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from http://djdangermouse.com (February 24, 2004); artwork by Justin Hampton

"It was an experiment. It was supposed to be an underground project, not playing in clubs," -- DJ Danger Mouse, CNN.com, ["DJ mixes Beatles, Jay-Z into 'Grey'"] (February 19, 2004)

Today is Ash Wednesday, a day that good Christians give up something dear, lazy Christians give up something they don't care about, and the rest of us wish we were in New Orleans yesterday. But something else also happened yesterday than beads and debauchery. Yesterday was [Grey Tuesday].

What the hell is Grey Tuesday, you're asking? Let's start at the beginning. Jay-Z, rapper extraordinaire, dropped his latest album on the world not too long ago, titled [The Black Album] ([Amazon]). With this album, Jay-Z announced his retirement. Maybe as a going away gift, maybe as just business, he released a cappella version of the album through his label, Roc-a-fella, specifically designed for remixers to have a spin. So, [DJ Danger Mouse] (né Brian Burton) took him up on the challenge, and how. Thinking creatively, he didn't just remix The Black Album, he [mashed] it up with The Beatles' The White Album ([Amazon]), using the latter as the sole source material aside from Jay-Z's vocals. This novel production, titled appropriately The Grey Album, despite only being distributed underground in a small pressing of 3000, quickly garnered critical acclaim from such as

But not EMI. On February 10, EMI sent a cease and desist (LegalThreat) to stores and websites hosting The Grey Album, ordering the destruction of all copies, citing ownership of The White Album. Ok, there are many possible complaints; but ignoring the anti-copyright wanking this is a dangerous claim. Even with copyright, since 1909 once a song is commercially released, it's been considered reasonable to "cover" it for a royalty fee, for which there already exists a moderately reasonable pricing structure. The record industry has vigourously defended their right to cover, arguing "the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice." (unknown Congressional report, 1967, as qtd. in Lessig [1]) However, The Grey Album was not covering The White Album, but sampling it and remixing it, beat-matching it with The Black Album's vocal track. There is no licensing structure for this, no way to "beat-match" hip hop, dance, and electronica's new digital styles to the old analog ways of building on music through FairUse.

Admittedly DJ Danger Mouse didn't ask anyone for permission and didn't pay any royalties. He just did it. "I had seen that there were these a cappella Jay-Z records. I was listening to the Beatles later that day, and it just hit me like a wave. I was like, `Wait a minute — I can do this.'" (Rolling Stone, [ibid].) But then, he wasn't out to make money either. He just wanted the album to be heard.

"I did this project because I love the Beatles and Jay-Z," he says in a statement. "I knew when I produced The Grey Album that there might be questions and issues that this project would bring up, but I really don't know the answers to many of them. It was not meant to be anything but an artistic expression, and I still hope that that is the way it's perceived." -- DJ Danger Mouse, E! Online ["Grey Tuesday: Copyright or Wrong?"] by David Jenison, February 24, 2004.

"The Grey Album is an art project/experiment that uses the full vocal content of Jay-Z's Black Album recorded over new beats and production made using the Beatles White Album as the sole source material. Danger Mouse insists he can explain and prove that all the music on the Grey Album can be traced back to the White Album and its musical content via sampling. Every kick, snare, and chord is taken from the Beatles White Album and is in their original recording somewhere [sic]." -- DJ Danger Mouse, quoted February 26, 2004, from http://djdangermouse.com

So, perhaps if this was just a junk record that no one cared about, this might have slipped under everyone's radar, but for an album that had already attracted its share of fans it was a gigantic poke in the eye.

"It's a great example of our two-tiered copyright system. Labels are saying, 'If you do (a remix) on the underground scene, it's OK. But if it's so compelling that people trade it all over the Internet, then we're going to sue you.'" -- Glenn Otis Brown, executive director of Creative Commons, Wired News ["Copyright Enters a Gray Area"] by Noel Shachtman (February 14, 2004)

After a year where the Recording Industry Association of America (RIAA)'s crusade against piracy had grown to launching multi-thousand dollar lawsuits against ordinary people using filesharing networks, including several minors — a move so dire that Pepsi exploited it in its 2004 Superbowl ad [(apple.com)] [(Real; ifilm.com)] — the collective eyes of the 'Net were already puffy and red.

Maybe if EMI hadn't acted so hastily, so contemptuously, it might have been understandable. But there it was. EMI wasn't concerned at all about the artistic merit of The Grey Album, which went beyond just its good sounding vibes.

They just saw what was theirs out of their control, and that was simply unacceptable to them. And not even a thought to the obvious response, so clearly summarized by Glenn Otis Brown of CreativeCommons: "[With all that hype,] Why not just sign the guy? Why not license the record, and have everybody make a bunch off of it?" (Wired News [ibid]).

So the 'Net took action.

As a general fuck you right back at them, it began when waxy.org [posted] the full album the day after the initial EMI legal action against DJ Danger Mouse. This blew his bandwidth, but illegal-art.org [followed] the day after. On Friday the 13th, he sucked back a smooth cease-and-decease letter from EMI straight to his ISP, citing the DigitalMilleniumCopyrightAct?.

Ok, that meant war.

Enter Grey Tuesday. On Mardi Gras, 2004, when not all of us could be partying in New Orleans, over 400 websites decided to do their own thing, organized by music activists [Downhill Battle] under the banner of Grey Tuesday. They collectively agreed to get word of the Grey Album out there. Most merely changed their websites to grey for the day, but in the end over 170 websites braved lawyers and posted the full album for download. They did this knowing full well they were violating the terms of EMI's cease and desist order.

Unsurprisingly, EMI quickly sent cease-and-desist letters to these websites as well, easily identified from the long list at http://greytuesday.org. Downhill Battle received a [letter] February 23. Noting at least that the online release of the album was out of Danger Mouse's control, the letter does egregiously claim that distributing the album online was against the artist's wishes. They quote a Reuters (February 17, 2004), "The artist, whose real name is Brian Burton, has agreed to comply with the order and will no longer distribute copies," and "[t]his wasn't supposed to happen … I just sent out a few tracks (and) now online stores are selling it and people are downloading it all over the place," and conclude:

By further distributing The Grey Album, you will not only be violating the rights of those who own the recordings and compositions at issue. You will also be interfering with the intention of the very artist whose rights you purport to vindicate.

However, in his [press release] Danger Mouse called it flattering.

In Downhill Battle's [response], they made it very clear that this was a PoliticalAction by CivilDisobedience? against the state of CopyrightLaw. They did it as a form of CivilDisobedience?; a Gandhiesque attempt to demonstrate what they saw was the insanity of a copyright law that restricted artistic freedom instead of enabled it. They did it to get a good album out there. They did it to show that the current situation kept a good album from getting out there.

"The current legal environment allows the five major record labels to dictate to musicians what kind of music they may and may not create and allows them to prevent the public from hearing music that does not fall within their rules. For people to make an informed decision about whether the major record labels and existing copyright law serve the interests of musicians and the public, they need to be able to hear the music that is being suppressed. . . . Copyright was created by Congress to “promote the progress of science and the useful arts.” Your actions violate that purpose." -- Nicholas Reville and Holmes Wilson, Co-founds of Downhill Battle, response to EMI dated February 23, 2004.

Unlike Downhill Battle, many quickly took the album down. Most of the time, this was not their choice. EMI used the DigitalMilleniumCopyrightAct? to go after their ISPs, and ISPs generally comply with such complaints instantaneously as it is not their prerogative to spend money defending their users. This got really fucked up when they started sending preemptive cease-and-desists to websites only intending to change their websites grey in a show of solidarity. In [response] to one such DMCA letter, Sean Shaghagi writes "I merely intended to turn "grey", tomorrow. However, the cease and desist letter just furthers my conviction that copyright law is f'd up and needs dramatic change."

"Just when i was preparing a posting with the mp3's for Grey Tuesday, i received a cease and desist letter from Capitol records' lawyers. I'm not sure what the chances are i'll get sued or anything, but i'm not really interested to find out." [February 23, 2004] . . . "I have decided not to host the mp3's as there are currently other things more important to me than potential lawsuits." [February 24, 2004] -- Hans Veneman

At the time of this writing, around a third of the sites visited from the list on greytuesday.org were completely down. This could be either due to bandwidth being overrun or ISPs killing accounts in response to cease and desist letters or because the websites were only around for Grey Tuesday.

Nonetheless, many did not back down. The album got out there. Ironically, the major contributor to dead sites was not LegalThreats, but incredible bandwidth usage, blowing bandwidth caps and bills.

"After a quick preliminary survey of sites that hosted files during Grey Tuesday, we are certain that the Grey Album was the number one album in the country yesterday (by a lot). Danger Mouse ‘moved’ more units than Norah Jones and Kanye West, and the Grey Album easily went gold in a day (over 100,000 copies)." -- http://greytuesday.org, February 26, 2004

What an example of CultureJamming?, and of musical jamming.

And for what it's worth, DJ Danger Mouse's take on his own album:

"If somebody like Ringo or Paul McCartney? heard it, I think they would dig it. If Jay-Z heard it and said, 'This sucks, dude,' then I'd be like, 'OK, everyone please send me back their copies.'" -- Rolling Stone magazine, ["DJ Makes Jay-Z Meet Beatles"] by Lauren Gitlin (February 5, 2004)

Grey Video

related artists

negativland

"In August 1991, the band and its label at the time, SST Records, released a single called U2 that featured a U-2 spy plane, the lettering "U2," and Negativland's name in small print on its cover. The recording included about 35 seconds of a U2 song, American Top 40 icon Casey Kasem making disparaging comments about the band ("These guys are from England and who gives a shit?") while bawling out his staff, CB-radio conversation, and inane commentary from The Weatherman, one of the group's occasional members. Innocuous and very funny, U2 was signature Negativland. Despite its cover, it could never, once heard, be mistaken for a recording by the Irish pop zillionaires, it would never be taken for anything other than a parody, and it would be unlikely — since Negativland had never sold more than 15,000 copies of any release — to reach a huge audience. U2 wasn't going to make anybody rich, nor was it going to make Island Records Ltd., U2's label, poor.

… Within two weeks, Island filed a suit attacking U2 on two counts, claiming that the song's cover art violated trademark protection and that its music's "unauthorized use of a sound recording" violated copyright law. Island demanded that every copy of the single and all materials for its promotion and manufacture be immediately delivered to the company for destruction and that U2's copyright be reassigned to Island.

But faced with massive potential expenses and growing pressure from both Island and SST, the band agreed to settle out of court. "It felt to me like my child had been kidnapped," remembers Hosler. -- Wired News ["The Letter U and the Numeral 2"] by Colin Berry (Issue 3.01, January 1995)

The Avalanches

I think if we thought it would be so widely listened to, we wouldn't have sampled some of the things we did," Chater says laughing.

Oddly enough, the roadblocks to sample clearances didn't include Madonna, who allowed the group her first legal sample in the form of the bassline from "Holiday," but rather from other, seemingly innocuous sources.

"It was frustrating when Rogers and Hammerstein were like, 'You can't use their stuff, you have to take it off the record,'" Chater says disappointedly. "There's lots of stuff that didn't make it. There's a much longer version of the album that we've got that no one will ever hear." -- Mark Schiff, UCD Advocate, ["Avalanches bury competition"] (November 14, 2001)

The Bad Plus

The Bad Plus takes works written by others and treats them like its prison bitches, but somehow their interpretations get out to the public without legal trouble. In fact, neither a songwriter nor a publisher nor a record company could successfully suppress The Bad Plus's derivative recordings (unless The Bad Plus failed to pay a royalty). Their interpretations cannot be banned. Even if Courtney Love, who owns the copyright to "Smells Like Teen Spirit," were to take six Vicodins, ten Oxies, two Xanax and a quart of pure grain alcohol and still not get how cool The Bad Plus version of that song is, she's s.o.l. on the matter. She can just pass out in her own vomit, because even litigious Courtney Love is not allowed to control that song to such an extreme degree that she can suppress cover versions of it. The Bad Plus will be heard.

. . . Even though The Bad Plus creates works that, for all their irreverence, are actually closer to the originals — from start to finish even using similar arrangements in some cases — than DJ Danger Mouse's use of The Beatles' songs, it is DJ Danger Mouse's work that a record company can effectively ban from commercial distribution, not the work of The Bad Plus. -- Brian Flemming, ["The Bad Plus 'Give'"] (February 24, 2004)

legal opinions

"As a matter of pure legal doctrine, the Grey Tuesday protest is breaking the law, end of story. But copyright law was written with a particular form of industry in mind. The flourishing of information technology gives amateurs and home-recording artists powerful tools to build and share interesting, transformative, and socially valuable art drawn from pieces of popular culture. There's no place to plug such an important cultural sea change into the current legal regime." He said that under copyright law a judge can impose damages as high as $150,000 for each infringement.

selected rants

"In a much deeper sense, this album exemplifies the recognition that those perceived boundaries — black and white, rich and poor, straight and gay, left and right — all these divisions are not real, they do not exist. We are all the same. We are a miracle."

The original [waxy.org] page has a zillion comments.

and

my reaction

While in general I continue to support CopyrightLaw in its philosophical roots, there are important limitations that must be granted. First, the incredible term length of current copyright is of course ridiculous. The original 14+14 year rule makes more sense. Second, compulsory licensing (WikiPedia:Compulsory_licensing) has its advantages and disadvantages, but if the recording industry uses it for analog reuse, then it makes natural sense to extend the law to digital reuse.

In a real practical sense, this case is not necessarily about FairUse, but about distribution. The protesters didn't create the work, but they distributed it in full awareness that it was considered illegal by the "owner." However, the case is more complicated since the concept of ownership is confused.

And finally, in a really practical sense, EMI did exactly the wrong thing. Would sales of The White Album increase due to this album being out there? Yes. If they really wanted to make money, they could have as Glenn Otis Brown said, signed DJ Danger Mouse. Absolutely the dumbest ConflictResolution. The result of letting rabid anti-social lawyers have a go at the copyright "problem" without sanity keeping them in check.

I'm not convinced in this case that The Grey Album is an illegitimate work in the sense that copying Metallica's songs right of their album and distributing them would be clearly illegal. Since DJ Danger Mouse is, counter to the EMI claim, perfectly happy with the situation, as is Jay-Z and Roc-a-fella, I think it's a fucking dumbass case. For such a good album, it only serves to exemplify that the Big Copyright Owners are complete bastards and thus CopyrightLaw as it stands is deleterious to society.

Oh well. Goody for me. It's a kickin' album. Thank you to all who did this. -- SunirShah

References

See the list on RightToSample.

Heneghan, B. P. (2001). The NET Act, fair use, and willfulness — Is Congress making a scarecrow of the law? Journal of High Technology Law, 1. Available from http://www.law.suffolk.edu/stuservices/jhtl/V1N1/BHENEGHANV1N1N.pdf

In December 1997, President Clinton signed into law the No Electronic Theft (NET) Act, which closed a loophole that allowed those without a profit motive to copy protected works. Now criminal liabilities, such as fines and even jail terms, could be imposed on those who "wilfully" infringed a copyright of works of market value of as little as $1001 even for no market benefit to themselves. The value $1001 is woefully low, as if you can demonstrate a $10 market value for your work, and it is downloaded 101 times, that is an infringing case. Given the costs of prosecution and to society, the bar should be set much, much higher.


The above written by SunirShah to the sound of of The Grey Album. This is in stark contrast to his general antidisestablishmentarianism; so, if you vomit in shock, at least let it not be about who wrote it. This rap album doesn't suck, so it deserves to live.

Maybe I'll get you to sign up to PirateMusic yet.

I said I stand by copyright. The more pragmatic legal objection in this case is that we don't have a comparable right to sample in the digital age as we were granted a right to cover in the analog age. While piracy is about distribution, the GreyAlbum case is about derivation. If DJ Danger Mouse could simply pay a royalty to EMI for The White Album, he could have, and that would be the end of it the story. Royalties are a good TransactionFee to limit an explosion of poor derivations, and thus the "artistic integrity" argument against the right to sample is a bit specious, especially since we have all heard really bad covers. Note that garage bands can cover without problems, and so basement musicians should be able to sample without problems — until they become famous enough to be noticed. (Ah, the tragedy of success.) -- SunirShah

See also the very interesting story of the [Amen Break] (WikiPedia:Amen_break).

More on RightToDerive...


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