by Brian Pearl* A pdf version of this article may be downloaded here. I. INTRODUCTION Girl Talk is the self-imposed moniker of Pittsburgh, Pennsylvania-based artist Gregg Gillis. Since his first album, “Secret Diary,” [FN1] Gillis’s work has evolved from glitch-heavy electronic music interspersed with pre-existing samples to a collage of the most recognizable (and dance-able) moments from hit songs spanning decades as well as musical genres. [FN2] “Night Ripper,” the third Girl Talk album, pushed Girl Talk out of the underground and onto the pages of magazines including Rolling Stone, Blender, and SPIN. [FN3]Influential taste-maker Pitchfork Media fawned over “Night Ripper,” calling the album a “voracious music fan’s dream: a hulking hyper-mix designed to make you dance.” [FN4] “Night Ripper” also enabled Gillis to accomplish every musician’s goal – quitting his day job. [FN5] Gillis spent much of 2007 on tour, playing major festivals as well as a string of sold out headlining shows in larger and larger venues. [FN6] The constantly evolving Girl Talk live show became the basis for the fourth Girl Talk album, “Feed the Animals.” “Feed the Animals,” Gillis’s most ambitious work to date, was released online by Illegal Art on June 19, 2008, utilizing the “pay-what-you-want” model first implemented by Radiohead for their 2007 album “In Rainbows.” [FN7] Fans who chose to pay ten dollars or more received a compact disc along with an official list of all three hundred twenty-two samples used on “Feed The Animals.” [FN8] Like “Night Ripper,” “Feed the Animals” received an enthusiastic response from critics, earning a spot on many best-albums-of-2008 lists, including year-end lists from Blender Magazine and The Boston Globe. [FN9] Meanwhile, Girl Talk’s live audience has continued to grow, as evidenced by a three-night stint of sold-out shows at New York’s 3000-capacity venue, Terminal 5 in November, 2008. [FN10] In interviews, Gillis explains his method as simply another step down the path that was forged by the musicians, rappers, and producers whose music Girl Talk samples. [FN11] Just as a young guitarist hones his or her craft by “basically collaging together ideas…whether it’s from playing Nirvana songs or blues guitar,” Gillis collages samples together on his laptop computer in what he calls “a very physical extension of that art form.” [FN12] Gillis also sees his work as a sign of the post-Internet times. According to Gillis, consumers growing up in the age of iTunes and YouTube are accustomed to having “a dialogue with the media [they] consume,” often through editing downloaded pictures, making videos, or creating remixes of popular songs.[FN13] II. FAIR USE, OR A LAWSUIT WAITING TO HAPPEN? Along with the critical acclaim, festival appearances, and sold-out shows, Gillis’s success has raised a simple question: is Girl Talk legal? The New York Times referred to “Feed the Animals” as “a lawsuit waiting to happen.” [FN14]Pitchfork Media’s review of “Night Ripper” noted that Girl Talk is “practically begging for court drama.” [FN15] Additionally, both online retailers and physical distributors have expressed their doubts as to Girl Talk’s legal status. Indeed, iTunes and at least one CD distribution company decided to stop carrying “Night Ripper” as a result of growing fears of a Girl Talk-related lawsuit. [FN16] Gillis and his record label, Illegal Art, have chosen to tackle the legal issue head-on, proactively employing a fair use argument in order to defend Gillis’s work from potential litigation. The official bio for “Feed the Animals” distinguishes Girl Talk from “mashups” or DJ mixes, tracks that simply layer one track over another track. [FN17] Gillis claims that the meticulous sampling, pitch-shifting and editing that he employs give Girl Talk tracks “their own character” such that they “surpass the original elements” of the sampled tracks.[FN18] According to the bio, “such transformative work” entitles Gillis to protection under the fair use principle embodied in the U.S. Copyright Act.[FN19] Fair use is a limitation on the exclusive nature of copyright that enables “fair use” of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching…scholarship, or research.” [FN20] Courts evaluate fair use arguments on a case-by-case basis, incorporating four factors into their analysis: (1) “purpose and character of the use,” (2) “the nature of the copyrighted work,” (3) the “amount and substantiality of the portion used,” and (4) the “effect of the use upon the potential market for or value of the copyrighted work.” [FN21] No one factor is dispositive in fair use analysis. As such, courts have broad discretion when evaluating a fair use argument. In Campbell v. Acuff-Rose Music, Inc., the seminal music industry fair use case, rapper Luther Campbell successfully invoked a fair use defense in a case involving 2 Live Crew’s parody of “Oh, Pretty Woman” by Roy Orbison.[FN22] The Supreme Court, reversing the Sixth Circuit Court of Appeals, determined that analysis of the “purpose and character” factor of fair use should be based on whether the new work “merely supersedes the objects” of the original work “or instead adds something new, with a further purpose or different character . . .in other words, whether and to what extent the new work is ‘transformative.’” [FN23] According to Acuff-Rose, “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” [FN24]Though not specifically enumerated in the Copyright Act, the court held that parody was such a transformative use. [FN25] However, while the Court held that Campbell’s lyrical parody of “Oh, Pretty Woman” was transformative, the Court remanded the question of whether or not the repeated use of a signature bass riff in the Orbison song was also protected under fair use. [FN26] Recently, the District Court for the Southern District of New York relied on Acuff-Rose’s “transformative use” doctrine in a case involving the unauthorized use of a fifteen-second clip of John Lennon’s “Imagine” in the documentary, “EXPELLED: No Intelligence Allowed.” [FN27] The Court denied the Lennons’ request for a preliminary injunction, holding that the filmmakers’ use of “Imagine” was transformative because the film responded directly, through images and voiceover, to the lyrical content of the chosen excerpt.[FN28] The Lennons eventually dropped their lawsuit. [FN29] Though none of the hundreds of artists sampled on Girl Talk’s albums has gone so far as to bring suit against Gillis, journalists and music bloggers have energetically debated the merits of Gillis’s fair use argument. Idolator music blogger Mike Barthel concluded (based on both “purpose and character” and “amount and substantiality”) that Girl Talk does not pass the fair use test.[FN30] Journalist Evan Davies took the opposite position, comparing Gillis to a young Beethoven, plying his trade “after studying Mozart,” in effect commenting on the work of his predecessors without committing wholesale piracy. [FN31] Additionally, there is no consensus among the attorneys who have chosen to weigh in publicly. Intellectual property attorney Barry Slotnick doesn’t give Gillis’s fair use argument much credence. [FN32] According to Slotnick, while “fair use is a means to allow people to comment on a pre-existing work,” fair use does not allow one to “substitute someone else’s creativity for [his/her] own.” [FN33] While Case Western Reserve University of Law professor Peter Friedman agrees in principle, he claims that Gillis’s re-combination of samples is sufficiently transformative as to qualify as an original work, thus discouraging litigation. [FN34] Because there is no fair use case directly on point with the legal questions raised by Girl Talk, it is necessary to look at how courts have historically handled copyright cases involving sampling in order to evaluate Gillis’s fair use argument. III. SAMPLING AND SPARSE CASE LAW Sampling, the use of a pre-existing clip of recorded music in a new musical work, has been common practice, particularly in hip-hop music, since the late 1980s. Gillis’s style of high-volume sampling hearkens back to some of hip-hop’s earliest innovators such as the Bomb Squad and Prince Paul. The Bomb Squad used dozens of unlicensed samples to create a densely layered sound on seminal hip-hop albums including Public Enemy’s “It Takes a Nation of Millions to Hold Us Back.” [FN35] Prince Paul pulled samples, without permission, from disparate sources including Johnny Cash, Steely Dan and the Turtles in the course of producing De La Soul’s masterpiece, “Three Feet High and Rising.” [FN36] Grand Upright Music Ltd. v. Warner Brothers Records, Inc., the so-called “Biz Markie case,” dealt a crippling blow to this sample-heavy style of production. [FN37] In Grand Upright, the court granted a preliminary injunction halting sales of Biz Markie’s album because of unauthorized use of a sample of a Gilbert O’Sullivan song. [FN38] Grand Upright owned both the composition and sound recording copyrights for the O’Sullivan tune. [FN39] The Biz Markie case had a dramatic impact on the emerging sound of hip hop, effectively ending an era where rappers and producers were able to take full advantage of new digital sampling techniques without fear of legal action. [FN40] As Public Enemy frontman Chuck D noted, his group completely changed its production style, reproducing sounds in the studio and dramatically limiting the number of pre-existing samples in order to avoid a wave of litigation. [FN41]Groups who chose to continue sampling pre-existing recordings did so sparingly, often choosing one “primary” sample per song in order to simplify the process of getting permission, “clearing” samples in order to avoid lawsuits. [FN42] Though courts have heard a number of cases involving sampling and copyright infringement, none of these cases have involved a fair use defense for a non-parodic use of a sound recording. Two recent cases, however, illuminate the continued problems courts have had in formulating a consistent approach to sampling and copyright. In Newton v. Diamond, jazz musician James Newton sued the Beastie Boys for infringing his copyrighted composition through use of a looped three-note sample. The Ninth Circuit applied the “substantial similarity” test for infringement, ultimately holding that the composer’s copyright was not infringed through use of the sample. [FN43] The relatively sensible “substantial similarity” test was immediately rejected by the Sixth Circuit in Bridgeport Music v. Dimension Films. [FN44] The Sixth Circuit’s much-criticized opinion set forth a bright line rule, establishing that sampling from a sound recording “necessarily infringes upon the rights of the owners of both the sound recording itself and the underlying composition.”[FN45] Though the Court’s holding did not explicitly preclude a successful fair use argument, as in Newton v. Diamond, no such argument was made by the defendant. IV. GILLIS’S FAIR USE ARGUMENT IN LIGHT OF INCONSISTENT JUDGMENTS REGARDING SAMPLING How would Gillis’s fair use argument fare in court? The general attitudes towards sampling expressed in Grand Upright [FN46] and in Bridgeport [FN47]suggest that at least some courts would be unreceptive to a fair use argument. Additionally, though Gillis relies on “transformative use” doctrine in making his fair use argument, there simply is no precedent case on point to suggest whether this argument would be successful. Given the sparse case law, Gillis’s argument would depend almost entirely on the opinion of a court as to how “transformative” ought to be defined in this context. Proponents of Gillis’s fair use argument point to Girl Talk’s originality, but much of “Feed the Animals” consists of the juxtaposition of one extremely recognizable sample over another. [FN48] Indeed, it is the many moments of recognition of familiar choruses, hooks, riffs, voices and words that give Girl Talk its appeal. For the most part, Gillis’s transformation takes the form of pitch-shifting, editing, and re-contextualizing his source material. Defining transformation so broadly in the context of fair use is potentially problematic as similar techniques have been common in hip-hop production for years. [FN49] If simply juxtaposing a Jay-Z verse over a pitch-shifted Radiohead sample is transformative, why should hip-hop producers pay for the rights to samples that will ultimately be “transformed” by a rapper’s verse? [FN50] Does Gillis really “comment” on his source material by displacing a chorus, a chord progression, or a beat without adding a significant amount of new material? Additionally, though “Feed the Animals” is made up largely of rapid-fire edits and extremely brief samples, there are numerous instances of samples of significant length, including a 63-second sample of BLACKstreet’s “No Diggity,” a 54-second sample of Missy Elliot’s “Work It,” and a 30-second sample of the Jackson 5’s “ABC.” [FN51] The use of samples incorporating an entire verse and chorus of a song would surely weigh against Gillis under the “amount and substantiality of the portion used” factor of fair use analysis. Again, as Barthel points out [FN52], Gillis’s claim that he only uses short samples in a transformative manner is at the very least doubtful, if not highly dubious. [FN53] However, as a practical matter it is hard to blame Gillis for making a fair use argument. Under current copyright law he is left with three unsatisfying choices: continue to produce Girl Talk albums while clinging to a fair use argument; admit that Girl Talk probably does infringe copyright but continue anyway; or admit that Girl Talk infringes copyright and discontinue the project since complying with current law would be a cost-prohibitive logistical nightmare. V. COMPULSORY LICENSING AND “HIGH-VOLUME” SAMPLING Assuming that Gillis’s fair use argument is likely to fail, the only way he could legally produce Girl Talk albums would be under an amended Copyright Act. One oft-proposed solution that would solve the logistical problems posed by Girl Talk is the so-called compulsory sample license, an idea that has been the subject of law review articles for over a decade. [FN54]Creation of a compulsory sample license would involve amending the Copyright Act in order to create a scheme “roughly analogous to the one currently used for licensing cover versions of copyrighted songs” under Section 115 of the Copyright Act.[FN55] Early compulsory sample license proposals were often criticized for creating an “administratively cumbersome” [FN56] system with regulations no less arbitrary than those already in place. [FN57] Indeed, some proposals included bizarrely arbitrary restrictions. [FN58] Proposals for a compulsory sample license have resurfaced in recent years as sampling, and sampling-related legal issues, have evolved. [FN59] Proposed compulsory sample license schemes have included provisions regarding everything from royalty payments and categorization of sample-based works, to potential limits on sample length and liability issues involving sound recording and compositional copyrights. [FN60] No one, however, has proposed a workable solution for an artist such as Gillis who engages in “high-volume” sampling. Even a “relatively small sum collected per album pressed” (or sold digitally online) would render an album featuring three hundred twenty-two samples financially infeasible. [FN61] One possible solution is to structure royalty rates based on a percentage of revenue generated, as opposed to a flat rate per sample used. Such a scheme would utilize a multi-tiered structure. The overall percentage of royalties paid per track would be determined by a sliding scale based on the number of samples used. [FN62] The division of that royalty revenue would be based on the length of the samples used in order to compensate copyright holders proportionally with the amount of the copyrighted work sampled. This structure would protect the interests of the copyright holder while enabling artists to create sample-based works without having to worry about prohibitive costs. Additionally, this structure is consistent with the constitutionally mandated policy goal of the Copyright Act: promoting “the progress of science and the useful arts.” [FN63] As noted above, Grand Upright abruptly halted the progress of one of the most fertile, creative movements in recent American music history. Amending the Copyright Act in order to allow for high-volume sampling would promote the creation of sample-based works while fairly compensating copyright holders. With the affordability of high-powered laptops and sampling software and the easy access to source material afforded by the Internet, such an amendment could help usher in a new Renaissance of sample-based music by giving sampling artists incentives to create and release new works without the fear of potential litigation or prohibitive preliminary licensing fees. Another, more practical argument is based in the harsh reality of the music industry in 2009. With the entire industry facing an uncertain future in the wake of steadily declining album sales, the music industry should be focused on alternative revenue streams and new monetization schemes. [FN64] Illegal Art released “Feed the Animals” under the Creative Commons Attribution Non-Commercial license, preventing anyone using Girl Talk tracks for derivative works from generating any revenue from that work. [FN65] Besides seeming blatantly hypocritical, this scenario limits the revenue that one of the most talked-about albums of 2008 will generate. Given the current climate of the music industry, such a lost opportunity is unfortunate to say the least. VI. CONCLUSION Though many logistical details would have to be worked out, a compulsory sample license coupled with a royalty scheme based on a percentage of the revenue generated by the sampling work is a workable solution to the problems raised by “Feed the Animals.” Sampling has continued to grow, cross-pollinating genres since its widespread integration into the American musical landscape over twenty years ago. As future generations of musicians grow up with powerful computers and constantly evolving music software, it is likely that many will follow Gillis’s lead. This logical development in music and technology should be accompanied by an analogous development in the laws that protect the rights of copyright holders while encouraging creative works. *** *Staff, UCLA Law Review, Volume 57. J.D. Candidate, UCLA School of Law, 2011; B.A., Manhattan School of Music, 1999. [FN1] Girl Talk, Feed the Animals (Illegal Art 2002). [FN2] Girl Talk, Night Ripper (Illegal Art, June 19, 2008); Girl Talk Bio, http://windishagency.com/artists/girl_talk/bio (last visited Oct. 10, 2009). [FN3] Id. [FN4] Sean Fennessey, Review of “Night Ripper”, Pitchfork Media, Jul. 17, 2006, http://www.pitchforkmedia.com/article/record_review/37357-night-ripper. [FN5] Rob Walker, Mash-Up Model, N.Y. Times, July 20, 2008, §MM (Magazine), at 15. [FN6] Girl Talk Bio, supra note 2.
[FN7] Nicole Martin, Fans Choose to Pay for Radiohead’s ‘Free’ Album, Daily Telegraph (London), Oct. 11, 2007, at 3.
[FN8] Andy Baio, Girl Talk’s Feed the Animals: The Official Sample List, Nov. 10, 2008, http://waxy.org/2008/10/feed_the_animals_official_sample_list/.
[FN9] Metacritic: Best Albums of 2008, http://www.metacritic.com/music/bests/2008.shtml (last visited Oct. 10, 2009).
[FN10] Jon Pareles, Making Girls Dance: All in a Night’s Work, N.Y. Times, Nov. 20, 2008, at C1.
[FN11] Evan Davies, Hail to the Thief, NOW Magazine (Toronto), Nov. 5, 2008 at 1.
[FN14] Walker, supra note 5, at 15.
[FN15] Fennessey, supra note 4.
[FN17] Girl Talk Bio, supra note 2.
[FN19] 17 U.S.C. §107.
[FN22] 510 U.S. 569 (1994).
[FN23] Id. at 579.
[FN26] Id. at 589.
[FN27] Lennon v. Premise Media Corp., L.P., 08 Civ. 3813, Opinion & Order at 1 (S.D.N.Y. June 2, 2008), http://online.wsj.com/public/resources/documents/expelledsdny.pdf.
[FN28] Id. at 12.
[FN29] Dave Itzkoff, Ono, EMI Drop ‘Imagine’ Lawsuit, N.Y. Times, Oct. 9, 2008, at C2.
[FN30] Mike Barthel, Copyfight: Girl Talk is Not Fair Use, Idolator.com, Nov. 10, 2008, http://idolator.com/5081637/girl-talk-is-not-fair-use.
[FN31] Davies, supra note 11, at 1.
[FN32] Robert Levine, Steal This Hook, N.Y. Times, Aug. 7, 2008 at E1.
[FN34] Peter Friedman, Appropriation Can Be Original, What Is Fair Use?, Aug. 14, 2008, http://whatisfairuse.blogspot.com/2008/08/appropriation-can-be-original.html.
[FN35] Stephen Thomas Erlewine, Review of “It Takes a Nation of Millions to Hold Us Back”, AllMusic, http://www.allmusic.com/cg/amg.dll?p=amg&sql=10:0pfixqu5ldhe (last visited Oct. 10, 2009).
[FN36] John Bush, Review of “3 Feet High and Rising”, AllMusic, http://www.allmusic.com/cg/amg.dll?p=amg&sql=10:fpftxqy5ldde (last visited Oct. 10, 2009).
[FN37] 780 F.Supp. 182 (S.D.N.Y. 1991).
[FN39] Id. at 183.
[FN40] Peter Friedman, What, indeed, is fair use?, Ruling Imagination: Law and Creativity, Nov. 13, 2008, http://blogs.geniocity.com/friedman/2008/11/what-indeed-is-fair-use/.
[FN41] Kembrew McLeod, How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee, Stay Free Magazine (Issue #20, Fall 2002), available at http://www.stayfreemagazine.org/archives/20/public_enemy.html.
[FN43] 349 F.3d 591 (9th Cir. 2003).
[FN44] 410 F.3d 792 (6th Cir. 2005).
[FN45] Kenneth M. Achenbach, Grey Area: How Recent Developments in Digital Music Production Have Necessitated the Reexamination of Compulsory Licensing for Sample-Based Works, 6 N.C. J.L. & Tech. 187, 199 (2004).
[FN46] Grand Upright, 780 F. Supp. at 183 (“Thou Shalt Not Steal”).
[FN47] Bridgeport Music, Inc., 410 F.3d at 801 (“Get a license or do not sample. We do not see this as stifling creativity in any way.”).
[FN48] Track 1 of “Feed the Animals,” “Play Your Part (Pt.1),” begins with a sample of UGK’s “International Player’s Anthem” over The Spencer Davis Group’s “Gimme Some Lovin.’” Track 3, “Still Here,” features BLACKstreet’s “No Diggity” over Kanye West’s “Flasing Lights.”
[FN49] Ken Micallef, Kanye West, Remix, Feb. 1, 2004 at 2 (Producer/rapper Kanye West discussing his techniques for manipulating the speed and/or pitch of his samples).
[FN50] Track 5 of “Feed the Animals,” “Set It Off,” contains a 40-second clip of Jay-Z’s “Roc Boys” juxtaposed over Radiohead’s “Paranoid Android.”
[FN51] Baio, supra note 8.
[FN52] Barthel, supra note 30.
[FN53] Levine, supra note 32.
[FN54] See, e.g., Michael L. Baroni, A Pirate’s Palette: The Dilemma of Digital Sound Sampling and a Proposed Compulsory License Solution, 11 U. Miami Ent. & Sports L. Rev. 65, 93 (1993).
[FN55] Robert M. Szymanski, Audio Pastiche: Digital Sampling, Intermediate Copying, Fair Use, 3 UCLA Ent. L. Rev. 271, 294 (1996).
[FN56] Id. at 294-295.
[FN57] Lucille M. Ponte, The Emperor Has No Clothes: How Digital Sampling Infringement Cases Are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform, 43 Am. Bus. L.J. 515, 549 (2006).
[FN58] See, e.g., Baroni, supra note 54 , at 95 (Proposing an arbitrary rule stating that the “maximum allowable taking would be one sample per artist or group sampled from for each sampling artist’s album.”).
[FN59] Achenbach, supra note 45, at 212-221.
[FN61] Id. at 220.
[FN62] For example, a track using 1-5 samples would pay a 10% royalty, a track using 6-10 samples would pay a 15% royalty, and so on. This example is purely for illustrative purposes.
[FN63] U.S. Const . art. I,, § 8, cl. 8.
[FN64] Dawn C. Chmielewski, Digital Music Downloads Set a Record; More than 1 Billion Songs were Purchased Online in 2008. But CD Sales Fell 20%, L.A. Times, Dec. 31, 2008, at C3.
[FN65] TechDirt.com, Why Doesn’t Girl Talk Allow Commercial Use?, http://techdirt.com/articles/20080707/0016231597.shtml (last visited Oct. 10, 2009).