An overview of the legal issues involved

posted by Jason Kottke Feb 26, 2004

An overview of the legal issues involved with The Grey Album copyright fuss.

Reader comments

barlowFeb 26, 2004 at 1:23PM

I'm not sure the EFF is right about sound recordings published before 1978. They point to a copyright explanation site, not the US Code on that one. I thought that if the work was published before '78 with a valid copyright mark that the 1978 law rolled in protections of those. I could be wrong, of course, but I do think they're being a little cavalier with the suggestion. Further, a remastered recording is itself a new work, and thus is not in the public domain no matter how old it is. There is artistry involved in restoration, mastering, eq'ing, etc.

Kip IngramFeb 26, 2004 at 2:50PM

Has anyone claimed that sharing the Grey Album qualifies as a political statement protected under the First Amendment? I don't know if that would stick, but it seems like the kind of idea that usually pops up in debates like this one.

andrewFeb 26, 2004 at 2:53PM

imagine for a moment --all those quick to jump on EMI and the 'big mean greedy corporate giants'-- that this wasn't the white album at the focus, but some rather unknown output by a poor independent artist. An artist whose work was nabbed up by a DJ, and fused with another work, and now said DJ was getting all the recognition, and if he had his way(danger mouse originally SOLD this album), large sums of money. People would be defending these very same copyright laws in the name of protecting this independent, struggling artist whose obscure work was being re-appropriated for profit by another. Now, we'd like to apply our laws selectively, and give the finger to the big rich corporate types, but we can't. you protect the little guys, you protect the big ones too.

barlowFeb 26, 2004 at 2:54PM

I think the album would have to be "satire" in order to qualify for that kind of allowed use. A Robert Smigel cartoon is a good example...

dowingbaFeb 26, 2004 at 3:19PM

Andrew, the difference is that The Grey Album does not detract from The White Album sales in any way. Nobody is going to say, "Why should I buy the White Album, I already have The Grey Album." If anything, this will probably inspire some people to buy the White Album who otherwise wouldn't have even considered it.

andrewFeb 26, 2004 at 3:53PM

of course there are differences. but that is selective reasoning. the existence of the grey album doesn’t effect. But the revenue generated by sales of the grey album(that is the real hot button issue) should be distributed to the copyright holders via the usual sample-clearance procedures. if that means that they get a collective 100 percent of the total, so be it. Again, if this was some obscure album, by a struggling artist, three would be no argument. plain and simple, that artist would receive their due royalties for the sampled material and nobody would make a fuss.

margaretFeb 26, 2004 at 5:26PM

actually, andrew, your example probably wouldn't turn out as you say it will. if a small, independent artist's work was used by a band or DJ on a big label in the same or similar way the white album was used by DJ Danger Mouse, wouldn't the small artist be less likely to sue the huge company with it's own lawyer breeding stable? I mean, i suppose the small artist could sue the large company and win, but a struggling artist probably won't want to waste the money fighting a huge corporation. furthermore, if the large company used the samples, their product would surely be sold. in the case of the grey tuesday distribution protest, the material was being shared with no eye toward profits. I'd imagine quite a few people had to pay for bandwidth pverages, and in fact probably lost money. I might be wrong, but this is how this looks to me.

andrewFeb 26, 2004 at 5:38PM

the original intentions and actions of dj danger mouse were to sell the album for profit.

my example above illustrates how the community at large would react and who they would choose to support, if an indipendent album had been the subject.

the small, little guyFeb 26, 2004 at 6:08PM

i agree with andrew.

margaretFeb 26, 2004 at 6:47PM

i was only referring to the case against grey tuesday participants, not DJ danger mouse.

caliFeb 26, 2004 at 7:23PM

I think there are two separate-but-intertwined issues here.

One is whether or not anyone has the right to appropriate and use another person's work for political/satirical/artistic purposes where profit is not a factor. This applies to the Grey Tuesday protestors, and based on my limited understanding of copyright law is allowed.

The other issue has to do with profiting from the use of another person's work. My understanding is that this is only allowed with prior consent of the original artist, under whatever payment terms they've agreed to. This would apply to DJ Danger Mouse. He didn't get permission but charged for the CDs, so I think EMI might have a case against him if only in state court. If he'd just allowed free downloads I don't think he'd be in the same mess, but I could be wrong.

JoshFeb 26, 2004 at 7:58PM

I think Andrew is right. And let's supposed that DJ Danger Mouse had let people download the Grey Album for free from his website -- where, even though the Grey Album was free, it was still possible to buy his other CDs. Then the Grey Album itself wouldn't be for sale, but it would still be driving visitors to Danger Mouse's site, and would ultimately have a commercial purpose. All of us know how this works because we're hip to the internet.

The Grey Album is pretty awesome, but I'm not sure that there's any way to defend it legally. And honestly, I don't believe at all that people will go buy the White Album after hearing DJ Danger Mouse--that seems like a lot of speculation, hardly an argument.

Daniel ParksFeb 26, 2004 at 9:05PM

I already own the White Album, so I can't say if I would go buy it based on hearing the Grey Album. However, I will consider buying the Black Album next time I'm in a music store.

jkottkeFeb 26, 2004 at 11:21PM

If the Beatles were just a little band from Liverpool, I would feel exactly the same way about Danger Mouse using their album *in the precise way that he did*...I think that should be completely allowed. But I do agree with Andrew's point that whatever the law is, it should apply favorably to parties of every shape and size, as much as can be expected.

NikFeb 27, 2004 at 2:11AM

A reader comment from my site that makes some sense:

This so stupid, it’s not funny. Here’s what the EFF has to say about the issue: [...] Hence, going by the above nonsense, if I only added bass riffs to a Beatles album and did nothing else to it, I could release it as Jeff’s Album, get support cause I’m opposing a corporate giant, and not get a copyright violation slapped on my arse? Messed up.

We need to protect creativity, yes. But attribution is one of the major devices using which we can do this. I agree that this process is not all that simple, given that you’ll have to deal with non-testicled corporate giants (w.r.t. “artistic endeavor”), but what choice do you have? The DJ charged for his album but then “support” from yuppies turned it into this huge movement.

Dont get me wrong Nik… if he didn’t charge a cent when releasing it off the internet, it might have been a different issue. Heck… I’d be holding a placard outside EMI’s building (or something). But he did, I don’t know what went through his head, and we have this mess with people hosting the files off their sites even though they’ve been sent cease and desist letters, which is stupid to a certain extent.

I dont believe DJ Mousey is not making any money. He’s got enough publicity for his next rip.

I think it makes SOME sense.... right?

Robert EckertMar 09, 2004 at 12:50AM

I am no lawyer by any means. This episode of a DJ releasing a remix of an album released many years ago with a rap capella released recently is the "best" true sign of the times. The internet has made it possible for everyone to visit the same place. Imagine if you will, that good old record store that you used to go and buy vinyl, and purchased a Pink Floyd or Led Zeppilen BOOTLEG of some sort? Is the owner of that record store as viable as those sharing music online? The record store owner actually SOLD the music material in his store and kept the profits for himself, and of course running the store. So, now the music is free. I do not remember this as such a fuss when we used "Fast Speed Dolby Recording" with expensive Maxell chrome tapes with friends. The internet has brought us closer together and use new technology to get these recordings of art to our friends. It is so late in the day for corporate music giants to throw in a towel for not speculating the progress of technology since the fast dolby recording days. Without the internet people would be trading CD's, or even still tapes. "Procrastination on your behalf does not embark an emergency" is what I say. You loose. Just like anyone else whom hasn't read the fine print good enough. There are so many issues here, from the artist to freedom of technology, artist expression, and speech. We need to represent this all in a orderly fashion. I will always remember this, and this is history unfolding itself. Thank you.

This thread is closed to new comments. Thanks to everyone who responded.