"What you hear is mine:" Is mashup music protected by fair use?

Post by Jeff Shaw

Greg Gillis makes music without playing any instruments, writing any lyrics or singing. Gillis, who goes by the stage name Girl Talk, takes existing recordings by other artists and fuses the sounds together – making albums composed entirely of other peoples' copyright-protected songs.

Despite two generations of a musical genre – hip-hop – that relies on digital sampling, America's legal system was unprepared when recording artists began making music entirely based on samples of other artists' work. Hip-hop musicians used snippets of material, like drum breakbeats, guitar lines or brief vocalizations, to build musical tracks. From there, rappers would lay original vocal tracks over the pastiche composition created from the samples. Sometimes, hip-hop artists would use their own instrumental work to aid in creation of the beat.

What Gillis and artists like him do is different. Girl Talk and similar acts take wholesale from other artists' copyrighted work, using computer programs to alter the sounds and blend the songs together. This genre of music, called “mashup” music, has grown in popularity despite the murky legal environment surrounding the sound.

Though numerous cases have combined to create a legal system with rules governing digital sampling generally, none so far has ruled on the legality of mashup music. Gillis, who has never faced a lawsuit to date, has spoken in public about his belief that mashups are protected by fair use law.

This raises a series of questions that I chose to investigate in the MATC course Media Law for the Digital Age:

Does fair use apply differently to mashups than to digital sampling and, if so, why?

Would a court make a meaningful distinction between mashups and general use of digital sampling?

How would such distinctions make a difference in how the court would apply the four fair use factors?

To be honest, when I began my research, I thought it very likely that fair use would not be a successful defense for Gillis. When applied to music sampling, copyright law has typically offered firm and strict rulings. The Grand Upright decisions offered no exceptions and no nuance: sampling without license was theft. Other decisions, like Newton v. Diamond and Campbell v. Acuff-Rose, created space for some unlicensed, creative sampling, but courts have generally looked unkindly upon music that requires digital manipulation of existing sound.

And yet, after taking a hard look at the law, I drew two major conclusions. First, there is a very strong case to be made for Girl Talk as fair use; and second, further legislative clarification of what “fair use” means could help ensure that new creative musical forms like mashups are not murdered in their beds in the future.

The case for Girl Talk mostly rests upon the notion of “transformative use”: since Gillis has brought something new and fundamentally different to the work, this satisfies the crucial first fair use factor. Additionally, the fourth fair use factor asks us if the use has undermined the market for the sampled work – and it is easy to conclude that people who buy Girl Talk tickets do not do so instead of buying albums by Joe Jackson, Miley Cyrus, or other artists that Gillis samples. Because of these factors, even though Girl Talk is clearly a commercial enterprise, my paper finds that Girl Talk is, on balance, fair use.

Finally, I suggest that lawmakers use their power to clarify fair use. Any law that does not allow for creation of exciting, innovative works of musical art is a law that needs change. I suggest that legislators explicitly declare that, just as an art collage would qualify for protection, so should sample-based music.

Lest we forget, the purpose of copyright law is to help content creators and to enhance creative expression. Fair use is an important step toward those ends, and further legislative work could solidify the step forward that fair use represents.