New York Times writer, Rob Walker warns, it seems like “Girl Talk’s music is a lawsuit waiting to happen” (2008). However, Girl Talk has faced almost no legal action against his work. Claims such as Walker’s make the issue even more urgent. But, why hasn’t the record industry sued Girl Talk? The question, which is extremely relevant, brings with it, some sizable concerns about the United States Copyright Law, and its position as a protector of creation.
In Sony Corporation of America v. Universal City Studios, the Supreme Court decided that the use of the Betamax recorder was fair because it mostly allowed the copying of content that had been broadcast for free viewing. However, Girl Talk samples mostly commercial hits, which were released with the intention of making a profit on recorded music sales. None of the samples used on GirlTalk’s music intended to be academic or educational in nature. The use in the case of the Betamax was a “noncommercial and nonprofit” activity. Users of the technology were not economically benefiting from the copying, it was just a personal use. However, Girl Talk doesn’t do what he does just for personal enjoyment, he is a performer, and his mash-ups are his unique selling potential.
Moreover, Girl Talk uses the actual sound recordings of songs. In Bridgeport v. Dimension, the Sixth Circuit ruled that phonographic recordings couldn’t undergo the same analysis as the actual composition itself. It also ruled out the possibility of “de minimis” copying for sound recordings. Therefore, any amount of copying, no matter how small, could technically be infringement. On the other hand, one could contend that Girl Talk’s style of stitching together several short samples to create a larger piece, is unique to him. Girl Talk seems to be adding his own creative expression to the samples. This could possibly count as fair use. Adding to this, it is highly unlikely that the use of twenty to thirty second long samples would prevent people from going out and buying the original songs. To the contrary, one could argue that his mash-ups advertise, and therefore increase the sales of original songs.
This SXSW Panel, seems to hit the nail on the end. Watch out for DJ Spooky’s analysis of the “media cloud” we are surrounded by and constantly reference:
http://www.youtube.com/watch?v=fJdFYgdb0vU
The verdict seems unclear. Girl Talk satisfies some aspects of the fair use test, and fails others, and as a result his music falls in a grey area. But, even though he uses the fair use card to his defense every time, the big question here is whether the fair use test is even valid for an artist like Girl Talk. The current copyright understandings draw most of their matter from the 1976 legislation. Does it stand valid in the twenty-first century?
Interestingly, Girl Talk’s thoughts reflect some of the philosophical justifications behind U.S. Copyright Law. According to the statute, copyright protection should be limited because by creating something, one actually reduces “resources” available to others to create (McJohn). Essentially, what copyright aims to do is to protect artistic creation. This train of thought makes Girl Talk’s music seem flawless because it does not affect the market for the original works, and at the same time is a unique form of expression.
As to the question of whether or not the 1976 legislation stand valid in this century, I think it is difficult to say. With new technology coming up almost every day, it is hard for the law to catch up. Even though the Betamax tape involved technology, it is now ancient technology. It is getting easier and easier to record anything and use it for personal use, and also for commercial use. The laws take so long to become official, and it is difficult to use a law that was made before the person who made the new technology was even born.
This also applies to the fair use part of the question. The question of fair use didn’t even really exist before the printing press, and before sites like Youtube and technology that allows Girl Talk to make songs, the issues of fair use were never this complicated.
If technology keeps expanding and improving at this fast of a pace, it will be impossible for the law to catch up.
According to the Court’s holding in Bridgeport, Girl Talk’s music DOES NOT occupy a grey area at all — the Court says, in no uncertain terms “Get a license, or do not sample.” Even if it’s not for commercial use, even if it’s transformative, the official party line is that sampling is never fair use.
And frankly, its the holding in Bridgeport is why Girl Talk isn’t getting sued. When Bridgeport went to court, sampling was limited primarily to the hip-hop community, which wasn’t going to get a lot of support from the judiciary. Now, sampling is so prevalent and familiar that such a bright-line holding is unlikely.
Bringing Girl Talk to court would be a huge risk for the music industry. Chances are high that a court in 2011 wouldn’t take the same approach to sampling as the Bridgeport court did, and record labels would lose their chokehold over would-be samplers who are afraid of a lawsuit.
Girl Talk blatantly violates the Court’s decisions in the Bridgeport case. He refuses to get a license for any of the songs he samples. How is he escaping this law? What Girl Talk does is to create a completely new, creative work. While the samples are recognizable, they no longer closely resemble their original structure. His art is rearranging samples to create music. He acknowledges this to be a completely different art form than composing original works. However, technology has evolved greatly since the Bridgeport ruling. There are a millon others out there just like Girl Talk It is so easy and cheap to sample music, that to go after Girl Talk would require record labels to go after everyone else like him.
The only thing saving Girl Talk is the fact that his material has profit “potential” and he is not receiving any profit from this remixed, correction “mashed-up” material. Once he gets comfortable enough to pursue profit, due to the fact that he has not been hit with a major lawsuit as of yet, then he will be in direct violation of the court’s decision. Since his work is hard to determine for now he can use fair use as a shield. He can also point to the platform YouTube, which facilitates a number of similar material. These factors save him temporarily but if he is looking to get paid, then he is sadly mistaken. He will definitely not be able to hide behind the fair use clause and he will face major lawsuits because of market damages (some of these original songs have the opportunity to be remixed, but his work may have hindered that process. This is a claim that clearly has to be proven, but a valid case none the less. Girl Talk uses a clever tactic that allows them to just miss the infringement line, the act of stitching small parts of different songs to make a complete one is what has kept him out of trouble so far. Though the courts ruled “‘de minimis’” copying for sound recordings……any amount of copying, no matter how small, could technically be infringement”, the fact that Girl talk found a loop hole of stitching a songs to make a new one under fair use is a loop hole that should not be relied on. I think that if another ‘artist’ similar to him emerges, courts will take action, resulting in a firmer more decision with more precise language.
For one thing anyone can be sued for anything, being sued does not prove right or wrong. I can sue you for wearing green pants.
secondly, there seems to be an assumption that the artist is using a clever tactic of stitching small parts together to make a complete one. hey d-bag, that is not a tactic that is his style. even if there was no such thing as copyright laws he would still do the same.
thirdly, all girltalk would have to do is get any so called expert on music and the vast majority of them would say that what he creates is entirely new and sure it is derived from samples but the sum is more than the parts. And finding these experts would not be hard, look up any review for girl talk and you will read mostly the same glowing review.