In legal limbo between copyrights and wrongs

August 8, 2008
Herald Tribune

The D.J. Girl Talk has won positive reviews for his new album and news media attention for its Radiohead-style pay-what-you-want pricing, and he is scheduled to play a high-profile gig at the All Points West festival this weekend in Jersey City, New Jersey. Not bad for an artist whose music may be illegal.

Girl Talk, whose real name is Gregg Gillis, makes danceable musical collages out of short clips from other people’s songs; there are more than 300 samples on “Feed the Animals,” the album he released online at in June. He doesn’t get the permission of the composers to use these samples, as U.S. copyright law mostly requires, because he maintains that the brief snippets he works with are covered by copyright law’s “fair use” principle (and perhaps because doing so would be prohibitively expensive).

Girl Talk’s rising profile has put him at the forefront of a group of musicians who are challenging the traditional restrictions of copyright law along with the usual role of samples in pop music.

Although artists like the Belgian duo 2 Many DJs have been making “mash-ups” out of existing songs for years, Girl Talk is taking this genre to a mainstream audience with raucous performances that often end with his shirt off and much of the audience onstage. Gillis, 26, who said he saw “Feed the Animals” as an album of his own work rather than a D.J. mix, spent several months testing out ideas during live performances, then several more matching beats and polishing transitions.

“I want to be a musician and not just a party D.J.,” he said, “and like any musician I want to put out a classic album.”

Gillis’s music is pulled from more sources than most hip-hop hits, which often use a loop of music taken from a single song. But unlike most D.J.’s who see themselves as artists, Gillis does not radically reconfigure songs or search out obscure samples. Instead he mixes clips of contemporary hip-hop artists like Jay-Z and OutKast with time-tested rock riffs from groups like Aerosmith, Cheap Trick and AC/DC. The first track on “Feed the Animals,” “Play Your Part (Pt. 1),” starts with a sample of a rap song by UGK and the ba-ba-ba-ba-ba-DUM rhythm of the Spencer Davis Group’s “Gimme Some Lovin,” among other things. At times the album sounds like a cleverly programmed compilation that presents catchy riffs instead of full songs, and part of the fun is recognizing familiar sounds in a new context.

“I want to take these things you know and flip them, which is something I’ve always enjoyed in hip-hop,” Gillis said. “This project has always been about embracing pop.”

But this embrace may be an illicit one, according to music industry executives. In legal terms a musician who uses parts of other compositions creates what copyright law calls a derivative work, so the permission of the original song’s writer or current copyright holder is needed. Artists who sample a recording also need permission from the owner, in most cases the record label. Hip-hop artists who don’t get that permission have been sued, often successfully.

Gillis says his samples fall under fair use, which provides an exemption to copyright law under certain circumstances. Fair use allows book reviewers to quote from novels or online music reviewers to use short clips of songs. Because his samples are short, and his music sounds so little like the songs he takes from that it is unlikely to affect their sales, Gillis contends he should be covered under fair use.

He said he had never been threatened with a lawsuit, although both iTunes and a CD distributor stopped carrying his last album, “Night Ripper,” because of legal concerns. (It had sold 20,000 copies before then, according to Nielsen SoundScan.) It may not be in the interests of labels or artists to sue Gillis, because such a move would risk a precedent-setting judgment in his favor, not to mention incur bad publicity.

Fair use has become important to the thinking of legal scholars, sometimes called the “copyleft,” who argue that copyright law has grown so restrictive that it impedes creativity. And it has become enough of an issue that Gillis’s congressman, Representative Mike Doyle, Democrat of Pennsylvania, spoke on his behalf during a hearing on the future of radio.

“You have to look at the length of those samples,” Doyle said in a phone interview. “Case law gets built as cases are brought to court, and I think that more case law is going to fall on his side as this becomes more mainstream.”

Not all lawyers agree. “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,” said Barry Slotnick, head of the intellectual property litigation group at the law firm Loeb & Loeb. “What you can’t do is substitute someone else’s creativity for your own.”

Gillis chose to allow fans to decide how much they wanted to pay to download “Feed the Animals” from Illegal Art. (He plans to release the album on CD in September.) Illegal Art puts out sample-based music that falls into a legal gray area because the company’s owner, who goes by the pseudonym Philo Farnsworth, after an inventor of television, believes that the law limits artists unfairly.

“What the Beastie Boys and Public Enemy were doing, no one could do anymore,” he said. “We’re drawn into this because of the music we support.”

So far, Gillis said, he is mostly concerned with making sure his music is heard, although he has also become well versed in the legal issues. “I get swept up in thinking of it as another album,” he said of “Feed the Animals,” “but I’m certainly conscious of the issues it raises.”