'Give me a beat:' mixing and mashing copyright law to encompass sample-based music.

• Author: Shapell, Anna

Cite as 12 J. HIGH TECH. L. 519 (2012)

1. Introduction

   What might be appropriately termed a culmination of music history, mash-ups are compilations of pre-existing songs blended and spliced together to create an entirely new song. (1) The most basic form of mash-up pits artists with clearly opposed styles against each other. (2) For example, one popular mash-up blends Jay-Z's "H.O.V.A." and Miley Cyrus's "Party in the U.S.A." layering Jay-Z's lyrics on top of Cyrus's instrumentals. (3) Mash-ups like this generally consist of two songs "warring" against each other, lyrics and instrumentals fading in and out. (4) In contrast, certain sound artists have taken the blending process to a new level: instead of mixing two songs together, these artists overlay multiple songs at one time, quilting an entirely new song from a dozen or more preexisting ones. (5)

   This Note is, in part, concerned with one particular way in which technology has facilitated abrupt and dramatic changes in music production and regulation. It is no secret that technology changes, on an almost daily basis, the way the public interacts with music. (6) From changes in song and genre popularity, to technological advancements that introduce new listening interfaces like mp3 players and iPods, to, most significantly, the Internet, technology has been both a blessing and a curse to those who make music, and to those who listen to it. (7) Mash-ups are syntheses of these technological advancements: a simultaneous blend of two or more existing songs resulting in a new recording. (8) The last ten years has seen a proliferation in mash-up popularity, but along with popularity comes the glare of legal scrutiny, which has favored original compositions at the expense of songs created--in part or entirely--from borrowed music. (9)

   As it stands, existing copyright law has been adapted to regulate the sampling of music, but both the novelty of mash-ups and the fact that most mash-up artists sell their music through independent labels, have protected mash-up artists from both litigation and suit. (10) Yet, the current structure of licensing, which is eschewed by many mash-up artists, fails to facilitate a legal way in which mash-up artists can actually obtain permission to sample copyrighted sound recordings. (11)

   Section II provides the appropriate context of current copyright law, and discusses the legal history of sample-based music as well as the relevant aspects of U.S. copyright law. It also explains the current licensing structures for both musical works and sound recordings. Section III turns to the topic of Girl Talk, also known as Gregg Gillis, a prominent mash-up artist whose sound collages provide the basis for this Note's analysis. Section IV dissects the ways in which current copyright law has failed to respond to technological improvements in the musical arena, and suggests that the licensing schemes for obtaining permission to reproduce and distribute sound recordings should be similar to those for musical works. It also explores the various ways in which the licensing schemes can be modified, and discusses the policy implications of adapting copyright to mash-ups and other technology-driven forms of musical expression.

2. The History of Sample-Based Music and U.S. Copyright Law

   1. Purpose of U.S. Copyright

      The purpose of U.S. copyright law is to "Promote the Progress of Science and the Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (12) The fruit of this progress is intended to benefit the public by providing incentives to create original works, and the rights included therein "are designed to assure contributors to the store of knowledge a fair return for their labors." (13) A system of rewards and benefits, U.S. copyright law is organized to ensure that those who contribute to the public vault of creative works are granted exclusive rights of control over reproduction, derivative works, distribution, public performance, and, for audiovisual works, public transmission. (14) The Act also limits the subject matter which may be copyrighted, and, in [section] 102, provides that "[i]n no case does ... protection ... extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery ...." (15) When it comes to granting copyright protection to musical works, the regulatory scheme has strengthened during the course of U.S. history. (16)

   2. Music and U.S. Copyright Law

      Sound recordings are defined as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied." (17) Yet, protection for sound recordings was originally omitted from the first iteration of a formal copyright act in 1790. (18) Thereafter, in 1831, protection for music was limited to "musical composition[s] ... now made or composed," (19) and a public performance right was not recognized until 1897. (20) It was not until the Copyright Act of 1909 that musical compositions were given any degree of individual statutory protection when musicians were given copyright ownership of their compositions, and a compulsory licensing requirement granted musicians more control over the dissemination and copying of their original recordings. (21) The regulation of sound recordings, though, is largely unsettled, and when it comes to licensing, musical compositions, and not the sound recordings, are the only rights that can be licensed. (22)

      i. Navigating the pieces of the copyright pie

      Any sort of federal protection for sound recordings was not granted until the early 1970s when Congress enacted the Sound Recording Act of 1971. (23) Protection for musical works expanded significantly to provide far greater protection under the Copyright Act of 1976, (24) and copyrights for musical compositions were broken down into two, separately protectable categories: the musical work itself and the sound recording. (25)

      While the sound recording copyright "protects the elements of original authorship that inhere in a fixed recording of sounds ... ," (26) the copyright owner of a musical composition enjoys control over the lyrics and musical arrangement themselves. (27) Yet, despite these more basic aspects of ownership, other rights inhere, and are divided up among record companies, music publishers who serve as promoters for the songwriter, various licensing entities, and music distributors. (28) The Copyright Act of 1976 represents a coalescing of U.S. copyright history and was intended to provide adequate coverage for music infringement. (29) However, the unique treatment of musical works as two separable entities has led to myriad legal complications. (30) The copyright statute itself has been similarly divided to accommodate actions like covering songs, licensing both compositions, the right to broadcast existing song recordings, and performing a copyrighted work publicly. (31) Put most simply, anytime anyone wants to use a copyrighted song, be it for a cover performance, use in an advertisement, or on the radio, licenses must be obtained. (32)

      ii. The ins and outs of licensing

      When proper licensing channels are adhered to, obtaining licenses is not overly difficult. (33) The primary rights reserved by copyright owners of both musical compositions and sound recordings are rights of reproduction, distribution, and the right to prepare derivative works. (34) Similarly, public performance rights are also administered through the copyright statute, as well as by independent licensing agencies like American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and Society of European Stage Authors & Composers (SESAC). (35) The best way to understand how each entity-composers, recording studios, publishers, distributors, and the rest--balance the delicate distribution of rights is by discussing each entity along with the rights afforded to them. (36)

      When a songwriter writes a song, they automatically own the copyright for the composition. (37) The standard practice is for the songwriter to transfer the administration of the [section] 106 rights to a music publishing company, like ASCAP, BMI, or SESAC, who then have the power to license the rights to the song for public performance. (38) Typically, an artist who wishes to license the underlying musical work will go through a licensing agency, like Harry Fox, (39) to obtain a blanket license, or a "mechanical," which allow them to reproduce and distribute the song. (40) Meanwhile, an artist will have engaged the assistance of a recording company to "produce, distribute, and promote the recorded songs, whether through sales of copies or through licensing of the recording for audio streaming." (41) The recording company then becomes the owner of the sound recording copyright. (42)

      Historically, the rights reserved to the owner of the musical composition were not entirely exclusive. (43) "The 1909 Act subjected the right to control the creation and distribution of 'mechanical' copies to a compulsory license." (44) Section 115 of the current copyright act is the heart of current mandatory licensing, providing that "the exclusive rights ... to make and distribute phonorecords ... are subject to compulsory licensing ...." (45) This means that once a copyright owner for a musical work makes a recording of a song, they cannot prevent others from making their own recording of that song. (46) Copyright law provides for the licensing of exclusive rights, both for musical compositions and sound recordings, but in the case of sound recordings, the mandate of [section] 115 does not apply, and there is no compulsory license for sound recordings. (47)

   3. SoundExchange

      While copyright law expressly...