Grey Area: How Recent Developments in Digital Music Production Have Necessitated the Reexamination of Compulsory Licensing for Sample-based Works

• Jurisdiction: United States,Federal
• Citation: Vol. 6 No. 2004
• Publication year: 2004

Kenneth M. Achenbach⁰

I. Introduction: "The Grey Album"

Last winter, a young, Los Angeles-based hip-hop producer, working out of an improvised studio in his bedroom,¹ created what could quite possibly be the most important album of the past year, if not the past decade. After sending out "a few CDRs . . . to friends,"² he discovered that the album had somehow made its way into local record stores.³ In response to the rapidly-developing buzz around the album, he decided to offer downloadable copies online. At one point, 150 websites were offering the album for download, and some estimates of the total number of downloads for songs from the album exceed one million copies.⁴ The album has received numerous favorable reviews from reputable sources.⁵

However, Brian Burton, who produces under the name Danger Mouse, will not receive any gold or platinum records in recognition of the popularity of his album, nor is he likely to receive any mainstream awards for his work. Despite the absence of accolades, the record industry is all too aware of Mr. Burton's latest album. Unfortunately for Mr. Burton, rather than viewing the album as a hallmark of an emerging revolution in music production that could be harnessed for substantial profit, the record industry has focused on the materials that were used in the making of the album.

Like the majority of hip-hop producers, Mr. Burton creates his works primarily through the process of sampling. Sampling has been used in hip-hop, dance, and other genres of music for well over a quarter of a century. The exact process has changed with the development of more sophisticated hardware and software technology, but the term generally refers to the appropriation of sounds from an existing sound recording for transformative use in a new work.⁶ In his album, Mr. Burton used samples from the Beatles eponymous 1968 release, commonly referred to as "The White Album," and vocal tracks from the a cappella version of the Jay-Z release, "The Black Album,"⁷ to create his work. The result was logically entitled "The Grey Album." The album did not receive a conventional release but instead found its distribution through other means, as Mr. Burton "knew [he] could never release the album commercially,"⁸ due to copyright concerns. Even with free distribution, EMI Group ("EMI"), the holders of the rights to the sound recording of "The White Album," served Mr. Burton with a cease-and-desist letter.⁹ However, in response to the actions of EMI, a large number of websites staged a "virtual protest" by simultaneously offering all tracks of "The Grey Album" for free download over a twenty-four hour period.¹⁰ This protest received substantial attention from downloaders, and "bootleg" copies of the album were later sold on eBay for as much as $80 each.¹¹ Clearly, the general public had developed persistent and significant interest in the album.

Although there is something of a legal cease-fire at the moment,¹² it is quite possible that litigation by EMI or other interested parties may follow the coming months.¹³ Regardless of whether EMI resorts to such litigation, the story of "The Grey Album" is representative of the current four-way tension between contemporary music production, the development of the musical arts, copyright holders in established works, and the law. The tension in copyright law as it applies to issues of sampling is nearing a point of critical mass. The current structure of the Copyright Act¹⁴ has failed to create a fair market system that is an effective vehicle for ensuring the progress of the arts.¹⁵ Federal District Courts have adopted inconsistent approaches to sampling law, precluding a legal consensus on business practices in a national music industry.¹⁶ Digital sound editing and compositional technology is developing at an unprecedented rate. This development continually provides accessible creative tools to independent, enterprising producers such as Mr. Burton at lower costs. Meanwhile, sample-based music and the marketing associated with it continue to carve out an increasingly significant niche in the national economy. These factors, when combined with the salience that a popular work such as Mr. Burton's lends to sampling issues, create a unique environment that requires and facilitates resolution.

The time is right for Congress to revisit the Copyright Act.¹⁷ This Comment examines the current situation in sampling law from constitutional, judicial, and economic perspectives. It argues that Congress should take the opportunity provided by the nexus of legal dissonance and public salience to modify the Copyright Act in a way that accommodates transformative, sample-based, musical productions. In the interest of progress, this action must facilitate the broadest use of recordings in order to further creative expression. It must also continue to protect the financial interests of artists in their works. This Comment proposes that the most effective way to ensure a proper balance of these issues is to modify the mechanical licensing provision of the Copyright Act¹⁸ and include a compulsory licensing system for the use of samples in transformative works.

II. Copyright Law and Its Failure in Music Sampling

Copyright law finds its origin in the Constitution. Article 1, Section 8, Clause 8 reads: "[The Congress shall have the power 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."¹⁹ The location of this clause in the section enumerating Congressional powers²⁰ suggests that the exclusive rights of an artist or inventor to his or her work is not, in and of itself, a Constitutional right, but rather is within the power of Congress to secure,²¹ so long as that security is granted pursuant to the original aim of promoting

"Progress."²²

In theory, artists will be increasingly encouraged to produce works when they are likely to reap the benefits of those works, particularly when the benefits are potentially lucrative. In essence, "Congress has . . . 'dangled a carrot,' called a copyright, in front of the nose of those creative individuals among us to stimulate them into producing . . . works which will benefit society at large."²³ over time, however, the assumption that granting extensive and exclusive rights to authors is necessarily the means of promoting progress has become nearly universal. References to exclusive interests as "the ultimate public interest that the Constitution and its drafters were thinking about"²⁴ have vocalized this assumption.

This assumption confuses means and ends. The Constitution's ultimate goal in this area is the promotion of "Science and the useful Arts,"²⁵ not simply the protection of a proprietary interest of an author in his work. Monopolies often have undesirable effects on the efficiency of any market²⁶ and can be especially damaging to progress in markets that depend upon the exchange of ideas for development.²⁷ Sanctioning a monopolistic protection should occur only when there is substantial certainty that the particular monopoly sanctioned is truly the most effective way to promote a specific policy.

Copyright should not be viewed as an exclusive, proprietary interest akin to the rights associated with real property ownership.²⁸ The Framers of the Constitution may have realized this concern. Although they granted broad-reaching power to Congress to secure exclusivity in the rights to a work, the Framers specifically proscribed such an interest from extending in perpetuity, permitting such security only "for limited Times."²⁹ Moreover, the concerns about inefficiency attached to unowned real property are inapplicable to intellectual property, as use by one individual does not increase the costs of use to any other individuals.³⁰

This limitation creates a Constitutional provision for the existence of a public domain in some form. The advantages of a temporal limitation on the reach of Congressional copyright protection align themselves with an economic model of copyright as well.³¹ By limiting both the number of rights that are granted and the duration of those rights, the production costs incurred by other artists in the making future works will be reduced.³² Reduced production costs will both encourage production of future works by current artists and lower the economic barrier for entry of new artists who have yet to fully develop their intellectual, social, and financial capital as experienced actors within the market.³³

Although these two factors, the encouraging of individual artists to produce by granting them market leverage through temporary monopoly³⁴ and the lowering of production costs to future artists as a way to facilitate entry into this market,³⁵ are not necessarily in strict adversarial tension with one another, there is a certain balance which must be struck. Unless new artists are enabled to enter the market, the encouraging of artists currently in the market will be of less long-term significance in terms of promoting innovation.³⁶

The potential for future earnings is the substantial element of the encouraging function of copyright. However, potential earnings remain an effective encouragement to new production only until those potential earnings begin to be realized. once an artist receives income from works he has already produced, it is possible that he will be less encouraged to produce new works.³⁷ Further, the benefit he receives is for a past action and the benefit continues despite current inaction.³⁸ When potential income is realized on a level of significant substantiality to provide the artist with a comfortable income, the encouraging function could be diminished completely. At this point, the costs required to produce new works,³⁹ when balanced against a proportionally insignificant increase in gross income possibly generated by these new works,⁴⁰ provide little or no real incentive...