Used to be, a major media company could simply sue its enemies out of existence.
Now, a lawsuit often breathes life into an offending application, song, or startup.
The curious trend started with Napster. Sure, major labels eventually buried the beast in court, but the lawsuit boosted Napster to newfound heights. It was more free publicity than anyone could dream of, and the beginnings of the highly-disruptive media landscape we live in today.
But Napster was a centralized application, one that allowed users to browse, download, and upload through a single server cluster. Pull the plug on that, and the party was quickly over.
But the next generation was decentralized, and impossible to destroy. Major labels have been tussling with LimeWire for years, but even if the RIAA emerges victorious tomorrow, the underlying, decentralized network remains. And older versions of LimeWire will keep the status quo going for some time – in fact, some users may not even know the difference.
Sure, the creators of an infringing application can be ruined financially, demoralized, or even ostracized. But their creation stays alive, thanks to the anarchic internet.
And that is the tale of the modern-day web. A playing field that can only be partially controlled by established legal and legislative channels. And what is true for commerce is also true for art.
Remember the Grey Album? Before Gnarls Barkley, Danger Mouse stirred a storm by mixing elements of the Beatles’ White Album with a cappellas from Jay Z’s Black Album. It was a brilliant mash-up effort, though EMI Music soon sued and started chasing releases.
But the Grey Album proved difficult to muzzle. Sure, EMI could yank some of the limited-run physical versions. But the digital versions could never be contained.
Outside of creations like the Grey Album, mash-ups are frequently awful, and mostly novel concoctions. But they are also the motif of choice for some brilliant creators, including Danger Mouse and Girl Talk.
Are you into Girl Talk? Even if you hate the work of Gregg Gillis, you have to appreciate the almost-unbelievably dense collection of samples at work, and the coherence of the endless musical cut-n-paste. Even Gillis admits that his music can get a bit nauseating, but few would call it unoriginal, uninteresting, or timid.
Unfortunately, few would also call it legal. There are so many samples floating in every song, it seems that Girl Talk is a walking liability, one that only grows larger with the stature of Gillis himself.
But ahead of any legal stare-down, an interesting debate over artistry, commerce, and copyright law is already bubbling. On one hand, Gillis is painting an entirely new canvas, using bits-and-pieces from the great pop catalog. “I feel morally sound that we shouldn’t be sued — I feel like the music’s transformative; it doesn’t negatively impact anyone,” Gillis recently told New York Magazine. “And there’s a thing called fair use that protects work like that.”
But fair use is generally reserved for limited, non-commercial endeavors. Flip to page 208 of This Business of Music (2007; Krasilovsky, Shemel), and you’ll find that fair use is rarely a solid defense, simply because the work is “invariably commercial and not done for the purpose of socially constructive criticism, parody, or reference,” though arguably, Gillis is making broader statements on popular music.
But Gillis is also making money, either through pay-what-you-want-models online, live performances, or traditional CD sales. And none of this stuff is licensed.
Perhaps a major debate is just waiting to hatch. Representative Mike Doyle (D-Penn) argues that Gillis should be protected by a modified copyright law. But rappers have been paying dearly for misused samples since the 80s, even on short snippets. Is that fair treatment?
Too much legalese? Actually, yes, at least from the perspectives of artistry and content distribution. Because whatever happens to Gillis legally, the courts can only control so much. Girl Talk has already been spread across the lawless internet, and even if Gillis stops creating, his catalog will be impossible to destroy. And, any lawsuit will only elevate Girl Talk and spawn imitators, just like Napster before it.
Paul Resnikoff, Publisher.