The Idolawyer Gives Us Some Real Talk About Girl Talk

I’ve been asked to comment on Mike Barthel’s excellent “Girl Talk is Not Fair Use,” which appeared on Idolator yesterday. I’m a transactional entertainment lawyer, so I never actually litigate copyrights. Nevertheless, I’m treading in dangerous waters because I often represent copyright owners. I don’t claim to know how federal courts would analyze a hypothetical infringement claim against Girl Talk, a.k.a. Gregg Gillis; historically courts have been inconsistent in applying fair use analysis. I do, however, have some thoughts about how such a case should be decided.



In the interest of full disclosure, I’ll confess that I enjoy Mr. Gillis’ work; he did a legitimate remix of a track by a client of mine that I enjoyed and appreciated. I’m by no means a hardcore fan, but I have sufficient familiarity with his work for purposes of this piece.

Mike set forth the factors that courts consider when analyzing a fair use defense, so I’ll cut to the analysis. In practical terms when considering whether copyright laws overreach or overprotect, I refer back to the policy of copyright, as stated in Article I of the United States Constitution: “[Congress has the power to pass laws] to promote the progress of science and useful Arts.” Copyright, by securing for limited times certain exclusive rights to owners, is intended to encourage creativity. So if copyright stifles creativity, then it is not furthering the underlying policy of copyright. I realize this is an oversimplification, but the policy is very relevant to this analysis.

It’s by no means a coincidence that my interest in hip-hop started to wane around the time of the Grand Upright v. Warner decision (the so-called Biz Markie case in 1991, an opinion that opens with the ominous words “thou shalt not steal”). Grand Upright sent the proverbial shot across the bow to rap producers, and the golden age of the postmodern hip hop sound collage (Paul’s Boutique, Three Feet High and Rising, It Takes a Nation of Millions, etc.), in my opinion, came to a crashing end. Underground hip hop took the biggest hit, as sampling became the domain of the haves (artists and producers with sufficient money and leverage to clear samples) and the have nots were left out in the cold (everyone else). As technology has facilitated postmodern expressions such as the mash-up, artists on the cutting edge have been forced to work underground, ignoring copyright laws.

Regarding the fair use argument in the context of sound collages or mash-ups, analysis should really turn on the purpose and character of the use, specifically whether or not the use is transformative. Mike correctly stated that the nature of the copyrighted work is a non-starter because the copyrighted works are in each case creative expression. I will punt on the third and fourth factors for the moment and get to the transformative use analysis.

The U.S. Supreme Court stated in Acuff Rose that the policy of copyright, stated above, is furthered by transformative works. Whereas fair use analysis often turns on whether the market of the copyrighted work is harmed, when a work is transformative the other factors are given less weight–including whether or not the work is commercial. Although parody has an obvious foothold in the statutory language of criticism and comment, parody is but one example of a transformative work. Under Acuff Rose, the question becomes whether by shedding new light on an earlier work, the artist in essence creates a new work. In the words of the Court, “context is everything.”

I’m not sufficiently familiar with the Girl Talk recordings to know whether Gregg Gillis adds any original sounds (as in sounds created by him) to the works. Courts are more likely to find transformative use if the artist adds a large amount of new material; however, it doesn’t really matter whether the “new material” he brings to any given sample is itself original. Even if the copyrighted track is juxtaposed solely against other copyrighted tracks, so long as the work is presented in a new light so that the commentary becomes creative expression, the resulting work should be considered transformative.

Although the U.S. Court of Appeals for the Sixth Circuit recently established a bright line rule that even a very short sample of a copyrighted sound recording without a license constitutes infringement, the “amount and substantiality” factor should not be dispositive. It is clear that for a transformative work to effectively comment on or criticize an existing work, enough of the work must be presented to make the copyrighted work recognizable to the listener. This is certainly true of Girl Talk: Gillis’ work would be far less clever or interesting if he chopped up the samples so as to make them unrecognizable. Thus, the weight given the amount and substantiality factor really depends upon the analysis of harm to the potential market.

Mike correctly points out that nobody would buy a Girl Talk recording to hear the original works; however, there is a possibility that at least some of the recordings used by Girl Talk (such as long passages from hip-hop recordings) have a potential derivative market in re-contextualized works. Such a market could be adversely affected by Gillis’s works. Nevertheless, in my opinion courts should focus on the extent to which the use is transformative.

It’s a little scary to leave it to the courts to determine anything resembling artistic merit; however, Acuff Rose provides guidance. If the commentary “has no bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness…diminishes.” So maybe just sounding awesome together is enough after all.

idolator
  • TheBeard

    Gillis’ thoughts on fair use in an Earplug interview from last week: [earplug.cc]

  • Poubelle

    I loved all the disclaimers in the first paragraph. Definitely written by a lawyer.

  • John P Strohm

    “It’s not that much of an issue anymore” – it’s not an issue until he gets sued! I kinda doubt federal courts are chomping at the bit to apply Acuff Rose to this sort of thing.

  • Anonymous

    I can’t wait for this guy’s time to pass. He’s a glorified friday night dj, he belongs behind the decks at a big 10 sports bar for parents weekend.

  • Anonymous

    @tim_loves_cats:

    I was going to say it’s a sweaty dude with a laptop and some lights trying to be a DJ for a bunch of kids on ecstasy. But you summed it up nicely as well.

  • Chris Molanphy

    So much haterade! Folks, I don’t worship at Gillis’s altar either, but that’s not the point.

    Hey, Idolawyer: excellent post. Thanks for the analysis.

    I would like to see Gillis succeed as a case study for 21st Century copyright. Sooner or later, there’s going to be an Acuff Rose/Grand Upright of mashup culture, and Girl Talk is probably the clearest vehicle to get the question settled.

  • mike a

    I liked his use of “Autumn Sweater” in Feed The Animals. It was otherwise worth what I paid for it.

  • Mike Barthel

    John, it’s a fair argument, certainly. But here’s what I don’t get, and maybe you can clear it up for me. I’m not denying that you can find some meaning in Girl Talk’s songs. And maybe Gillis even intends that meaning to be there. But if we define the act of playing one song over the top of another song as fair use criticism, doesn’t that dilute the definition so much as to make it totally meaningless? And if that happens, doesn’t that make it possible for big corporations to use other people’s work with impunity? After all, Nike using 15 seconds of an Arcade Fire track in an ad doesn’t decrease the value of the original song. All the band loses is the revenue they would have gotten from the license fee, but that’s true of the artists Gillis samples, too. And if Girl Talk songs constitute fair use criticism, then Nike could argue that it’s simply commenting on the song by laying it over footage of its product. It could even argue that it’s a comment on commercialism! Again, I’m not a lawyer, so maybe I’m missing something, but given the guidelines of fair use, what’s the legal difference between Nike engaging in copyright infringement and Gillis doing so?

  • John P Strohm

    Mike, I’m not arguing that Gillis’ work IS fair use; rather, I’m arguing that it should be analyzed under the guidelines that Court set forth in Acuff Rose. I consider the pioneering work in digital sampling/recontextualization such as the works I mention above to be great art in the post-modern tradition. If you think about the clever juxtapositions in those works, they literally transform existing works. Copyright shouldn’t stifle that sort of creative work. There’s a tension between postmodern tradition and copyright, because copyright is centered on the rights of the author, whereas in post-modernism or post-structuralism the work itself is given greater import than the author. Recontextualizing an existing work in a way that’s clever or inventive in this way is certainly comment or criticism. That’s what should be permitted, even in a commercial context.

    It gets fuzzy when you bring in third parties. Imagine Gillis releases his album, relying (as he is) on fair use. Then imagine Nike or Bay license the work from Gillis (which wouldn’t happen because of E&O insurance, but bear with me). If the owner of one of the samples sues Nike or Bay, you have a very different sort of defendant. Gillis is the artist – he’s arguably making a statement. The analysis makes sense. The other entities are primarily commercial, so I’d assume that nature and character of the work is slanted more heavily towards commercialism. An analogy would be that the Court gives a lesser degree of First Amendment protection to commercial speech.

  • Mike Barthel

    @John P Strohm: sorry, I wasn’t making myself clear there. Gillis isn’t a party in my example. I was thinking more if Michael Bay–an artist, even if not one we would consider a good one–decided to do what Gillis does and take a snippet of someone else’s song and lay it over some footage he has filmed as a way of commenting on that footage. Again, I don’t see how that’s substantially different from Girl Talk other than we like Girl Talk and we don’t like Michael Bay. Is there a certain level of profitability at which something stops being artistic and starts being commercial? And given that a recent decision seemed to deny the idea that samples of a short length are acceptable, are courts really likely to draw this distinction? Gillis demonstrably makes a profit off his music, after all.

    This could just be a difference in taste; I tend to think rap got better when they were forced to make their own beats, and the phrase “postmodern tradition” seems a little oxymoronical to me. But maybe we’re really saying the same thing. I agree that this SHOULD be the interpretation of copyright. I think there needs to be protection for the kinds of uses you’re talking about (though I think that people making a living off sample-based art should be required to pay SOMETHING for the use, in the way that a painter has to pay something for the paint and the canvas, but a one-time, low-denomination fee is fine), but I think that reinterpreting existing case law is a dangerous way to do it. It seems to require the courts to share our taste in art. I’d rather see new legislation passed that established brighter lines, like a profit ceiling under which no fees need be paid so that people could post their crazy manga/emo mashups to their hearts’ delight. But certainly that’s part of the copyfight agenda, and I agree with it, even if I think it’s a little less important than Cory Doctorow does. I just don’t think Gillis going around claiming fair use is helping anything.

  • John P Strohm

    I guess it was a Second Circuit court that sided with the filmmakers for the use of the song Imagine in Expelled (about intelligent design) under a transformative use analysis. Looks like an idiotic documentary, but I’m sure it will do (has done?) tens of millions in business. But I don’t know – these are interesting questions. I agree that a legislative solution would be great – with technology evolving at warp speed it’s time to overhaul the copyright act. Certainly the changes from 1978 (when the 1976 act became law) to now are as significant and substantial as the changes from 1909 to 1978. Point well taken re “postmodern tradition.” Also I’m chuckling over “brighter lines” – since we know bright line rules are elusive.

  • Mike Barthel

    Although maybe scratch Nike there and put in Michael Bay.

  • MayhemintheHood

    @tim_loves_cats: @juiceandgin: Watch it guys…I’ve gone that route on here before and have been accused of “not liking fun” and that “I dont get his conceptual art”.

  • http://www.letsgetgirls.com GetGirls

    DJ’ing for a bunch of kids on ecstasy? Naw. That would indicate he has some sort of talent.

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