Downhill Battle declares that today is Grey Tuesday, “a day of coordinated civil disobedience: websites will post Danger Mouse’s Grey Album on their site for 24 hours in protest of EMI’s attempts to censor this work. ”
Last week, I wrote I remain unconvinced that sampling culture requires a radical reinvention of copyright. In fact, I’m not sure that something like The Grey Album, which borrows so heavily from the White Album should not require obtaining a license from the copyright owner.
However, some reform will have positive effects. If preemptive licensing is not widely adopted, then a compulsory license may offer the best compromise between the artistic interests of samplers and original artists. A compulsory sampling license could allow artists to use short to moderate-length samples without using more than some percentage of an individual source work.
Larry Lessig notes the problems for a preemptive licensing regime: The Black and White about Grey Tuesday:
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.
Andrew Sinclair: Grey Tuesday Thoughts:
In my opinion, we do need legal tools that allow works to be used as building blocks for future works. On the other hand, creative works need to be protected to some degree to provide incentives to the creators. I think the law is too rigid in the sense that it protects works for such a long time period (the social costs of which outweigh the incentives to create). I don’t, however, think that people should be able to take large portions of another’s work when that person clearly intends to enforce their rights in, for example, a famous album that is less than 40 years old.
Kevin Heller (Tech Law Advisor): Today is Grey Tuesday:
This will be an interesting one for the courts if the case precedes in state court on common law copyright infringement grounds (since The White Album is a pre-1972 work).
Joe Gratz: Grey Tuesday Sites C&D’d:
The C&D’s do two things, one appropriate, one inappropriate. First, they put the webmaster on notice that the Grey Album contains copyrighted material, so if they go on and post it, the infringement will be willful and the penalties will be greater. (Edit: That assumes that willfulness increases penalties under whatever state copyright law will be used. I don’t know anything about state copyright law, and neither, by and large, does anybody else, so it’s hard to say for sure.) Second, they scare the bejeezus out of the recipient by making demands for which there is no legal basis.
Michael Carroll: Whose Music is it Anyway? How we Came to View Musical Expression as a Form of Property
Prompted by the dispute over unauthorized music distribution, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view.
Wired News: Grey Album Fans Protest Clampdown
NY Times: Defiant Downloads Rise From Underground
To create a collection like “The Grey Album” legally, an artist would first have to get permission to use copyrighted material. Then he would have to negotiate compensation with the copyright holder. Many artists, however, like the Beatles, will not allow their music to be sampled. But even if permission is granted, it is common for a copyright holder to request more than 50 percent of publishing rights for a new song created from the copyrighted work.
