The 300 samples that make up Girl Talk’s Feed The Animals are entirely unauthorized, which has led some to characterize the album as a collection of 300 potential copyright-infringement lawsuits.
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The Wall Street Journal and New York Times have taken that tack, even contacting the sampled artists for comment. While some respondents seem pleased (Faith No More’s Mike Patton said, “It is an honour to collaborate with Busta Rhymes”), others are not, including the Guess Who, whose rep promised to “chase it down.”
Girl Talk (aka Gregg Gillis) and his label, Illegal Art, contend that by using the snippets of music in unorthodox ways, he is creating new works covered by the “fair use” provisions of U.S. copyright law. Fair use allows replication of copyrighted materials within certain parameters – mainly commentary and review. So far, they haven’t had to argue that case in court, but the legal issues surrounding the album remain unresolved.
“There’s an argument to be made that it’s fair use,” says attorney Christopher Bradstreet, an entertainment lawyer in Rochester, N.Y., who also manages the indie bands Lovedrug and Sherwood. But it’s “a very murky grey area,” he says, and the only way to know for sure is to go to court.
If that happens, there could be at least two strikes against Gillis, says Bradstreet: his music is commercial (he makes money from the use of copyrighted material), and many of his samples are easily recognizable.
Howard Hertz, a Detroit-based entertainment attorney whose clients have included Marilyn Manson and Eminem (whom Girl Talk samples), says a fair use defence is a long shot. He cites a 2005 case, Bridgeport Music v. Dimension Films, in which a movie soundtrack used a two-second sample from Get Off Your Ass And Jam, by George Clinton and the Funkadelics. In ruling against the filmmakers, the
federal court of appeals asked, “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?
Our answer to that question is in the negative.”
Hertz says there’s a lot on the line for both sides if Feed The Animals goes to court.
If Girl Talk won the day, “I think it would destroy our copyright system unless the court severely limited the length of a permitted sample without a licence,” he says.
And if Girl Talk loses? Hertz says courts can award up to $150,000 per infringement. On an album consisting of 300 samples, Girl Talk’s potential liability is $45 million.
But the album has been out as a digital download since June, with nary a peep from copyright holders. Is such a historic legal battle likely ever to take place?
“They’re gonna come after him and shut him down,” Bradstreet predicts, noting that if copyright holders wait too long to take action, it hurts their chances in court. “They’ll go to the nth degree to protect their rights.”
In the event of a court battle, several attorneys have offered to defend Girl Talk and Illegal Art pro bono, says the label’s proprietor, who goes by the pseudonym Philo T. Farnsworth. He mentions the Copyright & Fair Use Centre at Stanford Law School, “which would like to see a test case go to court.” (The Center confirmed the offer.)
But Farnsworth thinks the industry is too occupied with illegal file-sharing to bother coming after Girl Talk.
“They have a much clearer case against people who are file-sharing and copying things than something that’s solved in a more legal grey area. Sampling was a battle they seemed more engaged in in the 1990s, but the battle for this decade has been downloading.”
music@nowtoronto.com
