“Mashup music, in its simplest definition, is a song or composition created from the master track [of] instrumental music of one song and the a cappella vocal master track from another,” as David Tough has defined it. The most famous examples of simple mashups, also called “A vs. B’s,” include Soundwax’s Smells Like Teen Booty, combining the entire instrumental master track of Nirvana’s Smells Like Teen Spirit with the entire vocal master track of Destiny’s Child’s Bootylicious, and Freelance Hellraiser’s A Stroke of a Geni-Us, combining the entire instrumental master track of The Strokes’ Hard to Explain with the entire vocal master track of Christina Aguilera’s Genie in a Bottle. “On a more advanced level, a person can cut bits of the audio, rearrange them and piece them together with other audio fragments to create an audio collage.” Grey Album by Danger Mouse has been perceived as one of the prime examples of audio collage mashup. Even though Grey Album has only two sources, it is not an A vs. B. The voice clips may be from a single album by Jay Z, The Black Album, however, they are from different songs on that album. Similarly, the instrumental clips are from different songs which are all from The White Album by the Beatles. Moreover, Danger Mouse had completely sampled, rearranged and manipulated the audio clips so as to make entirely new songs, bearing little resemblance to the original works. Audio collages typically use short clips from many original songs and mix them together. Mashup artist Girl Talk (discussed below) is known for using clips from dozens of songs in order to create a single new song. Girl Talk used clips from at least 167 artists on his third album, Night Ripper. The mashup phenomenon is by no means new − the first famous commercial mashup was made already in 1983, by Club House: Do It Again / Billie Jean was a medley of Steely Dan and Michael Jackson. Mashups have a close connection to sampling, “[t]he process of taking a small portion of a sound recording and digitally manipulating it as part of a new recording,” as sampling is defined in Black’s Law Dictionary. Sampling became commonplace among hip hop artists in the 1980’s. Mashups, like sampling, were originally an underground phenomenon and did not reach the attention of the mainstream pop music audience until twenty years later, as Tough has noted. There was almost no money involved because making of a mashup did not require a recording studio and mashups were efficiently distributed, at zero advertising cost, on peer-to-peer (“P2P”) file sharing networks. It was when mashups got their own TV show on MTV, Ultimate Mashups, in 2004 that it became clear that mashups had become mainstream. At the same time, mashup artists have become more common, more popular, and richer. One can even make a living on mashups – as Girl Talk does. Thousands of people flock to buy tickets for Girl Talk’s performances, to which tickets run between $20 and $400. All the while, the voices of the original artists of the mashed up songs have become louder in their claims for licensing fees. Mashup artists, perhaps most persistently Negativland and Greg Gillis a.k.a. Girl Talk, have argued in response to allegations of infringement that their work is protected as fair use. The copyright scholar Horace Ball has defined fair use as a “privilege . . . to use the copyrighted material in a reasonable manner without [the owner’s] consent, notwithstanding the monopoly granted to the owner.” One such infringement action started when EMI Group served Danger Mouse with a cease-and-desist letter, relating to The Grey Album. By the time of the letter, Danger Mouse had distributed 3,000 promotional copies of the record. Upon receiving the order, Danger Mouse complied with it, in fear of costly further litigation − even though he would have had a good argument for fair use. Copyright activists and fans continue to distribute copies of The Grey Album over the internet. Girl Talk, perhaps the most famous mashup artist, has released, to date, five albums of mashups; curiously enough, however, Girl Talk has not, during his 10 years of mashup art, faced a single lawsuit for copyright infringement. Some say that the record labels, which own most of the sound recording copyrights, fear that a court could hold that Girl Talk’s copying is protected as fair use, setting a damning precedent for lawsuits against future mashup artists. In addition, if Girl Talk were to face an infringement suit, he would not have to defend it alone – the copyright activist group Electronic Frontier Foundation has expressed that “they’re positively eager to litigate a case over music sampling, which they believe is a clear-cut case of fair use.” Even though record labels have not sued Girl Talk, none of his albums are carried by iTunes nor by any CD distributor presumably because they want to avoid copyright concerns. According to Girl Talk, his use of the original songs is highly productive. He “spen[ds] several months testing out ideas during live performances, then several more matching beats and polishing transitions. He estimates that each minute of [his album] Feed the Animals took him about a day to create.” Even though Girl Talk distributes recordings of his music to the audience for free, encouraging both free downloads and optional contributions, he is able to make a living by means of his live performances. Since 2008, the artist has performed at least 340 times and constantly has more gigs planned. Not as fearless as Girl Talk, other mashup artists have adjusted their practices to avoid lawsuits: they first test the market by releasing the mashup on P2P networks without any license; then, if the mashup becomes an underground hit, they obtain the licenses and release a legitimate version. In reaction to being pursued by EMI Group for his first album, Danger Mouse released his second album, Dark Night of the Soul, as a blank, recordable CD-R, stating, in a separate interview, that he could not directly provide the album to listeners because of the risk of a lawsuit, but that he “hope[d] that people [would be] lucky enough to hear the music, by whatever means.” This is, in fact, exactly what happened, and the album became available at NPR’s website. While there are no court opinions discussing mashups themselves, a lot of jurisprudence relating to sampling and visual arts could, by analogy, be applied to mashups. No court, however, has ruled on whether a non-parodic sample would be allowed the fair use defense. This Note argues that at least the most elaborate mashups should get the benefit of the fair use defense because they use the original song only as raw material to create new art much as post-modern art forms do. Part 1 described the mashup phenomenon; part 2 explains the elements of a copyright infringement action; part 3, the de minimis defense; part 4, the fair use defense; part 5, the policy arguments for and against granting mashups the fair use defense; and, part 6, the proposed reform
