Creativity has been at odds with the ownership of ideas for years. Throughout US history, people have pushed the boundaries of law in the name of creativity as new technologies have been invented. Copyright law was instituted to protect the authors of new creative works. In this digital age, accessibility of recorded works over the internet has led to the practice of creating mashups of songs. In this chapter, we will discuss the different views on mashups and how they have changed. Refer to the Lentis chapter on Digital Rights Management for a solution that some companies have taken to control access to their digital media.
US copyright law was initiated in 1787 with the Copyright Clause of the United States Constitution. The intent of this Article was to protect the integrity of the work of copyright owners, and to ensure they saw the fruits of their labor.
Modern copyright law is governed by the Copyright Act of 1976. Over the decades, views on what constitutes theft or creative use of copyrighted works have evolved to the point that the doctrine of fair use protects artists who alter copyrighted material to create something substantially different. This doctrine is largely the reason mashups can be created and released without massive litigation today. Fair Use is another complication to an already complicated copyright system, and has been a source of contention among content creators and content owners.
Recently, there have been attempts to distinguish between creative use of pre-existing art, labeled "creative infringement," and the reproduction or distribution of pre-existing art solely for monetary gain, labeled "consumptive infringement."  Interestingly, all litigation so far has been against perpetrators of consumptive infringement.   While mashup artists have been threatened with lawsuits, none have actually been brought to court.
In music, sampling is the act of taking a portion, or sample, of one sound recording and using it as part of a different song or piece. Sampled music is commonplace in a variety of musical genres, including hip-hop, electronic, contemporary rock, dance, disco, and R&B.
The Birth of Hip-HopEdit
In the Bronx in the mid 1970s, the advent of techniques called cutting, mixing, and scratching spawned a musical and cultural movement called hip-hop. DJ Grandmaster Flash is credited anecdotally as the inventor of the techniques called cutting and mixing. These techniques involves the use of two turntables. Mixing is essentially cross-fading between them, whereas cutting involves the manual truncation of the spinning record. DJ Grand Wizzard Theodore, a contemporary of Grandmaster Flash on the burgeoning Bronx urban music scene, elevated the technique of cutting to scratching, which is the movement of the record forward or backward under the needle. Scratching first appeared on an album when Grandmaster Flash and the Furious Five released the song, “The Adventures of Grandmaster Flash on the Wheels of Steel” in 1981.
In the 1980s, hip-hop culture permeated New York City, and began to spread beyond. DJ-ing grew as an expressive art-form rapidly with the increasing affordability of sampling machines like the Roland TB-303 in 1982. These machines allowed artists to create incredible new works out of existing recordings. Affordable and portable machines like the 1987’s E-mu SP-1200 helped usher in the “Golden Age of Hip-hop.” The SP-1200 allowed for storage of 100 songs, 100 patterns, and 5000-note drum sequences. Artists were able to mix together multiple 10-second samples into a beat and then record rap over this background. This innovation radically changed the sound of hip-hop, though its spirit of re-invention remained. Hip-hop beats and tracks were the result of re-imagining old rhythms and tracks. As hip-hop grew from merely an underground movement to a commercially successful musical genre, attention was drawn to the legality and rights of DJs to use samples in their music.
Hip-Hop in the CourtroomEdit
In 1989, De La Soul released an interlude song called “Transmitting Live From Mars,” which sampled twelve seconds of the Turtles' 1969 song, “You Showed Me.” In 1991, The Turtles sued De La Soul for $2.5 million. The song had been sampled without the permission of the Turtles, and they felt their music had been used unjustly to make money for De La Soul. Though this case was settled out of court, the $1.7 million settlement sent a serious message to the hip-hop world that there were consequences to selling work with unauthorized samples.
Also in 1991, Biz Markie released a song called “Alone Again,” which sampled “Alone Again (Naturally),” a song released by Gilbert O’Sullivan in 1972. O’Sullivan took Markie to court, suing him for copyright infringement. Markie’s attorneys argued that O’Sullivan was not the actual copyright holder and stated that sampling was so widespread already that it should be acceptable. However, US district Judge Kevin Duffy disagreed. The song was pulled from its album and banned from distribution.
After 1991, the use of unauthorized samples dropped significantly, and samples were generally sufficiently distorted or properly credited to satisfy copyright laws. No hip-hop artist has yet argued in court for their work to be permissible on the grounds of “fair use” because record companies fear the possibility of losing in civil court, thus setting precedent towards fair use.
"The Funky Drummer"Edit
Estimated to be the most sampled song in history, James Brown’s “Funky Drummer” is an improvisational track named for Brown’s session drummer Clyde Stubblefield. With estimates of its use exceeding 550 times in popular music since 1986, Stubblefield’s work has earned millions of dollars for other artists. Since he is not credited as an author of the original song, not only is he ineligible for royalties that James Brown received for the track, but he also receives nothing when it is legally sampled and credited. Stubblefield has received nothing financially for the wild success of his work, other than compensation for his time in the studio in 1969. Stubblefield has stated that he takes umbrage more-so with the lack of recognition than the lack of money:
People use my drum patterns on a lot of these songs. They never gave me credit, never paid me. It didn’t bug me or disturb me, but I think it’s disrespectful not to pay people for what they use.
Stubblefield, a pioneer of the funk rhythms he played with Brown in the 60s and 70s, helped define a new art form when DJs remixed and sampled those funk rhythms to create hip-hop. However, because of how sampling arose, he has never seen wide-spread recognition for his work.
The term hip-hop was coined by Afrika Bambaataa, who defined its four elements: DJing, emceeing, break dancing, and graffiti writing. Hip-hop is a culture of self-expression, creativity, and rebellion. With new technology that allowed cutting, scratching, mixing, and sampling, old work was re-imagined and changed into something new that was undefined by any legal framework. The legal system must constantly respond to changes and innovations in technology and art, as innovation will continually push the boundaries of modern law.
A mashup is a work that borrows components from existing works to create something new. It is a creative mosaic that re-imagines older art to create a work that is unique and greater than the sum of its parts. For the purposes of this chapter we will concentrate on musical mashups, but the concept also applies to videos and images. While genres like hip-hop sample small portions of songs, mashups are often comprised entirely of samples. Many mashups are created and distributed for free without permission from the authors of the samples. Some people believe that mashups constitute new art and should be encouraged. Others believe that mashups can cheapen original work or hurt its sale. They believe mashups simply aren’t creative enough to be considered new art. We will investigate some cases involving mashups and review the conflicting perspectives.
Gregg Gillis, better known as Girl Talk, is a mashup artist who has caused a good deal of controversy. His albums are mashups comprised entirely of samples taken from other artists. He releases them for free through his label, Illegal Art, where he also accepts donations for his work. He claims that this constitutes fair use. In his own words:
In the current state of copyright, there's a doctrine called Fair Use, which allows you to sample copyrighted work without permission if your work falls under certain criteria. I basically believe in that idea, that if you create something out of pre-existing media, that's transformative, that’s not negatively impacting the potential sales of the artist you’re sampling, if it’s not hurting them in some way, then you should be allowed to make your art and put it out there.
Gillis has some influential supporters, including Representative Mike Doyle of Pittsburgh, PA. Doyle believes in copy-left, which is a way of implementing copyright with the intent of encouraging remixing and re-imagining content. He believes that current copyright laws stifle creativity and that mashups can attract new fans to the original artists:
I [had] never heard many songs from Notorious B.I.G. and Destiny's Child, [until listening to Girl Talk] and I see this as a way to promote other artists to an audience that may not have heard some of their songs. I don't understand the record industry's paranoia that this is somehow going to harm one of those three artists.
Opponents argue that Girl Talk's work merely piggy-backs off of the creativity of other artists, and does not warrant fair use protection. Barry Slotnick, head of the intellectual property litigation group at Loeb & Loeb law firm stated:
Fair use is a means to allow people to comment on a pre-existing work, not a means to allow someone to take a pre-existing work and recreate it into their own work. What you can’t do is substitute someone else’s creativity for your own.
Despite resistance, Girl Talk is one of many artists who have turned to mashups as a means of creative expression. It will take more than the threat of legal action to stop these new artists.
Hardwell’s Mashup PackEdit
To celebrate reaching 300,000 fans on Facebook, Hardwell, an electronic music artist, released a mashup pack that he had created for his live performances. The pack contained songs from several other prominent DJs, including Swedish House Mafia. When the news spread, several artists expressed their objections on Twitter, as shown in the image below. They contended that the free mashups would hurt sales of their original works. Upon hearing these complaints, Hardwell removed the mashup pack from his webpage and expressed his apologies to the original artists. In this case, the social pressure from fans and fellow DJs pushed him to remove the mashups, not a threat of lawsuit.
An excerpt of the artists' twitter conversation
Copyright laws have drastically changed over the years as public opinion on mashups and other creative works has evolved. The doctrine of fair use seeks to prevent litigation on creative infringements while still punishing consumptive infringements, but laws on mashups are still undefined overall. History has shown that people will always push the boundaries of law in the name of creativity. We must strive to refine laws that reflect our changing societal values and protect artists without stifling creativity.
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-  Examples of songs that have sampled from "Funky Drummer".
- , Sisario, Ben. "Living Legend Tries to Make a Living". March 2011.
- , Kosner, Anthony. "The QoC Interview: Girl Talk's Gregg Gillis". October 2012.
- , "Congressman Mike Doyle -- Girl Talk's Biggest Fan". April 2007.
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