded output away, and makes his living performing, I think the legal complaints become rather trivial — when he’s playing live, he’s essentially DJing, though in a really ADD, fractured way. Clubs already pay fees to cover performances. As for his recorded output, no one ever gets sued for using uncleared samples unless the plaintiff stands to recover some cash. Even the CDs he’s sold are pretty small beer for the Majors.

    And while he could get DMCA takedown notices from record companies for having tracks on a website, I don’t know if the hip hop labels care that much if he isn’t taking away from their sales, and the balance of his samples are so random, I doubt most of the other labels’ artists he bites even know he’s doing it.

    Plus, if you’re not into Girltalk, actually listening to his stuff to pick out samples is a punishing experience. Seriously, if you want anyone over 50 to commit suicide, put Girltalk on loop play.

    And anyway, if anyone should get sued, it’s DJ Shadow. How many copies of ‘Endtroducing’ have been sold, and that fucker is 100% uncleared samples!

  4. chaircrusher

    And another thing — what the hell are people going to sample if no one makes actual music any more? 20 years down the line will there be a generation of musicians inspired by what Girltalk did back in the naughts?

  5. Maura Johnston

    @chaircrusher: See also the nitwit Creative Loafing publisher’s brilliant idea that all of the chain’s papers should become “aggregators.”

  6. Michaelangelo Matos

    LOL the two people I know who like the new Girl Talk the most are both over 50

  7. Michaelangelo Matos

    @chaircrusher: I believe people have been saying this for, oh, 20 years now. It’s called “crying wolf.”

  8. Michaelangelo Matos

    because, you know, NO ONE IS WRITING SONGS ANYMORE ZOMG etc.

  9. Ned Raggett

    The details I could go into about fair use (seriously, it’s part of my regular job). There are indeed plenty of people working on the issue but it’s going to be a long time before there’s actual consensus that’s understood and widely applied. I will note however that, based on some discussion I’ve read recently, the recent Google/publishers agreement, once it’s fully set in stone, may be more of an overall gamechanger than might at first be realized. I strongly recommend Siva Vaidhyanathan’s post in response to it, but that’s just the tip of a huge iceberg.

  10. TheContrarian

    @Maura Johnston: re: Creative Loafing: Totally.

    @Ned Raggett: Totally.

    Great post. Now back to work.

  11. RaptorAvatar

    Great article, it’s nice to see someone actually think through the problem instead of taking a totally reactionary position. 70% of the commentary surrounding Girl Talk is either “I like him, thus he should be allowed to do whatever he wants.” or “He sucks, off with his head.” Personally, I’d take some degree of exception to 1. Girl Talk is actually a big fan of using contrast in sentiments or aesthetics between two or more samples in what, I think, could be termed a critical capacity (althought not necessarily to the detriment of either work). Think about his habit of contrasting epic, romanticized pop song moments with blunt, aggressive sexual declarations lifted from hip hop. By default, the samples he uses are commenting on each other. You don’t necessarily have an arguemnt that all of them have academic value. However, I do think that there’s a little more room on that one that people realize.

  12. Mike Barthel

    @Ned Raggett: thanks ned! I had (gulp) pretty much forgotten about this whole thing; glad to know it’s coming to some resolution.

  13. RaptorAvatar

    @chaircrusher: Personally, I’m psyched to see what happens when the next wave of artists start to run with different aspects of what Girl Talk is doing. Don’t know if you’ve heard Graf Orlock or From Monument to Masses, but those are both bands that use samples really well. What excites me is the extrapolation of that idea along the sort of songwriting line Girl Talk opeates with in addition to the atmospheric idea those bands both use. Now that Girl Talk has defined an end of the spectrum, shit is about to get really interesting on all the ground in between. But then the really pressing issue is that there are still only 12 fucking notes.

  14. T'Challa

    And let’s not forget that his shows are like the best party ever!!!

  15. baconfat

    @chaircrusher: Actually, Shadow cleared a few samples for Endtroducing, including songs by Metallica, Bjork, and Jeremy Storch. They’re listed in the liner notes. Now, he did have a ton of unlisted samples, but he has definitely alluded to paying some of the rights holders for their work (including David Axelrod). Not sure how extensive his efforts have been, but it’s worth noting that Shadow’s wife Lisa owns a management company which represents artists that have been sampled without clearance and/or bootlegged.

  16. NoOneCaresAboutYourFuckingBlog

    Any lawyer should be able to argue either side of any case–though, yes, some arguments REALLY reach sometimes. Even though each lawyer will only tell you which side they WILL argue, they know how to argue the other side.

  17. RGve

    @RaptorAvatar: I think that’s the key point which Barthel misses. If you define music criticism as the stolid, workmanlike typing which most of us do for a day job, then sure Girl Talk is not participating in that ‘discourse’. But the threads he draws between different genres and approaches to themes like ‘love/lust in popular song’ totally work as commentary – though you could argue he’s maybe labouring that point, it’s not like critics aren’t guilty of the same.
    Also sampling one verse of a rap song (which I think he’s done maybe once or twice, far more frequently it’s a couple of bars) is in no way 33% of a song, as it’s less a hook, a beat, intro/outro etc. I don’t know how you break that stuff down, but I doubt that he’s ever got near that figure.
    Lessig’s perspective that the sampling of music vs. the quoting of books is interpreted completely differently also deserves more scrutiny than it gets here.
    Personally I think he wins on three of the four, and as far as I’m aware no one has yet taken a case against him, so all of this is kinda conjecture right? Until a court of law even considers the issue it’s more or less irrelevant what anyone thinks.

  18. Anonymous

    I think what Girl Talk is doing is awesome. Even though he states he is not a dj, he gets what been a dj is. I’ve been djing for 15 years now and i still get exciting on what he is going to do next. His live show is nuts. Keep it up, Greg.

  19. Anonymous

    nobody ever seems to find this fact half as interesting as i do, but i would like to point out that fair use (as i understand it – i work in publishing but i’m hardly a lawyer) is a legal defense, not a right. so even if you think it protects a certain work or its creator, that protection is pretty limited. of course, people rely on it every day anyway.

  20. Anonymous

    Ok, well my take on Girl Talk (based off of only hearing Feed the Animals) is that he is not fair use. What he constructs are simplistic lowest common denominator mash-ups of pop songs for hipster irony nostalgia that is enthralling and entertaining for about 5 minutes and then grows incredibly tedious thus after. He takes two songs, smushes them together, and then changes it to two different tunes 30 seconds later, rinse repeat. He is not creating anything new, he’s just making a collage of “oh remember that jam” or “oh funny haha, ganster rap misogyny with 80′s new wave.” He is not hip-hop, and he is not sampladelic hip-hop, like Prince Paul, Dust Brothers, Meat Beat Manifesto, or the Bomb Squad which took shit loads of samples and made something new out of the source materials. To me his work is nothing more than a glorified dj mix where he is too lazy/cheap to clear the songs he is spinning together.

  21. 2fs

    The quality of Girl Talk’s music is irrelevant to the issue of whether it falls under fair use. Anyway, I agree with the commentors above that Barthel takes an overly narrow view of “critical” or “academic”: these words do not require that the engagement be earth-shattering or brilliant. The strongest point in Girl Talk’s favor is simply that no one would confuse his work with the original, and there’s no inherent economic harm to his sources from his use of them. The law should be written narrowly to protect rightsholders from such harm (which would include music that piggybacks excessively on the previous success of a single source – going way back, like “Ice Ice Baby”) – with any other use being allowed. It would be nice if credit were given – but that would be likelier if doing so now didn’t risk bringing on a lawsuit.

    (By the way: my new idea is to “compose” a series of pieces consisting of every available two-note sequence; I will then argue that any subsequent music that uses any of those two-note sequences infringes on my copyright…)

    • Novi

      Good gracious it brnigs it all back in glorious technicolour! Having left Malaga airport in the rain we arrived in Stansted under a clear blue sky and beautiful autumn colours! Do hope the rain cleared up for the walkers. Will try and send some of my photos if I can work out how to do it easily.Kindest regardsShona

  22. You cannot justify fair use merely on the basis that no confusion exists between Girl Talk’s works and the originals. There are countless examples of sample use in hip hop music where the sample is only a few seconds long, and the finished song bears no resemblance to the original (e.g. Herb Alpert’s “Rise” and B.I.G’s “Hypnotize”.) Yet, royalties were paid in those songs, so there is a tremendous legal precedent that exists with regards to samples.

    See Malcolm Gladwell’s piece “Something Borrowed” for a great article about the controversies over when copyright law should be applicable.

  23. Pnin

    Any lawsuit against Girl Talk would be thrown out of court simply because no judge or jury would be able to listen to the evidence. It is the most irritating crap I have heard in years. My girl friend plays it to punish me when she's mad at me.

  24. I second that last post. It’s just stupid…

  25. Niko

    word. I disagree with only one thing – I almost felt like committing suicide after listening to girl talk and I’m only 40.

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