Alright, I know I’m late to the party, but I am completely and utterly obsessed with Girl Talk right now. I mean, I just can’t get enough of it. Every time I listen to his stuff, I find something new. And then I literally freak out visibly in my car and scare passers-by.
However, I think part of my fascination with it is deeply connected to my affinity for copyright law and the internal struggle I’m facing with the fact that Girl Talk doesn’t have any kind of licensing arrangements (to the best of my knowledge) for the 300+ samples on Feed the Animals alone. Girl Talk hasn’t been sued as of yet, which makes me think it’s probably unlikely that he will; let’s face it, not only would it be interpreted as a seriously dick move from either an artist or the RIAA, but it would also be terrible for their publicity and nothing but amazing for Girl Talk’s image and his music (which, unless the suit resulted in a judgment, simply means more and more money in HIS pocket). It’s very clear that he’s a champion for what I generally think of as the “new” copyright law, but from a legal standpoint, does his art have a place in the current copyright law? I actually don’t think so, and here’s why.
Girl Talk relies heavily on the concept of “fair use,” and claims that his short snippets and samples fall under what he terms an “exception” to copyright law. Do I think Girl Talk knows his shit and is probably backed by one hell of copyright attorney? Yes. Do I think he probably falls under fair use? Yes, but not for the reasons that he seems to be asserting.
Let’s talk about what fair us is NOT. First of all, fair use is NOT an exception to copyright law; it’s a defense to copyright infringement applied on a case-by-case basis. Fair use is probably one of the most widely known and widely misinterpreted parts of copyright law, which makes it extremely dangerous for people to rely upon. There is also no time when you can rely on fair use based on “how much” you used. There is no “six bar rule” or some minimal amount that people can use of a copyrighted work that is an absolutely bright line for fair use. Roy Orbison has sued people over the first 6 notes of the bass line intro for “My Girl,” and Queen sued Vanilla Ice over the 7 note bass intro to “Under Pressure” (and though the case settled, I do believe some of the royalties for “Ice Ice Baby” are paid to Queen).
So what is fair use? It’s an oh-so-fun 4-prong test that is applied when someone is sued for copyright infringement. It’s up to the person that is being sued to apply the test which examines: 1) the nature of the original work; 2) the amount and substantiality of the content used; 3) purpose and character of the new work; 4) effect on the potential market. “Nature” of the work basically refers to how “creative” the original work was – was it an original novel or the phone book? The more “original” the original work was the more copyright “protection” it’s thought to have. Amount of substantiality of the content used is pretty straightforward – how much did you take? But beyond that, did you take what could be considered the “heart” of the work, or did you take an obscure, hidden 3rd layer guitar track? This is why the “six bar rule” doesn’t work, because everyone knows within 2 notes when “My Girl” in on the radio. The bass line is so essential to the recognizability (that’s a technical term, btw) of the work that it’s taken on very strong copyright protection. Purpose and character of the work refers to the new work and basically examines whether the work is for personal gain (“commercial” use) or more for educational purposes or for some universal betterment of society. This is often why universities and educational institutions are not often bothered by content owners. Although there are specific statutory provisions that safe guard schools and libraries, copyright is generally a bit more “elastic” in educational setting – after all, there’s a complete school of thought (HA! PUN!) that revolves around the idea that copyright is all about the dissemination of art for the good of society.
That prong is a serious issue for Girl Talk – no matter what artists say about doing art for art’s sake, we’re all out to support ourselves and make a living, and whether he cares about the fact that he IS making a living out of this… he is. And that money is obviously due largely in part to the ridiculous number of samples he’s using. People know all these songs due to the success of the original work, and he’s capitalizing off of someone else’s goodwill for his own personal gain. Now, his response to this is that it’s HIS work – the mixing and the creative mashing he’s doing – that’s the real product people want. And you know what? He’s right. I didn’t buy Feed the Animals because I wanted to hear a loop of “Jessie’s Girl,” “The Sign” and “Nothing Compares” all in one album, I bought it because the creativity blows my mind. But the court looks at the commercial side for this answer, and it’s a tough one for him to fight.
But the most important prong by far is the effect on the potential market of the original work. The court basically examines whether the new work is a potential “substitute” for the original work – is it displacing potential profits that should be going to the original work? (This is why the existence of YouTube just baffles me; obviously its entire purpose is to substitute free content for free content. That’s a whole other ball of wax. Or can of worms. Whatever.) Anyway, this is undoubtedly the prong that Girl Talk can hang his hat on. As I said above, people aren’t buying his albums and going to his shows because they want to hear specific works – most people don’t even know what they’re going to be hearing at a Girl Talk show. They aren’t picking Girl Talk over a Lil’ Wayne or Ludacris show or album – there’s just not enough of their content on the album to justify that.
A Google images case actually set an amazing precedent in this field when they won a case that was brought by an artist that was upset about the thumbnails of her work that we being displayed by Google Images that were housed on unauthorized sites. Google won because they successfully proved that anyone seeking out her works would not substitute a bad resolution thumbnail for the real deal. Similarly, no one is going to pick Girl Talk for one sample or even ten of the samples; his work is not replacing the songs contained in his samples.
From a legal standpoint, Girl Talk is really toeing the line here because of the sheer quantity of samples – he’s basically flying in the face of copyright law and giving it a huge “fuck you.” From a strictly legal standpoint, mind you. However, from a practical standpoint his art can’t viably exist under the current interpretation of fair use and copyright law – the costs would simply be too prohibitive. And it should exist. Fair use has long been a thorn in the side of copyright law and it clearly needs actual common law (case precedent) or statutory reform. Creative and innovation cannot be stopped, and the law needs to mold to it, not the other way around.
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