Adapting copyright for the mashup generation.

• Author: Menell, Peter S.
• Position: II. The Legal, Market, and Policy Divides B. What's Past Is Prologue? The Rap and Hip Hop Genres and Digital Enforcement through Conclusion, with footnotes, p. 478-512

2. What's Past Is Prologue? (201): The Rap and Hip Hop Genres and Digital Enforcement

   The mashup copyright controversy does not arise on a blank slate. The rap and hip hop genres struggled through copyright battles in the 1990S (202) 0n their way to market-regulated, but expression-restricted, legitimacy. (203) More recent tumultuous battles over file-sharing during the past decade add further considerations in assessing the mashup controversy. (204)

   1. Rap/Hip Hop's Rocky Road to Constrained Copyright Legitimacy

      The wide media coverage of the early sampling lawsuits, reportedly large settlements to copyright owners, and early, cramped judicial decisions brought an end to the era of unauthorized sampling (205) and "the golden age of sampling." (206) The record industry imposed tight reins on rap and hip hop artists; unless samples were cleared, labels would not release the new projects. (207) Although the Supreme Court's Campbell decision opened the door to a fair use defense, few labels wanted and few artists dared to test those limits. (208) Copyright litigation is time-consuming, expensive, distracting, and risky. (209)

      Other factors reinforced the shift toward licensing. Although initially hesitant to embrace the rap and hip hop genres, the major record labels came to see these genres as vehicles to reach younger audiences and to monetize their back catalogs. Major record labels began signing hip hop artists as they developed fan bases. (210) The most successful hip hop artists were given sublabels under the major record label umbrellas. (211) Furthermore, the ability to generate additional licensing revenue from their back catalog added an unanticipated benefit. (212)

      Although many artist contracts provided for approval clauses for licensing, (213) the prospect of greater exposure and additional revenue from the back catalog had something to offer artists as well. For example, the wide usage of Suzanne Vega's song "Tom's Diner" in works by Public Enemy, Nikki D, Lil' Kim, and dozens of others, produced significant new sources of revenue. (214)

      Even the early, free-wheeling renegades adapted. While we were not seeing the richness in sampling of the first wave--such as the Beastie Boys's Paul's Boutique (1989) or Public Enemy's Fear of a Black Planet (1990)--both groups continued to prosper. (215) Public Enemy's use of Buffalo Springfield's "For What It's Worth" in "He Got Game" was iconic. (216) This 1960s Vietnam War protest song took on new meaning in Chuck D's clutches. (217) But the reality of the licensing era meant constrained experimentation, higher entry costs (if an artist did not have a major label and a good attorney, it was difficult to get licensing requests answered), and many creative compromises. (218) Remix artists had to develop the capacity for self-censorship. (219)

      There are a number of problems inherent in this regime: there is no standardized price list for samples, licensors often want to hear how their works are going to be used, and complex licensing terms and monitoring arrangements have to be established. (220) The creative arts and complex accounting systems do not mix well--creative freedom took a large hit. (221) In addition, rap and hip hop artists increasingly found themselves getting the short end of the stick. Licensors were major publishers and record labels with extensive knowledge and negotiating experience; they had tremendous leverage, especially in dealing with new entrants, because they typically knew a lot more about deal terms than the upstart remix artists. (222) And if artists wanted to have a chance at a fair deal, they would have to retain experienced (and hence expensive) legal talent.

      Negotiations for sampling could turn on a wide range of factors (223):

      * how much of the musical composition or sound recording was used,

      * the qualitative importance of the sample,

      * the characteristics of the sample (whether it is from the chorus, melody, or background; from a vocal or instrumental segment),

      * the recognizability of the sample,

      * the commercial success or fame of the original composer or recording artist,

      * the commercial success or fame of the remix artist,

      * usage of the sample (length, repeated, or looped),

      * the importance of the sample to the remix, and

      * the offensiveness of the remix.

      Based on information from Whitney Broussard, an experienced licensing attorney, and extensive interviews and surveys, Kembrew McLeod and Peter DiCola compiled an illustrative chart estimating the plausible costs for sampling along two principal dimensions--the extent of use of the sampled work in the remix, and the profile of the sampled work, composer, or artist. (224) The royalty cost of sampling mounts rapidly. (225) Therefore remixes containing multiple samples become less and less economically valuable to the remix artist. (226)

      Applying these hypothetical sampling rates to The Beastie Boys's Paul's Boutique or Public Enemy's Fear of a Black Planet pushes the net value of these two highly successful albums well into the red. (227) The Beastie Boys would have been out of pocket $19.8 million, based on estimated sales of $2.5 million, and Public Enemy would have been out of pocket $6.786 million, based on estimated sales of $1.5 million. (228)

      This exercise illustrates the problem of royalty stacking. The total claims of all of the sampled works can swamp the total revenue available, even on a highly successful product. This problem frequently arises in the patent sphere, where multiple patent holders seek licensing fees (or damage remedies) that can vastly exceed the value of the product embodying all of the patents. (230)

      This licensing simulation vastly understates the actual private and social cost of complex sampling and licensing schemes. It does not incorporate the transaction costs that would have been required to obtain licenses and monitor the payouts. Nor does it include the loss in creativity and output that would have occurred as a result of the delays, stress, and hassles in working out the deals. Perhaps most significantly, this simulation overlooks the high likelihood that some of the underlying samples could not have been cleared because the copyright owners refused permission.

   2. The Digital Copyright Enforcement Debacle

      Another important influence on the development of the music mash-up genre has been the larger copyright and Internet freedom issues surrounding the digital revolution. The rap and hip hop genres largely emerged in the pre-Internet age when record companies and music publishers had far more control over music distribution and artists had little choice, if they wanted to reach an audience, than to work with these intermediaries. (231) The digital music revolution, embodied by Napster's meteoric rise, (232) adds other twists to the emergence and development of music mashup.

      Web 2.0 technologies, such as file-sharing services and cloud storage, have made compliance with copyright optional for many netizens. (233) Although many are willing to participate in services that are convenient and fair, as reflected in the success of iTunes, Spotify, and Pandora, authorized content channels compete with illicit and ambiguous sources. (234) Furthermore, heavy-handed enforcement efforts are more likely to backfire than succeed. The mass litigation campaign against file sharers between 2003 and 2008 ended with withdrawal by the major record labels. (235) Similarly, EMI's effort to squelch The Grey Album similarly backfired. (236)

      The breathing room created by the Internet Age has tempered the power of music copyright owners, which significantly explains how the music mashup genre was able to emerge at all. The difference between Public Enemy, which had to bring its sampling practices into line with industry clearance norms, (237) and Girl Talk, who has been able to avoid such constraints, (238) largely reflects the ability of contemporary artists to go directly to the public through Internet channels.

      This is not to say that the traditional copyright owners lack power. It is more accurate to say that their power is no longer near absolute. Copyright owners retain the ability to control many of the most important commercial channels, thereby relegating those who go around copyright owners to less robust channels to appropriate a return on their investment, talent, and creativity. Some DJs have successfully cultivated lucrative live performance markets that can be promoted through free distribution of their mashups. (239) Nonetheless, their inability to sell their creative works distorts their priorities. There is also growing concern that the legacy recording industry is beginning to disrupt these alternative channels. (240)

3. The Uncertain and Distorted Music Mashup Marketplace

   It was against this legal and market backdrop that the music mashup genre emerged. DJs had relative immunity for mashing different samples together as part of their live performances. (241) With the availability of increasingly versatile and inexpensive sampling technology, the desire to experiment with recordings grew. (242) Furthermore, Web 2.0 services such as YouTube and SoundCloud provided artists with greater ability to reach large audiences quickly and easily. While the conservatism of industry practices sensitized rap and hip hop artists to the risks of unauthorized sampling on commercially distributed albums, the ease with which mashup artists could release tracks onto file-sharing websites inspired a cautiously cavalier attitude. Furthermore, the recording industry's surrender in its mass litigation campaign against file sharers suggested that mashup artists could potentially fly under the radar.

   As noted above, (243) several early mashups garnered critical acclaim and encouraged others to follow suit. The variety of mashup forms inspired a new generation of remix artists. Danger Mouse's bold release of The Grey Album, and the ensuing online protest...