Trying to Find a Balance: Musical Mash-ups and Cultural Production

Ian Smalley

I. Introduction and Background

The idea of an author having exclusive rights to their work has not always been

the case in the Western world. Indeed, “in contemporary usage an ‘author’ is an

individual who is solely responsible – and thus exclusively deserving of credit – for the

production of a unique, original work”, but this modern idea of the “author” is a

relatively recent change in thought (Woodmansee 36). In the Renaissance and

neoclassical periods the author was viewed as merely a craftsman; a master of a distinct

set of rules and techniques who merely deployed the rules to paper. In rare moments in

history of particularly amazing literary work the author was thought to be inspired by

God or muse, rather than given credit for the work themselves. In the eighteenth century

theorists began to take a new view on the author. No longer mere craftsmen, “the

inspiration for a work came to be regarded as emanating not from outside or above, but

from within the writer” and as a result, “the inspired work was made peculiarly and

distinctively the product – and the property – of the writer” (Woodmansee 37).

With these new ideas of authorial property there came a need to establish the

regulations and limitations surrounding literary property. The legendary case of

Donaldson vs. Becket would be the landmark decision in determining the structure of

copyright. After the case of Millar vs. Kinkaid Scottish bookseller Alexander Donaldson

determined that copyright was limited to statutory term, and he was free to establish a
bookselling business in the heart of England selling cheap reprints of books whose

copyright terms had expired (Rose 309). British booksellers, angered by the Scotsman’s

foray into their business argued that whoever owned the rights to a work ought to have

perpetual copyright. 1774’s famous Donaldson vs. Becket case followed to determine the

actual purpose of copyright law.

After much deliberation in the House of Lords the decision came back that

copyright would henceforth be limited in term. Perpetual property rights were seen as

dangerous because they would allow the owner “not only a right to publish, but to

suppress too” (Rose 309). The decision represented a compromise; it was a balance

between providing the copyright owner an exclusive right to their work, while limiting

that right so that it would not infringe on the creative freedoms of others.

This limit on copyright has changed dramatically over the years. In 1814 “a

revised statute extended the copyright term to twenty-eight years after publication or the

author’s lifetime, whichever was longer” (Rose 314). In 1842 the Copyright Act was

passed, extending the copyright term to the author’s lifetime plus seven years or forty-

two years from publication, whichever was longer.

Nowadays “American copyright law regulates (at least potentially) any creative

work produced after 1923, for a maximum of life of the author plus seventy years, or

ninety-five years for corporate work or work created before 1978” (Lessig, Remix 97).

The extent of copyright law has grown vastly since the original limits were set.

Additionally the laws are open to further extension by Congress once the term has

expired, and experience has shown us that Congress has no problem extending the limits

with every chance they get.

 It is essential that a balance be maintained when dealing with copyright. The

copyright terms have gotten out of hand, and we are dangerously close to returning to a

system perpetual property rights that was deemed unjust in the Donaldson vs. Becket

case. Copyright works as quid pro quo – in exchange for the monopoly rights to their

work, creators are encouraged to benefit society with their creative products. This is an

essential function of copyright, inducing and encouraging new production. It is

imperative however that these monopoly rights do not become so one-sided or extensive

in term that they stifle innovation and creativity for new inventors and cultural creators

trying to build from the ideas of the past.

II. Main Themes and Ideas

One of the reasons that these issues are becoming so prevalent in American

society is the rapid development of digital technological innovation. Technological

innovations have constantly forced copyright to be reevaluated in light of new ways to

copy and distribute work. Photocopiers, audio recorders, and VCRs have all presented

new technology that has affected the way that copyright laws are followed. However,

these technologies of dissemination are ancient and outmoded when considering the

digital age and how much the range of ways to disseminate creative works has increased.

As with the technologies of the past, the law must calibrate itself with the new

technology.

According to intellectual property scholar Jane C. Ginsburg, “the Constitution

designed copyright to ‘promote the progress of science’ by assuring authors the

‘exclusive right’ to their writings. Authors’ ability to control and be compensated for

their works makes it worth their while to be creative” (Ginsburg 1613). The question that

has always prevailed is how much control should the authors be able to exercise? The

copyright statutes that exist are constantly being adjusted and tweaked to meet the

demands of the ever-changing marketplace and technological landscape. These statutes

and the judges who interpret them are trying to find the right balance. “Creators should

maintain sufficient control over new markets to keep the copyright incentive meaningful,

but not so much as to stifle the spread of the new technologies of dissemination”

(Ginsburg 1613). They need to insure that the copyright authors still have a reason to

create new material (i.e. economic returns), while allowing new technology to do its job.

The advent and mass public adoption of the Internet has really turned these

traditional debates on copyright balance on their head. The Internet is a breakthrough

like none before; its possibilities for copying and sharing creative material are

unparalleled by any technological breakthrough of the past. Many worry however that

Congress’s response to new Internet technology has shifted the balance of power too far

in the direction of copyright owners. Indeed the overwhelming reaction has been that

“the goal of copyright has never been, and should not now become, to grant ‘control’

over works of authorship, but rather to accord certain limited rights over some kinds of

exploitations” (Ginsburg 1615). There obviously should be economic incentives to

create, but we must maintain these incentives at a reasonable level because copyright

“has not and should not cover every single way of making money from, or of enjoying, a

work of scholarship” (Ginsburg 1615). This again brings up the point of copyright

balance; how do the courts maintain an equilibrium where copyright owners are rewarded
for their creativity but not allowed to completely control the dissemination of their works,

or stifle the creation of new ones?

Historically, one of the issues that has influenced the courts’ course of action is

the nature of new technologies of dissemination. Are they threatening to supplant the

previous technologies, or will they complement them? “Indeed, a review of past

confrontations between new technological means of dissemination suggests that courts

are reluctant to restrain the public availability of new technologies, even when those

technologies appear principally designed to exploit copyrighted works” (Ginsburg 1616).

When copyright owners seek to completely eliminate a new kind of technological

dissemination, and when the courts do not find that dissemination explicitly harmful to

copyright owners, courts usually decline to find infringement. This does not necessarily

mean that the courts refuse any sort of protection. When copyright owners seek to

participate in and be compensated for the new forms of dissemination they are much

more likely to be sided with by the courts. By participating in the new market they will

be afforded a level of control based on how much the new mode of exploitation supplants

and rivals the established market.

It seems that when new technology develops a new mode of exploitation that does

not threaten to completely replace an established market and copyright owners seek to

block the technology, Congress will “split the difference between copyright owners and

other entrepreneurs or users by providing for compensation, but not for exclusive control

over the new exploitation” (Ginsburg 1630). Alternately, if the new mode of

dissemination endeavors to replace an existing market, Congress will often provide

exclusive control rights to the copyright owners in order to protect their works.
 Consider the three-tier system of control that has been created for Internet

streaming radio. On the first tier are non-subscription digital audio transmissions.

Copyright owners have no control over these and receive only the standard Internet radio

compensation. The non-subscription transmissions function like a normal radio station,

and don’t challenge the copyright owners’ ability to distribute, market, and sell their

product. Since established markets are not being threatened, they receive compensation,

but have no control.

The second tier is subscription digital transmissions. Copyright owners can issue

a statutory license for these. These systems allow for the user to choose some songs to

listen to, but as long as the transmission does not exceed the “sound recording

performance complement” (only a certain number of songs per artist or album can be

played per three hours), the copyright owners’ level of compensation and control remain

low.

The third tier is the full control that copyright owners can have over interactive

digital transmissions, a system where listeners can choose whatever they want to listen to.

Since this system threatens to completely replace traditional markets, courts have given

the copyrighters the highest level of control.

As you can see, those digital transmissions that resemble traditional radio

broadcasts fall outside the realm of the copyright, but those transmissions that the user

has significant control over (i.e. they can pick their song or have advanced knowledge of

what will be coming up next) are subject to control from the copyright owners. This is

because the more advance knowledge and control the user has over the playlist, the easier
it will be to make copies of songs, or select a playlist that can perfectly substitute for a

purchased copy of the music.

We can see once again how the rules must be tweaked and adjusted in order to

maintain an appropriate balance for copyright owners and the public. The influx of

technologies of dissemination has created an interesting landscape where copyright

regulations have to be constantly reevaluated to keep up with the ever-changing

marketplace. It remains to see if the laws can find this fair balance, simultaneously

providing copyright owners with certain limited rights over their works while allowing

new technologies that do not seek to supplant old technologies to thrive and find success.

It is a nebulous topic and it may be difficult to find the appropriate compromise and know

where to draw the line on copyright owners’ level of control.

There are many though who worry that we have already begun down a dangerous

path of regulation that overwhelmingly affords the copyright holders’ far too much power

and control. Big media corporations, especially those in the content industry, are relying

on their significant lobbying powers to expand the reach of copyright legislation, creating

a vague and expansive regime of copyright control that threatens the creators and

innovators of an era that should be ripe for creativity.

Lawrence Lessig, constitutional lawyer, Stanford law professor, and outspoken

proponent of reducing the extensive scope of copyright control, is one of the people

leading the so-called “copyleft” movement to scale back suffocating copyright

legislation. Lessig strongly believes in the need for copyright in our society, but like so

many others he is searching for that illusive balance between control and creative
freedom, especially in a technological climate which encourages such a new and diverse

range of cultural products.

Lessig has a theory that there are two types of culture, RO culture and RW

culture. RO stands for Read-Only: this is a professional and hierarchical culture.

Something is created, produced, and marketed for consumption by the public. This type

of culture tends to emphasize learning through consumption and maintains a hierarchy.

RW stands for Read-Write: this is a hybrid culture, one that encourages contributions and

changes. People can take something that has already been created and rework or

recontextualize it in their own way to create something completely new. RW culture

tends to emphasize learning through contribution and flattens traditional hierarchies,

bringing all cultural producers and innovators to a similar level. As we have seen,

copyright is a monopoly right, meant to be a constraint on competition. As such,

copyrights are a protection and perpetuation for RO culture and an opposition to RW

culture. What Lessig and other copyleftists believe is that in protecting RO culture we

must be careful that we are not killing off the potential for a rich RW culture at the same

time.

During the 20th century, the balance between RO culture and RW culture swung

heavily towards the RO side. Indeed, “never before in the history of human culture had

the production of culture been as professionalized” (Lessig, Remix 29). Big budget

studios and highly trained professionals were the creators of expensive, highly polished

cultural products marketed to the public. With the 21st century came a boom in digital

technologies and with these technologies came the possibility of appropriating the tokens

of RO culture and remixing them to create something new. Thanks to the Internet and
these new forms of cultural production, more and more people are able to access,

manipulate, and distribute cultural works. Amateurs can now create in media contexts

that were once only available to professionals. This is the essence of RW culture, and an

environment in which it should thrive.

More and more people use technology to say things, and not simply

with words. Music is remixed; mash-ups proliferate; blogs begin to

build a culture around the idea of talking back. (Lessig, Remix 103)

Unfortunately as technologies have evolved the copyright laws change with them,

and the changes have provided copyright owners with ever-increasing control over

exactly how the copyrighted content is used. For example, digital-rights management

technologies can control how many times you can listen to a song, how frequently you

can access it, where the song can be stored, how long you can listen to it, and whether or

not you are able to share the song with anyone else. This level of control is drastically

greater than the control the laws of copyright gave owners in the “analog” RO world.

In the analog world if you buy a book you are free to read it as many times as you

like. You can mark the pages, indicating your favorite passages or particularly incisive

points. You can even loan the book to as many friends as you’d like, circulating it among

your entire social circle if you so choose. In the digital age the architecture of copyright

laws and the architecture of digital technology have collided in an interesting way that

changes the way that copyright functions. Copyright law regulates “copies” and

“reproductions”. Every time you use a creative product in a digital setting you are
essentially making a copy of that work through the computer technology. When you play

a song it gets copied into memory on the way to the speakers. Videos are copied from

the hard drive to your computer memory when they are watched. Essentially every use of

a cultural work in a digital context triggers copyright law. So where normal use and

sharing of a product in the analog world would go unregulated, they require permission

and control in the digital world. In this way the scope of control over the use of creative

products has been vastly increased, not because Congress determined that RW creativity

needed regulation, but because the architecture of copyright interacted with the

architecture of digital technologies to produce a massive expansion in the reach of the

law. RW culture, which involves using and rewriting cultural products, violates

copyrights restrictions by default.

Unfortunately, big media companies within the content industry – the ones that

most benefit from stringent copyright protections – are using the expanded reach of

copyright regulation to strangle the abundance of creative new material that is possible in

the digital age. The huge influence of these powerful companies is skewing the balance

between granting appropriate intellectual rights and allowing people the freedom to build

on ideas and cultural products of the past. By closely controlling the use of their

products, copyright owners are essentially denying new creators the opportunity to create

freely. All ideas and innovations are influenced in one way or another by their

predecessors, and by denying new creators the opportunity to build off the past, these

entertainment conglomerates are stifling the essence of RW culture that promises such a

bright creative future. They are taking away the pieces necessary to create something

wonderful and new.

 Lessig presents the idea of “free culture”, and explains how free culture is also

being directly affected by the copyright wars being waged by powerful copyright owners.

He defines it as follows:

A free culture supports and protects creators and innovators. It does

this directly by granting intellectual property rights. But it does so

indirectly by limiting the reach of those rights, to guarantee that follow-

on creators and innovators remain as free as possible from the control

of the past. A free culture is not a culture without property, just as a

free market is not a market in which everything is free. The opposite of

a free culture is a “permission culture” – a culture in which creators get

to create only with the permission of the powerful, or of creators of the

past. (Lessig, Free Culture xiv)

Once again we find this quest for balance; a way to grant copyright owners their

intellectual property rights, while simultaneously limiting the reach of those rights to

allow creativity and free culture to flourish.

There are two kinds of culture, commercial culture and noncommercial culture.

Commercial culture is the things that are produced by corporations and marketed for a

profit. Noncommercial culture represents everything else, the more intangible aspects.

These may be a song written by a garage band of teens, a mixtape made for a girlfriend,

or a home video edited on a PC for the family. Law has always focused regulating the

use and copying of commercial culture, but with the increased reach of copyright
regulations it is beginning to effect noncommercial culture. The Internet and revolutions

in digital technology has made it possible for everyone to engage in the process of

building, creating, and distributing cultural products. Amateurs are finally gaining access

to the cultural production that once only professionals in the content industries had, and

this change is threatening the established hierarchy that the media companies have

created. These companies are wary of the new technology and its effect on their

controlling stake of power, so they are seeking to smother it in its (relative) infancy. For

the first time the laws are regulating the amateurs working from their computers at home

and controlling the noncommercial aspects of the culture.

The idea of creators using ideas from the past to build freely upon is an important

one, and the increasing reach and grip of the law is strangling this type of creativity. The

powerful interest of the media companies are using their influence to maintain and

perpetuate their power, and causing a great deal of harm to our tradition and culture in the

process. We need to return to a compromise that recognizes and utilizes the good of both

copyright protection and creative freedom. Otherwise the corporations will continue to

flex their muscles and the law will blindly erase all the creative freedoms that we enjoyed

for so long.

In reality, these companies are less worried about college student “pirates”

downloading the latest Metallica album, and more worried about using their extremely

influential power to maintain the power structure they currently enjoy. Utilizing their

lobbying power, the content industry is using the government and legislation to wage this

war of prohibition. Unfortunately the law they use is broad, vague, loosely defined, and
unbelievably harsh, so “as with any war of prohibition, these damages will be suffered

most by our own people” (Lessig Free Culture 183).

There are some unfortunate deleterious byproducts of this copyright war that are

affecting our country. Through the war of prohibition we are constricting creators,

impeding innovators, and criminalizing our citizens.

This era should be an incredible one for creativity because of new digital

technologies and the Internet. It is easier than ever for a huge range of people to create

and distribute cultural work. Unfortunately with the ways that the law is now crafted,

much of this creativity can be presumed illegal. The laws are vague and uncertain, there

isn’t a clear sense of what the legal boundaries are, and the punishments for these vague

infractions are unbelievably harsh. Four college students who were trying to create a

search engine that allowed songs to be copied were threatened by the RIAA with a $98

billion dollar lawsuit (Lessig, Free Culture 185). This is just one example of an absurd

lawsuit being launched against normal citizens just trying to create something that may

benefit their peers. In this environment of rampant and seemingly random fining and

suing, people are just too afraid of the repercussions to try and distribute their ideas to the

world. Creativity is being stomped out and smothered by the fear of impending

punishment.

It used to be that innovative products would build off the technologies of the past,

and be welcomed into the market with open arms, but increasingly the big companies are

utilizing their legislative power to quell the flow of incoming products. In this era of

copyright regulation one can only safely innovate with a sign-off from the previous

generation of product innovators. Lessig calls it the era of corporate bullying:

 This is the world of the mafia – filled with “your money or your life”

offers, governed in the end not by courts but by the threats that the law

empowers copyright holders to exercise. It is a system that will

obviously and necessarily stifle new innovation. It is hard enough to

start a company. It is impossibly hard if that company is constantly

threatened by litigation. (Lessig, Free Culture 191)

The law is increasingly in the corporations’ corner, and “the law is a mess of uncertainty.

We have no good way to know how it should apply to new technologies….If innovation

is constantly checked by this uncertain and unlimited liability, we will have much less

vibrant innovation and much less creativity” (Lessig, Free Culture 192).

The final injurious byproduct of this copyright war is the criminalization of our

citizens. In essence, this war of prohibition has turned twenty percent of the American

population into criminals. It is estimated that 43 million Americans have downloaded

music illegally, and under our laws this makes them felons. The ridiculous regulations

cause tens of millions of Americans to routinely break the law, showing that the rules

simply don’t make sense. The broad and vague reach of the law has constrained creators,

innovators, and citizens alike.

III. Thesis
 It is quite obvious that the costs of the current regulations, both intended and

unintended, have far outweighed the benefits. It is imperative that we return to a balance;

one that affords the copyright owners certain rights over their products, but limits these

rights so that they do not strangle our creative future. We live in an era where it is

possible for anyone to become a cultural producer, but the vague, harsh nature and

extensive scope of copyright regulation is threatening to kill this creativity before it can

flower. Copyright law was designed to regulate commercial culture – the objects created

for consumption by the public. Because of the nature of the digital era, the reach of the

law has grown exponentially, and it is affecting the general public that it was not initially

meant to constrain.

The production of creative work has been democratized by the digital innovations

of our time – everyone now can access, manipulate, create, recontextualize, change, and

distribute their own cultural works - and it is important that we do not take this

opportunity for creative expression out of our peoples’ hands. Additionally, a great deal

of the cultural products produced in this digital era do not even present a threat to the

traditional content industries. Most remixes and mash-ups are created as an exercise of

enjoyment or an exhibition of the producers abilities, not to sell millions of copies. It is a

complementary industry, one that can even help record labels get their albums more

visibility and exposure. We must recognize these positive elements of the RW culture

and return to a balance in copyright; one that protects the copyright owners but does not

infringe on the public’s freedom to create. Copyright limits must be reevaluated and

limited to allow creativity to flourish in a digital era that provides new opportunities for

everyone.
IV. Textual Analysis

So what is it about this era that has made it such an important milieu for vibrant

cultural production? Essentially, for the first time in our history we are seeing a

democratization of culture that is allowing everyone to participate in creative production

with digital media. Video editing programs like Final Cut Pro, and audio mixing

programs like Sony’s Acid, Image-Line’s Fruit Loops, and Ableton’s Live have bypassed

the traditional complex and expensive studio equipment to provide opportunities for

amateurs to create digital content from their home computer. It is no longer a small

portion of highly trained professionals who have the access and means to produce highly

polished cultural products. Now we are seeing an arena where “the ease of making and

distributing remixes through this new technological assemblage opens up cultural

expression to those excluded from the formalized institutions that dominate musical

production” (Shiga 98). Thanks to the Internet and innovations in digital technologies

more people than ever are able to access, manipulate, and perhaps most importantly,

distribute their cultural works around the world. This has created a rich RW culture, and

although it remains constrained by copyright regulations and norms, it is still thriving in a

strong community of new cultural producers.

This new community of RW creators has grown up in a world where digital media

is the new vernacular. Kids are learning to manipulate and “write” with music, video,

and images at younger and younger ages, and the Internet allows them a channel to

distribute their work. Unfortunately, the set of norms surrounding this new form of
cultural expression is not as evolved as the medium itself, and there are still

misconceptions regarding the use and appropriation of past cultural products.

When we look at traditional writing, whether it be a high school report or NY

Times Magazine article you can see that writers don’t have to do anything beyond citing

when they want to use someone else’s ideas or reference their work. We don’t have to

seek out permission for every line we want to use. This is because writing is a

democratic text. Everyone has access to the means to write. Everyone may not use this

right, but as a culture “we understand quoting is an essential part of writing. It would be

impossible to construct and support that practice if permission were required every time a

quote was made. The freedom to quote, and to build upon, the words of other is taken for

granted by everyone who writes” (Lessig, Remix 53). Why is it then that it is so wrong

to quote in other forms of expression (music, film, etc.)? The referential act is the same

in many other sources and mediums, so the measure of fairness should be the same too.

It is, perhaps, the democratic nature of writing that creates these differences in

norms. We are all taught to read and write as we grow up, but production with video and

music were, for the most part, done by a select group of highly trained professionals. The

elitist nature of this type of production made it “easier to imagine a regime that required

permission to quote with film and music. Such a regime was at least feasible, even if

inefficient” (Lessig, Remix 54). What happens now though as technology is

democratizing culture and making these once “professional” forms of expression

accessible to many more people? “Whether justified or not, the norms governing these

forms of expression (music, film, TV) are far more restrictive than the norms governing
text. They admit none of the freedoms that any writer takes for granted when writing a

college essay, or even an essay for the New Yorker” (Lessig, Remix 54).

Ralph Waldo Emerson wrote in his famous essay “Quotation and Originality”:

“By necessity, by proclivity, and by delight, we all quote” (Emerson). We are constantly

being influenced by everything that we see, read, watch, listen to, or otherwise absorb.

We may not explicitly recognize the influence, but we are constantly having our intellect

and creative core be built up by the cultural works that we are surrounded by. The need

and right to quote is inherent in writing, so it should be similarly allowed in new forms of

cultural expression that are becoming increasingly prevalent. This necessary creative

freedom is an integral element of this new culture of remix, and it is essential that we do

not allow society to infringe on this right. There need to be limits on copyright’s reach

imposed to allow this new type of cultural “writing” to grow and thrive as a creative

output. We no longer live in a time when digital media production is out of reach for the

public, and we need to reevaluate the norms surrounding citing in these new mediums.

In this culture of relentless quotation that we now live in, the remix is king. The

remix is a tremendously innovative and creative form of musical or cultural composition.

It recognizes and appreciates the cultural elements that have set the stage, and through

their incorporation it cites and pays homage to its creative ancestors. Some culture and

music critics (and most copyright legislators) are quick to write off cultural remixers as

thieves; people who are too lazy or untalented to create their original compositions.

What they fail to realize is that that the remix is a conscious and ingenious new form of

cultural production. It doesn’t use bits and pieces of previous works to steal from the

original authors, it uses pieces of the past to create a patchwork of sound or sight that
references and pays tribute to the cultural building blocks that have created the

foundation for the rich culture we live in today.

[A]nyone who thinks remixes or mash-ups are neither original nor

creative has very little idea about how they are made or what makes

them great. It takes extraordinary knowledge about a culture to remix

is well. The artist or student training to do it well learns far more about

his past than one committed to this (in my view, hopelessly naïve) view

about “original creativity”. (Lessig, Remix 93)

We are living in a time where cultural historians are being cultivated and cultural

literacy is at an all-time high. Thanks to innovations in digital technologies and the

ability of the Internet to store a vast amount of information we have unheralded access to

the cultural and informational products of the past. This, coupled with the

democratization of cultural production has formed a stage where remix culture is hugely

popular. This type of cultural creativity is one that appreciates and acknowledges its

roots. It is a collage culture; one that seeks to pick up the cultural tokens and fragments

of the past and recontexualize them to create something wonderful and new. Listening to

a remix forces a listener to decipher it, listen to the parts collected and understand the

meaning of each, and why and how they were chosen to meld together. It is a

contributory and participatory culture; one that can be reconfigured and mixed in

innumerable ways.
 “Sampling is a new way of doing something that's been with us for a long time:

creating with found objects” (Miller 25). The remixer’s mind functions like everyone

else’s, constantly absorbing its surroundings, being influenced and altered by the cultural

pieces of everyday life. These pieces are internalized, appropriated, incorporated into

their work, and re-expressed in new ways when combined with other cultural pieces. It is

a cultural collage – quite literally so in the case of many mash-up videos. The fragments

are endlessly reconfigurable and customizable, each new combination creating a new and

original work of art based on the pieces of the past. Unfortunately the copyright regime’s

aim is to use its extensive regulations to curtail the use of these cultural pieces. Never

mind that the remix is a complementary cultural product rather than a rivaling one, the

“permission culture” that the content industries seek to achieve wants to ensure that no

creative act can be distributed free of legal scrutiny if it incorporates any piece of another

author’s work, no matter how small or altered.

Hip-hop music, and its use of sampling, has long felt the legal pressure that is

starting to permeate throughout the rest digital media world. Historically, “an

extraordinary effort is devoted by lawyers to identify samples used without permission in

successful records. The threat of copyright is huge, so the payoff to make litigants go

away is huge. The system loves the game; the game thus never ends” (Lessig, Remix

104). It isn’t that the use of sample is meant to steal something from another artist, but

rather that it creates a historical connection, particularly to the jazz, blues, and R&B roots

that birthed hip-hop culture.

Hip-hop is inherently a historical culture. DJing, sampling, and the practice of

collecting old records to sample from (known as “digging in the crates”), are all ways that
hip-hop culture acknowledges its roots and pays homage to its ancestors. “Sampling, DJ

culture, and the hip-hop zone are founded on ancestor worship and the best rhythm

scientists are constantly expanding the pantheon” (Miller 65). It would seem then that a

DJ would use a James Brown drum sample not because he wants to steal Brown’s idea or

sound, but because he wants to connect his mix to the influential singer’s aura,

simultaneously paying respect and building off of his cultural work. “Sampling in hip-

hop is a process of cultural literacy and intertextual reference” (Rose 89). Hip-hop

producers don’t utilize sampling because of a lack of musical talent, they utilize sampling

because that is the preferred method of cultural creation. Sampling allows them the

freedom to recontextualize sound fragments into an infinite number of new compositions.

The postmodern world that we live in is a fragmented world, and sampling offers

a way to creatively maneuver through the fragmented cultural landscape. At the core of

sampling is an innate drive to assimilate as many bits and pieces of sound as possible,

reconfiguring and remixing them in increasingly creative ways to create something new.

“Sampling allows producers to take musical performances from a variety of recorded

contexts and organize them into a new relationship with each other. It is this relationship

that represents the producer's art, and it is this relationship that reveals the producer's

aesthetic goals” (Schloss 150). Every producer has their own style and will remix the

sampled pieces in a different way. If you gave ten different hip-hop producers the same

Akai MPC Sampler full of the same distinct samples, you’d undoubtedly be astounded at

the range of diverse work that was created from the beat fragments.
 A sampler is not just to make music with, but a way to understand the

world, a way to creatively filter and re-configure it. It is an

organizational tool. It is a critical tool. It is a democratic tool.

Everyone now has the ability and right to access our recorded history

and re-enchant the world. (Robleto)

With the tremendous technological innovations that have emerged in recent years

this ability to remix and re-enchant the world is available to more and more people. One

of the byproducts of this democratization of cultural production is a strong community of

mash-up producers, particularly online. While mash-up culture embraces the collage,

remix, and sample ethos of DJ culture, it is not as set in its ways when it comes to

sticking to musical genres. This is not to say that hip-hop and DJ culture do not use a

wide variety of music for their samples, rather that their reverence for certain older artists

and types of music that birthed hip-hop have led to a community of DJs and producers

who would consider themselves connoisseurs of a certain range of musical sound. Throw

on a dozen classic hip-hop records and a seasoned producer could name all the breaks

(main looped drum beats) and samples that are sprinkled throughout. Mash-up culture

tends to draw their influences and sounds from a much wider range of influences. It is

not uncommon to hear Top 40 mainstream pop hits mixed with Pink Floyd, Dirty South

crunk-hop, country music, and heavy metal, all within a single track. For mash-up

producers, it is all about being able to find these wildly disparate songs and figuring out

how they can meld them together into a coherent and catchy song.
 This is an interesting aspect of the tight-knit community of mash-up artists.

Seeing that most of the remixes created violate some kind of copyright statute, and can

thusly not be marketed for any significant economic gain, the main focus of the culture is

the establishment of a reputation within the community. “Status and reputations within

the mash-up community hinge upon the capacity to hear affinities between seemingly

disparate songs, artists and genres, which requires pluralistic openness to music that has

little or no value for professional DJs, music critics, and other individuals who act as

intellectuals in popular music cultures” (Shiga 99). The producer who can hear the

shared sonic properties between two songs that most would never associate, and then find

a way to reorganize and recontextualize the two songs to create a new mix flawlessly

incorporating the diverse elements is the producer who gains respect amongst his online

peers.

What we can see here within the mash-up culture is another example of

noncommercial culture that is being affected and regulated by copyright laws. The nature

of the mash-up community is not about creating a remix to become rich off of; it is about

gaining the praise of your peers. The remixes they craft aren’t meant to take away from

the sales of the songs that they sample and they aren’t meant to be bought in place of

albums. Rather they reference the songs in a complimentary way, incorporating them

into the mix and citing their importance in the cultural scene.

To step back for a moment to the community of mash-up culture, it amazing to

see how much it fits in with the contributory nature of RW culture. The community

communicates and disseminates their creative works through online message boards,

meaning that copying is inextricably tied to mash-up listening. Unlike traditional music
albums, mash-up remixes exist within a network of discourse. They are created,

uploaded onto the web, posted on message boards, and analyzed and critiqued by the

members of the community. There is no stagnant, consumption driven RO sensibilities

here, but rather a rich community of people who accrue knowledge on remixing, share

advice, and try to promote the growth of the culture overall. These inherently intangible

and noncommercial aspects of the mash-up community are the ones being unfairly

smothered and regulated by copyright legislation. The fear of unnecessarily harsh

penalties can strangle and hold back creativity, robbing the world of some incredibly

innovative and new cultural products.

A result of this fear of repercussions within the community is the necessary use of

pseudonyms to protect the remix producers from legal sanctions by overzealous

copyright owners. Producers will adopt names and identities to protect their identity

within the community message boards. This will also lend them an air of mystery,

allowing them to craft a persona that may increase their popularity.

One of the most interesting examples of a mash-up producer who operated under

a pseudonym is also probably the first real example of mash-up culture hitting the

mainstream and gaining mass recognition. Underground producer Brian Burton AKA

Danger Mouse was a slightly known producer in the indie rock and hip-hop world.

However in 2004, Danger Mouse released one of the most controversial, popular and

enigmatic records in music history - and pretty much no one paid for it. Says Burton:

One day I was cleaning my room and listening to the Beatles’ White

Album. I was kind of bored, because the other hip-hop work I was
 doing was really easy. Somebody had sent me an a capella version of

the Black Album, but I was already doing stuff with Cee-Lo and Jemini

and Doom, so I didn't want to waste my beats on a remix record. So

I'm listening to the White Album and I'm putting the Black Album away,

and I suddenly have this idea: I decide to see if I could take those two

albums and make one song, just because of the names of the two

albums and because they're perceived as being so different and because

I've always loved Ringo Starr's drum sound. (Danger Mouse quoted in

Klosterman New York Times Magazine)

To explain quickly, the Black Album is a 2003 release by legendary hip-hop MC

and industry mogul Jay-Z. A few months after the album was released Jay-Z’s record

label, Rocafella Records, decided to release the a cappella version of the record (only

lyrics, no beats or backing instruments). This a cappella version was quickly gobbled up

by the remix community, and myriad mixes hit the streets. Danger Mouse’s version,

using only the Jay-Z’s vocals and an incredibly complex set of samples from the White

Album as backing music, was crafted and dubbed the Grey Album. Burton burned about

3,000 CDs to pass out to friends and other DJs, thinking it was just a bit of novelty that

only a few would enjoy. Once the Grey Album hit the Internet and online music

communities though, it exploded. By Burton’s best estimate the album would be

multiplatinum if sales were tracked, which of course they were not as it spread virally

across the web. Entertainment Weekly named it the album of the year and Danger Mouse
would go on to become a wildly successful producer and one-half of the multiplatinum

and Grammy winning duo Gnarls Barkley.

What is interesting about the creation of the Grey Album and its resulting tidal

wave of popularity is how the creative product was perceived by the different record

labels whose product was appropriated, and their divergent methods of addressing its

success. The record label EMI “asserted its intellectual property rights to the White

Album and issued cease-and-desist orders to [the Grey Album’s] producers, retailers, and

websites. Similarly, SONY/ATV, which owns the rights to the Beatles’ compositions,

issued a Digital Millennium Copyright Act takedown notice to the Internet service

provider of illegal-art.org, along with other activist sites that continued to post the album

despite Capitol’s cease-and-desist orders” (Shiga 106). Conversely, Jay-Z’s record label

seemed to implicitly encourage the remixing of his album by releasing the a cappella

version, something that makes it easy for producers to create remixes and a practice that

most labels don’t engage in. They saw the importance of the mash-up and remix

community, and realized that by allowing the culture to become involved with remixing

the record they would vastly increase its popularity and influential reach. Indeed, Jay-Z’s

sound engineer admitted that the release of the a cappella version was intended to allow

DJs to “remix the hell out of it” (Young Guru quoted in Shiga 106).

We can see two very different marketing and management strategies at work here.

EMI Records is assuming the role of the traditional hierarchical copyright bully, while

Rocafella Records is recognizing the opportunity for increased exposure and embracing

the RW culture of the remix community. As John Shiga describes it: “Put simply, EMI

manages innovation through the notion of originality, whereas Rocafella manages

innovation as novelty. As Lury (1993) points out, managing innovation through

originality depends primarily on the use of copyright law; the management of innovation

through novelty relies on an array of legal and marketing techniques known as branding”

(Shiga 106). EMI didn’t even want to contemplate the benefits it could enjoy from the

popularity of Danger Mouse’s remix, it simply saw that someone was using their

intellectual property without permission and wanted to squash it immediately. Rocafella,

on the other hand, recognized that by coordinating the album release with the flurry of

remixes that came with the a cappella version they could increase visibility, obtain added

popularity in clubs, and reach out to a market that otherwise may not have bought the

album. If anything, Danger Mouse’s remix made more people buy Jay-Z’s Black Album.

Mash-ups and remixes can be complementary and beneficial to the songs they are

remixing, and Rocafella Records is one of the cutting edge establishments that can

recognize the important elements of this new type of cultural production and has chose to

embrace it. EMI Records and other monolithic content industry giants refuse to open

their eyes to the possibilities, instead preferring to perpetuate the hierarchical power they

have developed through stringent copyright regulation.

It is interesting how the legal controversies incited by Danger Mouse’s Grey

Album ended up benefiting almost everyone involved. Danger Mouse translated his

instant fame into a highly successful and lucrative producing career. Jay-Z’s the Black

Album became one of his most critically acclaimed and financially successful records,

and even EMI was probably able to sell a few extra copies of the White Album to some

kids who had never bothered to listen to the Beatles’ before but loved the remix. The
inherent illegality of Danger Mouse’s composition and resulting media frenzy helped to

popularize the creative work and move it past just the tight-knit remix community.

“Piracy” has become an important part of the mash-up community subculture.

The “illegality of mash-up remixing in this instance works as a marker of distinction

within a particular cultural space” (Shiga 108). Amongst the active participants it is a

badge of honor and respect to create something that garners a cease-and-desist order from

record labels. Due to their perceived lack of legitimacy, it seems that the social norms

surrounding copyright are decidedly weak and that “compliance with copyright laws

remains the exception, rather than the rule among Internet users” (Jensen 531). It is

deemed as “cooler” to create or have something they are not supposed to because it lends

an underground credibility and an aura of mystery to the remix. The mash-up producers

are digital outlaws, “stealing” bits of songs from the rich media giants and remixing them

to give to the poor masses. Although it seems that Danger Mouse’s dizzying ascension

into fame was largely accidental, there are some who believe that “the pattern of

provocation through illegal remixing followed by legal orders and press coverage

suggests that the logic of mash-up culture can be reduced to a series of calculated moves

on the part of amateur remixers to incite legal controversies that enable them to showcase

their skills in the news media” (Shiga 109).

If Danger Mouse laid the groundwork for the popularization of mash-ups then one

could say that the current torchbearer and champion of the community is Girl Talk, AKA

Greg Gillis. Gillis has taken mash-up culture to the next step, incorporating

approximately 322 unauthorized samples in his latest album Feed the Animals. A former

worker in the biomedical engineering world, this is Gillis’ fourth album. He began
downloading, mixing, and splicing music on his laptop his freshman year of college in

2000. Gillis “still uses relatively simple software called AudioMulch to splice digital

music files together. The pleasure of his music is in the juxtapositions of both styles and

eras and the faster-than-your-remote-control-finger pace. Maintaining that copyright law

stifles creativity, he ignored it” (Walker New York Times Magazine). As Girl Talk has

gained notoriety and popularity, many have wondered if he is facing increased legal

scrutiny and pressure from the people who own the plethora of songs that he samples.

When asked if he was worried about the legal situation in a Spin Magazine online

interview he replied:

Yeah, especially when Night Ripper started getting wider exposure. I

expected some sort of cease-and-desist. But nothing happened, and it

was liberating. And you know, there's fair use in U.S. copyright law,

which allows for certain works to be creative without asking

permission from [the owner of] the source material. It felt good, after

there'd been all these publications saying, "This guy's going to be sued

by, like, a million people," like we didn't understand the law when there

is a huge academic and legal movement supporting the free exchange

of culture and ideas. But going into Feed the Animals, there was more

anticipation and the samples of bigger artists became a concern. My

interaction with major labels the past couple years gave me hope that

they see we're not negatively impacting the artists. Soulja Boy's "Crank
 That" was a hit, but it was all the [unauthorized] remixes on YouTube

that made it insane. (Newton Spin Magazine)

Perhaps this could be an indication of a changing of the guard amongst the

traditional copyright strategists for media giants. These companies are usually frothing at

the bit to bring down legal thunder on any artist who dares to use unauthorized samples

of their work, but invoking his fair use rights, Gillis has sampled over 300 songs on his

new album and has yet to be sued or issued a cease-and-desist. 322 samples stretched out

over 14 songs on the album averages to 23 samples per four minute song, meaning that

most samples are only a few seconds long. It could be that the record companies don’t

see this as a significant enough portion of material to raise a stink over (although this is

unlikely given their track records), or it could be that more corporations are recognizing

the benefits they can gain from this type of creative work and are refraining from

interfering.

If someone listens to Girl Talk’s new album they’ll be treated to sonic whirlwind

of sound drawn from every conceivable musical genre and smashed together into an

incredibly upbeat and catchy song. For many people this type of music will be exposing

them to a vast amount of new musical material, and if they like what they hear, they may

be inspired to investigate more, widening their musical horizons and buying new albums.

Girl Talk and other mash-up productions offer this complementary aspect in their musical

sampling. While not as reverent in their cultural citing as hip-hop music, they are

nevertheless acknowledging these tremendously disparate songs and finding ways to

blend them together.

 Impressively, some record companies are even asking Gillis to take their entire

catalog and create a mash-up style remix for them. He has declined such offers so far

because of the limits they place on his creativity. To create a 40 minute album from

every song he’s ever heard was already a challenge, and to force him to create a mash-up

using only certain songs would be creatively shackling his cultural literacy. As Larry

Lessig said before, “it takes extraordinary knowledge about a culture to remix is well”

(Lessig, Remix 93). Gillis’ deep love for all types and genres of music have allowed him

spend years absorbing cultural tokens from myriad sources, and the digital technologies

of our era have allowed a way to reconfigure and recontextualize these stylistic

influences into his own new creative form.

Consider for a moment the song “Play Your Part Pt. 1”, the first track off of Feed

the Animals. By listening to the song, checking the sample list from the CD booklet, and

consulting the comprehensive sample breakdown accrued by fans on Wikipedia (in an

applicable example of contributory RW culture) we can begin to see how the musical

landscape is formed by Girl Talk.

The song begins with a sped up drum sample from Roy Orbison’s “Oh, Pretty

Woman”. To this drum track is added a bass line, complementary drum beat, and organ

track from the Spencer Davis Group’s hit “Gimme Some Lovin”. So far, nothing too

strange, just a couple of popular tracks from the late sixties. Suddenly, over the top of

this backing music begins the rhymes from the 2006 smash-hit “International Players

Anthem”, by southern underground hip-hop legends UGK and Outkast. From there Girl

Talk samples French hip-hop/electronica group TTC, R&B singer Cupid, and Detriot

“ghetto house” artist DJ Funk in rapid succession before settling into his next set of
artists. Just a minute and seven seconds into the first song on the album and we’ve

already heard six different artists from five different genres and two different continents.

Gillis is quick to let us know that we’re in for an eclectic musical journey.

Next we are treated to some mellow piano from The Who frontman Pete

Townshend’s 1980 solo song “Let My Love Open the Door”. Quickly added to this

piano line is a sharp snare drum beat, leading to the beat and chorus of Atlanta rapper

Unk’s 2006 radio hit “Walk It Out”. After allowing for the chorus to play out the song

takes another abrupt turn, this time sampling androgynous heavy metal band Twisted

Sister’s 1984 anthem, “We’re Not Going To Take” which easily intertwines with 18 year

old female MC Lil’ Mama’s “G-Slide (Tour Bus) . Without exhaustingly naming every

sample in the song we can see the incredible range of influences and samples that Gillis

incorporates into every song.

This harkens back to the core of mash-up culture; an ability to recognize the

similarities in seemingly disparate songs and finding a way to make them effortlessly

weave together is the calling card of a great producer. Gillis’ abilities in the capacity are

astounding. In the first song alone there are 25 different artists and songs sampled. Apart

from the ones already mentioned he utilizes rap-metal revolutionaries Rage Against the

Machine, hip-hop moguls Lil Wayne and Jay-Z, soul singer Edwin Starr, grunge rock

uber-group Temple of the Dog, and even Irish singer-songwriter Sinead O’Connor.

There is a distinctly upbeat hip-hop feel to a lot of Girl Talk’s songs, but he by no means

locks himself into any kind of musicological role. No genre or artist is safe from being

picked apart and put back together on Girl Talk’s laptop, and it is the wide breadth of
music he samples from and seamlessly sews back together that make his work so beloved

in the mash-up community.

Despite his growing popularity, Gillis will probably never be signed to a major

label deal. The possibilities for legal sanctions if he had a major label’s money backing

him are just too big of a risk. He released his latest mash-up opus Feed the Animals

through the Internet, making it available for download to anyone who wanted for any

price they chose to pay. For a $5 donation the user would receive higher quality sound

files, and for a $10 (or above) donation they would receive a physical CD in addition to

the digital music files. Instead of making his money through CD sales, Gillis has used his

growing and increasingly fervent fan base to make a living by performing live. His hour-

long shows are legendary for their intensity, debauchery, and overall insane atmosphere.

Gillis admits that they can sometimes get out of hand at times, mentioning that “I've had

multiple shows where people have had sex onstage. That's as extreme as you can get. I

think because people know it's going to be one hour, they prepare for that one hour of

debauchery. I've also had a front tooth knocked out twice in the past two years” (Newton

Spin Magazine). The digital dissemination of his work has definitely helped get the word

out about him. Says Gillis, “It’s always been my motivation to get the music out to as

many people as possible” (McLendon The Village Voice). The blogs were abuzz with

praise and critique for his newest album, and since its online release he is routinely

selling out 1,600 person venues (a huge step-up from his older gigs) and has booked a 30

city tour in support of the album (Walker New York Times Magazine).

This is yet another example of how mash-up culture is thriving in a

complementary manner to the copyright owners it samples from. The artists who are
sampled get to be included in one of the hottest musical remixes currently in the pop-

urban market, increasing their visibility and exposing them to new fanbases who would

otherwise be ignorant of their work. The record companies’ sales are not suffering as a

result of the mash-ups either. It is not as though someone who wanted a Britney Spears

album will buy Feed the Animals instead because of the 20 second “Gimme More”

sample on track 8. If anything, more people will be induced to buy albums when they are

exposed to new artists through the remixes. Girl Talk gets to make his mash-ups,

circulate them, and do what he loves most (and makes him the most money), play his

ridiculous live show. It is a set-up where everyone can benefit from this new mode of

cultural production.

What we need to learn from these two examples is that even the two paradigms of

mash-up culture, two producers who have enjoyed far more success and exposure than

(arguably) anyone else in the community are utilizing important and non-threatening

ways of creative and cultural production. We have seen that even the wild popularity of

the Grey Album and Feed the Animals have not had overwhelmingly adverse effects on

the content industries, so why should the cultural production of far less popular mash-up

producers throughout the community be continually limited and punished by copyright

regulation? The remix and mash-ups cultures are not trying to steal the creative work of

their predecessors to capitalize on it and take money out of their pockets. They are

accessing the rich cultural history and using fragments of this cultural landscape to shape

a new cultural product, one that pays homage to the ancestors and cites the past. We are

living in an era where the Internet, digital technologies, and powerful home computers

have created an environment where production with music, images, and video is available
to everyone. The democratization of cultural production, combined with the ability to

disseminate the cultural products has created a vibrant and rich RW culture of people

who are revolutionizing innovation and creative production. We must make sure that the

broad and harsh copyright regulations that the content industry giants wield do not crush

this new form of creativity. It is imperative that we reevaluate the scope of copyright

limits and curtail them so that the appropriate monopoly rights are afforded to copyright

owners while still allowing creativity to proliferate in an increasingly digital and

participatory culture. Remix and mash-up cultures need to be recognized as

complementary rather than rivaling forms of creative production. By limiting copyright

control we can encourage these complementary forms of cultural expression and

perpetuate the vibrant creative culture that exists today.

 Works Cited
Emerson, Ralph Waldo. "Quotation and Originality." The Works of Ralph Waldo
Emerson. 3 Apr. 2009 <http://www.rwe.org/?
option=com_content&task=view&id=47&Itemid=42>.

Ginsburg, Jane C.. "Copyright and Control over New Technologies of Dissemination."
Columbia Law Review 101.7 (2001): 1613-1647.

Jensen, Christopher. "The More Things Change, the More They Stay the Same:
Copyright, Digital Technology, and Social Norms." Stanford Law Review 56.2
(2003): 531-570.

Klosterman, Chuck. "The D.J. Auteur." The New York Times Magazine 18 June 2006. 3
Apr. 2009 <http://www.nytimes.com/2006/06/18/magazine/18barkley.html?
pagewanted=1&ei=5090&en=d69638926b798ed5&ex=1308283200&partner=rs
suserland&emc=rss>.

Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock
Down Culture and Control Creativity. New York: Penguin Press, 2004.

Lessig, Lawrence. Remix: Making Art and Commerce Thrive in the Hybrid Economy.
New York: Penguin Press, 2008.

McLendon, Ryan. "Interview: Girl Talk a/k/a Gregg Gillis." The Village Voice. 14 Oct.
2008. 3 Apr. 2009 <http://blogs.villagevoice.com>.

Miller, Paul D. . Rhythm Science. London: The Mit Press, 2004.

Newton, Matthew. "The Inquisition: Girl Talk." Spin Magazine 22 Sep. 2008. 3 Apr.
2009 <http://www.spin.com/articles/inquisition-girl-talk>.
Relic, Peter. "Mash-Up King Girl Talk's Sweaty Party." Rolling Stone 27 Nov. 2008. 3
Apr. 2009
<http://www.rollingstone.com/news/story/24386867/mashup_king_girl_talks_sw
eaty_party>.

Robleto, Dario. "I Love Everything Rock and Roll (Except the Music)." Rapper's Delight.
3 Apr. 2009
<http://www.presentspace.com/presenttwo/presents/robleto/robletoessay.htm>.

Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge: Harvard
University Press, 1995.

Rose, Tricia. Black Noise: Rap Music and Black Culture in Contemporary America
(Music/Culture). Middleton, Connecticut: Wesleyan University Press, 1994.

Schloss, Joseph G.. Making Beats: The Art of Sample-Based Hip-Hop (Music Culture).
Middleton, Connecticut: Wesleyan, 2004.

Shiga, J.. "Copy-and-Persist: The Logic of Mash-Up Culture." Critical Studies in Media
Communication 24.2 (2007): 93-114.

Walker, Rob. "Mash-Up Model." The New York Times Magazine 20 July 2008. 3 Apr.
2009 <http://www.nytimes.com/2008/07/20/magazine/20wwln-consumed-
t.html?_r=2&partner=rssnyt&emc=rss>.

Woodmansee, Martha. The Author, Art, and the Market: Rereading the History of
Aesthetics. New York: Columbia University Press, 1994.