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Why Hasn't The Recording Industry Sued Girl Talk?

from the because-they're-scared-to-death-they'll-lose dept

Wed, Jul 8th 2009 8:32am — Mike Masnick

Peter Friedman has another wonderful post, discussing why music is the "main battleground" in the copyright wars, raising a few good points -- including the idea that music master tapes are dying in vaults, causing locked up music to disappear, and highlighting a troubling series of case law decisions that seem to entirely ignore the concept of fair use when it comes to music (some of which we've discussed in the past here).

But the most interesting point may come at the end, when he brings up something that's been confusing here as well: how come Greg Gillis -- better known as Girl Talk, the popular mashup musician -- hasn't been sued yet. Especially since his Feed the Animals CD came out, generating a ton of publicity and popular press coverage (and sampled from hundreds of songs), pretty much everyone has been waiting for him to get sued. Friedman tosses out a suggestion that makes a lot of sense: the recording industry is scared to death that a court will rule in Girl Talk's favor and return "fair use" to music:

Well, I think I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis's argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I'd go after someone I am more likely to beat. Othewise, I'd lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.

When asked, Gillis has repeatedly stated that if he's sued he believes he has a strong fair use defense. Perhaps the lawyers at the record labels (and representing certain musicians) have all recognized the same thing. Gillis will almost certainly win in court, and all those terribly decided cases that ignore fair use in music will get pushed aside.

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Filed Under: art, copyright, fair use, girl talk, music, remix

32 Comments

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ChurchHatesTucker (profile), 8 Jul 2009 @ 8:45am

He's right
Gillis' use is pretty damn transformative, such that any judge or jury would have a hard time telling if a sample is actually from the original source.

Check out 'Steal This Film' (free to DL) to get an idea of how far he takes his samples.
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Hulser (profile), 8 Jul 2009 @ 8:59am

Damned if they sue...
Perhaps the lawyers at the record labels (and representing certain musicians) have all recognized the same thing. Gillis will almost certainly win in court, and all those terribly decided cases that ignore fair use in music will get pushed aside.

At the risk of being a pollyanna, I think that the pendulum will swing back to fair use in spite of the record label lawyers choosing their battles. The more times the lawyers have to pull their punches on people like Gillis, the greater the public perception will be that this kind of work really is fair use. Sure, it'd be nice to get a court decision that reversed the trend in case law, but I think the record labels and their lawyers are in a no-win situation. Damned if they sue, damned (eventually) if they don't.
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C.T., 8 Jul 2009 @ 9:10am

Re: He's right
It is true that *some* of the samples are very subtle and difficult to decipher in the context of Girl Talk's music. However, the majority of Gillis' songs rely heavily on 2-3 samples that are very readily distinguishable as obvious samples - take for instance the track on his first album that incorporates the music from Elton John's "tiny dancer" and lays over it the vocals to Notorious B.I.G.'s "Juicy."

-------

It really is worth pondering why Gillis hasn't been sued yet. While I am not sure that his fair use argument would win the day (which is disappointing to be both as a fan of his work and remix culture in general), the very possibility that it might could act as a deterrent to litigious record labels. Further anecdotal evidence of this concern is that the fair use defense has not been raised in any of the high profile sampling cases...even when the labels themselves are defendants. Perhaps these labels fear that successfully defending their artist in these suits through the fair use doctrine would prove a pyrrhic victory that could potentially enable other people to sample their vault of music.
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Anonymous Coward, 8 Jul 2009 @ 9:11am

so did he use like every song ever made? my head was spinning just trying to figure out all the songs he ripped from. Fair use or not, that was a ton of work to put together as harmonically as it was, whether or not I enjoy the music is another story entirely. Dee Snider you turned into such a turncoat...jus' saying.
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Anonymous Coward, 8 Jul 2009 @ 9:22am

Like most RIAA lawyers, he completely misses the fact that both Bridgeport and Grand Upright DON'T DISCUSS FAIR USE. I'm not sure how you can use cases as precedent when they don't even discuss a doctrine. I suppose Roe v. Wade is good fair use case law as well.
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hexjones, 8 Jul 2009 @ 9:28am

I think that another factor is that any musician who sues him will look like an ass and alienate a lot of people.

As for Girl Talk, it's like the musical version of Forest Gump. The samples are pretty obvious, the fun for many people is recognizing them and saying "hey! that was metallica, hey that was Michael Jackson!"
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NullOp, 8 Jul 2009 @ 9:33am

Fair Use
Ha! Fair Use, ain't no one interested in that! Its just about the $...
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Anonymous Coward, 8 Jul 2009 @ 9:36am

Like most RIAA lawyers, he completely misses the fact that both Bridgeport and Grand Upright DON'T DISCUSS FAIR USE. I'm not sure how you can use cases as precedent when they don't even discuss a doctrine. I suppose Roe v. Wade is good fair use case law as well.

They discuss sampling of music, requiring owner consent. Setting a precedent for fair use as an exemption would weaken its effect. Did you misunderstand this?

I think that another factor is that any musician who sues him will look like an ass and alienate a lot of people.

When has that ever stopped them?
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Anonymous Coward, 8 Jul 2009 @ 9:46am

If this is such a cut and dry case, can't someone get a declaratory judgment on this issue?
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Copycense, 8 Jul 2009 @ 9:50am

Our take on Girl Talk
We wrote extensively about Girl Talk in March and put forth some reasons why we think Girl Talk has not been sued:

http://www.copycense.com/2009/03/girl_talk_as_fair_use_martyr.html

Would a lawsuit against Girl Talk be bad publicity for the recording industry? Probably, but that never has seemed to matter to it.

As for the fair use argument, the doctrine seems to have morphed into a judicial assessment of transformative activity. OED defines transformative as that which has changed thoroughly or dramatically in form, appearance or character. Girl Talk uses a lot of samples (mostly in rapid-fire succession), but nearly all the works are easily recognizable and the changes come through digital tempo adjustments and overlays, and arguably not through thorough or dramatic changes.

We don't think the changes would meet the transformative tests that currently reign in U.S. federal courts. But it is a close enough question to be litigated. Besides seeming never to care about bad publicity, the recording industry also never has hesitated to litigate on a close call. Hence, our thesis (see link) that other factors may be at play.
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Pangolin (profile), 8 Jul 2009 @ 9:52am

Courts defining the law
Sadly we have law being CREATED from the bench. However, the declaratory judgment idea is a good one - but he probably doesn't want to spend the time or money to do something unnecessary. It's like getting a judgment that water is wet.

Anyway - if someone really wants to shake things up - then one of the musicians that were sampled, and one that supports fair use, should go ahead and sue.

This would get interesting.

Or perhaps no one on EITHER side wants to upset the apple cart. Sometimes the evil you know is better than the unknown.
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ChurchHatesTucker (profile), 8 Jul 2009 @ 10:30am

Re: Re: He's right
"It is true that *some* of the samples are very subtle and difficult to decipher in the context of Girl Talk's music. However, the majority of Gillis' songs rely heavily on 2-3 samples that are very readily distinguishable as obvious samples"

Hrm. All of the stuff I've heard (which is very limited, admittedly) has appeared exceptionally transformative. Alas, I have a bit of a tin ear, so it may be that when put side-by-side with the originals it may be more obvious to the average Joe.

Which makes the original question more interesting.
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Hulser (profile), 8 Jul 2009 @ 11:01am

Re: Courts defining the law
Anyway - if someone really wants to shake things up - then one of the musicians that were sampled, and one that supports fair use, should go ahead and sue.

This sounds like a plot twist worthy of a Law and Order episode. Artist A sues Artist B for copyright infringement, but Artist A purposely bungles the case by only using arguments that can be easilly refuted by Artist B.
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peter (profile), 8 Jul 2009 @ 11:24am

Coward - In interpreting an earlier case, a court is not limited justifying the earlier result by the justifications enunciated by the earlier court. What Biz Markie did in the Grand Upright Music case either is or isn't infringement. If a later court decides that Judge Duffy was wrong in Grand Upright Music because what Biz Markie did was really fair use, the later court could do so.

And no one could bring the lawsuit regarding Gillis unless he or she could show a concrete and specific injury arising from the alleged wrong. In other words, only a copyright holder could sue Gillis. It's even (highly) unlikely Gillis could bring a lawsuit to obtain a declaratory judgment that what he is doing is non-infringing. Courts do not decide hypothetical questions, and until there is an imminent likelihood of Gillis being sued by a particular copyright holder whose clip he had used, Gillis could not bring that lawsuit.

If you're interested, these topics come up under the legal rubrics of "standing" and "ripeness."
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Scot Trodick (profile), 8 Jul 2009 @ 11:27am

Just like other mediums...
I have had several discussions with my students about this topic in the digital arts. Lots of my students like to take artwork they find and manipulate it beyond recognition through Photoshop filters and plugins. My thought is that if there are identifiable areas in your finished work then it's probably not a good idea to use it commercially or even at all.
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bubba, 8 Jul 2009 @ 11:56am

Re: Just like other mediums...
and about 20 percent of the music from the last 10 years would have never existed if your opinion were followed. note to your students: dropout.
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peter (profile), 8 Jul 2009 @ 11:56am

not mentioning the cases don't discuss fair use
Coward - if you'd go to the post Mike linked to and quoted from, you'll note I did mention the fact the cases did not discuss fair use. I really do wish that before you so readily spouted off about matters, you'd at least read what you're criticizing. That's not to mention the continued spouting off on things that you don't know anything about (like the use of cases as precedent).
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Anonymous Coward, 8 Jul 2009 @ 12:37pm

Perhaps this is just too easy...
Why can't the consuming public simply cease buying music.
It's hard to imagine that people don't have enough to listen to for the length of time it will take to make an impression on the RIAA et al.
It's puzzling to me that there's all this grief going on yet people continue to buy music as if it's Heroin and they have a nasty habit.
Stop feeding the beast until the beast gets the message.
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jtalk, 8 Jul 2009 @ 12:48pm

prob not
A point Gillis has talked about is that even if some of his samples arent very tweaked and totally transformative, he's probably not doing any damage to those artists sales. ok, he might be using their work blatantly, but because i heard 30 seconds of a MJ song in Gillis's album doesnt mean that now Im not gonna go out and buy MJ's cd or single. If anything it;s going to make me realize i like that song he sampled, or allow me to discover MJ's work and make me go out and buy his album or that single. Not much damage going on.
I can see someone going after him is in the classic money-seeking case, in which Gillis gets super popular (im a huge fan, but dont see him getting much more popular)and making a ton of money (which still might at least from cd sales not happen because he sold his album for pay what you want) and then someone realizes that he's got plenty of money to be sued for.
Gillis and his label are smart dudes and I think they'll be fine.
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TC, 8 Jul 2009 @ 9:04pm

SMH
This post is what the Hip-Hop community likes to refer to as "dry-snitching."
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Rabbit80, 9 Jul 2009 @ 6:55am

I love the pay method of Girl Talk - "any price grants the download of the entire album as high-quality 320kbps mp3s
$5 or more adds the options of FLAC files, plus a one-file seamless mix of the album
$10 or more includes all of the above + a packaged CD (when it becomes available)"

Brilliant - I will buy one for $5
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Anonymous Coward, 9 Jul 2009 @ 7:59am

Re:
Link?
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elizabeth, 11 Jul 2009 @ 7:22am

Girl Talk has not been sued because it would be a PR disaster for the label that ventured to sue him, and would only serve to propel his career even further (including a huge potential public backlash against the lawsuit).
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Anonymous Coward, 15 Dec 2009 @ 4:42pm

Re: Courts defining the law
"Sadly we have law being CREATED from the bench."

I'm sorry, what were you trying to say here? That the fair use doctrine is the result of "activist judges," or just that you have no idea what you're talking about? If you really want to undermine the doctrine's credibility as regards clowns like Girl Talk, you should focus on where the fair use doctrine has typically been applied in the past. As in, perhaps it's just not great law for dealing with "music" as a copyrightable subject matter. That's a pretty enormous thing to advocate, but I think it's the best way forward.

I really can't distinguish Girl Talk from artists like Biz Markie in Grand Upright, except that GT stole thousands of samples instead of just one. I've yet to hear a well-argued point that his work is transformative - I know you like his music, but prior caselaw really just doesn't suggest that it's transformative enough. Forgive me for revealing my bias, but for all the weight the guy puts behind that "strong fair use defense" statement he so commonly makes, if you actually read some of those quotes, it's insane how completely little he obviously knows about the doctrine. I might try to educate myself a bit further if I was building a career on the backs of thousands of other artists; I'd be waking up every day expecting that subpoena.

Then again, maybe a court would buy a defense like "it would just be too expensive for me to license everything, so I don't license anything." Go for it, Gillis - it'll totally work. Once the industry is through flailing, whatever is left will most likely get after this thief.
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Anonymous Coward, 15 Dec 2009 @ 4:44pm

Re: Re: Just like other mediums...
Hey bubba - just because "20%" of the music you refer to was not worth dragging into court doesn't mean that it wasn't illegal. The dude has a point - if you don't want to get sued, here's how you play it safe.

Which highway is your law school under again?
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Anonymous Coward, 20 Feb 2010 @ 12:58am

wrong!
false
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Anonymous Coward, 20 Feb 2010 @ 12:58am

wrong!
false
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Justin, 23 Aug 2010 @ 6:14pm

because...
it's because he is protected under a creative commons license and he doesn't sell his music. everyone who has ever downloaded one of his cd's had been asked to make a "donation", but even then you don't have to make one to download. his songs aren't on itunes, or for sale and he isn't profiting from them (besides the donations and live shows he does).
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fgh, 3 Oct 2011 @ 9:54am

tj
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hi, 3 Oct 2011 @ 9:55am

Anonymous Coward: you're funny.
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Uh, 9 Nov 2011 @ 11:40am

Re: because...
It is for sale now:

http://www.amazon.com/gp/product/B001ELBVLG/ref=sr_1_album_1_rd?ie=UTF8&child=B001ELDO4I &qid=1320866806&sr=1-1
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Leo, 4 Jun 2016 @ 4:07pm

Consider This...
Pssst! It's because he's not charging for the music and making money off of it. If he were selling the albums the labels would pry every profit penny from his fingers.
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